The women who sought to sue Walmart Stores for gender bias on behalf of 1.5 million co-workers said they will press their fight against the nation’s largest private employer in smaller lawsuits in lower courts and claims with the US Equal Employment Opportunity Commission (EEOC).
The US Supreme Court yesterday said the women failed to prove the world’s largest retailer had a nationwide policy that led to gender discrimination. The court deprived them of the leverage a nationwide suit brings, both in pooled legal resources and a potential multibillion-dollar verdict, forcing them to pursue claims on their own.
“When I go back to work tomorrow, I’m going to let them know we are still fighting,” said Christine Kwapnoski, an assistant manager at a Sam’s Club in Concord, California. She had accused a male manager of yelling at female employees and telling her to “doll up” by wearing more makeup and dressing better while working on a loading dock.
Walmart may now face thousands of lawsuits nationwide and claims of discrimination before federal agencies as plaintiffs’ lawyers fan out to courts across the country to file new complaints on behalf of members of the failed group suit.
Kwapnoski and others pressing their suit claimed they were victimised by Walmart’s practice of letting local managers make subjective decisions about pay and promotions. More than 100 employees filed sworn statements saying they were paid less and given fewer opportunities for promotion than male colleagues.
Women seeking advancement were required to commit in writing to overnight shifts for two years, while men were only required to rotate through such positions on a six-month basis, one former worker claimed.
RETAIL FOR HOUSEWIVES
When one woman inquired about the higher wages paid to men who had the same or less seniority, she was told that “retail is for housewives who just need to earn extra money,” and “he has a family to support,” according to one declaration by a former Walmart employee in Florida.
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Walmart said yesterday that the high court ruling “effectively ends this class-action lawsuit”.
“As the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide pay and promotion policy,” Walmart, led by Chief Executive Officer Mike Duke, said in a statement.
Walmart rose 22 cents to $53.04 in trading on the New York Stock Exchange. The shares have declined 1.7 per cent this year before yesterday, matching the decline in the Standard & Poor’s 500 Index.
The workers “provide no convincing proof of a companywide discriminatory pay and promotion policy,” Justice Antonin Scalia wrote for the majority. All nine justices voted to overturn a lower-court ruling that approved the class action, with four of them saying they would have ordered further proceedings.
UNBALANCED PROMOTIONS
Betty Dukes, another lead plaintiff who began working at a Pittsburg, California-based Walmart store in 1994, said she noticed early in her career that “it was not balanced” when it came to promotions.
“The men at my store were being promoted more often than the woman for the same positions, and many of those positions were never openly posted,” she said in a telephone interview. Promotion opportunities were disclosed by management, which was predominantly male, she said.
Filed in 2001, the suit aimed to cover every woman who worked at the retailer’s Walmart and Sam’s Club’s stores at any point since December 1998, including those not hired until years after the suit was filed. A federal appeals court had let the suit go forward on behalf of women who were working at Walmart at the time the suit was filed.
TWENTY COMPANIES
More than 20 companies supported Walmart at the Supreme Court, including Intel, Altria Group, Bank of America, Microsoft and General Electric.
The Supreme Court ruling limits the ability of plaintiffs’ lawyers to win multimillion-dollar damages through a single lawsuit, particularly against employers. Units of Cigna Corp, Goldman Sachs Group, Bayer AG, Toshiba Corp, Publicis Group SA, Deere & Co and Costco Wholesale Corp all face gender discrimination complaints that seek class-action status.
Four justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — said they would have returned the case to a lower court and let the workers try to press a class action using a different legal theory.
The lead attorneys for the plaintiffs are Joseph Sellers of Cohen Milstein Sellers & Toll and Brad Seligman of the Impact Fund, which describes itself as a foundation that handles public interest litigation.
They said they would seek a way around the Supreme Court ruling, moving ahead with claims on behalf of aggrieved workers, either as individuals or as part of smaller groups.
“This case is not over,” said Seligman. “Walmart is not off the hook. There are thousands of claims of discrimination that remain to be filed.”
The case was one of the most closely watched Supreme Court business disputes in years, in part because the justices hadn’t looked at the standards for certifying a class-action suit in more than a decade.
Women’s advocates called on Congress to enact new legislation protecting the rights of female workers in light of the high court decision.
“With this decision, the Supreme Court has assisted Walmart in its efforts to systematically dole out promotions and pay raises on the basis of sex,” said Terry O’Neill, president of the National Organization for Women.
NEW LEGISLATION
White House spokesman Jay Carney declined to comment on the case, while saying President Barack Obama supports proposed federal legislation to ensure pay equity for women in the workplace.
“We still are determined to go forward to present our case in court,” said Dukes, the lead named plaintiff in the case. “We believe we will prevail there.”
She and her co-plaintiffs alleged the world’s biggest retailer discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of 1964 civil rights law. The court didn’t rule the company discriminated.
Stephanie Odle, 39, who initiated the lawsuit after being fired from a Sam’s Club in 1999, said yesterday was a “great day” for big business.
“It shows how the legal system works,” Odle said in a telephone interview. “But I know in my heart that I made a difference. I didn’t get the outcome we wanted, but the minute that we filed the lawsuit, we started getting changes in pay and promotions.”
TRUMPED-UP CHARGE
Odle was working as an assistant manager in a Sam’s Club in Lubbock, Texas, when she was fired.
“They trumped up a charge and terminated me to give the job to a man,” she claimed.
Odle now owns her own business in Norman, Oklahoma. She was one of the original six plaintiffs who pursued the class action against Walmart. She was dropped as a named plaintiff after a lower court decided all the class representatives needed to be from California.
Odle said she worked for Sam’s Club for eight years, in stores in several states.
“I’ve seen the discrimination, no matter what state you’re in, no matter what region,” she said. “I gave up my right to sue individually” while the class action was pending, Odle said. “Now I go back and sue them individually.”
RANGE OF OPTIONS
“We had prepared for a whole range of options,” attorney Sellers said in an interview. “We began weeks ago preparing thousands of charges to be filed with the EEOC,” referring to the US Equal Employment Opportunity Commission, which pursues workplace claims on behalf of employees.
Lawyers for the woman will try to pursue “some more narrowly drawn, tailored classes,” the lawyer said. “The case becomes splintered. You end up with multiple cases where Walmart’s practices are being challenged.”
Federal lawsuits and claims before the EEOC won’t be stopped by the statute of limitations, which places a time limit on lawsuits, he said, because it was delayed while the proposed class action was pending.
Sellers and co-counsel Seligman said they would be pursuing individual actions against the company, and possibly smaller class actions.
They may also go back to the federal court in San Francisco where the claim was originally filed, seeking a narrowly drawn case of California plaintiffs, he said, and bringing lawsuits with different arguments in different jurisdictions.
“This will be a multi-front sort of battle,” he said. “There are a number of options still available — none of them are as efficient” as a nationwide class action.
CONTINGENCY FEE
Since class action litigation is prosecuted on a contingency fee basis — lawyers get paid when the client wins — lawyers for the plaintiffs said they will continue to finance the litigation.
“We’re in it to see this thing to a successful conclusion,” Sellers said, adding that $3 million in expenses have already been paid. “Millions of dollars in attorneys fees have been expended and we haven’t been paid a penny.”
The cost of defending thousands of lawsuits in hundreds of courthouses may be expensive for Walmart as well.
“Walmart may regret the day” it sought a rejection of class certification, Seligman said. “Walmart is not off the hook.”