Jami FloydBack to OpinionJami Floyd

Justice merely delayed for women of Wal-Mart

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.

 

Comments

  • Gracemperez

    I HATE Wal-Mart and could list a huge number of reason not to shop there.  However, I still shop there because the one and only reason to shop there out weighs them all.  They’re cheap.  The fact is when I have to buy 3 pairs of shoes for my kids for school and I only have $35 the only place I CAN go is Wal-Mart.  I hate every minute I’m there and I hate how I have compromised my principles, but I have no choice.  The babies need new pairs of shoes.

  • Tracey Nichols

    I am broke and yet will not shop there or compromise my stand against them. If I had little children I think I would have too shop there. SUPPORT THE WOMEN AND BOYCOTT IF YOU CAN!!! They descriminate across the board. They deserve to suffer for that hands down!!

  • Loosetalk

    Do what I’ve done–discover consignment and thrift shops. Save more money and feel good about not shopping at Wal-mart.  :-)

  • Amanda M Dow

    Payless?

  • Karl

    PLOT THE SALARY DATA!  Gnuplot is free and runs on every computer.  If the lawyers didn’t get the salary of every Wal Mart employee in discovery, it was bad lawyering.  Plot the data.  It will show the truth.   

  • whatever

    Its the only store in town unless I want to drive an hour.  Fact is, in spite of what they’re saying most women won’t pursue the lawsuits individually for two reasons. 

    1.  They need a job and can’t afford to be more or less blacklisted
    and 
    2.  They can’t afford to file suit.  They don’t make enough to pursue the lawsuit for 10 years or more only to lose in the end. 

  • Bklyn38

    Most small claims courts handle claims of individuals in night sessions. No lawyer needed for the individual plaintiff, but Walmart will need to pay lawyers or settle

  • whatever

    In my state, the small claims court limit is $3,000.  You can’t afford to lose your job and more or less become the modern equivalent of blacklisted in a fight over $3,000.  Only stupid women in my state would sue them.  The Supreme Court decision basically made Wal Mart lawsuit proof. 

  • Jbrennan

    Women are paid less for comparable jobs? Who says whats comparable?
    The guy unloading trucks and the woman jewelry saleswoman? says who?
    The woman being paid less? If they want the same pay get the same job.

  • Anonymous

    I appreciate the acknowledment that this Supreme Court is not “little guy” friendly but VERY friendly to Corporations and Money who just happen to be Point 1% of the population.

    How this Supreme Court can be stacked with “Corporate Lawyers” as appears to be the case. You know, the Lawyers who are in firms representing Corporations against average Americans and the Government (We the People).

    The shift of workers, reclassifed from Hourly overtime non-exempt to Exempt in order to NOT pay overtime.

    The destruction of Unions, bargaining rights, and the rights of average Americans to have a decent wage that in the past 30 years has not grown with 20% more working hours.

    The Shift of wealth to the .1% and 1% with schemes of the 1990′s of “Downsizing, Rightsizing” which was a ploy to put an older business in harms way, then taking over the business by a few with money from Wall Street and $Trillions in Defined Benefit Pensions transferred as “Vapor Profit” for the Corporations who implemented that scheme that resulted in 100,000 Defined Benefit Pensions to disappear. Replaced with a 401K defined Contribution where today, the average 65 year old with a DC plan and no DB plan has $55,000 to supplement his/her Social Security. Lots of babyboomers will die and never be able to stop working, and if disabled will die in poverty. 

    Oh the Fortune 500 made huge profits in the 90′s without revenue growth from those stolen DB plans, old assets, and the 50 years of reduced wages of the employees into those DB plans made it possible and no one was there to represent the employees.

    CEO’s that make 400 times entry level employee wages, up from 40 times of every other CEO anywhere,

    So then came the “Go after the largest asset the Average American has”, Home Equity with Fraud and schemes like derivatives, sub-primes, CDO’s, and CDS’s that still, are not fixed.

    And the SEC, the CFTC, FBI, the cops on the beat did nothing for a decade.

    Now, Wall Street and the Wealthy are looking at teachers Defined Benefit plans along with government employees to do the same, as they did to the 100,000 Corporations the babyboomers worked for in the 1990′s by busting up the Unions to prevent any employee negotiation.

    The lowering of the Marginal Tax rate which directly benefit the point 1%, having two unfunded wars, reducing Capital Gains taxes for the point 1%, the loopholes for GE and Newscorp who make $Billions in Profit but pay no taxes and the Corporate Tax rates that in reality, are one half of the 35%.

    The constant, 24/7 raving of Limbaugh, Hannity, Beck and Fox spewing the poison and mis-information thanks to the Reagan discontinue of the Fairness Doctrine. All for the benefit of the Point 1%.

    Having no “cops on the beat” to smell out rats like Bernie Madoff, look the other way, get the government (police) off my back, and let the market decide in a free fall – the crooks get rich with impunity.

    Giving the Corporations, who are holding on to $Trillions, not hiring, outsourcing and building plants in every corner of the world except the United States will be able to spend as much as they want in our political elections to defeat anyone that does not “go with the Corporate flow”.

    Are these guys, the Supreme Court, trying to screw this country and everything we worked so hard for, a large middle class, discretionary income, little debt, free education, control of our borders, deport Illegal Aliens, and manage our country for the benefit of all, not just the Point 1%.

    In the meantime, our kids, not the Point 1% kids, go off to war to protect the interests of the point 1% around the world. Our kids die, their kids figure out ways to skim money via computers and schemes from the 99% from the Ivy League schools with teachers like Larry Summers.

    I think when the American People realize how manipulated they have been, and realize that they have to get off their rear ends, quit escaping into DVD’s or TV, get mad enough to do something, the streets of Cairo will look like an Easter Parade.

    Thanks for your Programming and confirming our Supreme Court is NOT for the American People, just Corporations and the Elite point 1%.

    A Sad day for America, but just a continuation of the last 20 years.

    I wish the ladies well and hope they will not quit.

  • Touchstone

    Need to Know…the pbs program in Chicago has been taken off our local station…..its been replaced by a sleazy import show about confidence artists. what is going on here? Need to Know replaced the superb Bill Moyers Journal…one of the few programs reknown for the excellence of its investigative reporting.Wal-Mart has taken over a frightening influenece over the media and the politicians in DC.

  • J7t14r

    I don’t understand how the Supreme Court could have unanimously decided that women workers are not a class. Are all the Justices now pro-corporation conservatives?

  • Anonymous

    Newsflash:  Women do unload trucks, unload pallets of 40 pound birdseed, 50 pound bags of dog food, etc and straighten up the messes the “men” leave behind. So what do you do?