Supreme Court hits sour note with Wal-Mart decision -- June 23, 2011 column

By MARSHA MERCER

In the 1970s, when the classical music world was still a male preserve, major symphony orchestras changed the way they hire musicians.

Instead of letting the music director handpick new hires, orchestras went to a system with auditions open to all. The idea was to end the bias toward male musicians. The plan didn’t work.

While the new review committees were supposed to judge solely on the applicants’ musical abilities, they still could see the performers – and a subconscious bias favored men.

Only when the orchestras adopted “blind” auditions with musicians performing behind opaque screens, their gender hidden, did women make employment progress, according to economists Claudia Goldin of Harvard and Cecilia Rouse of Princeton, who published a 2000 study, “Orchestrating Impartiality,” in The American Economic Review.

Justice Ruth Bader Ginsburg cited the famous study Monday in her dissenting opinion in the Wal-Mart v. Dukes case as a vivid example of how subjective decision making can be a vehicle for discrimination.

“Managers, like all humankind, may be prey to biases of which they are unaware,” Ginsburg observed dryly. “The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

Ginsburg noted that at Wal-Mart women held 70 percent of the hourly jobs but only 33 percent of the management positions. Women were paid less than men in every region of the country. One manager told an employee that “men are here to make a career and women aren’t.”

Promotions amounted to a “tap on the shoulder” system in which vacancies were not regularly posted and managers chose whom to promote on subjective grounds, she wrote.

Joining Ginsburg in her dissent were the two other women justices – Sonia Sotomayor and Elena Kagan – and Justice Stephen Breyer.

In a 5-4 split, the court’s majority ruled that the women employees lacked the strong evidence necessary for a class-action suit and threw the case out. Justice Antonin Scalia’s majority opinion held that Wal-Mart had a corporate policy against discrimination, and its 3,400 store managers were given wide latitude in pay and promotions.

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction,” Scalia wrote. Siding with him were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas.

But Ginsburg raises an important point with the orchestras. Even if the bias toward hiring male musicians was unwitting, it was wrong. We don’t have to prove intent to find that discrimination exists. Unintentional discrimination is also unlawful.

Under the law, employers can be found guilty of discrimination if they have policies or practices that, although neutral, are disproportionately negative for persons in a legally protected group. Age, race, gender and disability are protected categories.

The employment law firm Frank and Breslow tells employers on its laborlaws.com site: “If, for example, you have a predominantly white work force and primarily hire on the basis of recommendations you receive from current employees, your work force will most likely remain predominantly white. You may be deemed to be guilty of unintentional racial discrimination.”

The Supreme Court wasn’t deciding whether Wal-Mart was guilty of discrimination. It was deciding whether Betty Dukes and a handful of other plaintiffs had presented the proof necessary to allow them to stand in for the 1.5 million women Wal-Mart employees and former employees they said had suffered discrimination. The men dismissed the case and the women.

Ginsburg, 78, has been fighting gender discrimination most of her life. At Harvard Law, the dean asked Ginsburg and the few other women students how it felt to occupy space that could have gone to deserving men. After she graduated with honors, Ginsburg found few law firms had any interest in hiring her. She taught law.

Later, as head of the Women’s Rights division of the ACLU she successfully argued five gender discrimination cases in the Supreme Court.

During oral arguments in March in the Wal-Mart case, Ginsburg asked attorneys, “Isn’t there some responsibility on the company to say, is gender discrimination at work, and if it is, isn’t there any obligation to stop it?”

The answer should be an unequivocal yes. Symphony orchestras figured that out long ago.

© 2011 Marsha Mercer. All rights reserved.
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