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Martha Burk

Martha Burk

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Wal-Mart's Woman Troubles -- Too Big to Be Sued?

Posted: 03/28/11 05:58 PM ET

Seven years ago a judge in California ruled that women suing Wal-Mart for sex discrimination could move forward as a class. That meant the women with various claims wouldn't have to go it alone, each with a separate lawyer and separate expenses. Essentially what the judge said is that the six women who filed the lawsuit can represent a whole group of women who might have similar complaints -- all 1.6 million of them.

Wal-Mart appealed all the way to the Supreme Court. Taking a page from the big bank playbook, the company claims that it is too big to be sued.

The Supreme Court will hear arguments on Tuesday as to whether the class certification stands. If so, Dukes v. Walmart will be the largest class action suit in history. Then if women can prove a "pattern and practice" of discrimination at Wally Mart, back pay and promotions could be due, and the company might have to mend its gender-biased ways. If the Supremes rule against them, it could mean the end to redress for sex discrimination at work.

Well, OK. Gender bias hasn't been proven yet. But look at the numbers: According to walmartclass.com, close to 70% of the employees are women, but less than a third of the managers are female (up from 14.3% when the suit was filed in 2001). The rest are concentrated in the lowest level jobs. Data presented by the plaintiffs showed that 93% of cashier positions were held by women, and they made less than the male cashiers ($13,800 and $14,500 respectively). It doesn't get any better at the higher levels, where the few women who made it to store manager earned average of $89,300, while the guys pulled down $105,700.

Data from the past couple of years are not available -- if Walmart has corrected the problem, it doesn't want the world to know about it. And even if 100% of the wage discrimination has gone away (and cows can do cartwheels), it won't erase the damage to the women with short paychecks over several past decades.

One of the women in the suit, a single mother working as an assistant manager, was told, according to walmartclass.com, that a male in the same position making $10,000 more a year was paid more because he had "a wife and kids to support." When she protested, she was asked to submit a personal household budget -- and got a $40 a week raise. Looks like a duck to me.

Most people don't know that the majority of the working poor, and Wal-Mart is responsible for a bunch of them, are adult women. They're also mostly white (58%) and mostly high school educated or higher (77%).

Wal-Mart is ranked second in the Fortune 500, and is the nation's largest non-government employer. Members of the Walton family hold four of the top ten positions on the Forbes list of the 400 richest Americans, with assets of over $80 billion. If they gave up just a measly nickel on the dollar, they could raise the wages of their approximately 869,000 female workers by over $2.20 per hour -- enough to lift many of those lowest paid women above the poverty line -- and just incidentally keep the company out of the courthouse.

Of course Wal-Mart is entitled to a fair profit, as are all businesses. But the key word is fair. If corporations are entitled to the most profit they can possibly make, we should go ahead and abolish the minimum wage and repeal our employment discrimination laws, or maybe just go back to slavery and forget about paying workers altogether.

In granting the female employees the right to stand together against the largest company in the nation, the lower court has took a small step for womankind. Let's hope the Roberts Corporate Court doesn't knock the feet out from under those same women, and gut over 40 years of precedent in the process.