Wal-Mart v. Dukes: the Plessy v. Ferguson of Our Time

When the Supreme Court ruled that "separate but equal" facilities for persons of different race did not violate the rights of American citizens, Justice John Marshall Harlan dissented.  His reasoning was unassailable.  Coloreds born here were citizens.  Furthermore, the law allowed new immigrants from Africa to attain citizenship. Asians were not allowed to become citizens.  Yet, Chinese could ride in train cars with white people, while blacks were denied.  Not unusual in Louisiana, Homer Plessy was visibly white.  He had to assert his color in order to be arrested.  Seen from any perspective, the law was unjust.  The majority of the court did not agree.  History proved them wrong.  So, too, with Wal-Mart Stores, Inc. v. Dukes, et al., 564 U. S. No. 10–277 (2011).  Justice Ruth Bader Ginsburg wrote the dissent, with Justices Breyer, Sotomayor, and Kagan joining.

You owe it to yourself to read the Dissent.  The slip opinion is available here on the Supreme Court website as a PDF.

The errors of the majority are many and consequential.  Regarding the experts, the Court said:

"The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaning-ful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004)."

The plaintiffs had another expert witness.  Dr. Richard Drogin provided the maths.  His testimony was ignored in the majority opinion.  If any generalizations about men and women are real, it is generally true that women are more attentive to detail than men.  The Dissent picked up on Prof. Drogin's evidence.

"Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, controlled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. Id., at 159.5 The results, the District Court found, were sufficient to raise an “inference of discrimination.” Id., at 155–160.

You don't need a lot of statistics or regression analysis.  "Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks inthe organization the lower the percentage of women.”

I have a general rule that you can take the people on one side of the counter and switch them with the people on the other side and get the same results, not much worse, and probably better.  Birds of a feather flock together, no suprise in that.  So, Wal-Mart, Inc., reflects the society and culture of their sales areas: rural, small town, conservative, mainstream.... and a generation behind the rest of the nation. 

As noted in the previous post, in theory, Wal-Mart's discrimination against women should cause female employees with upward aspirations, to create competition or to take their talents to competitors.  This seems not to be the case.  Many factors come into play.  Opportunity is a matter of perception.  And, perceptions, aside, it must be attainable, rather than academically theoretical.  Wal-Mart profits from the disadvantages of its skilled employees.  Those profits, however, do not pour directly into a vault of bills and coins in which the heirs porpoise around like Scrooge McDuck.  Before that can happen, Wal-Mart customers must benefit from the advantage of skilled, interested, motivated, exceptional hourly employees who otherwise would be in management.  Wal-Mart customers get what they want, when they ask for it.  The shelves are stocked.  Check-out lanes move briskly.  It brings customers back, even as it costs the corporation in lost talent.