Thursday, October 27, 2011

The Wal-Mart chronicles: part II (looking forward)

Last week, I wrote about how the the U.S. Supreme Court rejected the Ninth Circuit’s certification of a class in a class action sex discrimination lawsuit brought by current and former female employees of Wal-Mart against the superstore. (See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010).) Although the class action failed, the company continues to deal with the possibility of individual claims of sex discrimination.

In the wake of this public relations nightmare, the superstore is going to great lengths to re-brand itself as female-friendly. On Wednesday, September 14th, Wal-Mart announced new programs aimed at helping women-owned businesses and women workers. According to an article in the Los Angeles Times, Wal-Mart Chief Executive Mike Duke voiced the company's party line when he stated that Wal-Mart "want[s] women to view us as a retailer that is relevant to them and cares about them . . . [wants women] to be leading suppliers, managers and loyal customers."

Loyal customers perhaps most of all. Leslie A. Dach, executive vice president of corporate affairs for Wal-Mart, additionally noted that the vast majority of Wal-Mart’s customers are women. According to Slate, most of Wal-Mart’s 200 million weekly customers are women, and women control $20 trillion in annual consumer spending.

Accordingly, Wal-Mart has developed five goals designed to help empower women across its supply chain. These goals, which the store hopes to accomplish by 2016, are:

1. “Increase sourcing from women-owned businesses.” Over the next five years, the company will source $20 billion from women-owned businesses in the U.S. That works out to $4 billion a year, a $1.5 billion increase from current annual sourcing from like businesses.

2. “Empower women on farms and factories through training, market access and career opportunities.”

3. “Empower women through job training and education.” Domestically, Wal-Mart will help 200,000 women from low income households to “gain job skills” and “access higher education.” Internationally, Wal-Mart will help 200,000 women through “successful retail training programs.”

4. “Increase gender diversity among major suppliers.” Wal-Mart intends to work with its professional service firms and major supplies to increase female and minority representation on Wal-Mart accounts.

5. “Make significant philanthropic giving toward women’s economic empowerment.” The company will support the above-listed programs with over $100 million in grants that will drive progress against economic goals.

Additionally, the company has established country-specific goals in those international markets in which it operates. For example, Wal-Mart China is “helping women farmers make their agricultural operations more sustainable and productive through its direct farm program.” In Brazil Wal-Mart is, apparently, hiring female construction workers to build it’s new superstores.

More information about these programs can be found here.

One needs only to watch the beautifully produced and absurdly predictable promotional webcast announcing the women’s initiatives to surmise that Wal-Mart’s first priority is probably its own public image, and not women’s well-being. That said, whatever the motivation, these programs seem admirable. A substitute for treating its domestic workers equitably? No. But admirable nonetheless.

In short, it’s hard to find fault with someone pledging billions of dollars to women’s issues. And so I sat, trying to find fault with Wal-Mart, but feeling on whole surprisingly positive toward the company. (The promotional video is working!)

Finally, though, I did think of one problem. The trouble with trying to help “women,” broadly, is that – as Wal-Mart’s promotional video actually makes clear – women are in such different situations worldwide. (See Katharine Bartlett and Deborah Rhode's chapter in the book Gender and the Law on non-essentialism.) In certain communities mentioned in the video, like China, throwing money at inequality through literacy programs and sex education classes will probably have a positive influence on both first-wave issues such as attaining legal rights and third-wave issues such as how men perceive women within that culture. But in other communities discussed, such as Arkansas, throwing money at the problem may not change either of these things. In those places, it may not be law or financing but our common social philosophy that needs to change.

No matter how hard it tries, corporate policy can't dictate national or regional culture. At the end of the day, it seems that Wal-Mart's problem may be, fundamentally, all of our problem.


hanestagless said...

First, in case you haven’t heard already, the attorneys who filed the original class action are now taking a state-by-state strategy. In the past few days, they filed complaints in federal courts in California and Texas. This time the attorneys are “drafting more detailed and tailored lawsuits.” We will have to wait and see whether they will have more success.

My initial thought turns to how the Court discounted the plaintiff’s anecdotal evidence in the original class action. The majority suggested that they are not focused on the proportion of the number of anecdotes to the class size. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 n.9 (2011). Nonetheless, they do compare the plaintiff’s ratio of anecdotes to class members (1 for every 12,500 class members) to that in a racial discrimination case (1 for every 8). Id. at 2556 (citing Teamsters v. United States, 431 U.S. 324 (1977)). Furthermore, the majority noted that the complaints were concentrated in Alabama, California, Florida, Missouri, Texas, and Wisconsin. Id. Perhaps by narrowing the class to increase the anecdote-to-class-size ratio, the plaintiffs will finally get their day in court. As silly as this seems, the Court created this scenario.

Second, I agree with you, Rose Sawyer, that it’s hard to criticize a company making a substantial effort (AKA spending billions of dollars) to help women. I’m with you in applauding their efforts.

However, I would like to see Wal-Mart continue to make substantive changes to its pay and promotions policies. I appreciate a business’s decision to give local managers discretion in such decisions. This is necessary for a company that operates on as large a scale as Wal-Mart does. But, a company should still proactively reduce gender discrimination. Now, Wal-Mart has statistical evidence that there is gender discrimination in effect within its company. Their discretion policy allows local managers to make pay and promotion decisions that increase gender disparities. Merely saying that they have an anti-gender discrimination policy does not seem to be enough. The Court missed an opportunity to encourage companies to adopt better practices to reduce gender discrimination. Hopefully after all the negatively publicity and in addition to their new women’s empowerment initiative, they will take further measures to reverse gender discrimination in employment. I admit I’m blindly optimistic, but if Wal-Mart makes the effort, perhaps other companies will follow suit.

tomindavis said...

The practical effect of a company with as much as power as Wal-Mart deciding to institute far-reaching policies such as the ones they rolled out, is that women are empowered and given greater opportunities as managers, employees, and customers. That, as you indicate, is not for nothing.

Yet it is clear that this is still a success for them. An impressive PR campaign, no matter how sincere it appears, is at heart a disingenuous shell game to divert attention away from a Supreme Court class action that makes it much harder for women employees to bring a suit alleging widespread patterns of sex-based discrimination. To me, these PR campaigns are nothing more than kicking someone out of the house he worked hard to build, only to turn around and build a homeless shelter in the town. There's a remedy, but it is does not address the right wrong.

I am encouraged that the plaintiffs' lawyers have taken a more state-specific strategy moving forward. I am also encouraged that SCOTUS made that possible by seeming to demand a higher ration of anecdote-to-class member. Nice blog post.