I thought that I had my final say on Wal-Mart v. Dukes yesterday. Then, I read more of
the commentary on the decision. For example, this clip from MSNBC argued that
the Wal-Mart case marks the end of women's equality in the workplace:
Or consider this quote, courtesy of Joanne Bamberger at the Huffington Post:
The 5-4 decision that is at the heart of this national
employment crisis is the over-stepping of the right wing of the court to
stretch a procedural case to change substantive law in a way that adversely
impacts today's majority of breadwinners-women.
There is no doubt that by limiting class actions, Wal-Mart
was a big win for businesses. But let's not confuse what Wal-Mart is
for what it is not. It is not a death blow to women's rights in the workplace.
It will not eliminate all of the good that Title VII has done for women (and
its other protected classes). It will not take us back in time to the days of
June Cleaver and Harriet Nelson.
Writing for the majority, Justice Scalia said, "[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 that produce no actionable
disparity at all." Justice Scalia might be three decades removed from the
workplace, but he's not off base. In 2011, the overwhelming majority of
companies do not intentionally discriminate. Companies may have rogue
supervisors, managers, and even executives, who discriminate, for which their
companies can be held responsible. Indeed, in a company as big as Wal-Mart, it
would be surprising if there weren't employees who suffered discrimination. As
an institutional matter, though, most companies try to do right by their
employees by combating workplace discrimination, even Wal-Mart.
So let's not overreact to the Wal-Mart decision by
arguing that its impact will take women back to the stone age, or, worse, the
1950s. Such knee-jerk overreactions unnecessarily polarize us into positions
that do nothing to further the debate over the real issue-eliminating workplace
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