SC rules on Wal-Mart vs Dukes

The Supreme Court has sided with Wal-Mart in the class action case. As regular readers of this blog will be well aware, sociologists have been more than usually involved in the case and the debate surrounding it. The slip opinion, written by Scalia, discusses Bill Bielby’s testimony and dismisses it:

The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” 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.” The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case … The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[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. It is worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” … Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.

While dismissing the particular body of evidence presented as insufficient to establish the Plaintiff’s central claim, the decision does not make any more general remarks about the relevance of social-scientific evidence. (At least not to my untrained eye. Those with a legal education are welcome to comment.)

The ruling was unanimous with respect to rejecting certification, but Ginsburg wrote a partial dissent (joined by Breyer, Sotomayor, and Kagan) on the question of the scope of the ruling, and did not sign on to the middle section of the decision (where the social science evidence is discussed). She writes, in part,

The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture. … the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” Using regression analyses, their expert, Richard Drogin, controlled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. The results, the District Court found, were sufficient to raise an “inference of discrimination.” … The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. 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. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.

In a footnote to that “long been known” sentence, Ginsburg cites Goldin and Rouse’s paper on discrimination in Symphony orchestras (revealed by the comparison of blind with non-blind auditions). The partial dissent does not mention Bielby’s testimony.

I’ll leave it to those more qualified than myself to assess the technical aspects of the ruling (e.g., with respect to Daubert), along with its meaning and likely consequences. It’s worth noting, finally, that even as they dismissed certification for the class, the three women on the court joined the dissent.

Written by Kieran

June 20, 2011 at 4:17 pm

13 Responses

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  1. Sad. While it genuinely pains me to say, “I told you so,” I…oh, nevermind.


    Als Beruf

    June 20, 2011 at 4:33 pm

  2. I sympathize with Peter Levin’s reaction to the ruling. I’m not sure if sociologists, psychologists, or any other evidence-bearing scholars could have said anything that would have changed this decision….


    brayden king

    June 20, 2011 at 10:44 pm

  3. I guess the only remaining issue of sociological importance is how they will address this on Scatterplot.



    June 21, 2011 at 12:22 am

  4. As a (graduate student) sociologist, I do find it difficult to disagree with the thrust of the arguments of *both* Scalia and Ginsburg. On one hand, it’s classic Soc 101 to point out that without being able to demonstrate a clear and plausible causal mechanism by which something is said to ’cause’ some specific outcome (ignoring for now the typical criticisms of causality in social science) then a sociological theory is on pretty shaky ground. This I take as basically Scalia’s point (minus his acid tongue). On the other hand, Ginsburg’s statement is also pretty difficult to dismiss, even given Scalia’s valid and important point. If the ‘discrimination’ in pay still exists when effectively controlling for the full range of plausible explanatory mechanisms except systematic gender bias, then it’s also classic Soc 101 to point out that that’s pretty solid grounds on which to advance a plausible sociological theory based on the evidence that something fishy’s going on here and it’s probably gender-related. But no clear causal mechanism can be identified, unless we accept Bielby’s assertion that we all unknowingly act in gender-biased ways even if we don’t think of ourselves as biased in that way. The fundamental problem is that while Bielby’s argument is no doubt fine for healthy discussion and debate within sociology and may be perfectly acceptable as a valid and important sociological theory, it doesn’t look very solid in the harsh light of a court of law.

    Maybe the best we can say is that this Supreme Court decision would make a good talking point for discussing the validity of different types of empirical evidence in sociology, in a Soc 101 class…!

    Also, I apologize for this fence-sitting comment!



    June 21, 2011 at 8:37 am

  5. That a single sociologist cannot offer empirical evidence to support his claims does not remove sociology from the family of sciences. It may say something about the sociologist or his theory. Numbers are easy to find. What is the male-female distribution in the population from which Wal-Mart draws its employees? What is the gender distribution of Wal-Mart employees? What is the gender distribution of Wal-Mart managers? How likely is that outcome? Do any other factors mitigate, as in professional sports or among religious orders?

    Whether sociology as a science must follow the forms and methods of physics is different question entirely. People are more complicated than billiard balls. So, our behaviors are explained differently. The sociology of humor might be entirely descriptive and not statistically validated – even if there is nothing funny about this case.

    Whether or not sociology is at all a science, it is a recognized field of academic study, no less dependent on the development of expertise than are music, theater, or art; and the Daubert Standard also applies to non-scientific expert testimony.


    Michael E. Marotta

    June 21, 2011 at 9:22 am

  6. All the sociology in the world is not going to solve this problem.
    As was pointed out Wal-Mart does not have a completely structured base for raises and promotions thus making it difficult to assess any company standard or bias.
    Most companies will structure this way so they lessen the chances of a lawsuit and can operate as they wish.
    The best an employee can do is excel at their job and hope for the best. If you are liked by the boss then chances are you will get a raise or be promoted. Most office jobs I worked in were operated in the same manner. You didn’t really need to do a good job if your boss liked you.


    Margaret Paddock

    June 22, 2011 at 2:50 am

  7. Margaret Paddock cogently identified a deep fact: much of life is undocumented. The featured professors here and at the “Organizations and Markets” blog devote considerable thought to the processes of academic advancement and career development. Achievements per se are not the measure of success. Coming from a Big Name Institution with Famous Mentors who have Connections so they can recommend you to their Friends is the royal road in sociology as in law or medicine or engineering and quite likely among pastry chefs. If your bosses like you, you get ahead. So, why should Wal-Mart be any different?

    According to market theory, their discrimination should cause talented women to seek opportunities elsewhere, thus benefiting their competitors. In Silicon Valley, disgruntled employees start their own firms.

    On another note, as to whether and what extent sociology is a science, I can only offer the commentary of Tom Lehrer.

    His little ditty is cute. His patter as he sorts the sheets is revealing as well. As a criminologist, I consider myself a sociologist – as zoology is to biology – but it helps to keep some perspective…


    Michael E. Marotta

    June 22, 2011 at 12:21 pm

  8. I think that there is merit in Scalia’s point. If Bielby cannot “calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking”, that means he cannot observe it directly. If his direct observation of bias is so lacking that he cannot estimate its impact to a sharper range than 0.5% to 95%, then can he say that it has been directly observed? Or, when push comes to shove, does he is merely suspect that it is out there? A suspicion isn’t science, it is speculation. The speculation may be true, but it is not science until its been seen and verified.

    I don’t think that this has anything to do with whether sociology is a science or not. Obviously, sociology blends science and non-science. Social scientists speculate all the time, including economists and political scientists. I’m quite confident that it will ultimately have no effect on the discipline, particularly because the discipline was in no way judged upon in court.



    June 22, 2011 at 3:36 pm

  9. […] followed the case closely enough to have an opinion on the substance of the issues (or the role of sociologists in the litigation). But a main legal issue in the case — whether Walmart’s policy of […]


  10. Goldin and Rouse’s paper on sex discrimination in Symphony orchestras lacks general application because it is about non-profit firms.

    Alchian and Kessel’s pioneering analysis was about non-profit firms finding employer discrimination to be less costly because they face less pressure to be profitable.


    Jim Rose

    June 22, 2011 at 11:58 pm

  11. In my report, which you can read at I did not offer a “theory” about gender disparities at Wal-Mart but instead did a detailed, empirically grounded case study based on a rich body of qualitative and quantitative data. It was empirical and replicable, analyzed independently by Wal-Mart’s rebuttal expert, which I responded to in a sur-rebuttal report. It was not my task to analyze decision making at the individual level (which is where the “0.5% to 95%” reference comes from). I did not attempt to determine which decisions by Wal-Mart were affected by gender bias and which ones were not. These aggregate issue was addressed in detail by reports of a statistician and labor economist testifying for plaintiffs as well as by statistical experts retained by Wal-Mart, and in rebuttal reports submitted by each side. And had the case survived class certification, there would have been additional analysis of the company’s policies and practices based on further qualitative and quantitative data generated through the discovery process. as well as new statistical reports. I expect that these issues will be addressed in detail in the forthcoming special issue of SMR.


    Bill B.

    June 23, 2011 at 12:39 am

  12. The slip opinion, including the Dissent, runs 42 pages and is an easy read. The plaintiffs offered the work also of Richard Drogin. According to Prof. Drogin’s business website:

    “Dr. Richard Drogin is a founding partner of Drogin, Kakigi and Associates. Since earning his Ph.D. in Statistics from the University of California, Berkeley, in 1970, he has … He has been retained as an expert witness in statistics in over 250 cases, and has testified over 25 times in State and Federal Courts. Some of the cases Dr. Drogin has served as an expert include: Bell v. Farmers, Dukes v. Walmart, Stender v. Lucky Stores, Butler v. Home Depot, Kraszewski v. State Farm, Haynes v. Shoneys, Shores v. Publix, Satchell v. FedEx, Sav-On Overtime Cases, and Staples Overtime Cases.” (See


    Michael E. Marotta

    June 27, 2011 at 5:47 pm

  13. By the way, I was not asked “what percent of the decisions at Wal-Mart were affected by stereotyped thinking.” I was asked what percent of the decisions that were influenced by stereotyping were “unconscious” versus “conscious.” Here’s the transcript:

    Q So with respect to the decisions that are actually getting made with respect to women at Wal-Mart, do you have an expert opinion as to whether those decisions are being made at the subconscious level, those stereotypes are being invoked at the subconscious level rather than the conscious level?
    A I don’t think it’s an either/or thing, and subconscious versus conscious has sort of Freudian connotations to it, but I think I understand your question.
    And I would say that it’s almost certainly the case that some decisions — that decisions are made that are influenced by stereotypes and that the individuals making those decisions are not aware of that.
    Q And you say some fit into that category and there are some that fit into some other category, that is, where they are aware of it at the time?
    A Well, there could be, and then we had the discussion about —
    Q I derailed that, and we got into the policy, establishment of policy. I want to stick with the decisions made with respect to individuals
    for a while.
    Now, I want you to give me — to let me know whether you have an expert opinion as to what percentage of the decisions would fit into those two categories, that is, the decisions made where the decision maker was aware of it and the decisions where the decision maker was not aware of the operation of stereotype.
    A No.
    Q Okay. You wouldn’t be able to make an estimate, recognizing that you haven’t done the sort of research that might be necessary to give it scientific precision?
    A Correct.
    Q You can’t make an estimate?
    A Correct, I cannot.
    Q So it could be five percent that are made at the conscious level, 50 percent, 75 percent, 95 percent? You just don’t know?
    A Correct.


    Bill Bielby

    October 13, 2011 at 1:08 am

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