Walmart Sex Discrimination Claims Filed By 2,000 Women

[stevenleser]

4. They had to do this because they were denied class action status by an inadequate law

This whole situation makes me furious. I almost threw my laptop against a wall when I researched this last time to write this article: http://democratsforprogress.com/forum/showthread.php?tid=6655

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The women who brought suit had a very strong statistical argument that women at Walmart were getting fewer promotions than men and were getting paid less than men. Virtually every judge at every level agreed that at least individually or in small groups, the women have a case. In fact, there is an entry in the supreme court's decision that reads, “Women fill 70 percent of the hourly jobs in the retailer's stores but make up only '33 percent of management employees'...[T]he higher one looks in the organization the lower the percentage of women...The plaintiffs' “largely uncontested descriptive statistics” also show that women working in the company's stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.”

As a layperson, your reaction to the above paragraph is probably like mine. “Well, if they were able to show that there was a company wide issue where women were not receiving equal pay for equal work and were denied promotions, and virtually every judge at every level agreed with this, why was there an issue with 23(a)(2) “there are questions of law or fact common to the class”?

The reason is that the standard you need to meet is pretty high. You need to show a memo or email or some directive from corporate indicating that what is happening is the policy of the company. Here is where the catch 22 comes in. Unless you have a class action suit, it is very difficult to get the kind of discovery (the legal term for ability to compel a company to turn over emails, documents, etc), you need to prove a case like this. So you cannot get a class action suit certified without the evidence and you cannot get the evidence without a class action. The common man is stuck and once again the large corporation is holding all of the cards.

This is my main concern with what happened here. The law is inadequate. I have no doubt that the justices applied the law properly here. The catch 22 I illustrated above is infuriating. Added to that is that the burdens of 23(a)(2) are obviously too high. If a company has a culture that has fostered the companywide discrimination that the women who brought suit were able to show without a dispute, it should be held responsible. If the law and legal system cannot do that then the law and legal system have failed. Adding insult to injury is the way Justice Scalia phrased the problem with the plaintiff's case in his opinion, “In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.”