Dee Gunter is nobody’s stereotype of a feminist—or a Wal-Mart hater. A fundamentalist Christian who swears she’s “no women’s libber,” she’s also a named plaintiff in Betty Dukes v. Wal-Mart, the largest civil rights lawsuit in history, which charges the Bentonville, Arkansas-based retailer with discriminating against its female employees in pay and promotions.
When Gunter came to work at a Wal-Mart in Riverside, California, in 1996, at the age of 46, with 20 years of retail experience, she was sure she’d advance in the company. A passionate animal lover, she also boasted 30 years of experience raising show dogs. Yet Gunter says she was rejected for the position of pet department head because she “didn’t have enough experience.” The job went (twice) to teenage boys.
Gunter joined the Dukes lawsuit because “this isn’t the Stone Age, and it isn’t the age of Scarlett O’Hara.”
During her tenure at the company, Gunter was repeatedly passed over for promotion in favor of men she had trained, she says in court documents. Her bosses didn’t pretend to be running a civilized workplace: Once, after she’d had a fight with her husband, her supervisor suggested, “Why don’t you put your face in my lap and take care of both of our problems?”
On the day of a scheduled meeting with her district manager to discuss all this, Dee Gunter was fired. She joined the Dukes lawsuit because “this isn’t the Stone Age, and it isn’t the age of Scarlett O’Hara.”
On Monday a panel of California judges ruled that the case, first filed in 2001, should move forward as a class action suit. It’s about time.
While stories like Dee Gunter’s are outrageous, the data on the company’s employment practices are even more disturbing, revealing how pervasive the discrimination has been. When the suit was first filed, two-thirds of Wal-Mart’s work force was female, while two-thirds of its managers were men. Women were paid less than men in just about every job title, for doing exactly the same work. Women were also placed in lower-paying jobs, consistently. All this was true even though women stayed at Wal-Mart longer than men, and earned higher performance ratings.
Wal-Mart executives were well aware of the inequities for years. Sam Walton, the company’s legendary founder wrote in his 1992 autobiography about the barriers women faced at Wal-Mart. And an internal report in 1996 found “a pervasive hostility to women in management” and widespread agreement that “stereotypes limit opportunities offered to women” at the company. A year before the lawsuit was filed, Coleman Peterson, the company’s then head of human resources (or, in Wal-Mart’s whimsical argot, “People Division”) and resident Cassandra, warned his colleagues that Wal-Mart lagged far behind its competitors promoting women into management—another version of an alarm he’d been sounding for years. The old-boys network at the company’s headquarters did nothing.
Gunter’s husband, a retired Teamster, supports her legal fight, but would have preferred to go to the store and beat up the guy who made gross, salacious comments to his wife. When I met the couple in 2003, Gunter smiled indulgently at this. Referring to the litigation, she says: “I tell him, ‘This way is better. This is the Christian way.’”
That may be, but the jury’s still out on which approach would be more effective. It’s been a long and grueling lawsuit—and hasn’t even gone to trial yet. Wal-Mart, desperate to prevent such a trial, has stalled the process with continual appeals over the same issue: whether this case even deserves to be a class action suit.
Betty Dukes v. Wal-Mart represents more than a million past and present employees of the company. The company’s main argument against class action status—pioneering the “too big to…” argument now used by banks to justify no-strings-attached bailouts with taxpayer money—has been that the class in this case is too “unmanageably” large, and that the women should bring individual lawsuits. Dukes was first certified as a class action in 2004, when a 9th Circuit judge ruled that companies should not get away with illegal behavior simply because they were big, and that the case should proceed. Wal-Mart appealed that decision, making the “too big” argument yet again, this time to a panel of federal judges. That panel finally made its decision Monday, upholding 9th Circuit’s 2004 decision. After nearly a decade, the plaintiffs and their lawyers now seem hopeful that the women of Wal-Mart will get their day in court.
But Wal-Mart has already declared its intention to appeal the certification yet again, and is willing to take the matter to the Supreme Court. No one knows how likely the Supremes are to take the case. If they decline, Wal-Mart will at long last have to accept a trial, and defend its record, rather than continually brandishing its size like a playground flasher.
Liza Featherstone is the author of Selling Women Short (Basic, 2004), a book about the Dukes v. Wal-Mart lawsuit.