Supreme Court set to take up massive Wal-Mart discrimination case
On Tuesday, the Supreme Court will decide whether 1.5 million women can form a 'class' that faced the same injury – in this case, gender-based discrimination by Wal-Mart – or not.
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“The class members – potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country – assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses,” said Theodore Boutrous of Los Angeles in his brief on behalf of Wal-Mart.Skip to next paragraph
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He added that the claims made by the designated class representatives “cannot conceivably be typical of the claims of the strangers they seek to represent.”
The women’s lawyer, Brad Seligman of Berkeley, Calif., countered in his brief that Wal-Mart wants to break the class action down into store-level cases. “This outcome would not only waste judicial resources,” he wrote, “it would deprive plaintiffs of the ability to challenge and seek relief from Wal-Mart’s systematic, company-wide practices.”
Mr. Seligman says that the average individual claim represents an annual wage loss of $1,100. Standing alone such a claim would be too small to pursue, he said in the brief.
Wal-Mart is the nation’s largest private employer, with 41 regions, 400 districts, 3,400 stores, and more than a million employees. Each store employs from 80 to 500 workers. Hourly employees work in 53 departments and 170 job classifications. The company had sales of $405 billion last year and net income of $14 billion.
At its core, the class action suit accuses Wal-Mart’s top management of fostering an old-boy network and a corporate culture infused with gender stereotyping. This culture existed company-wide and was evident in promotion and pay decisions made at the regional and store level, Seligman says. The result was that female workers companywide were treated as second-class employees, according to Seligman.
Female employees, on average, were better performers and more experienced than male workers, yet their pay at Wal-Mart “lags far behind” male employees in every major job, Seligman says.
“Women at Wal-Mart also face a classic glass ceiling,” he wrote. “While women comprise over 80 percent of hourly supervisors, they hold only one-third of store management jobs and their ranks steadily diminish at each successive step in the management hierarchy.”
Wal-Mart responds that its company-wide policies forbid discrimination and promote diversity. The plaintiffs’ statistical analysis does not measure whether store-level employment decisions were, in fact, discriminatory, the company’s lawyers say.
From 1995 to 2001, they say, women throughout the US were paid 77 percent of what men were paid. In comparison, the plaintiff’s statistics show Wal-Mart paid women 85 to 95 percent of men’s salaries during that same period, they say.
They say that at the retail store level, women comprised two-thirds of all managers and were two-thirds of all employees.
Wal-Mart’s lawyers say the plaintiffs’ case is built on a deceptive statistical analysis and anecdotes of “a smattering of isolated incidents dating back to the 1980s.”
They say the plaintiffs are unable to prove that Wal-Mart maintained a company-wide policy disfavoring women and that the company’s managers engaged in intentional acts of discrimination.