Tuesday, June 21, 2011
Wal-Mart v. Dukes and the future of meritocracy
The key to this decision is Scalia's dismantling of the rationale underlying disparate impact suits, which do not promote meritocracy, but rather racial and gender uniformity at the expense of other factors like merit.
Thanks, Joey, for a very thoughtful post. I am not so sure about your conclusions regarding subjective hiring and promotion practices, however. You write: “But Dukes raises the disquieting possibility that rather than inviting litigation, subjective and standardless policies might—for a large enough employer—have the perverse effect of insulating the employer from large-scale litigation by helping to defeat class certification.” The specter of employers’ hiding behind subjective policies, in light of the Court’s decision yesterday, should be taken seriously, but there is a way out. Namely, the landmark disparate impact case cited in the Court’s opinion: Watson v. Forth Worth Bank & Trust. Where the plaintiffs’ novel theory of harm ran into trouble was in their inability to satisfy Watson’s requirement that “the plaintiff . . . begin by identifying the specific employment practice that is challenged.” Even if one’s statistics are sound (and I would take issue with the Court’s uncharitable reading of plaintiffs’ empirical evidence), without a sufficiently specific employment practice, the case is usually lost. To some, the centralized versus localized discretionary decision-making distinction was incoherent as a legal argument. Regardless of one’s views on that matter, had the Wal-Mart plaintiffs been able to identify more clearly a specific practice as required by Watson, the case might have come out differently. Equally important, this should serve as a helpful instruction to future potential classes dealing with non-objective decision-making criteria. Thus, while yesterday’s decision was a setback for Title VII class action plaintiffs, I remain hopeful that it hasn’t eviscerated the “pattern or practice” theory in the same way that I do not think Ricci sounded the death knell for disparate impact.
I welcome interesting guest commentary and think "CG" said some good stuff. To me, this Court on various issues is moving the law, but not quite as far as some fear.
The net result will depend on the nature of your claim.
Bart may be right that the decision is driven by Scalia's dislike of disparate impact. But if so, that's a pretty strong indictment of Scalia and those who joined in his opinion. After all, disparate impact discrimination is undeniably illegal under Title VII. So I'm saddened to hear that the Court isn't willing to follow the law.
Disparate impact is a judicial creation which is not expressly required by Title VII. What the courts give, they can take away.
You're wrong. Disparate impact discrimination was explicitly banned and added to Title VII in the Civil Rights Act of 1991. It would be nice if Scalia took note of that fact.
I think too much is made of the incentives created by this decision. Yes, maybe big corporations can insulate themselves from large-scale lawsuits by giving unfettered discretion to mid-level managers, but that assumes the worst thing in the world is to be a defendant in a large class action. This is not the case, for two reasons.
First, you are still exposed to death by a thousand cuts from small-scale class actions at the local and regional level. There are plenty of hungry lawyers willing to bring these cases even if they don't have a nationwide scope. Indeed, the Wal-Mart case was a bold experiement; the prototypical employment discrimination class action often involves no more than 20-25 employees. On the corporate level, the cost of defending a lawsuit every time one of your managers applies their discretion in a discriminatory way is something that adds up.
Second, no corporation loves to face a large-scale class action, but in some ways that type of case can be the company's best friend. (This is a dirty little secret of class-action litigation.) The key is that at the end of the day, when you settle that big case, you get a bar order that precludes subsequent lawsuits involving the same time period. So you may have paid a bunch of money to settle that class action, but you got a discount for paying in bulk, and now no one is allowed to bring an individual action or one of those smaller 20-25 employee class actions unless they immediately opt out, which most people will not do. The class-action settlement closes the courthouse door to all sorts of grievances that people might file in the future. You buy yourself complete peace by settling, which has its advantages.
The smarter move for corporate America is likely to remain standardized and centralized hiring policies. The benefit of insulating yourself from a large-scale class action is not great enough to justify abandoning such policies for a system of complete discretion.
You're right (contra Bart) that disparate impact is statutory, but this wasn't a disparate impact case. The plaintiffs could have tried to argue that giving store managers discretion had a disparate impact on women -- although I still don't think much of that legal theory -- but they didn't.
Bart may be right that the decision is motivated by an aversion to Scalia different consequences. But if so, it's a fairly strong indictment of Scalia and those who joined his opinion. After all, undeniably disparate impact discrimination illegal under Title VII. So I'm sorry to hear that the Court is unwilling to follow the law.
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No matter one’s views on in which make a difference, got the Wal-Mart plaintiffs had the opportunity to distinguish more plainly a specific training since essential to Watson, true could have come out in another way. Incredibly important, this should function as useful training for you to upcoming probable lessons managing sunglasses wholesale non-objective decision-making conditions. Thus, even though yesterday’s determination was obviously a attack with regard to Identify VII eyeglasses frames class action lawsuit suers, We stay positive it hasn’t eviscerated the “pattern or even practice” principle just like i don't think Ricci appeared the actual demise knell for disparate glasses frames
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