On December 8, 2010 Time.com reported that a “group of women employees is suing Walmart for discrimination, charging the nation’s biggest retailer with underpaying female workers and denying them equal opportunities for promotion.”  Slate.com describes the genesis of the case: “In 2001, Betty Dukes sued Wal-Mart for sex discrimination in a lawsuit filed on behalf of every woman who worked for the company since 1998–roughly 1.5 million women.”  Dukes alleged several grievances against Wal-Mart.  The central claim was lack of equal pay, even for women with greater seniority and better performance reviews.  Also, Dukes claimed the path to promotion was much more difficult and longer than for men and that women were routinely subjected to sexist language.

Beyond the sworn declarations of 120 women who describe their experience of sex-deiscrimination at Wal-Mart, the plaintiffs argue Wal-Mart’s hierarchal structure as directly contributing to the systematic discrimination.  Wal-Mart gives store managers discretion when making promotions and hiring decisions, using such criteria as “teamwork, ethics, integrity, and the ability to get along with others.”  The plaintiffs contend that it was just such subjective criteria decided by mostly male managers that allowed the system to be vulnerable to common sexism and gender stereotypes. This was, after all, the 1990s.  The claim rests on the idea that mostly male managers with little oversight tend to either consciously or unconsciously apply gender stereotypes when it comes to such nebulous concepts as the “ability to get along with others.”  Unfortunately, as many women continue to know today, long-held sexist attitudes about gender roles continue to influence managers in their decision-making process.

It is just this argument that Wal-Mart claims undermines the very status of the class.  As Slate.com notes, “Because Wal-Mart gives managers at the store store level almost complete discretion make personal decisions, there’s nothing that connects the decisions of one Wal-Mart manager to those of another.”  Thus, even if female employees across the country DID suffer sex discrimination, Wal-Mart claims those events were ultimately unconnected.  And while the company acknowledges that such discrimination might have existed, they want the employees to file the claims independently.

Of course, this is where the importance of  the current Supreme Court battle becomes key.  While the decision before the court is narrow (can all these women constitute a class?), the stakes are enormous: can large groups of injured employees band together together to face the legal might and deep pockets of large corporations like Wal-Mart?

When arguments commenced before the Supreme Court on March 29, it soon became clear the Justices had questions in line with Wal-mart’s claims.  The New York Times reports that Justice Anthony M. Kennedy said he found the issue of manager discretion as a foundation for proving systematic abuse “internally inconsistent.”  Justice Antonin Scalia, one of the most conservative and consistently pro-business members of the court argued “One the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is strong corporate culture that guides all of this.  Well, which is it?”

The chief worry of the court seemed to be the large number of companies that could be liable if this diverse class was certified. However, as many labor rights activists note, class actions were designed in part to hold companies accountable for abuses on a large scale and that these cases should work as a deterrent to prevent future abuses.  So the court must decide who is more important: corporations or American workers?

We will continue to provide updates on this important case and others.  Workers who believe they have experienced workplace discrimination of any kind should contact an expert Washington Labor and Industries Attorney immediately.

Emery Reddy is committed to ensuring that workers receive the full compensation and benefits to which they are entitled under state and federal law.  To follow the developments of this and other overtime and wage violation cases, please check back regularly for updates.

Wage, hour, and benefit violations of this kind are unacceptably common in today’s workplace. Employers violate the law and their workers’ rights when they refuse to pay overtime wages, do not meet a state’s legally established minimum wages, fail to comply with the Equal Pay Act, coerce an employee to work off the clock, refuse to allow workers their mandatory breaks, or withhold commission payments, final wages or any other portion of a worker’s earned wages without that employee’s written consent.  For more information on wage disputes and workers’ rights, visit Emery Reddy’s Employment Law information center or the websites for the Washington State Department of Labor and Industries (L&I) and the US Department of Labor.