On Tuesday the Supreme Court heard arguments for both sides of the Walmart sex discrimination case, which pits every female employee who worked for the mega-retailer since 1998 against the world’s largest chain of stores. While the Court won’t decide whether or not these women were actually discriminated against, it will decide if the case can move forward as a class action suit. And what they decide will determine if these women can sue Walmart for the same thing: not treating them the same as its male employees.
The case goes all the way back to 2001, when Betty Dukes and five other female employees accused Walmart’s corporate structure of not paying female employees as much as their male counterparts, and for favoring men over women when it came to promotions. In 2004, the US District Court for Northern California allowed these women to band together with the other much larger group of women who’d worked for the store. Class action status was affirmed by the Ninth District Court of Appeals in San Francisco last April, and Walmart duly appealed it.
The legal question is whether or not all of the women who worked for Walmart suffered the same type of injustice as the women who initiated the suit; in short, whether or not they belong to the same class. WWD reported that some of the justices seemed skeptical of the case in general.
“It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?” [Justice Anthony] Kennedy asked Joseph Sellers, an attorney for the women.
Sellers argued that Wal-Mart provided its managers with “unchecked discretion” in pay and promotion matters, claiming it was this broad discretion that led Wal-Mart 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, and provided fewer opportunities for promotion than women because of sex.”
And there have been many instances and allegations of this type of discrimination. Jezebel reports that not only are women at Walmart referred to as Janie Q’s, some have even been told that men get promotions because they’re more aggressive in seeking them — and they deserve them more because “they have families to support.”
But if a few women have encountered this kind of discrimination, does that mean that all the women who have ever worked at Walmart experienced the same thing? Walmart says not necessarily.
“These plaintiffs are not typical and they are not arguing that everyone was affected the same way by the common policy [a standard of commonality must be met under class certification rules],” said Walmart’s lawyer Theodore J. Boutrous Jr. “Many women thrived. Maybe some women stereotyped or some women stereotyped the other direction — 544 of the plaintiffs are female store managers. So it’s impossible to make these sweeping generalizations, which, of course, is what stereotyping is supposed to prevent.”
The Court is expected to decide whether or not the case can move forward as a class action suit by this June.