Wednesday 22 June 2011

Justify Your Existence

I realise that I'm no lawyer. I've picked up a few tricks from my father, and a smattering of unstructured reading. So when I learn that the US Supreme Court has thrown out a case brought by a large number of women against Walmart, alleging sexual discrimination, I realise it would be stupid to start throwing my thoughts on the legal niceties of the case.

Having said that, there is one undeniable fact in all of this, and that is that Chief Justice Scalia is an idiot. That is not to say he's wrong on this case overall (as I say, I have no idea whether he is or not), but this argument is so infuriating in its total absence of logic or thought it actually took me a little while to process its foolishness:
[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.
Lemieux is appropriately gob-smacked by this line of "argument", but I don't think he's followed it through to conclusion. If we tweak the Scalia quote just a little, we get "left to their own devices most citizens in any country—and surely most citizens in a country that forbids stealing cars—would select legal currency-based methods for acquiring automobiles".

You see the problem? It's not that the statement becomes false - I'm sure that most US citizens who own cars did indeed pay for them - it's that it becomes patently absurd to utter the phrase whilst considering whether a specific individual stole a car or not. I'm not for one second suggesting we abandon the idea of "innocent until proven guilty" - though of course whether or not that applies to such cases, I am unsure - but to use the fact that most people follow the law as an argument against the prosecution is self-evidently imbecilic.  You would have thought that point would be obvious to a man whose entire profession is based around dealing with the people who don't follow the rules like the rest of us.

Most people are not murderers. Most people are not rapists. Most companies, for all I know, do not employ discriminatory hiring practices.  Unless we're going to start applying Scalia's argument to any crime we believe less than half the citizenry are guilty of, however, (and let's not forget, there's only one person in this post who believes that corporations should be treated like citizens, and it sure as hell isn't me), Scalia's position is laughable. Unfortunately, it's also entirely in keeping with his inability to argue with any coherence whenever a large company comes running to Daddy.

7 comments:

Gooder said...

I do see the idea that quote there is a bit wishy washy but I don't think it's as bad as you say.

But surely it works in terms of stating an organisation or a country is not inherently discrimatory.er theiving?

Using your example we can see that America is not an entire country guilty of grand theft auto.

Just like Wallmart is not an entire company which is sexist.

Turning it around you can't find an entire company guilty of discrimatory behaviour because of a select number of cases. Indeed at what point would a company become offcially legally sexiest as an entire organisation?

What would be the magic number of cases? How many car thieves would make America a nation offcially recognised as being criminal?

And to be fair I think most managers would follow the rules if the organisation as them, and Wallmart will, because if an unfair dismissal case or whatever based on their dicrimation succeeds they will be fired shortly afterwards with a reference that will not make it easy to get a job of that level again or indeed a job

Admittedly I'm not sure why these people appear to be brining a class action suit against the entire company for being entirely sexist instead of pursuing individual cases which they are far more likely to achieve anything with.

If you ask me the whole case is a waste of time.

Gooder said...

Here's the reason it was dismissed in a nut shell and it makes total sense :

"It (the Court) accepted Wal-Mart's argument that the female employees in different jobs at 3,400 different stores nationwide and with different supervisors do not have enough in common to be lumped together in a single class-action lawsuit."

http://uk.news.yahoo.com/wal-mart-wins-u-top-court-sex-bias-170640826.html

SpaceSquid said...

"But surely it works in terms of stating an organisation or a country is not inherently discrimatory.er theiving?"

Which is a completely facile and useless thing to say when you're talking about a specific case.

"Turning it around you can't find an entire company guilty of discrimatory behaviour because of a select number of cases."

That's debateable, but it's also not what was said. Scalia isn't saying, or at least, not saying here, that company-wide collusion is required (though I suspect he thinks that, given the way he went on McKleskey vs. Kemp). He's saying that the mere fact a company says they'll do something probably means they'll do it.

"What would be the magic number of cases?"

There's no "magic number", and it's unhelpful to think of it that way - doing so tends to lead to people arguing about where the bright line exists, rather than accepting that there are clear cases on either side. In a company the size of Wal-Mart, it would surely be evidence of discrimination if they hadn't hired a single woman at above shop-floor level. Indeed, there are any number of statistical models one could compile to test the hypothesis that women and men have the same chance of being employed.

Again, though, none of that has anything to do with what Scalia said.

"Admittedly I'm not sure why these people appear to be brining a class action suit against the entire company for being entirely sexist instead of pursuing individual cases which they are far more likely to achieve anything with."

If I were to guess, I'd say it's because the statistical evidence only mounts up over a large group, which probably would help explain why it didn't get anywhere. But that's just guess work.

"If you ask me the whole case is a waste of time."

If by "waste of time" you mean "was unlikely to succeed", then I would be inclined to agree. But the fact that it is very difficult to hold companies accountable for discrimination doesn't mean it shouldn't be tried.

SpaceSquid said...

"Here's the reason it was dismissed in a nut shell and it makes total sense"

I'm not surprised that's the reason given, and I'd kind of assumed it would be something like that. But then I wasn't arguing, or even coming close to arguing, that the case shouldn't have been thrown out. I was simply arguing that Scalia's position was completely absurd.

Dan Edmunds said...

The full majority opinion is up here:

http://www.supremecourt.gov/opinions/10pdf/10-277.pdf

This is the full paragraph in question that contains the one sentence (in a 27 page opinion), you seem to be having an issue with:

"To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left 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. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex- based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth- ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions."

Maybe, just maybe if you take that one sentence out of context you could attempt to draw the conclusion you are attempting to make, but I think the surrounding text makes it clear that the argument being made is something completely different. He talks about "most managers" and then he talks about the rest.

SpaceSquid said...

I appreciate you finding the full paragraph for me, Dan.

I don't really think my core argument has changed, actually; Scalia's position is still a terrible one. He's asserting entirely without evidence that the number of actual hiring processes in such companies which will actually be sexist will be very small. And therefore, he thinks, you can't punish the whole company for such a minority of actions.

But again, that's using a general idea - most people follow the rules - which I'm not necessarily inclined to argue against, and applying it to this specific case. For all he knows, every single man in Walmart is massively mysoginist, but he's just going to assume they aren't.

I genuinely get the overall argument: can you blame a company for the behaviour of comparatively few bad eggs? But Scalia wants us to believe that since there are comparatively few bad eggs in the world of business, there must be comparatively few bad eggs in Wal-Mart.

I'll grant that the full paragraph is helpful context-wise, and I wish Slate had included it in their article. I can now see the second argument that Scalia is making: bias has to be proven to by systematic, rather than merely commonplace before anyone can be held accountable.

Now, I'd disagree, as did (for example) Chief Justice Ginsberg, whose position as I understand it is that Wal-Mart, by not putting together a systematic method for checking hirings are free of bias, means that they've allowed bias to happen on their watch and should compensate the victims (essentially, anything you've banned but not policed, you've allowed). This is a much more interesting and detailed issue, worthy of detailed thought.

But it doesn't change the central fact that Scalia's a priori weightings for unbiased, seemingly biased and actually biased hirings as regards companies in general have no place in a argument about a single company in particular. The fact that, as you say, he "talks about the rest" doesn't change those faulty weightings.

BigHead said...

I think the only point here is that the particular structure of the company is such that the validity of an individual's claim is determined principally by the local facts of the individual's case and doesn't have anything in common with anyone else (unless they have the same manager, I guess) so a class action is inappropriate.

The paragraph quoted basically looks like a fairly irrelevant aside that isn't really too objectionable as such. If you're not trying to get worked up over it.