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2011-03-31

Supreme Court Weighs Massive Lawsuit Accusing Retail Giant Wal-Mart for Sexual Discrimination Against Female Workers

Guests

Stephanie Odle, former Wal-Mart employee and one of the plaintiffs in Dukes v. Wal-Mart Stores, Inc.

Joseph Sellers, lead attorney in Dukes v. Wal-Mart Stores, Inc., and partner at Cohen Milstein Sellers & Toll PLLC.

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The U.S. Supreme Court has heard arguments on whether a massive class action sexual discrimination lawsuit can move forward against retail giant Wal-Mart. Current and former female employees say they were given lower pay and promoted less often than their male counterparts. We speak with former Wal-Mart manager and plaintiff Stephanie Odle, who says she is pursuing the case to change the company’s corporate culture, and the workers’ attorney Joseph Sellers. "We found in this case evidence of gender stereotypes about women that I have rarely seen," says Sellers. "They really are a throwback to the world in the 1950s." [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: On Tuesday, the U.S. Supreme Court heard arguments about an effort to bring a massive class action sex-discrimination lawsuit against the retail giant Wal-Mart. The case involves 1.5 million current and former female employees of Wal-Mart who filed suit in 2001, saying they were allegedly paid less and promoted less often than their male counterparts. If the lawsuit goes forward, it will be the nation’s largest-ever employment discrimination case.

During arguments on Tuesday, attorneys for Wal-Mart urged justices to block the case. Plaintiff and Wal-Mart worker Betty Dukes said she brought the suit on behalf of female Wal-Mart employees across the country.

BETTY DUKES: I brought this case because I believe that there was a pattern of discrimination at Wal-Mart, not just in my store, but I believe it is across the country. Since we have filed our lawsuits in 2001, I have heard from numerous women, telling me basically the same story as mine of disparative treatment in lack of promotion, as well in lack of pay.

AMY GOODMAN: Wal-Mart is the largest private employer in the United States. During Tuesday’s Supreme Court hearing, several justices questioned whether the corporation could be responsible for store-level decisions.

Justice Anthony Kennedy said the women’s claims seemed contradictory. He said the plaintiffs claimed on the one hand that sex discrimination permeates the entire company, but they also said Wal-Mart provides no standards to the store managers responsible for all personnel decisions. Justice Kennedy said, quote, "It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is."

Outside the Supreme Court, a Wal-Mart representative insisted the company abides by stringent policies regarding discrimination.

GISEL RUIZ: We’ve always had processes in place, and like Ted said earlier, we’ve had policies, strong policies, against discrimination in place long before the lawsuit was filed. I remember learning about those policies when I joined the company. And as I grew up with the company, then it became my responsibility to teach them forward. When we hear issues coming from our associates, we take action immediately. There are consequences for people who violate those policies.

JUAN GONZALEZ: To discuss this case, Dukes v. Wal-Mart Stores, Inc., we’re joined in Washington, D.C., by Joseph Sellers, the lead attorney for the women filing the suit. He’s a partner and head of the Civil Rights & Employment practice group at Cohen Milstein Sellers & Toll. He has represented victims of discrimination and other illegal employment practices individually and through class action suits.

AMY GOODMAN: And we’re joined by former Wal-Mart employee Stephanie Odle. She is one of the original plaintiffs in the case. She filed the gender discrimination claim with the U.S. Equal Employment Opportunity Commission against Wal-Mart in 1999.

Wal-Mart did not respond to Democracy Now!’s repeated requests for comment.

Stephanie, what happened to you?

STEPHANIE ODLE: I was discriminated against in several different ways in the eight years that I worked there in the nine clubs and three states I was in. One of the situations was, when I found out one of my male managers was making about $10,000 more a year than I was — he left his W-2 in my office — I confronted my district manager and asked for a raise. And he said, "He has a wife and kids to support." Then he asked me to write a budget and submit it to him, and he would roll it up to the corporate office and see what he could do for us — for me. He came back and gave me about, I think, $2,000-a-year raise.

The last one, the best one, was when they actually fired me to give my job to a man. That was in Arizona. And he — on Friday, he said, "Bye. I’m going to Lubbock to be the marketing manager." And I was the marketing manager. So, when I contacted the vice president and asked about that, he said, "Oh, I can guarantee you that wasn’t what was going to happen." When I later talked to human resources, he told me, you know, basically, "It’s too bad." And I told him, "Write my name down, because I am not going to go away. You are not going to get away with this." And he laughed and said, "Do you know how many people try and sue Wal-Mart each and every day?"

And it did take me six months to find attorneys that would take my case, and I finally did in New Mexico: Stephen and Merit. And they told me at the time, "You know, you have a great case, and we can win this case and move on, but you won’t be able to make a difference. You won’t change anything at Wal-Mart. If you want to make a difference and make a change for everyone out there, then we need to go class action." And so, that’s what we did, 11 years ago.

JUAN GONZALEZ: Well, Joseph Sellers, I’d like to ask you about that. It’s been 11 years just to get a hearing on not only the actual facts of the case itself, just on whether the plaintiffs can go forward in a class action lawsuit. Could you talk about the importance of that particular aspect? Because then you still have to go back to actually hearing the facts of the case, once that decision is made.

JOSEPH SELLERS: Well, that’s correct. We haven’t even gotten to trial yet. But whether this case can proceed as a class action is very important. As Stephanie said, we brought this case in significant part to make a difference in the company’s culture and in its personnel practices. It has — it had some of the most backward personnel practices of any company I’d ever seen, but because they were so standardless, they’ve been arguing, and including before the Supreme Court, that those practices can’t be challenged on behalf of this group of women. The consequence of that would be, first, Wal-Mart would avoid any accountability for what we found was widespread discrimination.

Women had been underpaid compared to men doing the same work in the same stores at the same time in every one of the 41 regions in which this company does business and have taken about twice as long to get promoted into management as men, again, with the same qualifications. So, changes to the company’s culture and to its system can only be achieved at this level through a class action. And many of these women would — have been underpaid, as a consequence, and have lost earnings. And most of them would be unable to ever get those kind of earnings and lost wages if we can’t pursue this in a class action.

JUAN GONZALEZ: Now, Mr. Sellers, you’ve represented plaintiffs in other major actions: 28,000 employees of Boeing in a discrimination lawsuit, also black agents of the FBI. What’s different about this case, in particular, other than obviously the size of Wal-Mart as the largest private employer in the United States?

JOSEPH SELLERS: Right. We have — I’ve seen some of the most dramatic evidence of discrimination in this case than I’ve ever seen. I have never had a case where the disparities, the evidence of women being underpaid and failing to get their fair share of promotions, is as consistent and widespread as we found in this case.

We also found in this case evidence of gender stereotypes about women that I have rarely seen. They really are a throwback to the world in the 1950s. The top human resource officer in this company admitted under oath, in the course of this proceedings, that having business meetings at Hooters restaurants, which was, we found, not an infrequent occurrence, was consistent with the company’s culture. We saw evidence that the — in the training program, they offer to all managers — every manager in the company goes through this training program in Bentonville, Arkansas — when people asked, "Why are there so few women in management?" the standard response they provide is because men are more aggressive in seeking advancement. We have examples of the sort that Ms. Odle has described to you, as well from a number of other women. And when women asked, "Why can’t I get promoted? I see my male counterparts getting promoted," the response not — fairly often was, "Because they have — because men are more effective managers. You should be home taking care of your children." Those are statements that are 50 years out of date, at least. And I rarely see those in companies that — even companies we are investigating for discrimination in other instances.

AMY GOODMAN: So, you have, Joseph Sellers, lower courts ruling Wal-Mart plaintiffs had offered enough evidence that sex discrimination was a company policy to proceed with a class action, the fact that women are paid less across the country, made up two-thirds of the employment — employees, but only one-third of the managers. But then you have Justice Anthony Kennedy, in the oral arguments, with his question, saying women’s claims seem contradictory. He said the plaintiffs claimed on the one hand that sex discrimination permeates the entire company, but they also said Wal-mart provides no standards to the store managers responsible for all personnel decisions. Your response to that?

JOSEPH SELLERS: There is no inconsistency in those two statements, as I explained to Justice Kennedy. The company, like many companies, gives managers at local levels a good deal of discretion, although usually most companies give them some guidance about how to exercise that discretion, some job-related criteria that you should take into account. This company didn’t do that, which is what we challenge.

But at the corporate level, at the top level, they have what they call "the Wal-Mart way." And the Wal-Mart way, in part, is to tell people how to behave like Wal-Mart employees, to do things the way that’s consistent with the company’s strong corporate culture. And that itself is fine. But one of those — one of the features of the Wal-Mart way is they communicated these gender stereotypes. So, one of the things in the Wal-Mart way that was communicated throughout the company is women are less valued as members of the workforce than men. And it’s not a surprise, therefore, that we found these kind of widespread disparities adverse to women. And I explained that to Justice Kennedy, and I hope that I was effective.

JUAN GONZALEZ: And Stephanie Odle, what about the Wal-Mart way? What were some of the manifestations of that that you saw as clear discrimination aimed at you and other women?

STEPHANIE ODLE: Well, there was another instance when I was the receiving manager, and I had two ladies that worked with me — the rest were men — and they were extremely underpaid. And I went to my general manager, because he did have the discretion to give them a raise just based on someone asking. And I asked, and he said, "Oh, those girls make enough money. They don’t need another raise."

So, it was widespread. It wasn’t just the instance when I had to do a skills assessment test so that I could be promoted. I was with three male managers and myself. I walk in. They’re taking the skills assessment test. And I ask, "Hey, can I not take this test?" "Well, they only sent me three copies."

AMY GOODMAN: Well, Stephanie Odle, we’re going to have to leave it there. Again, you came forward in 1999. You could have filed this case by yourself, not as a class action; it would have gone much faster. But you wanted to include everyone. And we will see what happens in this suit against the largest company in the world, Wal-Mart.

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