Supreme Court quells Walmart class action

US court rules that female employees of the world’s largest retailor cannot proceed with a class action lawsuit.

Female worker at Walmart
Female employees say they faced inappropriate questions during their hiring process, were segregated into low-paying jobs, and were rarely promoted [GALLO/GETTY]

Walmart and its more than 20 corporate supporters, including Bank of America, Microsoft, Intel, FedEx, and General Electric are claiming victory after the US Supreme Court, in a 5-4 ruling, threw out what would have been the largest sex discrimination class action lawsuit in US history.

One June 19, 2001, six current and former employees of Walmart and Sam’s Club, a subsidiary of Walmart, filed a nationwide sex discrimination class action lawsuit charging the world’s largest retailer with relegating women to low paying jobs and systematically denying them advancement opportunities.

The lawsuit has since grown to represent over 1.6 million female former and current employees.

Betty Dukes, the lead plaintiff in the case, said even though the ruling is a blow to all low-income workers in the US, the women of Walmart will persevere. “Ultimately, I believe the truth will come out on the merits of the case,” she said. “We are stronger from this ruling. We will find other avenues. If it takes one woman at a time, we will go forward.”

No proof of discrimination policy

Dukes, a 61-year-old greeter at a Walmart store in Pittsburgh, CA, joined the company in 1994 as a part-time cashier making $5 an hour. She says the company failed to give her more responsibilities, training, and promotions on repeated occasions because she’s a woman. After joining the lawsuit, she found out that two men, who had been hired long after she was, were paid more as greeters. In 2003, after nine years of employment at Walmart, Dukes was earning just $8.44 an hour. 

It’s important to note that the Supreme Court did not rule on the claims of sex and pay discrimination. Writing for the five-member majority, all Republican appointees, Justice Antonin Scalia said that the case cannot move forward as a class action because there is no proof of a companywide discriminatory policy.

Dr Richard Drogin, the plaintiff’s statistical expert, found that across the country, women employees are paid less than men in virtually every job. Dr Drogin’s 2003 wage analysis found that cashiers, the second most common job after sales associates, earned approximately $7.92 per hour and work 29 hours a week.

Most Walmart associates live on poverty-level wages and rarely have benefits, according to Walmart Watch, a group that holds the company accountable for its impact on communities. Walmart’s average sales associate makes $8.81 an hour, according to IBISWorld, an independent market research group. That’s $15,576 a year, based on Walmart’s full-time status of 34 hours per week.

Akin Gump, a law firm hired by Walmart in 1995, found that men were five and a half times as likely as women to be promoted into salaried management positions, yet the company ignored advice to take remedial steps and continued its practices.

Gender stereotypes abound

Justice Ruth Bader Ginsburg, writing for the four dissenters, pointed out that women fill 70 per cent of hourly jobs, but make up only 33 per cent of management employees.

She acknowledged that the “plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Walmart’s company culture”.

Those tales, shared by 120 brave women, have been largely ignored in most media coverage about the decision. The lawyers representing the plaintiffs say the evidence of gender stereotypes and women being underpaid and failing to get their fair share of promotions proves that sex discrimination at Walmart is rampant.

When a female employee with five years at Walmart and a Master’s Degree asked her department manager why her pay was less than that of a just-hired 17-year-old boy, the manager said: “You don’t have the right equipment. You aren’t male, so you can’t expect to be paid the same.”

A male department manager told a female employee that male employees will always make more because “God made Adam first, so women would always be second to men”. 

A store manager told Christine Kwapnoski that he gave a male associate a larger raise because he had a “family to support”. Kwapnoski says this was a common refrain from Walmart managers. She was also told that she needed to “doll-up” and “blow the cobwebs” off her make-up.        

A fair fight?     

Kwapnoski, a Walmart employee since 1986, says nothing has changed since she joined the lawsuit in April 2003. “Walmart still treats women like crap. We’re still underpaid. We’re still not getting promoted,” she said. “Just because we can’t move forward as a class, I will still be heard. I’ll just be saying it a little differently. It’ll be my individual voice. We’re not done with Walmart yet.”

This case will have far reaching implications for the future of sex discrimination and class action lawsuits. The court ruled that these women cannot move forward collectively. If they want to sue Wal-Mart moving forward, they will have to do it on an individual basis.

How will women making less than $20,000 a year find the monetary resources and attorneys needed to sue a company that posted $3.43bn in profits last quarter? If Betty Dukes and Christine Kwapnoski hadn’t been part of a class-action lawsuit, there’s no way they would have made it this far. The ideal outcome for Walmart was to force these working-class women to face them alone in court.

“That’s what they consider a fair fight,” said Brad Seligman, co-counsel for the plaintiffs and founder of the Impact Fund, a foundation that handles public interest litigation.

And they got exactly what they wanted.

Wal-Mart and its 20 corporate supporters, including Bank of America, Microsoft, Intel, FedEx, and General Electric (whose CEO Jeffrey Immelt is President Obama’s jobs czar) know that individual lawsuits are less successful than class actions and result in modest relief.

A number of companies, including Goldman Sachs, Costco, Toshiba, Cigna, and Bayer, currently face lawsuits that seek class-action status.

According to the attorneys representing the women of Walmart, class actions have resulted in real change for people who’ve been treated unfairly and subject to discrimination.

Refusal to be silent

“There a long history of class actions promoting structural reform in companies that require job training, monitoring of employment decisions, job postings, oversight of managers, and accountability,” said Noreen Farrell, co-counsel for the plaintiffs and managing attorney at Equal Rights Advocates (ERA), a non-profit that provides advocacy and legal guidance to women and girls.

ERA offers a hotline for women who face sex discrimination, sexual harassment, pregnancy discrimination, and problems with family and medical leave. 

They receive regular calls from women across the country who say they are asked inappropriate questions during their hiring process, segregated into low-paying jobs, and can’t get promoted. Over the past few years, they’ve seen a “big surge” against pregnant workers and immigrants. “We really do have our work cut out for us,” said Farrell.

Arcelia Hurtado, executive director of ERA, says after 10 years of taking on the world’s largest retailer, they’re not giving up. “The women [of Walmart] have been speaking for the rest of us for the last 10 years. Speak up for your rights. We won’t make progress unless people have the courage to stand up and speak out.”

Rose Aguilar is the host of Your Call, a daily call-in radio show on KALW in San Francisco. She’s the author of “Red Highways: A Liberal’s Journey into the Heartland.”

The views expressed in this article are the author’s own and do not necessarily represent Al Jazeera’s editorial policy.