Wal-Mart target of discrimination suit

By Rap Lewis

Nine years after it was filed, the largest employment discrimination suit in U.S. history, affecting more than one million women currently or formerly employed by Wal-Mart, is headed for the Supreme Court.

If the Supreme Court accepts the case, it will decide, not whether discrimination occurred, but whether the women can sue as a class, rather than being compelled to sue as individuals or in small groups. The company argues that employees charging discrimination should sue one at a time.

Brad Seligman, an attorney for the women, challenged Wal-Mart’s position.
“The ruling upholding the class in this case is well within the mainstream that courts at all levels have recognized for decades,” Seligman said.
“Only the size of the case is unusual, and that is a product of Wal-Mart’s size and the breadth of the discrimination we documented. There is no ‘too big to be liable’ exception in civil rights laws.”

In April, the federal Court of Appeals for the Ninth District in San Francisco ruled 6-5 that the suit could proceed as a class action. The company appealed. If the Supreme Court agrees with the appeals court majority, the case could provide judicial grounds for similar class actions in the future.

If the Supreme Court rejects Wal-Mart’s position, the case will revert for trial as a class action before U.S. District Judge Vaughn Walker.

If the pattern of discrimination is established in Judge Walker’s court, Wal-Mart could be confronted with $1 billion or more in damages, Steven Greenhouse reported in The New York Times. The women are seeking damages for every year since 1997.

The suit, Dukes v. Wal-Mart, gets its name from Betty Dukes, a spunky Wal-Mart greeter who experienced years of frustration on the job, culminating in an argument with managers that led to a humiliating demotion and a pay cut. In 2001, Dukes and six other women filed the class action suit that is now before the Supreme Court.
When the lawsuit was filed, Dukes was being paid $8.44 an hour, despite nine years of service. When she began being covered in the media, Wal-Mart raised her pay nearly 50% within a year.

Dukes’ lawsuit alleges that Wal-Mart has violated the 1964 Civil Rights Act, which made it illegal for employers to discriminate on the basis of race, creed or gender. It charges that the company systemically pays women less than their male counterparts and promotes men more rapidly than women.

Experts retained by the plaintiffs said they found such patterns of discrimination at all 46 Wal-Mart regions.

It was not the first time discrimination was an issue. As early as 1995, Wal-Mart itself hired a major law firm to explore its vulnerability to such a lawsuit. The law firm found wide gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores and urged the company to take remedial measures.

The law firm’s findings were similar to those found years later by the plaintiffs’ main expert, Richard Drogin, an emeritus statistics professor at California State University, who examined payroll data from 1996 to 2002.

Drogin found that among hourly workers in 2001, women earned about $1,100 a year less than men. Among salaried workers, he found that women earned $14,500 less than men. He also found that in 2001, 65% of Wal-Mart’s workforce was female, compared with only 33% of its managers.