Wednesday, June 22, 2011

Wal-Mart v. Dukes does not equal barefoot and pregnant


I thought that I had my final say on Wal-Mart v. Dukes yesterday. Then, I read more of the commentary on the decision. For example, this clip from MSNBC argued that the Wal-Mart case marks the end of women’s equality in the workplace:

Or consider this quote, courtesy of Joanne Bamberger at the Huffington Post:

The 5-4 decision that is at the heart of this national employment crisis is the over-stepping of the right wing of the court to stretch a procedural case to change substantive law in a way that adversely impacts today's majority of breadwinners—women.

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

Writing for the majority, Justice Scalia said, “[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.” Justice Scalia might be three decades removed from the workplace, but he’s not off base. In 2011, the overwhelming majority of companies do not intentionally discriminate. Companies may have rogue supervisors, managers, and even executives, who discriminate, for which their companies can be held responsible. Indeed, in a company as big as Wal-Mart, it would be surprising if there weren’t employees who suffered discrimination. As an institutional matter, though, most companies try to do right by their employees by combating workplace discrimination, even Wal-Mart.

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.


Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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