Sunday, April 24, 2011

Mass Justice Elusive for Women of Wal-Mart

      One year after the Deepwater Horizon explosion and oil spill, the job of cleaning up the Gulf coast still faces daunting challenges. So too the job of compensating the victims of this environmental disaster: tens of thousands of people whose lives and livelihoods have been damaged by the oil that has fouled beaches and spoiled valuable fisheries.
      Despite the challenges, the victims of the Gulf oil spill have one thing going for them: public and political pressure on BP, operator of the doomed rig, to make the victims whole as best it can. Under pressure from politicians from President Obama down, BP pledged $20 billion to a victim compensation fund to be administered by a respected lawyer, Kenneth Feinberg. The process has been controversial, but in advance of the one-year anniversary [April 20] Feinberg was making a maximum media effort last week to answer criticisms and to renew the commitment on BP’s behalf to do the right thing.
      A month earlier, another corporate giant, Wal-Mart Stores, faced a critical Supreme Court showdown in a lawsuit brought on behalf of women employees who claim they are victims of a long-standing “pattern and practice” of illegal sex discrimination in regard to pay and promotions. Wal-Mart’s purported victims got some support from civil rights and women’s rights groups, but the company has been spared avoided the kind of public and political pressure that BP is experiencing.
      Instead, Wal-Mart, the nation’s largest private employer, has managed to depict itself in court and in the public mind as a victim itself. In legal filings, and in arguments at the high court (March 29), Wal-Mart’s lawyers maintained that a company with $419 billion in sales last year faces the risk of “devastating” financial liability from what they and an array of business groups supporting the company insist on calling a “gargantuan” class-action lawsuit.
      Ten years after the lawsuit was filed, the plaintiffs’ allegations and Wal-Mart’s substantive defense have yet to be fully aired in a courtroom. Instead, lawyers on both sides have spent a staggering number of hours on a preliminary but crucial issue: whether to certify the suit to be tried as a class action on behalf of as many as 500,000 women currently working for Wal-Mart. (Wal-Mart’s lawyers refer to 1.5 million potential class members, but that figure includes former employees, who have been cut out of the case for now.)
      The rule authorizing class actions in federal court, Rule 23 of the Federal Rules of Civil Procedure, is forbiddingly wordy. Court decisions interpreting and applying it are similarly complex. Over the past two decades, both Congress and the Supreme Court have been making it harder for plaintiffs to bring and win these cases. Even skeptics and opponents, however, acknowledge that class actions can sometimes be the only viable legal remedy for wronged investors, consumers, or workers. And plaintiffs’ attorneys note that in some circumstances companies benefit from resolving a multitude of potential legal claims in one big proceeding instead of countless small cases.
      The case that began as Dukes v. Wal-Mart takes its name from lead plaintiff Betty Dukes, who was hired in 1994 as a $5 per hour part-time cashier at the Wal-Mart in Pittsburg, Calif. By her account, she was unfairly passed over, disciplined, and demoted at various points because of the company’s ingrained mistreatment of female employees. Dukes’ case was taken on by the Impact Fund, an Oakland-based public interest law firm, and its senior counsel, Brad Seligman.
      So far, Dukes’ legal team has persuaded a federal district court judge and a 6-5 majority on the Ninth U.S. Circuit Court of Appeals to allow the case to go forward as a class action. To get to that point, they presented evidence, both statistical and anecdotal, of sex discrimination in Wal-Mart’s employment practices. The statistics are stark. As of the first court ruling, in 2004, two-thirds of Wal-Mart workers were women, but women comprised only about one-third of management-level employees. A statistician found a 5 percent to 15 percent gender gap in pay for women in all 41 of Wal-Mart’s regions.
      Starker still were affidavits submitted by 120 current or former employees altogether. Under oath, women from all over the country described a climate of sexism and gender stereotyping that demeaned them day by day and limited their pay and advancement. Some described being told that they were being paid less than male workers because men needed extra money to support families. One woman who complained about sex discrimination said she was fired after contacting the lawyers in the suit.
      Whether or not the case proceeds as a class action, the affidavits lay out tenable individual cases of illegal sex discrimination. Years later, however, the women are still waiting their day in court. And it is not yet clear when, where, or whether that day will come. Supreme Court justices appeared dubious during oral arguments about whether the case satisfies Rule 23’s somewhat rigorous requirements. If no class action is allowed, the claims may be too insubstantial, or too old, to succeed as individual cases.
      As BP’s experience illustrates, mass justice is difficult and contentious under even the best of circumstances. But, as legal expert Geoffrey Hazard remarked during the early days of class actions, “mass-produced wrongs” sometimes call for a mass-produced legal remedy. The women of Wal-Mart are waiting to see whether the judicial system will be up to that challenge in their case.

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