Washington, D.C., United States (AHN) – The Supreme Court heard arguments Tuesday in what could be the biggest sexual discrimination lawsuit in U.S. history.
Six women sued Wal-Mart Stores Inc., saying they were passed over for promotion in favor of men and told they should try to look attractive on the job, or to “doll up.”
They also say they were paid less than men for doing the same work.
They asked the Supreme Court to certify their claims as a class action lawsuit, meaning it could be joined by as many as 1.5 million women.
During the hearing Tuesday, the female plaintiffs seemed to draw the greatest sympathy from the Court’s three women judges.
Justice Ruth Bader Ginsburg implied Wal-Mart could liable if its corporate directors knew sexual discrimination was widespread at its stores but did not try to stop it.
“Isn’t there some responsibility on the company to say, ‘Is gender discrimination at work?’ And if there is, isn’t there an obligation to stop it?” Ginsburg asked.
Wal-Mart’s attorney, Theodore J. Boutrous, argued that the women who sued are not representative of female employees throughout the giant corporation, which operates with 3,400 stores nationwide.
Before a lawsuit can become a class action, the people who sue must prove they are typical of a larger group.
The women plaintiffs held mostly low-level retail jobs whereas other employees hold a wide variety of positions, some of them as supervisors, Wal-Mart’s attorney said.
He also said the women failed to identify a single policy of the retailer that could be identified as discriminatory.
Instead, the claims of sexual discrimination were based on a few personal stories, unproven statistics of pay differences and personnel decisions of local managers, Boutrous said.
“They haven’t shown a pattern across the map,” Boutrous said during the hearing.
Justice Antonin Scalia appeared frustrated in trying to figure out whether individual managers should be blamed or a corporate policy.
“Which is it?” Scalia said. “It’s either individual supervisors who are left on their own or there is a strong corporate culture that tells you what to do.
“If somebody tells you how to exercise discretion, you don’t have discretion,” Scalia said.
Chief Justice John Roberts Jr. also questioned whether the company should be liable or a few individual managers, saying, “you’re going to have some bad apples.”
Joseph Sellers, the attorney who argued for the Wal-Mart employees, said the discrimination was part of a corporate “culture.”
“Wal-Mart provided to its managers unchecked discretion … that was used to pay men more than women,” Sellers said.
Other examples of discrimination the women sometimes cited included sexist nicknames, arranging for meetings at Hooters restaurants and criticizing female workers for lacking the ambition to seek promotions.
Sellers said a class action is the best approach to the discrimination because filing individual claims would not be worthwhile for them.
The pay difference between women and men averages only around $1,100 per year, which is too small for a major lawsuit, according to the female employees.
Only joining the efforts of all female Wal-Mart employees in what could be over a billion dollars in damages would be effective in ending the sexual discrimination, Sellers argued.
A statistician hired by the plaintiffs concluded Wal-Mart’s female workers make up two-thirds of the workforce but less than 14 percent of store managers. They also earn less money than men despite having more seniority on average, the statistician said.
However, a statistician hired by Wal-Mart said his figures show no difference in pay between men and women at 90 percent of the stores. The company also said hiring and promotion decisions are made by local managers rather than as a result of corporate policy.
The lawsuit attracted a predictable array of amicus, or friend-of-the-court, briefs.
Business groups argued that a huge class action lawsuit against Wal-Mart could increase legal expenses for corporations nationwide.
To avoid lawsuits, the corporations would feel more compelled to settle sexual discrimination allegations with cash settlements, even if the claims lacked merit, some of the 15 amicus briefs from business groups say.
The female employees won allies from 14 civil rights groups, labor organizations and consumer advocacy foundations.
Their briefs say class action status for the lawsuit could encourage effective strategies for combating workplace sexual discrimination.
The women already won their case before the U.S. 9th Circuit Court of Appeals in San Francisco last year.
However, the Supreme Court is known for being more conservative in sexual discrimination cases.
Since the 1980s, the Supreme Court has required a “rigorous analysis” before it will approve class action status for lawsuits alleging job discrimination.
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