MALE MATTERS TAKES APART THE SEX-BIAS CLASS-ACTION LAWSUIT AGAINST WAL-MART

    In June 2004, a federal district court in San Francisco, California, certified Dukes v. Wal-Mart Stores, Inc. as a nationwide class of 1.6 million current and former female employees of WalMart. Dukes had been filed by six female Wal-Mart employees who claimed the company had denied them equal pay and opportunities.

     The class-action, which Wal-Mart is appealing to the Ninth Circuit Court, states:

Females constitute over 72% of the hourly sales jobs and only one-third of management positions.

Men hold two-thirds of all store management positions and over 90% of the top Store Manager positions.

     Essentially from these two facts alone, it appears, the federal court reasoned that between December 26, 1998, and the lawsuit's filing date, Wal-Mart's “purposeful continuing policies and practices of gender discrimination” created a “disparate distribution” of male employees and female employees. (Source: LegalCaseDocs.com) In other words, regardless of which jobs the individual men and women applied for, Wal-Mart deliberately placed mostly women into the lower-paid sales jobs and mostly men into the higher-paid management jobs.

     But did Wal-Mart in fact discriminate against women in both pay and promotions in the relevant period? Or did the court ignore important facts and factors bearing on the case, and hence improperly certify Dukes as a class action?

     Consider first: The court appears to have labored under the impression there are as many managers at Wal-Mart as sales workers. Otherwise, upon learning that in the company's sales departments 72 percent of the company's sales workers are women, why did the court overlook Wal-Mart's possible hiring discrimination against men in those departments? No doubt many men, especially young jobless minority men, would love to be “deliberately placed” into a “low-paid” Wal-Mart sales job. (See the New York Times report, "Plight Deepens for Black Men," and my commentary "Why Affirmative Action in the Workplace Fails Blacks.) The court, by failing to address a possible bias also against male applicants — although it was not obligated to do so since to my knowledge no men have complained of discrimination — seems to have exposed, in finding an antifemale bias, its own antimale bias.

     The court also displayed an antiWal-Mart bias when it rejected the retail company's challenge to the plaintiffs' statistical experts, on whose opinions the court relied in certifying the lawsuit as a class action. Wal-Mart had criticized the experts for failing “to utilize actual applicant flow data when looking at promotions; [to exclude] certain variables such as seniority, recent promotion or demotion, and store size in arriving at conclusions regarding pay; and [to use aggregated] data at the regional level rather than the store or sub-store level.” (Source: FindLaw.com)

     But the court seemed to have no interest in analyzing Wal-Mart's applicant and employee data, even though the data could have, conceivably, hoisted Wal-Mart on its own petard if they documented that the company did actually discriminate. Instead, the court “found as sufficient for this stage of the litigation, plaintiffs' [sociology] expert's opinions that gender is a statistically significant variable in accounting for salary differentials between men and women, and that there was a shortfall of women promoted to in-store management during the relevant period.” (Stress mine.) (Source: FindLaw.com)

     And what exactly was the opinion of the plaintiff's sociology expert, Dr. William Bielby, who was stricken by law firm Littler in a class-action employment case wherein he expressed similar opinions? It was that promotion and pay decisions “are likely to be biased unless they are assessed in a systematic and valid manner, with clear criteria and careful attention to the integrity of the decision-making process.” (Stress mine.) (Source: FindLaw.com) (May 23 note: William Bielby appears to be the most antimale "expert" the plaintiffs could find.)

     So the court privileged Dr. Bielby's theoretical opining over Wal-Mart's hard application data which would have revealed whether Wal-Mart's promotion and pay decisions were in fact "assessed in a systematic and valid manner." The court did this "despite acknowledging [Dr. Bielby's opinions] were replete with conjecture”? Does this not indicate bias on the part of the court? (Stress mine.) (Sources: FindLaw.com and the Washington Legal Foundation - pdf file)

     Perhaps worse than relying on conjecture, the court failed to explore how much Wal-Mart's gender pay gap and disparate distribution of male and female employees were impacted by the sexes' freely made job-market choices.  

     The issue of choice has, over the years, loomed large in the media, a recent example being Dr. Warren Farrell's ground-breaking 2005 book Why Men Earn More. (See a video of Farrell explaining, and his audience interactively confirmng, why men average higher pay than women.)

     Consider choice in the following five brief scenarios about female applicants. (Five scenarios may strike some as belaboring the point about choice, but a little belaboring may be needed, given that choice appears to have been steadfastly ignored not only by the court but also by the plaintiffs' advocates and the growing army of Wal-Mart's critics.) Though fictional, the scenarios have, I think, the ring of truth enough that you can picture them occurring thousands of times every day all across America. As you read, you may want to bear in mind that NBC's "Dr. Phil," whose advice millions of women embrace, says pointedly, “No one does anything without a pay-off."

Scenario One: Sara has been out of work for a year and is despairing in her search for a job. She muses out loud about a newspaper ad for sales positions at a new Wal-Mart going up in her area.
Her husband protests: “Doesn't pay much.”
“Yes, but $7 per hour sure beats zero dollars per hour.” She grabs her purse and heads for the door.

Scenario Two: “You know,” sighs Cathy to her husband, “I'm really getting tired of driving across town to work in all that lousy traffic twice a day. That new Wal-Mart is only a mile away. I think I'm going to give it a shot.”
Her husband protests: “But you'll be getting less pay than you're getting now. And I heard Wal-Mart's health care benefits are truly retrograde.” (About Wal-Mart's health care benefits, see an editorial in the normally liberal LA Times, "Why pick on Wal-Mart?")
“May be. But think of the gas I'll save by commuting one-tenth of the distance. Not to mention the less wear-and-tear on the car and my nerves. Wouldn't you rather to see me come home relaxed and happy for a change? The way I see it, it's a pretty fair trade-off. I'm calling Wal-Mart right now.”

Scenario Three: “The kids are in school all day,” Joan tells her husband, “and I'm suffering big time from boredom being just a housewife, which feminists and the media say is oppressive drudgery. I believe it! And I feel so isolated. I need to be around adults more, like you are. I'm going to fill out this application I picked up at Wal-Mart.”
Her husband protests: “But the pay and benefits are terrible!”
“Since when did any pay become more terrible than no pay? Are you being an oppressive husband trying to discourage me from working outside the home? I am b-o-r-e-d  t-o  t-e-a-r-s. Anything to change my situation!”

Scenario Four: “Dad,” says the recent high-school grad, “instead of working at MacDonald's like a lot of my friends, I'm taking a job at Wal-Mart.”
Her dad protests: “But I've heard they oppress the female employees by paying them less than the men.”
“Dad, I'm only 18. And 'less than the men' is a heck of a lot more than the $20 allowance you give me each week for doing chores around here. Anyway, I won't be there more than about six months. I only want to get some sales experience, then move on to something better. Meanwhile, what's oppressive about getting training and a big raise?”

Scenario Five: A year after being forced to retire, Letoya realizes she needs to supplement her and her disabled husband's income. “I'm going to be a greeter at the new Wal-Mart!” she proudly proclaims to her husband.
Her husband protests: “Do I have to remind you how that company treats women? It's being sued for discrimination—”
“Nathan,” she interjects, “do I have to remind you that nobody else is hiring in this God-forsaken, blighted area?”

     No Gestapo rounded up these women at gun-point and forced them to work in Wal-Mart's "low-pay" jobs. Wal-Mart advertised the jobs, and the women freely applied.

     And who should we more expect to apply for Wal-Mart's “low-paid” jobs. Should we more expect men? Most men still either do all or the bulk of the financial supporting of the family, or anticipate they'll be doing it. They also feel pressured to be successful to attract members of the other sex — a pressure far fewer women than men feel, even today after the feminist movement's 30-year demand that the sexes be treated equally.

     Or should we more expect women to apply for Wal-Mart's "low-paid" jobs? Most women are still either supported by a husband or anticipate being supported. Thus women are able and willing to bear lower pay than men, who generally are in effect "priced out" of the low-paying jobs by the financial obligations inherent in their sole or "primary" provider role.

As for Wal-Mart having more male managers than female, listen to two illuminating statements made by none other than feminist activist and prominent Wal-Mart critic Liza Featherstone, whose book, Selling Women Short: The Landmark Battle for Worker's Rights at Wal-Mart, makes me wonder if she sees Wal-Mart as a scourge to womankind, as a worse enemy to females than the Taliban:

"[Vicky Rice's] husband [who died of a heart attack] was incredibly overworked, as many Wal-Mart managers are. I believe he was an assistant manager, and 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." (Italics mine.) (Source: Stay Free! Magazine)

“One of Wal-Mart's requirements for moving into management is being available to work at any time.” (Source: Salon.com)

     Some obvious questions spring to mind:

When you divide 70-80 hours into a Wal-Mart assistant managers' weekly salary, might you not get a pay rate that is lower than the store's average female sales worker's?

How many women, compared to men, are willing to enslave themselves to that kind of work week — which might literally consign some of them to an early death? How many women are willing to do this especially considering that, as said, most of them are supported by men, are anticipating being supported, or are raising small children and can't or won't make the sacrifice? (Refer again to the video of Warren Farrell pointing out the sacrifices that more men make than women. See also "Pay Equity Day or Quality of Life Day?")

Who, really, has the better deal: the male managers, who earn more but log in exhausting hours and “in some sense are more exploited,” or the female sales workers, who earn less but put in far fewer, predictable, manageable hours, and have a life beyond their job? If, as it seems, the managers have it worse when all things are considered, why on earth would Liza Featherstone or any other feminist want Wal-Mart's female workers, in particular those supported by a husband, to give up a job they freely chose for one that may "exploit them more"?

     Perhaps we can now understand better why Wal-Mart's sales workers and managers are, respectively, 72 percent and 33 percent female. Yet the court says this female representation is worse than industry averages. What law, though, requires companies to be in lockstep, requires them all to be “average?” Wal-Mart is a non-union company with the goal of offering the lowest possible prices to benefit perhaps mostly female consumers. Being "less than average," which probably hurts nothing except Wal-Mart's reputation in the feminist and liberal communities, would seem to make sense. It makes even more sense in light of women's freely made job-market choices.

     Today, doubtless many low-paid women genuinely believe, largely as a result of the decades-old mantra “women earn just 75 cents to men's dollar," that they are discriminated against purely because their company's male workers average higher pay than the female. Also because of the mantra, women in general tend to think females everywhere are discriminated against. Some women, perhaps having forgotten they freely chose the job they hold, have been led by the mainstream media and women's advocates to truly think they somehow were denied a choice. Others, realizing full well that they and women around them are exactly where they chose to be, may remain quiet hoping to reap benefits from the class-action lawsuits pushed by women's ideological advocates.

     Some of those advocates, in their war on Wal-Mart, may harbor an ulterior goal. Take Liza Featherstone. "What's disturbing,” she told Salon.com, “is that Wal-Mart is really profiting from female poverty — both from its workers and its shoppers. Wal-Mart's business model of offering the lowest price is often at the sacrifice of many principles, including workplace fairness and gender and race equality. We're alighting on a critique of this business model, and Wal-Mart provides a glaring and enormous example. I would certainly hope that one outcome of this class-action suit and this wave of public awareness would be to strengthen the campaign to organize workers.”

     Is organizing Wal-Mart's workers, rather than helping women, Featherstone's real goal? If so, is this goal, in Featherstone's mind, best achieved by "helping women"? Featherstone said in Stay Free! magazine, “But if you're suing Wal-Mart on behalf of 1.6 million other women, as Betty Dukes is, you get an enormous amount of attention, and that embarrasses the company." (To avoid the embarassment — of being anti-female — employers often settle discrimination suits against them, says Warren Farrell in an ABC "20/20" video. The settlements then lend to discrimination claims the credence that invites more claims.) Does this statement mean she considers the court's certifying Dukes as a class action the best way not only to embarrass Wal-Mart but also to get Wal-Mart's female workers labeled victims in the public's eyes? Does she next see labeling the female workers victims as the best way to anger Wal-Mart's women into organizing a union, one which will force Wal-Mart to pay its employees what she thinks it should pay, despite the fact that, as columnist George Will writes, Wal-Mart's pay and benefits “are sufficient to attract hordes of job applicants whenever it opens a new American store, which it does once every three days”?

     As for the ulterior goal of the plaintiffs' class-action lawyers, it seems clear. "There is little doubt,” said Richard Samp, Chief Counsel for Washington Legal Foundation, which describes itself as a nonprofit public interest law and policy center opposed to excessive litigation, “that the only reason the plaintiffs' lawyers sought class certification was to coerce the defendant into settling the case without regard to the merits of the plaintiffs' claims."

     (If you believe class-action lawsuits always act in the interests of plaintiffs and hence always serve justice, see the May 27, 2006, Los Angeles Times op-ed, "Stop the con game of class-action suits." Read more here. The writer, Lawrence W. Schonbrun, has waged at least a 10-year-old battle against class-action lawsuit abuse. Says he, "I have watched with dismay, as helping others became for class-action lawyers merely an unintended consequence of cashing in by working the legal system to pick the deepest corporate pockets.")

     And what might be the true goal of the court in agreeing with the plaintiff's lawyers to certify Dukes as a class action? In agreeing, the court eschewed, among other things mentioned in a Findlaw.com article, the objectivity sought by Wal-Mart but allowed the subjectivity rendered by the plaintiffs' sociology expert. Could the court's goal therefore also be to have Wal-Mart busted by a union? Or does it want merely to be an activist for women. Or does it want both?

     In my view, the court was motivated mostly by a desire to serve as an activist for women, whom it may see as oppressed generally by society and particularly by Wal-Mart; after all, the "oppressed female" is an image that the liberal media and Featherstone-type feminists have intensely and successfully driven for decades. If not motivated by a desire to help women, the court may have simply feared the public's outrage. That outrage likely would erupt, for the main part, in the form of media condemnations and embarrassing protests on the court's doorsteps from the cadre of feminist and union activists who have fought a relentless war to get Dukes v. Wal-Mart Stores, Inc. certified as a class-action.

     The Ninth Circuit Court will likely deny Wal-Mart's appeal of the class-action certification, for it may be more of a women's advocate than the federal court. (See why I believe this in my “Ninth Circuit Court Denies Men Equal Protection At Work For Expressing Less Emotion Than Women.”) But if it does deny the store's appeal, all is not rosy for the 1.6 million former and current Wal-Mart employees represented in the class action. In a trial, each of the employees will have to individually qualify for any back-pay remedy, because the sharing of this remedy is limited to those who can present “objective evidence of application or interest in a promotion.” If a trial court sticks to that limitation, very few of the 1.6 million will be able to present objective evidence of interest if they did not tender an actual application.

     But all 1.6 million may luck out. A pro-female trial court could reject the "evidence of an application" requirement and accept a woman's word (as courts have done in sexual harassment cases) in an affidavit stating, “I was interested in a promotion but was discouraged from applying by Wal-Mart's bias against women."

     But on the other hand, the impossible may happen. Suppose a trial court, in a moment of bold, surprising egalitarianism, orders a look at how Wal-Mart treated its male applicants during the period in question. How will the treatment of the women who failed to become part of Wal-Mart's managers compare, particularly in view of the choice factor, to the possible biased treatment of any men who failed to become part of Wal-Mart's sales force, over two-thirds of which are women?

     We get an idea from Farrell's Why Men Earn More:

We can understand that Wal-Mart would hire 99% women in its ladies' sportswear and hosiery departments, as long as Wal-Mart's men's wear department hires about 99% men. But it doesn't. In Wal-Mart, men's wear is 93% women. 

Approximately 145,000 Wal-Mart employees are in departments in which 91%-99% of employees are women. With the exception of one department requiring the expertise of auto mechanics — TBO Service (Time Between Overhauls [men love acronyms!] — no department had 90% or more men. Thus, when a department did have disproportionately men, it was usually because of either specific skills needed (maintenance, 80% men) or the risk of personal safety and willingness to use physical strength (security, 88% men).

Whether in women's wear or men's wear, at Wal-Mart or anywhere, women are more likely to be hired when skills aren't required.

Now here's the irony. Wal-Mart is being sued, for discrimination against women — fewer are promoted to top management. Yet no one is asking about the degree to which the discrimination against women is accounted for by the discrimination for women — hiring almost all women in positions requiring few or no skills. It seems obvious that an assessment of discrimination should begin by asking, “What percentage of equally skilled men versus women get promoted?”

     What if, to the shock of the class-action employees and everyone else, a trial court found in Wal-Mart's application data sufficient evidence to rule that in the aggregate Wal-Mart discriminated as much for women as against? The court might then throw the case out!

     To illustrate how misguided I think the Wal-Mart class-action lawsuit is, pretend the company's management is 90 percent women and the sales departments 90 percent men. There would still be a class-action discrimination lawsuit representing women — this time unskilled women, because they need help the most.

     So which is Wal-Mart's greater sin: paying more to fewer men who are forced to work longer hours, or paying less to more women who aren't forced to work more than the standard 40 hours? On the whole, which sex is hurt more? Why is Wal-Mart's alleged discrimination against women more important than Wal-Mart's seeming discrimination against men, especially unskilled minority men? What are the answers to these and other questions when the questions are looked at through the lens of choice?

     By not looking through that lens, the Dukes court made a ruling that may get more women promoted at Wal-Mart, many of whom, regrettably, may be under-qualified. But it may also generate unintended hardships, not just for business but also for working women everywhere.

     Says Farrell:

Many men employers (and, increasingly, women employers) are beginning to fear hiring women.  [Read about employers' fear generated also by sexual harassment lawsuits in The Sexual Harassment Quagmire: Digging Out With True Equality.] As one executive put it, “In my experience, [women are] walking lawsuits.” The 1.5 million women suing Wal-Mart for sex discrimination (even as men who are refused jobs in the many Wal-Mart departments that are 90%-100% female say nothing) reinforces that fear.

     When one is blind to antimale bias and discrimination, one is apt to say, as author Laura Flanders said, "...72 percent of [Wal-mart's] workforce is female, but men hold 90 percent of its management positions." I hear in this not just a brushing aside of the possible discrimination against men, but also a tone that comes close to saying, "Because Wal-Mart hired more women overall than men, the idea of 90 percent male managers is particularly repugnant." In any case, why didn't Flanders put it this way: “Although 90 percent of Wal-Mart's management is male, almost three-quarters of the company's entire workforce is female"? (I'm reminded of the feminists who say, "More men commit suicide, but more women attempt it." I can't help thinking these feminists feel more sympathy for the women who fail at suicide than for the men who succeed. They never phrase it as: "Although more women attempt suicide, more men commit it.") 

     Finally, to those who assert that Wal-Mart pays women less than men for the same work (as the mantra “75 cents to men's dollar” implies), Farrell might respond, “Why would such a 'greedy, profit-obsessed' company as Wal-Mart do that? If it did, a competitor could easily outdo it by hiring only women so it could sell its products for 25 percent less than what the same products go for at Wal-Mart."

______________________________ 

Footnote: According to a February 8 report, Wal-Mart plans to open about 1,500 new stores in the U.S. Will Liza Featherstone et al post themselves at the front doors of the new Wal-Marts to warn female applicants about the company's oppression of women? If, as Featherstone says, the company's wages and benefits are worse than just about everyone else's, women employed elsewhere won't leave their current job for an "oppressive" one at Wal-Mart. Hence, the store's new positions are likely to be filled mostly by unemployed women. If so, would Featherstone like to explain how giving jobs to unemployed women oppresses women, as opposed to helping both them and the economy?

(See a similar report by ABC television's John Stossel on the EEOC charging Hooters and Sears with sex bias. See also "Wal-Mart suit uses bad logic.")

(For comic relief, see a humorous, pro-Wal-Mart YouTube video, "Wal-Mart Rocks!" by Republican Girls Gone  Wild.)