March 1, 2011
Private: Wal-Mart v. Dukes: Is Wal-Mart Too Big To Be Held Accountable for Sex Discrimination?
Class Action, Emily J. Martin, National Women's Law Center, Supreme Court, Wal-Mart v. Dukes, women's rights
By Emily J. Martin, Vice President and General Counsel, National Women's Law Center.
Today the National Women's Law Center, together with the American Civil Liberties Union and 32 other organizations, filed its friend-of-the-court brief in Wal-Mart v. Dukes, the Supreme Court case that will determine whether a nationwide class of women workers challenging alleged sex discrimination by Wal-Mart in pay and promotions can proceed. In deciding this case, the Court will likely determine whether the class action will continue to be a viable option for employees to challenge company-wide discrimination by large employers, as the federal class action rules and Title VII (the federal law prohibiting sex discrimination in employment) intended.
The class action rules ask whether the case poses questions common to the members of the class - here, women who work or have worked in Wal-Mart stores across the country. As we set out in our brief, the evidence presented by the plaintiffs in this case demonstrates the common obstacles that women faced in Wal-Mart stores nationwide and highlights why class treatment of their claims of discrimination is both appropriate and important. According to the plaintiffs' evidence, women at Wal-Mart on average earned $5,000 less than men, even though women tended to have higher performance ratings and more seniority. Women also were less likely to be promoted to store manager positions and had to wait significantly longer for promotions than men.
As our new fact sheet highlights, scores of statements from women employed at Wal-Mart brought these statistics to life, describing the gender stereotyping women regularly faced on the job. According to these sworn statements, women were told that men were paid more because they "are working as the heads of their households, while women are just working for the sake of working" and that men were entitled to more pay because they had families to support. Women were told that they should "raise a family and stay in the kitchen" rather than seeking career advancement; one female manager was asked by her supervisor to resign because she "needed to be home raising [her] daughter." Women were denied positions in departments like sporting goods and electronics, because the job was a "man's job."
These sorts of stereotypes were allegedly able to infect pay and promotion decisions at Wal-Mart because of Wal-Mart's company-wide reliance on unchecked subjective decision-making by individual managers. According to plaintiffs, Wal-Mart managers had unguided discretion to set pay within broad ranges. Wal-Mart rarely or never posted job vacancies, granting promotions through a "tap on the shoulder process." While subjective decision-making does not inevitably produce discriminatory results, in the absence of employer practices like monitoring and analyzing workplace disparities, it can open the door to precisely the sort of reliance on stereotypes and discrimination alleged here.
The Supreme Court has long held that when subjective decision-making leads to a discriminatory result, a class of employees can challenge this practice. Indeed, an employer-wide class challenge is the only effective and efficient way to remedy employer-wide discriminatory practices. Wal-Mart has in essence argued to the Supreme Court that it is too large to be held to this long-established legal standard and that it has so many individual stores that a company-wide class can never raise common questions of discrimination. The compelling evidence compiled by the plaintiffs in support of class certification tell a different story. Title VII and the class action rules were meant to empower individual workers in the face of discriminatory corporate practices. The Supreme Court should tell Wal-Mart that under these laws, there is no such thing as "too big to be held accountable."