The policy that is no policy... the problem of the sex discrimination action again Wal-Mart.

Lyle Denniston homes in on the plaintiffs' problem, as it emerged at oral argument in the Supreme Court yesterday:

[Justice Anthony] Kennedy said, “It’s hard for me to see…Your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.”

[The female employees’ lawyer, Joseph M.] Sellers chose in reply to dwell on the breadth of the store managers’ discretion, saying “There’s no guidance whatsoever about how to make those decisions.” The discretion, he added, is then used within “a very strong corporate culture” that leads managers to be “informed by the values the company provides.” The response itself seemed contradictory: if there was “no guidance whatsoever,” how were the managers led to apply company “values”?

I think plaintiffs are trying to say that if headquarters can see a pattern of women doing poorly under the decentralized discretion system, then keeping that system in place is a discriminatory policy. That absence of centralized control is the common issue that makes it an appropriate class action (rather than lot of individual cases that ought to be brought separately if at all).

So... the thing that makes a million individuals the same is that they... are different. They should have been made the same.... or more alike... by a sex-discrimination-conscious policy. I think it's possible to get your head around that idea, but nearly impossible to picture workable legal doctrine governing the real-world affairs of human beings... including the judges who would apply it.