The whole retail industry breathed a collective sigh of relief recently when the U.S. Supreme Court rendered a decision in June not to hear a gender wage inequity case as a "class-action suit" against Walmart. The case was focused on whether or not the largest employer in the world could be accused in civil court with collectively discriminating against numerous women in many different states. All these suits alleged that the plaintiffs were not paid equitably when compared to their male counterparts. If the case had gone forward as a class-action lawsuit, this ruling would have set a major precedent encouraging numerous other similar class-action lawsuits to be lodged against other retailers and large employers.
The Judges' Opinions
As background to this decision, in The New York Times on June 20, 2011, Adam Liptak reported the following:
The Supreme Court on Monday threw out an enormous employment discrimination class-action suit against Wal-Mart [sic] that had sought billions of dollars on behalf of as many as 1.5 million female workers. The suit claimed that Wal-Mart's policies and practices had led to countless discriminatory decisions over pay and promotions. The court divided 5 to 4 along ideological lines on the basic question in the case—whether the suit satisfied a requirement of the class-action rules that "there are questions of law or fact common to the class" of female employees. The court's five more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions. The court was unanimous, however, in saying that the plaintiffs' lawyers had improperly sued under a part of the class-action rules that was not primarily concerned with monetary claims. The plaintiffs sought to make that case with testimony from William T. Bielby, a sociologist specializing in social framework analysis. Professor Bielby told a lower court that he had collected general "scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations." He said he also had reviewed extensive litigation materials gathered by the lawyers in the case. He concluded that Wal-Mart's culture might foster pay and other disparities through a centralized personnel policy that allowed for subjective decisions by local managers. Such practices, he argued, allowed stereotypes to sway personnel choices, making "decisions about compensation and promotion vulnerable to gender bias."
Justice Scalia rejected the testimony, which he called crucial to the plaintiffs' case. "It is worlds away," he wrote, "from 'significant proof' that Wal-Mart 'operated under a general policy of discrimination.' " Although she agreed with her colleagues in the unanimous decision that this petition was not worthy of a class-action treatment, Justice Ruth Bader Ginsburg pointed out that both the statistics presented by the plaintiffs and their individual accounts were evidence that "gender bias suffused Wal-Mart's corporate culture." She said, for instance, that women filled 70 percent of the hourly jobs, but only 33 percent of management positions and that "senior management often refer to female associates as 'little Janie Qs.' " Justice Ginsburg went on to say, "The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects," she wrote. "Managers, like all humankind, may be prey to biases of which they are unaware."
Discrimination-Free Workplace
In my opinion, perhaps the most remarkable aspect of this decision is not the refusal of the Supreme Court to hear this case as a class action. Based upon the facts of the petition, it is quite understandable that the justices concluded that all these many cases were not sufficiently similar or identical. Instead, to me the most alarming part of this decision is the mere fact that there are still scores of cases based upon gender wage discrimination being filed against major retail firms. If wage inequity still exists on such a broad scale in the industry, despite our many years of effort to increase diversity and fairness, then we are a long way from a discrimination-free workplace.
As professionals charged with addressing the underlying causes of employee theft, we should recognize that this situation creates the perfect environment for encouraging minority retail associates to take informal action on their own to correct perceived workplace inequity. In other words, gender...or racial and ethnic...wage inequity creates a social climate that encourages pilferage, theft, dishonesty, and counterproductive behavior to be rationalized as a justified response in the mind of these employees. This means that the seeds of employee dishonesty may still be present in many companies and workplaces all across the land. I hope that most readers of this column will agree that this is not a healthy situation.
Perceptions of Retail Careers
When I ask the twenty-something aged college students enrolled in my classes, especially women, racial, and ethnic minorities, whether they are receptive to working in retail, their first answer is usually in the affirmative. In fact, many are already working part-time jobs in either retailing or the food-service industry. "Yes" remains their answer until you ask them if they wish to continue working in retail after receiving their college degrees. Then the answer usually changes to a strong "no."
Like it or not, retail sales as well as retail loss prevention are not viewed by most college students as an occupation worth pursuing. In fact, most people view retailing as a temporary job, not for permanent employment or a long-term career. This tells me that retailing still has not created a climate that encourages long-term commitment, honesty, and ethical behavior. For many retail associates, who feel they have little or no power in the work organization, we are creating exactly the opposite environment.
It was Albert Einstein who defined insanity as "doing the same thing over and over again, but expecting different results." Should those of us in loss prevention and retail management be expecting different results when we continue to treat our employees as temporary or marginal workers? If so, perhaps we should not be surprised if they decide that stealing from their employers is a perfectly justified response to an unsatisfactory workplace situation.
