Employer-employee disputes: causes, resolution, and legal frameworks

¶ … Against "Opinion-Based" Decision Making:

The Wal-Mart Case

One of the most reviled events in the business world -- from the largest corporations to the smallest privately-owned business is the discrimination lawsuit. In whatever form it takes; whether age, sex, religion, disability, or any of the other myriad conditions for which discrimination is illegal, the ramifications for the company can be severe. In the current class action case against Wal-Mart, allegations of gender discrimination impact literally thousands of current and former employees, who stand to gain significant compensation should the court find against the retail giant. Sadly, such a case could have been prevented entirely by paying strict attention to anti-discrimination policies, training and research.

Wal-Mart holds sway as the nation's biggest employer (Wal-Mart.com, 2005). As such, it not only enjoys tremendous success, but is also faced with an immense amount of possible liability should it fail to follow through on issues of equal opportunity and anti-discrimination. In order to avoid this, Wal-Mart, like countless other companies, has established policies in place, backed up by training procedures designed to prevent any lapse between its legal responsibilities and its practices. Unfortunately, according to many, this failed.

As is the standard in corporate America, Wal-Mart asserts that it fully follows all Equal Opportunity laws in the United States, as well as abroad (2005). It also asserts that it fully instructs and expects its representatives (managers, executives, other employees) to do the same. However, given the current large scale class action suit, it seems that somewhere those policies and procedures failed. In June of 2004, a federal court authorized the expansion of a sexual discrimination lawsuit filed in California to a class action, estimated to encompass more than 1.6 million workers (Curry, 2004). In the case, workers claim that, since 1988, women workers were underpaid in relation to their male counterparts company wide (even across different geographical regions -- indicating an "institutionalization" of the practice), that they are not promoted at the same rate as men, and that the highest posts in the company are disproportionately male (when compared to other large corporations) (2004).

Of course, Wal-Mart disputes this case, arguing (typically) that the measurable inequalities between its male and female employees are simply a reflection of qualification and interest -- and not of a systematic favoritism of one sex over the other. However, the Judge in the federal case seemed to think otherwise, and thus expanded the case to the currently estimate 1.6 person class.

Clearly, the problem was exacerbated by (as it has been in many other similar cases, including the recent Home Depot settlement) the allowance for "personal judgment" in hiring practices (Curry, 2004). Although the utilization of personal judgment has long been held to be a particular "American" virtue, in today's world, especially in the computer age when statistics are readily available, it can leave a company open for disastrous law suits.

The reason that personal judgment can cause problems is that it necessarily incorporates ingrained prejudices and cultural attitudes of which the hiring manager may not even be aware. Thus, by using "hunches, intuitions, or feelings," managers may make assumptions concerning the "appropriateness" of a certain position based on their sex-role assumptions (i.e. "women don't like this kind of work," "mother's can't dedicate the hours to the job," or "women aren't emotionally "strong enough" to hack the job. Given such attitudes are often strongly culturally bound; it is easy to see how an overall trend can appear on a wide scale -- resulting in overall practices with or without intention.

Clearly, one of the best ways that Wal-Mart (and other companies) can avoid this kind of discrimination (or vulnerability to discrimination law suits), is to remove (as much as possible) the "subjective" portions of the hiring and compensation process. Although this may go "against the grain," in today's litigious age, it is all but necessary. Thus, instead of making "hunches," employees must be directed to use more objective statistical data in their decision making processes. By removing the patently "human" opinion-based criteria for decision making, one can also reduce the application of illegal (if unconscious) factors in the equation.

In addition to facilitating the use of statistical and procedural checklists to aid in promotions and compensation decisions (of course, based soundly on clear training on the issue), it is also important for the company itself to regularly monitor its statistical information to compare its performance with relation to expected patterns. This may include statistics encompassing pay, gender, job availability, positions held, promotion rates, local trends and realities, etc. Further, companies can also compare their statistics with other "peer" companies nationwide as a kind of benchmark of performance.