"Some Cupid kills with arrows, some with traps."
--Hero, Much Ado About Nothing
Wal-Mart sent a snarling Valentine's card yesterday to 2 million of its past and present female employees.
For eight years, the retail giant has been trying to shoot arrows through a class action sex discrimination lawsuit that will cost the corporation billions of dollars if settled or tried in court. Yesterday, a federal appeals court in San Francisco gifted Wal-Mart with another opportunity to stick it to their female "associates."
This massive lawsuit, known as Dukes v. Wal-Mart Stores, Inc. goes back to June of 2001. According to Wal-Mart, "the case was brought on behalf of all past and present female employees in all of the company's retail stores and warehouse clubs in the United States." The litigants in this class action suit are as large as the number of people who currently work for the company anywhere in the world--2 million women.
These women charge that Wal-Mart has engaged in a pattern and practice of discriminating against women in promotions, pay, training and job assignments. The women want Wal-Mart to pay them injunctive relief, front pay, back pay, punitive damages, and lawyer's fees.
Wal-Mart's main strategy from the outset has been to bust up the class action status of this complaint, and force the plaintiffs to pursue their case against the retailer one-by-one. This would be financially impossible for most women who ever worked for Wal-Mart. If Wal-Mart can bust the class, they can bust the case. It's just another business decision to keep expenses down.
In June of 2004, a District Court Judge ruled in favor of class action certification for all women employed at any Wal-Mart domestic retail store at any time since Christmas of 1998, who had been, or may be, subjected to the company's pay and management track promotions, policies and practices.
Wal-Mart charged that the 2004 ruling was "incorrect," and for almost four years now, has spent a fortune in legal bills to break up this class of women. In February of 2007, a 3 judge panel of the Court of Appeals issued a decision upholding the district court's certification of the class. Fourteen days after that ruling, Wal-Mart submitted a petition asking that the Appeals ruling be reconsidered by a larger panel of judges. In December of 2007, the 3 judge panel withdrew its opinion of ten month's earlier, and put out a revised opinion. Wal-Mart then had to file a new rehearing request in January of 2008.
Wal-Mart has warned its shareholders that if it was not successful in its appeal of class action certification, "the resulting liability could be material to the company." But because of the uncertainty of class action status, or what would happen if the case was tried on its merits, Wal-Mart simply told shareholders, "the company cannot reasonably estimate the possible loss or range of loss that may arise from the litigation."
A majority of the judges of the Ninth U.S. Circuit Court of Appeals in San Francisco voted yesterday to give Wal-Mart a new hearing in its appeal---this time before an 11-judge panel---instead of 3 judges. A date for that hearing has not been set.
This reprieve does not change the facts. The District Court judge in 2004 found evidence that Wal-Mart had, in fact, paid women less than men all across the country, and promoted men more rapidly than women to management. Betty Dukes, one of the lead plaintiffs, says she was paid just $8.44 per hour during her first nine years working at a variety of positions at Wal-Mart's store in Pittsburg, California, while several men holding similar jobs but less seniority earned $9 per hour. Wal-Mart tried to argue that its stores were all autonomous, like independent businesses, with different management styles that affect the way women are paid and promoted. But the women plaintiffs argued that Wal-Mart stores are "virtually identical in structure and job duties". The judge found that "pay disparities exist in most job categories, that the salary gap widens over time, that women take longer to enter management positions, and that the higher one looks in the organization the lower the percentage of women."
As a result of the 2004 ruling, Wal-Mart said it was examining its employment practices. The company announced a new job classification and pay structure for hourly associates. "This new pay plan was developed with the assistance of third-party consultants and is designed to ensure internal equity and external competitiveness." But the company's actions were too little, too late. In a terse press release after the 2004 class action ruling, Wal-Mart said: "Let's keep in mind that today's ruling has absolutely nothing to do with the merits of the case."
The same can be said for the Court's ruling yesterday. This battle is really over class action status, which will determine if the merits of the case are ever heard.
As we consider this eight year civil rights struggle on a day focused on lovers, it is clear that Wal-Mart's Cupid kills with arrows, traps---and any other means at hand. Betty Dukes and 2 million other Wal-Mart women will eventually find justice---but not on this Valentine's Day.
By delaying justice for their own workers, Wal-Mart's public relations efforts to present itself as The Good Employer just took another arrow to the heart.
Al Norman is the author of "Slam Dunking Wal-Mart: How You Can Stop Superstore Sprawl In Your Hometown." His website is: http://www.sprawl-busters.com
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