Sally C. Pipes - Contributor
[Courtesty of Pacific Research Institute]
C. Pipes is President and CEO, Pacific
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Suit Against Wal-Mart Obtains Class-Action Status
Payday for militant lawyers...
[Sally C. Pipes] 7/12/04
On June 22
here in San Francisco, U.S. District Judge Martin Jenkins granted
status for a suit charging that
Wal-Mart discriminates against women. That is a huge escalation,
changing it from a case involving seven women to 1.6 million
(current and former employees), the largest class action on record.
This is what the plaintiffs’ attorneys wanted but the case
is far from over.
As some observers
have noted Wal-Mart is experiencing the “Microsoft
phenomenon” of size and scope, driving scrutiny and litigation.
Founded by Sam Walton of Bentonville, Arkansas, in 1962, Wal-Mart
has become the nation’s largest retailer with 1.3 million
workers and 3,578 stores. As such, the highly successful company
is an obvious deep-pockets target.
As we noted last year, that is why militant attorneys are suing
the retailer, and not some local department store. A payoff involving
1.6 million people would be huge and has lawyers panting. Besides
its size and success, Wal-Mart is also a non-union operation,
attracting the wrath of the feminist organizations like the National
Organization of Women (NOW).
Wal-Mart has been
named NOW’s “National Merchant
of Shame” over labor issues. But if Wal-Mart is such a
bastion of oppression, why do so many women choose to work and
shop at its stores?
Women comprise 66
percent of Wal-Mart’s hourly workforce
and 80 percent of the department managers. The class-action plaintiffs
charge that few women move up from there but when the company
posted a notice for a management training program, 43 percent
of the applicants were women, the same percentage that they promoted.
Perhaps many women choose to work at Wal-Mart because it offers
profit-sharing and bonus programs, both criticized by unions.
Union membership has dropped from 30 percent of the workforce
in the 1950s to some 13 percent today.
Wal-Mart also contributes to a 401(k) for its employees, up
to two percent of pay, even if the employee chooses not to contribute.
The company denies that it discriminates and bases remuneration
on position, experience, performance, and other qualifications.
But the case against Wal-Mart follows the standard feminist stereotype
of women as victims, men as villains, and large corporations
as inherently evil.
In this vision, disparities in pay or the number of women in
management can only be the result of discrimination and must
be rectified by court action or the federal government. Expecting
the workplace to conform to politically correct gender and ethnic
quotas is to ignore personal differences, effort, and, of course,
Only a small group of women who have worked at Wal-Mart since
1998 are supporting the case. The suit was filed in San Francisco,
which makes perfect sense. A suit of this type requires careful
judge shopping and the attorneys did their homework well. Judge
Martin Jenkins is a Clinton appointee who accompanied his class-action
decision with comments about the 50-year-old Brown versus
Board of Education decision. That would suggest the judge has already
made up his mind on the outcome of the case.
Wal-Mart has appealed
Jenkins’s class-action ruling but
the appeal goes to the Ninth Circuit, easily the most liberal
appeals court in the nation. Wal-Mart could persuade the court
to limit the size of the class, possibly separating claims of
unequal pay from questions of promotion. If Wal-Mart loses the
case, experts predict the case could yield an award of more than
$1 billion in back pay alone. This would be double the largest
employment discrimination settlement in American history.
As one account of the case astutely noted without the class-action
status, the case would be limited to a few individual claims
or might even collapse. In reality, the case of every individual
woman has a number of variables that are worthy of attention.
Many men at Wal-Mart make less than some women at Wal-Mart. Many
men do not rise to management, for a variety of reasons. Individual
differences, however, do not interest feminists, who force everything
into their tired template of gender discrimination.
The lesson for successful companies is that if they want to
treat people as individuals, and not members of a victim group
or class, they could face a three-pronged attack of greed, feminism,
and judicial activism. This, not competition, is what turns the
marketplace into a hostile environment.CRO
2004 Pacific Research Institute