Issue of the week: Wal-Mart vs. its female employees

last updated 8 January 2015

It all started out as “Betty vs. Goliath,” said Elizabeth Olson in CNNMoney.com. In 2001, Betty Dukes, a Wal-Mart cashier in Pittsburg, Calif., and five other female Wal-Mart workers filed a suit charging that the Arkansas-based retailing giant systematically discriminated against women, paying them less than similarly situated men and denying them promotions. The case has since swelled into a class action on behalf of as many as 1.5 million female Wal-Mart employees. The question for the U.S. Supreme Court, which heard arguments in the case last week, is whether there is a legal basis for such a large class. If the justices uphold the suit’s class-action status, Wal-Mart could face billions of dollars in damages. And “because Wal-Mart is such a huge employer, the eventual outcome could set an authoritative standard” for how corporate America pays and promotes its female employees. But if class-action status is denied—as seems likely given the generally skeptical tone struck by some justices in last week’s hearing—each plaintiff would have to “fend for herself legally.” Many women would probably drop their complaints, shrinking Wal-Mart’s financial exposure.

The justices were right to be skeptical, said the New York Daily News in an editorial. A class action on the scale contemplated by the plaintiffs runs counter to our justice system, which “is built on the presentation of specific, individualized allegations and fair opportunity to rebut them with contrary evidence.” What the plaintiffs offer instead are “statistical calculations and sociological mumbo-jumbo.” The lawyers bringing this “preposterous” suit claim that the experiences of Dukes and the five other named plaintiffs represent “the victimization of every woman who works for Wal-Mart,” no matter how dissimilar their individual claims. If the plaintiffs prevail, businesses could be swamped with frivolous suits from “every disgruntled former employee with an ax to grind,” said the Lafayette, Ind., Journal and Courier. We’d have “open season on all big businesses, forcing complicated legal defenses.”

Size doesn’t matter, said Ann Woolner in Bloomberg Businessweek. The company shouldn’t be able to use the fact that it has millions of employees to “insulate it from claims,” especially since the plaintiffs contend that gender discrimination was part of the corporate culture emanating from headquarters. Wal-Mart’s culture is hardly unique, said Chloe Schama in The New Republic. The pay disparity between men and women is “a persistent, and troubling, reality” in this country, where full-time female employees make 80 percent of what men earn. Even after taking “legitimate factors that affect the inequality” of wages into account, “an inexplicable gulf” remains. Let’s not forget that, amid all the questions about the size of the class, sex discrimination is “the core substantive issue” of this precedent-setting case.