March 2011 Issue • Volume 39 • Issue 3

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ASA’s Supreme Court Amicus Brief
in Wal-Mart v. Dukes, et al.
The Value of Collective Action

sally hillsman

Sally T. Hillsman,
ASA Executive
Officer

Where do you find value in your membership in the American Sociological Association?  For sure, in the financial perks of membership—the discounted rates on journals, the Annual Meeting and TRAILS. There is the free access to the online Job Bank when you need it. Perhaps you find value in the research and data on the profession and discipline provided by the ASA research department. And undoubtedly the minority outreach and fellowship programs are important to you and your department. What about media relations (see p. 3) and public affairs (e.g., direct pressure to defend grants from political influence and encourage more federal funding)?

While these important ASA programs and activities play a significant role in the professional lives of our members, some of the least publicized activities of the ASA may have the most lasting influence.

Amicus Briefs

Earlier this month, ASA submitted an amicus brief to the U.S. Supreme Court in Wal-Mart v. Dukes et al., a case set for oral argument on March 29, 2011. This amicus curiae or "friend of the court" brief was written by sociologists Laura Beth Nielson and Barbara Reiskin, with the assistance of sociology graduate assistant and lawyer Amy Myrick and many other sociologists. ASA’s long-time attorney Michael Trister, who is admitted to practice before the Supreme Court, submitted the brief on behalf of the ASA and the Law and Society Association joined us.

Friend of the Court briefs are so-called because they are intended to provide the Court with relevant information that may not be available on the record or provide authoritative information to support a specific position taken by one side in the case that the other side disputes. In Wal-Mart v. Dukes et. al., ASA’s brief is one of the 29 that were submitted (15 for Wal-Mart and 14 for Dukes); the ASA wrote on behalf Betty Dukes et. al.

ASA has a long history of signing or writing amicus briefs where our discipline’s work is vitally involved, most recently in Cook et al. v. Gates (Don’t Ask Don’t Tell) in 2006, Perry v. Schwarzenegger (California Proposition 8) in 2009, and Grutter v. Bollinger (affirmative action at the University of Michigan) in 2003. Final approval to submit these briefs, whether written by the ASA or by other organizations, rests with Council.

Why this case? Why the ASA?

Workplace sex discrimination is the core of the original case and, of course, most sociologists would abhor such discrimination as we have collectively expressed in the ASA Code of Ethics. However, that is not what is at stake in the Supreme Court’s appellate review of this case, or what is at stake for sociology. The ASA amicus curiae brief tries to persuade the Supreme Court that the use of sociological research is valid evidence in this case and not, as Wal-Mart has argued, "anecdote" and mere "statistics" that should be excluded from considering whether there is a "class" of plaintiffs as well as the merits of case. The Supreme Court decision in this case is certainly important to the defendants and for the future of so-called class-action suits; but it is also very important to sociology as a discipline.

What is at stake?

Dukes, et al. argue that Wal-Mart has a corporate culture that portrays women as "of lower value to the company." Dukes provides evidence that when the case was filed—nearly a decade ago—about 70 percent of hourly Wal-Mart store positions were held by women while only 32 percent of salaried store positions were held by women. The handful of plaintiffs who are Wal-Mart employees contend that their experiences of discrimination reflect those of  women across the entire company who have been denied the opportunity to advance on the basis of their gender, and that the company’s "corporate culture" discriminates against female workers.

Wal-Mart countered that each store is independently operated, and that there is no "corporate culture" of discrimination. Using this argument as its foundation, Wal-Mart argues further that each allegation of sexual discrimination against it should be filed as separate and independent case, rather than as one case on behalf of an entire class of women employees across Wal-Mart stores. The plaintiffs in the Dukes case used social science research, including a case study of Wal-Mart done by sociologist William Bielby, to argue that they do represent a "class" of all the women employees of Wal-Mart who face discrimination and that there is a corporate culture that discriminates against them.

While the substance of this case is about sexual discrimination at Wal-Mart, the issue before the Supreme Court is not whether Wal-Mart does or does not discriminate. Rather it is about whether social science, and sociology in particular, is authoritative and provides valid scientific evidence for helping to define a "class" in class-action cases, and for supporting the contention that social phenomena such as "corporate culture" can and do exist. The implications of this case, therefore, are significant for the discipline. Not hearing from the ASA through an amicus brief would be most surprising and possibly detrimental to our discipline.

The ASA’s Arguments

Sociological research and data were used to document widespread sexual discrimination across Wal-Mart stores, and the Ninth Circuit Court affirmed this as a valid source of evidence to certify the plaintiffs as a “class” and that the class experienced discrimination. Wal-Mart critiqued the research data as lacking validity citing legal scholars writing in law review journals that are not peer-reviewed.

If the Supreme Court rules in favor of Wal-Mart, the validity of social science research in legal opinions could be significantly diminished.

The Value of Membership

Higher education, our profession and our discipline is diverse and in the view of some, fragmented. The ASA has been a vehicle for 106 years for supporting individual members and sociologists in general with services and opportunities. But it has also provided a foundation for strategic collective action by and on behalf of the discipline when it is necessary. Thanks to the efforts of individual sociologists working collectively to write the Wal-Mart amicus brief, to the elected leadership of the ASA Council who vetted it carefully and thoughtfully, and to the financial legacy of sociologist Sydney S. Spivack that paid for it, we have accomplished this current, important task on behalf of the discipline.

For more information, visit www.asanet.org/images/press/docs/pdf/Amicus_Brief_Wal-Mart_v__Dukes_et_al.pdf

Sally T. Hillsman is the Executive Officer of ASA.
She can be reached by email at executive.office@asanet.org.

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