By now, you’ve likely heard about the Supreme Court’s ruling that Walmart can’t be sued by as many as 1.6 million female employees who say the company paid them less and gave them fewer promotions than their male colleagues. According to the Court, there were too many women in too many different jobs to fit into one lawsuit. And while all nine justices agreed that the case failed to meet the requirements for its type of class action, the four liberal justices would have allowed the case to move forward using a different legal theory. The five conservative justices, on the other hand, said there was no convincing proof of a company-wide policy of discrimination. And so ends what would have been the world’s largest sex discrimination lawsuit.
Female Walmart employees will now have to take the corporate giant on one-by-one, though it’s hard to imagine many of them actually doing so, given the high cost of such a battle and the dwindling pressure on Walmart to settle (in other words, the whole David and Goliath thing). And for other victims of sex discrimination, the Walmart ruling will make it that much harder to bring large-scale class actions against companies who pay and promote their male and female employees differently. No wonder Walmart had more than 20 big business supporters at the Supreme Court, including Microsoft, GE and Bank of America to name a few.
Despite statistical proof that women were paid less and promoted less often than men, and in the face of evidence that Walmart had a broad corporate culture of gender bias, knew about discriminatory employment practices and failed to act – arguments I articulated in an earlier post – Walmart’s written corporate policy forbidding discrimination ultimately won the day. Because apparently you should believe everything you read.
In trying to draw a lesson from this case, other than one about the power and influence of big business, I’m struck by the need to do a better job of empowering girls and women to negotiate compensation, employment opportunities, and other non-wage perks – everything from doing basic investigative work on company and industry standards to voicing their expectations to higher-ups. These skills obviously won’t put an end to overt, Mad Men-style discrimination, but they can help when gender is a covert factor in compensation and career development: knowing what you deserve and how to ask for it is half the battle. Greater transparency in compensation and benefits would help too. Given that women tend to expect lower salaries than men, more can be done to help women become better advocates for themselves. Especially since the courts want no part in it.