Discrimination Writ Large
US Giant Wal-Mart is Threatened with the Biggest Discrimination Lawsuit in History. Cameron Timmis Asked Plaintiffs' Co-Counsel Joseph M. Sellers to Outline the Employee Case By Cameron Timmis, InBrief, December 2003 London-based legal writer and editor of the UK monthly legal publication InBrief interviewed Joseph Sellers, head of Cohen Milstein Sellers & Toll PLLC's civil rights practice group and co-counsel in a sexual discrimination case against Wal-Mart, about the case against the American retail giant and the likelihood of similar class action claims arising in the United Kingdom. The lawsuit, which began in June 2001 when six current and former female employees filed a sex discrimination claim, is now awaiting a decision on class certification. If the plaintiffs are certified as a class, Wal-Mart could be facing the largest discrimination lawsuit in history. Excerpt With new legislation to combat discrimination against sexual orientation and religion just around the corner, UK employers may be worried about a spate of discrimination claims. But it is unlikely any will be in the unsettling predicament now facing American retail giant, Wal-Mart. Depending on a court ruling in the next two months, this huge American company, the largest employer in the world, could be facing the largest discrimination lawsuit in history - one American newspaper has even dubbed this case, known as Dukes v Wal-Mart Stores Inc, the 'Enron of workers' rights.' The lawsuit began in June 2001 when six current and former female employees in California filed a sex discrimination claim against the company. Last month, at a court hearing in San Francisco, plaintiffs' lawyers made a dramatic bid to expand the lawsuit into a class action. The success of such a step known as 'class certification' would multiply the number of plaintiffs from a handful to an estimated 1.6m women - all those women employed by Wal-Mart since December 26th 1998 (the limitation date for claims according to the civil rights legislation). A judgment in favour of the plaintiffs would pave the way for the largest civil rights class action case in history. The plaintiffs have made two charges against Wal-Mart, that it has failed to promote sufficient numbers of women to management positions, and has paid women less than men for the same work. The plaintiffs are not pulling their punches. According to Joseph Sellers, of Cohen Milstein Sellers & Toll PLLC, co-counsel for the employees, the discrimination at Wal-Mart is 'very raw' and 'reminiscent of the 1950s and 1960s.' Wal-Mart, he says, 'is a company that has turned a deaf ear to women employees and their complaints and has a mode of operation that is 'extremely backward.' As compensation, the plaintiffs are claiming back pay and punitive damages. Sellers says the alleged discrimination first came to light when his firm was investigating unrelated claims against Wal-Mart in Santa Fe, New Mexico: 'we discovered Wal-Mart was subject to thousands of discrimination complaints, [but] it did not appear to us that Wal-Mart was changing its practices. It was settling, litigating, and not altering its personnel policies.'
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Backed by a major PR campaign, the lawsuit is rapidly gathering momentum. The plaintiff team, led by six law firms, has established a special website, walmartclass.com, inviting would-be claimants to come forward. It also contains testimonies from women who claim to have suffered discrimination: a female manager in Arizona being told she got paid less than a qualified male because 'she didn't have the right equipment'; a male manager in South Carolina telling a female employee that 'God made Adam first, so women would always be second to men'; and a female personnel manager in Florida being told by her manager that 'retail is for housewives who just need to earn extra money.' Another related website, walmartvswomen.com, has enlisted a high-profile campaigner Carolyn Sapp, a former Miss America, to act as its spokesperson. Sapp is urging all women to boycott Wal-Mart stores on behalf of its female employees. A key bone of contention will be Wal-Mart's promotion policy. In January 2003 Wal-Mart began posting new positions on staff bulletin boards. Before then, according to Sellers, Wal-Mart operated a so-called 'tap on the shoulder system,' in which management would tell staff informally about positions as they became available. 'We think managers tended to favour people who looked like themselves when given the chance to select who they wanted to, on whatever factors they wanted to,' he says. He also says the wide discretion given to managers is the cause of unequal pay between male and female employees, particularly since Wal-Mart allows managers to depart from usual pay scales without seeking authority from senior managers. 'In a workforce where most managers are men,' he says, 'that is a recipe for discrimination.' Besides obtaining damages, one of the plaintiffs' goals in pursuing this claim is to persuade the company to change its personnel policies so that, says Sellers, 'the discretion of managers is somewhat circumscribed so they are more accountable.' For more information, please contact us at lawinfo@cmht.com.
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