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Fatima Goss Graves

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What's at Stake for Women in Wal-Mart v. Dukes

Posted: 03/24/11 02:31 PM ET

Remembering Women's History Month and the Triangle Shirtwaist Fire, New Deal 2.0 tells the surprising story of how women became citizens -- and how their economic lives have evolved along with their rights. Fatima Goss Graves shines a light on how the wage gap undermines our meritocracy ideals, and why the class action suit against Wal-Mart must go forward.

No matter how available wage data is sliced and diced, a single truth remains: a wage gap exists between male and female workers. On average, full-time female workers make 23 percent less than male full-time workers. And for women of color, the gap in wages is even larger. African American women and Hispanic women working full-time make far less, on average -- 62 percent and 53 percent respectively -- compared to white, non-Hispanic men.

There is a gap in wages in every part of the country, with women in Wyoming and Louisiana making just 66 percent of male earnings. Even in the District of Columbia, where the wage gap is the smallest, women make 88 percent of male earnings. And although the Department of Labor has documented a gap in wages in every field, sales occupations are particularly behind the times. Women working full-time in sales occupations earned only 64 percent of their male counterparts' earnings in 2010 -- the highest of any occupation. In fact, the last time the overall wage gap was so large was 1981, when women across all occupations earned just 64.4 percent of men's earnings.

This gap in wages is not merely the result of women's "choices" in career or family, as study after study has demonstrated. Even when researchers have controlled for demographic differences between male and female employees, such as worker qualifications, experience, occupation type, and industry, a persistent gap in wages remains. To name results from just a few recent studies, the gap in wages between male and female physicians has only increased over the past decade, even after controlling for medical specialty, hours and practice type. And women with MBAs were paid less than men in their first post-MBA job and experienced less salary growth thereafter. These and many more studies, together with the countless pay discrimination cases filed around the country, show that pay disparities remain an entrenched problem.

Set against the backdrop of widespread disparities in pay, there is a tremendous amount at stake in the pay and promotions discrimination class action that will be argued in the Supreme Court on March 29th. In Wal-Mart v. Dukes, the Supreme Court will determine whether a nationwide class of women workers challenging alleged sex discrimination by Wal-Mart in pay and promotions can proceed. According to the plaintiffs' evidence, women at Wal-Mart on average earned $5,000 less than men, even though women tended to have higher performance ratings and more seniority. Women also were less likely to be promoted to store manager positions and had to wait significantly longer for promotions than men. The Court's decision will also effectively determine whether workers can continue to challenge company-wide discrimination by larger employers.

Title VII was intended to eradicate precisely the type of pernicious discrimination that is alleged in this case. Indeed, a company-wide class challenge is the only effective way to remedy company-wide discriminatory practices. With the average wage gap at 77 percent, women and their families are watching closely to see whether the Court's holding will continue to allow the class action vehicle to be a critical tool for employees to challenge pay discrimination. In this economy, the stakes could not be higher.

This post originally appeared on New Deal 2.0.

 
 
 
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02:54 AM on 03/28/2011
In my experience, a good push up bra and a low-cut top can get you as far and as high as salary as any man in your field, especially if the person doing the hiring is a man.

I'm not proposing that women substitute their abilities in whatever job they endeavor in with a suggestive sexuality to gain advancement, only that I've seen it happen multiple times. One girl was even a good friend of mine and was fully aware that her breasts got her the job.

The above analysis is only one of observation, not one that is condoned. It's sad that the above was the bar by which women were judged in some of my previous jobs, but it was. I do know the latter girl was paid commiserate to what was common for the job she was undertaking. This is not meant to contradict the facts stated above.

What it is meant to do is ask who are the people that are paying women less? Are these professional women or do they work jobs that require less education? In my experience, men in power have been willing to flatter good looking women, or suggestive women, by offering them promotions, whether they deserved them or not (once again, the most recent example did deserve it). I just don't understand what kind of person is making the decision to pay all these women less.
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SonyaInTx
Money doesn't buy class.....
12:31 PM on 03/27/2011
The right leaning supreme court will never do anything to hurt the Walton family.....

My bet is that the supreme court won't let the suit go forward.
02:21 PM on 03/25/2011
The Supreme Court's role is to administer justice, not to eliminate the wage gap. The broader question of whether the wage gap stems from discrimination, or instead from different career choices and job performance, is for the legislature to address.

As for Walmart's gender discrimination, everyone agrees, the women who were discriminated against should be able to recover damages. The problem is that only some of Walmart's female employees faced discrimination.

The first issue is whether you can lump together the injured employees with women who were never discriminated against, thus preventing Walmart from offering the defense that many of its female employees suffered no discrimination. It hardly seems fair to hold Walmart accountable for injuries that never happened.

The second issue is whether it is fair to split the damages done to the injured Walmart employees with all the other female employees. Basically, the court plans to hear a hundred or so "test cases," figure out the average damages, and award that amount to each class member. Each woman who suffered major discrimination, and could have sued for a hefty sum, will instead have her damages split among many women who suffered no discrimination at all.

The losers in this class action would be Walmart and, ironically, the female employees who stood to recover the most damages, who would instead recover only a small fraction of what they deserve. The winners would be women who were never discriminated against, who would essentially get a free check in the mail.
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SmileAndActNice
Utilitarianism, the -ism that works.
01:10 AM on 03/26/2011
Of course ... given that the women heavily discriminated against are probably economically vulnerable and would never have been able to mount a suit on their own class action is the only way they'll get any damage as all. So while class action may be less than they *deserve* it'll be more than what they would get without it. So its a win for them.

And only a giant class action suit can force the kind of institutional changes those women need to have a brighter future going forward. Double win.

And if its been systemically discriminating Wallmart deserves to lose so I won't lose any sleep over that.
02:03 AM on 03/26/2011
Class actions targeted at individual branches would be a more narrowly tailored way of dealing with local managers who engaged in discrimination, while still being cost-effective.

Bear in mind, it is local managers who are allegedly discriminating, not Walmart HQ. The complaint only accuses Walmart HQ of failure to adequately supervise those local managers.
DrSnuggles
You label me and I'll label you
11:55 AM on 03/25/2011
There is obviously a gap between men and women in the workplace, no doubt in my mind at all that women are getting a shorter stick. So why do you insist on fudging the numbers to make that stick seem as short as possible? Also, why do you insist it's a stick when its more likely a ceiling?

If you read through these statistics (and factor in time-in-grade and rank) you see that wage discrepancies are actually much smaller; of course any discrepancy is a shame - so why inflate it?

The real shocking thing is the discrepancy of gender and time-in-grade to promotion. As compared with labor-years women are promoted at a lower rate than men. This is the real demon; but it's too hard to deal with since it's not a simple numbers game - so let's make this all about wages.
09:42 AM on 03/25/2011
I've been curious for some time if the pay gap has anything to do with the Man-cession. Have companies let go their higher paid male employees and kept the cheaper labor? The media has been touting how great the Man-cession has been for women, but has it really?
09:03 AM on 03/25/2011
I would agree that on it's face this study is alrming. The scope of the study would be interesting to see,...did it include undocumented workers? did it account for geographic area?. Many single mothers are forced out of major metropolitan areas due to the increased cost of living, and take lower paying positions in suburban areas.

Shortly after we married, my wife discovered she was pregnant. She took the allowable 12mos. off and knowingly returned to work pregnant with our second child. After working 7mos. she took another 12mos. maternity leave before returning to work knowingly pregnant with our third child. This time she thought there were some bad feelings over her two prior "maternity leaves" and when a promotion became available she applied for it, believing that even though she was as qualified as any other candidate she would be overlooked for the position. She was granted the promotion, and 6mos. later she left for her third maternity leave, and never returned.

Although none of this was planned I would presume the employer would be hesitant to invest in women of child bearing years down the road. Do situations like this influence employers?
right wrong or otherwise, I believe to some extent they do.
09:36 AM on 03/25/2011
My husband has managed a female employee who has had 4 children during the coarse of her employment under him. She often has to take last minute days off due to child care issues. She will never be promoted. I have had huge arguments with him about this from time to time. I feel it is not only illegal, but unethical and discriminatory to not promote her due to her pregnancy leaves. She should be promoted based on her work. Why should women be punished for having children by their employers?

He works for a UK based company, too, which is years ahead of benefits for their employees than US companies.
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Miss Peaches
I wanna be a rockstar!
08:19 AM on 03/25/2011
It's almost impossible to prove since wage information is confidential. HR represents the company so they won't blow the whistle on the company. It's disheartening that I have to work twice as hard to get only half of what the average male does. But, we take it b/c we still have to support ourselves. There have been several times I was more qualified than my male counterpart and he earned more than me.
08:05 AM on 03/25/2011
Don't worry. When they get through busting all the unions, taking away benefits, and eliminating career paths in organizations we'll all be making the same wage. It's called the minimum wage and it's the same for men and women everywhere.

Remember, the best 'right to work' situation was slavery. Back in those days, every black person had a job and unemployment was 0%. The only problem is that no one paid them anything and they were subject to constant abuse but they had the vaunted 'right to work' that right wing politicians keep going on about and pay was equal.
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MoreFreedom
08:21 AM on 03/25/2011
The minimum wage has always been, and always will be zero. Slavery and right to work laws are different things. Soon, to pay off the government debts, you will be a slave to government, so they can pay China what they've borrowed. So your choice will be the real minimum wage, or slavery to government.
09:36 AM on 03/25/2011
Yes, you're correct. I forgot to add that right to work laws allow employers to dismiss employees without cause or notice. Owners had to keep their slaves in the South.

Sorry, for the mis-comparison.
09:37 AM on 03/25/2011
Those aren't the only 2 choices. When you think only in black and white, zero sum fashion you are displaying your inability to do critical thinking.
05:27 AM on 03/25/2011
The big lie out there right now is that men and women in the same positions earn roughly the same pay. Sadly, that's a complete fabrication. Thank you for debunking the myth!

There sure is a lot of money in discrimination against women. That must be why it's so popular
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Ben Cohn
05:22 AM on 03/25/2011
"No matter how available wage data is sliced and diced, a single truth remains: a wage gap exists between male and female workers. On average, full-time female workers make 23 percent less than male full-time workers."

This statment exemplifies the exact problem with simply making blanket statements like this...it DOES matter why. Reasons DO matter and statements like this make it seem like they don't.

This is not to say that the gap is not an issue. But unless we come to understand the proper reason for that gap we cannot fashion proper remedies.

For example lets just take that 23 percent figure. Many who see that will figure will look at it and think of the much repeated 'women make 77 cents on the dollar to every man". What they take that to mean is that if boy 1 and girl 1 came out of college exactly equal and got an exactly equal job, girl 1 would make 77 cents for every 1 dollar boy 1 made.

If that were true, if that were the actual reason for the gap it would require one type of solution. But that's not the truth. That's not what the data shows and that's not where the gap comes from. In fact anyone involved in human resources and labor relations would tell you that has been illegal for a long time. The gap exists because over the course of a lifetime women in the same job as a man tend to take more time off and thus get promoted at a lower level. We all know this is because of child-birth...and it is a problem that currently only women bear the burden of that. But to fashion a proper remedy we have to know the proper reason. To claim that reasons do not matter does not make the problem better despite what this author thinks.
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MoreFreedom
08:24 AM on 03/25/2011
You're right Ben. Here's a study on the subject that shows the truth: http://www.cato.org/pubs/pas/pa038.html
DrSnuggles
You label me and I'll label you
11:50 AM on 03/25/2011
I'm about to go and read the study you linked too. But I absolutely guarantee it's just as valuable as the studies that are linked in the above article. You can't just find the study that agrees with your viewpoint and say its the truth.
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SmileAndActNice
Utilitarianism, the -ism that works.
12:57 AM on 03/26/2011
Ben.

http://blogs.hbr.org/research/2010/04/the-pay-gap-and-delusions-of-p.html
-----------
$4,600.

That's how much less women made than men in their first post-MBA jobs, according to research by Nancy Carter and Christine Silva of Catalyst. And it's not because women tend to start at lower positions than men — though they do start at lower positions than men, on average, that's a separate problem. The research controls for job level and industry. What's more, the salary lines aren't parallel; men's salaries start higher, then rise faster. The gap widens over time, even after controlling for factors like having children or differing aspiration levels.

The pay just isn't equal.
-------------
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Ben Cohn
02:45 AM on 03/26/2011
Well I can quote the law to you but it really isn't to hard to find. And your talking about one industry. Ok maybe that's true in that industry that women are not getting hired by as prestigous of firms and thsu overall are not making as much. Notice what you said it accounted for, different starting positions, not different firms at the same position paying different amounts. The fact that women may be getting offers from lower paying firms in that industry may certainly be a problem. But the wage gap in that industry is not because individual firms are paying beginning men more than beginning women.

And that's certainly not the reason for the gap between men and women across all occupations. Which your study on MBA receipents would not be relevant to anyways.
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Roxee
"Feeling" you're right, doesn't "prove" you are.
01:59 AM on 03/25/2011
I worked as an RN. In a rural Australian hospital a few years back. After the normal working day ended, about 5pm, and on the weekends I frequently worked with assistant nurses and what Americans would call LPN.'s. I got paid $28.00 per hour to take full responsibility for a 30 bed ward AND an emergency department. No doctor was on site and at least 10 minutes away. One can bleed to death in 3 minutes. How can a community justify paying someone $28 per hour for that level of responsibility, other than the profession tends to attract women and those women generally have personality traits which make them conflict avoiders. In a capitalist democracy where income is determined by the amount of wealth a person can make for themselves or the company they work for, people who don't generate wealth but contribute to society by caring about or for it's citizens continue to be undervalued - such as teachers and nurses. It's unethical and shameful, and society better hope that women continue to care enough to choose these professions, because if we don't what will society become?
07:15 AM on 03/25/2011
What do you want $100/hr? People have to make money or they close the doors.
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MoreFreedom
08:27 AM on 03/25/2011
"How can a community justify paying someone $28 per hour for that level of responsibi­lity"

It's called supply and demand. Given the supply of people who want the job, they can get a qualified person for that much. You might ask the related question - how can they justify paying so much? Same answer.
CognitoErgoSum
CogitoErgoSum was taken when I signed up.
01:45 AM on 03/25/2011
Part of the wage disparity may be the lingering cultural bias that see women as secondary wage-earners, like we're doing it just for pin money, rather than being equal or sole breadwinners with actual families to support.
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SmileAndActNice
Utilitarianism, the -ism that works.
CognitoErgoSum
CogitoErgoSum was taken when I signed up.
04:13 PM on 03/26/2011
Good one.
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Callyson
I don't respond to haters or paid trolls.
01:18 AM on 03/25/2011
Also, for those who need more convincing:

Women earned less than men in all 20 industries and 25 occupation groups surveyed by the Census Bureau in 2007 — even in fields in which their numbers are overwhelming. Female secretaries, for instance, earn just 83.4% as much as male ones. And those who pick male-dominated fields earn less than men too: female truck drivers, for instance, earn just 76.5% of the weekly pay of their male counterparts. Perhaps the most compelling — and potentially damning — data of all to suggest that gender has an influence comes from a 2008 study in which University of Chicago sociologist Kristen Schilt and NYU economist Matthew Wiswall examined the wage trajectories of people who underwent a sex change. Their results: even when controlling for factors like education, men who transitioned to women earned, on average, 32% less after the surgery. Women who became men, on the other hand, earned 1.5% more.
*And*
Economists and advocates alike speculate that these are the products of slippery factors like discrimination — conscious or not. A 2000 study, for instance, famously found that after symphony orchestras introduced blind auditions, requiring musicians to perform behind a screen, women became more likely to get the gig.
http://www.time.com/time/nation/article/0,8599,1983185,00.html
01:54 AM on 03/25/2011
So why doesn't someone start a company in a labor intensive field? You could beat all the competition because of your lower labor costs.
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Callyson
I don't respond to haters or paid trolls.
12:40 PM on 03/25/2011
So your answer to discrimination is to practice more of it, by exploiting even more labor?
03:13 AM on 03/25/2011
The most compelling evidence comes from what happens to transsexuals? Maybe what we're seeing is prejudice against transsexuals, not against women.
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Callyson
I don't respond to haters or paid trolls.
12:41 PM on 03/25/2011
If you actually read the article you see considerable evidence that what we are seeing is prejudice against women, actually. The data point on those who changed genders is just one of several studies.
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SmileAndActNice
Utilitarianism, the -ism that works.
01:02 AM on 03/26/2011
If that were the case women wouldn't be rewarded financially for turning into Men because that is "transexual" too and thus would be punished like the male-to-female trannies are punished.
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Jennifer Zeares
10:43 PM on 03/24/2011
Love the comments from male users saying, "This is bull." Love the comments from women sounding rational. Hmmm. Now, I'm not "male bashing", but just stating the obvious. This attitude perpetuates the wage gap. If all things are equal, women do earn less. It's a fact. Now, let's fix it!
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MoreFreedom
08:29 AM on 03/25/2011
It's not a fact - http://www.cato.org/pubs/pas/pa038.html
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SmileAndActNice
Utilitarianism, the -ism that works.
01:17 AM on 03/26/2011
Then why were people so terrified by the Paycheck Fairness Act?

All it would have done was collect and publish compensation data such that we could see clearly how A-OK everything is.

Anyone certain enough of their take on this topic should have supported that act cause it would have offered the clear, unbiased, comprehensive, data you need to show everyone you are correct.
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HUFFPOST SUPER USER
Anti-Panoptic
Conscious Grad Student
10:27 PM on 03/24/2011
As John Stuart Mill says: In the world of patriarchy "might makes right"