Friday, June 24, 2011

More Commentary on Wal-Mart

Scotus Great commentary on Wal-Mart continues to be posted. Check out this contribution by Michael Waterstone (Loyola). He has some excellent points, including this one,

an important undercurrent is the divergent views on the role of employment discrimination and the acknowledgement of unconscious bias. Justice Ginsberg explicitly acknowledges unconscious discrimination and stigma as providing the glue to allow widespread discretion to open the door for company-wide bias ("The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware"). Justice Scalia, on the other hand, seems unwilling to move beyond anything less than a formal policy of discrimination on a group-wide basis, suggesting that managers will generally follow policies and not discriminate ("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.").

Read the whole thing for more!


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Marcia, I think we have to be looking at the composition of the judiciary itself in light of studies that show how diversity of the judges matters in employment discrimination decisions. Here's my take on Wal-Mart:

David Yamada

Posted by: David Yamada | Jun 28, 2011 9:18:11 PM

(cough)Tenure decisions? (cough)

Posted by: Phillep Harding | Jul 1, 2011 1:06:04 PM

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