The largest gender discrimination case in history is before the U.S. Supreme Court, and how it’s decided could have ripple effects throughout Delaware.
Employers in the state may feel pressured to make workplace changes and review internal policies regarding women’s advancement; local courts could see an uptick in class-action litigation; and there are also the monetary payouts to thousands of female employees at the ten Wal-Mart locations in Delaware if the women who brought the suit ultimately prevail.
“It has implications for Delaware on a number of levels because Delaware is the home of over 50% of Fortune 500 companies,” said Richard Wier, former attorney general, and an attorney based in Wilmington who represents employers.
- Wal-Mart in Delaware at a glance
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The plaintiffs in the sex-discrimination case are claiming:
“Even though its own data shows that its female employees are, on average, better performers and more experienced than their male counterparts, women’s pay lags far behind that of male employees in every major job in each of the company’s 41 regions. Women at Wal‐Mart also face a classic glass ceiling – while women comprise more than 80 percent of hourly supervisors, they hold only one‐third of store management jobs and their ranks steadily diminish at each successive step in the management hierarchy.”
Wal-Mart has denied rampant gender bias. “We have strong policies against discrimination and those policies have been in place for years, predating the lawsuit,” said Greg Rossiter, a spokesman for the mega retailer that is the biggest private employer in the country.
The nation’s highest court is not actually deciding whether Wal-Mart discriminated against its current and former female employees regarding pay and promotions dating back to 1998. At issue before the justices, who began hearing arguments on March 29 and are expected to rule in June, is whether this large group of women should be allowed to sue Wal-Mart together as a class.
The Supreme Court decision could potentially make it easier for large groups of employees to band together and go up against colossal companies such as Wal-Mart; or, it could make it harder for workers by limiting how many of them can join forces and by impeding the shakedown of big companies for monetary damages.
Allowing the group of plaintiffs– which could include 1.5 million Wal-Mart employees around the country — to move forward with their class-action suit would be a victory for women’s rights nationally, said Sarah Crawford, director of workplace fairness for the National Partnership for Women and Families. Her organization wrote a brief to the court supporting the Wal-Mart female workers. Women, Crawford explained, often are fearful of coming out alone to fight for their rights at work and such a suit would send a message of empowerment to women.
Barbara Stratton, an employment attorney with offices in Dover and Wilmington agrees. She’s has seen first-hand the unwillingness of women to stand up for themselves, especially in the sexual harassment cases. “Women still are very reluctant to complain, even when an employer has an employment policy that sets for this is what you need to do,” she noted.
From the employer’s standpoint, Wier says a ruling which allows the huge class to move forward as one would be onerous for companies in the state, especially those with more than 500 employees.
Wal-Mart, he pointed out, had a policy against gender bias but was still open to such legal action, and surely other employers will be looking to review their in-house practices if the huge class gets a green light from the high court.
“How does an employer defend against that?” Weir asked about large blocks of defendants claiming discrimination. Discrimination complaints, he added, “are individual and depend on localized facts.”
Wier also expects that such cases could end up in local courts if a lawsuit is filed in the state, but he says there’s a good chance that cases which included plaintiffs from outside Delaware would be moved to federal court.
Adria Benner Martinelli, an attorney for Young Conaway Stargatt & Taylor in Wilmington, said Delaware’s human resource community is closely watching the Wal-Mart suit, especially on the heels of the $250 million judgment against drug maker Novartis last year when a federal jury found thousands of female employees were discriminated against. But, Martinelli added, “in terms of a specific Delaware effect” she doesn’t expect much different than what other states will experience. “There’s certainly going to be an effect everywhere.”
Meanwhile, Wal-Mart employees in Delaware are reporting varied experiences when it comes to career advancement at the retailer. And a sampling of employees interviewed even found some unaware that the huge lawsuit had anything to do with them. Jean, a five-year Wal-Mart employee who did not want her full name used for fear of jeopardizing her job, said: “I heard it was for stores outside of Delaware, not for us.”
In reality, the case covers a bulk of Wal-Mart women in the state. “Any woman who has worked at Wal-Mart since December 26, 1998 is automatically part of the lawsuit,” said Pam Avery, a spokeswoman for the groups representing the plaintiffs. How much each individual employee could win has not yet been determined, but the overall damages could top $1 billion, many legal experts have predicted.
For another Wal-Mart employee in Delaware, there are no grounds for the suit against the retailer.
“I am definitely surprised,” said Edna Hughes, the store manager of Wal-Mart’s Middletown store, about the lawsuit against her employer. “I don’t see that side what so ever.”
Hughes started out as a part-time cashier at a Wal-Mart store in Dover nearly 20 years ago, and moved up through the ranks and never felt held back because she was a woman. She also pointed out that Wal-Mart has two other female store managers in the area, including one at the retailer’s Milford location and another in eastern Maryland.
“I worked hard in every position and I really pushed,” she maintained. “Only you hold yourself back.”
However, Jean has been unable to move up past a low-level supervisor making $10.95 an hour despite her efforts and praise from her managers. “I’m always there on time and willing to learn everything,” she said. And initially she was moved up from cashier, to lay-away, and then to customer service supervisor. When she put in for a position as department manager, partly encouraged by her great job evaluations, she was told she was too valuable in the position she held and denied any advancement.
Unfortunately, after being told she couldn’t climb the ladder despite her hard work and kudos from managers, Jean stopped trying. “That really deflated me,” she said. “I do want to stay with Wal-Mart. I like the people I work with, and would like to move up. But if I could find something better I won’t stay.”
When asked if there have been any issues of gender bias at Delaware’s Wal-Mart stores, Rossiter said he wasn’t aware of any. But, he added, “It’s a big company and unfortunately a company this size has people that make mistakes and have errors in judgment.”
As for Jean’s claims, he added, “One of the changes we’ve made over the years is there’s a pretty robust system in place to enable associates to know about openings in other stores. If an associate isn’t getting the encouragement they think they need there are many opportunities.”
If Delaware is any indication, proving how comparable the experiences of millions of female Wal-Mart employees across the country really are, may be the biggest obstacle women in the Wal-Mart suit have to overcome.
Avery says notices will not be sent to individual women informing them of the suit, but that they can sign onto the lawsuit at www.walmartclass.com. At this point, no female employees from Delaware have made declarations on the website.
