On such trifles, American excellence hangs

Plaintiffs in the class-action suit, who claim that Wal-Mart owes billions of dollars to as many as 1.5 million women who they say were unfairly treated on pay and promotions, enlisted the support of William T. Bielby, an academic specializing in "social framework analysis."

A central question in the case is whether he should have been allowed, in preliminary proceedings, to go beyond describing general research about gender stereotypes in the workplace to draw specific conclusions about what he called flaws in Wal-Mart's personnel policies.

"Bielby made a conclusion that he had no basis to make," said Laurens Walker, one of two University of Virginia professors who coined the term for the analysis almost 25 years ago. "He hasn't done the research."

But a brief supporting the plaintiffs from the American Sociological Association said that Professor Bielby's work explaining how Wal-Mart's policies may have led to discrimination "is well within our discipline's accepted methods." 

Forget the argument about the validity of the method of research. Leave that to the academics. What exactly is this guy saying with his "social framework analysis?"

The sharp arguments are a testament to the central role that social framework analysis has come to play in scores of major employment discrimination cases. Describing what was at stake in such cases, a 2009 article in The Fordham Law Review defending Professor Bielby said the debate was "about the existence of unconscious or implicit bias, the continued seriousness of discrimination as a force in the modern workplace and the appropriate reach of legal remedies to challenge discrimination."

The Supreme Court is not considering whether Wal-Mart, the country's largest retailer and biggest private employer, in fact discriminated against women who worked there. For now, the question before the justices in the case, Wal-Mart Stores v. Dukes, No. 10-277, is only whether hundreds of thousands of female workers have enough in common to join together in a single suit.

Got that? "Unconscious" bias. A group of victims doesn't have to show that an employer meant to discriminate. All they have to do is peer into his inner self - that just couldn't help itself - and say that they stuck it to racial minorities, women, gays, or any other victim group you want to put in there.

The plaintiffs are going to need a lot more than what they have at present to meet the standard. But who knows with this court? Trial lawyers are salivating at the prospect of milking another American corporation while unions and left wing activists - who hate any success story in American business - are eager to wring concessions from the retail giant.

On such trifles and junk science, American excellence hangs.