The Wal-Mart effect. by Bill Gee
(centrist)
Friday, July 8, 2011
About five years ago, while living near Lexington, KY, my mother-in-law had the misfortune of working for Wal-Mart as a sales associate. At sixty-three years old, not only was she required to remain at her register with few bathroom breaks, but she was often told to lift heavy boxes, stock shelves, and stay for hours beyond her work shift. "Conversations" with her manager via the company's "open door policy" were often rewarded with getting cut out of her work shifts or she was scheduled to work at times that she already indicated that she needed time off to go to the doctor. She witnessed sexual harassment and verbal abuse of her fellow female coworkers. She quit after working there for almost a year, and to this day, she finds it difficult to walk into a Wal-Mart store without an anxiety attack.
If the Supreme Court decided in favor of the million and a half women who were suing as a class against the retail giant, she would have been part of that class. Unfortunately, now if she wants to gain any restitution for the mental anguish caused by her former employer, she will need to hire her own lawyer and build a case that the manager at this particular store location either by his actions or inactions, created a hostile work environment at the time of her employment. Since both the manager himself and most of the other employees at the time are no longer working for Wal-Mart, her case would be difficult to prove, expensive to litigate, and nearly impossible to win. At 68 years-old, retired and living on Social Security, she would prefer to leave that experience behind her.
The Corporate Elite Rejoice
On the day the Supreme Court handed down its decision to reject the plaintiffs case, the Dow Jones Industrial Average surged 72 points on what was referred to as the "Wal-Mart Effect". Indeed, since the decision, this indicator has increased over 200 points. The reason for their jubilation was obvious. No more do they need to concern themselves with large and expensive litigations provided that the company has a written policy prohibiting the practice of sexual harassment and discrimination.
What This Means For You
Basically, what it means is that yet another recourse for workers who experience systemic harassment on the job has been taken away from them. Now in order for workers to qualify as a class in a discrimination lawsuit, they must be able to prove the following:
1) The employer in question must have had an explicit or de-facto policy in place where members of management intentionally targeted certain employees for discrimination based on sex or any other class-specific criteria. A "sexist" or "racist" culture is not a strong enough argument because again it comes back to the personhood of the corporation in the eyes of the law. Provided that the official corporate policy clearly states an anti-sexist or anti-racist policy, and provides training to that effect, the corporation cannot be held accountable for the actions of individual managers.
2) Rather than proving that discrimination occurred at the trial, the proposed class must prove that discrimination occurred in order to qualify as a class. Not only does this add another layer of expensive litigation on the part of the plaintiffs, this takes the power of deciding these types of cases away from the jury and into the hands of an individual judge. If the employer in question happens to be a large contributor to the judge's re-election campaign, then he/she will be under increased pressure to not certify the class. If the plaintiffs appeal the ruling, the Supreme Court has just sent a clear precedent that will all but guarantee their appeal will be rejected.
Translation: If you are the victim of harassment or you believe that you are being denied promotions or other opportunities due to your sex, race or culture, you can either find a lawyer and sue the company yourself, put up with the harassment for the sake of keeping your job, or you can go find another job. If you were a single mother who barely had enough money to feed your kids and keep a roof over your head, which one would you choose?
How Do We Stop This?
At Wal-Mart, there has been a renewed effort on the part of female workers at unionization at several of its stores across the nation. It is their hope that through collective bargaining and the power of the strike, they can force Wal-Mart's management to end its culture of sexual and racial discrimination. However, given the cultural shift away from unionization in general, their efforts are going to be difficult, if not impossible.
Another option is to encourage Congress to pass the Paycheck Fairness Act. This law would lift the cap on pay discrimination cases and it would make it illegal to terminate employees who discuss their compensation with other employees. The bill was introduced in both the House and Senate in April 2011, but given the fact that most of Congress owes their election coffers to the very people this would hurt the most, this law has a snowball's chance of ever making it to the President's desk.
We have to come to the realization that rank-and-file workers have no freedom under our current system. That we are simply seen as chattel by our corporate masters, and that the freedom we celebrate is only an illusion. Is it time we took our freedom back, or will we simply watch as our wages continue to go down along with what is left of our dignity?
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The views expressed
in this article are those of Bill Gee only and
do not represent the views of Nolan Chart, LLC or its affiliates.
Bill Gee is solely responsible for the contents
of this article and is not an employee or otherwise affiliated
with Nolan Chart, LLC in his/her role as a columnist.
