Groups and Wal-Mart

I want to continue discussing the Wal-Mart case by shifting away from the procedural issues addressed by the Court to discuss the underlying issue of Title VII liability.  At the New York Times Room for Debate a number of prominent scholars discuss the impact of the Wal-Mart decision, with most of the contributors discussing the impact of the decision on Title VII liability, not on class action practice.  

I agree that the decision is consistent with recent decisions where the Court has expressed hostility towards disparate impact liability, or liability for a practice or policy that negatively impacts race or gender, even in the absence of discriminatory intent.  But some of the contributors go further, and suggest that the hostility towards extending liability to the conduct at issue in Wal-Mart is based on a failure to recognize a group or structural right.  As put by Professor Richard Primus, by narrowing disparate impact liability and the class action "the court pushes the law toward [an] individualistic vision of sex discrimination."  Likewise Professor Ralph Richard Banks writes that the supposedly procedural holding "gives too little weight to the principle of group equality in the workplace."

While I agree with the substance of these contributions, I disagree with framing the issue in Wal-Mart as one between "group" or "structural" inequality and individual rights.  I myself used a similar conceptual framework in prior work, but the plaintiffs' theory of Title VII liability is fully consistent with "the law’s focus on discriminatory acts against individuals."   And by relying on concepts such as groups or structure, academics run the risk of being ignored by the courts.

Although it is a bit unclear from the Supreme Court's opinion, (but see p. 4), the plaintiffs' actually presented a claim of disparate treatment, not impact.  They alleged that the policy of delegating pay and promotion decisions to lower-level managers, combined with a corporate culture that encouraged sex stereotyping, lead to less women getting pay increases or getting promoted.  The plaintiffs were not simply relying upon the discriminatory results of this policy, but argued that Wal-Mart's awareness of these results, without doing anything about it, supported an inference that Wal-Mart had discriminatory animus against women.  

You may question the plausibility of that inference, but let's run with it.  Suppose that Wal-Mart, in fact, was out to get women.  But, being a smart company, didn't want to be overt about it.  It did know, however, that if it delegated pay and promotion decisions to lower-level employees, they can really stick it to women and claim plausible deniability.  In fact, it stands to reason that too much lower-level discretion will, on balance, have an negative impact on female employees.  So Wal-Mart goes forward with the plan and covers its tracks, instilling a uniform corporate culture to make sure the plan succeeds.  This may sound far-fetched, but frankly I think it's crass that Wal-Mart knows that this is going on and is not doing anything about it.  How is that not discriminatory treatment?  Moreover, it is not uncommon for larger companies or organizations to effectively judgment-proof themselves by relying upon subordinates or other actors to carry out their dirty work.  Indeed, companies can do all sorts of things that can cause the violation of important individual rights, like failing to make sure that safety equipment was working properly on an oil rig, violating the individual tort rights of thousands.  

But the larger point is that this story does not need to resort to "structure" or "groups" to understand why liability should attach.  The Wal-Mart female employees each have an individual right to be free from discrimination on the basis of gender.  That individual right is protected by Title VII.  Wal-Mart allegedly acted in a discriminatory way that violated those individual rights.  That's it!  There is nothing fancy or complex about the above analysis.  It's the Supreme Court that has gunked up this simple analysis, holding, for example, that a supervisor's knowledge that prisoners of Middle-Eastern descent are being discriminatorily beatened but doing nothing about it is not discriminatory conduct, or, as in Wal-Mart, concluding that a policy to delegate decisions is not a policy.

Now, I can speculate as to why the Court jumps through conceptual hoops to limit the liability of certain actors, but the underlying "focus on discriminatory acts by individuals" does not need to be abandoned, at least not yet in Wal-Mart.   There is a place for discussing groups and structure, and the Court has recognized these concepts in the past, but we should be careful about abandoning old concepts too easily. The risk is that by not speaking the same language as the courts, academics will not only insult judges, but prove Chief Justice Roberts's point that legal scholarship is not "particularly helpful for practitioners and judges."