EDITOR’S NOTE: The U.S. Supreme Court will hear oral arguments March 29 in the biggest sex-discrimination case in history: Dukes v. Wal-Mart. Many pro-worker advocates are worried that the court—which has made a number of extremely conservative rulings in recent years—will decimate the ability of ordinary people to join together in class actions to sue large, well-financed companies that engage in wrongdoing and discriminate against women and minorities.
To understand more about the case, Nina Martin spoke with NAM contributor Irma Herrera, a civil rights attorney who spent almost 15 years as executive director of Equal Rights Advocates, one of the main law firms in the case.
What is this case about?
This is a sex-discrimination case brought by six California women on behalf of female employees at Wal-Mart and Sam’s Club stores across the country. The lead plaintiff, Betty Dukes, started working at the company in 1994 and still works at a Wal-Mart store in the town of Pittsburg, outside San Francisco.
The women’s claims are that: 1) they get paid less than men for doing the same jobs, and 2) the company denies them promotional opportunities even when they are better qualified and have more years of service than male co-workers. One of the things women told us repeatedly is they would train men who started working at Wal-Mart way after they did, and these men would become their supervisors. The women would think, “Wow, how unfair is that.”
Wal-Mart is a company that prides itself on promoting from within. But the women we surveyed reported innumerable obstacles when they tried to move into managerial positions, as well as discrepancies in pay that got wider and wider. At the management trainee level, women earned an average of $22,400, versus $23,200 for men. At the store manager level, it was $89,000 versus $105,000. By the time they reached the regional vice president level, women were earning $279,772, while men were averaging $419,000.
It is neither right nor fair that the nation’s largest employer can get away with widespread discrimination against women, who are the backbone of the business, both as workers and as the primary consumers who shop there.
The issue before the Supreme Court is whether the lawsuit should be allowed to continue as a class action. Why is this issue so important, in the Wal-Mart case and beyond?
In many instances, problems in a workplace are so widespread that it is not feasible for individuals to bring separate lawsuits. Some situations call for systemic change. Wal-Mart is the largest private employer in the world. It is not a good use of court resources for thousands of separate suits to be brought by women who may have been shortchanged $2,000 a year, not to mention that an individual in that situation would never be able to find a lawyer to represent her. The injustice and violation of law would then persist year in and year out.
But when you bring together the interests of many people into one case—a class action— you’re talking about the possibility of real change, because restitution or back pay is so significant.
In order to be certified as a class, the plaintiffs had to show that Wal-Mart’s practices were widespread and affected large numbers of women. To do this, the legal team gathered evidence from many, many women around the U.S. In 2004, the federal court in San Francisco allowed the suit to proceed on behalf of more than 1 million current and former Wal-Mart employees. The Ninth Circuit Court of Appeals has upheld the class certification three times.
This is a case that seems especially important in the current economic climate— people are desperate for work, unions are under siege, and companies have more leverage than ever, especially in nonunion industries or states.
It’s true these are very challenging times for all workers, but especially true of low-wage workers. It used to be that many employees had unions, which collectively could demand fair wages and better treatment of workers. But there are no unions at Wal-Mart, and there, as at most other companies today, employees are on their own.
Wal-Mart started out in a small town in the South, and I think that many of its policies and practices are rooted in its origins. Historically, Wal-Mart’s senior managers embraced the notion that women are not the primary breadwinners. When some of our clients asked why John Doe was paid more than she was, it was not uncommon for her to be told, “Because he has a family to support”—even when the worker was herself the sole breadwinner in her family A number of key people also held the view that women weren’t interested in advancing to management, they were perfectly content to remain in entry-level jobs.
Wal-Mart is an enormously powerful institution. In my hometown of Alice, Texas, for example, many small employers that used to sell office supplies, groceries and housewares don’t exist anymore because of the Wal-Mart effect. Wal-Mart undercuts other businesses because of its sheer size and power in the marketplace. If you’re a small pharmacy in a town of 18,000 people, you cannot compete. That also ends up having an impact on the wages of workers.
Why is this case so important for people of color?
In the current lawsuit, there’s no focus on women of color per se. But this case is important to all low-wage workers, who are disproportionately women of color, because these are the kinds of jobs that women can get without a college education.
Women of color, such as Betty Dukes, often find themselves in a situation when they don’t know if the obstacles they are facing are a result of race or gender. And sometimes it’s because of both.
What is Wal-Mart’s argument against allowing the class action to proceed?
Wal-Mart’s main contention is that women workers across 3,400 stores and 170 different job classifications cannot possibly have enough in common to be treated as a class. But as an interesting aside, Wal-Mart was a lead plaintiff in an antitrust class action brought on behalf of 8 million merchants, suing Visa and MasterCard. In that instance size wasn’t an obstacle to proceeding as a class action.
We don’t know how the Supreme Court will rule. But if the justices say, “No, you can’t have this class as certified below,” it doesn’t means the whole case goes away. The lawyers for the women will continue to fight.
Do you think much has changed in Wal-Mart since the suit was filed in 2001?
One positive effect of litigation is that most defendants immediately begin addressing the problems that are at the root of the lawsuit. Wal-Mart did begin changing some of its practices after the case was filed. It created a promotion system whereby employees can learn about management openings, instead of waiting for a tap on the shoulder from their boss. It created a diversity office and tied compensation for senior managers to meeting diversity goals. It created a global women’s leadership council. And it restructured its overall compensation system, which hopefully has addressed some of the disparities that exist.
We know these things because they are reported in the press. The information collected in the course of the lawsuit itself is now several years old. After the Supreme Court ruling, which is expected in June, the case will go back to the lower courts, there will be more discovery, and we’ll get an accurate picture of how much Wal-Mart has actually changed. Maybe Wal-Mart has gotten better. If so, that’s great. That’s what this lawsuit is all about.
Meanwhile, though, this case has dragged on for nearly 10 years without even getting to the real issues. Despite complaints by big business about too much litigation, not many of these types of cases are actually filed because they take years to resolve, they’re expensive, and the power of the workers, even collectively, is minuscule compared to the power and strength of a big corporation.
Betty Dukes has often said, “We just want our day in court.” The plaintiffs deserve the chance to be heard.
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