As Fiftieth Anniversary of Equal Pay Act Nears, Wal-Mart Continues to Defend Unequal Pay Practices

In the decade since the original Wal-Mart v. Dukes suit began, the national gender wage gap has remained steady at 77 cents to the dollar. This case is just one example that there is much, much more work to be done to improve women’s economic status in the US.

Some of the plaintiffs who lost in last year’s Wal-Mart, Inc. v. Dukes Supreme Court ruling may be given a second chance to prove their case. On Friday, Judge Charles Breyer of the Northern District of California ruled that the California-based plaintiffs may go forward with showing that their class meets the requirements the Supreme Court established last year. Judge Breyer set February 15, 2013 as the date for the California plaintiffs’ class certification hearing.

But the road ahead is likely to be long. Even if the plaintiffs prevail in this class certification hearing, it is fair to assume that Wal-Mart will continue to appeal and insist that the class does not fit within the Supreme Court’s class requirements—further protracting the litigation that is already over a decade old.

Sadly (but not surprisingly), over the last decade the national wage gap has remained the same as well. Women on average earn 77 cents for every dollar that earned by men. As we near the 50th anniversary of the Equal Pay Act, which passed in 1963, Wal-mart tenaciously maintains that its decisions to systemically pay women less and pass them over for promotions were not discriminatory. A number of other employers seem to be shortchanging their female employees as well. This case is just one example that there is much, much more work to be done to improve women’s economic status in the US.

“One of the reasons this case is so important is to galvanize a movement,” said Noreen Farrell, Executive Director of Equal Rights Advocates, one of the groups serving as plaintiffs’ counsel. “Fairness in pay is an issue that’s impacting women in so many industries.”

Earlier this month the National Women’s Law Center released statistics about pay equity in 2011, showing that the wage gap held steady over the last decade. And this holds true whether or not women leave the workforce to raise kids: a woman working full time year-round would lose $443,360 in earnings over a 40-year period. The wage gap persisted regardless of education levels, and was found to be particularly stark among women of color.

Wal-Mart is the largest employer in the United States, and 65 percent of Wal-Mart employees are women. As Rinku Sen pointed out in her terrific piece last year, Wal-Mart’s own internal documents admit that the extremely low number of women in high lever positions at Wal-Mart (only 5 women out of 41 regional vice presidents are women) shows they are lagging in gender parity as compared with their peers.

Counsel for the plaintiffs expect Wal-Mart to challenge any ruling favorable to the plaintiffs throughout this next round of the case.

“We have no doubt that Wal-Mart will continue to try to block these women from having their day in court,” Farrell said.

In last year’s disappointing Wal-Mart v. Dukes ruling, the Supreme Court threw out plaintiffs’ lawsuit, which began back in 2001, because the class was too large and did not show the requisite “commonality” any class action plaintiffs have to show. The California plaintiffs have re-grouped and filed suit in accordance with the Supreme Court’s ruling. Breyer’s decision on Friday rejects Wal-Mart’s motion to dismiss the plaintiffs’ complaint and states that that the women should be given an opportunity to show that they meet the new, stricter class requirements established by last year’s Supreme Court opinion.

In their motion to dismiss, Wal-Mart pushed their theory that the size and diversity of the class of plaintiffs made it impossible for them to show the requisite “commonality” any class action plaintiffs have to show, but Judge Breyer held that the class hasn’t had a chance to present their evidence as to their commonality—something that they can attempt to establish at trial.

Plaintiffs in other regions may give it a second shot as well. By breaking down the original class of plaintiffs and demonstrating that disparities in promotion existed in each region, plaintiffs throughout the country may have a better chance of success in showing that they were discriminated against. While Farrell feels relatively confident the California class will be certified, how the certification hearings will play out in various jurisdictions could vary.