Justices Rule for Wal-Mart in Bias Case

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WASHINGTON — The Supreme Court on Monday threw out the largest employment discrimination case in the nation’s history. The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had discriminated against them in pay and promotion decisions. The lawsuit sought back pay that could have amounted to billions of dollars. But the Supreme Court, in a decision that was unanimous on this point, said the plaintiffs’ lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.

The court did not decide whether Wal-Mart had in fact discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones asserting antitrust, securities and product liability violations.

In a broader question in the Wal-Mart case, the court divided 5-to-4 along ideological lines on whether the suit satisfied a requirement of the class action rules that “there are questions of law or fact common to the class.”

Justice Antonin Scalia, writing for the majority, said the plaintiffs could not show that they would receive “a common answer to the crucial question why was I disfavored.” He noted that Wal-Mart operated some 3,400 stores, had an express policy forbidding discrimination and granted local managers substantial discretion.

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”

The plaintiffs sought to overcome the gap with testimony from William T. Bielby, a sociologist specializing in “social framework analysis.”

Professor Bielby told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also reviewed extensive litigation materials gathered by the lawyers in the case.

He concluded that two aspects of Wal-Mart’s corporate culture might be to blame for pay and other disparities. One was a centralized personnel policy. The other was allowing subjective decisions by managers in the field. Together, he said, those factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.

“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s majority opinion on that broader point.

Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented in part. Justice Ginsburg said the court had gone too far in its broader ruling.

“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”

http://www.nytimes.com/2011/06/21/business/21bizcourt.html?_r=1&smid=fb-nytimes&WT.mc_id=BU-SM-E-FB-SM-LIN-JRF-062011-NYT-NA&WT.mc_ev=click

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http://www.amren.com/mtnews/archives/2006/05/white_men_cant.php

White Men Can’t Help It

More news stories on Anti-Discrimination Law

Michael Orey, Business Week, May 15, 2006

Winning a big employment lawsuit these days often requires a bit of magic. After all, companies are awash in diversity training, equal opportunity policies, and 800 numbers aimed at rooting out bias. Managers have been well trained to keep their discriminatory thoughts to themselves, edit all hints of racism and sexism out of e-mail, and couch pay and promotion decisions in legally defensible language. So how do plaintiffs’ lawyers prove their cases?

Enter the magician. Sociologist William T. Bielby is the leading courtroom proponent of a simple but powerful theory: “unconscious bias.” He contends that white men will inevitably slight women and minorities because they just can’t help themselves. So he tries to convince judges that no evidence of overt discrimination—no smoking gun memo, for instance—is needed to prove a case. As Allen G. King, an employment defense attorney at the Dallas office of Littler Mendelson, puts it: “I just have to leave you to your own devices, and because you are a white male,” you will discriminate.

King and other defense attorneys have gotten to know Bielby well, having encountered him as an expert witness in dozens of major cases, including those currently pending against Wal-Mart, FedEx, Johnson & Johnson, and Cargill. For plaintiffs, Bielby’s fees—now $450 an hour, and totaling $30,000 or more per case—are often worth it. Numerous lawsuits in which he has been involved have ended in big dollar settlements, including suits against Merrill Lynch, Morgan Stanley, and Home Depot. In 2004 a federal judge in San Francisco cited Bielby’s testimony when he agreed to let the largest-ever employment class action go forward against Wal-Mart Stores Inc. The company is appealing but could face gender bias claims on behalf of more than 1 million women.

Sitting in his quiet, dimly lit office at the University of Pennsylvania, Bielby, 58, explains his opinions and parries criticisms in a way that makes the provocative sound almost prosaic. An electric guitar propped in a stand on the floor hints at his other preoccupation: rock ‘n’ roll. A longtime guitar player, he’s also made studying bands in the “post-Elvis, pre-Beatles” era part of his academic work. Every year, he joins colleagues to perform at the American Sociological Assn. convention.

COURTROOM CELEB

Bielby’s rock star turn, though, has been in the litigation arena. Now if an employer is faced with a class action based on gender or race, there is at least a 50% chance that plaintiffs will cite unconscious bias theory, says David A. Copus at Ogletree Deakins in Morristown, N.J. When corporations conduct “beauty contests” to hire law firms to represent them in these lawsuits, “if you can’t go in and say how you’re going to deal with an expert like Bielby, you can’t get the case,” says Littler Mendelson’s King

[Obama 2012 1,714]

yawn.

Burden of proof is the key here no matter what.

Why are we crying about this anyway?

If a private company wants to promote with bias, let them.

That's like filing a lawsuit against a family owned company that only promotes family members within the company.

Get over it.

[Mr. Big Dog 10,747]

If a private company wants to promote with bias, let them.

Exactly! Nobody has to frequent that business. Just stay away from businesses that do what you disagree with and pretty soon they'll run out of customers and either make changes or are done. Simple as that. The Germans did it. They buried Wal-Mart. It's possible.