The Women of Wal-Mart to the Supreme Court: Here's Why Wal-Mart Isn't Too Big to Be Sued

On Tuesday the women employees of Wal-Mart filed their brief with the Supreme Court in a class action challenging the mega-retailer’s systemic practices of sex discrimination in setting pay and promoting employees. (See here and here for the National Women’s Law Center’s previous blog posts discussing the lawsuit.)

Wal-Mart Stores v. Dukes promises to be a landmark case for women who face discrimination in the workplace, and for all workers who hope to challenge employer practices and change harmful corporate policies. Unfortunately, if Wal-Mart’s arguments succeed, workers will face an uphill battle in fighting for civil rights protections on the job.

In their brief, Wal-Mart’s women employees respond to the company’s arguments against class certification (which basically boil down to the theory that the class is too big to proceed, and that Wal-Mart is too big to be sued). Specifically, the employees emphasize that Wal-Mart’s corporate culture, in which gender stereotypes are widely accepted—combined with company policies allowing highly subjective decision-making on personnel matters—led to broad-scale discrimination against women employees at Wal-Mart.

The plaintiffs point out that the evidence they’ve assembled suggests Wal-Mart’s corporate culture is permeated with negative gender stereotypes.  Female employees report that Wal-Mart managers held business meetings at Hooters restaurants, regularly used demeaning terms when referring to women, and openly expressed the belief that women couldn’t work in certain positions because of their gender. And these are just a few of the numerous examples presented to the courts below to justify class certification.

The plaintiffs also argue that there’s evidence that Wal-Mart consciously decided to adopt pay and promotions policies that allow unmonitored subjective decision-making by managers. Wal-Mart’s policies are out of the norm in the contemporary workplace, where it is standard practice, for example, to post and publicize opportunities for promotion and set pay according to objective job criteria. And, in the context of a corporate culture where gender stereotyping was pervasive, giving managers this degree of discretion had real consequences for women employees.

The result? The plaintiffs point to evidence that Wal-Mart’s women employees were paid less than their male co-workers, even though they typically had more experience and stronger performance histories. And women employees who were interested in advancing at the company faced an unyielding glass ceiling at Wal-Mart.

As the plaintiffs emphasize in their brief, the class action mechanism is especially suited to resolve a case of systemic discrimination like this one—it’s more efficient and consistent to address all employees’ claims in a single lawsuit. But if the Supreme Court sides with Wal-Mart, employees will find it much more difficult to challenge and remedy gender-based pay discrimination and other forms of discrimination.

When the Court hears arguments in Wal-Mart Stores v. Dukes on March 29, let’s hope the Justices recognize the realities of the workplace facing the women of Wal-Mart—and countless employees in the retail sector and other industries.