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Peaceful Revolution: Wal-Mart Third Attempt to Derail Largest Sex Discrimination Class Action

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Tomorrow, March 24th, Betty Dukes and the now two million women who are members of the largest sex-discrimination class action case, Dukes v. Wal-Mart, move one step closer to victory. A panel of 11 judges of the federal Ninth Circuit Court of Appeals will hear Wal-Mart’s latest attempt to stop this case from moving forward as a class action.

In 2001 Betty Dukes and a handful of women sued Wal-Mart, charging it violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of an individual’s race, color, religion, sex or national origin. They charged that women who work at Wal-Mart are paid less than men in comparable positions despite having higher performance ratings and greater seniority. They also allege that women receive fewer promotions and when promoted they wait much longer than male employees.

Following two years of discovery, including review of over a million pages of documents (including Wal-Mart’s employee compensation data), depositions of both Wal-Mart executives and our clients, testimony of statisticians, a labor economist and a sociologist, the District Court certified the class finding that common questions of fact and law existed. The court also found that there was significant evidence of corporate-wide practices and policies of excessive subjectivity and gender stereotyping in personnel decisions. The class was certified for injunctive relief and punitive damages.

This is Wal-Mart’s third attempt to decertify the class, and it has garnered the support of large corporate interests, as well as the Pacific Legal Foundation whose amicus brief in support of Wal-Mart sums up their view of this case. Their two points are that “class certification would violate Wal-Mart’s due process rights” and that “federal courts are not the proper forum for redressing broad social justice claims or disputes between social classes.”

When broad social justice goals are embedded in the law, then courts must redress these claims. Title VII was enacted with the stated goal of eliminating the societal norm which relegated women and men of color to second class status in employment, excluding them from many jobs, paying them lower wages and subjecting them to the least desirable working conditions.

Since this action was filed Wal-Mart has put forth numerous arguments seeking to defeat class certification: the case is too big and unmanageable; plaintiffs’ claims are not typical; there is no evidence of common practices that harm the plaintiffs; and Wal-Mart’s right to due process would be violated. The case is big because Wal-Mart, with 4,259 stores, is the nation’s largest employer. Wal-Mart wants the right to defend itself against each and every woman who claims she was paid less or unfairly denied promotion opportunities.

Class actions were established as a vehicle for addressing systemic harms, and Wal-Mart and many other large businesses seek to convince the courts that justice is better served on an individual case by case basis. But given the astronomical disparity in resources between Wal-Mart and the underpaid female class members, this case presents the textbook example of why class actions have been–and still are–the only viable means of redressing systemic discrimination. A Wal-Mart employee has a better chance of winning the Lotto than garnering the resources to sue one of the largest profit-making enterprises in the world. Wal-Mart knows that if it can defeat class certification, it diminishes the likelihood it will be held accountable for its wide-spread discriminatory practices.

Until recently big business enjoyed a period of exuberance and expansion fueled by the mantra that less oversight and regulation fostered business growth and prosperity. Accounts of corporate excesses and irresponsibility (and at times criminal activity) remind us daily that an absence of regulation is not a good thing. Wal-Mart is one of the very few corporations that continues to post a profit and is performing admirably well in the rough economic environment. Our clients want Wal-Mart to succeed, and as the company’s backbone, they should be sharing in its success. They look forward to the day when every woman who works or shops at Wal-Mart knows that the Company’s financial success has not been made at the expense of its female workforce.

A Peaceful Revolution is a blog about innovative ideas to strengthen America’s families through public policies, business practices, and cultural change. Done in collaboration with MomsRising.org, read a new post here each week.

NOTE: Cross posted from Huffington Post: http://www.huffingtonpost.com/debra-a-smith/ipeaceful-revolutioni-wal_b_178260.html

About the Authors: Irma D. Herrera is the Executive Director of Equal Rights Advocates, a San Francisco based organization whose mission is to protect and secure equal rights and economic opportunities for women and girls through litigation and advocacy. Her articles on legal and cultural issues were published in the New York Times, the Washington Post, Newsday, and Ms. Magazine. Debra A. Smith has over twenty-five years experience litigating complex employment discrimination and other civil rights. Debra has been with Equal Rights Advocates since July 2001 where she continues her class action litigation, including co-counseling in the largest sex discrimination class action to date in the United States against Wal-Mart Stores, Inc. which involves more than 1.6 million low wage women workers.

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The Opposite of a Vicious Cycle…

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Didn’t they used to say that bad news came in 3’s? Today if feels like it’s coming in 3,000’s. Jeez, I can’t remember the last good news that I’ve heard about my portfolio, the economy, the workplace, world events, etc. Ouch!

Which reminds me of a classmate’s question during my old MBA days. We were in our Organizational Development class and he asked, “What’s the opposite of a vicious cycle?”

His question was greeted with blank stares. After a pause the professor went back to his lecture, that wasn’t burdened by any actual insight, on high performing teams.

I was chatting with another classmate at the break in our class. He blurted out, “A virtuous cycle.” I asked him what he was talking about and he continued, “A virtuous cycle is the opposite of a vicious one.”

Virtue. What a concept. But how do we actually bring it to work?

This isn’t rocket science. It just involves being more empathetic and awake.

As I looked around, I started to notice that there are lots of people who are who are being virtuous daily.

Take Jill at the gym. She is a personal trainer at the local 24-Hour Fitness. I’ve never worked out with her, but I have watched her work with many clients. Unlike most other trainers, whose sessions resemble enhanced interrogation techniques, her sessions are full of laughter and joy. She takes her job well beyond perspiration to inspiration, by the way she talks, looks and engages each person during their workout.

There is also a supermarket checkout person in Oakland that a friend told me about. When people are checking out she’ll ask questions about what they’re planning to make with their groceries. She always has a stack of homemade recipe cards that she offers to people. She has dog biscuits and candies for the kids. My friend tells me that routinely people will wait in a long line for her, while other checkout lines in the store are empty.

Finally, on a recent airplane flight a flight attendant went through the entire cabin to personally thank each passenger. I asked her about it and she says that she does it on every flight because she appreciates that her job exists because of these customers.

Virtuous cycles. Think of them as the opposite of Bernie Madoff, AIG, John Thain and the rest of our drowning-in-doom headlines.

Don’t get me wrong, they’re not cosmic cures for what ails us. They’re just band-aids. But when you are bleeding, isn’t a band-aid just what you need?

Last week I decided to jump on the virtuous cycle bandwagon. A woman carrying a bouquet of flowers was walking toward me on the street. I said, “Beautiful.” And she said, “Yes, I love these flowers.” I said, “No. I was talking about you.” She got a huge smile on her face and stopped dead in her tracks. I never slowed down and just kept walking.

Suddenly it got contagious. A friend called me with a problem that her brother was having and freed up time over the weekend to talk to him. I wrote a recommendation for a business colleague, unsolicited. I brought the manager of my apartment building aspirin after she casually said she had a headache.

There isn’t often much you can do to prevent a vicious cycle. But each and every one of us can all start a virtuous one. Get out there and make it a great day for someone else, even when you don’t feel like it.

It sounds crazy to make kindness deposits with the people around you. But it’s crazy like a fox, because quickly you’ll find that most people will quickly reciprocate and send positive energy your way. Now if we could only get the banks to handle our deposits this intelligently.

About our Author: Bob Rosner is a best-selling author and award-winning journalist. His web site, workplace911.com, contains a comprehensive archive of strategies for surviving today’s workplace. He is a fan of Workplace Fairness and can be reached via bob@workplace911.com.

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DOL to suspend Bush H-2A Rules

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The Labor Department’s announcement of its proposed temporary suspension of the Bush Administration’s changes to the H-2A agricultural guestworker program will be officially published in the Federal Register today (Tuesday, March 17th).

The Bush Administration finalized its changes to the guestworker program in midnight legislation last December. The new rules for the program, which slash wages and worker protections for our nation’s farmworkers, went into effect January 17th.

Several farmworker groups, including the United Farm Workers (UFW), the Farm Labor Organizing Committee (FLOC), Pineros y Campesinos Unidos del Noroeste (PCUN) and Farmworker Justice, among others, warned that the changes would have devastating effects for agricultural workers and tried to prevent them from taking effect. Those groups praised the new administration’s decision to review the new rules. Baldemar Velásquez of FLOC called the proposal “an important victory against the Bush Administration’s closed door policies in not allowing farm workers to have a say over important issues impacting their livelihood.”

“We thank the Obama administration. Our president has clearly demonstrated that we, Americans, now have a government that listens and cares about farm workers” said UFW President Arturo S. Rodriguez. “Today’s announcement is definitely a victory and is the first step in ensuring that the women and men who pick our food are treated fairly.”

The proposed suspension would be for a period of nine months and would give the Labor Department time to review the Bush regulations. There will be a ten day public comment period.

Meanwhile workers who begin their contracts during the period the Bush Administration’s rules are in effect (from January 17th until the suspension begins) may end up working for the lower wages and benefits of the Bush rules, said Bruce Goldstein, Executive Director of Farmworker Justice.

“A suspension of the Bush rules would be a great relief for our nation’s farm workers. The rules were illegal and DOL is acting responsibly in announcing plans to review them. However, it’s unclear what this means for workers who started their contracts under the Bush rules. The Department should not leave them out.”

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Not CEO Compensation, CEO Termination

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What will it take for me to invest in the stock market, as you suggested that I should, Mr. President?

I know the market is cheap and will eventually rally, but there is just one itty-bitty problem. I don’t trust the leadership of any organization that has received TARP funds or any other taxpayer money. GM, Bank of America, AIG, I’m talking to you!

Albert Einstein once said, “We cannot solve our problems with the same thinking we used when we created them.” Or with the same people. The same greedy “leaders” who hired mathematicians to design exotic financial scams, who clearly weren’t Einsteins, and got us into this mess in the first place.

I got a tear in my eye when Ken Lewis, the CEO of Bank of America, said that he was going to stay on the job until ever last penny was paid back to the taxpayers. Ken, don’t do us any favors. You need to leave. If for no other reason than you managed the 2008 TARP money so poorly that one of your top reports, Thain, was able to give $3.6 billion of it to his “top performers” (Readers: please supply your own sarcastic reference here).

TARP-receiving-CEOs, you have money. You have houses. Fancy cars. Trophy spouses. And you screwed up. Please step aside so we can find new leaders, who will bring confidence back to our leading corporations and the stock market. The very people who all of us would be willing to invest in again.

A friend, and former CEO, challenged me on this point. She asked, “Do you really want novices running these Fortune 500 companies?”

“Yes,” I replied. “If the last six months are the work of pros, then bring on the amateurs.”

However, there are real leaders out there. For every bank that acted like it was in Vegas, there are Credit Unions that avoided credit swaps and derivatives like they were a Port Authority toilet seat. I would trust a sober Credit Union CEO, who resisted the temptation to join mass hysteria for more stable returns, than the very guys who got drunk on them and who are now begging us for more, more, more.

There are also insurance companies, car companies and others who didn’t come to the taxpayers with top-hat in hand, asking to be bailed out. Let’s reward these real leaders for their insight and guts and let them take over these institutions who seem impossible to satiate or trust.

When I see that there is a new crew in charge, I’ll be ready to get out my checkbook and start investing. But I’m tired of throwing money at the same old screw-ups that used earlier taxpayer money for bonuses, fancy trips and remodeled offices. And I’m not alone.

One more thing would increase my confidence in the market. To have a Securities and Exchange Commission that isn’t just a lap dog, but is more of a junkyard dog. Mr. President, we need someone crazy enough to whip our CEOs into shape. Please allow me to humbly present a few possibilities:

  • Rudy Giuliani—can you think of a bigger bully to get the attention of the corner office crowd?
  • Simon Cowell—the colorful headlines he’d generate insulting today’s corporate titans could almost single-handedly save the newspaper industry.
  • Ari Gold—the way-too-hyper agent from HBO’s Entourage, but think about it, wouldn’t you be constantly looking over your shoulder if you were being regulated by a fictional character?
  • Eliot Spitzer—imagine what a burr in the side of Wall Street he’d be this time with an even bigger chip on his shoulder?

Imagine the current crop of CEOs out of the picture and seeing Rudy, Simon, Ari or Eliot with a big stick to keep the new ones in line. Heck, I’d start to invest again. Wouldn’t you?

About the Author: Bob Rosner is a best-selling author and award-winning journalist. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com.

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On International Women’s Day, Let’s Have Paid Sick Leave

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It was more than a hundred years ago that women workers in New York’s garment industry joined to protest poor working conditions: long working days, low pay and no voice in the decisions made in their workplace.

As we observe International Women’s Day 2009, the holiday designed to honor courageous working women in the past, present and future, it’s important to remember that we are still working to win workplace rights and achieve economic justice.

It’s important to note that 57 million workers still don’t have a single paid sick day and more than 100 million workers don’t have a single paid sick day, even to care for a sick child. This must change. Especially in these tough economic times, it’s critically important that America give its workers the time to care for themselves and their families without fear of losing a day’s pay, or worse, their jobs.

This is an issue of economic justice – and also an issue of public health. The very workers who lack paid sick days are the ones who take care of our children in daycare centers, care for our elderly in nursing homes and serve us our food in restaurants. Does a side order of the flu go with those fries? The lack of paid sick days is also a business threat because companies where workers lack paid sick days see decreases in productivity and in profits.

Some gains have been made.

In 2007, San Francisco became the first city in the country to establish paid sick days as a basic labor standard. In 2008, the Council of the District of Columbia unanimously approved an ordinance guaranteeing paid sick days for private sector workers. In the city of Milwaukee, a broad coalition – led by 9to5, National Association of Working Women – promoted a paid sick days ballot measure. Last November, with nearly 70 percent approval, voters adopted it.

But there is work to do.

The Healthy Families Act is federal legislation that would guarantee workers up to seven paid sick days a year to recover from illness or care for ill family members. Our elected leaders need to hear from us. Find out whether your members of Congress support the Healthy Families Act – and let them know where you stand on guaranteed paid sick days.

On International Women’s Day, and everyday, stand with women all over the country who know that if we change the workplace, we change the world!

About the Author: Linda Meric is Executive Director of 9to5, National Association of Women, which helps strengthen women’s ability to achieve economic justice. 9to5 has staffed offices in Wisconsin, Colorado, California and Georgia and activists in cities across the country.

For more information on 9to5’s paid sick days campaigns, visit www.9to5.org.

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Want to Commit Career Suicide? Here’s How

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Nothing surprises me at work any more. After personally responding to over 50,000 emails from the corner office and the cube and 14 years as a workplace advice columnist, I thought I’d seen it all. I was wrong.

CareerBuilder asked employees how often they arrived late for work. At the end of 2007, 15 percent confided they’re late at least once a week. By the end of 2008, with a million people being laid off all around them, you’d imagine that the percentage of late arriving employees would decline dramatically.

And you’d be wrong.

The number of workers routinely showing up late for work increased to 20 percent, with 12 percent admitting that they showed up late more than once a week.

Suicide. That’s what leaps to mind because being consistently late for work is seen by many managers, and Human Resources, as the easiest excuse to fire someone. In fact, 30 percent of companies say they have.

Anyone who is a regular reader of Workplace911, knows that I see former Merrill Lynch CEO John Thain as a human piñata, an example of wretched excess that just can’t be poked enough. Unfortunately, management doesn’t own a monopoly on stupid.

Take the California State employees who recently protested a cutback in their hours. Please! Too bad so many newspapers are going out of business, because these state employees need an easy way to learn that their plight ain’t so bad. They still have jobs.

Yes, this blog is an equal-opportunity criticizer. We take on CEOs and employees when either deserves a trip to the woodshed. Unfortunately this is far too rare, in a country where one political party seems to spend all its time fawning over leaders while the other party idolizes its followers. Isn’t it time for everyone to take off the rose-colored glasses and see how both sides have contributed to the nightmare we find ourselves in today?

Back to the increasing number of tardy workers, not only are more and more of us late, our excuses are getting exponentially dumber. You just can’t make this stuff up:

· “I got locked in my trunk by my son.”

· “My left turn signal was out so I had to make all right turns to get to work.”

· “I was attacked by a raccoon and had to stop by the hospital to make sure it wasn’t rabid.”

· And my personal favorite: “I feel like I’m in everyone’s way if I show up on time.”

I understand that the current economic headlines can drain the life force out of the most optimistic person. But seeing one in five workers choosing to be late stunned and depressed me. Let’s remember the context here, according to a recent poll by the Associated Press, 47 percent of workers fear they could be laid off, 71 percent know someone who has been and 63 percent report having trouble paying their bills. And the number of people late for work increases. Ouch!

I have a simple philosophy. I try to make it hard for my company to fire me. I make them work at it. Clearly I’m old school in this regard.

This survey reminded me of a boss who once wrote to me about one of his employees. She was sitting at her desk reading People magazine. He asked her to put it away and to get back to work. She began to cry and went on disability for two days. That’s what I’d call people who really need People.

Entitlement. That, unfortunately, seems to be the one thing that far too many bosses and employees share today, the belief that 90 percent of work is just showing up, perks included. We need to replace that “E” word with a new one, empathy. More employees who take the time to see the world through their boss’s eyes and more bosses who take the time to see through their employees’ eyes.

Our collective excesses got us into this mess. I believe only our collective empathy will allow us to dig our way out and to build a more humane and productive workplace. In the coming weeks I’ll outline strategies on how to accomplish this. Stay tuned…

About the Author: Bob Rosner is a best-selling author, award-winning journalist and contributor to On The Money. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com. You can contact Bob via bob@workplace911.com.

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