Business Ethics Employment Discrimination

EMPLOYMENT DISCRIMINATION Don A. Darden Jr. Employment Discrimination Professor Clay May 15, 2010 In 2004 a federal judge expanded a lawsuit filed by six California women to a class action against America’s single largest employer and the world’s largest retailer, Wal-Mart. Since then, the case has mushroomed to cover 1. 6 million women Wal-Mart workers, who were employed nationwide since 1988. This by far is the largest class action in U. S. history. The article looks at two important questions: How will liability be determined?

And, What can other employers learn from this? Judge Martin Jenkins indicated that Wal-Mart had failed to dispute the plaintiffs evidence that women were paid less than men in every region and in most job categories; that the salary gap widens over time even for employees hired into the same jobs; that women take longer to reach management positions; and that the higher one looks in the organization, the lower the percentage of women. Other facts cited by the plaintiffs allege that two-thirds of the company’s 1. 2 million U. S. orkers are women, but only one-third of all managers and only 14 percent of store managers are women. As a comparison, on average, 60 per cent of the managers in general merchandise stores are women. But although these appear to be facts, none prove that there was ever any intentional, systematic bias. However, Judge Jenkins stated that they support an inference that Wal-Mart engages in discriminatory practices, and that in itself is major. Wal-Mart’s defense is that the inequalities between its male and female employees have nothing to do with unlawful discrimination.

What’s interesting is that typically most companies would argue that women were not interested in or at least on some level not qualified for the higher paying jobs, and that appears to be the defenses Wal-Mart has indicated it will use. It’s obvious that these women felt and even experienced some form of discrimination while working at Wal-Mart. Interestingly enough, the same team of lawyers and experts who represented the plaintiffs in this case, represented other plaintiffs in a gender discrimination class action against Home Depot, which the company eventually settled for $104. million and an agreement to make significant changes in its treatment of female employees. Like Wal-Mart, Home Depot argued that women were uninterested in and in most cases unqualified for the higher paid jobs. Talk about a strategy. The Home Depot case never went to trial because many experts were ready to submit that prejudice was the real reason for the difference in pay and positions between men and women. It would appear within these types of organizations there are features of the organizational culture that allow gender stereotypes to influence job assignments, training, or promotions.

Some of the investigations conducted revealed an incentive and motivational system that failed to promote or reward bias-free decision-making. These investigations also showed the existence of gender-segregated job ladders or career paths. That’s why there is such a strong effort to develop similar evidence, much of it depending on sophisticated statistical analyses, to prove gender discrimination at Wal-Mart. Wal-Mart is not the only one experiencing problems with discrimination.

Home Depot, Lucky Stores, Smith Barney, and a number of other prominent employers who have chosen to settle gender discrimination lawsuits will eventually settle; this according to the prediction of many knowledgeable observers. Wal-Mart is famous for its tough stance in discrimination cases, and it remains to be seen just how long it will litigate this one. It’s even possible it could choose to go to trial, if it can’t get the class action declaration reversed. I discovered that although both sides prepare their evidence as if there will be a trial, very few class action cases ever go to trial.

There are some lessons for employers. The most reliable way for an employer to determine its vulnerability to a class action lawsuit is to gather for itself the same statistical data that plaintiffs would use. Disparities in opportunities and outcomes may be due to lawful factors, such as differences in education. But employers need to beware of making assumptions about these differences that are unsupported by objective evidence. Employee surveys are another tool for discovering the potential risk of a class action lawsuit.

Survey questions such as those that follow (when correlated to data on the respondents gender, age, and ethnicity) may uncover areas of concern. These questions in these surveys are intended to be answered on a scale of 1 to 5, from strongly agree to strongly disagree. There are those who would say that women employees do not encounter any barriers to opportunity or advancement due to their gender. Others believe that African American employees who have the same qualifications and experience are just as likely to be promoted as employees of other ethnic groups.

If self-analysis uncovers indefensible disparities in opportunities and outcomes for women or any other group based on immutable characteristics, the company would need to make substantial changes in its practices and perhaps its culture changes which some organizations prefer not to make, regardless of the liability risk. On the other hand, audits and surveys can provide reassurance that the employer is fulfilling its obligation to provide equal employment opportunities and, most likely, also getting a higher level of productivity and performance from all its employees.

One of the greatest tools available to employers is the ability to train their employees on discrimination through online resources for organizations. There are so many available to employers. That’s because training reduces exposure, and discrimination is a sensitive and costly problem that is becoming all too common in many workplaces. By providing discrimination prevention training to employees and managers on a regular basis, and managers reduce their organization’s exposure to this costly problem and creates a safer workplace. References Myron Curry, President and CEO of BusinessTrainingMedia. com, Copyright -2004

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