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A History of Dukes v. Wal-Mart
November 2006

I. II. III. IV. V. VI. VII. Background The Wal-Mart Way: Centralization, Centralization, Centralization Why is Dukes so Important? History and Allegations of the Dukes Litigation Expert Analyses Conclusions from Dukes v. Wal-Mart One Step Forward, Two Steps Back: Positive Changes Offset by Policies Such As Wage Caps and Requiring Around-the-Clock Availability Conclusion Appendix

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Betty versus Goliath: A History of Dukes v. Wal-Mart

I. Background
Dukes v. Wal-Mart is the largest employment discrimination class action suit in American history. Filed in June 2001 in the United States District Court for the Northern District of California, the lawsuit alleges that Wal-Mart actively discriminated against its female employees by: advancing male employees more quickly than female employees; denying female employees equal job assignments, promotions, training and compensation; and retaliating against those who oppose unlawful practices.1 The class was certified by District Judge Martin J. Jenkins on June 21, 2004, and encompasses all women employed at WalMart from December 26, 1998 through to the present, or at least 1.6 million current and past employees.2 Wal-Mart has appealed the certification to the United States Court of Appeals for the 9th Circuit. Plaintiffs are confident they will succeed: They [the 9th Circuit] will only reverse Judge Jenkins if they conclude he made a clear error, according to Brad Seligman, an attorney with The Impact Fund and a lead attorney for plaintiffs. I am quite confident we are going to prevail.3 Should Wal-Mart lose its appeal, its options would be settlement or trial. Any settlement 2 could be enormous, a loss at trial could amount to damages in the billions of dollars, and, either way, shareholder anger and damage to the WalMart brand name would be a near certainty. A decision by the 9th Circuit as to whether Judge Jenkins abused his discretion by certifying the Wal-Mart class is expected soon. Dukes v. Wal-Mart is a landmark case, serving as a reminder that 42 years after the passage of Title VII of the Civil Rights Act of 1964, discrimination has yet to be eradicated, even at our nations largest employer. Facts brought to light through the Dukes litigation include the following: The representation of women in WalMarts workforce drops steadily the further up the company ladder one looks. Although women outnumber men by nearly 4-1 among hourly supervisors, in 2001 they comprised only 45.1% of the Support Managers, the highest-level hourly supervisory position.4 Moving up the ladder into purported salaried positions, women comprised only 37.6 % of Assistant Managers, 21.9% of Co-Managers, and 15.5% of Store Managers.5

Women at Wal-Mart, though sometimes called supervisors, are disproportionately working in hourly jobs, which pay far less than salaried positions. About 65% of hourly employees are women compared to about 33% of management employees.6 In a memorandum to all Wal-Mart division heads in 1999, the company declared that Wal-Marts women in management (32.4%) is significantly behind several of the other retailers re porting (43.2% to 65.3%).7 Figures from 2001 show that from date of hire until being promoted into an Assistant Manager position took on average 4.38 years for women, compared to 2.86 years for men. To reach Store Manager, the average male needed 8.64 years compared to 10.12 years for a female.8 In 1998, a diversity task force found that Wal-Mart was falling short when it came to promoting women. Instead of heeding the internal warnings and carrying out recommendations provided by the diversity task force, Wal-Mart promptly disbanded the panel. Two years after the task force delivered its findings, WalMarts percentage of female managers had actually gone down.9

to achieve.10 While Wal-Mart has argued that the sheer size of the class counsels against class certification,11 plaintiffs have countered that the extreme centralization of Wal-Marts business practices makes class action treatment efficient. Wal-Mart asserts that the employment decisions carried out by thousands of local managers did not affect every single member of the class uniformly, but Judge Jenkins disagreed, holding that those local managers who determined pay and promotions did so with little outside review under the influence of a strong corporate culture that includes gender stereotyping.12 In sum, plaintiffs allege that Wal-Mart employs uniform employment and personnel policies throughout the United States. These centralized policies, coupled with Wal-Marts low levels of female representation in true management positions, reflect a lack of success in identifying, developing and promoting managerial talent from within its female workforce.13 These arguments are buttressed by the following points: Wal-Mart has centralized its pricing, buying and promotional decisions on a national level, and deposition testimony reflects that this same system of centralized control extends to Wal-Marts human resources department.14 Corporate culture, and a shared set of values and beliefs, is strongly reflected in the nature of Wal-Marts practices and policies. Corporate culture is a topic covered frequently in monthly newsletters circulated to all of Wal-Marts employees and it is an important element of company meetings, especially its annual shareholders meeting.15 It is not surprising then to find discriminatory employment patterns of striking similarity in Wal-Mart stores across the country.

II. The Wal-Mart Way: Centralization, Centralization, Centralization

District Court Judge Jenkins recognized the historic nature of this class action, the fact that Title VII contains no special exception for large employers, and that shielding the nations largest employers from allegations of gender or racial discrimination simply because of size would undermine the very goals Title VII has sought 3

Overseeing store-level human resources activities, including staffing and compliance with government regulations and company policies, are the Regional Personnel Managers, and most Regional Personnel Managers work out of the cor porate headquarters in Bentonville.16 From 1975 through 1999, Wal-Mart kept a practice of locating an unusually large number of its managers at its corporate headquarters in Arkansas. Its managerial centralization ratio remained 2-3 times that of its competitors in every year over that time span. Wal-Marts strong corporate culture has resulted in a striking consistency in Wal-Marts employment patterns across locations and over time, despite Wal-Marts argument that hiring decisions are made at the store level.17

discrimination class action for $192.5 million after spending a year sending mixed messages regarding the significance of the suit. Analysts identified the bias suit as a prime reason for the $100 billion decrease in Coca-Colas stock value between the years 1998 and 2000.23 A judgment against or settlement by Wal-Mart could force the company to raise the wages of approximately 60 percent of its U.S. workforce, raising prices and lowering Wal-Mart sales and its share price, according to investors at Wentworth, Hauser & Violich in Seattle.24 From the perspective of investors and the public at large the impact on brand and reputation is a question of how the wrongdoing will be perceived by consumers. Consumers may be turned off if they believe the companys purportedly low prices are being underwritten by Wal-Marts failure to compensate and promote women properly. This premise is important considering who the majority of Wal-Mart shoppers are, or more specifically, what gender they are. Research has shown that 54 percent of Wal-Mart shoppers are women, and that nearly 70 percent of women surveyed between the ages of 18-49 had shopped at Wal-Mart within a 30-day period.25 Four out of ten American women visit a Wal-Marts store each week.26 People keep shopping at WalMart because they dont connect the fact that the low price theyre paying is effectively subsidized by the woman at the checkout counter,27 and the current Dukes litigation will refocus the attention of shoppers and shareholders to that subsidy. The Dukes litigation is also being closely watched by Wal-Mart competitors, and a negative outcome against the retail giant could force other companies to review and make sure that their own pay scales are fair and balanced.28 4

III. Why is Dukes so Important?

Discrimination suits have the potential to address issues such as gender discrimination by increasing the public awareness that is crucial to large-scale and dramatic change.18 One theory suggests that, while large financial penalties might impact the bottom line, the continued risk to the Wal-Mart brand in the public eye is what might drive serious change. The Dukes case has already been a catalyst for focusing consumer and shareholder attention on Wal-Mart. Analysts have suggested that potential damages to Wal-Mart from the Dukes case could range in the billions of dollars, including what the company could be forced to pay to equalize inequitable salary scales.19 Similar to Ingram v. The Coca-Cola Company20 and Roberts v. Texaco, Inc.21, Dukes is being monitored by some of the nations largest institutional investors.22 In 2000, Coca-Cola settled a racial

Wal-Mart had recommendations it could have followed,29 and had it done so, it could have avoided litigation. The California District Court recognized that plaintiffs presented largely uncontested descriptive statistics showing female workers are paid less then men in every region; that pay disparities exist in most job categories; the salary gap widens over time, even for men and women hired into the same job at the same

time; women take longer to enter management positions; and the higher one looks in the organization, the lower the percentage of women.30

IV. History and Allegations of the Dukes Litigation

Dukes is the culmination of an extensive history of sex-discrimination lawsuits against Wal-Mart dating back to 1981.31 These cases consist of sexual harassment suits and pregnancy discrimination cases, including Mauldin v. Wal-Mart Stores, Inc., 2002 U.S. Dist. LEXIS 21024; 90 A.F.T.R.2d. (RIA) 6239 (N.D. Ga. 2002); Mauldin v. Wal-Mart Stores, Inc., 2006 U.S. Dist. LEXIS 23091 (N.D. Ga. 2006)(denying motion to decertify the class and dismiss).32 Also see EEOC (Janice Smith) v. Wal-Mart Stores, Inc.33 MAY 1994 Betty Dukes, currently employed at the Wal-Mart in Pittsburg, California, was hired as a part-time front-end cashier at the Pittsburg store in May 1994. Within one year of employment, Ms. Dukes had received an excellent 90-day review, promotion to full-time status, and a merit pay raise. She was promoted to Customer Service Manager in June 1997.34 SEPTEMBER 1997 According to the complaint, discrimination against Ms. Dukes originated in September 1997, and two months later Ms. Dukes complained to her District Manager Chuck Salby. Following her internal complaint, Ms. Dukes experienced retaliation including: 1) discipline for procedures regularly used by male employees without being reprimanded; 2) not allowing her to train for a department manager position; 3) demotion to cashier and being falsely accused of violating company policy while performing a transaction that had been performed many times by Ms. Dukes and other employees in the past without incident; 4) a reduction in hours and hourly wage; 5) not being informed of at least four un-posted promotional opportunities (department and/or support manager positions) for which she would have been eligible but were each filled by males; and, 6) being discouraged from applying for future department manager positions.35 JUNE 2001 Betty Dukes is one of seven plaintiffs named in the original complaint Betty Dukes, Patricia Surgeson, Cleo Page, Christine Kwapnoski, Deborah Gunter, Karen Williamson and Edith Arana each from different stores in California, and each with similar stories of being passed over for promotions, having management training withheld, and being paid less than males for doing comparable work.36 JUNE 2004 Dukes v. Wal-Mart was filed in June 2001,37 and plaintiffs were certified as a class on June 21, 2004.38 The class of over 1.6 million includes all women employed or formerly employed at Wal-Mart since December 26, 1998. Wal-Mart has appealed to the U.S. Court of Appeals for the 9th Circuit.39 The court has heard oral arguments, and a decision is currently pending. 5

V. Expert Analyses Conclusions from Dukes v. Wal-Mart

The following points were made by plaintiffs expert witnesses in Dukes v. Wal-Mart. The reports can be found online at http://www. walmartclass.com/all_reports.html. The District Court utilized these reports frequently in concluding that plaintiffs successfully met each of the requirements of Federal Rule of Civil Procedure 23(a) (numerosity, commonality, typicality, and adequacy).40 Primary data used by the reports came from the Equal Opportunity Employment Commission,41 Wal-Mart personnel and compensation data provided by the retailer through discovery,42 and deposition testimony of Wal-Mart managers.43 Among other things, the expert reports concluded that the large disparity between the percentage of women in store management positions and the hourly workforce is a result of Wal-Marts failing to promote women at the same rate it promotes similarly situated men.44 The reports also concluded that the low number of female managers reflects a lack of success in hiring, identifying, developing and promoting managerial prospects from among its own female employees, and that Wal-Mart is far less likely to provide upward mobility opportunities for its female employees.45 Additional points include:

management at the same rate that its large-chain competitors did, causing there to be over 4,000 fewer female instore managers than one would expect to see. According to Mark Bendick, The probability that this result could be due to chance alone would be written with several hundred zeroes after the decimal point.46 Just as important is the consistency of Wal-Marts shortfalls. In 1999, Bendick found a shortfall of 4,004 females among 2,909 stores, while in 1975 Wal-Mart had a shortfall of 168 female managers among 106 stores. This shows that WalMart has grown substantially over that 25-year period, yet its deficit in female instore managers has remained consistent. Dividing shortfalls by the number of stores, Wal-Mart averaged 1.6 per store in 1975, and 1.4 per store in 1999.47 In 1999, 34.5% of in-store management positions at Wal-Mart were held by women. In 1975, women at Wal-Marts large retail competitors filled 38.4% of in-store management positions. As of 1999, Wal-Mart had not yet achieved the female representation that was common among its competition a quarter of a century earlier.48 In general, female employees remain in the Wal-Mart workforce longer than males (giving women seniority over males) and receive slightly higher performance ratings. Despite this, women hired into hourly jobs in 1996 found their pay gap widening the longer they remained with Wal-Mart. Women hired into hourly jobs made on average $0.35 less per hour than men, with those who stayed with Wal-Mart through 2001 finding themselves earning $1.16 less per hour on average.49

In 1999, a conservative estimate based on data from the Equal Employment Opportunity Commission shows WalMart had a shortfall of 4,004 female instore managers. The term shortfall re- fers to the phenomenon of Wal-Mart employing fewer female managers than one would expect based on the number of qualified females at Wal-Mart and the percentage of female in-store managers employed by Wal-Marts competition. What this shortfall could mean is that Wal-Mart did not promote women into 6

This chart reflects data presented in Table 9 and Table 10 of Richard Drogins report. ( 2526). In its opinion, the U.S. District Court for the Northern District of California found such data sufficiently probative of an inference of discrimination to create a common question as to the existence of a pattern and practice of gender discrimination at Wal-Mart. Dukes v. Wal-Mart, Inc., 222 F.R.D. 137, 155 (N.D. Cal. 2004).
(*CSM stands for Customer Service Manager, which is a supervisor of cashiers)

Total earnings paid to women ranged from 5-15% less than total earnings paid to similarly situated men in each year 1996-2001, even when accounting for factors such as seniority, status, and store.50 Analysis from 1996-2001 shows that among hourly employees, women were paid at least 6.7% less than similarly situated men, while among salaried employees women were paid at least 12.6% less than similarly situated men.51 In 2001, women in hourly positions earned on average $1,100 less than men per year and women in salaried management positions about $14,500 less then men.52 7

In 2001, women on average earned less per year than men at every level of store management (Manager -$16,000 less, Co-Manager -$3,200, Assistant Manager -$2,500, Management Trainee -$800).53

VI. One Step Forward, Two Steps Back: Positive Changes Offset by Policies Such As Wage Caps and Requiring Around-the-Clock Availability.
In the wake of the Dukes filing, Wal-Mart began to make changes to its employment policies. It announced that diversity was to be an issue front and center on its agenda. In 2003, Wal-Mart created a diversity office to promote diversity throughout the company.54 Yet figures released in the last couple years indicate little

The Support Manager, Department Manager, and CSM (Customer Service Manager, which is a supervisor of Cashiers) are the main supervisory hourly jobs. All other positions listed here are higher paying salaried positions. Source: Wal-Mart Class Website http://www.walmartclass.com/public_home.html. improvement, and more recent employment policies, while not facially discriminatory, will have a disparate impact on women. So, WalMart has changed, but has it changed for the better? Wal-Mart has made changes to its employment practices, beginning to tie 15% of a managers bonus (with bonuses accounting for up to 85% of salary for top executives) to meeting diversity goals, the goal being to have the sex and race of those promoted more closely reflect the percentages of those who apply.55 It is also requiring that new hires with the same experience receive the same starting pay, regardless of what their pay was in the past.56 Wal-Mart has touted a new state-of-the-art hiring and promotional system to ensure that all applicants have an opportunity to apply and be considered for positions they are qualified for and interested in.57 Wal-Mart has even begun issuing diversity reports outlining improvements the company has made.58 8 Not all of these new practices are as positive as they appear on the surface. New online job postings and application forms require applicants to agree to working rotating schedules and coming in on off days, requirements that may deter female workers with children and families.59 And despite the changes, Wal-Mart still lags behind its competition when it comes to female representation in management. WalMarts diversity report last year indicates that in 2005, 38.8% of its managers were female,60 though whether those encompassed by this statistic actually perform true managerial functions is subject to further analysis. While the report claims that this is a better percentage than private industry as a whole, it also provides the more specific and relevant data for the retail industry.61 On average, in the retail industry, women make up 47.5% of managers, well above Wal-Marts figure.62 And Wal-Mart has historically lagged even farther behind other large retail competitors, including Target and Sears. In

1999, women held 34.5% of management positions at Wal-Mart, compared to 56.5% at WalMarts top 20 competitors.63 In 1999, Wal-Mart had a lower ratio of female managers than its competitors did 25 years prior.64 Recent workplace policy shifts made by the retail giant are also combining to disproportionately impact Wal-Marts female workforce. The adoption of wage caps has been particularly hard for workers to swallow. Workers will no longer receive annual raises if their pay is at or above the cap unless they move to a higher paying job category. No matter how hard people work, we wont get anything else out of it, said Ramiro Gonzalez, who works in the produce department of a WalMart in El Paso, TX, and earns $11.18 an hour, or about $23,000 a year, after six years with WalMart. The message is, if I dont like it, there is the door. They are trying to hit people who have the most experience so they can leave.65 These wage caps will have a disparate impact on women compared to men. As Professor Drogin indicated, women make up a disproportionately large percentage of the lower-paying hourly jobs, they take longer to be promoted and therefore have seniority in those jobs, and are promoted at a lower rate than men into higher paying positions.66 Wage caps will keep women, who on average remain in lower paying positions longer than their male counterparts, from at least receiving annual raises. For women who have been at Wal-Mart for several years now, they might be at the cap already. For these women, their current paycheck is as good as it is going to get barring promotion. And despite having seniority over and higher performance ratings than their male counterparts, statistics show those promotions to be hard to come by for women.67 In addition to wage caps, Wal-Mart is requiring employees to be available around the clock. Shifts would be decided by computer at the 9

companys headquarters in Bentonville, not by store managers.68 This policy is meant to keep Wal-Mart well-staffed at its peak hours, but would result in inconsistent schedules from week to week, making it difficult for workers to schedule anything in advance. For a company whose hourly workforce is comprised of nearly 2/3 women, many of whom have families and children that depend on them, this is a difficult requirement. [W]orkers cannot pick up their children after school every day, and part-timers cannot keep another job because they can be called to work anytime, according to Guillermo Vasquez, a Wal-Mart department manager at a Wal-Mart in Hialeah Gardens, FL, where on October 16, approximately 200 morning shift workers walked out in protest of the new policies.69

VII. Conclusion
The Dukes case has certainly had a wide impact on corporate America. In 2004, the year the Dukes class was certified, the Houston-based law firm of Fulbright & Jaworski surveyed general counsels. 62% reported their biggest area of litigation exposure and greatest fear was employment lawsuits.70 Law firms released reports on how to avoid or at least lower the chances of facing similar litigation.71 The American Bar Association began advertising a how-to seminar entitled Wal-Mart Class Certification: How an Individual Can Take On a Whole Company And How to Prevent It.72 Most importantly, the Wal-Mart image has begun to tarnish. Americas most admired company in 2003 and 2004, Wal-Mart fell to 4th in 2005 and slid to 12th in 2006 as criticism mounted and its stock price slumped.73 Analysts have suggested that potential damages to Wal-Mart from the Dukes case could range into the billions of dollars, not including what the company could be forced to pay to equalize discriminatory salaries.74 Dukes indicates that for 25 years Wal-Mart treated women as less-valuable than men. What Wal-Marts recent policy shifts indicate is

that improving the immediate bottom line, not improving working conditions for women and the long-term health of the company, remain managements most pressing concerns. Dukes v. Wal-Mart is the largest class-action suit in Americas history. Over 1.6 million women have been harmed by Wal-Mart practices that deny them equal job assignments, promotions, training, and compensation. Charges often levied against Wal-Mart include the existence of an informal boys club75 and a lack of attention paid to possible discriminatory barriers.76 Women make less money and receive fewer promotions compared to their male counterparts, and despite knowledge of the disparity, Wal-Mart chose to do nothing to narrow the gap. If plaintiffs claims are proven, Dukes will reflect the sobering reality that sex discrimination against women remains pervasive in the American workplace. Forty years after the enactment of the Equal Pay Act and Title VII, statistics and studies of workplace demographics demonstrate that women as a group continue to lag behind men in compensa-

tion and promotional opportunities Wal-Mart is a microcosm of this larger social reality.77 Tellingly, one of Wal-Marts most open acknowledgments of its problems with women came from the companys own founder. In his 1992 autobiography Made in America, Sam Walton wrote:78 Traditionally, weve had the attitude that if you wanted to be a manager at Wal-Mart, you basically had to be willing to move at a moments noticeMaybe that was necessary back in the old days, and maybe it was more rigid than it needed to be. Now, though, its not really appropriate anymore [The requirement] really put good, smart women at a disadvantage in our company because at the time they werent as free to pick up and move as men were. Now Ive seen the light on the opportunities we missed out on with women. Sam Walton may have seen the light, but has WalMart?


Appendix A
1 Sample page of Wal-Marts online Application For Entry-Level Management Positions 79 Plaintiffs Third Amended Complaint 2, Dukes v. Wal-Mart (N.D. Cal. 2001) at http://www.walmartclass.com/staticdata/pleadings/p4.html.

2 Egelko, Bob. Review Okd in Wal-Mart case: Court to rule on class-action status of sex-bias lawsuit, San Francisco Chronicle, August 14, 2004. 3 Id. 4 It is important to note that while Wal-Mart classifies these hourly positions as supervisory in nature, they do not necessarily carry with them the responsibilities or benefits of true management positions. 5 William T. Bielby, Ph.D., Expert Report Betty Dukes, et al. v. Wal-Mart Stores, Inc. p. 9 (February 3, 2003).

Copies of expert reports can be found at http://www. walmartclass.com/all_reports.html. 6 Richard Drogin, Ph.D., Statistical Analysis of Gender Patterns in Wal-Mart Workforce, 19 (February, 2003). 7 Mark Bendick, Jr., Ph.D., The Representation of Women in Store Management at Wal-Mart Stores, Inc. 17 (January 2003). [The memorandum compared Wal-Mart to five large retail chains Comp USA, Dayton Hudson, Home Depot, May Department Stores, and Toys-R-Us.] 8 Drogin, supra note 6 at 29.


9 Margaret Cronin Fisk and Karen Gullo, Wal-Mart Didnt Act on Internal Sex-Bias Alert, Documents Show, Bloomberg News, July 15, 2005. (Wal-Mart documents revealed the formation of a diversity committee in 1996, which then created a taskforce to identify ways to ensure the development of female and racial-minority candidates believed to have management potential. This was according to a memo to division heads dated March 25, 1998, from Francesca Spinella, Wal-Marts vice president of organizational development. Depositions of Wal-Mart executives showed that the recommendations of the task force were never carried out, and the task force was subsequently disbanded by January 1999.) 10 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 142 (N.D. Cal. 2001). 11 Id. at 142. 12 Egelko, supra note 2. 13 Bendick, supra note 7 at 60. 14 Bielby, supra note 5 at p. 6. 15 Id. at p. 7-8. 16 Id. at p. 5. 17 Bendick, supra note 7 at 62, 65 (For an explanation of how Wal-Marts competitors were defined and the EEO-1 data that was used in the report, see 20-25. While EEO-1 forms do not mention competitor firms by name, Wal-Mart is most often placed in a category with companies including Sears Roebuck, Kmart, Target, JC Penny, Kohls, Big Lot, and Value City). 18 Ritu Bhatnagar, Dukes v. Wal-Mart as a Catalyst for Social Activism, 19 Berkeley Womens Law Journal 246, 248 (2004). 19 Betsy Morris, How Corporate America is Betraying Women, Fortune, January 10, 2005. 20 Ingram v. Coca-Cola Company, http://www.findjustice.com/news/newsItem.php?id=1. 21 Roberts v. Texaco, Inc., http://www.blbglaw.com/ cases/texacofactsheet.html. 22 See, for example, http://www.calpers-governance. org/principles/global/globalvoting.pdf, where the California Public Employee Retirement System has adopted the Global Sullivan Principals where the fund believes it is its responsibility to require companies that it invests in to adhere to laws proscribing discrimination and to otherwise create a workplace free from discrimination. 23 K. MacAurthur and R. Linnett, Coke Crisis: Equity erodes as brand troubles mount, Advertising Age, p. 3, April 4, 2000. 24 Margaret Cronin Fisk and Karen Gullo, supra note 9. 25 Kathy Prentice, Your Client on TV at the Local WalMart: Researching Shoppers Standing in the Checkout Line, Media Life Magazine, November 13, 2005. See: http://www. medialifemagazine.com/cgi-bin/artman/exec/view.cgi?archi ve=121&num=1256. 26 Liza Featherstone, Wal-Mart Values, The Nation, December 16, 2002. 27 Bhatnagar, supra note 18 at 252 (telephone inter-

view with Jocelyn Larkin, attorney, The Impact Fund January 21, 2004). 28 Michael D. Karpeles, Class-Action Suit Could Have Wide-Reaching Repercussions, Wall Street Journal (Online Edition), July 7, 2004. 29 Margaret Cronin Fisk and Karen Gullo, supra note 9. 30 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 155 (N.D. Cal. 2001). 31 Liza Featherstone, supra note 26. 32 Mauldin alleges that the Wal-Marts health plan violates Title VIIs prohibition against gender discrimination in that the health plans Reproductive Systems provision does not provide coverage for prescription contraceptives. 33 According to Wal-Marts 10-Q filed in September of 2006 with the SEC, EEOC (Janice Smith) v. Wal-Mart Stores, Inc. is an action brought by the EEOC on behalf of Janice Smith and all other females who made application or transfer requests at the London, Kentucky, distribution center from 1995 to the present, and who were not hired or transferred into the warehouse positions for which they applied. The class seeks back pay for those females not selected for hire or transfer during the relevant time period. The class also seeks injunctive and prospective affirmative relief. The complaint alleges that Wal-Mart based hiring decisions on gender in violation of Title VII of the 1964 Civil Rights Act as amended. 34 Plaintiffs Third Amended Complaint, supra note 1 at 30. 35 Id. 31-38. 36 Id. 8-19. 37 Bhatnagar, supra note 18 at 247. 38 Steven Greenhouse and Constance L. Hays, WalMart Sex-Bias Suit Given Class-Action Status, New York Times, June 23, 2004. 39 Federal Rules of Civil Procedure 23(f ) (2003). 40 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 187 (N.D. Cal. 2001). 41 Bendick, supra note 7 at 8. 42 Drogin, supra note 6 at 4. 43 Bielby, supra note 5 at p. 2. 44 Drogin, supra note 6 at 40. 45 Bendick, supra note 7 at 60. 46 Id. at 28, 32. 47 Id. at 52. 48 Id. at 53. 49 Drogin, supra note 6 at 33. 50 Id. at 77. 51 Id. at 68. 52 Id. at 20. 53 Id. at 24-25. 54 See http://www.walmartstores.com/GlobalWMStoresWeb/navigate.do?catg=625. 55 Morris, supra note 19. 56 Id. 57 Wal-Mart Office of Diversity, A Year of Accomplishments (2005), p.17, available at http://walmartfacts.com/articles/1674.aspx.


58 Id. 59 See Appendix A. Wal-Marts electronic Application for Entry Level Management Positions requires applicants to agree to certain job requirements in advance, such as: 1) scheduled days off are typically not consecutive and will rotate weekly; 2) scheduled hours are subject to change without notice; 3) schedule will include required days, evenings, overnights, weekends and holidays; and 4) assistant managers may be asked to work on days off depending on business needs. 60 Wal-Mart Office of Diversity, supra note 57 at p.6. 61 Id. at p.6. 62 Brad Seligman, Press Release: Wal-Mart Diversity Report Confirms Central Claim of Class Action Law Suit (commenting on Wal-Mart Office of Diversity, A Year of Accomplishments (2005), p. 6). 63 Bendick, supra note 7 at 31. 64 Id. at 53. 65 Steve Greenhouse and Michael Barbaro, WalMart to Add Wage Caps and Part-Timers, New York Times, October 2, 2006. 66 Drogin, supra note 6 at 19, 29, 33, 40. 67 Id. at 54, 59, 61. 68 Pallavi Gogoi, Wal-Mart Workers Walk Out, BusinessWeek, October 19, 2006. See also: Steven Greenhouse, Florida Wal-Mart Workers Stage Protest, New York Times, October 17, 2006; Wal-Mart Employees Protest Outside Store, Wall Street Journal, October 16, 2006 at B2; Kris Hudson and Kris Maher, Wal-Mart Adjusts Attendance Policy, Wall Street Journal, October 14, 2006 at A3. 69 Id.

70 Catalyst, Facts About Working Women, available at http://www.catalyst.org/files/tid/tidbits04.pdf (last visited November 9, 2006). 71 See http://www.morganlewis.com/pubs/ dukes%20v.%20walmart.pdf 72 See https://www.abanet.org/abastore/index.cfm ?section=main&fm=Product.AddToCart&pid=T04WMCC. 73 Anne Fisher, Americas Most Admired Companies, Fortune, March 6, 2006. 74 Id. 75 Liza Featherstone, Selling Women Short, (New York: Basic Books, 2004), P. 75-84 (describing boys club activities including executive hunting trips, sports-themed conferences, lunch meetings at Hooters, and strippers brought in to morning employee meetings.) 76 Bielby, supra note 5 at p. 21 (Alleging that WalMarts policies and practices regarding equal employment opportunity include no systemic assessment of disparities by gender in pay, promotion, and other career outcomes designed to identify possible discriminatory barriers and remedy them.) 77 Winnie Chau; Something Old, Something New, Something Borrowed, Something Blue and a Sixpence for Her Shoe: Dukes v. Wal-Mart and Sex Discrimination Class Actions, 12 Cardozo Journal of Law and Gender 969, 996 (Summer, 2006). 78 Featherstone, supra note 75 at p. 29. Also see: Sam Walton with John Henry, Made in America: My Story (New York: Bantam, 1992), p.23.