Walmart's Woman Problem

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Walmart, the U.S.'s largest civilian employer, has long been accused of denying its female workers the same promotions and pay it offers their male counterparts. But the sex-discrimination case that finally reached the Supreme Court on March 29 wasn't primarily about one company's record on salary equity. It was also about whether a handful of plaintiffs in any case can claim to be representative of a larger pattern of discrimination. The suit brought by six women seeks billions in payouts for up to 1.5 million current and former employees. If the court allows a group of that size to go forward behind a single claim, the case will become the biggest employment class action in history and a model for others to follow.

When this legal fight started 10 years ago, Walmart already had a nondiscrimination policy in place. But the plaintiffs--led by Betty Dukes, a 61-year-old greeter from Pittsburg, Calif.--claim that individual Walmart store managers are given so much discretion that the edict often amounts to little more than lip service. The most recent statistics provided by Walmart, from 2009, show that 29% of senior-level employees are female, while women make up 59% of its workforce overall.

Dukes' lawyer, Joseph Sellers, reels off anecdotes of women who were denied promotions because, managers said, men would rather take orders from men or because men were viewed as the only breadwinners. "The company," Sellers says, "is kind of in a time warp." But the Justices pressed Sellers to prove that there is an actual company policy--in this case, a practice of ignoring its own nondiscrimination rule--that leads to bias on the whole. "How many examples of abuse ... need to be shown before you can say that flows from the policy rather than from bad actors?" Chief Justice John Roberts asked. "I assume, with [3,400] stores, you're going to have some bad apples."

Walmart's defense was questioned more by the three female Justices (the most to have served on the court at once), while the discrimination claims were probed more by the men. If the court rules that the class is too big, Dukes and others can still pursue claims individually. But with likely compensation awards of roughly $1,100 for each year of work, few may be motivated to put up the legal fees.