The yellow smiley-face logo of Wal-Mart Stores Inc. isn’t looking happy these days, not with the huge gender discrimination lawsuit now pending in federal court against the world’s largest retail company. Consider some of the allegations that have been ﬁled by current and former female employees (and, no, this is not one of Ms. magazine’s “No Comment” columns):
• A former district manager was called “our little Mexican princess.”
• A male supervisor explained lower pay for women by stating, “Men are here to make a career and women aren’t. … [H]ousewives just need to earn extra money.”
• A woman seeking advancement was told, “You aren’t part of the boy’s club, and you should raise a family and stay in the kitchen.”
• Female employees were subjected to comments like: Women “should be barefoot and pregnant”; they “should be at home with a bun in the oven”; “God made Adam ﬁrst so women would always be second to men.”
• Executives assert that men are “more aggressive” in working for advancement and that to do more to promote women would lead to “lowering standards.”
• One former employee claimed that she was forced to attend lunch meetings at Hooters. (Wal-Mart’s executive vice-president for people defended this practice by noting that the restaurant was “one of the best places to meet and eat” in town.) Another woman reported that she had to accompany male managers to strip clubs during business trips. (Some Wal-Mart managers conﬁrmed that they “regularly go to strip clubs while attending annual sales meetings.”) Also, women complained that a stripper performed at a store meeting to celebrate a store manager’s birthday.
These are only a sampling of complaints from the more than 110 declarations submitted as evidence in the lawsuit against the company that employs more women than any other U.S. ﬁrm. First ﬁled in June 2001 on behalf of six plaintiffs in the U.S. District Court in San Francisco, Dukes v. Wal-Mart Stores Inc. could become the most extensive discrimination litigation in history—if federal judge Martin Jenkins grants it “class action” status, thereby allowing every former and current female employee of Wal-Mart from December 1998 through the date of the case’s resolution to join the suit. If certiﬁed, the class action would include an estimated 1.5 million women. (By contrast, Home Depot’s $104 million settlement of its gender discrimination suit, while denying any wrongdoing, covered 25,000 women.)
While the experiences recounted in these declarations are startling, the basis of the plaintiffs’ case is their experts’ statistical, economic and sociological analyses of the personnel data that the court ordered disclosed during discovery—an unprecedented release of Wal-Mart’s Bentonville, Ark., “Home Ofﬁce” records that minutely track its 3,400 U.S. stores as part of the successful and much-admired organizational structure the late Sam Walton established to create the “Wal-Mart Way.”
According to statistician Richard Drogin’s study of these records, in 2001 women constituted 65 percent of Wal-Mart’s hourly employees but made up only 34.5 percent of its managers and 15 percent of its executive ranks. (Economist Marc Bendick determined that in 20 comparable retail companies, 57 percent of store managers are women; Wal-Mart’s 2001 percentage of female managers, he found, was even lower than the 38 percent average of comparable retailers in 1975.) Drogin also concluded that the hourly pay rate of Wal-Mart women employees was on average $1.16 lower than that of male counterparts, and in 2001 women were paid an average of $1,150 less per year than men. Even the pay of those women promoted to management, he asserted, was about $16,400 less per year than men’s. (For further details on these employment statistics, see www.walmartclass.com.)
Although Wal-Mart brags that it promotes “from within,” Drogin found that before the lawsuit was ﬁled, over 80 percent of promotion opportunities were not posted, and women received 2,891 fewer promotions than would be expected statistically from the general pool of hourly employees. He also noted that despite a lower rate of turnover and higher performance evaluations, women waited an average of 4.38 years to be promoted, compared to 2.86 years for men.
San Francisco attorney Steve Stemerman, of Davis, Cowell & Bowe (one of the six law ﬁrms, three private and three nonproﬁt, representing the plaintiffs), explained that until 2003, Wal-Mart had provided no system by which hourly employees could apply to the management-training program, the required ﬁrst step to enter management ranks. “Instead, supervisors chose employees arbitrarily, essentially by a ‘tap on the shoulder,’” he said. “Because district and regional managers are left to their own discretion and apply their subjective views, the system is vulnerable to the sexist attitudes that seem pervasive in the organization.”
Jocelyn Larkin, a co-counsel from the Impact Fund, the Berkeley, Calif., public-interest legal foundation that is coordinating the case, agreed that Wal-Mart’s own insistence on its corporate culture combined with managers’ discretionary decisions created the disparities throughout the system. “During our yearlong investigation, we found that Wal-Mart has the kind of employment practices that allow and encourage the use of negative gender stereotypes,” she said. “Our statistical evidence overwhelmingly shows a systemic pattern of discrimination, and that is the major criterion for being certiﬁed as a class-action case.”
It was reading excerpts from the women’s stories in a magazine last year that prompted Carolyn Sapp, Miss America 1992 and the founder of Safe Places for Abused Women and Children, a nonproﬁt organization dealing with issues of domestic violence, to become a spokesperson for the plaintiffs and to launch her website (WalmartVersusWomen.com) to bring more attention to the case. “I saw the connection to my own work on domestic abuse immediately,” she said. “What Wal-Mart has been doing to its female employees may not be physical, but it’s certainly economic abuse. The company is holding women down and making them feel they’re not good enough.” Sapp is now organizing rallies of support across the country and has ﬁlmed a television commercial to urge more Wal-Mart women to come forward.
Wal-Mart has vigorously denied the allegations and is mounting an aggressive campaign in its defense. When asked about the allegations made by the plaintiffs, Mona Williams, vice president of communications for Wal-Mart, conceded that there may have been some random incidents involving men she has described as “knuckleheads.” Nevertheless, she defends some of the executives’ behavior. “To understand it, you have to understand the Wal-Mart culture. Still, I can see that to the outside world it might look otherwise,” she says.
While Wal-Mart ﬁled positive declarations from a number of its female employees (its “success stories”), the crux of its Opposition Brief is the statistical analysis of personnel records done by its expert, Dr. Joan Haworth, whose ﬁndings directly contradict those of the plaintiffs’ experts. For example, she concluded that while only 10 percent of Wal-Mart stores showed statistically signiﬁcant disparities in pay and promotion, males were favored only in some stores, while females were favored in others. She also found that after the company began posting openings for assistant manager trainees in 2003, the percentage of female applicants rose only 2 percent, from 41 to 43 percent.
In its brief, Wal-Mart explains that female hourly employees are less likely to apply for management trainee positions than their male counterparts because of the longer hours, night and weekend shifts without overtime compensation, and relocations that are often required. But it also could be argued that such corporate demands disadvantage women as well.
Williams insists: “Wal-Mart selects, even overselects, women for promotion to management. Still, I admit, while we’d already begun rolling out systems for posting promotions, this lawsuit probably did speed the process up.”
As part of its defense, Wal-Mart not surprisingly disparages the women who have brought the lawsuit (its Opposition Brief refers to the “Plaintiffs’ histrionics”) and claims that several were denied promotions for “legitimate reasons,” such as “rule infractions” and “poor attitudes.” But the company’s main attack is two-pronged: First, the brief argues that the plaintiffs do not meet the criterion of “typicality” or “communality” required for a class-action case. Second, it asserts that even if the plaintiffs were deemed to represent a class, the sheer size of the estimated 1.5 million women and the potential monetary settlement does not satisfy the federal court’s requirement of “manageability” to proceed as a class action.
Indeed, the case could involve billions of dollars, since the plaintiffs are seeking substantial injunctive relief, back pay for the class as a whole and punitive damages.
Yet the plaintiffs and their attorneys often reiterate that this case is not about money but about changing the Wal-Mart culture and the way it treats women. Indeed, if the plaintiffs are allowed to proceed as a class-action suit (a hearing on this motion is scheduled for Sept. 24), and are then able to convince a jury that the company systematically discriminates against women, you may eventually hear the sound of glass ceilings shattering at Wal-Mart stores across the country.
Ellen Hawkes is a journalist and frequent Ms. contributor based in the Bay Area.