Are Women A Class? Wal-Mart’s Gender Discrimination Lawsuit

The gender discrimination lawsuit against Wal-Mart is over ten years old. It began in 2000, with a woman named Betty Dukes, who had then been employed as a greeter for nearly six years. She alleged that, despite excellent reviews, she had never been promoted by Wal-Mart; Wal-Mart, in turn, alleged that they had declined to promote her because she returned late from her lunch breaks. But Dukes did not back down, and her case spiraled out, both in terms of its plaintiffs and its potential consequences. It is now a class action lawsuit with over 1.6 million plaintiffs, all female. It has been called “historic,” both for its size and for the questions it raises. For truly, the decision facing the Supreme Court now is not simply whether the Wal-Mart case is too large to be prosecuted as a class-action lawsuit. It is whether women constitute a class.

When U.S. District Judge Martin Jenkins gave the go-ahead for the case to proceed as a class action suit, in 2004, he did so on the basis of statistics. The plaintiffs in Dukes v. Wal-Mart, he found, presented “largely uncontested, descriptive statistics which show that women working in Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time even for men and women hired into the same jobs at the same time, that women take longer to enter into management positions, and that the higher one looks in the organization, the lower the percentage of women.”

It seems like a mighty fine argument: If you want to prove that your circumstances are due to your gender, and not simply to your personal behavior, you check to see whether women have suffered from the same problems. If these “largely uncontested” statistics are true, it would seem undeniably true that women who work for Wal-Mart have more than a few things in common. But Wal-Mart appealed immediately, claiming that women could not possibly have enough in common with each other to form a legally recognizable class: The plaintiffs in the case, said U.S. 9th Circuit Court of Appeals Chief Judge Alex Kozinski, “have little in common but their sex and this lawsuit.”

Well, yeah. That would seem to be the point. The matter of dispute, in the Wal-Mart lawsuit, is no longer simply gender discrimination, or even sexism; it is the existence of structural oppression itself.

Wal-Mart’s preferred strategy — making each individual woman press her own discrimination case — is a classic case of divide-and-conquer, perfectly demonstrating the ways in which women are silenced and delegitimized in day-to-day life. Most women, and especially most women employed at Wal-Mart, do not have the time or the financial resources to nurse a case through a decade-long cycle of appeals; the process would undoubtedly wear most plaintiffs down or bankrupt them long before a verdict was reached. And, with each woman isolated from her peers, every case could be broken down to her individual personality; Wal-Mart would have the opportunity to argue that each woman was too aggressive or too weak, too lazy and domestic or too absorbed in her work, too feminine or not feminine enough. It’s only when women begin to piece their stories together, to view themselves as individual manifestations of a problem labeled Girl, that these tactics fail; it’s only then that women begin to notice that, no matter how they behave, they are given fewer opportunities and less encouragement than men, punished more severely for more offenses than men, made to deal with obstacles which men do not encounter, and generally given both less of a chance to succeed and fewer rewards for succeeding than men.

But, in another sense, considering the Wal-Mart case as the proving ground for structural oppression reveals another, far more uncomfortable truth about gender: The fact that, the more privileged a woman is financially, the more options she has to mitigate her own oppression. The Wal-Mart case reveals exactly how and why women are kept within the working class. But it also reveals some unpleasant truths about wealthy women: On Forbes’ recent list of the “The World’s Billionaires,” there was only one woman in the top ten. And she was Christy Walton. heir to the Wal-Mart fortune. The Wal-Mart case is often described as “Betty vs. Goliath.” But it is Betty vs. Christie, too.

Christie Walton’s Wikipedia page mentions her “philanthropy.” It does not mention that the company which made her fortune has is alleged to have violated child labor laws, released a memo about the undesirability of “unhealthy” employees (thereby discriminating against the disabled), has sourced goods from sweatshops, is one of the more notorious union-busters in America, and is being targeted by a massive class-action lawsuit related to gender discrimination. Of which that last is only the tip of the iceberg: All of these practices affect and oppress women. Working-class women, women with disabilities, third-world women, young women, you name it.

If we consider women as a class, do we not have to consider the Christies as well as the Betties, and to consider how one party participates directly in the other’s oppression? And, if so, does that nullify the idea of a unified female experience? Hard-line Marxists, who boil everything down to class, would give an unqualified “yes” to that question; clearly, the question of sex is irrelevant, and the only true oppression is between proletariat and elite. Those Marxists would only give that answer, however, because they are often very silly. In truth, the answer is an untidy and unsatisfying “maybe.”

Christie Walton is the heir to the Wal-Mart fortune. She did not found the dynasty; a man did that. She did not work her way to the top; that would apparently have been difficult, if not impossible, without her family connections. Ultimately, Walton stands in the loneliest category of them all: The exception that proves the rule. The idea of “women as a class” does not necessarily dissolve, given that women also experience other complicated forms of discrimination and injustice. In truth, the route by which Walton has accessed her privilege shows how limited women’s means of access truly are. And then there is the fact that, despite her wealth, she probably still experiences some forms of gendered oppression — just as the working-class men promoted above Betty Dukes still benefited from some form of male privilege, although they were poor.

Were Walton stripped of the family name and money, she would be far less exceptional. She would find herself, very probably, in the position of the women who are suing her father-in-law’s company. One only hopes she would find the courage within herself to resist that fate. And, hopefully, 1.6 million women to have her back.

Photo by Evil Smiley, licensed under the Creative Commons Attribution 2.0 Generic license.