Wal-Mart Stores, Inc., has agreed to pay $11.7 million in back wages and compensatory damages, its share of employer taxes, and up to $250,000 in administration fees and will furnish other relief, including jobs, to settle a sex discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The settlement illustrates the substantial risks employers face with respect to claims of systemic discriminatory practices.
Facts
The EEOC filed its lawsuit against Wal-Mart in 2001. According to the suit, the company’s London, Kentucky, distribution center denied jobs to female applicants from 1998 through February 2005. The EEOC contended that during that time, Wal-Mart regularly hired male entry-level applicants for warehouse positions but excluded female applicants who were equally or more qualified. The commission alleged that Wal-Mart regularly used gender stereotypes in filling entry-level order-filler positions. It further alleged that hiring officials told applicants the positions weren’t suitable for women and that it hired mainly 18- to 25-year-old males for order-filling positions.
District Court Proceedings
This case was set to go to trial in March 2010. The parties filed numerous pretrial requests. Wal-Mart sought to exclude certain expert testimony. It was able to block the expert testimony of Dr. William Bielby, who was to opine on gender stereotyping. The district court ruled that his testimony didn’t establish intentional discrimination. Rather, it provided only a plausible explanation for the statistical disparity between male and female hires.
The district court ruled that the EEOC’s statistical expert, Dr. Burt Barow, could testify at trial, notwithstanding Wal-Mart’s objection. Barow concluded that after considering all relevant variables, it was less likely that a woman would receive a job offer than would a man. He opined that the estimated discrepancies were highly statistically significant. The court rejected Wal-Mart’s objections to the database the EEOC created for Barow to reach his opinions.
Consent Decree
Shortly before the trial was scheduled to begin, the parties entered into a consent decree. In addition to the monetary award, the decree requires Wal-Mart to provide order-filler jobs as they become available to eligible and interested female class members, as determined by a claims administrator. It must fill the first 50 available order-filler positions with female class members. For the next 50 positions, female class members will be offered every other job. After that, every third position will be offered to female class members.
Wal-Mart has agreed not to discriminate against females in hiring for order-filler positions and not to retaliate against applicants or employees who exercise their rights, complain about discrimination, or assist in an investigation or discrimination-related proceeding. It will post a notice of nondiscrimination at its Kentucky warehouse facilities, train its managers and employees involved in the hiring process at the London distribution center, and use validated interview questions for the order-filler position. It also will submit reports to the EEOC detailing its compliance with the decree.
Bottom Line
Systemic discrimination claims are on the rise. They may be prosecuted by the EEOC or by private attorneys representing numerous individuals in class actions. Cases may involve discrimination claims based on gender, race, age, or disability. Moreover, class actions based on violations of the Fair Labor Standards Act and/or similar state wage and hour laws continue to rise. Thus, it’s critical that you pay particular attention to your overall hiring, promotion, compensation, termination, and disciplinary practices to make sure there is no basis for employees to make systemic claims. If you become subject to an EEOC investigation, you should engage experienced counsel immediately.
Saul C. Glazer is an attorney at Axley Brynelson, LLP. He can be reached at (608) 260-6473 or sglazer@axley.com.
That is the biggest bs ever. I am a walmart order filler. So they want them to hire people that cant meet production to get fired after 90 days. There is jobs that anyone can do here and it is very diverse atmosphere, but there has only been one female transfer to my department she made it 40 days. Not saying its right to not give them a chance cause there is plenty of males out there that cant do it to. But when your average box is roughly 40lbs, which isn’t allot but your throwing them for 12 hours. It is very psychically demanding. Having the ability to do your task at work is all that matters. And most, not all but most females cant make it as a order filler in certain departments.