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
Comments
I am glad to see that you are forthright in saying that you are shifting from the procedural issues the Court addressed to the underlying title VII liability. I am also glad to see you recognize that the NYT commentators mostly focused on Title VII rather than Rule 23.
But while those issues are interesting on their own, I respectfully suggest that they are not part of the Wal-mart decision, unless they are linked to Rule 23. The Court’s job is to decide how class actions work, and it should not look ahead to Title VII law and then put a thumb on the scale to keep the class together to “help the cause.”
The NYT commentators are especially unhelpful. Lawyers and lawprofs should help to demystify the judiciary and translate for lay people. It does not serve the public or their view of the law to protray this case as “anti-woman” without making any pretense to understand the actual issues in the case. (Not your posts, which covered Rule 23 – I’m speaking of the NYT group.)
The more I re-read the case, the more I think that the unanimous part is actually more important, and the 5-4 has more sparks but doesn’t mean much.
Posted by: class action geek | Jun 27, 2011 1:39:37 PM
Thank you! I agree, and I am disappointed in some aspects of the opinion that lose sight of the original point of Teamsters – that statistical evidence of disparities (here, in pay or promotions) can often be the “telltale sign” of intentional discrimination and can justify an inference of unlawful discrimination, subject to the defendant’s opportunity to rebut that inference. Unfortunately, Scalia’s insistence on proof of “glue” – which apparently cannot be a policy of delegation – to establish commonality at the class certification stage may do damage to the substantive doctrine of systemic disparate treatment, at least in private class actions. The point of Teamsters was to allow statistical evidence to shift the burden of persuasion on the question of discriminatory intent, precisely because it is recognized as difficult for plaintiffs to prove that element and because the statistics suggest some probability that the unlawful behavior existed. It seems that the Court and some commentators have forgotten this.
Posted by: Jason Bent | Jun 24, 2011 3:43:51 PM