Tomorrow the Supreme Court will consider whether nearly 1.5 million women can join together in an employment discrimination lawsuit against Wal-Mart. As noted by the New York Times, the oral arguments may center around an analysis from a sociologist.
In the original case, Dukes v. Wal-Mart, plaintiffs allege that they were unfairly treated with respect to pay and promotions because of their gender. The Supreme Court won’t be considering whether gender discrimination occurred; they’ll be considering whether the proposed class of hundreds of thousands of women have enough in common to join together in a single lawsuit.
Aside from the anecdotal evidence of discrimination and statistical analyses offered, the plaintiffs must identify the common policy or practice that led to the discrimination. William Bielby, a sociologist from the University of Illinois at Chicago, contends that the common policy leading to discrimination stems from two aspects of Wal-Mart’s corporate culture: centralized personnel policy and subjective decisions by managers in the field.
Bielby opined in the lower court that all of the class members were treated unfairly in pay and promotions even though he did not review the individual personnel decisions. In his report to the Court, Dr. Bielby stated “[s]ubjective and discretionary features of the company’s personnel policy and practice made decisions about compensation and promotion vulnerable to gender bias.” He also opined that there were “significant deficiencies in the company’s policies and practices for identifying and eliminating barriers to equal employment opportunity at Walmart.”
Dr. Bielby’s opinion was based on “social framework analysis.” Social framework analysis gives courts a general framework drawn from social science. Dr. 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.” In describing social framework analysis, Dr. Bielby cited to the work of two law professors at the University of Virginia: Professors Laurens Walker and John Monahan. Walker and Monahan contend that in his analysis of the Wal-Mart case, Dr. Bielby has misused social framework analysis. Professor Walker stated, “[T]his is a case about a missing link. You can make the link, if you do the research. But what’s holding this class together is — nothing.”
In their 2008 article published in The Virginia Law Review, Walker, Monahan and Gregory Mitchell state that “Dr. Bielby’s report provides no verifiable method for measuring or testing any of the variables that were crucial to his conclusions.”
According to a 2009 article by Professors Melissa Hart and Paul Secunda, published in The Fordham Law Review, the debate surrounding Dr. Bielby’s testimony focuses on the existence of unconscious bias, the continued seriousness of discrimination as a force in the modern workplace and the appropriate reach of legal remedies to challenge discrimination. Professors Hart and Secunda stated that Professors Walker and Monahan “seem to suggest that their coining of this phrase gives them a unique right to define the terms and content of expert testimony offered in employment discrimination cases.”
The Supreme Court’s decision on the permissibility of social framework evidence in determining class certification issues has widespread implications for large employers. If this kind of evidence is permitted, large employers may face increased exposure to class-action claims. According to Professor Walker, “If [Dr. Bielby's declaration] is enough, this opinion is perfectly transportable.” Lawyers for Costco, who submitted a brief supporting Wal-Mart, argued that certifying a class in the Wal-Mart case would mean that “employers with decentralized business models will have few avenues available to escape a Bielby-enabled certification order, other than resorting to surreptitious quotas.”
We’ll be following the oral arguments tomorrow, and keep you updated on any developments. No final decision by the Supreme Court is expected until June.