Women suing Wal-Mart ready for hearing on class status in discrimination lawsuit
CHUCK BARTELS
Associated Press
LITTLE ROCK - Six women filed a lawsuit against Wal-Mart Stores Inc. alleging the retail giant discriminated against them in pay and promotions because of their gender. But when company lawyers walk into a San Francisco federal courtroom this week, they'll be trying to keep another 1.5 million women from being added to the complaint, which would make it the largest suit of its kind, ever.
Wal-Mart spokeswoman Mona Williams said the company is the target of 6,649 active lawsuits but none weighs more on the company than the discrimination claim.
"I would say it is the most important because of the sheer scope of it. It is No. 1 on our radar screen right now," Williams said.
The plaintiffs want the suit elevated to class status, opening it to a wide range of current and former female workers dating back to 1998 at the nation's largest private employer.
A hearing on that issue before U.S. District Judge Martin Jenkins had been set for next Friday. But Wal-Mart spokeswoman Mona Williams said the hearing was canceled and has not been rescheduled. A ruling is not expected for months.
Bentonville-based Wal-Mart argues the class would be too big to manage and claims the plaintiffs did not use commonly accepted statistical methods in compiling their numbers. Also, the company argues that the scope of the proposed class is without precedent.
Lawyers for the women, who claim they were harassed or denied opportunities by individual Wal-Mart operations, say the corporate whole is at fault. But the company says managers are free to make their own decisions and the plaintiffs can't show enough commonality to warrant class status.
The lawsuit includes statements from women across the country who claim they were subject to unfair treatment. Some were promoted to management, but claim they were still kept from moving up to the levels they deserved because they are women.
Tammy Hall started with Wal-Mart in 1986 in Cullman, Ala., helping set up the store and then working as a cashier. Her path with the company took her into management - and to Alaska. She says she quit in 2001 because of nepotism, broken promises and convenient interpretation of company rules - all of which she says amounts to discrimination.
Sheila Hall of Conway, Ark., put in five years at her local Wal-Mart, and quit after being denied promotions five times. She said the last straw was in 1999 when she was passed over for a support manager position that was given to the girlfriend of another manager.
In Florida, Ramona Scott worked as a personnel manager for Wal-Mart stores in Pinellas Park near St. Petersburg and as a customer service manager in St. Petersburg, starting in 1990.
Scott said she noticed that workers at store departments were segregated by gender - men working in electronics and sporting goods with women at the registers. The majority of managers were men.
At Pinellas Park, Scott said she had access to payroll records and saw that men were paid more than women and men drew most of the available overtime pay. In 1993, she recommended a female cashier for a merit raise but the store manager turned it down, saying, "Men are here to make a career and women aren't. Retail is for housewives who just need to earn extra money."
Later, she recommended that a male employee not be given a raise, but was told by an assistant manager that the man had a family to support.
"I pointed out that I, too, had a family to support, I was a single mother, but he just walked away. I did not receive a raise," she said in court papers.
She said she gave up on seeking promotions when, in 1997, a male manager told her that to get along with him, "I needed to behave like his wife," she said, which meant waiting on him and bringing him coffee.
She left Wal-Mart in 1998.
Each side has attacked the other's interpretation of how personnel decisions involving women are made at Wal-Mart.
Williams, the Wal-Mart spokeswoman, says the company's promotion rates of women shows that Wal-Mart has "more opportunities for women than any other employer in the country." The plaintiffs say Wal-Mart only started keeping those statistics as the evidence-gathering period in the lawsuit was coming to a close in January.
The plaintiffs say only 14 percent of Wal-Mart store managers, the top job at local Wal-Marts, are women. Overall, competitors have more than 50 percent women in management but Wal-Mart is at about 35 percent, the plaintiffs claim. The plaintiffs also say that women who are in management are paid less by Wal-Mart. Male store managers average a salary of $105,682 while women average $89,280.
Regardless of the hearing's outcome, plaintiff attorney Brad Seligman of Berkeley, Calif., predicts the loser will request an appeal hearing before the 9th U.S. Circuit Court of Appeals.
The lawsuit was filed in 2001, and listed Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson and Patricia Surgeson as plaintiffs.
Perry Binder, an assistant professor of legal studies at the Robinson College of Business at Georgia State University in Atlanta, said the judge's ruling will be critical for both sides.
"Any time a class gets certified, there is power in unity. Any time a class-action suit is not certified, then you have to have individual plaintiffs filing individual lawsuits," Binder said.
"This is the biggest leverage point - which party's got the leverage is the biggest (aspect) of a lawsuit," he said.
The plaintiffs describe several examples of discrimination, including a required meeting for female managers that was held at a strip club. Another meeting allegedly occurred at a Hooters restaurant, which is known for scantily clad female servers.
"The key is whether there is a systematic, across-the-company level of gender discrimination," Binder said. "What the plaintiffs have to prove is that this truly is a (men's) club."
Wal-Mart acknowledges some isolated cases have occurred in which women were not treated fairly. But it denies any systematic discrimination among its stores and says no legal basis exists to certify the class.
Binder said the plaintiffs have to come up with "smoking gun documents."
"The key for the plaintiffs is to find documents that link Wal-Mart to nationwide discrimination," Binder said, making it clear he doesn't know whether such documents exist.
Binder said the plaintiffs have to subpoena electronic archives of internal e-mails, computer files, instant messages and the like.
"This is going to be a very costly proposition. This is what litigation is in the 21st century - searching computer banks for so-called deleted e-mails," Binder said.
Williams said that any worker who perceives unfair treatment can use Wal-Mart's open-door policy to work up the chain for satisfaction.
"We are a very decentralized company and store managers have a lot of discretion when it comes to decision-making," she added. "With more than 3,000 stores, there are occasional errors in judgment."
Seligman said the opposite is true. Store visits by Wal-Mart executives, real-time computer analysis, Bentonville training sessions for far-flung store managers all telegraph a central point of control.
"For class-certification purposes, is there a common dispute here? Clearly, there is," Seligman said.
ON THE NET
Wal-Mart Stores Inc.: walmartstores.com
Plaintiffs' attorneys' site: walmartclass.com
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