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TUESDAY The Long March Against Wal-Mart Continues by Sally C. Pipes 4/3/07

In February, the Ninth Circuit Court of Appeals ruled that a sex discrimination suit against Wal-Mart could proceed as a class action. Though applauded by feminists, this ruling will not help individual women in the workplace, as a dissent in the case recognized.

Judge Andrew Kleinfeld wrote that the ruling threatens the rights of women injured by sex discrimination. Women could file individual lawsuits, and that would ensure that they received just compensation and protect Wal-Mart from paying undeserving plaintiffs. There are bound to be plenty of those, along with undeserving attorneys.

The original case, Dukes v. Wal-Mart, began with only six women, from states such as South Carolina, Florida, and Indiana. The class-action ruling swells it to nearly two million, the biggest in American history, with a much bigger potential pay-off. Lawyers filed the original suit in San Francisco as a result of careful judge-shopping, with an eye to the liberal, politically correct Ninth Circuit.

As the nation's largest retailer, Wal-Mart is a target-rich environment for the left, of which militant feminism is part. Several years ago, the National Organization for Women named Wal-Mart its "National Merchant of Shame." NOW charged that Wal-Mart discriminates against women in both pay and advancement and promotes a corporate culture that seeks to keep women in their place. The stereotype should now be familiar: women are victims, men are villains, and large corporations are inherently evil. In this view, any disparity in the number of women in management can only be the result of discrimination and, of course, can only be rectified by court action or the federal government.

Personal differences, effort, and choice count for nothing in this vision. No woman is forced to work at Wal-Mart, no woman is required to seek a management position, and no consumer, male or female, is required to shop at Wal-Mart. Individual choice entails that kind of reality.

Wal-Mart's response is still that there is no pattern of discrimination. The company says that in 90 percent of their stores, women's pay is substantially the same as that of men, and that they promoted the same percentage of women that applied for various positions. If the company is a bastion of discrimination, it is certainly odd that so many women want to work there. When this case first appeared, women were 66 percent of Wal-Mart's hourly workforce and 80 percent of department mangers. These women were attracted by Wal-Mart's profit-sharing and bonus programs, the very features that enrage unions.

Union membership is now down to 12 percent of the workforce and a paltry seven percent in the private sector. Unions have tried to make inroads with Wal-Mart, so far without success. The massive class-action suit is shaping up as a scheme to punish the retail giant.

So where do we go from here? Wal-Mart can request that the panel of three judges review their ruling. A panel of judges from the Ninth Circuit could also reverse the decision. The company could also take the case to the U.S. Supreme Court, which has a habit of overturning the Ninth Circuit. 

Judge Kleinfeld also wrote in his dissent that the class-action ruling threatened the rights of Wal-Mart. That is significant because it seems to have escaped notice that in America the concept of rights applies to all parties. Wal-Mart has a right to treat people as individuals, not as faceless members of a victim group. The company is learning the hard way that those who choose to treat people as individuals can easily find themselves facing an axis of feminist ideology, judicial activism, and greed. That process could certainly stand some change. CRO

copyright 2007 Pacific Research Institute

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