Sociological involvement in Walmart Supreme Court case

The Supreme Court is about to hear arguments in a large class-action lawsuit against Walmart regarding female employees receiving lower pay. Interestingly, a sociologist is in the middle of the case:

Plaintiffs in the class-action suit, who claim that Wal-Mart owes billions of dollars to as many as 1.5 million women who they say were unfairly treated on pay and promotions, enlisted the support of William T. Bielby, an academic specializing in “social framework analysis.”

A central question in the case is whether he should have been allowed, in preliminary proceedings, to go beyond describing general research about gender stereotypes in the workplace to draw specific conclusions about what he called flaws in Wal-Mart’s personnel policies.

“Bielby made a conclusion that he had no basis to make,” said Laurens Walker, one of two University of Virginia professors who coined the term for the analysis almost 25 years ago. “He hasn’t done the research.”

But a brief supporting the plaintiffs from the American Sociological Association said that Professor Bielby’s work explaining how Wal-Mart’s policies may have led to discrimination “is well within our discipline’s accepted methods.”

Read the full article to find out more about the academic debate over social framework analysis. It sounds like what is it at stake is whether Bielby can make claims about organizational culture and how it might relate to this case without specific data from Walmart.

You can read the American Sociological Association’s (ASA) amicus brief here. It looks like this is the first such brief filed by the ASA since a 2006 case regarding a challenge to “Don’t Ask, Don’t Tell.” Digging a bit into the ASA amicus brief, the “summary of argument” provides some insights into what “social framework analysis” is:

“Social framework analysis” is not a sociological method, but rather a legal term for some kinds of research. What constitutes high quality “social framework analysis” continues to be vigorously de-bated among scholars. As such, the Court should assess the underlying social science methods, as practiced by social science researchers and vetted in the peer-reviewed journals of those fields, instead of the “social framework analysis” construct when deciding whether social scientific work is valid.

Systematic social science research has shown that corporate culture may affect individual-level decision-making in common ways. Corporate culture is a set of norms and values that convey messages to em-ployees about appropriate behavior. Corporations may actively try to engineer corporate cultures by implementing policies and practices that convey norms and values. Informal cultures also emerge in the workplace when employees interact, and may either reinforce or resist formal culture as well as promote other non-sanctioned norms. The extent to which corporate cultures, both formal and informal, influence individuals’ behavior depends on the strength of the cultures and also on the degree of discretion that company personnel policies give to individual decision-makers…

Namely, corporations have been shown to reduce gender disparities by instituting formal personnel policies, creating accountability processes for managers, and self-monitoring their employment patterns in order to highlight and address disparities. Extensive research in sociology and other social sciences has shown that these practices equalize gender dis-parities in the workplace by placing central checks on individual discretion that leads to biased decision-making, but do not eliminate all discretion from managerial practice. (pages 3-5)

It will be interesting to see what the Supreme Court decides, even if they are just ruling on whether the large class-action suit can go forward.

Searching for a safe harbor

TorrentFreak reported a few days ago that Google has filed an amicus brief in the appeals case against torrent search engine isoHunt:

Google has been keeping an eye on the legal battle between the MPAA and isoHunt as last week, out of nowhere, the company unexpectedly got involved in the motion for summary judgment appeal. The search giant, which has always stayed far away from these types of cases, filed an amicus cuiae brief (third party testimony) at the Appeal Court.

“This cases raises issues about the interpretation and application of the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”) and common-law rules governing claims for secondary copyright infringement. Google has a strong interest in both issues,” Google’s counsel writes.

Talk about understatement.  You can read Google’s 39-page brief for yourself over on Scribd — thanks to PaidContent for posting.

TechDirt posted additional commentary late yesterday suggesting that Google’s stance in the isoHunt appeal is mostly about its own ongoing litigation with Viacom:

Google argues that as long as YouTube took down any content it received a takedown notice on, it was in compliance and protected by safe harbors. Viacom leaned heavily on the IsoHunt ruling, to claim that the DMCA doesn’t just cover takedown notice responses, but also requires a response to “red flag” infringement.

However, Google knows that the IsoHunt ruling is basically the only legal precedent out there that reads the DMCA in this manner. So, from Google’s perspective, dumping that reasoning is key. So its amicus brief still argues that IsoHunt is guilty of contributory infringement, a la the Grokster standard, but not because of red flag infringement.

The last thing Google wants is to be liable for copyright infringement under the DMCA every time there is a “red flag” that infringement is taking place; that would be the end of Internet search engines as we know them.

Of course, Google’s business strategy isn’t merely to file amicus briefs and hope for the best; the search giant has also recently taken proactive steps to reduce its liability, including turning off autocomplete results for torrent-related searches.  I guess this is what the Intellectual Property Enforcement Coordinator (IPEC) meant by “dialogue”, as detailed in her recent report:

the IPEC has facilitated and encouraged dialogue among the different private sector Internet intermediaries that contribute to the dynamic nature and functioning of the Internet, including payment processors, search engines and domain name registrars and registries. These entities are uniquely positioned to enhance efforts of rightholders and law enforcement to combat infringing activity and help reduce the distribution of infringing content in a manner consistent with our commitment to the principles of fair process, freedom of expression and other important public policy concerns. We believe that most companies share the view that providing services to infringing sites is inconsistent with good corporate business practice and we are beginning to see several companies take the lead in pursuing voluntary cooperative action.

I’m not sure how “voluntary” this really is — or whether “fair process” and “freedom of expression” accurately describes a “dialogue” written under a Damoclesian sword of statutory copyright damages and domain name seizures.  But I will agree that ruinous lawsuits and seizures are “inconsistent with good corporate business practice”.

Hat tip to Keith Lowery for sending me the link to the original TorrentFreak story.