Wal-Mart female discrimination Supreme Court case: Discuss with both sides

Mar 28, 2011

Arguments in the Wal-Mart vs. Dukes Supreme Court case regarding discrimination against female workers begin tomorrow. Marcia Greenberger of the National Women's Law Center and products liability defense attorney Matthew Cairns debated the case.

Matt Cairns - President of DRI is ready to go

Hi. This is Marcia Greenberger, Co-President of the National Women's Law Center. I am looking forward to answering your questions today. Our organization co-authored a friend-of-the court brief in the Wal-Mart case, on behalf of 32 organizations, in support of the women who brought this case, because we believe so strongly that our country's legal protections against discrimination in pay, promotions and other forms of unfair treatment in the workplace would be severely undermined if the women of  Wal-Mart could not proceed in the type of class action that they have brought. We have urged the Supreme Court to follow a long line of legal precedent and to allow the class action to go forward.

How is a fair average pay differential arrived at between men and women when women have shorter average length of employment because of a percentage that change to stay at home moms etc.? It seems like if one group by their own choice have different career statistics that would skew their average wage because of higher wages being related to longer length of service.

When the Wal-Mart case gets to the stage where the plaintiffs are able to prove their case, and demonstrate discrimination on the basis of pay, then employment history at Wal-Mart, including time on the job, woulld be taken into account. Also, the plaintiffs' expert who testified about the appropriateness of allowing this case to go forward as a class action actually did review the salaries of men and women with the same employment history and found holding these kinds of variables constant that women still were paid less than men.

This raises an important issue that Walmart is appealing.  Each plaintiff is unique.  The lower court decisions effectively eliminated the individualized elements and defenses in a Title VII case.  This may result in some successful plaintiffs receiving less because they get swept into a class, and others getting more than they deserve.

If Wal-Mart looses, then will this take us to quotas? My understanding is that that one of the flaws alleged in the Wal-Mart HR system is that decisions are left to local management. Would this not be a reason that systematic discrimination is not possible as there would be thousands upon thousands of individual decisions insuring that any discrimination would be random and minimum?

Systemic discrimination is very possible at Wal-Mart according to the plaintiffs' allegations-- for they have identified a nationwide policy that has allowed discrimination to flourish against women in their pay and promotions by individual managers all across the country. The stereotyping of women described by the plaintiffs (e.g.  they don't need to support a family)  which led managers to give women with higher performance evaluations lower pay and fewer promotions has been allowed to be challenged by the Supreme Court in many cases over the years. This case has nothing to do with quotas but simply ending pay discrimination and the discrimination against women in promotions.

Discrimination is not acceptable.  However, this case before the Supreme Court is not about discrimination.  It is about the lower courts disregarding the law by improperly certifying a class -- certifying a class cannot abride, enlarge or modify any substantive right.  The class certification here has denied Walmart the right to assert individualized defenses and put individual plaintiffs to their proof.

Why does it take so long for a case of this nature to be resolved. Isn't "justice delayed justice denied"?

It is certainly true that justice delayed can mean justice denied. Wal-Mart, like any defendant, has the legal right to raise many defenses, and it has done so vigorously in this case. The fact that 10 years have now gone by and that the plaintiffs have not even been able to get to the merits of their complaint shows how hard it can be to sue a major corporation with the resources of Wal-Mart. That is a reason why class actions like this one are so important, because they allow women to come together to follow the case through to the end.

Class actions do provide a means of addressing certain kinds of cases.  However, this case is under Title VII and employers are entitled to be able to assert individualized defenses, something this class certification does not permit.  This case is about process at this time, not merits. 

Is there a difference between claims to backpay and claims to monetary damages? Does this have any relevance to the certification under FRCP 23(b)(2)?

-Some students from Gunn High School, Palo Alto CA

Back pay is a form of monetary damages.  Other damages may be possible like front pay depending on the particular plaintiff's situation.  The issue of damages is important to the class certification issue because it has denied Walmart the right to assert individualized defenses to the Title VII plaintiffs.

There is a big difference between backpay, which has been viewed by courts for decades as part of equitable relief (eliminating the discrimination) and damages, which can include a broad array of injuries that a person can suffer as a result of the discrimination. The plaintiffs in this case are not seeking compensatory damages.

What is discrimination really? If I create a company do I not have the right to hire and promote who I want? I find it funny that we only view stereotypes and discrimination as a bad thing, when we're dealing with people. If someone said they wanted to get a dog, then there would probably be many comments of, "Well you know Labs are great family pets" and "pit bulls are naturally aggressive". Now lets take that context and put it into the workplace. Someone says, hey I need to hire some people who do you think I should hire? We'll you know if you hire a women your going to have to deal with sexual harrasement issues, and if you hire a black man your going to have to deal with discrimination. These are two popular stereotypes. Now how did they become stereotypes? Numbers do not lie. The majority of discrimination and sexual harrasement comes from these types of people. So why can't I as a employer choose my employee based on the best facts and studies that are out there?

The country is committed to eliminating discrimination on the basis of sex, race and other bases in order to be sure that not only are we as a nation doing what is fair and morally correct, but also that we have the benefit of the talents of all of us.

I agree with my colleague.  Resolving these issues, however, must be done consistently and fairly under our Rules of Procedure.

I have heard that the argument against this suit is that the class is so large. It seems that's saying that because Wal-Mart discriminated against so many women, it shouldn't be held accountable for discrimination against any. How can that possibly be fair or right?

Numerosity is an element to consider whether or not a class should be certified.  However, the key issue is whether this class certification has modified substantive rights of Walmart.  If it has then the certification was improper as Walmart argues.  The key right Walmart is advocating for is the right to test the individual claims and assert particularized defenses for the individual class members.  The certification has lowered the burden on plaintiffs to show that they were infact actually victims of discrimination.

I believe that this question gets to the heart of the matter. The kind of discrimination alleged in the Wal-Mart case is no different than that dealt with in many other cases over the years-- what is special here is only that Wal-Mart is so big. It would be a travesty to our civil rights protections if the bigger the employer the better its chances of getting a free ride to discriminate .

Will this be another 5-4 vote with Kennedy as the swing vote? Or will it be like the cases last week?

Only time will tell.  If the court shows fidelity to the Rules Enabling Act then it could be like last week.  It could also be  a tight race.  I don't put much stock in the fact that 3 Justices are women - I think that the rule of law will control, not emotion.

It is difficut to predict what the Supreme Court will decide in any case, but i believe that if the Court follows its precedents the women plaintiffs will prevail.

On what planet could anyone think telling someone that they don't deserve a promotion because they don't have a family to support (even if she did) is OK? Are these people really that backward?

That is not the issue at this time.  The issue is whether the class was properly certified, not the merits of the individualized claims.

There were about 120 sworn statements in this case by women who worked at Wal-Mart all over the country who described extremely discriminatory attitudes and treatment. It is important that they be allowed to prove the facts in the case, and that
Wal-Mart be held accountable for the full range of discrimation that plaintiffs are able to show.

And also that Walmart be allowed to present its defenses to each claim as Title VII allows/requires.

Walmart has a moral obligation to address the pattern of lower pay for women, even if the legal ducks do not line up. Has it done anything differently after this suit was initiated? What is to keep us from proposing a boycott? Walmart succeeds on the backs of women.

While employers certainly have a practical as well as moral reason to treat their employees in a non-discriminatory way, so that merit prevails--  it is still essential that the law remain strong and able to be enforced so that employers accross the Board are held accountable, and that their employment practices are fair regardless of their own sense of morality. In what ways and how Wal-Mart has changed its practices would be a part of the case when it reaches the merits.

I agree that this is a merits issue.  However, we aren't there yet.

How is the claim that only 14% of the store managers are female valid given that a significant number of store managers at Wal-Mart are hired outside of the company? i.e. they do not necessarily need to be hourly workers at Wal-Mart in order to be a store manager. I know this is true because I personally interviewed for a Wal-Mart store manager position and my professional experience was prior military service. They have an entire leadership development program for new management hires that are sourced from across the U.S.

Sorry, but I don't know the answer to this.

Wal-Mart's own statistic that it only has 14% of store managers that are women can reflect discrimination in its practices regarding promoting from within the ranks of Wal-Mart employees as well as recruiting from outside.

It seems hardly fair to tell a company that it has systematically discriminated as a matter of corporate policy based on statistics alone. How are the merits of each woman judged in comparison with the men? Isn't it perfectly plausible that many women may not have even applied for managerial positions? Isn't it perfectly plausible that, on average, women at Wal Mart, for whatever reason, aren't performing as well as the men, on average (in areas that are required for successful management?) I think that you MUST look at the merits of each individual case, rather than women in Wal Mart as a whole. What commonality do these women share other than being Wal Mart employees?

This is exactly the issue that Walmart is raising, and which DRI believes is required by the Rules Enabling Act.

The case presents far more than statistics-- including the specific situations faced by the plaintiffs and others who have already come forward, as well as other experts. Once the case goes to the merits all will be considered, and the strong reason to have a class is so that the full pattern and  context can be shown. Moreover, it is important to know that the statistics come from Wal-Mart's won data, and consider that kinds of variables raised in the question. Out of time-- thanks so much for these great questions, Marcia

In the lower Circuit and Federal courts of California, how were the women able to prove that they were discriminated against en masse? Or was this question even answered during those hearings?

I don't believe it was answered. That is the key issue on appeal.

The question was answered by the lower courts of whether there was enough of a common question of discriminationaffecting all of the class members and whether the claims of the named plaintiffs were typical enough of the class members to allow the class to go forward.

What is the issue - certification or the merits?

The issue is certification.  Did the class certifcation run afoul of the Rules Enabling Act's prohibition on modifying substantive rights of the litigants.  This is the central focus of DRI's Amicus Brief  filed on January 27, 2011.

The question is procedural-- whether the class can be certified, but it will have enormous implication as to whether, especially for large employers, the nation's non-discrimination laws will be enforceable as a practical matter.

Matthew has to step out now! If you have more questions for Marcia, then please feel free to continue submitting them.

How do you feel about the societal norms of gendered discrimination will play in this case, as well as general misogyny.

The evidence that the plaintiffs have described reflect long-standing stereotypes that women don't need to work as much as men, for example, and the more people are treated as individuals rather than stereotypes the better for them and for the future of our country.

I applaud this case because it is the first time we may actually see a result to the problem of lower pay for equal positions, fewer women in high management positions despite the number of women that constitute Wal-Mart employees, etc. If this class action goes through, we may actually see a move throughout the country to change policies and provide more opportunities for women. If the pay was equal and equal numbers of women were getting into management, I'd say to not have a "quota" system. But when there is systemic discrimination, then something needs to change. All I would ask of men viewing this from the outside is: would you be ok with 77% less pay and far far fewer management positions? Would you want to change the system that denied you money and opportunities? Isn't that only fair?

If Wal-Mart is held accountable for the full range of any sex discrimination it practices against pay and promotions then it would make an enormous difference.

In This Chat
Marcia Greenberger
Marcia Greenberger is the founder and Co-President of the National Women's Law Center. The creation of the Center over 35 years ago established her as the first full-time women's rights legal advocate in Washington, D.C. A recognized expert on sex discrimination and the law, Ms. Greenberger has participated in the development of key legislative initiatives and landmark litigation protecting and advancing women's rights, particularly in the areas of education, employment, family economic security, health and reproductive rights. She is the author of numerous published articles, including the Pregnancy Discrimination Act, the Civil Rights Act of 1991, which provides key protections against discrimination and sexual harassment on the job.
Matthew Cairns
Matthew Cairns represents the interests of individuals, insurers, manufacturers, transportation and other companies in diverse commercial, complex and traditional litigation matters in all state and federal courts and state agencies. Matt also serves as general counsel to several closely held businesses in New Hampshire. He is also experienced in general corporate and municipal representation, and risk management training. Since 1996, Matt has been an active member, award recipient, and leader of DRI — The Voice of the Defense Bar, the largest international organization of attorneys committed to defending the interests of businesses and individuals in civil litigation. In October 2010, Matt began a one-year term as the 2011 president of DRI.
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