Dukes v. Wal-Mart: New Evidence that Wal-Mart Knew of Gender Disparities in Mid-90s

Steven Greenhouse has an article in the New York Times Thursday about a new development in the Dukes v. Wal-Mart class action--a confidential report was leaked to the Times. Apparently, Wal-Mart hired Akin Gump Strauss Hauer & Feld to analyze the business for vulnerability to discrimination actions. The firm submitted a report warning Wal-Mart that it had serious gender disparities in pay and promotion, and it recommended the company take steps like posting for promotions. From the story,

The 1995 report said that women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women. By one measure, the law firm found, men were five and a half times as likely as women to be promoted into salaried, management positions.

Without significant changes, the lawyers said in their confidential analysis, Wal-Mart “would find it difficult to fashion a persuasive explanation for disproportionate employment patterns.”

There's quite a bit more that sounds rather damaging at least to Wal-Mart's reputation. Read the full story if you're interested. Despite that, it's not likely that the report could be used as evidence at trial, since it's likely attorney work product, and Wal-Mart challenges the accuracy and relevance if the report in any case.

I had the chance to discuss this case with several amazing scholars this past Sunday at the Law and Society annual meeting. Beth Burch (Florida State), Lesley Wexler (Illinois), Zak Kramer (Arizona State), and Bill Bielby (U of Illinois at Chicago, Sociology) all spoke on various aspects of the case, and the audience held several additional folks who have written in this area, like Laura Beth Nielsen (American Bar Foundation/Northwestern, Sociology). part of our discussion focused on the likelihood of settlement in this case. I imagine that enough negative PR will eventually create an incentive. The question is whether this will add significantly to that.

MM