At Last, the Sex Discrimination Lawsuit Against Wal-Mart Has Come Along

Tomorrow, the Supreme Court of the United States will conduct a “limited review” of the Ninth Circuit’s order upholding class certification in what will be (if all goes well tomorrow) the biggest f-cking class action lawsuit of all time: Dukes v. Wal-MartFrom The Impact Fund:

Four lower court rulings over the past ten years of litigation have agreed that plaintiffs have presented significant evidence of company-wide pay and promotion discrimination, that Wal-Mart has lagged far behind its competitors in its promotion of women, and that Wal-Mart has failed to address gender discrimination against its female employees despite being well aware of its prevalence.

If the Supreme Court sides with the defendants, aka Wal-Mart, it could bring “a virtual end to employment discrimination class actions filed under Title VII of the Civil Rights Act of 1964.” So it’s kinda important that we win this thing.

+

Do the Women of Wal-Mart Constitute a Class?

some of the women suing wal-mart

Well, firstly — you might be wondering — what is a class action lawsuit? It’s basically when heaps of plantiffs, all making basically the same claim, collectively bring their claim to court or file a lawsuit. This particular lawsuit was initially filed in June 2001 by six current/former Wal-Mart/Sam’s Club employees, including  some who alleged female employees were discriminated against when making decisions about making promotions, job assignments, training opportunities and pay decisions:

Generally stated, plaintiffs allege that women employed in WalMart stores (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer promotions to in-store management positions than do men, and those who are promoted must wait longer than their male counterparts to advance.

Wal-Mart has spent the last ten years staving off this lawsuit by arguing that these million or so women represented by the six do not constitute a “class.”

In other words — Wal-Mart’s not saying these allegations aren’t true, they’re just saying it’s not really fair to lump all these cases together because “the numbers alone make this case impossible.”:

Plaintiffs’ entire case is premised on the discretion afforded individual managers to make pay and promotion decisions, yet they concede that this “subjectivity” is exercised within a company-wide framework of objective standards that prohibit discrimination and require equal employment opportunities.   Discriminatory decisions made by individual managers within such an objectively nondiscriminatory system are, by definition, aberrational and unauthorized rather than “common” or “typical.”

In 2004, Judge Martin J. Jenkins of the district court sided with the plantiffs, and subsequently the Ninth Circuit (that’s right, our favorite Judge Vaughn Walker) also sided with the women of Wal-Mart. So now Wal-Mart is taking this ish to the Supreme Court, which The New York Times says is a good idea for Wal-Mart:

It is probably a smart legal move, given the court’s clear tendency to rule in favor of corporations, particularly when big classes or discrimination claims are involved. We hope the court resists the temptation to toss out the case, which would force women to file lawsuits one by one. Wal-Mart’s employment practices deserve a full hearing.

+

Who is a Part of this “Class”?

In 2004, the Court declared “all women who worked at Wal-Mart retail stores in the U.S at any time since December 26, 1998” a member of the “class.” Jenkins found that statistics on Wal-Mart, the largest private employer in the world,  showed female Wal-Mart workers were paid less than men in every region and most job categories with a salary gap widening over time.

If you’re a woman who works at Wal-Mart, then, you’re a part of this class being represented by these six women. If we win, lady Wal-Mart employees will have a chance to exclude themselves from the class and later, if they choose to be included, will have a chance to file a claim to share in the settlement.

The payout would be in the neighborhood of a billion dollars — which honestly isn’t much when you consider that Wal-Mart makes $405 billion in annual sales and operates more than 8,400 stores.

The Waltons personal assets qualify as the richest private wealth accumulation ever in the whole world, running over $8 billion dollars. Wal-Mart is considered one of the most profitable companies in America. The average yearly earnings for a Wal-Mart employee is $13,861. The cost of the Waltons’ Jet fleet totals over $125,350,000.

The Evidence

The evidence used in the case will include statistics as well as the testimonies of these 115 unique declarants. I’ve read like 50 of them with my mouth agape. You must read a few or at least read summaries of some of the cases here.

These women report dozens of instances each of being passed over for promotions or otherwise hoodwinked out of positions they’d expressed interest in and were qualified for. There’s little things too; like men getting requested time off or store transfers while women were denied those same requests. Some women report working 60 hours a week without overtime and still making less than their male counterparts. Eventually many of these women realize that it’s just never going to happen, and they leave Wal-Mart, many of these women get fired for speaking up, and many stay at Wal-Mart because they don’t have any other options.

Each singular incident of gender discrimination — and each brief contains at least 10 or 30 — of gender discrimination — would be enough to make a woman want to quit her job and enough to send a Smith College Women’s Studies undergrad into epileptic fits. Women moved their families around the country in a wild goose chase. Women devoted 20 or 30 years to a company that basically cockblocked them at every turn. It’s like the Biggest Cockblock of All Time.

Even more shocking are the reports of sexual harassment in these reports which, when reported, were categorically dismissed, ignored, or, often ridiculed.

+ [District Manager Salby] was very abusive in his language, and called me a “worthless broad.”

+ [Mr. Miller] forced his hand down the front of my shirt  and grabbed my  left breast. I was 17 years old at the time.

+ The district manager would sometimes hold the lunch meeting at Hooter’s restaurant… during the meeting, I was forced to listen to lots of discussion among the male managers about the waitresses’ breasts and butts and which sexual experiences they would like to have with them… I knew from attending the annual company meetings that the male managers often went out together to strip clubs after the meeting.  It seemed to me to be an accepted part of the culture.

+ Support Manager Gilbert Hill, my direct supervisor, repeatedly harassed me with comments and questions such as, “when are we going to have sex?”

+ [Co-Manager Ryan] would, frequently, touch me including brushing up against me, touching my butt and massaging my shoulders… at one point he asked that I join him in his hotel room… he pushed me against some pallets and put his hands up the front of my shirt.

+ [Produce Manager Donnie Gateley] was constantly saying things to me like, “Can’t you wear lower cut shirts?” “You have a nice ass.”  “Women are put on this earth for one thing.  My wife isn’t any good at it.  Are you?”

When the lawsuit was filed in 2001, women occupied 14 percent of store manager positions and more than 80 percent of lower-ranking supervisory jobs with hourly raises.

Average Hourly Rates
4 Largest Hourly Jobs, 2001

Total %
Average $/Hour
Job EEs Women Men Women
000101 DEPT HEAD 63010 78.5 11.13 10.62
000201 SALES ASSOC 96539 68.1 8.73 8.27
000469 HD/HM O/N 28408 57.8 9.56 9.29
000501 CASHIER 49261 92.6 8.33 8.05
Total All Hourly 463526 70.6 9.55 9.26

 

Following the 2001 lawsuit filing, the company made a few changes — for example all open positions are now posted electronically, preventing the men in charge from keeping women out of the loop altogether. Directly after the suit was filed, it’s reported that many women were immediately promoted, though subsequent pay raises never came.

 

In my non-expert opinion, it seems like in many Wal-Mart stores, management is just a Boy’s Club. The men want to keep their culture of lunch meetings at Hooters, misogynistic jokes and field trips to strip clubs and they do this by locking women out of the Club.

+

Wal-Mart Has a Proven Track Record of Being an Asshole:

Is this new for Wal-Mart? Hardly. Here’s just one of many lawsuits filed against Wal-Mart, this one from 2007:

The United States Labor Department announced yesterday that Wal-Mart Stores had agreed to pay $33.5 million in back wages plus interest to settle a federal lawsuit that accused the company of violating overtime laws involving 86,680 workers.

Department officials said many of the violations involved failing to pay time-and-a-half premium pay to managers in training, programmers in training and some other salaried, nonmanagerial employees when they worked more than 40 hours a week.

The department also accused Wal-Mart of violating the Fair Labor Standards Act, the federal law that governs overtime, by failing to properly include factors like bonuses and geographical differentials in calculating the base wages to determine the time-and-a-half rate.

A lot of communities, then, have successfully rallied to keep Wal-Mart out of their city. In New York, the Gay and Lesbian Task Force got involved, too:

The task force criticized Wal-Mart for denying employee benefits to same-sex partners and for failing to prohibit discrimination based on gender identity. By comparison, the group said two other chain stores with a strong presence in New York, Costco and Walgreens, did much better.

You can (and should) read the heaps of evidence against Wal-Mart on this website. These offenses include driving down wages in urban areas, costing the taxpayers millions in Medicaid given to uninsured Wal-Mart employees, using illegal surveillance techniques to monitor union activity while refusing to monitor its parking lots, which have become hotspots of violent crime, exploiting its workers abroad, using illegal immigrant labor, destroying small businesses, abusing the environment and violating Clean Water Act policies.

Have you seen Wal-Mart: The High Cost of Low Prices? If not, you must. This section discusses some of the gender and racial discrimination that happened at Wal-Mart:

There’s a rally tomorrow in support of the Women of Wal-Mart, and you should go. You can read more about the case here.

Riese is the 39-year-old Co-Founder and CEO of Autostraddle.com as well as an award-winning writer, blogger, fictionist, copywriter, video-maker and aspiring cyber-performance artist who grew up in Michigan, lost her mind in New York and then headed West. Her work has appeared in nine books including "The Bigger the Better The Tighter The Sweater: 21 Funny Women on Beauty, Body Image & Other Hazards Of Being Female," magazines including Marie Claire and Curve, and all over the web including Nylon, Queerty, Nerve, Bitch, Emily Books and Jezebel. She had a very popular personal blog once upon a time, and then she recapped The L Word, and then she had the idea to make this place, and now here we all are! In 2016, she was nominated for a GLAAD Award for Outstanding Digital Journalism. Follow her on twitter and instagram.

Riese has written 2862 articles for us.

26 Comments

  1. I hope these women win. I have seen this at the Walmart I work at even though the store manager and many other management positions are filled by women when it comes to hourly positions they don’t usually move the women up, you are hard pressed to find a male cashier one of the guys I started with was moved up within a month. There is all of 3 male cashiers including myself and as I am Trans I get the feeling thats why I am kept with the girls. Even customers say to me it’s nice to see a young MAN here normally they are all women.

  2. The average yearly income is $13,861?? Thats gotta be part time right? In Australia, you can get up to $13,000 pa (depending on your rent) just for studying/ looking for work!

    Ladies of Walmart, come to Australia! We have better pay, good healthcare and discrimination against people because of their gender or sexuality is illegal! Yay!!!

  3. thank you for reading my article i really hope this works out, sexual harassment i feel is commonplace, every corporate restaurant i worked at it was part of the game. i guess it was just a thing we dealt with. but i can’t imagine dealing with discriminatory pay and promotions etc on top of that, i’m really curious in how this is going to turn out tomorow

  4. This statistic doesn’t show the amount of hours per week, or years employed at wal-mart based on gender, and is therefore useless. It is a known statistic that men generally work more hours than women and also a main factor as to why men get paid more than women in real life.

    Women want a man who gets paid more than they do, while at the same time, complain they want to make as much as men(for doing less). Enough with the double standards ladies, you’re bound to lose this lawsuit.

  5. The judges are deciding whether or not this counts as a class action lawsuit. Honestly, I have no clue whether it does or not. But I do know Walmart is awful. I mean, I just moved to a smallish city in a Southernish state and there is nothing unique about this place. Literally the only places I have to shop for shit I need or buy food are national chains. It’s downright depressing and I can’t help but think Walmart is a leader in this all, eliminating every small retailer in favor of one massive one-stop shop. And I just found out they took out life insurance on their low-level employees to profit off their deaths. So when one of their employees got sick and couldn’t see a doctor because they earn peanuts and no healthcare, and then died, Walmart made money off it. I think their business practices of getting cheap low quality crap from China, paying their employees shit and refusing to let employees unionize suck. I also think Walmart is a magnet for grossness. Have you seen People Of Walmart? Ugh. Now I have no choice but to shop at one when I need anything. It’s horrible. /endrant

    • I just bought a bike from Walmart in December. When I saw how cheap the parts were, I knew it wasn’t going to last long. Lo & behold, haven’t even used it yet and already it’s going in the repair shop. Never again dude.

  6. Reports reveal the U.S. Supreme Court has decided unanimously in favor of Wal-Mart Stores, Inc. in a sex bias case. The 1.6 million claims against the corporation would have amounted to the biggest sex discrimination suit in U.S. legal history. Female Wal-Mart workers may carry on with personal suits against the business, but a class action pool will not be authorized. Here is the proof: Gender bias suit against Wal-Mart dropped by Supreme Court.

Contribute to the conversation...

Yay! You've decided to leave a comment. That's fantastic. Please keep in mind that comments are moderated by the guidelines laid out in our comment policy. Let's have a personal and meaningful conversation and thanks for stopping by!