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                               TABLE OF CONTENTS

I.    INTRODUCTION .....................................................................838

    SITUATION ............................................................................843
    A. Wal-Mart: An Overview ................................................843
    B. The Dukes Claims.........................................................847
        1. Statistical Evidence ...............................................847
        2. Anecdotal Evidence................................................852

     UNAVAILABLE TO WAL-MART WOMEN ..................................856
     A. The NLRA: An Attempt to “Fit” Employees
        with Collective-Bargaining Power ................................856
     B. The Benefits of Unionization for Women
        in the Retail Industry: It Looks Like a
        Good “Bargain” .............................................................858
     C. Wal-Mart’s Anti-Union Policies: Why
        the Dukes Plaintiffs Cannot Make
        This “Purchase”.............................................................860

      * This Comment was selected as the recipient of the Baker Botts L.L.P. Award, in
honor of Professor Emeritus Newell Blakely, recognizing an outstanding work in the area
of employment law. Additionally, this Comment was a recipient of the 2005 State Bar of
Texas Labor and Employment Section Law Review Article Award. The Author would like
to thank Professor Geraldine Szott Moohr, Professor Lonny Sheinkopf Hoffman, Professor
Ronald Turner, Professor Laura Oren, and Mrs. Camille Combs for their helpful
comments and suggestions.

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838                         HOUSTON LAW REVIEW                                        [42:3

    NONUNIONIZED WOMEN IN RETAIL ......................................864
    A. The Logistics: The Shoe Seems to Fit ...........................864
    B. The Past: Previous “Shoppers” Have Not
        Seen Adequate Returns on Their
    C. Morgan Stanley: Real Changes? ...................................871
    D. The Present: What’s Wal-Mart up To? ..........................872
    E. The Future: Making the Shoe Fit..................................874
        1. Expansion of Employment
            Opportunities for Wal-Mart Women ......................875
        2. Diversity Task Force ..............................................876
        3. Judicial Oversight .................................................878

V.    CONCLUSION .........................................................................879

                                                 I.    INTRODUCTION
                                       On March 25, 1911, 146 workers,
                                  mostly women and girls, lost their hopes
                                  and dreams when their lives were
                                  shamefully cut short by a horrendous
                                  fire at the Triangle Shirtwaist Factory.1
                                  The inferno was purported to be the
                                  result of unsafe working conditions that
                                  may well have been remedied if the
                                  workers had been unionized: The
                                  workers could have stood together to
                                  collectively voice their safety concerns.
                                  But     the   managers     at    Triangle
                                  vehemently opposed unionization.3 Rose
                                  Schneiderman, a famous union organizer

political cartoon above and more information regarding the tragedy of the Triangle
Shirtwaist Factory fire are available from the UNITE HERE Archives, Kheel Center,
Cornell University,
     2. See Samuel Gompers, Hostile Employers, See Yourselves as Others Know You, 18
AM. FEDERATIONIST 353, 356 (1911) (“[At Triangle,] [s]low murder through underpay,
overcrowding, bad ventilation, and slave-driving gave way in that awful event to the swift
methods of murder characteristic of Chicago packing-house butchery.”).
     3. See DREHLE, supra note 1, at 55–86 (describing the unionization movement in
the early twentieth century and the few factory owners, including those at Triangle, who
were “relentlessly aggressive against the pickets”).
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of the time, lamented that “[t]he strong hand of the law beats us
back, when we rise, into the conditions that make life
unbearable. . . . I know from my experience it is up to the
working people to save themselves. The only way they can save
themselves is by a strong working-class movement.”4
     The Triangle fire occurred almost one hundred years ago.
Since that time, the federal government has stepped in with
extensive laws in an effort to save employees who, due to their
lack of bargaining power, are victimized by employers. Seventy
years ago Congress enacted the National Labor Relations Act
(NLRA) to protect workers’ right to organize labor unions, and it
passed Title VII of the Civil Rights Act of 1964 in an attempt to
end discrimination in the workplace over forty years ago.6
     Title VII, which prohibits making employment decisions on
the basis of race, color, religion, sex, or national origin, has not
been altogether successful in reaching this lofty goal with regard
to sexual discrimination. Women are still being paid less than
men for the same jobs, and they still encounter discriminatory
attitudes when seeking promotions.8 In fact the Equal
Employment Opportunity Commission (EEOC), the government

      4. Rose Schneiderman, We Have Found You Wanting, in OUT OF THE SWEATSHOP:
THE STRUGGLE FOR INDUSTRIAL DEMOCRACY 196, 196–97 (Leon Stein ed., 1977).
      5. National Labor Relations Act (NLRA) of 1935, 29 U.S.C. §§ 151–169 (2000).
      6. Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701–718, 78 Stat. 241, 253–66
(codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (2000)); see also Griggs v. Duke
Power Co., 401 U.S. 424, 429–30 (1971) (stating that the purpose of Title VII “was to
achieve equality of employment opportunities and remove barriers that have operated in
the past to favor an identifiable group”).
      7. 42 U.S.C. § 2000e-2.
      8. See infra Part II.B.1 (discussing the statistical disparities between men’s and
women’s pay and promotion opportunities at Wal-Mart). This discriminatory attitude
towards women is vividly portrayed by the low ratio of female faculty members in
mathematics and sciences. See Matthew Tresaugue, Academia Has Difficult Time Hiring
Women with Ph.D.s, HOUS. CHRON., June 12, 2005, at B1 (reporting the continuing
“gender gap in the faculty ranks, especially in engineering, mathematics and science”).
Some contend that the gender gap continues because women are more concerned with
family than their careers. See Sam Dillon, Harvard Chief Defends His Talk on Women,
N.Y. TIMES, Jan. 18, 2005, at A16 (reporting that Harvard president Lawrence H.
Summers suggested that the gender gap could be due to the fact that “[f]ew married
women with children are willing to accept [the required time and energy] sacrifices” to
become tenured faculty members in mathematics and science); Tresaugue, supra
(reporting that women do not pursue careers “at top research institutions because of
doubts about advancement while having children”). Some, including Harvard University’s
president, suggest that innate biological differences in ability contribute to the math and
science gender gap. Dillon, supra. However, studies show that any gender differences in
math and science scores are more likely due to stereotypical societal attitudes. See Caryl
Rivers & Rosalind C. Barnett, Opinion, Flawed Science on Gender, Math Does Not
Compute, CHI. TRIB., Feb. 9, 2005, at C6 (compiling research results that indicate
“[d]ifferences in math ability between males and females is trivial to vanishing”).
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agency in charge of enforcing Title VII, received more than
24,000 charges of sex-based discrimination in 2004.9
     Rose Schneiderman would recommend that women in our
country “save themselves . . . by a strong working-class
movement.” A collective-bargaining agreement that contains an
antidiscrimination clause and other protective measures does
provide a possible solution to the problem of sexual
discrimination in the workplace.11 However, despite the
protections of the NLRA, the power of unions has declined
steadily in the past five decades and many workplaces seem
invulnerable to union campaigns.12 Unionization is often akin to
the perfect pair of shoes in the department store window that are
more expensive than the shopper can afford: unattainable. So,
what’s an employee to do? Go shopping. Shopping for a collective
     Approximately 1.6 million women who work or have worked
for Wal-Mart Stores, Inc. (“Wal-Mart”) and claim Wal-Mart
discriminates against women, in violation of Title VII, have gone
shopping for a collective voice and decided to try class action
litigation on for size. In employment class action lawsuits,
workers who feel they have been wronged can collectively sue
their employer as long as a federal judge certifies the class of
litigants. In Dukes v. Wal-Mart Stores, Inc., the Honorable
Martin Jenkins of the Northern District of California, relying
heavily on evidence of uniform corporate culture that includes
gender stereotypes, certified a class of 1.6 million women who are
suing Wal-Mart for its alleged discriminatory promotion and pay
practices.15 If the plaintiffs are successful, the litigation could
have dramatic effects on the employment experience of millions
of Wal-Mart women. Further, it has the potential to reach

     9. U.S. Equal Employment Opportunity Comm’n, Sex-Based Discrimination, http:// (last modified Mar. 2, 2005).
    10. Schneiderman, supra note 4, at 197.
    11. See infra notes 133–39 and accompanying text (detailing the benefits that may
be attained in collective-bargaining agreements).
    12. See infra notes 125–27, 140–58 and accompanying text (explaining the reasons
behind the decline in unionization and outlining Wal-Mart’s aggressive anti-union
    13. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 141–42 (N.D. Cal. 2004). The
plaintiff class in Dukes consists of current and former female employees of Wal-Mart who
were employed by the retail giant any time after December 26, 1998. Id. These current
and former employees will be referred to collectively in this paper as “Wal-Mart women.”
RIGHTS AT WAL-MART 251 (2004) (referring to female employees of Wal-Mart that have
been taken advantage of as “Wal-Mart women”).
    14. FED. R. CIV. P. 23; see Dukes, 222 F.R.D. at 137, 141.
    15. See Dukes, 222 F.R.D. at 166, 188.
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exponentially more women because Wal-Mart’s business
practices have become the “business template” of contemporary
society.16 If Wal-Mart is forced to change the way it practices
business, many other companies may follow suit.
     Wal-Mart contends that its female employees do not need to
go shopping for a collective voice because individual employees
who have employment concerns are free to voice them to
management without fear of retaliation; Wal-Mart calls this the
“open-door” policy. The plaintiffs in Dukes, however, tried to
speak individually to management through the supposed open
door, and their voices went unheard.18 The Wal-Mart women are
not “buying” the open-door policy anymore because the door is
not quite as open as Wal-Mart would like its employees to
believe—at least not for women.
     Though unionization might force the door open and allow
these employees to stand together collectively to voice their
concerns, Wal-Mart’s high employee turnover, dramatic
indoctrination into the anti-union culture at the beginning of
employment, and strong anti-union procedures make it unlikely
that unionization will happen any time soon.19 Considering these
constraints on unionization in combination with the general

    16. See Jeff Madrick, Wal-Mart May Be the New Model of Productivity, but It Isn’t
Always Wowing Workers, N.Y. TIMES, Sept. 2, 2004, at C2 (referring to historian Nelson
Lichtenstein’s work comparing General Motors to Wal-Mart as the “business template[s]”
of their generations—the 1950s and modern times, respectively—but recognizing that
General Motors “paid high and rising wages” as opposed to Wal-Mart’s “low-wage
business model[, which] is setting a pattern for others”); see also VICKY LOVELL ET AL.,
THE RETAIL FOOD INDUSTRY 19 (2002), available at (“The
growing presence of discount superstores in the grocery business is putting pressure on
employers to reduce labor costs. The strong anti-union stance of some food retailers
makes unionizing more difficult.”); Liza Featherstone, Rollback Wages!: Will Labor Take
the Wal-Mart Challenge?, THE NATION, June 28, 2004, at 11, 11 (proposing that “[t]he
company is providing a business model widely imitated by other corporations, especially
its competitors”); Steven Greenhouse, Wal-Mart Workers Are Finding a Voice Without a
Union, N.Y. TIMES, Sept. 3, 2005, at A14 (quoting a workers’ association organizer who
stated, “‘We’re focusing on Wal-Mart because it . . . is setting standards that affect
communities and employment relations across the nation.”). Wal-Mart’s cost-cutting
measures are influencing the business practices of its suppliers as well as its competitors
by requiring suppliers to cut their costs more and more. See Bullying People from Your
Town to China: How Wal-Mart Is Remaking Our World, THE HIGHTOWER LOWDOWN, Apr.
2002, at 1, 3 [hereinafter Remaking Our World] (exposing that “[s]ome companies have to
open their books so Bentonville executives can red-pencil what CEO Scott terms
‘unnecessary costs’”).
    17. See Wal-Mart Stores, Inc., 340 N.L.R.B. No. 83, 173 L.R.R.M. (BNA) 1542 (Sept.
30, 2003) (citing the Wal-Mart employee handbook).
    18. See infra Part II.B.2.
    19. See infra Part III.C. But see FEATHERSTONE, supra note 13, at 176 (analyzing
the Dukes litigation and concluding that it might just be the push needed to encourage
Wal-Mart employees to unionize).
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decline of unionization and the ineffectiveness of Wal-Mart’s
open-door policy for female employees, it becomes apparent that
the Wal-Mart women need to shop for some other way to get the
attention of Wal-Mart management.
     Each of the plaintiffs in the Dukes case could have filed an
individual lawsuit against Wal-Mart to voice her concerns, but
the effect of individual lawsuits on a corporate giant like Wal-
Mart would have been minimal at best.20 Plus, individual suits
would deny systemic relief to other women who cannot afford to
pursue litigation on their own, cannot afford the possible impact
such a lawsuit might have on their jobs, or simply do not have a
large enough claim to justify individual litigation.
Consequently, class action litigation is the only viable means
these nonunionized women have to stand together to voice their
employment concerns. In essence, class action litigation gives the
Wal-Mart women an audible collective voice.
     The Dukes plaintiffs say they are fighting not for individual
relief but to improve Wal-Mart’s employment practices for all
women. For example, Betty Dukes asserts, “‘[m]y primary goal
[in this litigation] is to ensure that the employment practices at
Wal-Mart which hinder the progress of women wishing to enter
management be changed to ensure fair and equitable treatment
of female employees, and to ensure women receive equal pay.’”
With such a noble goal, a settlement or judgment in this lawsuit
has the potential to make a real difference for women who work
for Wal-Mart and other large retailers that follow Wal-Mart’s

    20. See Michele Chandler, Wal-Mart Suit Gets OK, SAN JOSE MERCURY NEWS, June
23, 2004, at 1C (“‘Lawsuits by individual women had no more effect than a pinprick.’”
(quoting Brad Seligman, lead plaintiffs’ counsel)).
    21. See Amy Joyce, Wal-Mart Bias Case Moves Forward: 1.6 Million Women May
Join Class Action Suit, WASH. POST, June 23, 2004, at A1 (quoting plaintiffs’ attorney
Joseph Sellers: “[Dukes is] going to open the courthouse doors for 1.6 million women, most
of whom would never bring their case to court, many of whom have suffered in silence and
probably given up on any chance to make things better.”).
    22. For instance, Stephanie Odle, the first named plaintiff, could have sued Wal-
Mart on her own for a quicker resolution and possibly a substantial settlement. See
FEATHERSTONE, supra note 13, at 22–23 (discussing Odle’s decision to proceed with a
class action rather than sue as an individual). Odle said, “‘I don’t care about anything else
other than making these people do what’s right.’” Id. at 23.
    23. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 171 (N.D. Cal. 2004) (quoting
from Dukes’s deposition).
    24. It should be noted that this case is not likely to go to trial. First, Wal-Mart has
already stated it is willing to compromise. See Constance L. Hays, At Wal-Mart, the New
Word Is Compromise, N.Y. TIMES, Sept. 9, 2004, at C1 (summarizing Wal-Mart chief
executive officer H. Lee Scott’s remarks at a retail conference in Manhattan, which
indicated that Wal-Mart is now willing to compromise when under attack). Second, in all
the class action employment discrimination lawsuits against publicly-traded companies
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     Part II of this Comment provides insight into the evidence of
discrimination at Wal-Mart and how its business practices are
impacting retail in America. Part III briefly discusses the
benefits of unionization and how those benefits have been
unavailable to Wal-Mart employees. Part IV revisits previous
class action settlements, notes the flaws associated with these
settlements, and suggests possible remedies the Dukes plaintiffs
should request that would result in more lasting change. This
Comment concludes with an affirmation that, when unionization
is not an option, class action litigation is a viable alternative that
gives employees a collective voice loud enough to advance the
lasting change needed to eliminate discriminatory employment


A. Wal-Mart: An Overview
     Wal-Mart is the world’s largest company and the largest
private employer in the United States.25 For the 2005 fiscal year,
Wal-Mart’s global revenues were in excess of $285 billion. As of
January 31, 2005, Wal-Mart operated 1,353 Wal-Mart discount
stores, 1,713 Supercenters, 551 Sam’s Clubs, and 85
Neighborhood Markets in the United States. One hundred
thirty-eight million shoppers visit Wal-Mart every week.28 Wal-
Mart opened 36 new discount stores, 21 new Neighborhood
Markets, and 242 new Supercenters in the 2005 fiscal year.
     One reason for Wal-Mart’s success is its ability to keep its
operating costs low compared to other major retailers. In 2001,

filed between November 1991 and August 2001, only one case actually went to trial.
Michael Selmi, The Price of Discrimination: The Nature of Class Action Employment
Discrimination Litigation and Its Effects, 81 TEX. L. REV. 1249, 1254–58 (2003).
MANAGEMENT AT WAL-MART STORES, INC. ¶ 10 (2003) (reporting that in 2000, Wal-Mart
had 967,247 employees),;
Anthony Bianco & Wendy Zellner, Wal-Mart: Too Powerful?, BUS. WK., Oct. 6, 2003, at
100, 102 (“With $245 billion in revenues in 2002, Wal-Mart Stores, Inc. is the world’s
largest company.”). Wal-Mart controls 30% of the U.S. market in household staples and
15% to 20% of CD, video, and DVD sales, and analysts predict Wal-Mart will control 50%
of the household staple market by 2010. Id.
    26. WAL-MART STORES, INC., 2005 ANNUAL REPORT 11 (2005), http://walmartfacts.
    27. Id. at 17, 19.
    28. Bianco & Zellner, supra note 25, at 102.
    29. WAL-MART STORES, INC., supra note 26, at 26.
    30. See Steven Greenhouse, Suits Say Wal-Mart Forces Workers to Toil Off the
Clock, N.Y. TIMES, June 25, 2002, at A1 (comparing Wal-Mart’s operating costs to those of
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for example, Wal-Mart’s operating expenses comprised 16.6% of
its sales, whereas Kmart, Target, Sears, and Nordstrom had
operating expenses of 21%, 22.3%, 24.9%, and 30.7% of their
sales, respectively.31 Wal-Mart pays substantially less—to men
and women—than other retailers, which helps keep operating
costs down.32
     Despite its size, Wal-Mart maintains a great deal of control
over each store from its central office in Bentonville, Arkansas.33
The amount of control Wal-Mart exercises could be pivotal in the
Dukes litigation because Wal-Mart claims it lacked control over
the discriminatory decisions made by individual store
managers. The plaintiffs, conversely, claim that Wal-Mart’s
highly centralized policies are responsible for the disparities in
wages and promotion opportunities between male and female
     Wal-Mart continuously monitors the operations of individual
stores through a centralized information-technology system.
The “Home Office” in Bentonville, Arkansas actually “controls
the temperature and music in each store throughout the
country.” The “Manager’s Workbench,” a real-time computer
link connecting store managers in each store to the Home
Office,38 and the “Union Hotline,” a system managers are to
employ “when they become aware of union activity,” are further
examples of the Wal-Mart Home Office’s centralized control of
individual stores.39

its competitors).
    31. Id.
    32. See Karen Dybis, Farmer Jack Changes Show Industry Woes:
Experts Say Decision to Convert to Discount Stores May Not Work, DETROIT NEWS, Jan.
14, 2004, at C6 (reporting that Wal-Mart pays $8 per hour for the same position that
others pay $14 per hour or more), available at
    33. See infra notes 36–42 and accompanying text (describing Wal-Mart’s centralized
    34. See Opening Brief for Appellees and Cross-Appellants at 4, Dukes v. Wal-Mart
Stores, Inc., Nos. 04-16688, 04-16720 (9th Cir. Dec. 29, 2004), available at http://www. (discussing individual store managers’ discretion over pay
    35. See infra Part II (outlining plaintiffs’ contentions about Wal-Mart’s employment
    36. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 152 (N.D. Cal. 2004)
(describing Wal-Mart’s information technology system).
    37. Id.
    38. Id.
    39. Wal-Mart Stores, Inc., Case No. 28-CA-16832, at 5 (NLRB Feb. 28, 2003), http:// Wal-Mart sends a labor
relations team from Bentonville, Arkansas to conduct its election campaign when
employees file a petition for a union. See id. at 5–6 (reporting how a team was sent to
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     Wal-Mart emphasizes a uniform, centrally controlled
corporate culture called the “Wal-Mart Way.”              Wal-Mart
indoctrinates its employees into this culture by using uniform
training that emphasizes the Wal-Mart Way, daily meetings
where employees participate in the Wal-Mart cheer, weekly
mandatory meetings where store managers present corporate
culture lessons provided by Wal-Mart, and computer-based
learning modules on culture topics.41 The uniformity of the
corporate culture is reinforced by Wal-Mart’s general practice of
requiring store managers to transfer into different districts or
regions; “on average, each Store Manager is transferred to
different stores 3.6 times after becoming a Store Manager.”42
     An essential element of Wal-Mart’s corporate culture is its
open-door policy.43 The purpose of its open-door policy is
ostensibly to encourage employees to feel free to bring their
“‘suggestions, observations, problems or concerns regarding the
company or yourself to the attention of any supervisor.’”44 Though
on its face this policy seems admirable, in reality it has not been
effective in helping Wal-Mart women voice their individual
complaints and obtain relief.45 Furthermore, the existence of the
policy ultimately discourages unionization. Wal-Mart employees
are inundated with information about how favorable the open-

Kingman, Arizona to conduct Wal-Mart’s election campaign).
    40. See Dukes, 222 F.R.D. at 151 (“There is no genuine dispute that Wal-Mart has
carefully constructed and actively fosters a strong and distinctive, centrally controlled,
corporate culture.”).
    41. See id. (describing the corporate culture inculcation at Wal-Mart); see also
(2001) (detailing her experiences when the author attended an orientation session for new
Wal-Mart employees).
    42. Plaintiffs’ Reply in Support of Their Motion for Class Certification at 11, Dukes,
222 F.R.D. 137 (No. C-01-2252 MJJ), available at
staticdata/pleadings/reply_brief.html. The Dukes’ plaintiffs point out that “[i]f every store
operated differently it would be highly inefficient to transfer and re-train managers.” Id.
    43. See Wal-Mart Stores, Case No. 28-CA-16832, at 6 (discussing the “open-door”
policy disapprovingly).
    44. Id. (quoting the policy as distributed to employees via computer). Wal-Mart
spokesman Dan Fogleman states “that Wal-Mart hope[s] employees would feel free to
bring any concerns to upper management through what the company calls its open-door
policy.” Greenhouse, supra note 16.
    45. See infra notes 101–09 and accompanying text (describing how three of the
named plaintiffs attempted to complain to their managers).
    46. See Wal-Mart Stores, Case No. 28-CA-16832, at 6 (“It is also beyond doubt that
the policy is intended, at least in part, to discourage employees from seeking union
representation.”). But see Greg Mersol, California Court Certifies Record Employment
Class Action, EMPLOYMENT AND LABOR NEWSLETTER (Baker & Hostetler LLP, Cleveland,
OH), Sept. 2004, at 27, 29–30,
FileUPload265/230/sept%202004%20emp%20web.pdf (disparaging the irony of Wal-
Mart’s embrace of a “strong corporate culture” being used against it in Dukes).
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door policy is (giving individual employees a voice) and how
detrimental unions are (taking away that individual voice).47
     Wal-Mart contends that it is such a big employer that it
cannot possibly control the discriminatory personnel decisions of
individual store managers, yet all of Wal-Mart’s stores are
required to follow uniform personnel policies promulgated by the
Home Office.49 The Home Office sets specific standards and
monitors the local stores electronically to determine whether the
store is measuring up, then sends “exception” reports to district
managers, who are charged with ensuring that the stores in their
territory are operating according to company standards.50 District
managers rely on these reports as well as quarterly audits to
track store compliance and determine which areas to focus on
when visiting their stores.51
     Despite     Wal-Mart’s      strongly   centralized    business
organization, Wal-Mart grants a great deal of subjectivity to its
individual store managers to determine pay rates and choose
promotion candidates.52 Store managers are able to assign five
different starting pay rates, and they have discretion to add up to
two dollars more per hour depending on their subjective
assessment of prior experience and previous pay.53 Store
managers have no written criteria for selecting promotion
candidates other than “minimum criteria for advancement,”
which managers may “modify or disregard . . . at their own
discretion.”54 Management’s reliance on subjective criteria has
been “characterized as a ‘tap on the shoulder’ process.” In fact,
until January 2003, Wal-Mart rarely posted promotion

    47. See Wal-Mart Stores, Case No. 28-CA-16832, at 6 (quoting the open-door policy
as laid out in the employee handbook and discussing how much Wal-Mart stresses it); see
also EHRENREICH, supra note 41, at 144–45 (explaining how Wal-Mart’s video, You’ve
Picked a Great Place to Work, unfavorably describes unions).
    48. See infra note 118 and accompanying text (reporting comments of Wal-Mart’s
    49. Plaintiffs’ Motion for Class Certification at 9, Dukes v. Wal-Mart Stores, Inc.,
222 F.R.D. 137, 152 (N.D. Cal. 2004) (No. C-01-2252 MJJ), available at http://www.cmht.
    50. Id.
    51. Id.
    52. See Expert Report of William T. Bielby, Ph.D. at 13–15, Dukes, 222 F.R.D. 137
(No. C-01-2252 MJJ), available at
html (reviewing Wal-Mart’s personnel system); First Amended Complaint ¶ 22, Dukes,
222 F.R.D. 137 (No. C-01-2252 MJJ) (asserting that “store management has substantial
discretion in setting salary levels within salary ranges for each employee”).
    53. Expert Report of William T. Bielby, Ph.D., supra note 52, at 14.
    54. Id. at 13–14.
    55. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 148 (N.D. Cal. 2004).
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opportunities; therefore, women were often unaware of available
management openings and could not apply.56

B. The Dukes Claims

     The Dukes plaintiffs claim that the high degree of
subjectivity in providing employment opportunities combined
with the frequent relocations of store managers and stereotypical
views of women that are perpetuated through a strong,
centralized corporate culture have led to enormous pay
disparities between male and female employees and a distressing
lack of women in management positions at Wal-Mart.57 Using
statistics and damning anecdotal evidence of individual instances
of discrimination in stores throughout the country, the plaintiffs
paint a vivid yet dismal picture of what it is like to be a woman
seeking career advancement at Wal-Mart.

     1. Statistical Evidence. Statistics showing a significant
imbalance in the workforce are vital to prove a prima facie case
of systemic disparate treatment—one of the types of
discrimination alleged by the Dukes plaintiffs. The Supreme
Court, in International Brotherhood of Teamsters v. United
States, asserted that “such imbalance is often a telltale sign of
purposeful discrimination.”59 The Dukes plaintiffs were able to
show incredible gender disparities in Wal-Mart’s workforce by
using both “Peoplesoft data,” Wal-Mart’s database which keeps
detailed information about its employees, and computer tapes
containing payroll information to conduct extensive statistical

     56. Id. at 149. Wal-Mart did post some positions, such as store manager. Id.
However, candidates needed approval from the district manager to apply for the store
manager position—hence adding another subjective element. Id. Now, possibly due in
part to the filing of Dukes, Wal-Mart requires all positions to be posted. See infra note 221
and accompanying text.
     57. See generally Plaintiffs’ Motion for Class Certification, supra note 49, at 10–37
(detailing the permeation of stereotypes into Wal-Mart’s corporate culture and the pay
and promotion decisions it affects).
     58. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339–40 (1977) (“We
have repeatedly approved the use of statistical proof . . . to establish a prima facie case
of . . . discrimination in jury selection cases. . . . Statistics are equally competent in
proving employment discrimination.” (citations omitted)); see also Plaintiffs’ Third
Amended Complaint ¶¶ 104–07, Dukes, 222 F.R.D. 137 (No. C-01-2252 MJJ), available at (alleging that Wal-Mart intentionally
discriminated against its female employees and systematically retaliated against those
who complained). The Dukes plaintiffs also claim that Wal-Mart’s employment practices
have a disparate impact on women and create a hostile work environment. Id. ¶¶ 102–03,
     59. 431 U.S. at 340 n.20.
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analyses regarding the gender patterns in the Wal-Mart
workforce.60 The results of these analyses indicate the following:
    [T]hat women working in Wal-Mart stores are paid less
    than men in every region, that pay disparities exist in most
    job categories, that the salary gap widens over time even for
    men and women hired into the same jobs at the same time,
    that women take longer to enter into management
    positions, and that the higher one looks in the organization
    the lower the percentage of women.

     a. Wal-Mart Pays Women Less than Men.62 On average,
women earned $5200 less than men working at Wal-Mart in
2001.63 Specifically, hourly-paid women earned about $1100 less
than hourly-paid men, and salaried women made about $14,500
less on average than salaried men. In every job category
analyzed by the plaintiffs’ statistical expert, the average earnings
of women were less than the average earnings of men, as
displayed in the table below.

     60. Statistical Analysis of Gender Patterns in Wal-Mart Workforce ¶¶ 6–7, Dukes,
222 F.R.D. 137 (No. C-01-2252 MJJ), available at [hereinafter Drogin Report]. Two
additional databases, “MCS data” and “Job Posting data,” were also used in the analysis.
Id. ¶ 8; see also Constance L. Hays, What They Know About You: An Obsessive Monitor of
Customer Behavior, N.Y. TIMES, Nov. 14, 2004, § 3, at 1 (exposing Wal-Mart’s system of
tracking customer purchases and information about employees). Plaintiffs’ attorney
Joseph Sellers noted, “[t]hey’ve put into their work force database the information that
bears on virtually every facet of compensation.” Hays, supra.
     61. Dukes, 222 F.R.D. at 155. Wal-Mart’s statistical expert, running her analyses on
multiple subunits within each store, showed a “lack of broad-based gender differential in
pay for hourly employees.” Id. at 156. The court found that even if the plaintiffs’
statistical expert had “omitted one or more relevant factors” in his analysis, that analysis
would still be “well above the minimal threshold established by the courts, and thus his
analysis is sufficient to raise an inference of discrimination for purposes of this motion.”
Id. at 159–60.
     62. Though the evidence in this subpart indicates that Wal-Mart pays women less
than men and that it is behind other major retailers in this regard, Wal-Mart by no
means corners the market in this area. The American Association of University Women
reports that gross gender disparities still exist in pay, even when women and men are
equally qualified and “follow the same career path in education, skills, and abilities.” AM.
AGAIN . . . (2005). But see Warren Farrell, Editorial, Exploiting the Gender Gap, N.Y.
TIMES, Sept. 5, 2005, at A23 (opining that to compare men and women in the “‘same job’”
is like comparing “apples and oranges” because, for example, male executives often “have
more experience, relocate and travel overseas more, and so on”).
     63. Drogin Report, supra note 60, ¶ 20.
     64. Id. This gender-pay disparity is relatively consistent throughout the country.
See id. 13 tbl.5, 14 tbl.6 (charting the “distribution of percent women among hourly
employees compared to the percent women among salaried employees, for each of 41
regions” as well as the “average total earnings for men and women”).
     65. See id. 16 tbl.8, 17 tbls.9 & 10 (charting the earnings gap).
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           Table 1: Wal-Mart Earnings by Gender
Job                         Average        Average
                            Earnings:      Earnings:
                            Men            Women
Regional VP                 $419,435       $279,772
District Manager            $239,519       $177,149
Manager                     $105,682       $89,280
Co-Manager                  $59,535        $56,317
Assistant Manager           $39,790        $37,322
Management Trainee          $23,175        $22,371
Department Head             $23,518        $21,709
Sales Associate             $16,526        $15,067
HD/HM O/N                   $19,121        $17,870
Cashier                     $14,525        $13,831

     One may, upon reviewing the above table, wonder if perhaps
the women working at Wal-Mart have less seniority or poorer
work performance due to traditional assumptions often made
about women balancing work and family responsibilities.66
However, on average, the women employed by Wal-Mart have
greater seniority and higher performance ratings than men,
which suggests that the women who work at Wal-Mart are not
letting familial responsibilities interfere with their performance
at work.67 Hence, if Wal-Mart cites these stereotypical reasons for
the wage gap, it will more than likely be unsuccessful.

    b. Women Are Dramatically Underrepresented in Wal-
Mart Management. In 2000, women constituted 62.1% of Wal-
Mart’s total workforce. However, only 33.6% of its managers
were women. Richard Drogin, the plaintiffs’ statistical expert,
found that from 1997 to 2002, “women received 2891 promotions
fewer [into the support manager positions] than would be
expected from their representation” among eligible employees70

    66. For a detailed discussion of “women’s economic subordination” and the
“persistence of . . . gender disadvantages,” including “women’s nonmarket responsibilities
as mothers,” see Marion Crain, Between Feminism and Unionism: Working Class Women,
Sex Equality, and Labor Speech, 82 GEO. L.J. 1903, 1910–13 (1994).
    67. Drogin Report, supra note 60, ¶¶ 28–30. Women were employed an average of
4.47 years, as opposed to 3.13 years for men. Id. ¶ 28.
    68. BENDICK, supra note 25, ¶ 12.
    69. Id.
    70. Drogin Report, supra note 60, ¶ 54. Employees typically do not have to change
stores for this promotion, so any disparities that may arise due to the possibility women
may not be as free to change locations as men would not be relevant for this position. See
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and 2952 fewer promotions than expected into management
trainee positions.71 Continuing the trend, women received 346
fewer promotions to co-manager than expected and 155 fewer
promotions to store manager than expected.
     Wal-Mart contends that any disparities in the
representation of women in its labor force result from decisions
by individual managers at individual stores. Their statistician,
Dr. Haworth, performed 7500 separate analyses in which he
focused on subunits, contending that Drogin’s aggregation of the
data at the regional level created inaccurate results.74 The
determination for whether a “macro” or “micro” analysis should
be used depends on “the similarity of the employment practices,
and the interchange of employees, at the various facilities.”75
Judge Jenkins reasoned that there is enough evidence of a
uniform culture to support the use of a regional aggregation as
“at least a reasonable means of conducting a statistical
     Wal-Mart also attacks Drogin’s finding of a consistent
“pattern of under-promotion” of women into each management
category because he used the “‘incumbents in historical feeder
jobs’” for the applicant pool in his calculations rather than the
actual applicants for the job.77 Drogin did not use the actual
applicant pool because many positions were not posted, and it is
therefore impossible to determine who would have actually
applied for the jobs.78 Judge Jenkins found Drogin’s approach “at

id. ¶ 53 (finding that “[a]bout 95% of employees promoted into Support Manager positions
stay in the same store when promoted”).
    71. Id. ¶ 57. Often, employees are required to change stores when being promoted to
a management trainee position. See id. ¶ 55 (finding 62% of employees promoted into a
management trainee position changed stores).
    72. Id. ¶¶ 59, 61.
    73. Plaintiffs’ Reply in Support of Their Motion for Class Certification at 2, Dukes v.
Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) (No. C-01-2252 MJJ); see Dukes,
222 F.R.D. at 156 (describing how Wal-Mart’s expert found “a lack of broad-based gender
differential in pay for hourly employees” but “some gender disparities in limited
    74. See Dukes, 222 F.R.D. at 156 (detailing Wal-Mart’s challenges to the plaintiffs’
    75. Id. at 157 (citing Kirkland v. N.Y. State Dep’t of Corr. Servs., 520 F.2d 420, 425
(2d Cir. 1975)).
    76. Id. at 159.
    77. Id. at 160–62 (quoting Drogin Report, supra note 60, ¶ 48).
    78. See id. at 162. For instance, “[t]here is no documented job applicant data for 80
percent of the actual promotions to the position of Support Manager.” Id. (citing Drogin
Report, supra note 60, ¶ 44).
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least reasonable” given the limited amount of data on potential
     The statistical information formulated by the plaintiffs
clearly shows that the “under-promotion of women . . . is
consistent in nearly every geographic region at Wal-Mart.” Wal-
Mart will assuredly continue to argue that Drogin’s statistics are
flawed due to his choice of applicant pools, and the case could
turn on evidence of how many women would actually have
applied for these positions if given the opportunity. The following
section discusses how the plaintiffs addressed this issue.

     c. Comparing Competitors: Wal-Mart v. Other Major
Retailers. The plaintiffs hired Dr. Marc Bendick, a labor
economist, to conduct a benchmark study comparing Wal-Mart’s
workforce data with that of twenty other large retailers. If other
retailers have higher percentages of women in management than
Wal-Mart, it follows that the applicant pool, which one may
assume would be similar in most large retail industries, is not to
blame for the low percentage of women in Wal-Mart
management.82 The plaintiffs’ expert found that in 79.5% of Wal-
Mart’s stores Wal-Mart lagged behind other retailers in its
percentage of female managers.83 According to Bendick’s most
conservative estimate, in 1999 Wal-Mart had a shortfall of 4004
female managers compared to the other retailers. These
shortfalls occur in four out of five stores and “in virtually every
state in the nation.”85
     Wal-Mart contends that where there are disparities in the
numbers of women in management, the reason is due in large
part to the “differing job aspirations and interests between men
and women which exist in the general labor force.”86 But
Bendick’s comparison with other retailers invalidates this
argument. If women who work for other major retailers want and
receive promotions, the women who work for Wal-Mart who have

    79. Id. at 164. Judge Jenkins leaves it for a jury to decide which statistical approach
is superior. Id.
    80. Drogin Report, supra note 60, ¶ 63. Women received fewer promotions into
support manager positions in 95% of regions and fewer promotions into management
trainee positions in 100% of regions across the country. Id.
    81. Dukes, 222 F.R.D. at 164.
    82. Id.
    83. Id. at 164–65.
    84. BENDICK, supra note 25, ¶ 67.
    85. Id.
    86. Dukes, 222 F.R.D. at 161.
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not been receiving promotions assuredly want them too.87
Furthermore, Wal-Mart itself, in a 1999 corporate memorandum,
recognized that “‘Wal-Mart’s women in management percent
(32.4%) is significantly behind several of the other retailers
reporting (43.2% to 65.3%).’”88 And, as early as 1992, Sam Walton
himself admitted that Wal-Mart had missed opportunities in
promoting women with its policy of making managers relocate.
He admitted that “women make great retailers” and that Wal-
Mart should “do everything we possibly can to recruit and attract
women.” Unfortunately, the Dukes case elucidates the fact that
this particular concept never became a part of Wal-Mart’s
corporate culture.

     2. Anecdotal Evidence. Evidence showing specific instances
of discriminatory treatment is important to supplement the
statistics in an employment discrimination lawsuit because it
brings the “cold numbers convincingly to life.” In fact, plaintiffs
who fail to supplement their statistics with sufficient anecdotal
evidence typically fail.
     According to the Dukes plaintiffs, Wal-Mart’s uniform
corporate culture is steeped in tradition that includes practices
that often make women “uncomfortable.” These traditions

    87. In fact, in a previous lawsuit, Bielby found that “‘among men and women who
hold similar jobs and face similar advancement opportunities . . . gender differences in
attitudes towards promotion are trivial or non-existent.’” Stender v. Lucky Stores, Inc.,
803 F. Supp. 259, 302 (N.D. Cal. 1992).
    88. BENDICK, supra note 25, ¶ 17 (quoting a memorandum to all Wal-Mart division
heads dated March 29, 1999).
217–18 (1992).
    90. Id. at 218.
    91. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977); see also
Stender, 803 F. Supp. at 331 & n.28 (finding that proof of subjective decisionmaking
provides sufficient potential for discriminatory abuse to “infer the intent necessary to
establish a claim for disparate treatment” but noting that the defendant’s “knowledge of
the underrepresentation of women in management” and the anecdotal evidence of the
“discriminatory attitudes of some of [the defendant’s] management” also played a role in
the court’s decision).
    92. See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 471 (8th Cir. 2004)
(criticizing plaintiffs for offering no anecdotal evidence of discriminatory attitudes
regarding pay); EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 311 (7th Cir. 1988)
(recognizing that discrimination may be proved by statistics alone but that the lack of
anecdotal evidence “‘reinforces the doubt arising from the questions about validity of the
statistical evidence’” (quoting Griffin v. Bd. of Regents, 795 F.2d 1281, 1292 (7th Cir.
    93. Plaintiffs’ Motion for Class Certification, supra note 49, at 12. Wal-Mart
spokeswoman Mona Williams contends that Wal-Mart’s corporate culture includes
“respect for the individual, focus on the customer and always driving for excellence.”
Hays, supra note 24.
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include taking top managers quail hunting at Walton’s ranch in
Texas94 and requiring managers to attend business meetings at
Hooters restaurants and strip clubs.95 Equally offensive is the
fact that female associates have been referred to as “‘little Janie
Q’s’” and “‘girls’” in executive-level Sam’s Club meetings.96
     Wal-Mart espouses a culture in which employees should feel
free to discuss their employment concerns with management. It
touts its open-door policy, claiming its employees do not need a
union because it is so open to remedying employee complaints.
Wal-Mart, in fact, has been successful in keeping unions out of
its stores: There is not one collective-bargaining agreement with
Wal-Mart in all of North America. Though Wal-Mart’s open-
door policy may help to keep unions out of its stores, it does not
seem to be helping its female employees who have complaints
about the company. The named plaintiffs in Dukes provide
poignant examples of how quiet the voice of a lone employee is
against the roar of Wal-Mart’s corporate culture.100
     Betty Dukes, the lead plaintiff in Dukes, has watched
numerous men get promoted ahead of her; she does not even

    94. Plaintiffs’ Motion for Class Certification, supra note 49, at 12–13 (complaining
that the suggestions by women who would like an alternative retreat were “rejected as
interfering with ‘tradition’”). Although some women may like quail hunting, the idea of a
hunting trip as the company outing conjures up visions of a “good ol’ boy” network.
    95. See id. at 14 (canvassing deposition testimony and declarations about meetings
at Hooters and strip clubs); see also Joshua Burstein, Testing the Strength of Title VII
Sexual Harassment Protection: Can It Support a Hostile Work Environment Claim
Brought by a Nude Dancer?, 24 N.Y.U. REV. L. & SOC. CHANGE 271, 291–93 (1998)
(detailing the Hooters work environment and discussing several lawsuits that have
arisen). Hooters of America, Inc. has established a chain of restaurants in which it admits
“female sex appeal is prevalent.” See, About Hooters, http://www.hooters.
com/company/about_hooters/ (last visited Oct. 1, 2005). The waitresses wear short shorts
and tight T-shirts and are known as “Hooters girls.” Id.
    96. See Plaintiffs’ Motion for Class Certification, supra note 49, at 13.
    97. See Wal-Mart Stores, Inc., 340 N.L.R.B. No. 83, 173 L.R.R.M. (BNA) 1542 (Sept.
30, 2003) (quoting the Wal-Mart employee handbook as stating, “‘At Wal-Mart,
we . . . encourage everyone to express their ideas, suggestions, comments, or concerns.’”).
    98. See id. (“Because we believe in maintaining an environment of open
communications through the use of the Open Door, we do not believe there is a need for
third party representation.” (internal quotation marks omitted)).
    99. See Ian Austen, A Rarity for Wal-Mart: Talking to a Union, N.Y. TIMES, Oct. 26,
2004, at W1 (reporting that Wal-Mart will meet with a union at a Canadian store and
possibly negotiate the “first collective [bargaining] agreement in North America covering
Wal-Mart workers”).
MATERIALS 47–48 (5th ed. 2003) (quoting John Mitchell, former president of the United
Mine Workers who testified before the U.S. Senate Commission on Industrial Relations
on April 6, 1914: “The individual workman must accept the wages and conditions of
employment that are offered to him by his employer. It is a matter of no concern at all to
an employer if one workingman refuses employment. He thinks nothing about it, because
there is another workingman ready to take the job.”).
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apply for promotions any more “because of the way she and other
women ha[ve] been treated by Wal-Mart.”101 She tried many
times to use the open door, to no avail.102
      Chris Kwapnoski was told to “‘blow the cobwebs off’ her
make-up and ‘doll up’” when she tried to use the open door to
request promotion opportunities.103 Instead of being promoted,
Ms. Kwapnoski watched as less-qualified males were promoted
into management openings for which she was unable to formally
apply because the positions were never posted. When Ms.
Kwapnoski inquired via the notorious open door why a male
coworker had received a large raise and she did not,
management’s answer was that he had a family to support.
      Deborah Gunter requested a specific promotion that was
filled twice by less-qualified men. Ms. Gunter also became
aware that male employees in the same department were making
more money than female employees.107 Ms. Gunter attempted to
use the open door to upper management by requesting a meeting
with the district manager, but that tactic resulted in the open
door being shut in her face when she was fired on the day the
meeting was scheduled to occur.             The other four named
plaintiffs have equally startling stories of Wal-Mart’s selective
lack of adherence to its stated open-door policy.109
      The stories of several formerly named plaintiffs provide
additional evidence of the discriminatory attitudes of store
management:110 (1) in Urbana, Ohio, a male store manager told
Micki Earwood, a single mother, that nobody who had children
could be promoted to support manager;111 (2) in Ocala, Florida,
male supervisors and a male team leader subjected Kimberly

   101. Plaintiffs’ Third Amended Complaint, supra note 58, ¶¶ 36–38.
   102. See id. ¶¶ 31–37.
   103. Id. ¶¶ 64–65.
   104. Id. ¶ 64.
   105. Id. ¶ 65. Does this Sam’s manager not know that many women also have
families to support? See ROTHSTEIN & LIEBMAN, supra note 100, at 92 (discussing the
changing composition of the workforce and how the “dual career couple is now the norm
rather than the exception”).
   106. Plaintiffs’ Third Amended Complaint, supra note 58, ¶¶ 68–69.
   107. Id. ¶ 70.
   108. Id. ¶ 75.
   109. Id. ¶¶ 42–47, 50–60, 77–93 (describing the stories of discrimination encountered
by plaintiffs Patricia Surgeson, Cleo Page, Karen Williamson, and Edith Arana).
   110. In December 2001, Judge Jenkins ruled that the disputed employment practices
of the named plaintiffs must have occurred in California stores. Bob Egelko, Suit Against
Wal-Mart Can Be Heard in State: Possible Class Action Accuses Retailer of Sex
Discrimination, S.F. CHRON., Dec. 5, 2001, at B3.
   111. First Amended Complaint, supra note 52, ¶ 86.
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Miller to derogatory comments such as calling her a “bitch” and
offering to impregnate her;112 (3) in Gurnee, Illinois, a co-general
manager of Sam’s Club made comments to Sandra Stevenson
that “women are not competent to be managers and are unable to
drive forklifts as well as men.”113
      These claims of discriminatory attitudes of many managers
at Wal-Mart are further buttressed by statements made by
various class members from around the country: (1) in Pinellas
Park, Florida, a “male Store Manager told declarant that ‘[m]en
are here to make a career and women aren’t. Retail is for
housewives who just need to earn extra money’”;               (2) in
Enterprise, Alabama, a male employee was promoted to
Domestics Department Manager over a female because,
according to the store co-manager, the female would not want to
lift furniture because “that’s a man’s job”; (3) in San Antonio,
Texas, a female employee was told that “women have to be
‘bitches’ to survive in Wal-Mart management” by a male store
manager; and (4) in Aiken, South Carolina, a male Department
Manager, in response to a complaint by a female associate who
had heard male associates bragging about their pay, told the
associate “women will never make as much money as men”
because “God made Adam first, and so women would always be
second to men.”117
      Wal-Mart claims that “[i]nevitably in a company this large
some women might be treated unfairly.”118 But even with this

   112. Id. ¶ 79.
   113. Id. ¶ 57.
   114. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 165–66 (N.D. Cal. 2004)
(alteration in original) (quoting Declaration of Ramona Scott in Support of Plaintiffs’
Motion for Class Certification ¶¶ 8, 9, 12, Dukes, 222 F.R.D. 137 (No. C-01-2252 MJJ),
available at
   115. Declaration of Denise Mott in Support of Plaintiffs’ Motion for Class
Certification ¶ 17, Dukes, 222 F.R.D. 137 (No. C-01-2252 MJJ), available at http://www.
   116. Declaration of Irma Mathis in Support of Plaintiffs’ Motion for Class
Certification ¶ 12, Dukes, 222 F.R.D. 137 (No. C-01-2252 MJJ), available at http://www.
   117. Declaration of Kathleen MacDonald in Support of Plaintiffs’ Motion for Class
Certification ¶¶ 6–7, Dukes, 222 F.R.D. 137 (No. C-01-2252 MJJ), available at http://www.
   118. Court Asked to Affirm Wal-Mart Class Action, N.Y. TIMES, Dec. 30, 2004, at C4
(quoting company spokeswoman Mona Williams as stating that the six originally named
plaintiffs “have been treated unfairly”); see also Jim Copland, These Actions Have No
Class, S.F. EXAMINER, Sept. 15, 2004, available at
html/_sfe-these_actions.htm (admitting that “[u]ndoubtedly, some women, somewhere,
have been discriminated against by companies as large as Wal-Mart and Costco” but
criticizing that such “class actions are really no more than corporate shakedowns”).
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small sampling of evidence, it appears that this unfair treatment
of women is consistent throughout the country.119 Most of the
plaintiffs and declarants attempted at some point to discuss their
problems with their managers—Wal-Mart’s solution to
addressing employee concerns. However, another consistent
trend appears to be the closing of the open door to the concerns of
female employees who want equal pay and promotion
     The Wal-Mart plaintiffs are no longer “buying” that their
individual voices are audible to the corporate giant and instead
have gone shopping for a voice that will make a difference. The
first stop shoppers usually make when trying to “purchase” a
collective voice is unionization. The following section discusses
the benefits of unionization and why it is “out of the price range”
of the Dukes plaintiffs.

                       WAL-MART WOMEN

A. The NLRA: An Attempt to “Fit” Employees with
    Collective-Bargaining Power
     The National Labor Relations Act (NLRA) was enacted in
1935 as part of President Franklin D. Roosevelt’s New Deal
legislation.121 The policy behind the legislation was to encourage
the “practice and procedure of collective bargaining” and to
protect workers’ ability to associate, self-organize, and designate
“representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment or
other mutual aid or protection.”122 In other words, the NLRA
gives employees a chance to stand together to express their
concerns and bargain over employment conditions, instead of

  119. Furthermore, as Judge Jenkins noted, “Title VII . . . contains no special
exception for large employers.” Dukes, 222 F.R.D. at 142.
  120. In fact, declarant Gretchen Adams explains that her understanding of the open-
door policy had been as follows: “open door, shut the door, out the door.” Declaration of
Gretchen Adams in Support of Plaintiffs’ Motion for Class Certification ¶ 9, Dukes, 222
F.R.D. 137 (No. C-01-2252 MJJ), available at
  121. National Labor Relations Act (NLRA) of 1935, ch. 372, 49 Stat. 449 (codified as
amended at 29 U.S.C. §§ 151–169 (2000)); see MICHAEL C. HARPER ET AL., LABOR LAW:
CASES, MATERIALS, AND PROBLEMS 83–84 (5th ed. 2003) (discussing the efforts of the
Democrats to revive the economy after the Great Depression of 1929, as illustrated by the
passage of extensive legislation including the National Labor Relations (Wagner) Act).
  122. 29 U.S.C. § 151. For a discussion of the purposes of the Act, see HARPER ET AL.,
supra note 121, at 89–90.
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being left alone as individuals to face employers who have
exponentially more power than the lone worker—power to take
away the job and income that may be essential to that particular
employee’s well-being.123 Due in part to the enactment of the
NLRA and in part to a major labor movement, the percentage of
private sector individuals who were members of a union grew
from 14% in 1935 to 36% in 1953. The rapid increase in
unionization during the first half of the twentieth century
reversed course in the latter half, and now a mere 8.2% of the
private sector workforce is unionized. This decline has been
attributed to the weakness of the NLRA, which does not
authorize punitive damages,126 and to the shift in the labor
market from manufacturing to service industries.

  123. See Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L.
REV. 1527, 1528–29 (2002) (“The New Deal’s institutionalization of collective bargaining
was designed to rectify the failings of individual ‘liberty of contract’ . . . .”).
  124. HARPER ET AL., supra note 121, at 96.
2005, at 419 (124th ed. 2004); see also Marion Crain & Ken Matheny, Labor’s Identity
Crisis, 89 CAL. L. REV. 1767, 1767–68 (2001) (“Labor union density has been declining
since the 1950s.”); Michael J. Yelnosky, Title VII, Mediation, and Collective Action, 1999
U. ILL. L. REV. 583, 611–12 (observing that the “unionization rate in the private sector has
been declining for years”). Unionization is not expected to increase any time soon.
Yelnosky, supra; see also Estlund, supra note 123, at 1529–30 (linking the “decline of
organized labor” to “increasingly brazen employer resistance” and the “ineffectuality of
American labor law”).
  126. See 29 U.S.C. § 160(c) (permitting reinstatement and backpay to be awarded but
not punitive damages); see also NLRB v. Breitling, 378 F.2d 663, 665 (10th Cir. 1967)
(“We recognize that the purposes of the Act [NLRA] are remedial and not punitive.”);
how firing employees for union activity “has become increasingly popular” because “the
penalties for such activities are slight”). Many commentators have disparaged the NLRA’s
ineffectiveness as to large employers. See, e.g., Louise Sadowsky Brock, Note, Overcoming
Collective Action Problems: Enforcement of Worker Rights, 30 U. MICH. J.L. REFORM 781,
781–82 (1997) (pointing out that protective legislation, such as the NLRA, is often
ineffective due to enforcement problems). See generally Estlund, supra note 123, at 1530
(describing American labor law as being “nearly frozen, or ossified, for over fifty years”).
  127. See ROTHSTEIN & LIEBMAN, supra note 100, at 91 (reporting that thirty years
ago “almost half of the labor force . . . worked in the goods producing sector; today, seven
out of ten workers are employed in either white collar or service occupations”); PAUL C.
(1990) (attributing the “pendulum” swing from growth to decline of labor unions to the
“change in the composition of the workforce,” including a shift “from manufacturing to
service industries, from blue-collar to white-collar jobs, from an almost exclusively male
work force to a high percentage of female workers, and from the northern to the southern
regions of the country”). See also Clyde W. Summers, Employment at Will in the United
States: The Divine Right of Employers, 3 U. PA. J. LAB. & EMP. L. 65, 84–86 (2000), for a
discussion of current trends in labor law. Summers proposes that the trend is towards
“employer dominance” and that the “focus is on the individual labor market, ignoring the
different potentials of a collective labor market.” Id. at 85.
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B. The Benefits of Unionization for Women in the Retail
   Industry: It Looks Like a Good “Bargain”
     While the union movement has been viewed as not
particularly valuable, and even detrimental, to women,128 current
commentators agree that women derive immense benefits from
unionization.129 The average wage of unionized women who work
in retail food industry companies of more than 100 workers is
much higher than that of a nonunionized female worker ($9.93
versus $7.75 per hour), and the unionized women are
significantly more likely to have employment-based health
insurance (69% versus 42%) and pension plans (57% versus
31%).130 Unionized part-time women workers in the retail food
industry earn an average of 33% more than those who are
nonunionized.131 Unions are also able to bargain about issues that
benefit women such as flextime, paid family leave, and sexual-
harassment policies.

   128. See Crain, supra note 66, at 1942–60 (analyzing the traditional gender bias in
the labor movement); Marion Crain & Ken Matheny, “Labor’s Divided Ranks”: Privilege
and the United Front Ideology, 84 CORNELL L. REV. 1542, 1593–94 (1999) (describing how
historically labor unions depicted men as “breadwinners” and “women as secondary wage
earners” oriented more towards the rearing of children and homemaking); Yelnosky,
supra note 125, at 612 (hypothesizing that women may be uncomfortable joining unions
because of discrimination against women and minorities in the past by unions and the
under-representation of the same in union leadership roles); Melissa A. Childs, Comment,
The Changing Faces of Unions: What Women Want from Employers, 12 DEPAUL BUS. L.J.
381, 388–90 (1999) (chronicling the historically “strained relationship” between women
and unions); see also LOVELL ET AL., supra note 16, at 18–19 (discussing the “special
obstacles to unionizing” women, including the “concentration of women in service-sector
work, which has not been the traditional focus of organizing in the United States”).
   129. See Crain, supra note 66, at 1960–61 (“Union membership benefits individual
women significantly in economic terms.”); Childs, supra note 128, at 391–93 (extolling the
new relationship between women and unions and specifically the wage benefits women
have received from union membership). But see Abigail Goldman, Costco Manager Files
Sex-Bias Suit, L.A. TIMES, Aug. 18, 2004, at C1 (recounting that an employee of Costco, a
partially unionized company that generally uses wage and benefits packages equivalent
to completely unionized chains, has filed a discrimination lawsuit alleging that Costco
denies promotions to women). Costco, like Wal-Mart, is accused of not posting promotion
opportunities and using the “tap on the shoulder” approach to acquire promotion
candidates. Id. Wal-Mart’s wage and benefits package is reported to be $10 less per hour
than Costco’s. Id.
   130. LOVELL ET AL., supra note 16, at 9–11 (reporting results of a study of
unionization in the retail food industry). Across the industry, cashiers in particular earn
52% more if they are unionized. Id. at 14. A study out of the University of California,
Berkeley, indicates that in the San Francisco Bay area, Wal-Mart’s average wage is 30%
less than unionized workers in local grocery chains. See Madrick, supra note 16 (reporting
the study results). Wal-Mart claims the Berkeley researchers “are advised and sometimes
financed by organized labor,” implying the study is not accurate. Id.
   131. LOVELL ET AL., supra note 16, at 12.
   132. Crain, supra note 66, at 1961–62. But see Yelnosky, supra note 125, at 612
(opining that unions may not be as responsive as women would like on issues such as
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     Collective-bargaining agreements are beneficial to women
because they help ensure fair and equal treatment of all
employees.      These contracts generally contain provisions
imparting benefits such as “decent wages, . . . increased employer
contributions to health insurance, improved retirement benefits,
sick days, vacation time, a seniority system and a grievance
procedure.” Though it is difficult to hypothesize exactly what
would be negotiated into any specific contract, if Wal-Mart were
to become widely organized and actually negotiate a contract, it
would likely not be able to get away with paying equally qualified
women less. Additionally, most collective- bargaining agreements
stipulate that seniority must at least be a factor in determining
promotions.135 At Wal-Mart, class members Karen Williamson
and Shirley Ervine were not even considered for promotions that
less-senior male employees received, indicating seniority was not
a primary consideration; this would likely change if Wal-Mart
were to become unionized and negotiate a collective-bargaining
     Most collective-bargaining agreements also contain
antidiscrimination clauses.137 Consequently, if an employer does

flextime, family leave, and sexual harassment due to majoritarian concern for other
   133. Marta M. Elvira & Ishak Saporta, How Does Collective Bargaining Affect the
Gender Pay Gap, 28 WORK & OCCUPATIONS 469, 472–73 (2001).
   134. Laureen Lazarovici, Houston: We Have a Union Hotel, AM. AT WORK, Feb.–Mar.
2005, at 11, available at
   135. See FREEMAN & MEDOFF, supra note 126, at 127–28 (reporting that more than
70% of contracts specify “seniority as a ‘factor’ in promotions,” and 45% require seniority
to be “the most important factor in promotions”); Chris Spolar, Workers Chip at a
Cornerstone of the Unionized Work Place: Young Employees Attack Seniority System,
WASH. POST, Mar. 16, 1987, at A1 (calling seniority systems that offer promotions to more
senior employees the “cornerstone of the unionized work place”).
   136. See, e.g., Plaintiffs’ Third Amended Complaint, supra note 58, ¶ 82 (relating
that less-senior men were promoted ahead of named plaintiff Karen Williamson);
Declaration of Shirley Ervine in Support of Plaintiffs’ Motion for Class Certification ¶ 7,
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) (No. C-01-2252 MJJ),
available at
Shirley.htm (relating how a newly hired male received a promotion she had requested).
   137. Richard A. Bales, The Discord Between Collective Bargaining and Individual
Employment Rights: Theoretical Origins and a Proposed Solution, 77 B.U. L. REV. 687,
737 n.277 (1997); Charles B. Craver, The Use of Non-Judicial Procedures to Resolve
Employment Discrimination Claims, 11 KAN. J.L. & PUB. POL’Y 141, 171 (2001); Carla
Wong McMillian, Recent Development, Collective Bargaining Agreements, Mandatory
Arbitration, and Title VII: Varner v. National Supermarkets, Inc., 32 GA. L. REV. 287, 294
2004) (“Ninety-five percent of the agreements had a guarantee against discrimination—by
either the union, the employer, or both; 87 percent of the agreements prohibited
discrimination on the basis of race, color, creed, sex, national origin, or age . . . .” (citing
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discriminate, it is in violation of the contract, and the employee
can file a grievance.138 Several of the Dukes plaintiffs had
difficulty with the open door, complaining to a deaf ear when
they tried to discuss their woes with managers, district
managers, and even the operators at the toll-free hotline.139 If
these employees had been able to file a grievance when they
encountered this discrimination, (1) instead of a single voice of a
seemingly disgruntled employee, the voice of the entire unionized
workforce would have stood behind each wronged employee, and
(2) the resolution of the individual grievance would have
resonated throughout the Wal-Mart workforce as negotiators
discussed and ultimately enforced remedies to the situation,
rather than being confined to a minute geographic area where
the “problem” disappeared for management (or so they thought)
as soon as they terminated the employee.

C. Wal-Mart’s Anti-Union Policies: Why the Dukes Plaintiffs
   Cannot Make This “Purchase”
     Wal-Mart’s attitude towards unions has been described as
“rabidly anti-union” by some;140 Wal-Mart simply advances that it
desires to remain “union free” and that its employees are not in
need of third-party representation.142 In October 2003, the United
Food and Commercial Workers Union had unionization
campaigns at forty-five Wal-Mart locations. However, as of
February 2005, not one Wal-Mart employee in North America

(reporting that “prohibitions against discrimination are found in 94 percent of the nation’s
collective bargaining agreements” (citation omitted)); see also Stender v. Lucky Stores,
Inc., 803 F. Supp. 259, 287 (N.D. Cal. 1992) (reporting testimony by a union
representative that the union had pursued a number of grievances on behalf of women
who claimed the defendant had violated the sex discrimination clause in the collective-
bargaining agreement).
   139. See Plaintiffs’ Third Amended Complaint, supra note 58, ¶¶ 31–33, 35, 88–90
(detailing how Wal-Mart turned a deaf ear when plaintiffs Betty Dukes and Edith Arana
tried to voice their concerns to Wal-Mart management).
   140. Remaking Our World, supra note 16, at 2.
   141. Featherstone, supra note 16, at 1 (quoting the Wal-Mart handbook: “Staying
union free is a full-time commitment”); see also Wal-Mart Stores, Inc., Case No. 28-CA-
16832, at 4 (NLRB Feb. 28, 2003),
JD(SF)-19-03.pdf (relating that Wal-Mart contends “it is not anti-union, but rather ‘pro-
   142. See Michael Barbaro, Wal-Mart Says Inquiry Names Ousted Official, WASH.
POST, Apr. 23, 2005, at E1 (noting that Wal-Mart openly opposes unions, arguing that
third-party representation will “bog the company down with inefficient labor rules”).
   143. Bianco & Zellner, supra note 25, at 108.
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was covered by a collective-bargaining agreement.144 Wal-Mart is
able to keep its stores union-free, and thus its labor costs low, by
perpetuating aggressive anti-union policies.145
     First, Wal-Mart attempts to inculcate its employees with the
idea that they are important as individuals and do not need a
union.146 Many employers will use this type of strategy not only to
ward off unions, but to provide a more congenial workplace
environment, which results in retaining a “high-quality, well-
motivated work force.” Wal-Mart embraces this strategy with
its open-door policy; employees are encouraged to discuss freely
their concerns or ideas with even the highest level of
management and are assured that management will take

  144. Austen, supra note 99 (marveling that Wal-Mart is negotiating with Canadian
retail workers); Cora Daniels, Up Against the Wal-Mart, FORTUNE, May 17, 2004, at 112,
113 (discussing how unionizing Wal-Mart may be the “labor movement’s most important
challenge right now” and that “not a single one of [Wal-Mart’s] 1.3 million workers” is
unionized); see also Remaking Our World, supra note 16, at 2 (scorning Wal-Mart because
eleven days after the Wal-Mart meat-cutters in Jacksonville, Texas voted in a union
establishing “the first-ever Wal-Mart union in the U.S.,” Wal-Mart decided to close all its
meat-cutting departments and “henceforth buy prepackaged meat elsewhere”). But see
Greenhouse, supra note 16 (reporting that “nearly 200 current and former Wal-Mart
workers” in Florida have joined a nonunion association designed to improve their wages
and working conditions).
          Wal-Mart has 241 stores in Canada that the United Food and Commercial
Workers Canada is trying to organize. Austen, supra note 99. Ten years ago Wal-Mart
entered the Canadian market by purchasing 122 nonunionized stores from a now defunct
Canadian retailer, and it declined to buy 10 stores that had unionized employees from the
same retailer. Id. Workers in the Jonquière store reported concerns that the store would
be closed “before any contract is signed.” Id. Wal-Mart sent out a press release in early
October 2004 that suggested the Jonquière store was having financial difficulties. Id. In
February 2005, Wal-Mart announced it was “shutting the store because it is losing money
and demands from the union would prevent it from being profitable.” Wal-Mart to Pay
Child-Labor Fine, USA TODAY, Feb. 14, 2005, at B1.
MART 4 (2004), available at
cfm (postulating that statistics showing the benefits of unionization provide an incentive
for companies “seeking to maintain low labor costs . . . to remain union-free”). Many
organizers “believe that Wal-Mart requires a new organizing strategy [because] ‘[t]here is
no existing organizing model that unions have effectively employed to date that would
organize this company.’” Featherstone, supra note 16, at 3 (quoting union organizer Wade
  146. See EHRENREICH, supra note 41, at 144–45 (describing the training at Wal-Mart
and relating the emphasis placed upon the difference employees as individuals can make
at Wal-Mart). But see Madrick, supra note 16 (“[A]cademic researchers interviewing Wal-
Mart employees find frequent complaints about stress and overwork and little respect for
personal needs.”). Wal-Mart’s video You’ve Picked a Great Place to Work cautions
employees that unions will take away their money and their individual voices and place
their benefits and wages at risk. See EHRENREICH, supra note 41, at 144–45.
  147. WEILER, supra note 127, at 11. Weiler notes, however, that heading off
unionization is also a “powerful factor” in the employer’s tactic to be “more attuned to the
needs and interests of the employees.” Id.
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workers’ ideas and concerns to heart.148 Sam Walton espoused
this philosophy of management in the seventh rule of his “Ten
Rules that Worked for Me”: “LISTEN to everyone in your
company. . . . [Y]ou must listen to what your associates are trying
to tell you.”149
     Second, Wal-Mart takes a very aggressive stance when a
union knocks on its door. Supervisors are cautioned in a
document called “A Managers Toolbox” that they are the “first
line of defense against unionization.” At the first sign of union
activity, Wal-Mart managers must call the “Union Hotline” to
alert the Home Office.151 Wal-Mart then sends a team of labor-
relations managers from Arkansas to run its anti-union
campaign.152 This team’s sole purpose is to convince employees to
vote against the union.153 They hold numerous meetings with
employees, show them videos, and train local management on
“how to combat the Local Union’s organizing efforts.”154
     Wal-Mart has been accused of firing employees who endorse
unionization and engaging in various other illegal activities in

   148. See Wal-Mart Stores, Inc., Case No. 28-CA-16832, at 6 (NLRB Feb. 28, 2003), The open-door
policy states specifically that “if you have an idea or a problem, you should go to your
supervisor to talk about it without fear of retaliation. . . . However, if the associate feels
the supervisor is the source of the problem . . . the associate may go to any level of
management in the Company.” Id. The policy further promises associates that their ideas
and problems will “be heard,” but that their opinions will not always “prevail.” Id.
   149. WALTON, supra note 89, at 316.
   150. Wal-Mart Stores, Case No. 28-CA-16832, at 5.
   151. See Wal-Mart Stores, Inc., 340 N.L.R.B. No. 83, 173 L.R.R.M. (BNA) 1542 (Sept.
30, 2003) (describing evidence of Wal-Mart’s desire to remain union-free).
   152. See Wal-Mart Stores, Case No. 28-CA-16832, at 4–6 (chronicling the anti-union
campaign engaged in by Wal-Mart at the Kingman, Arizona Tire and Lube Express);
Steven Greenhouse, At a Small Shop in Colorado, Wal-Mart Beats a Union Once More,
N.Y. TIMES, Feb. 26, 2005, at A8 (“Wal-Mart responded to the organizing drive [at a Tire
and Lube Express in Colorado] by flying in a group of labor experts from its headquarters
in Bentonville, Arkansas.”).
   153. Wal-Mart Stores, Case No. 28-CA-16832, at 5.
   154. See id. (discussing the tactics employed by the team of labor relations managers
at the Kingman, Arizona facility); Greenhouse, supra note 152 (reporting disgruntled
comments by an employee in the Colorado election campaign who complained, “Every day
they had two or three antiunion people from Bentonville in the garage full time, showing
antiunion videos and telling people that unions are bad”).
HOW WAL-MART IS DEVOURING AMERICA 354–58 (1998) (telling the stories of Ann Bertelli,
Linda Regalado, and Kathleen Baker—all fired from Wal-Mart for engaging in union
activity or collective action); Featherstone, supra note 16, at 2 (accusing Wal-Mart of
firing union sympathizers); Steven Greenhouse, Trying to Overcome Embarrassment,
Labor Opens a Drive to Organize Wal-Mart, N.Y. TIMES, Nov. 8, 2002, at A28 (chronicling
how the NLRB has filed over forty complaints against Wal-Mart in the last four years
involving, among other things, firing union supporters and reporting that an executive
vice president of Wal-Mart bragged that the company has “never been found guilty of
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order to avoid negotiating with unions.156 If Wal-Mart is, indeed,
guilty of any of these allegations, the remedy available under the
NLRA to wronged employees is reinstatement and back pay as
well as a posting by the employer of a notice proclaiming the
rights of its employees and its prior infringement of those
rights.157 Even if Wal-Mart were found guilty of illegally firing a
thousand employees, this remedy, which does not include
punitive damages, would barely make a dent in its billions of
dollars in annual revenue. Clearly, unionization, at least under
the current legal framework, is not going to help improve the
problems encountered by Wal-Mart employees any time soon;
therefore, the women who work at Wal-Mart went shopping for
another solution.158

firing any employees” for being involved in a unionization campaign); see also Charles J.
Morris, A Blueprint for Reform of the National Labor Relations Act, 8 ADMIN. L.J. AM. U.
517, 528 n.46 (1994) (reporting the Dunlop Commission’s report of a Gallup Poll that
found “69 percent [of respondents] stated that ‘corporations sometimes harass and fire
employees who support unions’”).
   156. See Wal-Mart Stores, Inc., 340 N.L.R.B. No. 83, 173 L.R.R.M. (BNA) 1542 (Sept.
30, 2003) (reporting allegations that Wal-Mart maintains an “overly-broad no solicitation
and no distribution rule” and that it removed “union literature from bulletin boards and
break rooms”); Wal-Mart Stores, Case No. 28-CA-16832, at 9 (reporting the claimants’
charges that Wal-Mart illegally “solicited employee grievances and promised employees
increased benefits and improved terms and conditions of employment if they refrained
from supporting union organizational activity”); Steven Greenhouse, Wal-Mart to Pay
U.S. $11 Million in Lawsuit on Immigrant Workers, N.Y. TIMES, Mar. 19, 2005, at A1
[hereinafter Wal-Mart to Pay U.S. $11 Million] (reporting remarks by the president of
United Food and Commercial Workers Union that Wal-Mart “‘has systematically bent and
broken the law to increase their corporate coffers at the expense of the most vulnerable
employees’”); see also Estlund, supra note 123, at 1554 (“The right to be free from coercion
and retaliation based on union organizing . . . is widely flouted by employers, who
perceive too great an economic threat in the rumblings of union talk and too easy and
cheap a response in the discharge of union adherents.”). In fact, former Wal-Mart vice
chairman Tom Couglin has been accused of taking part in a secret plan to pay union
officials who provided information about pro-union employees. Steven Greenhouse, Union
Wants Wal-Mart Files About Payments, N.Y. TIMES, Apr. 9, 2005, at C1.
   157. See 29 U.S.C. § 160(c) (2000) (describing remedies the NLRB may require when
it finds an unfair labor practice has occurred); Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137, 152 (2002) (describing notice of rights and prior infringement
requirements); 29 C.F.R. § 101.11(a) (2005) (conferring power on NLRB administrative
law judges to issue cease and desist orders); see also ORTEGA, supra note 155, at 356–57
(lamenting that the only remedy the NLRB could hope for when Linda Regalado was fired
for union activity, due to the “weak federal labor laws,” was “an order forcing Wal-Mart to
stop breaking the law, to rehire Regalado, and to pay her back wages”).
   158. See Daniels, supra note 144, at 114 (observing that the labor movement, in
trying to unionize Wal-Mart, “may well be fighting a battle they just can’t win”).
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     Even though the Dukes plaintiffs decided to “purchase” class
action litigation as their collective voice and Judge Jenkins “rang
up” the “sale,” the question of whether it is going to “fit” remains.
This section will discuss the logistics of class certification, past
difficulties in employment class action litigation, and current
trends. It will culminate with some proposals to circumvent the
past problems, and hopefully, make class action a viable means
of obtaining a thunderous collective voice for the plaintiffs and all
women who work in the U.S. retail industry.

A. The Logistics: The Shoe Seems to Fit
     The class in Dukes was certified pursuant to Federal Rules
of Civil Procedure 23(a) and 23(b)(2).159 All class actions that are
certified must meet the requirements of 23(a): numerosity,
commonality, typicality, and adequacy of representation. Judge
Jenkins went into each of these elements in painstaking detail
and held that the Dukes plaintiffs satisfied each sufficiently to
certify the class; however, he noted that he is free to withdraw
the certification at any time if evidence is presented to show the
elements are not met.161
     Wal-Mart contends that Judge Jenkins erred in granting the
class certification because the plaintiffs did not meet the
commonality requirement of Rule 23(a), and it is appealing the
certification ruling.162 Wal-Mart claims that, despite its highly
centralized business practices, decisions about pay and
promotions are highly decentralized, and any discrepancies in
pay and promotion between male and female workers are the
result of decisions of individual store managers and not of any

   159. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 187–88 (N.D. Cal. 2004).
   160. FED. R. CIV. P. 23(a).
   161. See Dukes, 222 F.R.D. at 143 (assuring that part of the court’s broad discretion
to certify a class includes the ability to “‘revisit that certification throughout the legal
proceedings before the court’” (quoting Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th
Cir. 2001))).
   162. See Opening Brief for Appellees and Cross-Appellants, supra note 34, at 4
(criticizing Wal-Mart’s contention that the “granting of broad discretion to managers to
make pay and promotion decisions” cannot be “challenged as a common, company-wide
policy”); Wal-Mart Asks Court to Remove Suit’s Class-Action Status, N.Y. TIMES, Nov. 30,
2004, at C12 (reporting that Wal-Mart has appealed the certification because it contends
that “there was no disparity in pay between men and women at 90 percent of its 3,400
stores”); see also FED. R. CIV. P. 23(f) (allowing immediate appeal of class certification
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common practices.163 Judge Jenkins ruled that the commonality
requirement of Rule 23(a) was met because of the company-wide
common practice of granting store managers excessive
subjectivity in making these decisions, as well as evidence of
“gender stereotyping,” “maintenance of a strong corporate
culture,” “statistical evidence of gender disparities caused by
discrimination,” and “anecdotal evidence of gender bias.”164 He
held that Wal-Mart’s objections went to the “weight of the
evidence,” thus providing a question for the jury.165
     Next, the class must meet the requirements of 23(b)(1),
23(b)(2), or 23(b)(3).166 The Dukes plaintiffs requested certification
under 23(b)(2), the section of the rule used when the relief
requested is primarily declaratory or injunctive.167 The Dukes
plaintiffs are requesting injunctive relief, the recovery of
backpay, and punitive damages.            Lost pay is considered

   163. Opening Brief for Appellees and Cross-Appellants, supra note 34, at 4. The
Supreme Court has ruled that subjective decisionmaking may be used to show
discriminatory employment practices in disparate impact cases—claims in which
plaintiffs contend that a neutral employment practice, adopted without discriminatory
intent, had a statistically significant impact on a protected class. See Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 989–91 (1988) (reasoning that, if the Court did not
allow plaintiffs to challenge subjective employment practices, employers would simply
change their objective criteria to subjective criteria to avoid litigation). But see Reid v.
Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 677 (N.D. Ga. 2001) (explaining that
the subjective practices used did not “affect all black employees in similar ways”).
   164. Dukes, 222 F.R.D. at 166.
   165. Id. Plaintiffs cite several factors that Judge Jenkins considered to determine
commonality in their Opening Brief for Appellees and Cross-Appellants: “uniform
personnel and management structure across stores,” “the Home Office’s extensive
oversight of store operations,” “company-wide policies governing pay and promotion
decisions,” “a strong, centralized corporate culture,” “consistent disparities by gender in
every domestic region of the company,” “gender stereotyping,” and “anecdotal evidence.”
Opening Brief for Appellees and Cross-Appellants, supra note 34, at 8–9.
   166. FED. R. CIV. P. 23(b).
   167. Dukes, 222 F.R.D. at 143, 170; see ROBERT H. KLONOFF & EDWARD K.M. BILICH,
(noting that the drafters of the Federal Rules envisioned that 23(b)(2) would be mostly
used in civil rights cases).
   168. Dukes, 222 F.R.D. at 170. In order to receive punitive damages, it will be
necessary for the plaintiffs to prove that Wal-Mart acted “with malice or with reckless
indifference” to the Title VII rights of its female employees. Civil Rights Act of 1991, 42
U.S.C. § 1981a(b)(1) (2000). Wal-Mart may claim that it has made “‘good faith efforts to
comply with Title VII.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545 (1999) (quoting
Judge Tatel’s dissent). And considering that Wal-Mart offers diversity training to all its
employees, this is a plausible claim. See Diversity Fact Sheet, Wal-Mart Facts: Associate
Center: Diversity, (last visited
Sept. 8, 2005); see also Cynthia L. Estlund, Putting Grutter to Work: Diversity,
Integration, and Affirmative Action in the Workplace, 26 BERKELEY J. EMP. & LAB. L. 1, 6
(2005) (noting that Wal-Mart is “beefing up its diversity programs” in light of the Dukes
           If the plaintiffs fail to make their point about centralized control and Wal-Mart
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equitable relief, so it is a permissible form of relief for Rule
23(b)(2) classes.169 The plaintiffs have not requested
compensatory damages.170
     Wal-Mart disputed the 23(b)(2) class certification, asserting
that the punitive damages claims would “overwhelm” the
plaintiffs’ injunctive relief claims, violating Rule 23(b)(2).171 Rule
23(b)(2) classes may request monetary relief so long as the
monetary claim does not predominate over the injunctive or
declaratory relief requested. In Molski v. Gleich, the Ninth
Circuit, rather than adopting a bright-line rule for 23(b)(2)
actions regarding whether the monetary claim predominates,
determined that the presiding judge should consider the
particular facts of the case and the intent of the plaintiffs in
bringing the action.173 Judge Jenkins, relying on Molski,

can prove that its supervisors acted contrary to its efforts to comply with Title VII, Wal-
Mart will not be liable for punitive damages. See Kolstad, 527 U.S. at 545 (holding that
“an employer may not be vicariously liable for the discriminatory employment decisions of
managerial agents where these decisions are contrary to the employer’s good-faith efforts
to comply with Title VII” (citation and internal quotation marks omitted)). Wal-Mart can
also escape liability in this scenario if it convinces the trier of fact that its store managers
are not “agents” of Wal-Mart. See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 477 (Tex.
App.—Austin 2000, pet. denied) (holding that a jewelry department manager was an
“agent” of Wal-Mart); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1247–48 (10th Cir.
1999) (same). But see Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 (11th Cir.
1999) (holding that store managers of Wal-Mart are not “high enough up Wal-Mart’s
corporate hierarchy” to subject the company to punitive damages based on their
discriminatory actions). On the other hand, if the plaintiffs prove that Wal-Mart’s policy
of granting subjectivity to individual managers is intentional discrimination, Wal-Mart
will not be able to rely on claims that its managers were not acting as its agents; the
plaintiffs will, in this case, only need to prove that Wal-Mart advanced the policy “with
malice or with reckless indifference” to its employees’ Title VII rights. 42 U.S.C.
§ 1981a(b)(1). Internal memoranda from Wal-Mart’s vice president of human resources
Coleman Peterson indicating that Wal-Mart was “lagging behind other retailers in the
promotion of women into management” provides damning evidence of Wal-Mart’s alleged
indifference to its employees’ Title VII rights. David Streitfeld, It’s Berkeley vs.
Bentonville as Lawyers Take on Wal-Mart, L.A. TIMES, June 28, 2004, at A1. Mr. Peterson
claims he was exaggerating in the memoranda. Id.
   169. Dukes, 222 F.R.D. at 170 (citing Gotthardt v. Nat’l R.R. Passenger Corp., 191
F.3d 1148, 1152–55 (9th Cir. 1999), and Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir.
   170. Id.
   171. Id.
   172. See Allison v. Citgo Petrol. Corp., 151 F.3d 402, 411 (5th Cir. 1998) (“We, like
nearly every other circuit, have adopted the position taken by the advisory committee that
monetary relief may be obtained in a (b)(2) class action so long as the predominant relief
sought is injunctive or declaratory” (citation omitted)). The Fifth Circuit instructs that the
“predomination” requirement “serves to protect the rights of class members regarding
their monetary interests” and therefore requires “procedural safeguards” such as the right
of notice and opt-out. Id. at 413–14. The court further restricts “predomination” to mean
that monetary relief must only be “incidental” to injunctive and declaratory relief. Id. at
   173. 318 F.3d 937, 949–50 (9th Cir. 2003) (focusing on “the language of Rule 23(b)(2)
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examined the facts of the Dukes case, weighed the plaintiffs’
motivation for filing suit, and determined that the punitive
damages portion of the claim, which is “inherently more
speculative,” does not predominate.174
     Because a class has been certified in Dukes, Rule 23(e)
requires Judge Jenkins to approve and supervise any settlement
reached between Wal-Mart and the plaintiffs.            In contrast,
individuals who do not sue as part of a class have no such
requirement for judicial approval of settlements. Rule 23(e)
requires judges to fill this “unusual and unaccustomed
supervisory role” because class action litigation often presents
unique problems and inherent complexities.              The judge’s
objective guidance is often necessary to ensure a fair settlement
in light of the variety of competing interests and unequal
bargaining positions of interested parties—such as the absent
class members.177
     Likewise, if the case goes to trial, Judge Jenkins will play a
significant role in the relief awarded should a jury find that Wal-
Mart is guilty of a pattern and practice of discriminating against
its female employees. Judge Jenkins has the power to fashion
remedies specific to the facts of the Dukes case and may appoint
others to help ensure that his remedies are administered
correctly and efficiently.

and the intent of the plaintiffs in bringing the suit” and refusing to adopt the Fifth
Circuit’s reasoning in Allison, namely that monetary relief can only be incidental to
declaratory and injunctive relief, as that rule “holds troubling implications for the
viability of future civil rights actions”).
   174. Dukes, 222 F.R.D. at 170–72. The plaintiffs convinced the court that their
“central motivation for participating in this action is to improve opportunities for women
at Wal-Mart.” Id. at 171. The court further noted that, should the plaintiffs prevail, the
“fundamental changes” that may occur at Wal-Mart would overshadow any punitive
damages claim. Id.
   175. FED. R. CIV. P. 23(e); see also RICHARD L. MARCUS & EDWARD F. SHERMAN,
1998) (summarizing how judges control class actions settlements).
   176. MARCUS & SHERMAN, supra note 175, at 494.
   177. See id. at 501–26 (discussing the different stakes the defendant, defense
counsel, class representatives, class counsel, insurers, objectors, court, legislatures,
administrative agencies, and absent class members have in the outcome of the
   178. See id. at 664 (discussing a judge’s broad discretion in fashioning relief).
   179. See Lloyd C. Anderson, Implementation of Consent Decrees in Structural Reform
Litigation, 1986 U. ILL. L. REV. 725, 732–36 (discussing how judges may appoint monitors
and review panels to aid in the enforcement of consent decrees). But see Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 578 (1978) (stating that “[c]ourts are generally less
competent than employers to restructure business practices”); Susan Sturm, Second
Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458,
558–59 (2001) (suggesting that “[c]ourts lack the expertise and legitimacy to develop and
unilaterally impose specific criteria for evaluating effective problem-solving processes”
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     Judge Jenkins has indicated that he believes the case has
the potential to substantially change the way Wal-Mart makes
its pay and promotion decisions. Because Judge Jenkins has
broad authority to fashion a settlement should the case go to
trial, his comments regarding the potential impact of the Dukes
litigation may foretell his treatment of the case. The following
section analyzes previous settlements that have gone awry and
discusses items the plaintiffs should attempt to negotiate into a
settlement agreement in order to ensure a significant impact on
employment opportunities for women at Wal-Mart and other
retailers who tend to follow Wal-Mart’s example.

B. The Past: Previous “Shoppers” Have Not Seen Adequate
    Returns on Their “Investments”
     There have been several class action gender discrimination
lawsuits in the past that have settled for substantial amounts of
money prior to trial.181 An important question to ask, however, is
whether these settlements made a difference in the underlying
difficulties that originally prompted the plaintiffs to initiate
litigation. Professor Michael Selmi, a frequent commentator on
employment discrimination issues, contends that most of the
previous class action settlements have not produced lasting
change.182 This section of the Comment describes the problems
identified and solutions asserted in Selmi’s The Price of
Discrimination: The Nature of Class Action Employment
Discrimination Litigation and Its Effects.183 The next section will
describe a recent settlement that purportedly has been more
influential on discriminatory practices than the cases Selmi
analyzed. The final sections will apply Selmi’s solutions
specifically to the Dukes litigation and propose additional

and recommending instead that courts “encourage employers to develop the capacity to
evaluate their own systems”).
   180. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 171 (N.D. Cal. 2004)
(explaining that equitable relief predominates because of the “very significant long-term
relief” sought).
   181. See Joyce, supra note 21 (charting six other large class action settlements).
Shoney’s settled with a class of 50,000 for $132.5 million, Home Depot settled with a class
of 25,000 for $104 million, Coca-Cola settled with a class of 2000 for $192.5 million, and
Texaco settled with a class of 1500 for $176.1 million. Id.
   182. Selmi, supra note 24, at 1250 (asserting that “settlements frequently produce
little to no substantive change within the corporations”).
   183. See generally id.
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     Selmi’s analysis focuses specifically on lawsuit settlements
involving three companies: Texaco, Home Depot, and Denny’s.
Although each of these substantial monetary settlements
mandated relief beyond the financial awards, the changes were
often “primarily designed to address public-relations problems”
and did not provide “meaningful” improvements.185 The Texaco
settlement is demonstrative of this disheartening tendency.
     When Texaco was sued for employment discrimination in
1994, it settled with the plaintiffs before a class was certified
because publicity from the case, including tapes released to the
media wherein management officials allegedly used racial
epithets, proved potentially disastrous. In addition to a $115
million settlement fund, the settlement agreement required
Texaco to increase the salaries of all class members and establish
a diversity task force. Desperate to repair its image, Texaco set
diversity goals for hiring and promotions, pledged to “increase its
spending with minority- and women-owned businesses,” and tied
managers’ bonuses to meeting these goals. Although it appears
Texaco was making valiant strides in remedying its
discrimination problem, it seems more likely that most of the
changes were the result of a “carefully structured public relations
campaign” and were implemented “with little to no oversight.”189
In fact, as of 2000, Texaco had not met any of its numerical
     Home Depot was also sued for employment discrimination in
1994, but it took a different path to resolve the class action
litigation. In response to a charge that it discriminated against
women, Home Depot countered that (1) women were not
interested in working in higher-paid positions, and (2) women
with construction experience, a preferred qualification, were not
available in significant numbers.192 Home Depot’s pretrial
settlement focused primarily on monetary compensation rather

  184. Id. at 1250.
  185. Id.
  186. See id. at 1268–72 (recounting the filing of the lawsuit and the ensuing negative
publicity). Whether the tapes actually contained racial epithets is still up for debate. See
id. at 1271.
  187. Id. at 1273–74.
  188. Id. at 1274–75.
  189. Id. at 1276.
  190. Id. at 1276–77.
  191. See id. at 1281–89 (discussing Home Depot’s approach to the employment
discrimination class action lawsuit).
  192. See id. at 1283 (describing Home Depot’s implementation of this “classic
defense,” derived from EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988)).
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than systemic change.193 The settlement agreement required
Home Depot to establish its own goals and to oversee and
implement the agreement.194 Home Depot has instituted positive
changes including posting job openings, allowing interested
personnel opportunities to apply for these openings, and
requiring “managers to interview at least three candidates for
every position.” While Home Depot has made strides in the
percentage of women employed as sales associates, it has not met
its self-imposed benchmarks.196
     The Denny’s lawsuits, unlike the other two cases, were not
based on employment discrimination, but rather arose under
Title II, a federal public accommodations statute.197 The lawsuits
were initiated because Denny’s allegedly discriminated against
African American patrons.198 Though Selmi contends that, of the
three cases he studied, the Denny’s settlement produced the most
meaningful changes, most of the changes at Denny’s seem to
have been accomplished through an adjustment in corporate
philosophy by upper management, possibly due to the fact that
customers, rather than employees, filed suit.199 First, Denny’s
negotiated, on its own initiative, with the NAACP to enter into
an agreement that “established specific goals and time frames for
the company to meet.”200 Denny’s also ran an extensive
advertising campaign to improve its image in the African
American community. Furthermore, Denny’s provided diversity
training for all of its employees202—a common remedy in
employment discrimination cases.203

  193. See id. at 1285–86 (postulating that “the essence of the Home Depot settlement
was money”).
  194. Id.
  195. Id. at 1287. These changes will prevent the tap on the shoulder problem that is
encountered by Wal-Mart employees. See supra note 55 and accompanying text.
  196. Selmi, supra note 24, at 1286–87 (citing THE HOME DEPOT, 1999 SOCIAL
community/social_responsibility/1999/resolve.html). But see Greg Winter, No Instant
Results Expected from Coke Bias Case, N.Y. TIMES, Nov. 18, 2000, at C1 (extolling Home
Depot for improving the percentage of women in its sales force by 10% in two years and
stating the settlement included “strict targets for promotions”).
  197. See Selmi, supra note 24, at 1289 & n.183 (citing 42 U.S.C. § 2000(a) (2000)).
  198. Id.
  199. See id. at 1289–95 (recognizing that Denny’s “implemented wide-ranging and
meaningful changes in response to a series of high-profile lawsuits” and describing those
  200. Id. at 1291–92.
  201. See id. at 1294 (reporting that Denny’s spent five million dollars on these
  202. Id.
  203. See id. at 1305 (discussing diversity initiatives common in employment
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     Admittedly, Selmi’s analysis is limited to quantifiable
changes within a company and cannot completely measure
changes in the corporate culture—which is exactly what needs to
be changed at Wal-Mart. On the journey to making lasting
changes within Wal-Mart’s corporate culture, however, the
quantifiable variables are important. It is imperative that the
settlement or judgment reached in Dukes improve the numbers—
bringing women to their deserved equivalent status with men at
Wal-Mart—so that Wal-Mart’s managers hear loud and clear
that discriminating against women is unacceptable. Because of
Wal-Mart’s influence in the retail service industry, a settlement
or judgment that does not affect Wal-Mart’s employment
practices will send the message to managers in all large retail
stores that gender discrimination is not beyond the pale—making
class action litigation not such a “good buy” after all.205

C. Morgan Stanley: Real Changes?
     On June 12, 2004, Morgan Stanley, a large Wall Street
securities firm, settled a sexual discrimination claim brought by
the EEOC on behalf of dozens of women for $54 million.206
Richard Berman, the judge in the Morgan Stanley case, described
the settlement as a “‘watershed [event] in protecting the rights of
women on Wall Street.’”207 Elizabeth Grossman, attorney for the
EEOC, hopes the consent decree will open other avenues of relief
for similarly situated women in the securities industry.208
Conversely, Pamela Martens, a former employee of the Wall
Street firm Smith Barney who benefited from a discrimination
settlement several years ago, was more skeptical.209 Martens
pointed out that $54 million is mere “pocket change” to a firm the
size of Morgan Stanley and asserted that the settlement “will do

discrimination settlements). Wal-Mart already provides diversity training for its
employees. See Estlund, supra note 168, at 6.
  204. Selmi, supra note 24, at 1268 (illustrating the limitations of the study but
emphasizing that it still “provide[s] significant insight into what changes the lawsuits
  205. See supra note 16 and accompanying text (reporting that Wal-Mart is the
“business template” of modern society).
  206. Kate Kelly & Colleen DeBaise, Morgan Stanley Settles Bias Suit for $54 Million,
WALL ST. J., July 13, 2004, at A1; Brooke A. Masters, Wall Street Sex-Bias Case Settled,
WASH. POST, July 13, 2004, at E1. For an interesting narrative on numerous cases of
sexual harassment in New York City’s financial district, see generally SUSAN ANTILLA,
  207. Kelly & DeBaise, supra note 206.
  208. Id.
  209. Id.
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‘absolutely nothing’ to change the [working] environment for the
women on Wall Street.”210
     Morgan Stanley’s settlement of $54 million is divided into an
award of $12 million to the lead plaintiff, Allison Schieffelin, $40
million for a claims fund for the other women who have been
discriminated against, and $2 million for a special training
program on sex discrimination and diversity. The training
program will include sessions in New York and London during
which management will consider its diversity plan.               The
antibias training “will address sexual harassment, sex-based
hostile environment and retaliation.”213
     Even though the Morgan Stanley decree appears promising,
it does not provide much more hope for lasting change in the
employment conditions of women on Wall Street than the
settlements analyzed by Selmi. Diversity training is becoming
increasingly common, with more than seventy percent of large
corporations implementing such programs in the last decade.214
Furthermore, Selmi cautions that the effects of diversity training
are “largely speculative” and that it is a “poor substitute for
structural reform.”       Like Morgan Stanley, all of the
aforementioned cases settled for millions of dollars. Despite the
hefty settlement amounts, the corporations’ stock prices were
barely affected, indicating that the settlements did not
sufficiently impact the corporations’ bottom lines, and, therefore,
did not provoke fervor within the corporations to instigate lasting

D. The Present: What’s Wal-Mart up To?

     Wal-Mart admits that either a negotiated settlement or an
adverse verdict on the merits would result in a material liability
to the company, and it is already taking steps to ward off the
negative public-relations impact of the lawsuit.216 For instance,

  210. Id. In early 2005, Wal-Mart settled an illegal immigrant employment lawsuit for
$11 million—mere pocket change for a corporation that had $288.2 billion in sales in
2004. Greenhouse, Wal-Mart to Pay U.S. $11 Million, supra note 156.
  211. Kelly & DeBaise, supra note 206.
  212. Frances A. McMorris, Wall Street Women Gain Ceiling-Cracking Settlement,
WOMEN’S E-NEWS, July 15, 2004,
  213. Id.
  214. See Selmi, supra note 24, at 1306 (recognizing the trend towards diversity
training as a response to discrimination litigation).
  215. Id. (analyzing the use of diversity initiatives in discrimination lawsuits).
  216. See WAL-MART STORES, INC., supra note 26, at 45 (divulging the potential
detrimental impact the Dukes case could have for Wal-Mart shareholders and recognizing
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Wal-Mart instigated a costly television advertising campaign in
early 2004 called “Good Jobs” that depicts women managers and
other happy “employees talking about how great it is to work at
Wal-Mart.”217 Further, on January 13, 2005, Wal-Mart took
additional steps to repair its image by placing full-page
advertisements in more than one hundred newspapers
nationwide defending its employment practices and contending it
provides good pay, benefits, and advancement opportunities.218
And by setting goals for improving diversity and basing
management bonuses on meeting these targets, Wal-Mart seems
to be indicating that it may actually enforce these objectives.219 In
fact, in 2003 Wal-Mart established an “Office of Diversity.”220 And
most importantly, Wal-Mart has changed its past practice and
now requires notices to be posted for management positions.221
Whether these measures actually result in concrete change in
employment opportunities for female Wal-Mart employees
remains to be seen.
     If the plaintiffs win on appeal and Dukes is settled or if the
plaintiffs are victorious at trial, the settlement or judgment
should require the continuation and enhancement of the changes
already instituted—namely, the posting of notices and pro-
women advertising. The job-posting requirement should be
written into any agreement and should provide “clear, written
specification of criteria for promotion.” Though some critics

that due to the uncertain size of a settlement or damages award at trial, “the company
cannot reasonably estimate the possible loss or range of loss which may arise from the
   217. MILLER, supra note 145, at 15; Andrew Leckey, Image Hitches Not Slowing Wal-
Mart, CHI. TRIB., Feb. 22, 2004, at C9. As part of its “reputation management” campaign,
Wal-Mart recently became a sponsor of the reality series “The Scholar,” which awards
scholarships to successful competitors. Stuart Elliott, Wal-Mart’s New Realm: Reality TV,
N.Y. TIMES, June 3, 2005, at C1.
   218. See Nat Ives, Wal-Mart and Eli Lilly Turn to Full-Page Ads to Address Their
Critics, N.Y. TIMES, Jan. 14, 2005, at C5 (reporting that Wal-Mart “went on the offensive
against [its] critics”).
   219. See Cora Daniels, Women vs. Wal-Mart, FORTUNE, July 21, 2003, at 78, 80
(reporting Wal-Mart chief executive officer H. Lee Scott’s comments at the 2003
shareholders’ meeting, in which he stated that “‘[e]veryone must be treated fairly, with
equal access to pay and promotion’”); Joyce, supra note 21 (recounting Scott’s comments
at the 2004 shareholders’ meeting that, “[t]he company will reduce executive bonuses by
up to 7.5 percent this year and 15 percent next year if the chain fails to promote women
and minorities in proportion to the number applying for management positions”).
   220. See Constance L. Hays, Social Issues Tug Wal-Mart in Differing Directions, N.Y.
TIMES, June 30, 2004, at C1.
   221. See Chandler, supra note 20 (noting that Plaintiffs’ attorney Irma Herrera said
that Wal-Mart began posting notices of management openings after the lawsuit was filed).
   222. Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 302 (N.D. Cal. 1992) (reporting
plaintiffs’ expert Dr. Bielby’s belief that the “implementation of a posting
system . . . would almost certainly lead to a substantial increase in qualified employees’
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argue that Wal-Mart’s recent advertising campaign is merely a
public-relations ploy and not representative of Wal-Mart’s true
corporate character, the advertising campaign should continue.
Even if Wal-Mart does not truly embrace the message such
advertisements send, other retailers, employers, and young
women across America will be impressed with the idea that
women are important and essential to employers—even giants
like Wal-Mart.

E. The Future: Making the Shoe Fit

     In the past, consent decrees resulting from employment
discrimination lawsuits “rarely require[d]” defendants to “modify
their existing practices” and any such changes were primarily
motivated by the defendant’s public-relations interests.223 The
Dukes plaintiffs, however, are hoping for extensive modification
of Wal-Mart’s current practices.224 Plaintiffs’ attorney Debra
Smith suggests the following changes: “objective criteria for
hiring standards, standardized job application processes, uniform
salary structures, fair evaluation systems, systematized training
available to all employees, posting of promotions, an external
diversity committee, and a complaints and harassment reporting
system.”225 In Stender v. Lucky Stores, Inc., Dr. Bielby noted that
“in order to minimize the effect of gender stereotypes, employers

pursuit of job advancement”).
   223. Selmi, supra note 24, at 1297; cf. Greenhouse, Wal-Mart to Pay U.S. $11
Million, supra note 156 (reporting that a settlement requiring “‘Wal-Mart to create an
internal program to ensure future compliance with immigration laws’” was “‘break[ing]
new ground’” (quoting the Assistant Secretary of the Department of Homeland Security,
Michael J. Garcia)). Even though Wal-Mart has already started addressing potential
public-relations problems brought about by the Dukes litigation, the negative publicity
received from the lawsuit may not have a significant impact on Wal-Mart. The public has
historically not viewed claims of discrimination against women to be as egregious as
claims of racial discrimination. Selmi, supra note 24, at 1288–89 (“While there is a clear
societal consensus against race discrimination—and no company wants to be labeled as
racist—there is far less of a consensus regarding sex discrimination, particularly when
that discrimination is based on common stereotypes.”). Furthermore, because of its low
prices, women may continue to shop at Wal-Mart despite its alleged discriminatory
employment practices. Wal-Mart chief executive officer H. Lee Scott boasts that it is
difficult for people to change their shopping habits as shoppers’ “wallets will continue to
voice support for Wal-Mart’s low prices.” Lorrie Grant, Retail Giant Wal-Mart Faces
Challenges on Many Fronts, USA TODAY, Nov. 11, 2003, at B1.
   224. See supra notes 22–23 and accompanying text (reporting plaintiffs Stephanie
Odle and Betty Dukes’s hopes of equal pay and greater opportunities for women as a
result of their class action).
   225. Ritu Bhatnagar, Recent Development, Dukes v. Wal-Mart as a Catalyst for
Social Activism, 19 BERKELEY WOMEN’S L.J. 246, 253–54 (2004). Plaintiffs’ attorney Debra
Smith discussed these factors with Ms. Bhatnagar during a telephone interview. Id. at
254 n.76.
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should use employment practices that specify criteria for decision
making, that provide accurate information about applicants, and
that hold decision makers responsible.”226 The next section will
expand upon several items in the plaintiffs’ carefully considered
list of changes Wal-Mart should institute and will recommend
additional items calculated to remedy the discrimination
currently encountered by Wal-Mart’s female employees. These
recommendations take into account the ineffectiveness of the
previously discussed employment class action cases and the
effectiveness of collective-bargaining agreements in unionized

      1. Expansion of Employment Opportunities for Wal-Mart
Women. Changes in hiring, pay, and promotion criteria promise
to give women more employment opportunities at Wal-Mart.
With “objective criteria for hiring standards, standardized job
application processes, [and] uniform salary structures,”227 the
individual biases of store managers would not be a factor in
hiring decisions, and the subjectivity currently allowed in
determining pay rates would cease to exist. Instead, everyone
would have an equal chance to be hired, and everyone would be
paid the same. While a total separation between subjective and
objective criteria may not be possible, a hiring system based on
objective criteria, determined by considering what the job
requires as opposed to the type of person the manager wishes to
fill the job, would produce more equitable results for women.228
For instance, in determining the objective criteria for a certain
position, the following factors should be considered:
     (1) purpose—the reason for the job, (2) essential functions—
     the job duties which are critical or fundamental to the
     performance of the job, (3) job setting—the work station
     and conditions where the essential functions are performed,
     and (4) job qualifications—the minimal skills an individual
     must possess to perform the essential functions.
     Posting all available positions and systematically training
employees, as suggested by Smith, would be a step in the right
direction towards ending “tap on the shoulder” promotions.

  226. 803 F. Supp. 259, 303 (N.D. Cal. 1992).
  227. See Bhatnagar, supra note 225, at 254 (quoting plaintiffs’ attorney Debra
odep/pubs/fact/analysis.htm (illustrating how to make employment decisions based on
objective criteria).
  229. Id.
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Further, Wal-Mart should be required to post notices of the
training required to advance into management, and, if it is
impractical to allow all employees access to the desired training,
Wal-Mart should allow employees to attend such sessions on a
seniority basis. The plaintiffs should also consider Home Depot’s
in-store system for bidding on promotions, “[which] requires
managers to interview at least three candidates for every
position.”230 Certainly, requiring objective criteria for each
position would help create a fair promotion process for everyone.
     Some aspects common to union contracts are also instructive
in this area, especially considering the success unions have had
in narrowing the wage gap between men and women. Many of
these provisions, if worked into a settlement or mandated by a
judgment, could result in lasting change for the women who work
at Wal-Mart, and indirect change for all nonunionized women
who work in the retail industry.
     First, many union contracts contain a provision requiring
management to consider seniority as a primary variable in
promotion decisions.231 If store managers consider seniority first,
women will have a greater chance for promotions—even if store
managers were to maintain a great deal of subjectivity in their
ultimate selections.
     Second, a provision common to union contracts that requires
standardized pay, at least for entry-level positions, would be an
excellent stepping stone to pay equality.232 Store managers should
not have the discretion to pay men more. Admittedly, Wal-Mart
may need some flexibility in pay rates in order to acquire outside
talent for certain managerial positions, but this could be
accomplished via sign-on bonuses and is not usually an issue for
nonsalaried employees.

     2. Diversity Task Force. The demand made by the Dukes
plaintiffs for an “external diversity committee, and a complaints
and harassment reporting system” should ensure that Wal-
Mart is held accountable for any changes required by a judicial
settlement. In previous settlements, this type of committee has

  230. See Selmi, supra note 24, at 1287 (describing Home Depot’s “primary
innovations” after its discrimination lawsuit).
  231. See supra note 134 and accompanying text (noting that union contracts
generally contain seniority provisions).
  232. See supra note 225 and accompanying text (recognizing the plaintiffs’ desire for
“uniform salary structures”).
  233. Bhatnagar, supra note 225, at 254 (quoting plaintiffs’ attorney Smith on
possible requests for injunctive relief).
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been called a “diversity task force.”234 When Coca-Cola settled a
race discrimination class action for $192.5 million, for example, a
task force was created that had “the power to make binding
recommendations and to investigate and monitor diversity
     As noted previously, Wal-Mart has, on its own, created an
“Office of Diversity” subsequent to the filing of the Dukes
lawsuit. The office is headed by a female chief, and Wal-Mart
claims “[h]er team serves as the company’s focal point for
diversity initiatives that place Wal-Mart among corporate
leaders in this regard.”237 However, it is imperative that the task
force not become “an arm of the company,” and an “Office of
Diversity” created, paid, and accountable to Wal-Mart is
certainly an “arm” of Wal-Mart. In order to avoid this, Selmi
recommends that the court “appoint an independent monitor to
oversee implementation of the consent decree”239 and suggests
that the monitor’s fee should be an adequate hourly fee
determined by the court.          These suggestions, with slight
modifications, should “fit” nicely into a Wal-Mart settlement.
     First, with a company the size of Wal-Mart, one outside
monitor will probably not be sufficient. It will likely be necessary
to appoint a team of monitors, perhaps one for each federal
circuit, who meet periodically to discuss Wal-Mart’s progress.
Second, the team should not be compensated by Wal-Mart, but
rather from the settlement funds, and team members should be
paid an hourly rate. Further, the team should be directly
accountable to Judge Jenkins, or a magistrate appointed by him,
so they will not feel as though they are working for Wal-Mart.242

   234. See Selmi, supra note 24, at 1324 (declaring that “[d]iversity task forces have
become one of the primary means of implementing and enforcing settlement
   235. Year 2000 in Review: Employee Discrimination Class-Actions on the Rise and
UPDATE (Thelen Reid & Priest LLP, New York, N.Y.), Feb. 2001, http://www.thelenreid.
   236. See Diversity Fact Sheet, supra note 168.
   237. Id.
   238. Selmi, supra note 24, at 1324.
   239. Id. at 1327 (applauding the three-person team task force used in the settlement
of EEOC v. Mitsubishi, 990 F. Supp. 1059 (C.D. Ill. 1998)).
   240. See id. at 1328 (instructing that the fee should “provide an adequate incentive
for the monitor to oversee the process and for the defendants to provide meaningful and
expeditious reform”).
   241. Id.
   242. See id. (suggesting that the court could appoint a magistrate to conduct “a
serious review of the terms of the settlement”). Selmi further recommends, as a proposal
for reform, appointing the EEOC or a nonprofit agency to monitor the consent decree. Id.
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Otherwise, the team may end up becoming more like a public-
relations group for Wal-Mart rather than a group raising real
issues that Wal-Mart needs to address.243
     This particular case may not pose the same difficulty with
ensuring accountability that Selmi encountered in his case
studies. One of the main problems he found with the Texaco
settlement was that, after the negative publicity died down, there
was no incentive for Texaco to meet the goals it had set for itself.
The attorneys and plaintiffs were no longer involved, and
instead, the diversity task force, which was paid by Texaco, was
entirely responsible for ensuring Texaco lived up to its bargain.244
Conversely, in Dukes, if a diversity team is appointed by the
judge and compensated out of the settlement funds, many of
these issues will be moot. Additionally, the plaintiffs’ attorneys
will more than likely not abandon involvement as soon as the
settlement is reached, mainly because three of the firms
representing the Dukes plaintiffs are public interest law firms.245
Thus, they are not involved for financial rewards, but rather to
instigate lasting change in the way Wal-Mart treats its female

      3. Judicial Oversight. Relief aimed at changing Wal-Mart’s
treatment of its female employees will require the judiciary to delve
substantially into Wal-Mart’s business practices. In fact, plaintiffs’
attorney Smith stresses, “‘[y]ou always want the court to retain
jurisdiction, so if problems are arising, you can go to the court and
say, “this is not working,” and try some other type of injunctive
relief.’” Generally, judges will not order the “kinds of institutional
controls necessary to improve employment opportunities for
women,”        possibly because they consider it undue judicial

at 1330–31.
  243. See id. at 1325 (discussing the diversity industry). Selmi notes that “there has
not been a single substantial issue or objection raised by either a diversity task force or
any of the plaintiffs’ attorneys in any of the cases discussed” in his article. Id. Any team or
task force appointed in the Dukes litigation must be willing to ripple the waters and help
implement meaningful change.
  244. See id. at 1280 (criticizing Texaco’s lack of progress).
  245. See Attorney Profiles, Wal-Mart Class Website, (last visited Oct. 1,
2005) (listing the plaintiffs’ attorneys for Dukes, which include three nonprofit firms: The
Impact Fund, Equal Rights Advocates, and the Public Justice Center). Attorney Joseph
Sellers said, “Our clients got into this [lawsuit] seeking to change the way they [Wal-
Mart] do business . . . . We would never settle for just money.” Steven Greenhouse &
Constance L. Hays, Wal-Mart Sex-Bias Suit Given Class-Action Status, N.Y. TIMES, June
23, 2004, at A1.
  246. Bhatnagar, supra note 225, at 254.
  247. Yelnosky, supra note 125, at 594–95.
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2005]                     SHOPPING FOR A VOICE                                      879

interference with business decisions, and thus “outside the scope of
proper judicial authority.”248 Perhaps Judge Jenkins, in approving
this historically large class,249 has decided to step beyond these self-
imposed boundaries of the judiciary to force change on Wal-Mart;
after all, with Wal-Mart being the “business template” of
contemporary society, what better chance will the judiciary have to
ensure businesses understand that they cannot blatantly violate
Title VII? Should the case go to trial and the plaintiffs prevail,
Judge Jenkins has the opportunity to fashion remedies that will
make an enormous impact on the future of working women.
Similarly, even if the case settles before trial, Judge Jenkins will
have the same opportunity in his approval of disapproval—should
the plaintiffs decide to settle for less than system-wide change—of
the agreement. Unlike the women who perished in the Triangle
Shirtwaist Factory fire, the Wal-Mart women have the opportunity
to change the problems modern women encounter in the workplace.
Judge Jenkins’s decision to certify the Dukes class is the first
droplet in the fire hose that may extinguish the flames of sexual
discrimination in the workplace.

                                 V. CONCLUSION
     Wal-Mart must be required to use its resources to ensure a
fair employment experience for its female employees. After all,
Wal-Mart is able to control everything else from Bentonville—
from the music to the temperature in individual stores. Why does
Wal-Mart maintain such centralized control? Because it helps
Wal-Mart’s profit margin, or, in colloquial terms, the bottom line.
Wal-Mart does not use its centralized control to prohibit store
managers from discriminating against women; instead, it allows
store managers the discretion not to promote deserving women
and not to pay female associates as much as their male
counterparts. Why? Because it might have an adverse impact on
the bottom line. However, Wal-Mart needs to see a new bottom
line. It must realize that women are essential to its continued
success and that, in the United States of America, treating

  248. Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations
of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest
Argument, 103 HARV. L. REV. 1749, 1842 (1990).
  249. See ABA Conference Gives Lawyers Insight into Key Issues in Class Litigation,
73 U.S.L.W. 2255 (Nov. 2, 2004) (relaying the remarks of Professor John C. Coffee, Jr. at
the American Bar Association’s Eighth Annual National Institute on Class Actions during
which he described Dukes v. Wal-Mart Stores as “the most important class certification
case of the year”).
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women differently than men is against the law and will not be
     Admittedly, Wal-Mart is making strides to correct the issues
raised by the litigants in this case, even if only in response to the
ensuing negative publicity. One would hope these changes will at
least partially reach the root of the problem—Wal-Mart’s
corporate culture. However, the settlement or judgment should
go further. Though it may not be possible to achieve all the
benefits of a favorable collective-bargaining agreement, if the
plaintiffs negotiate for and attain concessions similar to
provisions found in many union contracts together with the
injunctive relief recommendations outlined above, class action
litigation could prove to be a sound alternative to unionization
for alleviating sexual discrimination in the workplace. The Wal-
Mart women will have “save[d] themselves” with a modern,
“strong working-class movement.”            Indeed, the “shoe the
plaintiffs decided to buy,” class action litigation, has the potential
to take the place of unionization in remedying discriminatory
employment practices by leading to definite structural changes
within the system that will mold the culture in the shape it needs
to take for the twenty-first century—a shape that accepts women
as equals to men and realizes, as Sam Walton said so long ago,
that “women make great retailers.”252

                                                                 Anna M. Archer

   250. See 42 U.S.C. § 2000e-2(a) (2000) (mandating that it “shall be an unlawful
employment practice for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment because of
such individual’s . . . sex”).
   251. See supra note 4 and accompanying text (quoting Rose Schneiderman’s response
to the Triangle Shirtwaist Factory fire).
   252. WALTON, supra note 89, at 218.