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Oral Arguments Kick Off As Women Take On Wal-Mart At Supreme Court

Olga Khazan |
March 29, 2011 | 7:29 p.m. PDT

Senior Editor


From Flickr user James Moore
From Flickr user James Moore
The Supreme Court today took on the largest employment discrimination lawsuit in U.S. history, in which current and former female employees of Wal-Mart are suing the retail giant under allegations that discriminatory practices and sexist attitudes prevent women from reaching managerial status.

Two of the justices, Anthony Kennedy and Antonin Scalia, reacted somewhat incredulously to the discrimination claims, but an even greater challenge looms for the plaintiffs in the landmark case. Aside from the fact that the discrimination is hard to generalize across the store's 3,400 managers, the Court is also struggling with whether the case, which involves 1.5 million female employees, should qualify as a class action suit in the first place.

"It has been described as the battle of Berkeley versus Bentonville, in which crusading liberal lawyers take on the conservative, male-dominated culture of the Arkansas-based retail giant," wrote the LA Times in a recent article. 

It all started in 2001, when Betty Dukes sued Wal-Mart for sex discrimination on behalf of every woman who worked for the company since 1998. The Court now questions whether it's legally correct for all 1.5 million women to sue as a group.

"According to the plaintiffs, a common culture of sexism led to a pattern and practice of discrimination against women working at Wal-Mart stores nationwide. In their complaint they claim that, at the time the suit was filed, almost three-fourths of Wal-Mart's hourly wage sales employees were women; by contrast, only about one-third of its managers were," writes Richard Thompson Ford in Slate. They also say they earn $1.16 less per hour than their male counterparts, despite getting higher performance ratings.

NPR's Nina Totenberg reports that Wal-Mart denies those claims, saying the company's pay and promotion policies were not tied to gender.

"Wal-Mart, however, hotly disputes those statistics, contending that there is no pay difference between men and women at 90 percent of its stores. And the company points to what it repeatedly calls its 'strong policy' against discrimination." 

Furthermore, "Because Wal-Mart gives managers at the store level almost complete discretion to make personnel decisions, there's nothing that connects the decisions of one Wal-Mart manager to those of another," Thompson said.

Today, Kennedy and Scalia agreed with that assessment:

"Your complaint faces in two directions," opined Kennedy. "No. 1, you said this is a culture where ... the headquarters knows everything that's going on. Then in the next breath, you say ... these supervisors have too much discretion. It seems to me there's an inconsistency there."

Scalia chimed in: "I'm getting whipsawed here."

The case is further complicated by the enormous amount of backpay that would be due if the plaintiffs win, which some estimate could cost the company billions of dollars.

What's more, not every female Wal-Mart employee agrees with Dukes' argument that Wal-Mart's labor practices are unfair. Dukes and another Wal-Mart employee giving interviews outside the Supreme Court today provided dramatically different portrayals of Wal-Mart's corporate culture, Arkansas News reports:  

"Gisel Ruiz, the executive vice president for human resources at Wal-Mart, said the company had strong policies against gender discrimination.

Being a woman did not hamper her rise at Wal-Mart, from a store management trainee in California to an executive at company headquarters in Bentonville, Ark., she said.

Not so for Betty Dukes, who was hired as a cashier at another California Wal-Mart in 1994. Dukes claimed that because she is a woman she was paid less and denied promotions that went instead to less qualified men.

'It happened not just in my store but, I believe, across the country,' Dukes said."

Meanwhile, at the Huffington Post, Al Norman argues that the case exemplifies the need for unions in large corporations like Wal-Mart:

"With collective bargaining in place, these 1.5 million 'associates' would have been able to tell their local managers that the sexual pay and promotion discrimination had to end. It's the only way to balance out the enormous power managers clearly have over the workers who were forced to sue them to get their attention."

In the spirit of gender equality, the Christian Science Monitor has an interesting piece on women in the workplace. Some highlights: 


  • "Last year a female worker typically earned 81 cents for every $1 earned by a male counterpart, according to the US Bureau of Labor Statistics (BLS).
  • Among married-couple families in which the wife had earnings from work, 33 percent of the wives earned more than their husbands in 2006, the BLS reported in 2009.
  • Women held 36.5 percent of all managerial positions, including mid-level and senior positions, in 2009, according to the US Equal Employment Opportunity Commission (EEOC). That number is up from about 34 percent in 2000."


The Supreme Court is scheduled to reach a decision in the summer.




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