dukes backgrounder

Upload: mackoypogi

Post on 14-Apr-2018

243 views

Category:

Documents


0 download

TRANSCRIPT

  • 7/29/2019 Dukes Backgrounder

    1/14

    BETTY v. GOLIATHA History ofDukes v. Wal-Mart

    November 2006

  • 7/29/2019 Dukes Backgrounder

    2/14

    CONTENTS

    Section Page

    I. Background 2

    II. The Wal-Mart Way: Centralization, Centralization, Centralization 3

    III. Why is Dukes so Important? 4

    IV. History and Allegations o the Dukes Litigation 5

    V. Expert Analyses Conclusions rom Dukes v. Wal-Mart 6

    VI. One Step Forward, Two Steps Back: Positive Changes Oset byPolicies Such As Wage Caps and Requiring Around-the-Clock Availability 7

    VII. Conclusion 9

    Appendix 11

  • 7/29/2019 Dukes Backgrounder

    3/14

    I. Background

    Dukes v. Wal-Martis the largest employment dis-crimination class action suit in American history.Filed in June 2001 in the United States DistrictCourt or the Northern Dis-

    trict o Caliornia, the law-suit alleges that Wal-Martactively discriminatedagainst its emale employees by: advancingmale employees more quickly than emale em-ployees; denying emale employees equal job

    assignments, promotions, training and compen-sation; and retaliating against those who opposeunlawul practices.1 The class was certied by

    District Judge Martin J. Jenkins on June 21, 2004,and encompasses all women employed at Wal-Mart rom December 26, 1998 through to thepresent, or at least 1.6 million current and pastemployees.2 Wal-Mart has appealed the certi-cation to the United States Court o Appeals orthe 9th Circuit. Plaintis are condent they willsucceed:

    They [the 9th Circuit] will only reverse JudgeJenkins i they conclude he made a clear er-ror, according to Brad Seligman, an attorneywith The Impact Fund and a lead attorney orplaintis. I am quite condent we are going toprevail.3

    Should Wal-Mart lose its appeal, its options

    would be settlement or trial. Any settlement

    could be enormous, a loss at trial could amountto damages in the billions o dollars, and, eitherway, shareholder anger and damage to the Wal-

    Mart brand name wouldbe a near certainty. A deci-sion by the 9th Circuit as

    to whether Judge Jenkinsabused his discretion by certiying the Wal-Martclass is expected soon.

    Dukes v. Wal-Martis a landmark case, serving as areminder that 42 years ater the passage o TitleVII o the Civil Rights Act o 1964, discriminationhas yet to be eradicated, even at our nationslargest employer. Facts brought to light through

    the Dukes litigation include the ollowing:

    The representation o women in Wal-Marts workorce drops steadily the ur-ther up the company ladder one looks.Although women outnumber men by

    nearly 4-1 among hourly supervisors, in2001 they comprised only 45.1% o the

    Support Managers, the highest-levelhourly supervisory position.4

    Moving up the ladder into purportedsalaried positions, women comprisedonly 37.6 % o Assistant Managers, 21.9%o Co-Managers, and 15.5% o Store Man-agers.5

    Betty versus Goliath:A History ofDukes v. Wal-Mart

    2

  • 7/29/2019 Dukes Backgrounder

    4/14

    Women at Wal-Mart, though sometimescalled supervisors, are disproportion-

    ately working in hourly jobs, which payar less than salaried positions. About

    65% o hourly employees are womencompared to about 33% o managementemployees.6

    In a memorandum to all Wal-Mart di-vision heads in 1999, the companydeclared that Wal-Marts women in

    management (32.4%) is signicantlybehind several o the other retailers reporting (43.2% to 65.3%).7

    Figures rom 2001 show that rom dateo hire until being promoted into an As-sistant Manager position took on aver-age 4.38 years or women, compared to

    2.86 years or men. To reach Store Man-ager, the average male needed 8.64 yearscompared to 10.12 years or a emale.8

    In 1998, a diversity task orce ound thatWal-Mart was alling short when it came

    to promoting women. Instead o heed-ing the internal warnings and carryingout recommendations provided by the

    diversity task orce, Wal-Mart promptlydisbanded the panel. Two years ater thetask orce delivered its ndings, Wal-Marts percentage o emale managershad actually gone down.9

    II. The Wal-Mart Way: Centralization,

    Centralization, Centralization

    District Court Judge Jenkins recognized thehistoric nature o this class action, the act that

    Title VII contains no special exception or largeemployers, and that shielding the nations larg-

    est employers rom allegations o gender or ra-cial discrimination simply because o size wouldundermine the very goals Title VII has sought

    to achieve.10 While Wal-Mart has argued thatthe sheer size o the class counsels against classcertication,11 plaintis have countered that the

    extreme centralization o Wal-Marts businesspractices makes class action treatment ecient.

    Wal-Mart asserts that the employment decisionscarried out by thousands o local managersdid not aect every single member o the classuniormly, but Judge Jenkins disagreed, holdingthat those local managers who determined payand promotions did so with little outside reviewunder the infuence o a strong corporate cul-

    ture that includes gender stereotyping.12

    In sum, plaintis allege that Wal-Mart employsuniorm employment and personnel policies

    throughout the United States. These central-ized policies, coupled with Wal-Marts low levelso emale representation in true managementpositions, refect a lack o success in identiying,

    developing and promoting managerial talentrom within its emale workorce.13

    These arguments are buttressed by the ollow-ing points:

    Wal-Mart has centralized its pricing,buying and promotional decisions on anational level, and deposition testimony

    refects that this same system o central-ized control extends to Wal-Marts humanresources department.14

    Corporate culture, and a shared set ovalues and belies, is strongly refected inthe nature o Wal-Marts practices andpolicies. Corporate culture is a topic

    covered requently in monthly newslet-ters circulated to all o Wal-Marts em-ployees and it is an important element ocompany meetings, especially its annualshareholders meeting.15 It is not surpris-ing then to nd discriminatory employ-ment patterns o striking similarity inWal-Mart stores across the country.

    3

  • 7/29/2019 Dukes Backgrounder

    5/14

    Overseeing store-level human resourcesactivities, including stang and compli-ance with government regulations and

    company policies, are the Regional Per-sonnel Managers, and most Regional

    Personnel Managers work out o the corporate headquarters in Bentonville.16

    From 1975 through 1999, Wal-Mart kepta practice o locating an unusually largenumber o its managers at its corporateheadquarters in Arkansas. Its managerial

    centralization ratio remained 2-3 timesthat o its competitors in every year overthat time span. Wal-Marts strong cor-porate culture has resulted in a striking

    consistency in Wal-Marts employmentpatterns across locations and over time,despite Wal-Marts argument that hiringdecisions are made at the store level.17

    III. Why is Dukes so Important?

    Discrimination suits have the potential to ad-dress issues such as gender discrimination byincreasing the public awareness that is crucial to

    large-scale and dramatic change.18

    One theorysuggests that, while large nancial penaltiesmight impact the bottom line, the continued riskto the Wal-Martbrand in thepublic eye is what

    might drive seri-ous change. TheDukes case hasalready been acatalyst or ocusing consumer and shareholder

    attention on Wal-Mart. Analysts have suggestedthat potential damages to Wal-Mart rom the

    Dukes case could range in the billions o dollars,

    including what the company could be orced topay to equalize inequitable salary scales.19Similar to Ingram v. The Coca-Cola Company20 andRoberts v. Texaco, Inc.21, Dukes is being monitoredby some o the nations largest institutionalinvestors.22 In 2000, Coca-Cola settled a racial

    discrimination class action or $192.5 millionater spending a year sending mixed messagesregarding the signicance o the suit. Analystsidentied the bias suit as a prime reason or the$100 billion decrease in Coca-Colas stock value

    between the years 1998 and 2000.23

    A judgmentagainst or settlement by Wal-Mart could orce

    the company to raise the wages o approximate-ly 60 percent o its U.S. workorce, raising pricesand lowering Wal-Mart sales and its share price,according to investors at Wentworth, Hauser &Violich in Seattle.24

    From the perspective o investors and thepublic at large the impact on brand and repu-

    tation is a question o how the wrongdoing will

    be perceived by consumers. Consumers may beturned o i they believe the companys pur-portedly low prices are being underwritten byWal-Marts ailure to compensate and promotewomen properly. This premise is important con-sidering who the majority o Wal-Mart shoppersare, or more specically, what gender they are.Research has shown that 54 percent o Wal-Mart

    shoppers are women, and that nearly 70 per-cent o women surveyed between the ages o

    18-49 had shopped at Wal-Mart within a 30-dayperiod.25 Four out o ten American women visita Wal-Marts store each week.26 People keep

    shopping at Wal-Mart becausethey dont con-

    nect the act thatthe low pricetheyre paying iseectively subsi-

    dized by the woman at the checkout counter,27

    and the current Dukes litigation will reocus theattention o shoppers and shareholders to thatsubsidy.

    The Dukes litigation is also being closelywatched by Wal-Mart competitors, and a nega-tive outcome against the retail giant could orceother companies to review and make sure thattheir own pay scales are air and balanced.28

    4

  • 7/29/2019 Dukes Backgrounder

    6/14

    Wal-Mart had recommendations it could haveollowed,29 and had it done so, it could haveavoided litigation. The Caliornia District Courtrecognized that plaintis presented largely un-contested descriptive statistics showing emale

    workers are paid less then men in every region;that pay disparities exist in most job categories;

    the salary gap widens over time, even or menand women hired into the same job at the same

    time; women take longer to enter managementpositions; and the higher one looks in the orga-nization, the lower the percentage o women.30

    IV. History and Allegations o the Dukes Litigation

    Dukes is the culmination o an extensive history o sex-discrimination lawsuits against Wal-Martdating back to 1981.31 These cases consist o sexual harassment suits and pregnancy discrimina-

    tion cases, including Mauldin v. Wal-Mart Stores, Inc., 2002 U.S. Dist. LEXIS 21024; 90 A.F.T.R.2d. (RIA)6239 (N.D. Ga. 2002); Mauldin v. Wal-Mart Stores, Inc., 2006 U.S. Dist. LEXIS 23091 (N.D. Ga. 2006)(de-nying motion to decertiy the class and dismiss).32 Also see EEOC (Janice Smith) v. Wal-Mart Stores,Inc.33

    MAY 1994 Betty Dukes, currently employed at the Wal-Mart in Pittsburg, Caliornia, was hired as

    a part-time ront-end cashier at the Pittsburg store in May 1994. Within one year o employment,Ms. Dukes had received an excellent 90-day review, promotion to ull-time status, and a merit payraise. She was promoted to Customer Service Manager in June 1997.34

    SEPTEMBER 1997 According to the complaint, discrimination against Ms. Dukes originatedin September 1997, and two months later Ms. Dukes complained to her District Manager ChuckSalby. Following her internal complaint, Ms. Dukes experienced retaliation including: 1) disciplineor procedures regularly used by male employees without being reprimanded; 2) not allowing herto train or a department manager position; 3) demotion to cashier and being alsely accused o

    violating company policy while perorming a transaction that had been perormed many times byMs. Dukes and other employees in the past without incident; 4) a reduction in hours and hourlywage; 5) not being inormed o at least our un-posted promotional opportunities (departmentand/or support manager positions) or which she would have been eligible but were each lled bymales; and, 6) being discouraged rom applying or uture department manager positions.35

    JUNE 2001 Betty Dukes is one o seven plaintis named in the original complaint BettyDukes, Patricia Surgeson, Cleo Page, Christine Kwapnoski, Deborah Gunter, Karen Williamson and

    Edith Arana each rom dierent stores in Caliornia, and each with similar stories o being passedover or promotions, having management training withheld, and being paid less than males ordoing comparable work.36

    JUNE 2004 Dukes v. Wal-Martwas led in June 2001,37 and plaintis were certied as a class onJune 21, 2004.38 The class o over 1.6 million includes all women employed or ormerly employedat Wal-Mart since December 26, 1998. Wal-Mart has appealed to the U.S. Court o Appeals or the9th Circuit.39 The court has heard oral arguments, and a decision is currently pending.

    5

  • 7/29/2019 Dukes Backgrounder

    7/14

    V. Expert Analyses Conclusions rom

    Dukes v. Wal-Mart

    The ollowing points were made by plaintisexpert witnesses in Dukes v. Wal-Mart.

    The reports can be ound online at http://www.walmartclass.com/all_reports.html. The DistrictCourt utilized these reports requently in con-cluding that plaintis successully met each othe requirements o Federal Rule o Civil Proce-dure 23(a) (numerosity, commonality, typicality,and adequacy).40

    Primary data used by the reports came rom theEqual Opportunity Employment Commission,41Wal-Mart personnel and compensation dataprovided by the retailer through discovery,42and deposition testimony o Wal-Mart manag-ers.43 Among other things, the expert reportsconcluded that the large disparity between the

    percentage o women in store managementpositions and the hourly workorce is a resulto Wal-Marts ailing to promote women at thesame rate it promotes similarly situated men.44

    The reports also concluded that the low numbero emale managers refects a lack o success

    in hiring, identiying, developing and promot-ing managerial prospects rom among its ownemale employees, and that Wal-Mart is ar less

    likely to provide upward mobility opportunitiesor its emale employees.45 Additional pointsinclude:

    In 1999, a conservative estimate basedon data rom the Equal EmploymentOpportunity Commission shows Wal-Mart had a shortall o 4,004 emale in-store managers. The term shortall re-ers to the phenomenon o Wal-Martemploying ewer emale managers than

    one would expect based on the numbero qualied emales at Wal-Mart and thepercentage o emale in-store manag-ers employed by Wal-Marts competition.What this shortall could mean is thatWal-Mart did not promote women into

    management at the same rate that itslarge-chain competitors did, causingthere to be over 4,000 ewer emale in-store managers than one would expectto see. According to Mark Bendick, The

    probability that this result could be dueto chance alone would be written withseveral hundred zeroes ater the decimalpoint.46

    Just as important is the consistency oWal-Marts shortalls. In 1999, Bendickound a shortall o 4,004 emales among2,909 stores, while in 1975 Wal-Mart hada shortall o 168 emale managers

    among 106 stores. This shows that Wal-Mart has grown substantially over that

    25-year period, yet its decit in emale in-store managers has remained consistent.Dividing shortalls by the number ostores, Wal-Mart averaged 1.6 per store in1975, and 1.4 per store in 1999.47

    In 1999, 34.5% o in-store managementpositions at Wal-Mart were held bywomen. In 1975, women at Wal-Marts

    large retail competitors lled 38.4% oin-store management positions. As o

    1999, Wal-Mart had not yet achieved theemale representation that was commonamong its competition a quarter o a cen-tury earlier.48

    In general, emale employees remain inthe Wal-Mart workorce longer thanmales (giving women seniority over

    males) and receive slightly higher peror-mance ratings. Despite this, womenhired into hourly jobs in 1996 ound their

    pay gap widening the longer they re-mained with Wal-Mart. Women hiredinto hourly jobs made on average $0.35less per hour than men, with those whostayed with Wal-Mart through 2001 nd-ing themselves earning $1.16 less perhour on average.49

    6

    http://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/all_reports.html
  • 7/29/2019 Dukes Backgrounder

    8/14

    Total earnings paid to women rangedrom 5-15% less than total earnings paid

    to similarly situated men in each year1996-2001, even when accounting oractors such as seniority, status, andstore.50

    Analysis rom 1996-2001 shows thatamong hourly employees, women werepaid at least 6.7% less than similarly

    situated men, while among salariedemployees women were paid at least12.6% less than similarly situated men.51

    In 2001, women in hourly positions

    earned on average $1,100 less than menper year and women in salaried manage-ment positions about $14,500 less thenmen.52

    In 2001, women on average earned lessper year than men at every level o store

    management (Manager -$16,000 less,Co-Manager -$3,200, Assistant Manager-$2,500, Management Trainee -$800).53

    VI. One Step Forward, Two Steps Back:

    Positive Changes Ofset by Policies

    Such As Wage Caps and Requiring

    Around-the-Clock Availability.

    In the wake o the Dukes ling, Wal-Mart be-

    gan to make changes to its employment poli-cies. It announced that diversity was to be anissue ront and center on its agenda. In 2003,Wal-Mart created a diversity oce to promotediversity throughout the company.54 Yet guresreleased in the last couple years indicate little

    This chart reects data

    presented in Table 9

    and Table 10 o RichardDrogins report. ( 25-

    26). In its opinion, the

    U.S. District Court or

    the Northern District o

    Caliornia ound such

    data sufciently proba-

    tive o an inerence o

    discrimination to create

    a common question

    as to the existence o apattern and practice o

    gender discrimination

    at Wal-Mart.Dukesv. Wal-Mart, Inc., 222F.R.D. 137, 155 (N.D. Cal.

    2004).

    7

    (*CSM stands or Customer Service Manager, which is a supervisor o cashiers)

  • 7/29/2019 Dukes Backgrounder

    9/14

    improvement, and more recent employmentpolicies, while not acially discriminatory, will

    have a disparate impact on women. So, Wal-Mart has changed, but has it changed or thebetter?

    Wal-Mart has made changes to its employment

    practices, beginning to tie 15% o a managersbonus (with bonuses accounting or up to 85%o salary or top executives) to meeting diversitygoals, the goal being to have the sex and race othose promoted more closely refect the per-centages o those who apply.55 It is also requir-ing that new hires with the same experiencereceive the same starting pay, regardless o

    what their pay was in the past.56 Wal-Mart hastouted a new state-o-the-art hiring and promo-tional system to ensure that all applicants havean opportunity to apply and be considered orpositions they are qualied or and interestedin.57 Wal-Mart has even begun issuing diversityreports outlining improvements the companyhas made.58

    Not all o these new practices are as positive

    as they appear on the surace. New online job

    postings and application orms require appli-cants to agree to working rotating schedulesand coming in on o days, requirements thatmay deter emale workers with children andamilies.59 And despite the changes, Wal-Martstill lags behind its competition when it comesto emale representation in management. Wal-Marts diversity report last year indicates that

    in 2005, 38.8% o its managers were emale,60though whether those encompassed by thisstatistic actually perorm true managerial unc-tions is subject to urther analysis. While thereport claims that this is a better percentagethan private industry as a whole, it also providesthe more specic and relevant data or the retailindustry.61 On average, in the retail industry,

    women make up 47.5% o managers, well aboveWal-Marts gure.62 And Wal-Mart has histori-cally lagged even arther behind other largeretail competitors, including Target and Sears. In

    The Support Manager, Department Manager, and CSM (Customer Service Manager, which is a supervisor o

    Cashiers) are the main supervisory hourly jobs. All other positions listed here are higher paying salaried posi-

    tions. Source: Wal-Mart Class Website http://www.walmartclass.com/public_home.html.

    8

  • 7/29/2019 Dukes Backgrounder

    10/14

    1999, women held 34.5% o management posi-tions at Wal-Mart, compared to 56.5% at Wal-Marts top 20 competitors.63 In 1999, Wal-Marthad a lower ratio o emale managers than its

    competitors did 25 years prior.64

    Recent workplace policy shits made by theretail giant are also combining to disproportion-ately impact Wal-Marts emale workorce. Theadoption o wage caps has been particularlyhard or workers to swallow. Workers will nolonger receive annual raises i their pay is at orabove the cap unless they move to a higher pay-

    ing job category.

    No matter how hard people work, we wont get

    anything else out o it, said Ramiro Gonzalez,who works in the produce department o a Wal-Mart in El Paso, TX, and earns $11.18 an hour, orabout $23,000 a year, ater six years with Wal-Mart. The message is, i I dont like it, there is

    the door. They are trying to hit people who havethe most experience so they can leave.65

    These wage caps will have a disparate impacton women compared to men. As ProessorDrogin indicated, women make up a dispropor-tionately large percentage o the lower-payinghourly jobs, they take longer to be promotedand thereore have seniority in those jobs, and

    are promoted at a lower rate than men intohigher paying positions.66 Wage caps will keepwomen, who on average remain in lower payingpositions longer than their male counterparts,rom at least receiving annual raises. For womenwho have been at Wal-Mart or several yearsnow, they might be at the cap already. For these

    women, their current paycheck is as good as itis going to get barring promotion. And despitehaving seniority over and higher perormanceratings than their male counterparts, statisticsshow those promotions to be hard to come byor women.67

    In addition to wage caps, Wal-Mart is requiringemployees to be available around the clock.Shits would be decided by computer at the

    companys headquarters in Bentonville, not bystore managers.68 This policy is meant to keepWal-Mart well-staed at its peak hours, butwould result in inconsistent schedules romweek to week, making it dicult or workers to

    schedule anything in advance. For a companywhose hourly workorce is comprised o nearly

    2/3 women, many o whom have amilies andchildren that depend on them, this is a dicultrequirement. [W]orkers cannot pick up theirchildren ater school every day, and part-timerscannot keep another job because they can becalled to work anytime, according to GuillermoVasquez, a Wal-Mart department manager at aWal-Mart in Hialeah Gardens, FL, where on Octo-ber 16, approximately 200 morning shit work-

    ers walked out in protest o the new policies.69

    VII. Conclusion

    The Dukes case has certainly had a wide impacton corporate America. In 2004, the year theDukes class was certied, the Houston-basedlaw rm o Fulbright & Jaworski surveyed gen-eral counsels. 62% reported their biggest areao litigation exposure and greatest ear was

    employment lawsuits.70 Law rms releasedreports on how to avoid or at least lower thechances o acing similar litigation.71 The Ameri-can Bar Association began advertising a how-toseminar entitled Wal-Mart Class Certication:How an Individual Can Take On a Whole Com-pany And How to Prevent It.72 Most impor-tantly, the Wal-Mart image has begun to tarnish.Americas most admired company in 2003 and

    2004, Wal-Mart ell to 4th in 2005 and slid to

    12th in 2006 as criticism mounted and its stockprice slumped.73 Analysts have suggested thatpotential damages to Wal-Mart rom the Dukescase could range into the billions o dollars, notincluding what the company could be orced topay to equalize discriminatory salaries.74

    Dukes indicates that or 25 years Wal-Marttreated women as less-valuable than men.What Wal-Marts recent policy shits indicate is

    9

  • 7/29/2019 Dukes Backgrounder

    11/14

    that improving the immediate bottom line, notimproving working conditions or women and

    the long-term health o the company, remainmanagements most pressing concerns. Dukes v.Wal-Martis the largest class-action suit in Amer-icas history. Over 1.6 million women have beenharmed by Wal-Mart practices that deny themequal job assignments, promotions, training,and compensation. Charges oten levied againstWal-Mart include the existence o an inormalboys club75 and a lack o attention paid to pos-

    sible discriminatory barriers.76 Women make lessmoney and receive ewer promotions comparedto their male counterparts, and despite knowl-edge o the disparity, Wal-Mart chose to donothing to narrow the gap. I plaintis claims

    are proven, Dukes will refect the sobering realitythat sex discrimination against women remainspervasive in the American workplace. Forty

    years ater the enactment o the Equal Pay Actand Title VII, statistics and studies o workplacedemographics demonstrate that women as agroup continue to lag behind men in compensa-

    10

    tion and promotional opportunities Wal-Mart isa microcosm o this larger social reality.77

    Tellingly, one o Wal-Marts most open acknowl-edgments o its problems with women came romthe companys own ounder. In his 1992 autobi-ography Made in America, Sam Walton wrote:78

    Traditionally, weve had the attitude that i youwanted to be a manager at Wal-Mart, you basi-cally had to be willing to move at a moments

    noticeMaybe that was necessary back in the olddays, and maybe it was more rigid than it neededto be. Now, though, its not really appropriateanymore [The requirement] really put good,smart women at a disadvantage in our company

    because at the time they werent as ree to pickup and move as men were. Now Ive seen thelight on the opportunities we missed out on with

    women.

    Sam Walton may have seen the light, but has Wal-Mart?

  • 7/29/2019 Dukes Backgrounder

    12/14

    Appendix A

    1 Sample page o Wal-Marts online Application For Entry-Level Management Positions 79Plaintis Third Amended Complaint 2, Dukes v. Wal-Mart(N.D. Cal. 2001) at

    http://www.walmartclass.com/staticdata/pleadings/p4.html.

    2 Egelko, Bob. Review Okd in Wal-Mart case: Court

    to rule on class-action status o sex-bias lawsuit, San Fran-cisco Chronicle, August 14, 2004.3 Id.

    4 It is important to note that while Wal-Mart clas-sies these hourly positions as supervisory in nature, they

    do not necessarily carry with them the responsibilities orbenets o true management positions.

    5 William T. Bielby, Ph.D., Expert Report BettyDukes, et al. v. Wal-Mart Stores, Inc.p. 9 (February 3, 2003).

    Copies o expert reports can be ound at http://www.

    walmartclass.com/all_reports.html.6 Richard Drogin, Ph.D., Statistical Analysis o GenderPatterns in Wal-Mart Workorce, 19 (February, 2003).

    7 Mark Bendick, Jr., Ph.D., The Representation oWomen in Store Management at Wal-Mart Stores, Inc. 17

    (January 2003). [The memorandum compared Wal-Mart tove large retail chains Comp USA, Dayton Hudson, Home

    Depot, May Department Stores, and Toys-R-Us.]8 Drogin, supra note 6 at 29.

    11

    http://www.walmartclass.com/staticdata/pleadings/p4.htmlhttp://www.walmartclass.com/staticdata/pleadings/p4.htmlhttp://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/all_reports.htmlhttp://www.walmartclass.com/staticdata/pleadings/p4.html
  • 7/29/2019 Dukes Backgrounder

    13/14

    9 Margaret Cronin Fisk and Karen Gullo, Wal-Mart

    Didnt Act on Internal Sex-Bias Alert, Documents Show,Bloomberg News, July 15, 2005. (Wal-Mart documents re-vealed the ormation o a diversity committee in 1996, which

    then created a taskorce to identiy ways to ensure the devel-opment o emale and racial-minority candidates believed to

    have management potential. This was according to a memoto division heads dated March 25, 1998, rom Francesca Spi-

    nella, Wal-Marts vice president o organizational develop-ment. Depositions o Wal-Mart executives showed that the

    recommendations o the task orce were never carried out,and the task orce was subsequently disbanded by January1999.)

    10 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 142(N.D. Cal. 2001).

    11 Id. at 142.12 Egelko, supra note 2.

    13 Bendick, supra note 7 at 60.14 Bielby, supra note 5 at p. 6.

    15 Id. at p. 7-8.16 Id. at p. 5.17 Bendick, supra note 7 at 62, 65 (For an explana-

    tion o how Wal-Marts competitors were dened and theEEO-1 data that was used in the report, see 20-25. While

    EEO-1 orms do not mention competitor rms by name,Wal-Mart is most oten placed in a category with companiesincluding Sears Roebuck, Kmart, Target, JC Penny, Kohls, Big

    Lot, and Value City).18 Ritu Bhatnagar, Dukes v. Wal-Martas a Catalyst or

    Social Activism, 19 Berkeley Womens Law Journal246, 248(2004).

    19 Betsy Morris, How Corporate America is Betraying

    Women, Fortune, January 10, 2005.20 Ingram v. Coca-Cola Company, http://www.ndjus-

    tice.com/news/newsItem.php?id=1.21 Roberts v. Texaco, Inc., http://www.blbglaw.com/

    cases/texacoactsheet.html.22 See, or example, http://www.calpers-governance.

    org/principles/global/globalvoting.pd, where the CaliorniaPublic Employee Retirement System has adopted the GlobalSullivan Principals where the und believes it is its respon-

    sibility to require companies that it invests in to adhere tolaws proscribing discrimination and to otherwise create a

    workplace ree rom discrimination.23 K. MacAurthur and R. Linnett, Coke Crisis: Equity

    erodes as brand troubles mount,Advertising Age, p. 3, April4, 2000.24 Margaret Cronin Fisk and Karen Gullo, supra note 9.

    25 Kathy Prentice, Your Client on TV at the Local Wal-Mart: Researching Shoppers Standing in the Checkout Line,Media Lie Magazine, November 13, 2005. See: http://www.medialiemagazine.com/cgi-bin/artman/exec/view.cgi?archi

    ve=121&num=1256.26 Liza Featherstone, Wal-Mart Values,The Nation,December 16, 2002.

    27 Bhatnagar, supra note 18 at 252 (telephone inter-

    view with Jocelyn Larkin, attorney, The Impact Fund January21, 2004).28 Michael D. Karpeles, Class-Action Suit Could Have

    Wide-Reaching Repercussions, Wall Street Journal(OnlineEdition), July 7, 2004.

    29 Margaret Cronin Fisk and Karen Gullo, supra note 9.

    30 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 155(N.D. Cal. 2001).31 Liza Featherstone, supra note 26.32 Mauldin alleges that the Wal-Marts health plan vio-

    lates Title VIIs prohibition against gender discrimination inthat the health plans Reproductive Systems provision does

    not provide coverage or prescription contraceptives.33 According to Wal-Marts 10-Q led in September o

    2006 with the SEC, EEOC (Janice Smith) v. Wal-Mart Stores, Inc.

    is an action brought by the EEOC on behal o Janice Smithand all other emales who made application or transer

    requests at the London, Kentucky, distribution center rom1995 to the present, and who were not hired or transerred

    into the warehouse positions or which they applied. Theclass seeks back pay or those emales not selected or hire

    or transer during the relevant time period. The class alsoseeks injunctive and prospective armative relie. Thecomplaint alleges that Wal-Mart based hiring decisions on

    gender in violation o Title VII o the 1964 Civil Rights Act asamended.

    34 Plaintis Third Amended Complaint, supra note 1 at 30.

    35 Id. 31-38.36 Id. 8-19.

    37 Bhatnagar, supra note 18 at 247.38 Steven Greenhouse and Constance L. Hays, Wal-

    Mart Sex-Bias Suit Given Class-Action Status, New York TimesJune 23, 2004.39 Federal Rules o Civil Procedure 23( ) (2003).

    40 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 187(N.D. Cal. 2001).

    41 Bendick, supra note 7 at 8.42 Drogin, supra note 6 at 4.43 Bielby, supra note 5 at p. 2.

    44 Drogin, supra note 6 at 40.45 Bendick, supra note 7 at 60.

    46 Id. at 28, 32.47 Id. at 52.

    48 Id. at 53.49 Drogin, supra note 6 at 33.50 Id. at 77.

    51 Id. at 68.52 Id. at 20.

    53 Id. at 24-25.54 See http://www.walmartstores.com/GlobalWM-

    StoresWeb/navigate.do?catg=625.55 Morris, supra note 19.56 Id.

    57 Wal-Mart Oce o Diversity, A Year o Accomplish-ments (2005), p.17, available at http://walmartacts.com/ar-

    ticles/1674.aspx.

    12

    http://www.findjustice.com/news/newsItem.php?id=1http://www.findjustice.com/news/newsItem.php?id=1http://www.blbglaw.com/cases/texacofactsheet.htmlhttp://www.blbglaw.com/cases/texacofactsheet.htmlhttp://www.calpers-governance.org/principles/global/globalvoting.pdfhttp://www.calpers-governance.org/principles/global/globalvoting.pdfhttp://www.medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archive=121&num=1256http://www.medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archive=121&num=1256http://www.medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archive=121&num=1256http://www.walmartstores.com/GlobalWMStoresWeb/navigate.do?catg=625http://www.walmartstores.com/GlobalWMStoresWeb/navigate.do?catg=625http://walmartfacts.com/articles/1674.aspxhttp://walmartfacts.com/articles/1674.aspxhttp://walmartfacts.com/articles/1674.aspxhttp://walmartfacts.com/articles/1674.aspxhttp://www.walmartstores.com/GlobalWMStoresWeb/navigate.do?catg=625http://www.walmartstores.com/GlobalWMStoresWeb/navigate.do?catg=625http://www.medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archive=121&num=1256http://www.medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archive=121&num=1256http://www.medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archive=121&num=1256http://www.calpers-governance.org/principles/global/globalvoting.pdfhttp://www.calpers-governance.org/principles/global/globalvoting.pdfhttp://www.blbglaw.com/cases/texacofactsheet.htmlhttp://www.blbglaw.com/cases/texacofactsheet.htmlhttp://www.findjustice.com/news/newsItem.php?id=1http://www.findjustice.com/news/newsItem.php?id=1
  • 7/29/2019 Dukes Backgrounder

    14/14

    58 Id.

    59 See Appendix A. Wal-Marts electronic Applica-tion or Entry Level Management Positions requires ap-plicants to agree to certain job requirements in advance,

    such as: 1) scheduled days o are typically not consecutiveand will rotate weekly; 2) scheduled hours are subject to

    change without notice; 3) schedule will include requireddays, evenings, overnights, weekends and holidays; and

    4) assistant managers may be asked to work on days odepending on business needs.

    60 Wal-Mart Oce o Diversity, supra note 57 at p.6.61 Id. at p.6.62 Brad Seligman, Press Release: Wal-Mart Diversity

    Report Conrms Central Claim o Class Action Law Suit(commenting on Wal-Mart Oce o Diversity, A Year o Ac-

    complishments (2005), p. 6).63 Bendick, supra note 7 at 31.

    64 Id. at 53.65 Steve Greenhouse and Michael Barbaro, Wal-

    Mart to Add Wage Caps and Part-Timers, New York Times,October 2, 2006.66 Drogin, supra note 6 at 19, 29, 33, 40.

    67 Id. at 54, 59, 61.68 Pallavi Gogoi, Wal-Mart Workers Walk Out,Busi-

    nessWeek, October 19, 2006. See also: Steven Greenhouse,Florida Wal-Mart Workers Stage Protest, New York Times,

    October 17, 2006; Wal-Mart Employees Protest Outside

    Store, Wall Street Journal, October 16, 2006 at B2; Kris Hud-son and Kris Maher, Wal-Mart Adjusts Attendance Policy,Wall Street Journal, October 14, 2006 at A3.69 Id.

    70 Catalyst, Facts About Working Women, available athttp://www.catalyst.org/les/tid/tidbits04.pd(last visitedNovember 9, 2006).

    71 See http://www.morganlewis.com/pubs/dukes%20v.%20walmart.pd

    72 See https://www.abanet.org/abastore/index.cm

    ?section=main&m=Product.AddToCart&pid=T04WMCC.73 Anne Fisher, Americas Most Admired Compa-nies, Fortune, March 6, 2006.74 Id.

    75 Liza Featherstone, Selling Women Short, (NewYork: Basic Books, 2004), P. 75-84 (describing boys club

    activities including executive hunting trips, sports-themedconerences, lunch meetings at Hooters, and strippers

    brought in to morning employee meetings.)76 Bielby, supra note 5 at p. 21 (Alleging that Wal-Marts policies and practices regarding equal employment

    opportunity include no systemic assessment o disparitiesby gender in pay, promotion, and other career outcomes

    designed to identiy possible discriminatory barriers andremedy them.)

    77 Winnie Chau; Something Old, Something New,Something Borrowed, Something Blue and a Sixpence orHer Shoe: Dukes v. Wal-Martand Sex Discrimination Class

    Actions, 12 CardozoJournal o Law and Gender969, 996(Summer, 2006).

    78 Featherstone, supra note 75 at p. 29. Also see:Sam Walton with John Henry, Made in America: My Story

    (New York: Bantam, 1992), p.23.

    http://www.catalyst.org/files/tid/tidbits04.pdfhttp://www.morganlewis.com/pubs/dukes%20v.%20walmart.pdfhttp://www.morganlewis.com/pubs/dukes%20v.%20walmart.pdfhttps://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=T04WMCChttps://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=T04WMCChttps://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=T04WMCChttps://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=T04WMCChttp://www.morganlewis.com/pubs/dukes%20v.%20walmart.pdfhttp://www.morganlewis.com/pubs/dukes%20v.%20walmart.pdfhttp://www.catalyst.org/files/tid/tidbits04.pdf