December 5, 2007

A portion of an article from the October 15, 2007 edition of Fortune Magazine discussing the role of "unconscious bias" in class action employment discrimination litigation can now be found online at CNN’s website.

The article focuses on the massive class-action certification battle in Dukes v. Wal-Mart, in which two million female Wal-Mart employees allege gender discrimination in compensation and promotion decisions. Central to the plaintiffs’ case is expert witness testimony that focuses on the "unfettered discretion" afforded to Wal-Mart managers in making compensation and pay decisions. The experts opine that providing too much discretion allows "unconscious biases" to improperly influence these important managerial decisions. To buttress this theory, the experts offer statistical evidence of the disparity in managerial positions held by women and significant pay differentials between hourly and salaried female employees as compared to their male counterparts at Wal-Mart.

The article presents a closer look at an issue that is concerning to employers who rely on their managers to make hiring, promotion, and compensation decisions. Your employment attorney is a good resource for helping asses wither unconscious bias is an issue for your business.