I admit it: I’ve never shopped at a Wal-Mart, and chances are that I never will. I’m an urban rat, living within walking distance of Washington, D.C.’s National Gallery, and most Wal-Marts are way out in the suburbs. I’m also–I’ll admit this, too–a bit of a retailing snob. I prefer to pay a few cents more for items sold in smallish, conveniently located stores staffed by salespeople who know and love the merchandise rather than in big boxes where I can’t find anything and the staff, when it’s around, is impenetrably ignorant about what it’s supposed to be selling.
I’d feel differently, however, if I were a suburban mom to whom every penny counted so I could pay for clothes and piano lessons for my ever-growing kids. That’s why I never diss Wal-Mart and its phenomenally sucessful tradeoff of lower prices for a bit of inconvenience and lack of aesthetic frisson. And that’s why a federal judge’s decision to turn a lawsuit against Wal-Mart by some disgruntled women who used to work there into a massive sex-discrimination class action on behalf of some 1.6 million past and present female Wal-Mart employees shot my eyebrows well behind my hairline. What’s that all about? I asked myself when I first read about the class action. I couldn’t believe that in this day and age, when most retailing consumers and many retailing buyers and managers are women, for one thing, that any chain would be so foolish as to discriminate across the board against the sex that pays its rent and makes its profits for it.
Now Steve Malanga, writing for City Journal, explains what the Wal-Mart class action is all about: the sorry “current state of U.S. employment law.” Malanga writes:
“The suit is based on individual cases that reveal little more than the frustrated ambitions of underperforming or unpopular workers, backed up by dubious statistical analysis and tortured logic that binds together contradictory arguments by the thinnest of threads….To read the individual stories of the original plaintiffs of this lawsuit is to get a lesson in how employment law has been degraded to the point where aggrieved employees who have been disappointed in their careers regularly claim discrimination and sue’based on nothing more than the fact that they have not been promoted.
“The first plaintiff listed in the case, Betty Dukes, who was featured in a New York Times story about the suit, is a black woman working in a California store who testifies that she clashed with a female Wal-Mart supervisor, was disciplined for admittedly returning late from lunch breaks, but nonetheless claims that Wal-Mart passed her over for promotions because she is woman, though she offers not a shred of evidence of discrimination. The suit’s second plaintiff, Stephanie Odle, was a management trainee denied promotion after being suspended for what her supervisors claim was improper handling of a refund to a customer. She claims, with no supporting evidence, that the suspension was concocted in a plot against her. Odle offers a long list of conflicts she had with Wal-Mart supervisors, and asserts that somehow all her troubles resulted from the fact that she was being discriminated against as a woman. While other cases involve accusations by women that supervisors, including female supervisors, made disparaging remarks about women workers’something entirely possible in a company of more than 1 million employees (and individually actionable)’there is nothing in this collection of anecdotes that amounts to a company-wide pattern of discrimination.”
So here is how, Malanga, says, the plaintiffs’ lawyers (who stand to collect God knows how many millions of dollars in legal fees from an award in their clients’ favor in a class action) plan to prove that company-wide pattern of sex discrimination at Wal-Mart:
“Central to the plaintiffs’ case is the contention that Wal-Mart is a heavily decentralized company, in which managers are given wide latitude to make hiring, pay, and promotion decisions. This, the lawyers argue, is a bad thing, because it leaves too much discretion in the hands of store managers, who can thus be influenced by their own negative stereotypes.
“Under this scenario, decentralization in management, which has been one of the core productivity-boosting principles of American business in the last two decades, becomes something that companies must avoid or limit. Incredibly, the plaintiffs’ lawyers even quote disapprovingly a Wal-Mart store manager who says he relies on ‘teamwork, ethics, integrity, and the ability to get along with others’ in making promotions. ‘Such unwritten, subjective criteria,’ the lawsuit states, ‘are particularly vulnerable to the influence of stereotypes.’ Of course, only in the moral netherworld that many plaintiffs’ attorneys inhabit these days would ‘ethics’ and ‘integrity’ be considered ‘subjective’ criteria to be avoided in making hiring or promotions.”
The lawyers also argue that Wal-Mart has a chauvinistic corporate “culture” that discourages the promotion of women. The evidence? Founder Sam Walton, who died back in 1992, used to take his top managers quail-hunting as a job perk, and we all know that more men than women like to hunt quail. Malanga adds:
“The plaintiffs also employ statistical analysis in an attempt to show company-wide discrimination patterns, claiming for instance that Wal-Mart’s percentage of female managers is far lower than its percentage of female hourly employees. Wal-Mart counters by pointing out that women apply for management posts at a lower rate than men, and that the company actually promotes its female applicants for managerial jobs at a higher rate than it promotes male applicants. If simple logic applied in civil courts today, that would be the end of the discussion. But in the emotionally charged world of discrimination lawsuits, where banks are accused of redlining if their loans don’t reflect the demographic makeup of the population (regardless of the lack of creditworthy candidates in some neighborhoods, or other inconvenient facts), Wal-Mart can be considered guilty simply because its numbers don’t meet some arbitrary standard.”
Malanga’s conclusion: the legally flimsy class action against Wal-Mart exists because of a combination of “voodoo sociology” and the financial interests of trial lawyers who, along with their left-wing political allies, are working hard to persuade the public–and specifically, judges–that Wal-Mart is a threat to the American people just because it is big and efficient:
“Since it became the largest company in America, Wal-Mart has also emerged as the most sued company. Trial lawyers have set their sights on Wal-Mart’s deep pockets and are aided by the numerous unions and Left-wing advocacy groups, whose barrage of negative publicity about the company aims to force it to unionize and to soften up public opinion for a big payoff in court in cases like this. These groups have waged war on Wal-Mart because the company’s widely praised technological and management innovations have helped create a productivity revolution that has threatened organized labor in many markets and challenged some of the economic orthodoxies of the Left. Increasingly, this coalition has argued to a credulous press that Wal-Mart’s focus on low prices and high employee productivity imposes a high cost upon the economy, and lawsuits like the current one can only succeed if these groups persuade enough Americans that something insidious is at work in offering a vast range of products at low prices to middle-American consumers.”
Yes, trial lawyers are happy to trade the well-being of millions of American women consumers grateful to pay less for the products they need for their families for that of a handful of women employees who fought with their bosses and couldn’t be bothered to get back from lunch on time.