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1.5 Million Female Wal-Mart Employees Lose Historic Sex Discrimination Case Before Supreme Court

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The U.S. Supreme Court has unanimously dismissed the largest class action lawsuit in history filed by 1.5 million current and former female employees of Wal-Mart, who say they were allegedly paid less and promoted less often than their male counterparts. The Court found women who worked at Wal-Mart did not have enough in common to constitute a “class” in a class action lawsuit. It did not address whether Wal-Mart had discriminated against women, but in writing for the minority in part of the court’s ruling, Justice Ruth Bader Ginsburg wrote that the “plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture.” We speak with former Wal-Mart employee Stephanie Odle, one of the original plaintiffs in the case. We also discuss the “limits of a courtroom remedy” in this case, and Wal-Mart’s anti-union efforts with Liza Featherstone, author of “Selling Women Short: The Landmark Battle for Worker’s Rights at Wal-Mart.” [includes rush transcript]

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

AMY GOODMAN: In a unanimous decision, the U.S. Supreme Court has dismissed the largest class action lawsuit in history. The case involves one-and-a-half 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. The Court found women who worked at Wal-Mart did not have enough in common to constitute a “class” in a class action suit. It did not address whether Wal-Mart had discriminated against the women.

After yesterday’s ruling, plaintiffs may encounter substantially more difficulty filing class action suits in all manner of cases. The majority opinion from Justice Antonin Scalia raised the threshold of certification: Scalia wrote there must be “glue” holding together the claims of a would-be class.

Responding to the ruling in a press statement, Wal-Mart said, quote, “The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a company-wide discriminatory pay and promotion policy.”

But other parts of the court’s ruling in the Wal-Mart case were more divided. Justice Stephen Breyer and all three female justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — dissented from Scalia’s broader analysis. Writing for the minority, Ginsberg noted women hold 70 percent of hourly paid positions in Wal-Mart stores and just 30 percent of management roles. She wrote, quote, “The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture.”

The lead attorney for the more than one million female Wal-Mart workers agreed, saying in a statement, quote, “Nothing the Supreme Court has ruled affects the power of the evidence of sex discrimination at Wal-Mart. That evidence is as strong today as it was when it was collected,” he said.

To discuss this case, we’re joined from Oklahoma City by the former Wal-Mart employee Stephanie Odle. She is one of the original plaintiffs in the case, filed the gender discrimination claim with the U.S. Equal Employment Opportunity Commission against Wal-Mart in 1999. And we’re joined here in New York by Liza Featherstone, author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart. Wal-Mart did not respond to Democracy Now!’s interview request.

Let’s go to Stephanie in Oklahoma City. Can you start by just responding to the Supreme Court decision?

STEPHANIE ODLE: Well, I don’t understand really the legalities of it all, but I know that we’re not done. We’re not going to give up. This is — for me, my daughter was three years old when we started this case, and she’s 14, so, really, all she knows is her mom fights Wal-Mart. So, that’s what we can — are going to continue to do.

AMY GOODMAN: Well, tell me why you brought the original case in 1999, Stephanie.

STEPHANIE ODLE: Myself, personally, I was in nine different clubs in — I think it was nine or 10 different clubs in eight years — I worked for Sam’s Club, a subsidiary of Wal-Mart — and three different states, discriminated against in all of those states, in different regions, different directors. So I know it is systematically — they systematically discriminate.

I was terminated because they wanted to make room for a man that wanted to step down and move back to where I was. He actually said, “Goodbye,” on Friday, “I’m going to Lubbock to be the marketing manager.” I was the marketing manager. So, that following Monday, they trumped up this charge and terminated me.

I searched for six months before I could find attorneys that would actually take my case. And I was told time and time again, “You can’t take on Wal-Mart. They’re too big. You won’t win. They don’t fight fair. It’ll take too much time. It’ll cost too much money.” Finally, I find attorneys in New Mexico that are like, “OK, yeah, come on down.” We sit down and talk about it, and they say to me, “You know, Stephanie, you have a great case. We’ll take it. We can go fight it and win, and you’ll be done in a couple of years. However, they won’t change. If we want them to change, and if you want to make a difference, then we need to do a class action.” I said, “Well, let’s go. I have a, again, three-year-old. I want to make a difference for her. I want to make this easier for her.” So we filed this class action.

And now, 11 years later, yes, the class action is decertified, or however you say it. But I have to know we did make a difference. I did make a change. They did pay attention when we filed this lawsuit. They did start making concessions, changes, promotions, pay scaling, all of this stuff. So, it may, to Wal-Mart, look like they won and we lost, but if you ask me, I did exactly what I set out to do.

AMY GOODMAN: Stephanie, when we just read Ruth Bader Ginsburg, her comments, she didn’t say discrimination doesn’t exist. They decertified the class, but what does that mean for you then? Where will you go from here?

STEPHANIE ODLE: Again, I believe what our plan is, although I’m not on that strategy or whatever it is, that we sue them individually. I think they are looking at smaller classes, or I’m not sure, you know, how they said they could be certified now. But again, I don’t quit. I’m not going to stop. They did discriminate against me. They are going to — the wrong is going to have to be made right.


STEPHANIE ODLE: I can’t change the fact —

AMY GOODMAN: Go ahead, Stephanie.

STEPHANIE ODLE: Oh, sorry. I thought — yeah, I mean, it doesn’t change the fact that — they have done all of these things to correct the wrongs, but it doesn’t change what they did to me. And they discriminated against me, and they will have to answer for that.

AMY GOODMAN: Liza Featherstone is also with us. She’s author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart. The significance of this tremendous win for Wal-Mart at the Supreme Court, Liza?

LIZA FEATHERSTONE: It is a win for Wal-Mart, in the sense that, you know, that they don’t have to deal with this massive class action suit. However, Stephanie is absolutely right that it doesn’t change the discriminatory environment at Wal-Mart. And Wal-Mart is quite wrong, as they said in their statement that this ruling somehow affirms that they did not discriminate against women. It does nothing of the kind, as it was never about the merits of the case. It was always about whether it should be certified as a class. And the justices agreed that it couldn’t be in its current form. And as you mentioned, they disagreed about whether it should be sent back to the Ninth Circuit, whether it could be in a — certified if they had followed a different procedure. It was a pretty legalistic matter.

However, yeah, what this means for class actions, generally, it raises the bar. It sets an example, I think, that the corporate — corporate America will be very pleased, because it certainly demonstrates to workers and consumers, if you try to go after a big corporation, you know, look how futile it is. So I think they’re pleased about the demonstration effect. However, I mean, it may turn out to have been — it may turn out to have been somewhat narrow in its actual legal implication.

AMY GOODMAN: So let’s talk about what you have been studying for years. You’ve been looking at Wal-Mart. Your book is called Selling Women Short. Talk about, well, what Ruth Bader Ginsburg also said. Again, it’s very significant. She noted women hold 70 percent of hourly paid positions in Wal-Mart stores, just 30 percent management roles. She wrote, “The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests [that] gender bias suffused Wal-Mart’s company culture.”

LIZA FEATHERSTONE: That’s right. I mean, the plaintiffs had a lot of evidence that there was sex discrimination — systematic sex discrimination — at Wal-Mart, which is the whole idea of a class action, is to shed light and change a systematic woe. There were — women were paid less in virtually every single position at Wal-Mart. No matter — no position was too minor to be exempt from sex discrimination. There were very few male cashiers, for instance. Those few were paid better than the female cashiers. It didn’t depend where — what region they were in. This was true all over the country, that women were promoted less easily, less often, despite the fact that the women, overall, had higher performance evaluations and stayed with the company longer, which, you know, certainly, on both counts, should have been in their favor.

You know, and I think Ginsburg pointed to the lack of — you know, many of the personnel policies that contributed to this discrimination, that for many years Wal-Mart didn’t post available job openings in any prominent place — a breakroom and so forth — but you would simply — and I think she quotes this — get a tap on the shoulder by your manager if, you know, presumably he wanted to promote you. And those people that he wanted to promote tended, more often than not, to be men, you know, to be people he was sociable with. So, you know, I think Ginsburg really — she kind of did understand that there was a problem here, and I think that that should be taken seriously.

I think that it’s — the stories that women like Stephanie have are also just extraordinary, and the experiences that those women have had are not changed by this ruling. I mean, Stephanie didn’t mention it, but she found out that she was paid less than a male co-worker when she found his pay stub. And she asked why that was. And, you know, this was when she was pregnant, expecting her first child. And she was told, “Oh, he’s paid more because he has a family to support. He supports his wife and kids.” And it’s astounding how many women were given explanations of this nature.

AMY GOODMAN: What is the policy of Wal-Mart towards unions?

LIZA FEATHERSTONE: Absolutely no unions. They will do everything they can to fight them, and they have. There are manuals instructing managers that fighting unions is as important as anything that you do here.

AMY GOODMAN: Stephanie Odle, your experience in working at Wal-Mart, around unions?

STEPHANIE ODLE: Being a manager — I was a manager with Sam’s — I did have to attend those classes that taught us the manuals that Liza is talking about, the “how to avoid the union” manuals, the things that you were supposed to say — “Hey, we’re a family. You know, we don’t need anyone else to talk for us. We have an open door. You come to us. You have a problem, we fix it.” These are the things that were ingrained in our head that we tell our hourlies so that they would not seek to have someone else represent them. It was very much a big no-no to have a union.

If there was — I was actually in a “red club,” I think it was called, back in 1993 or '4 in California, whenever we bought out a bunch of Costco — Price Club — not Price Club, PACE Clubs, and they turned them into Sam's Clubs. So they were hot clubs with union activity. Well, they sent the most personable, the most engaged managers there that could go around and make sure that they were talking the talk, the “Hey, we’re a family. You don’t need us. What’s your problem? What do you need? What can we do for you?” so that we could divert those unions out of the club.

AMY GOODMAN: Liza Featherstone, the issue of pay and what people are paid, the number of workers on food stamps, etc.?

LIZA FEATHERSTONE: Mm-hmm. Yeah, many workers are on food stamps or other forms of public assistance. In fact, Wal-Mart managers know that and often refer their workers to public assistance or give them the forms to fill out. That’s been well documented in many states. I think in many states Wal-Mart has been, of any private employer, the one with the largest percentage of employees on welfare. You know, and that’s one of the many reasons that many communities are fighting to keep Wal-Mart out. People are still disturbed by the sex discrimination allegations and disturbed by many of the corporate practices. But the wages, absolutely, people are — that’s something that people are very aware of, and people are trying to keep Wal-Mart from expanding into many communities.

AMY GOODMAN: And in terms of Wal-Mart’s political contributions and the political policies they support?

LIZA FEATHERSTONE: Yeah, that’s something, over the years, Wal-Mart has become much more engaged in politics, for many years. You know, I think Sam Walton used to say he didn’t really believe in participating in the political process. That’s completely changed. They’re very engaged. For a number of years, they supported almost entirely Republicans, because they felt that was where they were going to get the most support for anti-union policies, opposition to raising the minimum wage, that kind of thing. But in recent years, they’ve begun to support Democrats a lot more, in an attempt to garner support on both sides of the aisle. And their philanthropy has been in very liberal realms, as well. And it’s kind of a part of a process of hoping to win the rest of America over, so that they don’t — and they don’t want to just be a conservative red state company. So, you know, the lawsuit has been a big remaining obstacle for them in that ideological battle.

AMY GOODMAN: We’re talking about legal strategy here, and we’re talking about a major win for Wal-Mart at the Supreme Court. But there are a number of campaigns that are building around Wal-Mart. Can you talk about the efforts of the United Food and Commercial Workers?

LIZA FEATHERSTONE: Sure. There’s a real resurgence by the United Food and Commercial Workers to promote public awareness of Wal-Mart’s practices, in the ultimate hope of changing them. That’s been focused in a variety of ways. One has definitely been site battles, efforts to prevent more Wal-Marts from opening, particularly in New York, Washington, D.C., places where the retailer has historically been a little scarce. So the union is really focusing a lot of effort on that. And those very well might be successful. They often have been in the past, those efforts, because they really — brings the community together, brings a wide coalition of people who say, “Look, this retailer is just not ready for our city yet, or our neighborhood. We need to see better practices.”

AMY GOODMAN: In terms of legal issues, the New York Times reporting the plaintiffs’ lawyers are still seeking complaints from female Wal-Mart employees who have been denied equal pay or promotion at the website walmartclass.com. And so, we will continue to follow this story at every level. Thank you very much, Liza Featherstone. Her book is called Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart. And Stephanie Odle, joining us from Oklahoma, former Wal-Mart employee, one of the original plaintiffs in the case against Wal-Mart, filed the gender discrimination claim against Wal-Mart back in 1999 that ultimately led to the class action lawsuit, the lawsuit that was thrown out by the U.S. Supreme Court yesterday.

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