I covered Wal-Mart for almost all of my eight years as a correspondent at ABC News. That is not surprising when you consider that Wal-Mart is the largest private employer in the world. Lots of stories to be told. I suppose, on some level, it is also not surprising that the largest class action in history would grow out of alleged practices there — just given the sheer number of employees.
Still, the case never stood a chance. That’s what I meant when I said, on WNYC this week, that the Supreme Court hadn’t considered the “merits of the case” — the underlying allegations of sexual discrimination, across the company, at all levels.
“Across the company, at all levels.” Therein lies the problem: A manager in Tuscaloosa is different from a salesperson in San Francisco is different from a buyer in Little Rock. They are all women, but too dissimilar to claim a similar situation, or commonality, and therefore they can’t proceed together legally as a class.
While the underlying merits of the Wal-Mart case are about systematic discrimination against women in all stores across the U.S., the Supreme Court’s unanimous decision Monday was procedural. The ruling went to the narrow question of whether 1.6 million women had a sufficiently common interest to proceed as a class – which a majority ruled they did not. Just too big.
Because the justices agreed unanimously that the Wal-Mart women could not proceed as a class, they never had to address the underlying question: Did Wal-Mart engage in a pattern and practice of discrimination?
But that doesn’t mean the underlying merits are without merit. And it doesn’t mean the public cannot consider these claims when making decisions about whether to shop at Wal-Mart.
Plainly stated, plaintiffs allege that women employed in Wal-Mart 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.
Given the number of women who claimed that this had been their experience, it was hard to conceive of plaintiffs losing, if they ever made it to trial. That is precisely why Wal-Mart made sure they never got there. The company spent the last 10 years staving off the lawsuit by arguing that these million-plus women — represented by the three named plaintiffs — simply do not constitute a “class.”
While the Supreme Court agreed, it is worth noting that Wal-Mart has never said the allegations aren’t true; the company simply argued that the unfairness of lumping all the women together because “the numbers alone make the case impossible” to defend.
In fact, a lower court actually ruled against Wal-Mart, finding in 2004, that women who worked at Wal-Mart retail stores in the U.S. at any time since December 1998 could be considered members of the “class.” Statistics show that female Wal-Mart workers were paid less than men in every region and most job categories, with the salary gap widening over time. The appellate court agreed and that’s when Wal-Mart appealed to the Supreme Court — a smart move, given the high court’s tendency to rule in favor of big business, particularly when big class actions and discrimination claims are involved.
When I interviewed the lead plaintiffs in this case, for the ABC Law and Justice Unit, back in 2001, on the day they filed their massive suit, their attorney Brad Seligman, a well-known advocate for workers and their rights, knew the case would likely end up in the U.S. Supreme Court. So did we.
Our unit covered Wal-Mart as a regular part of our legal beat. Wal-Mart was well known to the justice system, fighting tooth and nail, fiercely defending its cases through aggressive litigation, using obstructive tactics to make litigation difficult for injured victims, failing to participate openly and fairly in the pretrial discovery process, manipulating facts and statistics regarding crime in its stores and parking lots to avoid bad press and liability, and refusing to compensate victims of civil and criminal injury on its premises. Of course, none of us knew it would take 10 years for the women’s case to get to trial, or what the composition of the Supreme Court would be when it did.
Now, in the biggest case any corporation has ever had to defend, the women of Wal-Mart and their lawyers say they will pursue their causes of action against Wal-Mart, despite this significant setback. Precisely because the court never reached the merits there is hope for further and future litigation. Instead of one massive case, the women can proceed store by store, or region by region. I believe they will, and can prevail, not in the Supreme Court, but before trial court juries made up of citizens who will hear the merits of their cases and award damages to any of these woman entitled to just compensation — and justice.