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Class Act, Glass Ceiling
After 10 years, the Wal-Mart sex-discrimination case finally makes it to the Supreme Court
BY JUSTINE F. ANDRONICI AND DEBRA S. KATZ
BEN MARGOT/AP PHOTO
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HIS SPRING , RETAIL GIANT
Wal-Mart will attempt to convince the U.S. Supreme Court
that one of the largest class-action
lawsuits in history—comprised of 1.6
million women who are former or
current employees of Wal-Mart and
its offshoot Sam’s Club—should not
be permitted to go forward to trial.
Initially filed in June 2001 on behalf
of six plaintiffs, the suit alleges that
Wal-Mart’s women employees have
been denied advancement and training opportunities, paid less than men
for the same or comparable work,
steered to departments that pay lower
wages and retaliated against when
they bring up sex discrimination.
With a case of this magnitude, the
rights of all workers hang in the balance. “If the Supreme Court upsets
the lower courts’ [decision to accept
the class-action designation] … employers all over the country will have
been handed a powerful new tool to
evade the law and avoid giving their
female employees nondiscriminatory
treatment,” says Marcia Greenberger,
co-founder and co-president of the
National Women’s Law Center.
The plaintiffs in Dukes v. Wal-Mart
(named after original plaintiff Betty
Dukes, a 2004 Ms. Woman of the
Year) charged that personnel decisions at Wal-Mart are exercised within a corporate culture infested with
demeaning gender stereotypes. For
example, the plaintiffs declare that
Wal-Mart management approved
male managers holding business
meetings at Hooters, and that they
Betty Dukes, the original Wal-Mart plaintiff4
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were told women were not represented in top positions within the company because men are more aggressive
in seeking advancement. Plaintiff
Christine Kwapnoski was informed
that men needed to be paid more than
women because “they have families to
support.” Women workers were referred to as “girls,” “housewives” and
“squatters” (someone who squats to
pee), and one Wal-Mart manager reportedly said that the role of female
assistant managers was to give women
associates (the sales staff) someone to
discuss their periods with.
All such practices, say the plaintiffs, violate Title VII of the Civil
Rights Act of 1964—the federal law
that makes it unlawful for employers
with 15 or more employees to discriminate based on gender. The
plaintiffs want Wal-Mart to reform
their practices, pay damages for lost
wages and benefits, and pay punitive
damages.
The Wal-Mart case is especially
critical during these difficult economic times. “Women still are paid
only 77 cents for every dollar paid to
men, but for women in sales, the
wage gap is even steeper—64 cents
on the dollar,” Greenberger points
out. “At Wal-Mart, there was evidence that, overall, women were paid
$5,000 less than men per year, even
though on average they had higher
performance ratings in hourly jobs
and more years of employment.”
Adds Arcelia Hurtado, co-counsel
in the Dukes v. Wal-Mart case and executive director of the San Franciscobased nonprofit Equal Rights
Advocates, “Equal pay for equal work
is a basic civil right in this country.
Every day across the country women
are denied this right and effectively
told their work has less value. This
case stands for the collective right of
every working woman to be paid
what her work is worth.”
Wal-Mart has successfully delayed
this landmark sex-discrimination case
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for a decade now. In this latest—and
likely last appeal before the case proceeds to trial—the corporation is challenging an April 2010 ruling by the
U.S. Court of Appeals for the 9th
Circuit that upheld a 2004 decision
by a California District Court allowing the class action to go forward.
This “class certification” indicates
that a group of people experienced
similar-enough discrimination to permit their individual cases to be handled together.
In the 2004 decision, the court concluded that there was significant evidence of company-wide pay and
promotion discrimination and that
Wal-Mart long knew of it but failed to
take corrective action. Wal-Mart appealed the case unsuccessfully four
times before the 9th Circuit before petitioning for Supreme Court review.
Obviously Wal-Mart would much
rather divide the cases than face one
all-encompassing case. If the plaintiffs
are not permitted to proceed as a class,
the vast majority of claims would never
become individual lawsuits, since it
would be too cost-prohibitive for
workers to pursue them.
Among its arguments to the
Supreme Court, Wal-Mart insists
there is not enough uniformity
among the claims to justify a class action. But, the plaintiffs responded,
the lower court felt there was ample
evidence: For example, Wal-Mart
failed to make it policy to post promotion opportunities for retail-store
employees, nor did it specify criteria
for setting pay or making promotion
decisions. All of those are standard
practices in the American workplace—just not at Wal-Mart. Instead,
plaintiffs argue, Wal-Mart chose to
maintain highly subjective policies,
enforced by its home office.
According to the plaintiffs, evidence shows that Wal-Mart has long
recognized that its female workforce
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suffers the most from its subjective
policies. The corporation’s own data
shows that its women employees, on
average, perform better and are more
experienced than Wal-Mart’s male
employees, but women’s pay lags far
behind in every major position in all
41 of the company’s regions. Women
at Wal-Mart have also faced a classic
glass ceiling: They hold only 34.5
percent of management jobs in WalMart stores, and that number sinks at
each rung up the management ladder.
If the Supreme Court sides with
Wal-Mart, it could have a devastating
impact on the use of class actions as a
tool to combat discrimination. Plaintiffs argue that it would preclude
“certification of all but the smallest
employment-discrimination cases,
and would require this court to overrule 45 years of civil rights and classaction precedent.”
“Wal-Mart contends that the class
certified in this case is too large to be
manageable,” says Joseph M. Sellers,
who will argue the case for WalMart’s women before the Supreme
Court on March 29. “But the large
size of the class is the direct result of
the broad evidence of discrimination
and the large number of women adversely affected by Wal-Mart’s discriminatory policies and practices.
There is no large-company exception
in the civil rights laws.”
If the class certification is upheld,
the case will proceed to trial—and
we’ll see then how Wal-Mart explains
its policies.
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JUSTINE ANDRONICI is an attorney
at the Centre County Women’s Resource
Center in Pennsylvania and of counsel to
Katz, Marshall & Banks, LLP, a civil
rights law firm in Washington, D.C.,
specializing in employment discrimination,
sexual harassment and women’s rights.
DEBRA KATZ is a partner with Katz,
Marshall & Banks, LLP.
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