Table of Contents
Dunham, C. R. (2017). Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace.
Summary
This article is examines two cases of gender-based discrimination involving two female employees. Betty Dukes a female employee at Walmart could not secure a promotion to an entry level management position despite of Walmart having in place appropriate policies protecting women against gender-based discrimination. In the context of Walmart the decisions of promotion is undertaken by the stores and department managers who are mainly male. At the time of promotion, the predominantly male employees used their discretion to choose employees to be promoted. Betty Dukes had a strong employee performance and at the time of promotion she was overlooked. She filed suit against Walmart claiming that the discretion given to the junior managers in deciding promotions resulted in gender-based discrimination (Dunham, 2017).
Ellen Pao a management analyst and lawyer working in banking and finance applauded her talent and intellect securing a position at Silicon Valley Venture capital firm. Ellen wanted to expect to be promoted to a full partner of the firm and found herself in a male dominated banking and finance environment. She found that in such environment there was pressure interacting with her male superiors attributed to antagonistic female perceptions of work-related male superiority. She faced numerous criticisms being labelled weak, trouble maker, and harassment complaints and finally left the firm. Ellen after leaving filed a claim for Title VII gender-based discrimination arguing that the firm failed to protect her against discrimination despite of having appropriate procedures and policies. Both women were unsuccessfully on their file claims.
Reaction to the Article
The author clearly demonstrates the influence of implicit bias and gender-based discrimination against women in workplace using the two cases of Walmart and Kleiner. The detailed information concerning discrimination explored in the article successfully brings out the concept of second generation discrimination. Both cases of discrimination help the author to reveal that some organizational structure aspects actually promote implicit gender bias which is now recognized by the scholars and courts. Therefore organizations should revisit the already established policies and procedures aimed to protect women against gender-based discrimination and implicit biases at workplace. Considering that both cases filed by the two female employees were unsuccessful, in my opinion there is the need to evaluate the effectiveness of Title VII claims for addressing second generation discrimination. Additionally, I find that the Title VII is ineffective on Second Generation discrimination and it is further hindered by the implicit biases of juries and judge.
Application
Regarding the application of the key concepts underlying discrimination at Walmart and the other firm, it is evident that the decision-makers play significant role in determining the outcomes of gender-based discrimination and implicit bias cases. The concept of implicit bias constitutes intertwining of the gender-based stereotyping of women and implicit bias itself. In such filed claimed the concept of Second Generation discrimination has evolved into a legal theory under Title VII for workplace discrimination. The concept of gender-based bias can be utilized in the courtroom because it has a significant relationship with female litigants, attorneys, and feminine characteristics. Third Generation Discrimination is developed attributed to gender-based implicit bias against women litigants caused mainly by the biases of juries and judges. The preconceptions of the role of women in the workplace and the entire society should be taken as an assumption for women to have a chance to succeed in cases involving implicit bias.
Selmi, M., & Tsakos, S. (2015). Employment Discrimination Class Actions After Wal-Mart v. Dukes
Summary
The article entails the Supreme Court decision in the case of Walmart v. Dukes. In this case, the lower court certified the plaintiffs’ after a long and careful decision that had been affirmed by the Ninth Circuit Courts of Appeals. The underlying decision was perceived to mark the end of employment discrimination class actions on the basis if intentional discrimination. The article provides that the decision made by the Supreme Court was based on existing hostility against class action litigation specifically to the scope and the substance of the Walmart litigation (Selmi & Tsakos, 2015).
It is evident that in their presentation Walmart made an appropriate storm for the conservative side of the Supreme Court and it entailed a class claim constituting complicated issues about discrimination against a defendant who was controversial (Selmi & Tsakos, 2015). The author of this article examines and explores the Walmart ramifications after five years the case had been decided.
Reaction to the article
The authors clearly depicts how this landmark decision concerning the law of employment and discrimination class actions appears effective superficially appears to be effective. However, having a close examination the underlying Supreme Court decision has a limited effect. It is also apparent that the decision has limited effect due to the difficulties attributed to measuring class action filings. There are no clear facts and documentation of about the number of employment discrimination class actions filed and that most of the cases encompassing class allegations never precede to class certification. It is also notable that even if the class filings seems to be down, the Supreme Court decision did not have a significant change on the scope of certification as it was expected. Additionally, courts may take into account the Supreme Court decision on Walmart, the certification decisions may not significantly be altered as a result of the underlying decision. I agree with the author’s assertions that the Walmart decision to some extent has altered the litigation to the disadvantage of the employees.
Application
The Walmart decision in practice has resulted in plaintiffs reconsidering how they utilize the social framework evidence because during the Walmart case the Supreme Court was very hostile to such evidence. The decision has made plaintiffs to file smaller regional class actions and this has led to lower courts taking the opportunity thus altering class certification. Additionally, it is evident that the Walmart decision discredits the utilization of class actions to eliminate systematic discrimination at workplace. It is notable that the litigation is associated with the inherent risks of settlement and they are independent of the merits pertinent to the claims (Zimmer & Sullivan, 2017). Therefore, in practice the underlying risks are notably intense for class actions. This implies that because of the Walmart decision, the courts are expected to safeguard the interests of the defendants. The courts focuses on protecting the defendants by means of restricting or tightening class certification more specifically for employment discrimination claims that lacks empirical evidence.
- Selmi, M., & Tsakos, S. (2015). Employment Discrimination Class Actions After Wal-Mart v.Dukes.
- Dunham, C. R. (2017). Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace.
- Zimmer, M. J., & Sullivan, C. A. (2017). Cases and materials on employment discrimination. Wolters Kluwer Law & Business.