Newsroom / Business / Business / Atlantic International Partnership Headlines: Despite Setback, Plaintiffs to Pursue Wal-Mart Cases

Atlantic International Partnership Headlines: Despite Setback, Plaintiffs to Pursue Wal-Mart Cases

Wal-Mart has spent 10 years fighting claims that it discriminated against female employees, and by many accounts, it has improved its hiring and promotion policies for women during those years.
TD Canada, TD Canada, United States of America ( 06/07/2011

Wal-Mart has spent 10 years fighting claims that it discriminated against female employees, and by many accounts, it has improved its hiring and promotion policies for women during those years.

Monday’s Supreme Court victory for Wal-Mart, the world’s largest retailer, may not mean the end to litigation over discrimination claims, however. Even though the company says it has substantially increased the percentages of women in managerial positions, the plaintiffs in the longstanding case said the company should expect several more years of challenges to its employment practices.

The Supreme Court decision said that up to 1.5 million women who worked at Wal-Mart did not have enough in common to constitute a class in a class-action suit. The decision did not address whether Wal-Mart had discriminated against women, which plaintiffs contend leaves the door open for further litigation.

Betty Dukes, the lead plaintiff, said in a call with reporters that “even though we didn’t get the ruling that we had hoped for, we still are determined to move forward and to present our case in court.”

Joseph M. Sellers, a lawyer for the plaintiffs, said he would pursue three routes: filing individual claims with the Equal Employment Opportunity Commission; slicing the giant class-action lawsuit into smaller ones that would have a better chance of advancement; and pursuing individual discrimination cases. “Instead of one case, this case will be splintered into many pieces,” he said in a call with reporters.

Wal-Mart’s lawyers disputed Mr. Sellers’s interpretation of the Supreme Court’s ruling, but the plaintiffs’ counsel had already been studying how to pursue smaller cases.

“One of the things we started a while ago doing is preparing and evaluating for a number of women filing charges with the E.E.O.C., probably individual charges, though some of them may be framed a little bit more broadly,” Mr. Sellers said in an interview. He plans to begin filing claims within one to two months, and might file up to several thousand of them, he added.

Mr. Sellers also said that although the justices had ruled that women who worked at Wal-Mart nationwide did not have enough in common to bring a class-action suit, “we read the decision by the majority as indicating that there may be the possibility of some smaller, more narrowly framed classes that could be pursued.”

“So we could end up with some cases framed store by store, or region by region,” he said.

The plaintiffs’ lawyers are still seeking complaints from female Wal-Mart employees who have been denied equal pay or promotion, via a Web site, Brad Seligman, a lawyer for the plaintiffs, said that more than 12,000 women had contacted the lawyers during the course of the suit, and that “I expect, after today, thousands more.”

Theodore J. Boutrous Jr., a lawyer for Wal-Mart, said he interpreted the Supreme Court decision as prohibiting even smaller class-action suits to proceed.

“Under today’s ruling, the way we read it, no class can be certified in this case,” Mr. Boutrous said in a call with reporters. “I don’t think it leaves the plaintiffs any running room for any class actions of any size.”

Kevin M. McGinty, a lawyer who specializes in class-action suits at the firm Mintz Levin and was not involved in the case, said that the plaintiffs could bring class actions based on smaller groups of people. But, he said, it would not be easy to prove that managers treated all members of even a narrowly defined class consistently.

“The problem is, you still have a lot of very individualized questions concerning specific employees, like was someone terminated because she was a bad employee, or because she was a woman?” he said. “Answering those questions is hard to do without getting into the specific cases of the individual employees.”

Whether or not other class-action suits are created, both sides said they expected individual sex-discrimination claims to be taken to court.

“The named plaintiffs would retain their claims and their ability to move forward in the action,” Mr. Boutrous said. “We’ve always believed we have very strong arguments in response to their claims.”

Wal-Mart said Monday that it had long been aggressive about hiring and training women. Gisel Ruiz, executive vice president in charge of people at Wal-Mart U.S., said that “we’ve had women’s initiatives in place a very long time.”

In 2010, Ms. Ruiz said, 57 percent of Wal-Mart employees were female. From 2005 to 2010, the company increased the percentage of female low-level and midlevel managers (like assistant managers and store managers) to 41.2 percent, from 38.8 percent. From 2007 to 2010, the percentage of female executives increased to 28.2 percent, from 26.7 percent. She also said that Wal-Mart had put training and development programs for women into place.

In a dissent, Justice Ruth Bader Ginsburg noted that in earlier complaints, plaintiffs had noted that women made up 70 percent of hourly employees, but just a third of management employees.

Ms. Dukes and Christine Kwapnoski, another plaintiff and an employee at the Sam’s Club division of Wal-Mart, said working conditions had improved at the company.

Ms. Dukes said, for example, that after the lawsuit was filed in 2001, her store started posting policies about discrimination, and started explaining to employees how they could get promotions.

“I have seen quite a few changes being made in the last 10 years,” Ms. Dukes said.

“We have seen change,” Ms. Kwapnoski said. “It’s still just a Band-Aid, though.”

Of 15 women working for Wal-Mart stores in New Jersey who were interviewed on Monday, some said that they had seen little change in recent years, while others said there was little difference in the treatment of men and women.

“There are more women managers here than men,” said an employee named Ann at a Wal-Mart in Kearny. She declined to give her last name for fear of retribution; she and other employees said they had been warned not to speak to news media.

Four of the employees said that while they saw no difference in pay, opportunities for advancement or working conditions between men and women, they did believe that managers picked favorites, though those favorites were not based on gender.

A few Wal-Mart shoppers interviewed on Monday said they disagreed with the Supreme Court’s decision.

Evelyn Rosario, an assistant teacher from Hoboken who was shopping at a store in Secaucus, N.J., said she knew about the lawsuit, but shopped at Wal-Mart anyway. “I feel bad for those women, but Wal-Mart does have good deals,” she said. “They make it hard not to shop here.”

Esther Dillard, 42, a homemaker from Cliffside Park who was shopping at a Wal-Mart store in North Bergen, N.J., said that the lawsuit had affected her patronage of the store.

“I don’t shop here as often as I otherwise would,” she said. “I decided that if there was an inequality situation, I wouldn’t want to shop at the store as often.”


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