AMERICA:The women employees are taking on Wal-Mart, the world's largest retailer, over pay discrimination and American opinion is divided, writes LARA MARLOWE
MEMBERS OF the public started queuing before midnight in the hope of obtaining a seat in the red velvet and marble chamber of the Supreme Court. As the session opened in the morning, demonstrators on the steps outside chanted, “Hey hey, ho ho. Unfair pay has got to go.”
The case of Wal-Mart v. Dukes number 10-277, which was heard on March 29th, is the biggest employment discrimination suit ever to reach the Supreme Court, involving America’s largest private employer, who is also the world’s largest retailer.
A lower court which found in favour of Wal-Mart’s women employees estimated the number of defendants in the class action suit at 500,000. Wal-Mart says it has employed some 1.5 million women, all of whom might claim damages, since 1998.
Nine judges have until late June to hand down their decision. If they find in favour of Wal-Mart, the ability of “little people” to band together in class action suits will be seriously impaired.
The battle lines between the downtrodden and corporate America are clearly drawn.
The National Association for the Advancement of Coloured People, the National Women’s Law Center and the National Employment Lawyers Association have sided with the women.
The US Chamber of Commerce and corporations including Costco, Intel, Del Monte Foods and General Electric, lined up behind Wal-Mart.
The plaintiffs’ lawyer Joseph Sellers argued that Wal-Mart managers used “unchecked discretion . . . to pay women less than men who were doing the same work in the same facilities at the same time, even though those women had more seniority and higher performance.”
The plaintiffs submitted 120 affidavits from women claiming they suffered gender discrimination.
When the suit was filed 10 years ago, 80 per cent of Wal-Mart employees were women, but two-thirds of its management were men. Women were paid on average $1.16 less an hour than men.
Plaintiffs say they were not told about training opportunities and jobs were filled without being advertised. A male colleague was given a large raise “because he had a family to support,” while a divorcee raising two children alone received an admonition from her boss to “doll up”.
The Supreme Court will rule only on the question of whether Wal-Mart’s female employees are too large and disparate a group to belong to a single class for the purpose of the law suit, but deliberations veered often into the substance of the case.
Vice president for human resources Gisel Ruiz testified that Wal-Mart “had strong policies against discrimination . . . long before the lawsuit was filed” and “there are consequences for people who violate those policies”.
Justice Ruth Bader Ginsburg, who made her earlier career in employment law, was sceptical.
“If a company gets reports month after month showing that women are disproportionately passed over for promotion, and there’s a pay gap between men and women doing the same job, isn’t there some responsibility on the company to say is gender discrimination at work, and to stop it?”
Justice Ginsburg compared the Wal-Mart case to a 1970s ruling against ATT which found that men hired men “because all other things being equal, decision- makers tend to prefer people like themselves”.
Four Supreme Court judges are considered liberal, the other four conservative, with Justice Anthony Kennedy often providing the swing vote.
In assessing this week’s debate, observers added gender as a factor, with the three women judges showing more sympathy to the plaintiffs.
Justice Stephen Breyer was the only man who appeared to side with the women. Two women judges nonetheless expressed reservations about the means of determining back pay, which would amount to $1,100 for each woman, or well over $1 billion to be paid by Wal-Mart.
Under Chief Justice John Roberts, the court has gained a reputation for being pro-business and most experts predict a victory for Wal-Mart. Justice Roberts suggested that isolated cases of gender discrimination might be the result of “some bad apples” in the retailer’s 3,400 stores.
Justice Kennedy and Justice Antonin Scalia argued that there was a contradiction in the plaintiffs’ assertion that Wal-Mart fostered and strengthened a sexist corporate culture by giving local managers total discretion over hiring and promotion.
If the women win, the New York Daily Newswarned, "every woman in America can band together into a class to sue every employer in America. No joke."
One of the more dubious arguments on behalf of Wal-Mart was that when it comes to equal pay and promotion for women, most US companies are in the same boat. "Every company in America could soon be a target," moaned the Wall Street Journal.
The everybody-does-it argument sounds feeble to me, but it seemed to hold weight with the judges.
If you based discrimination cases on statistical evidence of pay and promotion, Justice Samuel Alito asked, wouldn’t that mean that “every single company” in the US was probably in violation of the 1964 Civil Rights Act? Yes, probably, attorney Joseph Sellars replied for the plaintiffs.