Dukes v WalMart in gender discrimination case at U.S. Supreme Court

By David Olive, Toronto Star, March 30, 2011
Wal-Mart, in trying to stop this case in its tracks, falls back on the usual excuses in cases where corporate conduct is under scrutiny. It says it has never condoned discrimination, of course. And it insists that any acts of gender bias are isolated incidents by rogue local managers.

“The evidence is contrary of (bias),” claims Wal-Mart lawyer Theodore Boutrous.
But that assertion is at odds with the sworn depositions of more than 100 of Wal-Mart’s women employees. And also with that of the San Francisco trial court judge who ruled the Wal-Mart case could proceed to the U.S. Supreme Court.
That judge said his ruling derived from “largely uncontested, descriptive statistics which show that women working in Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time, that women take longer to enter into management positions, and that the higher one looks in the organization, the lower the percentage of women.”
You might think just from the achievements of German Chancellor Angela Merkel, astronaut and scientist Roberta Bondar, and the women CEOs at Kraft Foods Inc., PepsiCo Inc. and Guelph-based Linamar Corp., which Linda Hassenfratz has expanded into a thriving multinational in the teeth of the worst auto-making downturn since the Great Depression, that women can do anything.
But if Wal-Mart CEO Mike Duke, who pulled down $19.2 million (U.S.) in pay last year compared with the average female Wal-Mart employee’s $13,000 in 2001 when the class-action suit was first filed, needs more specific evidence, it exists in abundance.
Among my favourite cases are the world-renowned orchestras that were confronted some years ago with accusations of gender bias. When their hiring committees finally were persuaded to conduct “blind auditions,” there was a 50 per cent jump in women advancing from preliminary rounds of consideration. And the likelihood of the women candidates being hired increased by several multiples.
Naturally, we add our voice to the many who are clambering for gender equity, not only in Wal-Mart, but in every workplace on the planet. And to that end, we applaud the class action of some 1+million women against WalMart, in an attempt to bring their plight to light. If WalMart, like so many other private sector employers were open to permitting their workforce to become members of a labour union, there would be some protection for those employees.
However, such a development is not going to happen.
When price-cutting is the core of the business model, all other factors in the busines equation must pay homage to that driving goal. Consequently, working conditions, the nature of the hires and the prospects of those hires to move up the ladder will be subject to the limited whims of those who are given supervisory responsibility. Perceptions and attittudes do change with exposure to different perceptions and attitudes. However, begun in the rural U.S. where Sam Walton saw there were no stores providing access to goods similar to those available in American cities, WalMart has consistently vaccuumed marginal workers, seniors and many from those areas where their stores are located, and consistently paid them less than their city peers would make, in order to maintain the wage ceilings that make their "price-cutting" heart continue to beat.
And those workers, both male and female, continue to show up every day, because they have a job although those jobs for both genders pay at best minimum wage, and provide minimal opportunities for advancement.
WalMart knows that the vast majority of their workers will continue to show up for those base wages, while the company makes huge public relations initiatives in support of one-off family disasters in many communities. Once again, the biggest bang for the smallest buck, for the company!
If the U.S. Supreme Court does permit this case to proceed, because they believe there is enough evidence, (and observers from yesterday's opening session seem to think there were at least 5 or 6 justices who appeared uninterested in extending the case, with the 3 female justices showing more interest), it will be a landmark case, especially if the lawyers for the women can and do make their case effectively.
If, on the other hand, WalMart were to open its mind to the option of workers' rights and workers productivity, as seen differently from the mere ink on the balance sheet, and were to manage those people with the goal of enhanced worker productivity and enhanced customer satisfaction because their workers actually treated customers with welcoming and helpful attitudes and interactions, the WalMart brand might actually move from one of being a social pariah to one of a social enrichment, without hurting and potentially growing the bottom line.
But that's not likely to happen any time soon either.
The only other effective option is for consumers to purchase fewer items, at slightly higher prices, at stores where workers are respected, valued and treated with both gender and performance equity. If such a silence greeted WalMart managers every morning, instead of the current overloaded parking lots teeming with stampeding customers, they might actually have to re-think their approach to the human side of the enterprise.
But that's not likely to happen any time soon either.