Today the U.S. Supreme Court has announced that the female employees of Walmart will not be allowed to bring a class action lawsuit against the company, arguing that it has not been shown that they are a class. It would have been the largest employment discrimination suit in history.
It seems timely, then, to re-post our summary of some of the evidence against Walmart. Women are, on average, paid less, are less likely to be salaried, and hold lower-ranked positions than men. This is true even though there is less turnover among women, meaning that the average female employee has been working at Walmart significantly longer than the average male employee.
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The U.S. Supreme Court is hearing arguments in the Dukes v. Wal-Mart suit. Wal-Mart is accused of egregious and systematic discrimination against the 1.5 million women who have worked there since 1998. The case isn’t based on anecdotal accounts; instead, it’s backed up by reams of data. Here is some of it.
Women in hourly and especially salaried jobs make less money than men:
Women are disproportionately in hourly jobs (instead of salaried jobs) in every district examined:
Women make less than men in every district examined:
Women dominate the lowest paying, lowest ranked jobs at Walmart, and are a smaller and smaller percentages of the workforce as you go up the pay/rank hierarchy (from right to left):
And this is true despite the fact that women have lower turnover and have, on average, been working at Walmart significantly longer:
Walmart isn’t fighting the data. They’re not claiming non-discrimination. Instead, they’re arguing that compensation should be restricted to the women directly named in the suit instead of the 1.5 million women who’ve worked there. In other words, they’re hoping that the judge will not grant “class action” status to the case. If he does, it will be the largest class action lawsuit in history.
Lisa Wade, PhD is a professor at Occidental College. She is the author of American Hookup, a book about college sexual culture, and a textbook about gender. You can follow her on Twitter, Facebook, and Instagram.
Comments 101
Katie — March 31, 2011
Walmart isn’t fighting the data. They’re not claiming non-discrimination. Instead, they’re arguing that compensation should be restricted to the women directly named in the suit instead of the 1.5 million women who’ve worked there. In other words, they’re hoping that the judge will not grant “class action” status to the case.
Wow. Just...wow.
Ben — March 31, 2011
"Walmart isn’t fighting the data. They’re not claiming non-discrimination. Instead, they’re arguing that compensation should be restricted to the women directly named in the suit instead of the 1.5 million women who’ve worked there. In other words, they’re hoping that the judge will not grant “class action” status to the case. If he does, it will be the largest class action lawsuit in history."
This is really a misrepresentation of what is happening. The merits of the action aren't going to be discussed until after the certification is decided. So legally speaking, Wal-Mart would be out of place in court to argue that there is no discrimination.
Practically, but not legally, certification means a near-certain settlement of the class action. Non-certification means suits have to proceed individually (or deaggregated). Legally speaking, certification of this action is probably improper. Certification also has a HOST of problems associated with it that most people not involved in the legal profession may not be aware of--for example, a vulnerable population [low-income earning discriminated females] will be bound by a judgment unless they "opt-out" of the proceeding and unable to ever pursue their own claim (even if it turns out they were personally far more injured than a typical class member). So it's far more complex than assuming certification = good.
John — March 31, 2011
Treating different things differently is the essence of fairness.
What makes a discrimination case is an active mandate issued from the top down stating that men will be given preference over women for salaried jobs and that men will be paid more. Without that smoking gun you can throw all the data around that you want and inject your own 'women as victims' narrative, but it doesn't prove anything.
Sarah — March 31, 2011
What I find most interesting about Wal-Mart's counterargument is this:
In its brief to the Court, Wal-Mart argues that millions of discretionary personnel decisions on pay and promotions by thousands of individual managers defy any common pattern of treatment.
They aren't arguing that discrimination didn't happen. It did. Millions of times, perpetrated by thousands of people. They're just arguing that it wasn't centralized or institutionalized in any way.
That's why I think that rather than suing Wal-Mart, it's patriarchy - the system that reinforces the treatment of women as a sex class, reinforces the wage gap, among myriad other injustices ranging from rape to murder, depending on where you live - that deserves to get sued.
Anonymous — March 31, 2011
I don't get how the "reams of data" proves discrimination. Aren't these patterns pretty common across companies? Men work more hours and fewer part time hours because more men are the main or sole breadwinners and more men take partial or full care of children. While that is an issue worth addressing on a societal level, it doesn't provide any clear evidence of discrimination.
If the stats are substantially different than those of Target and other stores comparable to Walmart, then that could serve as evidence of discrimination (or particularly prevalent discrimination) at Walmart.
Paige — April 1, 2011
I can't speak to this case, but I have worked at Best Buy. I only have anecdotal data based on my own experiences there and it won't be identical to a store that sells everything.
However, when I worked at Best Buy I can confirm that women I knew were certainly making less money despite more years invested. Much of that came from the departments they were placed in. In general, a person working the register will make less than a person selling a high priced TV or computer or repairing electronics (Geek Squad). And women were almost always placed in the 'lower skilled' departments like media (CDs and movies) or cashiers. There were of course exceptions (notably, more women in Appliances!), and I noted that over the years I worked there more men were placed in the Media department - perhaps as more revenue came from video games than music and movies?
The lower wages were because the women were in departments that weren't considered 'skilled', and the discrimination that I saw was not 'Oh I'll pay her less because she's a woman', but 'She gets shuffled into an easier (lower paying) job because she's a woman and doesn't understand fancy-schmancy electronics'. The excuse I often got was that women 'don't care' about electronics so applied for jobs without prior experience. But it wasn't as if there weren't plenty of men who had to be trained on the products they sold.
Although I don't think it was any sort of centralized or intentional discrimination, there was always a feeling of 'old boys club' in the upper management as the same people got shuffled around from Target to Staples to Best Buy and back again. And it is harder to work your way up from a cashier job to management just based on the number of people you compete with and a more difficult time showing your skills - you can't wow people with that big sale as easily when your WOW is 'I sold a service plan'.
There was at one point a rumored class action suit against Best Buy for this kind of thing, though I'm not sure it went anywhere.
T-Rex — April 1, 2011
I have an issue with Table 5. We don't have a comparison chart showing the percentage of men in hourly jobs vs. salaried jobs. If I am not interpreting that particular chart correctly, please let me know.
Oyveh — April 1, 2011
"I don’t get how the “reams of data” proves discrimination. Aren’t these patterns pretty common across companies?"
*facepalm* So, you're "argument" is that, because obvious discrimination happens everywhere, it's not discrimination? Did you bother to think that through before you posted it, or did that actually sound logical to you?
Yeah, Editrix, that's a totally "reasonable" argument. P.S. Tone trolling is worthless.
It's amazing how, despite, study after study after study after study repeated proving gender discrimination re pay, we still have clueless freaking yahoos saying "well, women work less! men work harder!"
Americans really are complete and total dumbasses.
Franklin — April 1, 2011
If women are in reality paid less AND perform no differently from men then there would be no reason to ever hire or promote a man. What one has to believe here is that WalMart cares more about putting women down and elevating men than making money. As one of the most rapacious, profit-driven companies around I fail to see how WalMart, answerable to its shareholders, would intentionally shoot itself in the foot by not adequately exploiting cheap labor.
From a purely financial standpoint the obvious solution here is to fire all the men and hire women at pennies on the dollar.
What We Missed — April 1, 2011
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links for 2011-03-31 « Silent Lucidity — April 1, 2011
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[...] originally seen at feministing but from the amazing Sociological Images is data behind the walmart sex discrimination: Walmart isn’t fighting the data. They’re not claiming non-discrimination. Instead, they’re [...]
Bill D. — April 2, 2011
How to Lie with Statistics by Darrell Huff. ISBN 9780393310726.
You know... when I hear about the 76c/$1 pay gap I wonder if the female statisticians who came up with that misleading figure actually deserve to be paid less than men. Could they not come up with a real comparison taking into account equal pay for equal work? On the other hand, maybe they are actually really clever and deserve to be paid as much as men because they are able to lie as with statistics as well as any of the male statisticians can.
Beth — April 2, 2011
l) Women received 2891 fewer promotions into Support Manager than would be expected from their representation in the feeder pools.
m) Women received 2952 fewer promotions into Management Trainee than would be expected from their representation in the feeder pools.
n) Women received 346 fewer promotions into Co-Manager than would be expected from their representation in the feeder pools.
o) Women received 155 fewer promotions into Store Manager than would be expected from their representation in the feeder pools.
stab
stabby
stab
stab
MindBlast — April 2, 2011
Women tend to be less willing to sacrifice lifestyle over hourly earnings. To claim every disparity in male and female earnings is a result of conspiratorial discrimination implies intellectual laziness.
If a man works 25% longer hours than a woman, he will be paid more and be more likely to receive a promotion. It's basic logic, and anyone who does not think with their hormones and emotions should acknowledge this fact.
aerdrie — April 2, 2011
"Hormones and emotions"? Wow, just wow.
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[...] seen the documentary, “Walmart: The High Cost Of Low Price,” or simply looked at the statistics, this is pretty much irrefutable. They have certainly made efforts as of late to amend their [...]
shale — April 3, 2011
Following Bill's lead (reluctantly), the feminists have won this one: the pay gap between men and women appears to be negligible, if at all extant (if you're picky: "on average"). My hunch, however, is that women still have to work much harder than men to acquire and maintain those equal educations and experience, and positions of equal work. For example, I expect it is much more stressful for women to work in these environments than it is for men---because of discrimination.* I hope the next generation of feminist inspired scholarship accepts their gains, and continues to make meaningful contributions toward the betterment of fe(male) kind.
*There are some very neat biological stress markers that are being developed nowadays that would make testing this hypothesis totally possible.
Benedikt — April 4, 2011
Hey,
I'm just wondering: Does the picture remain the same when you control for education and other variables we know to affect wages/salaries from standard wage regression studies used by labor economists? Looking at Table 4, we see that women hardly get discriminated when we concern hourly workers. Obviously, there is fewer variation in the types of jobs women and men do when they get paid on an hourly basis: Restacking shelves, cleaning, cashiers, etc. Only with salaried workers we find the "discrimination" gap. Couldn't it be that just more men happen to be executives at Wal-Mart whereas most women tend to fill in middle management positions when they get paid a salary?! Without being a labor economist (I'm a trade economist by training), I would just argue that this type of wage distribution is not that special to Walmart but is typical of any big US company? And that it is more about discrimination in career opportunities, i.e. who get's offered which position than a simple pay discrimination?! I have to disclaim that I do not have knowledge about within wage distribution in the US. I just remember from most papers I read that even though there may be discrimination of women (I do not doubt that), the payment gap between women and men significantly reduces when controlling for standard variables like education, tenure, experience, etc. I would love to see some wage regressions run with Wal-Marts data to delve deeper into that topic!
Eoghan — April 4, 2011
That data is not proof of discrimination, women on average spend 20% less time in the work place than men do and that leads to differences in outcomes.
Also the discrimination in this case hinges upon whether or not the question and answer in manager training "Why are women underrepresented in promotion? A - "Because they are less aggressive in seeking promotions" is discriminatory.
Grafieken maken discriminatie duidelijk « De Zesde Clan — April 5, 2011
[...] Wall Mart hield vrouwen in banen die per uur betaalden, terwijl mannen de vaste contracten kregen. Het uurloon van vrouwen was bijna altijd lager dan van mannen. En mannen stroomden snel door naar hogere functies, terwijl vrouwen aan de werkvloer vast bleven kleven. Dat blijkt uit cijfers van de Amerikaanse supermarktketen Wall Mart. De corporatie ligt onder vuur vanwege vrouwendiscriminatie. Sociological Images heeft de grafieken. [...]
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Christina Dorn — April 26, 2011
Wow!!! Here we live in a nation that represents opportunity and equal rights and yet women in America are still fighting to be treated equally in the work place in regards to promotions and to be paid equally for the same job a man holds.! Many of these women have more than a high school diploma and yes many of us don't . However it just goes to show just how little our way of thinking in regards to equal rights still shows that it's o.k. to allow this kind of injustice to thrive in the work place here in a country that say's it represents equal rights regardless of race,color,religion,sex or national origins.!!! The days of stay at homes mom's is rare due to and economy that takes two incomes just to survive and yet there are those of you that think because a woman stands up for her rights that she is being a feminist or overly emotional.!!!! SHAME ON YOU!!!!!!This is the United States of America and women have the same rights as men!!!!!
Leigha — May 22, 2011
What I don't understand is the complaint about women being more likely to receive hourly versus salaried pay. I realize that normally higher-level jobs are salaried and lower-level ones are hourly, but I can't possibly be the only person who thinks that salary pay is ridiculous. If a person has a flat salary of $50,000 a year (which is pretty decent, and SHOULD amount to about $24/hr), but they're forced to work an average of 12 hours a day (which isn't uncommon), that works out to only $16/hr. A person making $8.25/hr, on the other hand, would normally make $17,160 a year, but if THEY worked 12 hours a day, they'd get $30,030, which is almost double what they otherwise would, while the "lucky" salaried person does all that extra work for nothing more than the honor of not getting fired.
Chungyen Chang — June 20, 2011
I am amazed this was dismissed with all of this solid data backing it.
Anonymous — June 20, 2011
While I don't like how this is a victory for Walmart, given would seem to be a successful "divide and conquer" legal strategy, I do think the "class action" suit demands a stronger form of evidence than the individual suits. I speak without any real legal knowledge, but it seems to me class action requires that Walmart's discriminatory policies were directed at the class: that is they have an explicit policy (not necessarily written) to discriminate against all women. It's possible there might be evidence of that. It seems much more likely that that Walmart's discriminatory behavior is not so organized at that. It seems likely to me you have a corporate culture in which women *tend* to be discriminated against, but not universally as a rule, because the decision-making is spread over many individuals some of which discriminate (consciously or not) and some of which don't.
Still, it strikes me that the case was thrown out. I would think it's worth at least to hear the evidence.
Decius Brutus — June 20, 2011
Let's look at some of the findings of fact, from the actual ruling:
In other words, the fact that there is a gender gap is not proof that the gender gap is caused by systemic discrimination.
Note that now some 1.5 million current and former female Wal-Mart employees have a valid standing to sue Wal-Mart on their own. If they each limit their claims to small claims court, where the cost are relatively small, they could easily overwhelm Wal-Mart's legal resources. What percentage of that class wishes to sue as an individual?
Bill D. — June 21, 2011
There you have it. The Court's opinion ripped apart the statistical report and the "expert" witness who wrote it. Too bad so many reader of this blog could not do the same by themselves. But like I said, why would the bloggers and readers here analyze data when the conclusion is already known.
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Questions — August 7, 2016
I am being discriminated against I am a wal mart female assistant manager and I will be the 3rd female manager in the same store that was forced to step down within the last 1 to 2 years and everyone comments on how bad he treats me I was wondering if anyone knows what my options are or what I can do about it
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