Yesterday, the Supreme Court released its decision in Dukes v. Wal-Mart sex discrimination case. The court decided 5-4 that up to 1.5 million female employees cannot be treated as a class and file suit together. The court’s conservative members raised questions not just about whether the women claimed discrimination through the same mechanisms, but also about the validity of the plaintiffs’ central argument that the combination of a highly centralized corporate culture and excessive discretion among managers systematically disadvantaged women. The case points to the difficulty of proving discrimination at a time when intentional discrimination is both illegal and socially unacceptable, and yet gender and racial gaps remain in place. If much, perhaps even most, discrimination is unintentional, what responsibility do employers have for addressing it?
Wal-Mart’s numbers are not in question. Women comprise more than 65% of hourly employees, but 34.5 percent of managers. This is significantly different from similar retail chains, in which women hold 56.5% of management jobs. It takes women 4.38 years to rise to a management post; men, 2.86 years. Of 41 regional vice presidents, only five are women, and only 9.8 percent of district managers are women. Wal-Mart’s internal documents acknowledge that they are far behind the rest of their field.
Using the work of William Bielby, a sociologist who researches “social framework theory,” the plaintiffs argued that a deeply centralized corporate culture made room for managers to act on their gender stereotypes. This theory posits that people hold stereotypes and biases, often unconsciously, when we have the power to do so and nothing stops us. At Wal-Mart, male managers acted on their bias against equitable promotions and pay because the company’s centralized practices and policies give them huge amounts of discretion in personnel decisions. The discretion itself is the policy, and it stands out in a company whose corporate headquarters chooses the temperature and music of every store. Sophisticated computer systems and dozens of daily reports let headquarters know exactly what is happening on an hourly basis, so that exceptions can be dealt with immediately.
The gateway to promotion at Wal-Mart is the management training program; one has to go through this to become an Assistant Manager. There was no information available about how to get into the program until 3 months before this case was filed, and no system by which an employee could even express interest in the program. Managers identified potential future managers with a tap on the shoulder. Wal-Mart will argue that coincidence or a few sexist apples account for these numbers, rather than a known set of central policies.
Certainly, there is blatantly sexist behavior among male managers, such as Sam Walton’s insistence that managerial candidates go quail hunting and management meetings in which men called their women colleagues “little Janie Qs.” But mostly, this is a system that runs on silence. Silence about what exactly is the criteria for management positions, silence about the additional subjective criteria that individual managers apply for promotion; silence about the actual availability of management positions; silence about how you decide whether to give an employee a raise of 10 or 25 cents per hour. Male managers fill all that silence, the plaintiffs’ lawyers and expert witnesses said, with subjective decisions influenced by stereotypes.
The law doesn’t require discrimination to be conscious or intentional before it requires remedy. Disparate impact is supposed to be enough, although Wal-Mart’s knowledge of the gap prompts the charge of disparate treatment as well Conservative members of the court, however, found against the notion that the company itself is responsible, finding too little commonality in the mechanisms of discrimination. In the majority opinion, Justice Antonin Scalia writes that common elements tying all these employment decisions together were “entirely absent” in this case.
The numbers don’t mean that all male managers at Wal-Mart are intentionally sexist. Their biases are implicit rather than overt, and most of these managers are probably unaware of having them. In 1995, researchers at Harvard and Stanford universities developed the Implicit Association Test (IAT), which measures reaction time to examine subconscious bias. The researchers assert that human being place information about the world into personal “schemas,” or worldviews. Schemas allow for implicit stereotyping and perceptions about in-groups (the group you belong to) and out-groups (groups you aren’t a member of), which can translate into behaviors that are discriminatory, or that produce inequitable outcomes. In the project’s online test, 75-80% of self-identified Whites and Asians show an implicit racial preference for White relative to Black. Everyday people, including the researchers who direct this project, are found to harbor negative associations in relation to various social groups (i.e., implicit biases) even while honestly reporting that they regard themselves as lacking these biases.
When implicit bias is combined with the human reliance on first impressions, the result can be devastating. As Malcolm Gladwell noted in the New Yorker, the impression from the handshake that precedes a job interview colors impressions of the interview itself. “The first impression becomes a self-fulfilling prophecy: we hear what we expect to hear.”
These patterns apply to other forms of discrimination as well. The Restaurant Opportunities Center of N.Y. (ROC-N.Y.) has conducted multiple studies of employment patterns in the nation’s fastest growing private sector industry. Restaurants, especially in the high-end market, are marked by a rigid racial hierarchy, and generally shut out women altogether. In ROC-N.Y.’s first study, interviews with employers revealed their rationale for raced and gendered decisions. They wanted “tall, beautiful” people in the front of the house jobs – these are the workers who make more money and actually speak to diners. For the more dangerous, low-wage jobs at the back of the house, they prefer “hard workers” who are immune to the poor wages and conditions. Simply counting the workers through observation makes it quite obvious that only white men, and the very occasional white woman, meets the beauty criteria in most such workplaces. Immigrants have accents too thick to communicate the menu, employers say, while women can’t take the fast pace and informality (i.e. sexual harassment) of restaurant work. In a later study, ROC-N.Y. ran a matched pair test, sending applicants with the exact same qualifications but of different races and genders to inquire about jobs. Without fail, white men got interviews at a double the rate of others. This hierarchy is so ubiquitous as to become invisible unless you pay attention. The bias is unconscious, but the remedies have to be intentional. Discrimination doesn’t just check itself.
In my own reporting I’ve met one after another immigrant busser who was repeatedly passed up for promotion – or didn’t even know about an opening — only to end up training the white actor or student who was hired instead. The front of the house jobs are never posted, and men of color never got tapped on the shoulder, no matter how well they understood the menu. A manager doesn’t have to hold conscious bias to replicate a workplace’s hierarchies in his own decision making. According to Saru Jayaraman, the cofounder of ROC-N.Y., “if you want to succeed, you pick up what the company wants just by seeing it. A savvy manager doesn’t require the company to tell him to discriminate, although there’s plenty of that too. He understands its visual codes that are embedded in a segregated workplace.”
Americans will be tempted to take this decision as proof that Wal-Mart is not guilty of gender discrimination, and employers will take heart from the Supreme Court. If some bad managers make sexist decisions, companies will say, that can’t be helped with an intractable problem like gender stereotyping. But the real lesson is that Americans can’t rely on the courts alone to check all forms of bias, especially the kinds that don’t require explicit direction. Wal-Mart and other corporations need to hear from everyone — consumers, workers, and other employers who are building equitable workplaces. The message we send has to go beyond following the letter of the law to challenge social norms that keep qualified people from getting the jobs they deserve.
Rinku Sen is the President and Executive Director of the Applied Research Center (ARC) and Publisher of Colorlines.com. A leading figure in the racial justice movement for the last twenty years, Rinku has positioned ARC as the national home for media, research and activism. She has extensive practical experience on the ground, with expertise in race, feminism, immigration, economic justice, philanthropy and community organizing.
–This post originally appeared on Colorlines
–Photo credit Alex Wong/Getty Images