Checkout revolt

As Wal-Mart contests the historic class action brought against it, the 1.5 million women who brought the suit appear as determined as ever.

Published July 12, 2004 2:14PM (EDT)

When men sit down to dine at any one of the 359 Hooters restaurants that dot the United States, you know they're not there for the hamburgers; they're there for the nubile waitresses in tight, skimpy T-shirts. So Melissa Howard had no real interest in eating at a place where your waitress simultaneously serves you and struts around like Miss January. But as the only woman among 10 store managers at a Wal-Mart store in Indiana, she knew that if she didn't toe the line, she might lose her job. And so, every month in the late 90s, she attended district meetings at Hooters, trying to talk profits and stock volume while her co-workers' attention wandered elsewhere.

"I had to sit there and listen to the men make comments about the women's breasts and what they wanted to do with them when they bent over the table," says Howard, 36. "Once, I said I didn't want to be there, and they said, 'Oh you're no fun.' After that, I was afraid to speak up. I knew there would be retaliation."

Which is also why she kept silent on a car trip to the Arkansas head office when two male co-workers insisted on stopping at a strip club en route. "My manager leaned over and said, 'Let's have a threesome out back with one of the strippers. She says, for three, she will only charge fifty bucks.' I was sick.This boys' club mentality ran right through Wal-Mart. So I pretty much kept my mouth shut until my last two months there, and then I felt I didn't have a choice."

Howard wrote a letter to the company's head office listing these and other instances of sexual harassment and discrimination. Although she consistently received job ratings that "exceeded expectations", she was paid at a lower rate than male store managers; when she complained, she was offered a job transfer. "My general manager told me my job was home with my daughter."

Howard felt her only option was to resign, until she spotted the following advertisement, published in newspapers and broadcast on national radio in 2000. "Attention: present and former female employees of Wal-Mart or Sam's Club. Have you been denied career opportunities in management? Are you tired of seeing new hires or less qualified men promoted over you? Have you been denied equal pay for equal work? Have you been getting the run-around about promotions or raises? Are you stuck in a dead-end job? Have you hit the glass ceiling?"

Howard immediately contacted the legal firm behind the advertisement, the Impact Fund, an anti-discrimin-ation organisation based in California. "I have a daughter who is eight. I wanted to show her you can't lie down and take things, you have to fight."

Today, she says, she couldn't have imagined where that one convers-ation with a lawyer would lead. Last month, after studying 200 sworn depositions (including Howard's) and combing through a staggering 1.25 million pages of evidence, US District Judge Martin Jenkins certified the discrimination claim of 1.5 million past and present female employees against Wal-Mart, making Dukes et al v Wal-Mart Stores, Inc the largest civil rights case in US history.

"Women working at Wal-Mart stores are paid less than men in every region," the judge wrote of his decision. "Pay disparities exist in most job categories, the salary gap widens over time, women take longer to enter management positions, and the higher one looks in the organisation, the lower the percentage of women."

Last week, lawyers for Wal-Mart asked a federal appeals court to review the ruling, arguing that the size of the action had been unfairly expanded. They also released sworn statements from women employees who attested to their own successful efforts to get promoted. Next week, lawyers from the seven US firms representing the class action will present their case against any review. And so the fight goes on  hardly surprising when you consider that Wal-Mart is one of the richest, as well as one of the biggest, employers in the country. Annual sales last year were $254bn (#137bn), with profits of $8bn (#4.3bn). If a jury decides to award billions in damages, Wal-Mart's bank balance will take a serious bruising. Already Wall Street investors are reported to be skittish about buying Wal-Mart stock.

Wal-Mart, which also owns Asda in the UK, owns and operates 3,566 stores in the US, employing 1.2 million people, two-thirds of whom are women. Selling everything from tampons to shotguns, gardening tools to nappies, Wal-Mart is the only place many Americans feel they need to shop. But according to more than a million former female employees, the Arkansas-based company still harbours an outmoded "southern" mentality when it comes to women.

Since Judge Jenkins's decision came down, more female employees have come forward to detail pay discrimination and sexual harassment; some estimates put the figure at 500 calls a week. "We have already spoken to 2,000 women and it increases every day," says Joseph Sellers, one of the attorneys for the plaintiffs. "What is clear is that this company has been operating in a time warp, 30 to 40 years out of date. What we are hearing anecdotally is that managers made it clear that they had limited money for pay rises and they first had to take care of the men, because "they had families to support". We're hearing about sexual harassment. Wal-Mart's own data reveals that, on average, women at Wal-Mart were paid $1,400 a year less than men, and female managers $14,000 less."

Sellers believes the corporate giant got away with poor employment practice for so long because of its size and geography. "Typically, [Wal-Mart] locates in parts of the country where there are not a lot of alternative jobs. This is foremost a case about control, about how a group of men have benefited enormously from being able to favour their friends and disfavour women. Well, now they may have to pay billions in damages for playing that game."

Sandra Stevenson, 50, a former employee at the Wal-Mart-owned superstore Sam's Club (named after the company founder, Sam Walton) in Illinois, says it didn't take her long to find that Sam's Club was a bastion of chauvinism. "We used to call it the Boys' Club, not Sam's Club. It was all male managers and they had no interest in helping women get into management. What they were good at was putting women down."

Stevenson says she tried to apply for management positions but because she was repeatedly denied the staff she needed to succeed as an overnight supervisor, there was no chance of her moving up the ladder. Instead she watched male managers promote less experienced male employees over her.

One Easter weekend, she was forced to miss a family funeral. "Being good-natured and devoted, I came in at 4am and worked all day and night. I knew they were trying to set me up for failure. When I missed the funeral, that was the last straw."

Did she complain? She laughs. "It was pretty well known you don't complain, otherwise they retaliate."

Ramona Scott, 41, was a personnel manager in a Florida Wal-Mart from 1990 to 1998. "I was pregnant with twins when a new manager came to our store. He saw how much I was being paid and laughed, telling me a male doing my job in his old store made much more. But he never suggested a raise. When I asked if I could go into the management training programme, he said there were no openings. But he did tell me if I wanted to get along with him I had to be more like his wife  get his coffee, that sort of thing."

In last month's judgment, it was noted that other women were told to "doll up", called "worthless broads", and asked to wear low-cut shirts. Scott, like Howard and Stevenson, said she felt powerless to complain. "I did [complain] once and [the store managers] retaliated, making life difficult for me at work. I thought if I did it again I would get fired. Even now I'm getting trouble and I'm not there any more," she says.

"The guys at my old store are blaming me, because since the lawsuit, the rules have changed. But when I heard this case would go ahead, I couldn't stop crying with joy."

Which is not what Wal-Mart is doing right now, although it is trying to put a brave face on things. "The ruling has absolutely nothing to do with the merits of the case," said Wal-Mart spokeswoman Mona Williams. "Judge Jenkins is simply saying he thinks it meets the legal requirements necessary to move forward as a class action. We strongly disagree with his decision." Last week company lawyers argued that "plaintiffs elected not to present a store-by-store analysis, and instead used a statistical analysis that aggregated data on a nationwide or regional basis".

In a move designed to stem the flow of bad publicity, the company has recently announced a new job classification and pay structure for employees paid by the hour. "Well, first they deny they did anything wrong, now they are making changes," points out Melissa Howard, dismissing Wal-Mart's move as window dressing. "I want to ask them, if you are innocent, why change your policies?"

"I have a good feeling we can win this thing," says lawyer Joseph Sellers when asked if Wal-Mart has any realistic chance of succeeding with its appeal. "The judge wrote a very careful decision based on facts and statistics. The difference here was in the scope. Because the number of plaintiffs was so big, the classification made history. But we want a decision that would send a message to Wal-Mart that they can never discriminate against women again."

Howard claims she doesn't care a whit about the damages for back pay and emotional distress that she will win if the jury rules in her favour. But she does want to testify, and she does want to see Wal-Mart squirm. "I don't want a dime. I just want things to change, because nobody should have to go through what I want through. I worked so hard to get where I am and it was taken away from me because I am a woman."

Ramona Scott agrees. "I don't want money. I am doing this for the women who are still there."

By Sharon Krum

MORE FROM Sharon Krum

Related Topics ------------------------------------------