According to Justice Ruth Bader Ginsburg’s, dissenting opinion in Wal-Mart Stores, Inc. v. Dukes 564 U.S. ____ (2011) women hold 70% of all hourly jobs at Wal-Mart. You would think then, that Wal-Mart would be sure to treat its female employees well. Wal-Mart has asserted that it has “strong policies against discrimination”, and that certain gender discrimination claims were “not representative the hundreds of thousands of women that work at Wal-Mart”. The volume of sex discrimination suits that Wal-Mart has faced, particularly in the last several years however, seems to suggest otherwise. Since Wal-Mart has been kind enough to go through the painful, arduous litigation for us– and incur exorbitant costs in doing so several times over– let’s continue our practice, of examining some of those cases and learn from them after the jump…
I would be remiss if I did not start with a thumbnail sketch of Dukes. Betty Dukes was the lead plaintiff in what would have been the largest class action gender bias lawsuit the American legal system had ever seen. More than 1.5 million female Wal-Mart employees nationwide alleged discrimination under Title VII of the Civil Rights Act of 1964 as to pay and promotions due to a corporate culture that promoted gender stereotyping. Wal-Mart took the case up to the U.S. Supreme Court, arguing that the proposed class lacked sufficient commonality to justify hearing all 1.5 million plus claims together. The Supreme Court agreed and therefore ruled 5-4 to de-certify the class on June 20, 2011, effectively ending the lawsuit, ten years after it began. Many employee advocates see Dukes as a big blow. Why? Class action lawsuits can be a very effective way for plaintiffs who, on their own, might not have the resources or wherewithal to pursue individual claims. One claim may not produce a significant judgment or settlement. An aggregate of claims via a class action however, may make litigation more viable. Has Dukes deterred Wal-Mart’s female employees? Judging from subsequent litigation, no.
On October 27, 2011, Betty Dukes and over 90,000 female Wal-Mart and Sam’s Club workers in California re-filed the case, again alleging a pattern and practice of sex discrimination in hiring and promotion. Evidence included new statistical analyses, conducted store- by-store and district by district, within California showing that women with, on the average, more seniority and higher performance ratings than men being paid less than men in comparable positions, and having much lower chances for promotion than men. In August 2013 the United States District Court, based on the same reasoning used by the U.S. Supreme Court, denied the women class certification. Similarly, Ladik v. Wal-Mart Stores 13-cv-123 U.S. Dist. Court W.D. Wisconsin, May 24, 2013) dismissed a class action lawsuit on behalf of female workers at stores in Wisconsin, Illinois, Indiana and Michigan for the same reasons.
By June 2012, almost 2000 women in 48 states had filed EEOC charges against Wal-Mart based on the same underlying allegations.
In October 2012, 11 Florida women sued Wal-Mart in U.S. District Court in Fort Lauderdale (Love v. Wal-Mart Stores 12-cv-61959). The case cited research that found about 90 percent of Wal-Mart and Sam’s Club stores in Florida and other parts of the Southeast had fewer female than male managers and pay women less than men in the same jobs. Other allegations from the complaint include: a) one plaintiff quitting her job after four years, after being denied many promotions in favor of less experienced men and after learning she was earning less than men. Her manager told her, “Single mothers like you don’t deserve to make as much, you should be in a two-income household”; b) a male manager told a female employee with a family that men should earn more than women because “they have families to support”, even though her male co-workers who earned more money did not have families; c) women were steered away from higher paying automotive, electronic and sporting goods departments and toward lower-paying cosmetic and jewelry departments. The court dismissed this case, not on its merits, and not because the class was too diverse, but because the claim was time-barred. The court ruled that the filing and pendency of the original Dukes case did not suspend the statute of limitations.
Around the same time, three Tennessee women filed a regional class action lawsuit in federal court in Nashville, and detailed years of bias, unequal pay and denial of promotions, much like the other cases (Phipps et al v. Wal-Mart Stores Case No. 3-12-cv-1009, M.D. Tennessee, Nashville Division, June 13, 2013). While initially the court dismissed this case as time-barred, the court certified the case for interlocutory appeal (i.e. even though the entire case was not given final resolution) and stayed the rest of the case pending that appeal. In the interim, a new ruling emerged, apparently allowing tolling (i.e. suspension) of the statute of limitations when a previous case with the same underlying allegations is dismissed without being decided on the merits. As of now it appears that case is still pending.
On March 31, 2014 the 5th Circuit in Odle v. Wal-Mart Stores, Inc., 747 F.3d 315, allowed an individual claim by one of the original Dukes plaintiffs to proceed, despite Wal-Mart’s attempt to have it dismissed as time-barred. The allegations are essentially the same as those in Dukes and their offshoots.
So, are class action sex discrimination lawsuits dead? Has Wal-Mart inoculated itself against sex discrimination cases? Hardly. At least one regional class action and other individual claims are pending. At best, it seems that Wal-Mart may have many more individual lawsuits against it. While each one may involve smaller amounts of money, they could still add up to big bucks.
If you don’t want to spend this much time and money fighting lawsuits, here are some helpful hints:
- Write, implement, review and update hiring, promotion and compensation policies.
- Train your managers on your policies and on Title VII’s anti-discrimination provisions.
- Don’t tolerate gender stereotyping or negative comments based on such stereotyping by employees, particularly managers.
- Review your actual hiring, promotion and compensation practices to see if there are disparities in how your male and female employees are treated.
- Consider either implementing an affirmative action program or similar efforts to ensure equal employment opportunities for women.
- Consult with in-house counsel or competent employment counsel about these issues — of course!
Wait, we did not address sexual harassment. That will be in next week’s post!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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