This study examines the legislative and judicial climate that enables corporations like Wal-Mart to engage in practices that violate workers' rights. The popular consensus is that Wal-Mart, the largest retail store in the United States, displays an inordinate disregard for the human dignity and morale of its employees and, despite continual litigation, continues to blatantly violate the legal rights of its employees. Wal-Mart faces charges of violating The Federal Fair Labor Standards Act (2011) by asking management to adjust time sheets so that overtime will not need to be paid, and so that all employees will work under the hourly limit required by the union in order to obtain membership. Employees were insured, without their knowledge, against their death by Wal-Mart. The company was named beneficiary; following death of an employee, the entire benefit amount was retained by the corporation. Not a single cent was offered to the family members of the deceased.
Wal-Mart has deep pockets and little regard for lawsuits. The Human Rights Watch (2011) said that Wal-Mart employs strategies that are illegal, patently violating employees' rights. Wal-Mart is alleged to purchase clothing and other cheap items from shops in foreign countries where few safeguards for workers exist. A television broadcast showed Wal-Mart transacting business with a shop that employs children to make clothing (Sellers, 2005). Fair Labor Standards lawsuits have been filed in many states, some of which have been settled to avoid encouraging similar action in other states. Many women employees of Wal-Mart have filed complaints of sexual discrimination, citing incidences of unequal pay, blocked opportunities for promotion, and grievance policies that lead to harsher treatment by superiors.
Background of the Problem.
The Wal-Mart grievance policy is tantamount to a policy for culling troublesome employees. Grieving employees have made their stories public, explaining that when employees do work up the nerve to complain, the outcome is never a good one for the employee. Figuratively, an employee's first grievance becomes the last of their complaints that will be heard at the retailing giant. Literally, as reported by many employees, grievance results in a path of increased discrimination peppered by a series of demotions, denials of promotional opportunity, and eventual termination.
On behalf of 1.6 million women who worked at Wal-Mart from 1998 to 2001, Betty Dukes filed a class action lawsuit, Betty Dukes vs. Wal-Mart Stores, 2004, that eventually made its way to the highest Court in the United States. Wal-Mart has been fighting the lawsuit for since 1999. The Supreme Court is due to write a decision on the case in June of 2011 (Liptak, 2011). Betty Dukes' story highlights the ills that can befall female employees of the Wal-Mart behemoth. But in a larger sense, Betty Dukes' story exemplifies the corporate climate that enables executives and stockholders to focus inordinately on corporate profits and building the wealth of its stockholders while sacrificing the public good and ignoring the employment laws of the land.
Betty Dukes' Wal-Mart experiences. Betty Dukes is a 52-year-old African-American woman who was hired by Wal-Mart in 1994 as a part-time cashier. She was, by all reports, an admirer of the Wal-Mart enterprise and its founder's "visionary spirit" (Featherstone, 2004). After a year of employment, Dukes was promoted to a full-time position as customer service manager and granted a merit pay raise. In this new position, ostensibly under different supervisors, Dukes began to experience "harsh" discrimination and was denied training opportunities that would enable her to advance further. These training opportunities were granted to her male peers. Once Dukes began to express complaints about the discrimination she was experiencing, discrimination escalated to harassment. She was docked for minor offenses that went unnoticed when performed by male co-workers (Luce, 2005). As Dukes continued to press for equal treatment, she was denied promotion and demoted back to her job as a cashier. An appeal to the Wal-Mart district office brought no relief. Dukes was humiliated by the demotion and lost significant wages due to fewer hours and lower hourly pay. The discrimination that Dukes was experiencing extended to other employees in her workplace; four new management positions were never posted, but were filled by men (Featherstone, 2004). Today, (as of the 2004 publication of Featherstone's book), Betty Dukes works as a greeter for Wal-Mart functions as an associate minister at her Baptist Church, and is the lead plaintiff in the class action suit filed against Wal-Mart for discrimination based on sex (Featherstone, 2004).
Supreme Court's task. Duke's workplace discrimination problems have entered a new phase where the Supreme Court will weigh the issues surrounding the case. Duke's class-action suit poses several dilemmas to the Court. The plaintiff must provide sufficient grounds for the Court to identify adequate commonality to pass the tests for a class-action suit (Liptak, 2011, March 29). The Court will need to determine if the social framework analysis proposed by the plaintiff to show how Wal-Mart's policies may have led to discrimination is, in fact, a viable approach to apply to the class-action suit (Liptak, 2011, March 27). The defendant's attorneys assert that it is not an appropriate or researched application of the social framework; the plaintiff's attorneys argue that it is. Both sides have enlisted the support of attorneys and social scientists who have experience with the approach.
The Supreme Court is not currently tasked with determining if Wal-Mart did, in fact, discriminate against the women who worked for them (Liptak, 2011, March 29). Instead, the debate has shifted to a new case, Wal-Mart Stores v. Dukes, No. 10-277, where the justices must determine if the hundreds of thousands of women workers can demonstrate that their experiences are sufficiently common to allow them to join together in a single law suit. In filing her case as a civil action case, Betty Dukes has opened a Pandora's box of judicial considerations that are playing out against a backdrop, in Justice Samuel A. Alito's words, where potentially "every single company…typical of the entire American workforce…is in violation of Title VII" (Liptak, 2011, March 29) of the Civil Rights Act. As will be seen, this observation is, in fact, the driver for the research proposal in this paper.
The Court has shown itself to be largely pro-business (Times Topics, Justice Kennedy, Justice Roberts, Justice Scalia, 2011), save a few "series of recent rulings in favor of plaintiffs suing for employment discrimination" (Liptak, 2011). Several of the Justices took issue with the way the defense portrayed Wal-Mart's employment policies, saying that they could not at once be subjectively discretionary and exemplify a corporate culture that permeates and dictates managerial policy across the many stores and the many affiliated supplier and distributor relationships (Featherstone, 2004). But new management at Wal-Mart receives handouts that guide managers in how to select employees and how to motivate and inspire employees while holding the line against unionization (Featherstone, 2004).
The justices are sensitive to the ramifications of their decisions for other American businesses. Substantive discord is generated by the fact that the parties originally harmed were individuals working for an immense international corporation, yet the justices seem preoccupied with not only the impact on the defendant in this case, but on other corporations that could potentially find themselves similarly named in a lawsuit (Liptak, 2011, March 29). In taking this stance, the Court could very well protect the status quo, in which women are routinely the target of severe discrimination (McGeeham, 2004, DealBook, "suit," 2010, DealBook, "3 women," 2010), and create a chilling effect on any other female disputants who have experienced discrimination. The Court, which is the most conservative in living memory, (Times Topics, 2011) will, by whatever action it takes, create president.
Women Workers' Rights Issues at Wal-Mart.
The issues related to the violation of workers' rights at Wal-Mart are not new to this country. In fact, they hark back to the not very distant past when American workers learned the hard way that if they were to be safe in their work environments, if they were to make living wages, if they were to be free of discrimination in the workplace, they must unionize. The relationship between workplace safety and collective bargaining may best be put in perspective by recalling the Triangle Fire in New York State (Estrin, 2011).
On March 25, 1911, 146 young women were burned to death or died by jumping to their deaths to escape a fire in a multi-story building in which the exit doors and doors to the stairwells had been locked by the managers in what would turn out to be the fourth highest industrial loss of life in an industrial accident in the U.S. ("Remembering, Cornell Web exhibit, 2010). This tragedy subsequently led to legislation protecting factory workers and the establishment of the International Ladies' Garment Workers Union. While many manufacturing woes have been passed over to foreign manufacturers running sweatshops, the welfare of U.S. public employees is firmly dependent on employment-related decisions made and implemented on domestic soil.