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Dukes v. Wal-Mart and the Importance of Class Action Lawsuits in Addressing Systemic Sex Discrimination in the Workplace

By Jennifer Clark and Ariane Hegewisch

The Supreme Court heard arguments on Tuesday to decide whether the lower courts rightly certified the one million or more women at Wal-Mart as a class. According to Wal-Mart’s own salary data, women earn on average $1,100 per year less than men, differences that cannot be explained by experience or performance, and women are much less likely to get promotions than men.

An unprecedented number of amicus curiae (or ‘friend of the court’) briefs were submitted to the court, from groups as varied as the Chamber of Commerce, the NAACP, and the American Sociological Association, as well as the Institute for Women’s Policy Research. Below is a roundup of resources that break down what is at stake, not just for the million-plus women affected by this specific lawsuit, but for the country’s ability to address systemic employment discrimination.

New Research

Key to the Wal-Mart case is not just whether the class should be certified, but on which basis it should be certified. The lower courts certified the case on the basis of ‘injunctive relief,’ which asks primarily for changes to personnel policies and practices to prevent future discrimination; it does not ask primarily for monetary damages (although the women would still be entitled to get back pay for any discrimination they suffered).  This approach is what Wal-Mart and its proponents take issue with. They argue that if there was class certification, then the certification should be on the basis of monetary damages—a procedure that requires, as it happens, a much higher burden of proof than certification on the basis of injunctive relief. Wal-Mart also claims that class certification is not necessary in the first place, because if there were discrimination anywhere, Wal-Mart reasons, then it could be tackled just as effectively by each woman suing Wal-Mart on her own.

IWPR's new report on sex and race discrimination in the workplace.

Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope, a new report released yesterday from IWPR, finds otherwise. The report reviews injunctive relief in over 500 court-supervised employment discrimination settlements—also known as consent decrees—involving alleged sex and/or race discrimination in employment. The report finds that class action lawsuits are much more likely than other settlements to introduce changes to make a long term and sustained impact on discrimination. For instance, over 70 percent of certified class action settlements, compared to five percent of other settlements, mandate the introduction of objective and transparent criteria for job assignments and promotions. Lack of posting of promotion opportunities, or of criteria for being admitted to the training programs that were essential requirements for promotions, is a key complaint by women at Wal-Mart. More information on employment discrimination consent decrees are available on IWPR’s website.

Selected Amicus Briefs

In support of the Respondents (Betty Dukes, et al.)

  • Institute for Women’s Policy Research reviews social science literature and research and argues that individual employment law suits hardly ever lead to injunctive relief; and class action lawsuits, because of their emphasis on best practice injunctive relief (changes to employment policies and practices) play a significant role in remedying systemic employment discrimination.
  • National Women’s Law Center and the American Civil Liberties Union, et al., filed a brief arguing that, despite the size of the class, sex stereotypes, and discrimination in the workplace bring up issues that are common to the class of 1.5 million women.
  • American Sociological Association, et al., filed a brief that establishes social science research as a rigorous and valid form of analyzing workplace culture and discrimination, and then argues that social science research has found that corporate policies that allow unchecked managerial decisions can lead to biased decision-making.
  • U.S. Women’s Chamber of Commerce, National Partnership for Women and Families, and California Women Lawyers filed a brief that argues class action lawsuits, while rare, have benefited both employees and employers in promoting systemic reforms that comply with the law and work within corporations’ own needs and existing infrastructures.

In Support of the Petitioner (Wal-Mart Stores, Inc)

  • U.S. Chamber of Commerce filed a brief that argues the Ninth Circuit Court of Appeals decision to uphold the class certification of the 1.5 million women misread the scope of Rule 23(b)(2) in certifying class action lawsuits.
  • Society of Human Resource Management filed a brief arguing that personnel decisions made by individual managers against the backdrop of a larger company-wide diversity policy are not inherently discriminatory.

Around the Web

The National Women’s Law Center argues that Wal-Mart is not too big to be held accountable for employment discrimination. At AAUW, Holly Kearl outlines the basics of why the Wal-Mart case matters. On the National Partnership for Women and Families (NPWF) blog, NPWF Director of Workplace Fairness Sarah Crawford stresses the importance of this case in the efforts to achieve fair pay. On Huffington Post, Martha Burk, director of the Corporate Accountability Project at the National Council of Women’s Organizations, provides some numbers on Wal-Mart’s gender bias.

Jennifer Clark is the Development Coordinator at the Institute for Women’s Policy Research.

Ariane Hegewisch is a study director at the Institute for Women’s Policy Research. Her most recent report is Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope.

Wal-Mart in Trouble, Yet Again

The world’s largest private employer is feeling the heat for myriad reasons. All you ever hear about Wal-Mart these days is a plethora of criticisms. From their shortcomings in providing adequate healthcare for employees, to Wal-Mart’s effect on the environment, to the adverse effects on the communities where Wal-Marts open — we’ve heard it all. From a legal perspective, at present there are a slew of lawsuits pertaining to discrimination and violation of wage & labor laws.
Over 50 members of Congress have asked that Wal-Mart disclose information about its wages for Congressional review to assess whether gender biases in wages exist. In September 2006, a class-action suit was filed against Wal-Mart contractors concerning sweatshop conditions at their overseas sites. Aside from Wal-Mart’s practices abroad that allow the retail conglomerate to have such competitive prices, there are plenty of domestic concerns to discuss that are raised on a regular basis. Last week proved no exception. On February 6, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s decision in Dukes v. Wal-Mart, certifying a class action suit against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act.
A case that began with six female Wal-Mart employees in June 2001 has the possibility to become the largest civil rights case in history. The plaintiffs allege that Wal-Mart discriminates against women in wages and promotions. The class, which is the single item in contention, includes all women employed at any Wal-Mart since December 1998, “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” This case covers at least 1.5 million women in approximately 3,400 stores, making this case monumental.
Evidence supporting the plaintiff’s case that women are not getting the same pay for the same work & are getting fewer promotions is convincing. According to Richard Drogin, the statistical analyst hired by the plaintiffs, it takes women an average of 4.38 years from the date of hire to be promoted to assistant manager, while it takes men 2.86 years. The average salary of a female manager is $89,280, compared to $105,682 for male managers. For workers receiving an hourly wage, women make 6.7% less than men in comparable positions. Additionally, Wal-Mart’s total workforce consists of 72% women, yet women hold only 33% of its managerial positions. Ninety-two percent of Wal-Mart’s cashiers are women, but only 14% of store managers are women. These figures are most certainly striking.
The women filing suit against the world’s largest retailer are hoping that the case will go to trial, and so am I. Employers in this nation have gotten away with discrimination in employment for far too long.
- Layla Moughari, IWPR Research Intern

Wal-Mart Loses Round 1

Wal Mart
A Wal-Mart in Bloomington Indiana (Photo by Jason Grote, flickr)

In 2001 a class action lawsuit was filed against Wal-Mart. The suit claims that Wal-Mart instituted a policy of gender bias in salary and hiring practices keeping women out of top managerial positions and paying them less than men working in the same position. The suit claims that these policies affected almost 1.5 million Wal-Mart employees . On Tuesday, February 7, a US District Court of Appeals voted 2-1 that the class action lawsuit could proceed with arguments against Wal-Mart and its alleged unfair wage and promotion practices.
This is a big win for women in the workforce. The latest research on the wage gap from IWPR shows that women still make about $0.77 to every man’s $1.00 for full-time year-round workers. IWPR also found that nationwide a higher proportion of women (35.5 percent) than men (28.9 percent) work in professional and managerial jobs. This statistic makes it even more disappointing that Wal-Mart, the nation’s largest employer, seems to have a problem promoting women to achieve parity in management with men.
Renowned feminists such as Martha Burk have argued for years now that one of the best ways to assert and enforce equality in the workforce could be through class action lawsuits and other court actions. The courts have the authority to force businesses and other organizations to follow laws like the Equal Pay Act of 1963 which were put in place to guide the US toward equality in the workforce. The progression of the case represents another step toward equality for women.
- Elisabeth Crum

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