What's the fair way to run a large organization? That's a question that is squarely, and interestingly, raised by Justice Ruth Bader Ginsburg's dissenting opinion in Wal-Mart v. Dukes, a Supreme Court case decided last week.
The lawyers for the plaintiffs, women who work or worked for Wal-Mart, were seeking to bring a class action charging pervasive discrimination against women. The 5-4 Supreme Court majority ruled that the group was too diverse to be given class-action status.
Ginsburg partially disagreed, saying that all female employees and former employees of Wal-Mart might have enough in common to form a coherent class with common interests and entitled to common remedies. (We'll leave aside the fact that much of the money in these cases ends up with the lawyers.)
"A system of delegated discretion," she wrote, can be the subject of a class-action lawsuit "when it produces discriminatory outcomes."
There was no disagreement that Wal-Mart's management practices are "a system of delegated discretion." Wal-Mart store managers, as Justice Antonin Scalia explained in his majority opinion, have considerable discretion in deciding whom to hire and whom to promote.
The company, which employs some 1.4 million people in this country, is proud that it tends to promote from within, and it evidently holds its managers responsible for results that it famously monitors extremely closely.
It is hardly necessary to add that this formula was been successful. Wal-Mart is enormously profitable. And I don't think I'm the only one who has found Wal-Mart greeters and sales people to be friendly and helpful every time I've shopped there.
But this is not a fair way to run a business, Ginsburg said, because women hold 70 percent of the company's hourly jobs but only 33 percent of its management positions. Women are paid less on average than men in every region, and the salary gap between men and women widens over the years.
All of which provides, Ginsburg concluded, an "inference of discrimination." The fact that many women these days freely choose less demanding work in return for more family and free time surely couldn't have anything to do with it.
The conclusion I draw is that Ginsburg thinks the only fair way to run a large organization is the way government runs civil service.
All jobs should be numerically classified to eliminate "arbitrary and subjective criteria." Promotions should be determined by written tests or seniority, not by managers choosing "on the basis of their own subjective interpretations."