Wal-Mart suit shows glass ceiling still an issue

"I was layaway manager, getting $7.50 an hour" in Vacaville, Calif., says Patricia Surgeson, one of the plaintiffs in the lawsuit. When the company moved her to a new post in the cashier's office, her replacement made nearly twice that much, she recalled in an interview this week.

She also says Wal-Mart made it hard for her to find out about opportunities for promotion. "They would never post the [open] management position," she says. Eventually, in 2001, she left the company and worked as a manager in a clothing store.

It remains to be seen whether the details of her experience, and those of other plaintiffs, are borne out in a court of law. The Ninth Circuit Court of Appeals, which ruled 2-1 to allow the suit to go forward, said it had no position on those claims, stressing that the decision only affirmed a US district court's ruling to certify Dukes v. Wal-Mart as a class-action suit. Wal-Mart, which says it did not discriminate against its female employees, has several legal options.

But the case hints at the factors – some of them unconscious assumptions by both men and women – that makes a gender gap persist even after years of consciousness-raising and diversity workshops.

Ms. Surgeson says her bosses often assumed she wasn't interested in jobs that might require her, as a young mother, to relocate. They would say "you have a family, you can't do that," she recalls.

Some experts say the pay gap may involve factors other than overt discrimination. But many say it's in companies' interest to devote more top-level leadership to the issue.

"If we're going to be competitive, we can't afford to lose women's talent" by failing to promote them on their merit, says Sharlene Hesse-Biber, a Boston College sociologist and author of "Working Women in America: Split Dreams."

Wal-Mart says it will challenge Tuesday's ruling by asking the Ninth Circuit to rehear the case. "The panel's decision contradicts numerous decisions from the Supreme Court and the Ninth Circuit itself," attorney Theodore Boutrous Jr., Wal-Mart's lead counsel for the appeal, said in a statement. "The plaintiffs' lawyers persuaded the panel to accept a theory that would force employers to make decisions based on statistics, not merit, and would deny employers their basic due process rights."

Critics of the class-action suit also question, among other things, the unprecedented scale of this workplace gender-rights case.

"It's basically extortionist," Robin Conrad, a vice president with the US Chamber of Commerce, told the Associated Press. If it stands, she said, it likely would force Wal-Mart to settle out of court than risk losing at trial.

Most large discrimination cases are settled out of court. Home Depot settled a sex-discrimination class-action suit in 1997 for $104 million. That same year, Publix Super Markets paid $81.5 million for discriminating against female workers.

• Wire services were used in this report.

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