Supreme Court To Take On Wal-Mart Discrimination Case - By Dr. Jim Higgins, Ed.D.

On Tuesday, March 29, 2011, the US Supreme Court will consider whether hundreds of thousands of women can band together in an employment discrimination suit against Wal-Mart. In the case, plaintiffs claim that Wal-Mart owes billions of dollars to as many as 1.5 million women who they say were unfairly treated on pay and promotions. Their argument is based, at least partly, on the professional opinions of William T. Bielby, an academic specializing in “social framework analysis.”

The central issue to be addressed is whether Dr. Bielby should have been allowed, in preliminary proceedings, to go beyond simply describing the general research regarding gender stereotypes in the workplace to draw specific conclusions about what he called “flaws in Wal-Mart’s personnel policies.”

The entire argument highlights the central role that social framework analysis has come to play in scores of major employment discrimination cases. From an analytical perspective, the important issues is Wal-Mart’s argument that even if the plaintiff’s claims were established fact, anecdotes and statistics would not be enough. According to Wal-Mart, Supreme Court precedent also requires lawyers pursuing a class action to identify the common policy that they say led to unlawful discrimination.

Dr. Bielby concluded that two aspects of Wal-Mart’s corporate culture could legitimately be blamed for observed disparities in pay and hiring. One of these aspects was related to their centralized personnel policy. The aspect was allowing individuals managers the ability to use their own subjective judgments in the field. In combination, these two factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

The tendency of organizations to allow individual managers to use their subjective “professional judgment” or to simply trust them to make valid and evidence-based decisions is widespread. As organizations—especially public sector entities—seek to make their hiring process cheaper and faster this risk increases dramatically.

It is critical, whether your company operates a centralized HR function or a decentralized manager-centric HR function that all selection decisions be based on validated, objective, and job-related criteria.

For more information about the case, visit http://www.nytimes.com/2011/03/28/us/28scotus.html?ref=business.

If you require assistance with your organizations compliance with Title VII of the Civil Rights Act, Executive Order 11246, or OFCCP compliance, Affirmative Action Services is a highly qualified full-service consulting firm able to help you. For a free, no-obligation consultation, contact us at info@AffirmativeActionServices.com. Or call Dr. Jim Higgins at (916) 204-1749.