13.11.2019

Walmart could face a huge class action lawsuit from its female employees

On Monday (Nov. 6), female employees of Walmart filed a complaint in federal court, in Florida, related to the company’s pay and promotion practices, alleging years of gender discrimination.

They’re seeking to have the case certified as a class action lawsuit, which would bring in thousands more employees. They’re also asking for monetary awards, including back pay, for hourly and some salaried positions, according to Bloomberg. Among the allegations in the complaint, the plaintiffs say that the managers do not use”job-related criteria such as job performance or experience” to set wages and that men are often paid more, even when women have higher performance ratings.

In 2001, women who worked for the company filed a similar suit in what became a landmark case, Dukes v. Walmart, named for Betty Dukes, a greeter at a Walmart in California.

Three years later, that case—which represented 1.6 million female employees of the world’s biggest retailer—was granted class action status. By 2011, however, it had landed in the US Supreme Court, where its class action status was reversed in a 5-4 decision. The conservative judges of the court felt the women’s complaints were too dissimilar to be lumped under one suit. Walmart’s official policy banned gender bias, and store managers acted with autonomy, Justice Antonin Scalia determined.

“In a company of Walmart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction,” Justice Scalia wrote, according to the New York Times, reporting on the case again this summer, when Dukes died.

Justice Ruth Bader Ginsburg, representing the dissenters, wrote that “gender bias suffused Walmart’s corporate culture.” All of the judges agreed there was a problem with the form of the case, which did not argue that all 1 million plus employees were discriminated against in the same way.

A Walmart spokesman said in a statement published by Bloomberg that the claims “are unsuitable for class treatment because the situations of each individual are so different, and because the claims are not representative of the hundreds of thousands of women who work at Walmart.” Nothing has changed since 2011, he also implied.

Except there is a difference.

Six years ago, the Dukes suit prompted the Supreme Court to rewrite the guidelines for class action in employment-related cases; many argue the new rules make it more difficult for employees to sue companies for discrimination. The case filed this week, Forbes v. Walmart Stores, seeks to represent women in southeastern regional stores, not the entire country, in accordance with the new guidelines.

What’s more, the new challenge will be debated in a post-Harvey Weinstein world. It’s possible the cultural conversation about women’s rights more generally could influence judicial outcomes.

All of the seven plaintiffs who filed the suit were part of the original Dukes case. In many ways, this story picks up where hers left off.

Since that Supreme Court loss in 2011, more than 2,000 claims regarding pay and promotion at Walmart have been filed with the U.S. Equal Employment Opportunity Commission.

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