Lessons on Consistency from Oral Arguments in Wal-Mart v. Dukes

Sponsored by Thomas Econometrics www.thomasecon.com THE PROACTIVE EMPLOYER PODCAST April 1, 2011 Lessons on Consistency from Oral Arguments In Wal-Mart v. Dukes

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Earlier this week, the Supreme Court heard oral arguments in Wal-Mart v. Dukes, the largest employment discrimination class action claim to date. One of the more interesting aspects of the oral arguments, for me, was the exchange between Justice Kennedy and plaintiffs' attorney, Joseph Sellers, regarding an apparent internal contradiction in the plaintiffs' theory: Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case? A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex. Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is. This exchange highlights the importance of internal consistency. Whether it's your claims in a lawsuit, your internal policies and practices, or the way in which those policies and practices are implemented, consistency is key. In this week's installment of The Proactive Employer, we'll be providing a short re-cap of the oral arguments in Wal-Mart v. Dukes, highlighting the internal consistency issue. We'll also be discussing some practical ways in which employers can ensure that their policies and practices are applied in a consistent manner.