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Can Female Wal-Mart Workers Stand By Their Man and Win? Probably Not

written by: •edited by: Michele McDonough•updated: 6/27/2011

Lawyers across America just love those class action lawsuits but where did the Wal-Mart discrimination lawsuit against women go wrong? America’s top judges said, no can do (or hear), but saying no to attorneys in labor law cases doesn’t mean no -- it means keep fighting.

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    The Fairer Sex

    Walmart Exterior In the Wal-Mart discrimination lawsuit, female workers tried their very best relying on attorneys to fight the good fight and win them back pay due, and at first it looked good until the Supreme Court voted five to four against hearing the suit with Justice Antonin Scalia offering “They have little in common but their sex and this lawsuit." The court also said the women were attempting “…to sue about literally millions of employment decisions at once…and needed some glue to validate complaints."

    Or, to translate, the case just didn’t quite fit into the standards of a class-action lawsuit. Wait a minute here, isn’t a class-action lawsuit about a group of people coming together—all being harmed by one organization, product or service—hiring big shot lawyers and holding their stance on what’s right? This reminds me of how Catholic Cardinal Bernard Law of Boston resigned before the priest sex scandal reached the Supreme Court—only in that case, millions were paid to those suffers.

    I’m not saying the Catholic priest scandal means men win and women don’t win, but wait, maybe I am. Yes, it’s time to glance up to my name again at the top because yes, I am of the female persuasion…but I digress.

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    One Wal-Mart Manager’s Discretion Doesn’t Make for a Class-Action Lawsuit

    Justice Scalia Says No Slate Magazine summarized the plaintiff’s case: “A common culture of sexism led to a pattern and practice of discrimination against women working at Wal-Mart stores nationwide," and claimed “…almost three-fourths of Wal-Mart’s hourly wage sales employees were women." Again a translation, of the 1.6 million women employed by Wal-Mart since 1998 who are involved in the suit filed initially by Betty Dukes in 2001, no raises or promotions were offered. These gals feel they’ve got some back pay coming and they’ve also got declarations from 120 women claiming to be victims of the no raise, no promotion bad deal.

    I love Wal-Mart’s official response revealed by Facing South’s Joe Atkins, “The group's nothing but a ruse to get unions' foot in the door." Oh no, that “union" word—so controversial these days, isn’t it? Nice going, Wal-Mart.

    Here’s the meaty part of the suit. Apparently since every Wal-Mart store manager can use his or her discretion to promote or increase a salary, how can the conglomerate be responsible for every manager’s opinion? So if manager Joe Smith in Toledo only promoted one woman since 1998 and store manager Sally Jones in Austin promoted no women since 1998, because the two don’t work at the same store and are allowed to be “discretionary" when making these types of decisions, their distance does not make for a class-action suit.

    Basically, because all Wal-Mart stores act as a single unit (sounds Borg-like here), women who feel they’ve been harassed should file a lawsuit with the stores individually. Yeah, more lawsuits, more attorneys’ fees and the only winners will be the lawyers—if they win at all.

    Those harmed in the 1994 $3.4 billion class action suit filed against Corning, Baxter, Bristol-Meyers Squibb/MEC and 3M stated the manufacturer’s breast implants caused auto-immune disease because of varying amounts of silicone. Here, the surgeons utilizing these products were not sued, the manufacturers were—most likely with doctors offering expert testimony on the effects of silicone. While doctors were the actual inserters of these breast implants, the Supreme Court determined the manufacturers were at fault, not the individual surgeons who were likely given demonstrations on the implants and assured clients of their safety levels. So how does the Supreme Court determine which part of the tree is relevant when it comes to class action suits? Those at the top or those selling the product?

    Here’s where I have a huge problem when it comes to defining what class-action means. What about the Ford Pinto nightmare? The blow-ups and fires caused by faulty gas tanks didn’t mean consumers sued the dealerships that sold them. Nope, they went for the deep pockets of Ford Motor Company.

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    Attorney Bliss

    Walmart Discrimination When it comes to the Wal-Mart discrimination lawsuit, I must say as a business owner, any lawsuit is a no-win for both sides, except for the attorneys (sorry lawyers out there). Lawsuits I have been involved in have lawyers constantly asking for the same documentation over and over again (and more billable hours to review the same stuff again) with large fees ranging from paralegal time to copying fees to date stamping fees to yep, those big fat hourly fees charged by attorney associates. Then there's the really big fees charged by the lead attorney on the case.

    This by no means is an episode of Law and Order where the bad guy is caught, arrested, investigated by the attorney general’s office, brought to trial and led away in cuffs (at least most of the time). No folks, instead, this is the age of “I’ll sue you" and “Go ahead and I’ll sue you back," and those suing usually go for the top dog with the deepest pockets—or in this case, Wal-Mart.

    I’m not sure how everything will turn out in the long run. These women want their day in court and Wal-Mart has mega corporation backers trying to halt the case, too. Tobacco and pharmaceutical companies are running to Wal-Mart's aid for fear the same could happen to them.

    Does this mean I’ve lost hope for the American justice system? For the injured or those claiming injury or injustice, indeed it does seem a little unfair. Maybe it depends on the attorneys handling the case? Will a Yale attorney win over an attorney who studied at New York University? It does give one pause.

    As we head toward 2012, you can bet the farm nothing will be decided—at least this year. The court process is slow, costly, and yes those nine justices don’t work all that much. They do study a lot and review similar rulings, however—and vacation in the Hamptons, the Virginia Suburbs or at trendy (and expensive) Rhode Island homes.

    Where is due process in America folks? Is it alive? Or, is this part of our constitution being rewritten based on the cases at hand? You tell me.

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    Resources

    Johanek, Marilou – Toledo Blade, “Woe to These Women Because Goliath Beat Their David", June 23, 2010. Retrieved at http://www.toledoblade.com/MarilouJohanek/2011/06/23/Woe-to-these-women-because-Goliath-beat-their-David.html

    Atkins, Joe – Facing South – “Wal-Mart Gets Scalia and Co. Pass on Sex Bias Case", June 23, 2011. Retrieved at http://www.southernstudies.org/2011/06/the-southern-front-in-the-corporate-war-on-workers.htm

    Ford, Thompson Richard – Slate Magazine- “Everyday Discrimination: Why the Wal-Mart Sex-Bias Lawsuit is the Most Important Case the Supreme Court Will Hear This Year" March 28, 2011. Retrieved at http://www.slate.com/id/2289354/

    CNBC - American Greed - Breast Implant Class Action Lawsuit retrieved at http://www.cnbc.com/id/35988343/Top_10_Class_Action_Lawsuits?slide=6

    Leggett, Christopher, The Ford Pinto Case retrieved at http://www.wfu.edu/~palmitar/Law&Valuation/Papers/1999/Leggett-pinto.html

    Image Credits:

    Wal-Mart Exterior - Wikimedia Commons/Creative Commons Share Alike License

    Justice Antonin Scalia - Wikimedia Commons/The Oyez Project

    Wal-Mart Protest - Wikimedia Commons/Evil Smiley