Do the 1.5 million women employed by Wal-Mart at any time since Dec. 26, 1998, have the right to file a class action lawsuit against the retail chain over discriminatory pay and promotion policies and practices in violation of Title VII of the Civil Rights Act of 1964?
Attorneys debated that question before U.S. Supreme Court justices March 29 in the matter of Wal-Mart Stores Inc. v. Dukes, for which NASW and others filed an amicus brief saying yes, they do have that right.
Attorneys representing six female former Wal-Mart employees convinced lower courts to certify the class by demonstrating that questions of fact — to be decided at trial — exist common to Wal-Mart’s female employees nationwide. Their evidence shows that company-wide, women are paid less than men in comparable positions and receive fewer promotions to in-store management positions.
Plaintiffs’ evidence also shows that Wal-Mart’s managers rely on outmoded sex stereotypes to make employment decisions and that women are treated as less valued employees than men, regardless of their actual performance. They claim that Wal-Mart’s policies and practices make it difficult for female employees to learn about pay discrimination by prohibiting employees from discussing their pay and threatening those who raise questions about pay and promotion decisions.
“Under these circumstances, class certification is not only an appropriate mechanism for addressing plaintiffs’ claims of employment discrimination,” NASW’s amicus brief says, “it is an indispensable one.”
Despite efforts to close the gender wage gap in the U.S., women still make only 77 cents on the dollar compared with male counterparts, and just 40 percent of managers are female despite women comprising 49 percent of the workforce, the brief points out. “This gap can be fairly attributed to discrimination,” it notes.
“The Supreme Court’s ruling in this case will have a significant impact on women’s ability to join together to file class actions against their employers when they suffer discrimination,” said Sherri Morgan, associate counsel to NASW’s Legal Defense Fund.
The American Civil Liberties Union and National Women’s Law Center prepared the brief, which NASW joined.