A Shield for Wal-Mart

Congratulations to Justice Antonin Scalia for trumpeting a blueprint for large corporations to get by with discriminatory practices! According to the New York Times, he had this to say this week about Wal-Mart's strategy of granting local managers great leeway in hiring and promotions while officially having a corporate policy forbidding gender discrimination:

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action. It is a policy against having uniform employment practices.”

I wonder if Scalia is aware that Wal-Mart has long been accused of using local managerial autonomy as a shield to protect itself against claims of unfair worker practices. A company that micromanages every aspect of store appearance, inventory and accounting is said to have a wink-and-nod understanding with managers when it comes to bending labor rules.

According to Nelson Lichtenstein's "The Retail Revolution: How Wal-Mart Created a Brave New World of Business," the folksy, we're-one-big-family ethos promoted in stores has enabled individual managers to do things like casually tell employees to straighten up a messy department after they've clocked out, almost as if they're just asking for a friendly favor. Lichtenstein points out that Wal-Mart's high volume, low-margin business model puts enormous pressure on store managers to shave every possible penny off labor costs. Rather than being a written policy, practices like off-the-clock work are "built in" to the culture of the company.

None of this proves Wal-Mart discriminates against women, or even that the same incentives are there to avoid promoting women as are there to pay employees less. But it should raise a red flag that the lack of, as Scalia puts it, "a common answer to the crucial question, why was I disfavored?" does not mean Wal-Mart does not discriminate. It could mean the exact opposite.

For a good summation of the history and practices of Wal-Mart, see my write-up about Lichtenstein's book.