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Tuesday, April 03, 2012

Last Thoughts on Coleman

Last year when I blogged about the Court’s decision in Wal-Mart v. Dukes, I noted an undercurrent on the divergent views on the role of employment discrimination and the acknowledgment of unconscious bias.  Justice Ginsberg explicitly referenced unconscious stigma as providing the glue to allow widespread discrimination to open the door for company-wide bias (“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. Managers, like all humankind, may be prey to biases of which they are unaware").  In contrast, Justice Scalia seemed unwilling to move beyond anything less than a formal policy of discrimination on a group-wide basis, suggesting that managers will generally follow policies and not discriminate ("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.").

In reading Coleman v. Court of Appeals in Maryland, these same themes were again apparent.  Justice Kennedy, writing for the Court, made the empirical statement that “[t]here is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.”  In contrast, Justice Ginsberg viewed the self-care provision as indeed being connected to gender discrimination, giving her view (as reflected by Congressional findings) that “the self care provision – which men no doubt would use – would counter employer’s impressions that the FMLA would otherwise install female leave,” and noting that “[s]elf care leave … is a key part of Congress’s endeavor to make it feasible for women to work and have families.”  Although this divergence in views manifests itself in different ways in Coleman than in Wal-Mart (in Coleman, it influenced how deferential the plurality and dissenting views would give to Congress), there is still a fundamental difference in how these two sides view the world on the issue of how much harder-to-see behavior can be regulated under employment law.  I expect this split to continue to manifest itself in employment cases and elsewhere. 

Posted by Michael Waterstone on April 3, 2012 at 05:14 AM | Permalink

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