On the occasion of the Wal-Mart sex-discrimination case, looking back 30 years to the Sears case.

Cathy Young brings the historical perspective:

[In the Sears case,] a feminist historian, Rosalind Rosenberg of Barnard College, testified as an expert witness for Sears. Men and women, Rosenberg argued, generally have different expectations and preferences regarding work -- and, however, desirable more equality in the workplace may be, it is "naïve" to see the [statistical] disparities as proof of discrimination. (She was, of course, branded a traitor to the sisterhood.) Sears won the case in 1986....

Women's traditional preferences don't negate the existence of sexist barriers or subtle biases....

Yet legal action is far too blunt and heavy an instrument to deal with these issues. Sometimes, as with the ban on racial segregation or on overt sex discrimination in the workplace, law can change culture in the right direction. But for the law to intrude into a complex web of human relationships and attitudes is an overreach likely to cause more harm than good. For one, we live in a time when state intrusion into private actions is viewed with suspicion. To say that women's advancement requires the government and the courts to micromanage business decisions -- to the point of telling a corporation that it cannot let local managers control promotions and pay -- is to invite a backlash.

"The Supreme Court on Monday blocked a massive sex discrimination lawsuit against Wal-Mart on behalf of women who work there."

WaPo reports:

The court ruled unanimously that the lawsuit against Wal-Mart Stores Inc. cannot proceed as a class action, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages....

The justices divided 5-4 on another aspect of the ruling that could make it much harder to mount similar class-action discrimination lawsuits against large employers.

Justice Antonin Scalia’s opinion for the court’s conservative majority said there needs to be common elements tying together “literally millions of employment decisions at once.”

But Scalia said that in the lawsuit against the nation’s largest private employer, “That is entirely absent here.”

Justice Ruth Bader Ginsburg, writing for the court’s four liberal justices, said there was more than enough uniting the claims. “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores,” Ginsburg said.

I hope the GOP candidates for President are smart and articulate enough to use this case in their argument against electing the Democratic President to a second term.

ADDED: After the oral argument, back in March, I wrote:

I think plaintiffs are trying to say that if headquarters can see a pattern of women doing poorly under the decentralized discretion system, then keeping that system in place is a discriminatory policy. That absence of centralized control is the common issue that makes it an appropriate class action (rather than lot of individual cases that ought to be brought separately if at all).

So... the thing that makes a million individuals the same is that they... are different. They should have been made the same.... or more alike... by a sex-discrimination-conscious policy. I think it's possible to get your head around that idea, but nearly impossible to picture workable legal doctrine governing the real-world affairs of human beings... including the judges who would apply it.

ALSO: I'm reading Justice Scalia's assessment of the "social framework" analysis that the plaintiffs offered to prove that Wal-Mart had "a general policy of discrimination" (which was supposed to be the common question supporting the class action form of litigation):

[Dr. William] Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition … Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004)....“[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say.

AND: I've written a new post to help you understand the way in which this was not a unanimous decision.

"If a group circles around sacred values, they will evolve into a tribal-moral community."

"They’ll embrace science whenever it supports their sacred values, but they’ll ditch it or distort it as soon as it threatens a sacred value."

Says University of Virginia social psychologist Jonathan Haidt, quoted in this John Tierney piece in the NYT, which gets pretty good if you read past the first half. The first half invites mockery for being so head-slappingly obvious. Glenn Reynolds already wrote just about exactly the post I was about to write. I might have gone even shorter, though. "Duh" is shorter than "Indeed." So, yeah, conservatives are so radically underrepresented in academia that it can't be mere chance.

But let's skip into the middle of the piece and think about the mechanisms of exclusion, these "sacred values" that displace scientific thinking. Haidt notes the example of Daniel Patrick Moynihan, back in 1965, who "warned about the rise of unmarried parenthood and welfare dependency among blacks" and "was shunned by many of his colleagues at Harvard as racist."

Similarly, Larry Summers, then president of Harvard, was ostracized in 2005 for wondering publicly whether the preponderance of male professors in some top math and science departments might be due partly to the larger variance in I.Q. scores among men (meaning there are more men at the very high and very low ends). “This was not a permissible hypothesis,” Dr. Haidt said. “It blamed the victims rather than the powerful. The outrage ultimately led to his resignation. We psychologists should have been outraged by the outrage. We should have defended his right to think freely.”

According to Tierney, Haidt's audience of social psychologists "seemed refreshingly receptive to his argument."

A few even endorsed his call for a new affirmative-action goal: a membership that’s 10 percent conservative by 2020. 

Affirmative action? Why not just stop giving affirmative action to liberals? I think that would get you way above the 10% quota... if you could do it. Ironically, talking "affirmative action" is inherently off-putting to conservatives. It's more of those sacred values from the tribal-moral community that ward off outsiders.

***

Here's Haidt on Bloggingheads, back in 2008, talking about the social psychology of conservatives and liberals. And here's Haidt's "Your Morals" website project about morality and political ideology.

"The bill simply establishes a medical cannabis patient's right to work."

"It astounds me that there would be any controversy around it."

"Although it would have been illegal to fire him based on, say, his race or religion, firing him because of what he wore or because he is a Packers fan is not illegal."

"John Stone says it didn't occur to him that wearing a Green Bay Packers tie to work on Monday could get him fired."

The male daycare center worker who is not allowed to change diapers and "has been asked to leave the classroom when diapering was happening."

From an article about how it's bad to be too suspicious about the possibility that a man is a pedophile. 

But excluding the man from the task of diapering... Seems to me the female employees are getting the worse end — excuse the expression — of this particular discrimination.

Anyway, read the whole article. It's called "Eek! A Male!" I got interrupted in the middle of writing about it by a prompting to look at the thing everyone on the internet is supposed to look at right now that could be called "Eek! A Rat!"

I'm on the NYT website, talking about women and the draft.

Here.

That's excerpted from this episode of Bloggingheads and my underlying blog post on the subject is here.

Forget the gender gap in wages. The real gap is between traditional men and everyone else.

This study indicates that focus on the gender gap in wages is wrong:

If you divide workers into four groups -- men with traditional attitudes, men with egalitarian attitudes, women with traditional attitudes and women with egalitarian attitudes -- men with traditional attitudes earn far more for the same work than those in any of the other groups. There are small disparities among the three disadvantaged groups, but the bulk of the income inequality is between the first group and the rest.

"When we think of the gender wage gap, most of our focus goes to the women side of things," said Beth A. Livingston, co-author of the study. "This article says a lot of the difference may be in men's salaries."

Livingston said she was taken aback by the results.

"We actually thought maybe men with traditional attitudes work in more complex jobs that pay more or select higher-paying occupations," she said. "Regardless of the jobs people chose, or how long they worked at them, there was still a significant effect of gender role attitudes on income."

I'm taken aback by these results. Not really. Assuming the results are accurate, it could be either that a particular type of man has traditional values or that the traditional lifestyle gives a man more opportunity and incentive to compete, put in long hours, and make money a priority.

Can a state require a private employer to accommodate an individual who is violating federal criminal law?

Here's a great case about the intersection of state and federal law. (Via How Appealing.) Gary Ross was fired because he failed a drug test, but he was using marijuana medicinally in California, which has legalized the use of medical marijuana. Marijuana is, nevertheless, banned by the federal Controlled Substance Act, and the U.S. Supreme Court made it clear that the states lack the power to carve out exceptions to that act. So Ross was fired for doing something that is a federal crime, but not a state crime.

Ross is suing his employer, Ragingwire Telecommunications Inc., for discriminating against him for his disability, and he's using state anti-discrimination law. So the question before the California Supreme Court — argued yesterday — is the effect of the medical marijuana law. Does the Compassionate Use Act just mean the state can't criminally prosecute medical marijuana users, or does it mean that private employers can't fire them for using marijuana (and violating federal criminal law)?

The state's voters intended to allow medical marijuana users "to fully participate in life regardless of any potential disability," Stewart Katz, a lawyer for Ross, told the court during Tuesday's hourlong hearing in Sacramento. That includes having a job, he said.

But several justices noted that although Prop. 215 protected medical marijuana users and their caregivers from state criminal prosecution, it never mentioned the workplace.

It's a tough state law question. Did the Californians who voted for the initiative that led to the Compassionate Use Act think about much more than the basic mercy of sparing medical users criminal prosecution? Was there any discussion at the time about imposing new duties on private businesses to accommodate drug users?

An employer who hires a medical marijuana user is "arguably being complicit in an activity that's illegal under federal law," RagingWire's lawyer, Robert Pattison, told the court. He said the state law that requires employers to offer reasonable accommodations to the disabled shouldn't be interpreted to require accommodation of illegal drugs.

I wonder whether, if Ross wins in the California Supreme Court, there is a federal question for the U.S. Supreme Court. Can a state require a private employer to accommodate an individual who is violating federal criminal law?

"Half of working Americans (49%) have suffered or witnessed workplace bullying."

According to a new Workplace Bullying Institute/Zogby Interactive survey. (There's a "Workplace Bullying Institute.") "Bullying" is defined as "including verbal abuse, job sabotage, abuse of authority or destruction of workplace relationships," experienced "now or sometime during their worklife."

I'm shocked, really shocked that half -- half! -- of America's workers lack the perceptiveness to notice any of the verbal abuse, job sabotage, abuse of authority or destruction of workplace relationships going on around them.

I'm not shocked, however, that the Director of the Workplace Bullying Institute, Dr. Gary Namie, declares "It's clearly a 'silent epidemic." Clearly!

When bullies are women, they choose other women as their prey in 71% of cases. Bullying, or status-blind harassment, is four (4) times more prevalent than illegal, civil rights, status-based harassment. Same-gender harassment defines the two most frequent categories of bullying. Gary Namie said, "It was legal when we started the movement in '98 and it still is today."

So what do you want then, Dr. Gary? A law so people can sue when they think anyone says anything mean at work or undercuts what they're trying to do around here? Would threatening to sue under that law about what that woman is trying to do to me give that woman a basis to sue me for bullying her? I'm picturing an infinite regression of counterclaims.

By the way, the Workplace Bullying Institute has an incredibly ugly, mid-90s-style website that utterly fails to express anti-bulling values. What do two waving flags -- not to mention all that clutter -- have to do with feeling comfortable in the workplace?

"Current effects alone cannot breathe life into prior, uncharged discrimination."

Writes Justice Alito, in Ledbetter v. Goodyear Tire and Rubber Company, a 5-4 decision that makes it harder for employees to sue within the statutory time limit. Linda Greenhouse reports:

... Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”...

As with an abortion ruling last month, this decision showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.

The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act, which does not contain the 180-day requirement. Ms. Ledbetter initially included an Equal Pay Act complaint, but did not pursue it. That law has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII’s other protected categories.

In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights. “Once again, the ball is in Congress’s court,” she said. Within hours, Senator Hillary Rodham Clinton of New York, who is seeking the Democratic nomination, announced her intention to submit such a bill.

So a key question is whether there is good reason for the various limitations in the Equal Pay Act. From Ginsburg's opinion:

Notably, the EPA provides no relief when the pay discrimination charged is based on race, religion, national origin, age, or disability. Thus,... the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.

Furthermore, the difference between the EPA’s prohibition against paying unequal wages and Title VII’s ban on discrimination with regard to compensation is not as large as the Court’s opinion might suggest. The key distinction is that Title VII requires a showing of intent. In practical effect, “if the trier of fact is in equipoise about whether the wage differential is motivated by gender discrimination,” Title VII compels a verdict for the employer, while the EPA compels a verdict for the plaintiff. 2 C. Sullivan, M. Zimmer, & R. White, Employment Discrimination: Law and Practice §7.08[F][3], p. 532 (3d ed. 2002).

So, go ahead, Hillary. Fix it.