Does Gender Matter...Exploring Workplace Gender Discrimination

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Retail giant Wal-Mart has been in the news recently, and it isn’t because of their uncanny penchant for slashing prices.  The company is currently embroiled in numerous legal battles over its labor practices, including the largest federal class-action lawsuit in U.S. history, involving 1.6 million women charging gender discrimination.

The suit charges that Wal-Mart discriminates against its female employees in promotions, compensation, and job assignments, in violation of Title VII of the Civil Rights Act of 1964 (Title VII).  Charges stem from the fact that although women comprise over 72% of Wal-Mart’s workforce, men hold 90% of the managerial positions.  In addition, less than one-third of overall store management is female, far less than Wal-Mart’s major competitors. The lawsuit further notes that there is only one woman among Wal-Mart’s 20 top officers.   

In addition to these charges, Connecticut Democratic Rep. Rosa DeLaura claims in her own letter addressed to Wal-Mart’s executive board that Wal-Mart’s female hourly employees are paid 40 cents less an hour than male employees.  In addition, Wal-Mart pays female managers nearly $5,000 less a year than their male counterparts for the same work.  This information has been factored into the larger lawsuit.

The result has been a public relations nightmare for Wal-Mart, who has been on the receiving end of numerous protests, most notably from members of the “Wake-Up Wal-Mart” campaign.  In addition to the protests, Wal-Mart shareholders have also created their own set of human resource demands.  As reported by Lana Flowers in the article, “Shareholders Want Wal-Mart to Treat Minorities, Women Better,” shareholders as diverse as the Teamsters, religious organizations, and the Amalgamated Bank of New York City want the world’s largest retailer to institute policies that will encourage the fair treatment of female and minority employees. 

“Gender discrimination is alive and well across all sectors of the U.S. economy and working families are paying the price,” said Dr. Martha Burk, Chair of the National Council of Women’s Organizations (NCWO), a coalition of more than 200 organizations that collectively represent more than 10 million women.  Based in Washington, D.C., the NCWO focuses on U.S. companies, including Wal-Mart, which NCWO believes discriminate against women in pay, promotion, stock options, and other types of compensation.

Can an employer treat female employees differently than male employees and still comply with federal "equal treatment" requirements?  

In another headline-making lawsuit, restaurant chain Hooters, famous for their "Hooters Girls," was brought up on discrimination charges for refusing to hire men. The outcome of the case changed the face of Hooters forever.  “Hooters refused to hire men and claimed the restaurant was providing ‘vicarious sexual recreation’ as a way to argue that female allure was a bona fide occupational qualification. The court noted that this ploy might have worked except for Hooters’ advertisements that it was a ‘family’ restaurant. In one class action, Hooters agreed to pay $2 million to the males who were denied the opportunity to serve as ‘Hooters Girls,’ paid $1.75 million in attorneys’ fees, and was ordered to create three gender-neutral positions. ‘Hooters Girls’ are now assisted by ‘Hooters Persons,’” explained Alan L. Rupe in the Workforce Management article, “Legal Gender Bending.”

How can employers avoid gender discrimination problems in the first place?  In the article, “Wal-Mart Class Action Gender Case Holds Warnings for All Employers,” Myron Curry, President and CEO of BusinessTrainingMedia.com states that “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. If the data show that, for example, fewer women are in higher-paying jobs than men, this is cause for further analysis. Are the rates what would be predicted based on the availability of qualified workers in the local labor pool? Are the rates in accordance with workers’ skills and experience regardless of their gender, etc.? 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 opinion surveys are another way for employers to discover any potential risk of gender discrimination lawsuits. Once survey questions are correlated to respondents’ gender, the results may reveal areas of concern.  “An employee survey can be used to gain feedback about a wide variety of issues, as well as uncover any feelings of gender discrimination.  A survey enables HR to pinpoint what's amiss and take the necessary steps to correct any possible problems,” explained Jennifer C. Loftus, SPHR, CCP, CBP, GRP, National Director, Astron Solutions.   

As for Wal-Mart, they have recently taken steps to foster diversity within their organization.  In October 2004, Wal-Mart hired Lawrence V. Jackson as their new Chief Human Resources Officer.  According to the Workforce Management article “Wal-Mart’s Man with a Mission,” Jackson will head up Wal-Mart’s Office of Diversity, in addition to being responsible for the company’s planning, training, executive development, recruiting, succession planning, human resources technology, culture change, and regulatory issues.   

"My upbringing taught me the importance of respect for individuals, and I tried to build that relationship with frontline workers. Hopefully, others see that I have a drive to get things done and a passion to get everyone going in the same direction," said Jackson.

Organizations that share a similar drive and passion, as well as Jackson’s commitment to gender equality, will hopefully avoid class action lawsuits of their own.