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Wal-Mart vs. Dukes: Giving Us Something to Talk About

People are talking about Wal-Mart Stores Inc. v. Dukes, probably more so because the U.S. Supreme Court decided in Wal-Mart’s favor.

Last updated on September 5th, 2012 at 04:06 pm

Terrie Ellerbee, associate editor
Terrie Ellerbee, associate editor

People are talking about Wal-Mart Stores Inc. v. Dukes, probably more so because the U.S. Supreme Court decided in Wal-Mart’s favor.

That is the best news to come from the case: People are talking about it, about discrimination in the workplace, reasons why women are paid less (generally having to do with their dedication to family—having children, taking time off with their children, taking the kids to the doctor, etc.) and more.

The discussion is great—and there is so much common ground between men and women. Not all women are in their 20s and 30s and raising young children. The women who aren’t feel pretty much the same way about their younger counterparts as men in the workplace do.

But then, men ought to be able to take the kids to the ­doctor, too.

It is wonderful how we are still trying to figure all of this out. It is wonderful that we are trying.

The U.S. Supreme Court ruling was not about whether Wal-Mart discriminated against women, and it was not about women being able to sue the Arkansas mega-retailer for ­discrimination.

But you would think it was, what with all the pundit head spinning of late.

Women make up more than 70 percent of Wal-Mart’s ­employees but only a third of its salaried managers. On ­average, women were paid $1.16 per hour less than men in the same jobs, even when the women had more seniority and higher performance ratings.

That’s just statistics.

“Merely showing that Wal-Mart’s policy of discretion had produced an overall sex-based disparity does not suffice,” the court wrote.

Statistics prove nothing. A company’s “culture” is not proof, either.

The proof is the rub.

Most companies have policies in place that allow them to fire workers who discuss their salaries with other employees.

Clearly this is good for business.

For employees, well, not so much. Without knowing what the man next to you who is doing the same job and who’s worked as long as you have is paid makes it darned hard to prove discrimination.

As someone who has been on both sides of the hiring table, I know how this privacy is a wonderful thing. No worker needs to know what the other worker is making. The boss is surely wise enough to pay each person adequately and appropriately.

But once, a few of my employees at a previous job did find out. Someone left his check (well, direct- ­deposit stub) lying on his desk and two other people saw it.

That was a rough afternoon.

Maybe I should have fired all three. One quit, effective immediately, and ­another stayed. And the guy who left his check on the desk went to work not long after, no fooling, at a bank.

So, yes, it is much easier on employers if workers do not know what their neighbor is paid.

But in other cases, say the military, or in a factory, like the one where my husband works, everyone knows the pay scale. They may not know who has topped out on the scale, but they could probably surmise it from offhand comments.

That seems the fairest way to go about paying employees, in my opinion.

Another reason Wal-Mart “won” is because no specific ­employment practice was identified as being the one to tie all of the cases together.

What was proven is that Wal-Mart gives local supervisors discretion over employment matters. The supervisors pay and promote as they see fit “in a largely subjective manner,” the court wrote. Therefore Wal-Mart could not be held ­responsible as a company.

There are some common threads, just not ones that satisfied the high court enough to let the suit go forward.

“Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that ­examination of all the class members’ claims will produce a common answer to the crucial discrimination question,” the court wrote.

Wal-Mart had no policy of discrimination. Wal-Mart does have a policy of non-discrimination that has been “announced,” the court said, and the company “has penalties for ­denials of equal opportunity.”

It is important to remember that the high court ruled unanimously, women and all, that the case could not go forward on that basis. Four of the ­justices would have sent the case back to lower courts to take another look at whether the class could be certified with a stricter standard.

That difference is being described as an ideological split.

But we are talking.

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