Duking It Out With Wal-Mart

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4 Responses

  1. Joey Fishkin says:


    Thanks for this post. There was actually a bit of recent news from the plaintiffs’ attorneys regarding how they intend to proceed: state-level lawsuits. See here:


  2. Brett Bellmore says:

    “Why the Court fails to be able to understand a fairly straightforward systemic disparate treatment claim is hard to understand.”

    Perhaps the Court is starting to get tired of statistical cases for discrimination which don’t bother to prove any particular individual instance of it? Maybe they even think that taking statistical disparities as proof of discrimination is uncomfortably close to instituting quotas.

    In any event, “fails to understand” and “rejects” are different things. People, and courts, are quite capable of rejecting things they do, in fact, understand.

  3. Brett Bellmore says:

    I suppose I ought to be more specific about why one might reject, (Rather than fail to understand) a statistical case for discrimination.

    Whenever you make a statistical case for “X” causing “Y”, (Discrimination causing discrepancy, in this instance.) you have to exclude the possibility of a spurious correlation being produced by both “X” and “Y” being correlated with some third factor.

    Now, they went to a little effort to preclude such obvious confounding variables such as hours worked. But, as is typically the case, they more or less just rejected out of hand the possibility that, on average, there were a larger percentage of highly meritorious employees among the men, than among the women.

    This is significant because a good deal of research has demonstrated that, while the average performance of men and women on intellectual tasks is close to the same, men have considerably more dispersion in their performance. More unusually good performers, AND more unusually bad.

    Since the people who get promoted are generally supposed to be the unusually good performers, this would imply more promotions among men than women, even if the two groups averaged the same on a number of metrics.

    How would you avoid this sort of thing producing a spurious conclusion that discrimination was taking place? You have to examine individual cases. Exactly what the advocate of statistical cases for discrimination doesn’t want to do.

    But what the Court does want done.

  4. Mike Zimmer says:

    Thanks to Joey for the update. The new amended complaint refocuses the original claim to the Wal-Mart stores in its California Region rather than nationwide. Here is the link: http://www.walmartclass.com/staticdata/Fourth%20Amended%20complaint%20final%20with%20exhibits.pdf.

    As for Brett’s point, the Court in Wal-Mart was unanimous in holding that a formula-based remedy would violate Wal-Mart’s right, and presumably the class members’ right to have their individual cases decided individually.

    Those procedures would only come into play once Wal-Mart’s liability was established and the burden of persuasion, pursuant to the Teamsters case, would shift to Wal-Mart to prove that, as to each individual class member, it did not discriminate in pay and promotion decisions.

    The Teamsters, Hazelwood School Disctrict and Bazemore v. Friday cases are all precedent for when liability is established so that the burden shifts.