Tuesday, March 29, 2011

The Supremes, Wal-Mart and Class Action Suits

Picture of some of the plaintiffs in the Wal-Mart case. Betty Dukes, after whom the case is named, is the first person from the right.

I have written on this very topic before! What that earlier post says is pretty much the message of this one, too, except that today is the day the Supreme Court will hear arguments on the sex discrimination case concerning Wal-Mart.

The arguments are not about whether Wal-Mart is guilty of discriminating against women, especially in promotions into management, but about whether the case qualifies as a class action suit or not. A pro-business court (by about five to four) is unlikely to find for the plaintiff but a goddess can always hope to be wrong about that.

This is why the case is important:
The potential impact of the case stems not so much from the size of the Dukes class as from how the case will influence the very survival of certain types of class actions. At issue is whether it will become more difficult for plaintiffs who seek monetary relief for systemic misconduct to meet the class action criteria. This is important because for many employees and others, a class action is their only meaningful access to the courts. Moreover, class actions are important to the civil justice system because of the substantial time and cost savings they provide the courts and parties. The Dukes case has the potential to redefine the terms on which this critical procedural device is available.
Thus, the case is ultimately more about Firms' Rights than anything else. If the court sides with Wal-Mart, the costs of future discrimination suits will rise. If the court sides with Betty Dukes and the other plaintiffs, firms which discriminate against some worker group will lose. So.

Wal-Mart argues that the cases are too numerous and diverse to qualify as a class action suit, and also seems to argue that it's the fault of people in lower management, not the company head-quarters. You see, the headquarters gave those lower management people lots of latitude in determining pay and promotions!

Given those arguments about the cases being too diverse, it is interesting to look at some of the plaintiff summaries:

Here are summaries suggesting that men were promoted with less seniority than women:
Ms. Steele then spent the next three years trying to get re-promoted to store manager. She never got promoted past grocery co-manager and men received almost all of the more than 24 positions for which she applied. While Ms. Steele had over four years’ store manager experience, many of these men had no experience as a store manager.

Ms. Stevenson requested promotion to management positions in the hopes that she could move up and, ultimately, retire with the company. Her dreams were shattered, however, after she was repeatedly denied the staff she needed to perform her responsibilities as an overnight supervisor while she watched as male managers supported and promoted less experienced male employees.

Mrs. McLamb regularly expressed an interest in promotion to several store managers and district managers. At one point, she was required to commit, in writing, to working overnights for a full two years. Male assistant managers were only required to rotate through the overnight position on a six-month basis. Mrs. McLamb was also passed over for management positions in favor of less experienced and less qualified men.

Claudia Renati began working at a Sam's Club in Roseville, California in 1993 as a marketing membership team leader. Early on, Ms. Renati became responsible for running the marketing programs in the region after the regional sales manager left. After two years of performing the tasks of both positions without the additional pay or the correct job title, she asked the director of operations to promote her into the position. He refused because she had not gone through the Management Training Program. Over the next couple of years, the position of marketing manager was filled by several male next-door neighbors of the director of operations. None had gone through management training and none had experience in marketing. Ms. Renati was responsible for training these less qualified and less experienced men who were hired to be her supervisors. Over the next several years, Ms. Renati trained approximately 20 male managers, many of whom never went through the Management Training Program nor were required to relocate. Ms. Renati continued to be passed over for promotions for positions that were consistently filled by males with no prior management experience and less seniority. At one point, the director of operations told Ms. Renati that before she could become a manager, she would be required to stack 50-pound bags of dog food as a floor team leader. When Ms. Renati indicated that she could not repeatedly lift 50 pounds, he told her he could not help her advance. Ms. Renati is aware of several male employees who never had to become floor team leader, nor were required to stack 50-pound bags of dog food in order to enter the Management Training Program.

And so on. The point, of course, is to note how very similar these reports are, focusing on promotion rules which differ by gender. Not all the summaries are about promotions, true. But all of them are about different rules for men and women when it comes to determining occupational success in either pay or promotions. Even that old hoary argument about men being the proper wage-earners cropped up repeatedly as an excuse for paying women less or for not promoting them.

All these are the statements of only the plaintiffs, naturally. The case itself has not yet been tried. But I don't see the cases as that diverse. Numerous? Probably. That might be a pretty good reason to try them en masse.
For more on women and class action suits, check out this study.