Betty Dukes and Walmart plaintiffs
I kept quiet when my coworker came into my office to fix my heater and told me, “I can keep you warm.”
I ignored it when the guys in the warehouse whistled when I went to the soda machine near the loading dock. (I did ask HR to take down the sign on the vending machine someone had posted that said, “I am owed .69 cents.”)
I merely scowled at the warehouse worker who asked me to step aside when I was lifting boxes one day. “I’m working here Sweetie,” he said.
I didn’t complain the time one of my coworkers took a pocketknife out of my hands while I was dismantling a tradeshow display. “Girls shouldn’t use knives. They could get hurt,” he said. But I gloated when he sliced his finger a few minutes later.
I did comment when one of the salesmen sent me flowers for Secretary’s Day – I was a Vice President. But the CEO and HR Director told me they just didn’t see any issue.
I felt defeated after another sales guy told me how I could touch him, and used hand gestures to illustrate his point. I left when he was promoted to VP and I overheard the CEO discussing his new salary – well above what I was making.
Am I a wimp? A hypocrite? Perhaps. But at the time, I felt hopeless that anything would change if I spoke up. I felt insecure because no one else was talking about these kinds of issues. I felt scared because I thought my resume could use a long stint and I had only been at the company a few years. I felt practical because I had heard the stories about women who complained and were labeled risks, bitches, troublemakers, and I wasn’t going to do anything to hurt my long-term career. I felt tough because I could take it. I felt helpless because I couldn’t afford a lawyer. I felt tired because biting my tongue was exhausting.
With some distance and perspective I realized the risk of staying silent was greater than the risk of speaking up. Hence, Hello Ladies. My experience is the reason I have so much respect for women like Lilly Ledbetter and Betty Dukes. It’s the reason I am so disheartened by today’s Supreme Court decision in the Wal-Mart v. Dukes case to overturn a U.S. District Court ruling that granted class action status to female employees of Wal-Mart.
The case was sparked ten years ago by Dukes, a Wal-Mart store greeter, and claimed women at the giant retailer were paid less than men, had fewer opportunities for promotion than their male coworkers, and were poorly represented at the management levels of the organization. This case also leveled accusations of a work environment that included team meetings at Hooters, requests for women to “doll up,” and the term “little Janie Qs.” to describe female workers. Wal-Mart had asked for a review of the District Court ruling that paved the way for a massive (1.5 million former and current female Wal-Mart employees) class action suit against the retailer for violating Title VII of the Civil Rights Act of 1964.
The Supreme Court’s ruling had nothing to do with whether or not Wal-Mart actually discriminated against women. Dukes and the other plaintiffs are welcome to pursue their cases – just not as a class. Rather the high court ruled on whether the 1.5 million women had enough in common to be considered a class.
The New York Times reported on the ruling writing, “The court divided 5 to 4 along ideological lines on the basic question in the case — whether the suit satisfied a requirement of the class-action rules that ‘there are questions of law or fact common to the class’ of female employees. The court’s five more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions.
“The court was unanimous, however, in saying that the plaintiffs’ lawyers had improperly sued under a part of the class-action rules that was not primarily concerned with monetary claims.”
In delivering the court’s opinion, Justice Scalia wrote, “The second manner of bridging the gap requires ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ That is completely absent here, Wal-Mart’s announced policy forbids sex discrimination,” and, “In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.”
In her dissenting opinion, Justice Ginsburg wrote, “The plaintiff’s evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture.”
The complete ruling, a finely parsed examination of technical points and precedents, is widely viewed as a win for big business and a blow to women. If the court had ruled against Wal-Mart, the retailer could have faced billions of dollars in damages and the case would have paved the way for similar suits. Instead, the decision leaves women alone in their fight against discriminatory practices, steeling for a long, expensive, and sometimes nasty battle, or merely biting their tongue.
Ladies, it’s time to pass the Paycheck Fairness Act.
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