Supreme Court

Wal-Mart and Gender Discrimination

The Supreme Court revives a longstanding debate about workplace disparities.


The sex discrimination case against Wal-Mart, in which the U.S. Supreme Court handed an important victory to the retail chain on June 20, revives a longstanding debate: are disparities in the workplace due primarily to gender bias or to deep-rooted gender differences? The answer is anything but simple—which is why the ruling was correct.

The lawsuit was filed 10 years ago by three female employees. However, the plaintiffs and their lawyers have sought to expand it into a class-action suit on behalf of every woman who has worked for Wal-Mart at any time since December 1998—as many as 1.5 million. While they collected statements from 120 women alleging discrimination, the main argument for the class-action suit relied on sociological and statistical analysis. Women make up nearly two-thirds of hourly workers at Wal-Mart but only one-third of management. Such disparities, the complaint argued, can be explained only by bias.

This recalls a notorious 30-year-old sex discrimination case: the suit brought by the Equal Employment Opportunity Commission against Sears, Roebuck & Co., charging that women had been kept out of commission sales and herded into lower-paying salesclerk jobs. There, too, statistical disparity was taken to prove bias. From 1973 to 1980, women accounted for 43 percent of all promotions from non-commission to commission sales at Sears; EEOC experts calculated that it should have been 68 percent.

In response, the company challenged the assumption that men and women were equally interested in and qualified for commission sales. In a controversial twist, a feminist historian, Rosalind Rosenberg of Barnard College, testified as an expert witness for Sears. Men and women, Rosenberg argued, generally have different expectations and preferences regarding work—and, however, desirable more equality in the workplace may be, it is "naïve" to see the disparities as proof of discrimination. (She was, of course, branded a traitor to the sisterhood.) Sears won the case in 1986.

For all the strides women have made since then, the issues of the Sears case remain relevant. Rosenberg noted that working women have tended to choose more family-friendly jobs over better-paying ones. Today, women are far more likely than 25 years ago to be the principal or equal earners in their families, and men are more involved in child care and housework; but the traditional pattern of the male primary breadwinner and the female primary homemaker is very much with us. For a man, family obligations are still likely to create pressure to work longer hours; for a woman, the opposite.

What implications does this have for the Wal-Mart lawsuit? One answer comes from left-wing journalist Liza Featherstone, whose 2004 book about the case, Selling Women Short: The Landmark Battle for Women's Rights at Wal-Mart, is strongly sympathetic to the plaintiffs. In an interview for the online magazine Stay Free! after the book's publication, Featherstone was asked about other suits against Wal-Mart, including one by the widow of a male manager who had died of a heart attack. Featherstone explained, "Her husband was incredibly overworked, as many Wal-Mart managers are … assistant mangers are forced to work 70-80 hours a week. In some sense, they are more exploited than hourly workers, because they are salaried, so they don't get overtime."

In another interview, in Salon, Featherstone noted that Wal-Mart expects managers to be available to work at any time and that the chief plaintiff in the women's case, Betty Dukes, felt her career had suffered because she refused to work Sundays.

All this lends credibility to Wal-Mart's assertion that far fewer women than men have been interested in management jobs. Does this mean that the individual claims of sex discrimination against the store are without merit? No, only that gender imbalances in such jobs do not automatically prove wrongdoing.

The High Court unanimously agreed that the class-action suit was green-lit under an improperly broad standard—one that would confer victimhood on any current or former female Wal-Mart employee within the given time frame, with or without her consent. On another issue, however, the court split 5-4. The majority nixed any kind of class-action suit based on the plaintiffs' claims: Justice Antonin Scalia reasoned that, since Wal-Mart left promotions and pay to the discretion of local stores, the allegations of bias involved so many varied individual decisions that they could not be lumped together as common practice.

The minority took the view that a collective lawsuit should have been allowed to proceed under a stricter standard of proof (and an opt-out provision for members of the presumably injured class). The dissent, penned by Justice Ruth Bader Ginsburg, argued that sexist stereotypes can create a pattern, with different managers making similarly biased decisions.

Does Scalia underestimate the pervasiveness of sexism? Does Ginsburg overestimate it? Like many other issues, the question of gender inequality in the workplace is often reduced to a simplistic either/or. Women's traditional preferences don't negate the existence of sexist barriers or subtle biases. Personal behavior and societal expectations reinforce each other: when most women with small children curtail their participation in the workforce, this creates assumptions that hurt more career-oriented women. Even a woman married to a stay-at-home dad may be unwillingly mommy-tracked. Conversely, women's—and men's—choices are not made in a vacuum; they too are influenced by societal expectations.

Yet legal action is far too blunt and heavy an instrument to deal with these issues. Sometimes, as with the ban on racial segregation or on overt sex discrimination in the workplace, law can change culture in the right direction. But for the law to intrude into a complex web of human relationships and attitudes is an overreach likely to cause more harm than good. For one, we live in a time when state intrusion into private actions is viewed with suspicion. To say that women's advancement requires the government and the courts to micromanage business decisions—to the point of telling a corporation that it cannot let local managers control promotions and pay—is to invite a backlash.

In the meantime, Wal-Mart now has a program to help boost the share of female managers—launched two years ago, perhaps in response to public opinion as much as legal action. The culture is changing. To try to force this change by massive litigation based on fuzzy logic is bad for the economy, bad for the law, and ultimately bad for women as well.

Cathy Young is a contributing editor at Reason magazine and a columnist at RealClearPolitics. This article originally appeared at RealClearPolitics.


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  1. Wal Mart bad, women good.

    1. You should have heard NPR this morning… their ever so subtle suggestion that it’s terrible that public employees are being laid off because public employees are 60% women, and that the “mancession” was over. Hurry lets pass another stimulus package to keep public employees. Won’t someone think of the women??

      1. Worlds ends, women, minorities, hardest hit.

        1. World ends. Or worlds end.

            1. People don’t think about the horrible unemployment that came with the destruction of two Death Stars and the fall of the Empire.

              1. Some do, PL, but you’re right – not enough.

              2. Not to mention the sheer number of deaths in each of those explosions. Think about how many soldiers you could fit in a sphere the size of the moon…

                I’m surprised the galaxy had any young men left after the second one went up. (Or were they all clones?)

                1. Clones have feelings, too.

                  1. No, they don’t. They were genetically engineered not to.

                    1. “Rebel scum!” he said angrily.

  2. WalMart good, women in possession of the Center of the Universe.

  3. the chief plaintiff in the women’s case, Betty Dukes, felt her career had suffered because she refused to work Sundays.

    Go work for Chick-fil-a, you obnoxious whining cretin.

    1. Isn’t that a religious issue and not a gender one? Not that even that is likely actionable.

      1. Courts have consistently ruled that scheduling workdays on a religious holiday is not anti-religious bias, provided they are allowed to use vacation, etc. just like other employees could to take any other scheduled workday off.

    2. Her career suffered because she refused to take ordinary and reasonable assignments?

      Who could have seen that coming? Obviously, the only possible explanation is anti-womyn and anti-Christian bias. And you know people from Arkansas are famously hostile to Christians.

    3. I’ve been trying to explain this to a younger family member who is currently unemployed. She refuses to work weekends, has no degree, little job experience, and wonders why she never gets called back for a second interview.

      1. The sense of entitlement that people have these days is crazy.

        1. Its just another ingredient in the recipe of american “exceptionalism” which is killing us.

          1. Its just another ingredient in the recipe of American “entitlism” which is creating drones who want to start at the top.

        2. Her reasoning: “The weekends are my time.”

      2. Did they offer other days off during the week?

      3. “I’ve been trying to explain this to a younger family member ”

        Well, you’re a fucking idiot, so it’s no wonder you’re having trouble explaining something.

  4. Never mind that private organizations and individuals should be able to discriminate against anyone, for any reason, without fear of government intervention. Those who choose to discriminate are really only hurting themselves.

    1. That’s why they must be crushed by the power of the state. If you’re not harming other people, you’re just not doing government work!

    2. “Never mind that private organizations and individuals should be able to discriminate against anyone, for any reason, without fear of government intervention.”
      why? do u contend that property rights trump civil rights?

      1. property rights? wtf?

      2. There is no civil right to enter my property.

        1. there is if ur open for business

          1. lol i no rite bro

          2. That is, of course, a modern legal fiction. If you believe you have the right to enter my property at will, then I should have the right to enter your house at will.

      3. Property rights are civil rights. No one has the right to not be hated. Thought crimes like this have no basis in civil rights.

        I’m talking about freedom of association.

        1. hate or no hate, just get me a cup of coffee & a menu like the non-blacks in here.

          1. Black, white, brown, red, or yellow: I’m seeing green.

          2. Why would you demand coffee from a racist restaurant?

            1. Why would you want to give a racist your money?

              He makes the best sandwich in town?

              1. well, it does keep some lawyers employed…

              2. Providing an exceptional good or service trumps racism every day.

                1. Demand a good or service from a business that clearly does not wish to serve you, and I can guarantee you will not be provided with “an exceptional good or service”

                  1. As long as someone is willing to pay the price for the goods or services offered to the public she ought to be served just like the next Joe.

                    Freedom of association means that you don’t have to invite her to your home; you don’t have to go golfing with her; but if you advertise your goods or services to the _public_ that means all (who isn’t barred by law to purchase your goods or services).

                    Property rights include my money being accepted in payment just the same way as any other customer’s money.

                    1. “Property rights include my money being accepted in payment just the same way as any other customer’s money.”

                      Really? So you can force a company to provide you with services and it is still ‘freedom of association’?

  5. From Demographic Diversity: Left vs. Right vs. Reality:

    Barbara Ehrenreich, once considered one of the few reasonable feminists left, when called upon to explain why, despite the alleged persistence of male privilege, “fewer men are going to college,” revealed that “they suspect that they can make a living just as well without a college education; in other words they still have such an advantage over women in the non-professional workforce that they don’t require an education.” An intriguing theory, to say the least. Would she ever inform us that “fewer blacks are going to college” because “they suspect that they can make a living just as well without a college education; in other words they still have such an advantage over whites in the non-professional workforce that they don’t require an education”? (You know, why not: If she can read the minds of young males, why not of young blacks?) And of course: When “fewer” women were going to college, was it because “they still had such an advantage over men in the non-professional workforce that they didn’t require an education”? But her assertion is crazy on its face: Why would the Learned Elders of Patriarchy maintain male privilege in the non-professional workforce? Except for sports prodigies, who does better ? or even “just as well” ? without a college degree?

    More and more, “discrimination” explains less and less. And yet the “progressive” disintelligentsia demands it be enshrined as the only explanation for any demographic “discrepancy” between any groups ? i.e., as America’s defining reality. Hence Ehrenreich: Unable to find men’s “advantage over women” in the world of higher education, the author of Nickel and Dimed projects it onto the world of burger-flipping. Accordingly, the Left has convinced itself that those who contest this diagnosis ? and its concomitant cures ? do so only because they want to propagate the disease of “inequality.” Dissent from this Ivory Tower dogmatism can never be anything but gutter bigotry.

    1. “…reasonable feminists….”. What the fuck does that mean???

      1. Ones that don’t post on Feministing or Jezebel?

      2. shaves her legs.

      3. It’s Oxymoron Day again!

    2. … [Men] still have such an advantage over whites in the non-professional workforce that they don’t require an education.

      This, at least on the face of it, appears to be partially true. Men, do seem have an advantage getting hired to work construction or dig ditches.

    3. Well, it’s true that many men can do just as well without a college degree – though many women could also.

      I’m an electrician, which is both a profession and a trade – and it doesn’t require a college degree. I have my B.A., but it has not helped me in my career. Machinists and a number of other tradesmen can make pretty good money, and they can start earning money while those on the college track are expending money. I am sure there are similar jobs that are mostly held by women, though the insistence on college-trained teachers hurts women twice: first by requiring time spent at college, and second by decreasing the quality of teachers.

  6. they suspect that they can make a living just as well without a college education

    And they may well be right. See yesterday’s thread on the higher education bubble.

    The real unstated assumption, though, is that womyn can’t make their way, poor dears, without a sheepskin.

    1. That’s cause wymyn don’t want to cut their nails and get their hands dirty.

      1. think about it, why is there a disparity in jobs that are inherently dangerous?
        why is a disparity in male deaths on the job vs. female deaths on the job?

  7. To try to force this change by massive litigation based on fuzzy logic is bad for the economy, bad for the law, and ultimately bad for women as well.

    Has this ever stopped anyone before?

  8. My question is, why didn’t WalMart countersue for reduced wages the one week out of the month pre-menopausal are effectively operating at less than 100%? The way I see it, their reduced capacity to work and their diminished people skills whilst riding the crimson wave should result in a company’s ability to set wages at below those of men for 1/4 of their pay period. If the store employees work together long enough for their cycles to get in order, the stores should be able to hire four groups of women to work the available three shifts, thus keeping wages and benefits low as well as maintaining a reasonable level of customer service.

    1. There’s also that whole taking leave to birth babies business. Federal law in that regard is quite discriminatory in practice.

      1. If by “discriminatory,” you mean it discriminates against people who aren’t having children, I agree.

        The way I’ve always understood FMLA is that it applied to either parent. I’ve got a buddy who took a couple of months off without pay when his kid was born under FMLA.

        Am I wrong in the way I read that law?

        1. I was just making a joke, but yes, dads have to be able to get the leave, too. I’m not sure whether its application actually ends up being discriminatory, because of the ADA.

          1. I reread my post and hope I didn’t come across as a smartass. Although I’ve seen it in practice, I still have no idea how FMLA really works. Any employer I’ve ever been associated with has been exempted because of geographical reasons, yet they’ve always given maternity and paternity leave as an incentive to draw quality employees into secretarial and admin work. It has not applied in any other sector of the companies I have worked for as we have had no women in other positions and men don’t regularly take leave since they are breadwinners.

            1. I’ve dabbled in employment law and did do a little FMLA research for a client once, but I don’t get all of it, either.

  9. A long, long time ago, I worked in a bar where there was, prominently displayed, a sign reading, MANAGEMENT RESERVES THE RIGHT TO REFUSE ANYTHING TO ANYBODY.

    It *looked* nice.

  10. As a lawyer, I would argue that this case has very little to do with the dynamics of gender discrimination and everything to do with the practicalities of litigating class-action lawsuits. The whole point of class actions is to efficiently litigate claims that are so similar that multiple lawsuits would be unnecessary and inefficient. In this case, where every plaintiff has unique supervisors that would have to be deposed, it just wouldn’t be possible. That’s why the class action was rightfully dismissed, and even if every plaintiff was truly the victim of gender discrimination it’s still the right decision. Each plaintiff still has the right to file his/her own claim.

    1. It’s so obviously not a certifiable class that I’m surprised the Supreme Court didn’t issue the opinion in Esperanto.

      1. Class actions are utterly incompatible with First Principles. At bottom, class actions are just another form of collectivism. They have no place in a free society.

        1. How often do you see a lawyer challenging the basics, the fundamentals, the assumptions?

          For example, how often do we see counsel challenge the validity of class actions, period? None of the rationales advanced in support of the class actions by the legal academy square with first principles or common sense.

          1. Good luck trying to convince a court to ignore the Federal Rules of Civil Procedure. I get what you’re saying, but unless you’re working for an ideologically-driven public interest law firm, there’s a certain level of pragmatism required that prevents most lawyers from making such arguments.

            1. No lawyer is going to do that with an actual case that involves money. That’s not to say that a civil liberties advocate might not take on a case to mount a constitutional challenge, but with something established like class actions, that’s going to be a long hill to climb.

          2. How often do you see a lawyer challenging the basics, the fundamentals, the assumptions? For example, how often do we see counsel challenge the validity of class actions, period?

            Most court proceedings don’t make that even possible. That kind of thing happens in the legislature or constitutional conventions, mostly.

            And, by the way, that’s the way it is as a result of one of our first principles: judges have to work within the rules of the game as already established, so that people who come to court aren’t subject to judicial whim. If you disagree with a rule, not a ruling, you don’t argue with the ref during the game, you take it up with the commissioner later.

        2. that’s asinine. So things never happen to groups of people? People don’t interact in large numbers? The same thing done by the same people couldn’t effect a bunch of other people?

          Leave it to libertarianism to implicitly deny basic aspects of reality itself

          1. though of course the Wal-Mart case was indeed ruled correctly – the women did not have a class claim, each store is a separate thing

  11. This modern picture of the Supreme Court is reminiscent of a Benetton advertisement. It would be a great achievement, and say something positive about our society, if said justices were appointed on the basis of their adherence to Constitutional principles. However, the rainbow coalition of justices exists under the context of a diversity agenda that equates justice with racial, gender, and political perspectives. So when I see this picture I’m reminded of the true sexist and racist mindsets that perverse Constitutional justice, those who find legitimacy in appointing justices to the court based on criteria other than the strict adherence to the Constitution. Sadly, our modern meme is that those who do render judgement in strict accordance with the supreme law of the land are right wing zealots who hate women, minorities, and progress. We have turned into a nation of politically correct ostensible fools.

    1. EEO = Social Justice

    2. or maybe all the justices were appointed because of their accomplishments in law and basic chance made them slightly a rainbow and you just jump onto the “affirmative action” card cause you’re a fucking racist

      1. Sotomayor and Kagan, accomplishments in law? Are you fucking kidding?

  12. I don’t trust anything that bleeds for seven days and doesn’t die.

    1. I’m with you. If women didn’t have a cooter, ther’d be a bounty of ’em all.

  13. There is no civil right to enter my property.

    Yes, but my civil right to a cup of coffee and a hamburger prepared by you means I can (nay, MUST!) enter your property and compel you by any means available to provide them to me. And, since you are richer than I, for a less-than-replacement-value price.


    1. I got a pickle for ya!

      1. How many times do we have to go over this, Barney?

        You’re the doughnut, not the pickle.

    2. Who drinks coffee with a hamburger? You need something cold and refreshing to wash down the salty, fatty, grilled deliciousness.

      I suggest iced tea or a beer.

  14. “Wal-Mart now has a program to help boost the share of female managers”

    Such a program will be specifically at the expense of males. I guess that is alright with Ms. Young.

    All legal discrimination in the work force is against men. Most cultural discrimination in the work force is against men. The fact that you see many articles like this helps to create a climate where it is acceptable and encouraged for companies to create programs like the one above that further discriminate against men.

    1. do you realize how much privilege (ruh-roh, liberal buzzword!) men have in the world today? do you realize how much privilege men have *that they don’t even recognize that they have*?

      watch Mad Men for a while. it might not be completely accurate of the times, but I’m willing to bet it’s pretty damn close….

      1. you obviously fail to realize how much privelege women have today and have had historically.

        The left, which mostly controls academia, entertainment and the media, has only looked at one side of the equation while ignoring the other. Women are clearly more priveleged now and I would argue have always have been.

      2. Yeah, fuck the real world. A TV show is all you need to back up your argument.

        1. male (un)privilege: (not arguing either way, just showing the bias of the men are privileged argument)

          Jails and prisons – VAST majority men
          Mental Institutions – ditto
          Suicides – ditto
          Die earlier – ditto
          Workplace injuries – overwhelmingly men
          Workplace Deaths – overwhelmingly men
          Primary Custody rewarded – overwhelmingly women
          Die from crime victimization- overwhelmingly men

        2. yeah, A Lifetime movie

          I laughed when I saw some of “Sleeping with the Enemy”. When she meets her new neighbor after running away, they deliberately make it look like the guys is all but saying “I’M GONNA RAPE YOU!!”

          1. “Look to your left. Now look to your right. Statistically one of these two men will try to rape you”

            It’s wonderful how much liberals are actually their own hilarious caricature.

      3. Despite the fact that women now outnumber men in college. And have better health outcomes. And are much less likely to be in prison.

  15. women represent less than 10% of the class arrested by bank robbery. clearly, the cops are practicing gender discrimination and this will not STAND

    bank robbery laws, or at least their application by sexist cops are clearly sexist!

    womym bank robbers unit

    ovular at 9pm tonight.

    1. We all know what wrongs men do. They are well documented and used to demonize men in general.

      We need to pay as much attention to the wrongs women do. For instance women commit most of the child abuse but that fact is never talked about. The safest place for a child to be is with his or her biological dad but you would never know that from the way fathers are portrayed in our feminist society.

      To see the blatant bias against men look at the purely female crime of paternity fraud. A crime that happens far more than bank robbery or murder. Paternity fraud is a form of murder, denies a man from passing on his genes thus ending his line, and a form of slavery, tricks a man into using his labor to provide for a child that is not his own. Unbelievably this woman only crime is not only not punished but is actually encouraged by our legal system.

      Women are not morally superior to men.

      1. I dont think anyone is arguing moral superiority. I think the point was that the general behaviors of men and women are different so the statistics are an unreliable source to be used unilaterally to show bias.

      2. Correct on all counts.

        I like women. In many ways I prefer the company of women to the company of men – I’ve liked sweet little old ladies ever since I was a boy.

        Even so, women are not innocent little angels that never do wrong, and men are not maniacal devils that always seek to hurt others. Most people are an ordinary mix of good and bad, a few are assholes, and a few more are pretty decent. Male or female has nothing to do with it.

      3. FYI here in Jersey the precedent has been set that you can sue the woman for your money back if you’ve been paying child support and it turns out it’s not your kid, even if you were married when you made the kid

        another reason to live in Jersey

  16. Gender discrimination? So feminine-acting people (of whatever sex) get discriminated against?

    Or is this a grammar thing?

    1. Actually, I’d say you’re spot on. Feminism has largely been about making gains for masculine women at the expense of feminine men – who used to be a counterweight to men with more “masculine” characteristics.

      Of course, most everyone has a mixture of “masculine” and “feminine” characteristics, which are only called so because each is more common in one sex than in the other – so it quickly becomes complicated – but I can’t help but notice that “feminism” has largely been about promoting “masculine” traits.

  17. Ah! this is why I love Cathy’s contributions to Reason. It’s like she bases her beliefs on evidence and rational thought, or something.

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