A bunch of women paddling upstream in a big boat against workplace bias is better than one gal in a kayak. That’s why a class-action gender discrimination lawsuit against one of the biggest corporations in the country is so important.
The Supreme Court decided this week to take up the closely-watched Wal-Mart gender-bias suit, Dukes v Wal-Mart Stores Inc. It’s the biggest class-action discrimination case in history and could rewrite the game book for working women across the country.
The high court won’t be judging whether or not discrimination occurred, but rather whether the cases of seven women can be joined together to form the heart of a class-action lawsuit encompassing what could be as many as 1.5 million female employees at Wal-Mart who may have been denied promotions or raises because of their gender.
Discrimination claims made by the plaintiffs in the case, led by Betty Dukes, and going back nearly a decade, point to alleged far-reaching bias behavior at the nation’s largest retailer. The 9th Circuit Court granted class-action status in 2009. Wal-Mart, the largest private employer in the United States with more than 2 million employees, appealed to the Supreme Court. Wal-Mart is not yet disputing individual claims of bias, but says it’s unfair to allow a class-action suit across so many of its stores in so many different states. They’d prefer to fight such bias claims one worker at a time.
But fighting as a group is the whole point. The one-suit-one-woman approach isn’t enough to change a culture of bias that is endemic throughout Corporate America.
“Class actions are the most effective way to overcome systematic and traditional forms of employment discrimination,” said John Mahoney, an employment attorney for Tully Rinckey in Washington, D.C. And, he added, it would be “ineffective and time consuming to try their cases individually. It will be a strain on the judicial system and drag on for years.”
That may be exactly what Wal-Mart wants. They’ve already won a huge victory by getting this case to the Supreme Court because of how long it will further delay it, possibly until the summer.
And they’ve got allies. Corporate America sees this class-action suit as extortion. That’s basically what the Chamber of Commerce, which filed an amicus brief to the high court earlier this year, called the suit. General Electric, Bank of America and Microsoft are all reportedly supporting Wal-Mart’s effort to thwart the class-action suit.
“The billion-dollar question in the case is, do defendants have a right to present all the available evidence in their defense regardless of whether a case is brought under the guise of a class action,” said Robin Conrad, executive vice president of the National Chamber Litigation Center, the Chamber’s public policy law firm. “The 9th Circuit has opened the door to nothing less than court-sanctioned shakedowns.”
The real shakedown, however, has been the millions of dollars and millions of promotions that have been denied women over the years.
Women still make up less than 20 percent of the corner-office positions in Corporate America and continue to earn less than men for the same work. Last year, women held only 13.5 percent of executive positions at Fortune 500 companies and only 15.2 percent of the corporate board seats, according to Catalyst, a non-profit that researches workplace inclusiveness. According to the Department of Labor, women still make only 77 cents for every dollar men earn. And the statistics are even worse for Hispanic and African American women, who make 63 cents and 70 cents respectively for every dollar a man earns. These statistics have not gotten any better during either boon times or bad times.
The defense used over and over again by pro-business groups is that women make less, and get fewer promotions, because they want flexibility. They are more than willing to sacrifice their careers for the sake of family, so the mantra goes. If women take time off to care for children, or ask to leave early, they are penalized for it.
Well, it’s about time women and men throw that outdated concept on the corporate trash heap, along with the 1950s “Company Man” model that Corporate America is still operating under — a man climbing the corporate ladder with a wife at home taking care of the children. Working men and women both want more flexibility, including part time work, job sharing, or just a few hours when their kids are sick, but they’re not looking for handouts. It’s all about equal pay for equal work.
Recently, the Paycheck Fairness Act — which would have given enforcement teeth to existing laws that have done little to shrink the pay gap between men and women — was struck down in Congress, at a time when women now make up 51 percent of the overall workforce, the first time we outnumber men.
The legislation’s defeat, and this editorial from the Wall Street Journal after it’s demise, show just how far the nation still has to go:
What ‘equal pay’ advocates call the male-female wage gap, to the extent it continues to exist, is mostly an artifact of occupational choices and the composition of the workforce.
Alas, male-dominated editorial boards and corporate boards in this country have yet to realize that the composition of the workforce has already changed and “occupational choices” women, and men, are making today aren’t “artifacts” but the new reality.
Given that women are so drastically outnumbered when it comes to leadership positions in this country, it would be difficult to hear the lone voice of one gal cast overboard into the sea of bias. Women who feel they were discriminated against need a collective voice if they are forced to go up against any large employer. There’s strength in numbers. The management at Wal-Mart, with nearly 9,000 retail locations around the globe and sales of $400 billion, knows that better than any one else.