etty Dukes (center), one of the six named plaintiffs in Dukes v. Wal-Mart, speaks to the media in front of the U.S. Supreme Court in March, 2011

*(From Color Lines)The Supreme Court issued its decision in the Dukes v. Wal-Mart sex discrimination case yesterday, a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability. The case highlights the difficulty of addressing discrimination at a time when intentional bias is both illegal and socially unacceptable, and yet obvious gender and racial gaps remain. If much, perhaps even most, discrimination is unintentional on a personal level, what responsibility do employers (or our government, or each of us as individuals) have for addressing its institutional consequences?

The court decided 5-4 that up to 1.5 million female employees cannot file suit together as a class. The court’s conservative majority raised questions not just about whether the women were discriminated against through the same mechanisms, but also about the validity of the plaintiffs’ central argument—that the combination of a highly centralized corporate culture and excessive discretion among managers systematically disadvantaged women.

Wal-Mart’s numbers are not in question. Women comprise more than 65 percent of hourly employees, but only 34.5 percent of managers. This is significantly different from similar retail chains, in which women hold 56.5 percent of management jobs. It takes women on average 4.38 years to rise to a management post at Wal-Mart, but takes men only 2.86 years. Of 41 Wal-Mart regional vice presidents, only five are women, and only 9.8 percent of Wal-Mart’s district managers are women. Wal-Mart’s internal documents acknowledge that they are far behind the rest of their field.

The plaintiffs in the case argued that Wal-Mart’s corporate culture invited managers to act on their own worst instincts. They cited the research of William Bielby, a sociologist who posits that people naturally hold stereotypes and biases, often unconsciously, and we act on them when we have the power to do so and nothing stops us.

At Wal-Mart, male managers acted on their bias against equitable promotions and pay because the company’s centralized practices and policies give them huge amounts of discretion in personnel decisions. The discretion itself is the policy, and it stands out in a company whose corporate headquarters micromanages nearly everything, down to choosing the temperature and music in every store. Sophisticated computer systems and dozens of daily reports let headquarters know exactly what is happening on an hourly basis. But Wal-Mart’s top management chose to let store-level managers keep on discriminating.

The gateway to promotion at Wal-Mart is its management training program; one has to go through this to become an assistant manager. Wal-Mart offered employees no information about how to get into the program until three months before this case was filed, and there was no system by which an employee could even express interest in it. (If there had been, there would be records of how many male and female employees had tried to become managers and been turned down.) Instead, managers identified potential future colleagues with a tap on the shoulder. Wal-Mart will argue that either coincidence or just a few sexist managers among many account for the glaring gap in the numbers of male and female management recruits, rather than a known set of central policies.

Certainly, there has been some blatantly sexist behavior among Wal-Mart managers, such as management meetings in which men called their female colleagues “little Janie Qs.” But mostly, Wal-Mart’s system runs on silence. Silence about what exactly are the criteria for management positions; silence about the additional subjective criteria that individual managers apply for promotion; silence about the actual availability of management positions; silence about how you decide whether to give an employee a raise of 10 or 25 cents per hour. Male managers fill all that silence, the plaintiffs’ lawyers and expert witnesses said, with subjective decisions that are often influenced by stereotypes.

Our laws do not require discrimination to be deliberate or even conscious before they require a remedy. So-called “disparate impact” is supposed to be enough for the law to step in. In this case, not only was there obvious disparate impact, but Wal-Mart’s knowledge of the gap supports the charge of knowing disparate treatment as well. Unfortunately, conservative members of the court ruled against the notion that the company is responsible, saying that different plaintiffs were discriminated against in too many different ways for the company to be systematically responsible. In the majority opinion, Justice Antonin Scalia writes that common elements tying all these employment decisions together were “entirely absent” in this case.

Read the rest of this commentary by Rinku Sen  at Color lines.

Rinku Sen is the President and Executive Director of the Applied Research Center (ARC) and Publisher of