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Walmart's gender bias must not be tolerated

By Kirk Caldwell

LAST UPDATED: 2:23 p.m. HST, Aug 5, 2011

The United States Supreme Court recently issued a sweeping decision that set pay equality for women back by at least a decade.

It took that long to get the 1.5 million women class action lawsuit known as Wal-Mart v. Dukes to be heard and decided by the highest court in the land.

It is an extremely disappointing decision for those who see pay equality and job promotion based on ability and not gender as an ongoing civil rights battle in our country.

Justice Antonin Scalia, one of the most conservative members of the court, wrote the majority opinion for the court's five conservatives, all of them men. He said that the 1.5 million women employed by Walmart, our nation's largest employer, did not have sufficient "glue" to hold them together as a class to sue Walmart as a single group.

Alex Kozinski, chief judge of the U.S. Court of Appeals for the Ninth Circuit, said the Walmart women "have little in common but their sex and this lawsuit." He said this in his dissenting opinion to the 9th Circuit's decision to certify the class which led to Walmart's appeal to the U.S. Supreme Court.

This statement demonstrates the inability or unwillingness by some of the men who sit on our nation's highest courts to understand the plight of women in the fight for pay equality.

Justice Scalia based his opinion on the fact that Walmart lacked a centralized policy for hiring and promoting its employees and that personnel decisions were left to its managers at each store level; that means there was no uniform discrimination.

Justice Ruth Bader Ginsburg, writing the dissenting opinion for the three women who sit on the high court and Justice Stephen Breyer, said, "(m)anagers, like all human kind, may be prey to biases to which they are unaware."

What about unspoken bias and unwritten policies? To say they don't exist is a failure to recognize the human condition.

The consequence of the Supreme Court's decision is that it forces these 1.5 million <t-6>Walmart<t$> women to sue in smaller classes, perhaps store-by-store or as individuals. Not only will this be much more expensive for these women in terms of legal fees, but they will have to fight alone against one of the nation's largest corporate giants. What chance will they have? In all probability, their efforts and costs will result in lawsuits not being pursued and justice not being done.

What can Hawaii do? Next session, the state Legislature can once again introduce, and this time pass, legislation ensuring full gender equity for the working women of our state.

We, as consumers, can act now and send a message to Walmart in Hawaii that discrimination against its women employees, whether intentional or not, must be stopped, and, until it is, we will not shop at Walmart.

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