Court Gives Women the Right to Sue Wal-Mart for Gender Discrimination

by Cara on April 27, 2010

in class and economics, courts, disability, discrimination, gender, patriarchy, sexism, work

FILE PHOTO: Largest Civil Suit Filed Against Wal-Mart. Photo shows a Wal-Mart aisle, with a female employee pushing a cart away from the camera. She wears a blue Wal-Mart vest, the back of which reads 'How May I Help You?'

Yesterday, a federal appeals court ruled that a class action lawsuit against Wal-Mart, for alleged discrimination against female employees, can go forward. For almost ten years, the company has attempted to block the lawsuit, and is still unprepared to give up:

A federal appeals court ruled Monday that thousands of female Wal-Mart employees can sue the world’s largest retailer as a single class over allegations that it paid them less than men and gave them fewer promotions.

The 6 to 5 decision by the U.S. Court of Appeals for the 9th Circuit in San Francisco is the latest step in a nearly decade-long battle to bring the case to trial. Wal-Mart said that it now plans to request that the Supreme Court review the ruling. But attorneys for the women said they hope the case will go to trial by the end of the year.

The appeals court did not rule on whether discrimination occurred at Wal-Mart but on whether female employees could sue the company collectively. The original class covered women who have worked at Wal-Mart’s sprawling fleet of about 3,400 stores since 1998, initially estimated to number about 1.6 million, which would have made it the nation’s largest sex discrimination case.

But the appeals court decided to carve out female workers who left the company before the suit was filed in 2001. Sellers estimates that the class still encompasses more than 1 million women, but Wal-Mart said the number has been whittled to roughly 500,000. The circuit court also referred to a lower court the issue of whether employees can seek back pay and punitive damages.

It seems that Wal-Mart essentially believes it has some kind of god given right to be an enormous corporation that controls a ridiculous portion of the U.S. economy, while not having to answer to ethical and legal issues at the same scale at which their company exists. They instead believe they have the right and privilege to individually fight claims — a privilege that would work very hard against individual employees, who do not have the resources to bring their own cases, and who may have a much more difficult time proving their allegations on a one-on-one, David vs. Goliath basis. This stance is unsurprising, but it is despicable.

The specific allegations against the corporation, which may or may not be heard by a court soon, primarily involve discrimination against female employees concerning both pay and promotions, as compared to their male counterparts.

The original case named six plaintiffs led by Betty Dukes, a Wal-Mart greeter in California, who accused the company of paying them less than their male counterparts, despite having higher performance ratings and more seniority. They also claimed that they received fewer promotions and had to wait longer for them. The women are represented by the nonprofit Impact Fund and several other groups.

It seems that while the case does not specify discrimination on the basis of disbability, some of the allegations certainly indicate that the discrimination at hand did have ableist undertones:

According to plaintiffs, female workers were routinely steered away from management positions and into such jobs as cashiers, with little chance for promotion. Court documents cite one woman who was told she was not qualified to manage because she could not stack 50-pound bags of dog food.

While the woman seems to believe that her promotion was denied on the basis of her physical strength as a woman, there are of course lots of people, both men and women, who cannot lift 50lb bags for various reasons. Making it a requirement of a managerial position, when stacking 50lb bags is presumably a very small part of the role, is thus also discriminatory on the basis of disability.

This is interesting, as Wal-Mart of course seems to be a company that prides itself on its diversity, regularly placing people with disabilities and elderly people in highly visible employment positions within their stores. Meanwhile, just as they do with their other employees, they pay those visible, marginalized workers very little, ensure that they work less than full-time, don’t offer affordable health benefits, actively bully would-be union organizers, and create a cycle of poverty that ensures their employees have to put all of their earnings back into Wal-Mart’s stores. Visibility is potentially a great thing — it’s an incredibly insidious danger, though, when it’s used to mask irresponsible, oppressive policies.

Wal-Mart also uses its superficial successes regarding diversity as a defense against allegations of wider, better hidden discriminatory policies:

Wal-Mart said it has made significant strides to support female employees and noted that it was named one of the 10 best companies to work for by Pink Magazine, which is aimed at women in business.

I don’t know very much about Pink Magazine, and have never read it. But a brief glance at their about page indicates that it’s a publication aimed at middle and upper class women who work outside the home, not working class women who make a vast majority of Wal-Mart’s female employees. Presumably, their choice to name Wal-Mart on their list was intended as an indication to their readers that managerial and office positions within the company are a good option, and didn’t care about the backs of working-class women that this advice stood upon.

Because as mentioned above, Wal-Mart’s business practices, and the effects they have on individual workers and communities, has been extremely well documented. Countless articles, books, and documentaries cover the subject. Wal-Mart doesn’t just put local stores out of business or cause pollution. They also pay their workers near poverty wages, fail to offer health insurance that their employees can actually afford considering their wages, and leave these workers so broke that they are regularly eligible for public assistance. Their wages may be somewhat inline with industry standards, but they’re also unacceptable when Wal-Mart is the largest retailer in the entire world — and a retailer that is perfectly willing to spend mind-boggling sums of money and enormous effort busting unions, often illegally. Meanwhile, shoppers — including their own employees — are locked into shopping there, due to the lack of local competition and low incomes that create the absolute need to stretch every dollar.

Even assuming that the women represented by this lawsuit win, it’s not going to shut Wal-Mart down, or even likely result in a great revision of practices. But one can hope that it will have a small impact. And its about time that Wal-Mart paid out to its employees at least part of what they’re owed.

Dissenting judges expressed worry that this ruling will open the door to many more Title VII class action lawsuits against national and international companies. Personally, I’m just bemused that they say that as though holding the rich and powerful responsible for their discrimination against the vulnerable and oppressed is a bad and scary thing.

UPDATE: This Newsy video has more, including some interesting factoids and speculation about the chances of the ruling being overturned.



A transcript of the video is available here.

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{ 4 comments }

1 Katlego Matsila April 27, 2010 at 8:01 pm

This is all of Judge Kozinski’s Dissension:
“Maybe there’d be no difference between 500 employees
and 500,000 employees if they all had similar jobs, worked at
the same half-billion square foot store and were supervised by
the same managers. But the half-million members of the
majority’s approved class held a multitude of jobs, at different
levels of Wal-Mart’s hierarchy, for variable lengths of time,
in 3,400 stores, sprinkled across 50 states, with a kaleidoscope
of supervisors (male and female), subject to a variety of
regional policies that all differed depending on each class
member’s job, location and period of employment. Some
thrived while others did poorly. They have little in common
but their sex and this lawsuit. ”

This is not even legal reasoning. This is the rhetoric of division and conquest.

2 Kristen J. April 27, 2010 at 8:14 pm

“Dissenting judges expressed worry that this ruling will open the door to many more Title VII class action lawsuits against national and international companies.”

Chalk it up to a federal bench shaped by republicans and, well, laziness.

3 Kelly H April 27, 2010 at 9:25 pm

That’s way too close a vote for my comfort.

4 Astrid April 29, 2010 at 4:14 am

Finally, a company that prides itself on its surface “diversity” may be held accountable. I am more annoyed by this because Wal-mart claisms to be so inclusive. If you discriminate, at least don’t try to hide behind some token disabled worker.

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