Liza Featherstone is the author of "Selling Women Short: The Landmark Battle for Workers' Rights at Wal-Mart."
The Supreme Court heard arguments this week challenging the certification of Betty Dukes v. Wal-Mart, a class-action lawsuit accusing the nation's largest private employer of discriminating against women.
While no one can predict with certainty, it seems likely that the court's big business-loving majority will rule in favor of Wal-Mart, thus throwing out the largest civil rights class action in history, which has been dogging the retailer for a decade. But even so, Betty Dukes -- the suit's lead plaintiff, who still works for the company -- and the 1.5 million or so colleagues the suit represents have accomplished something significant: They have changed Wal-Mart.
Most notably, more women have been promoted into management. Recently Steve Restivo, Wal-Mart's director of community affairs, told me, "We're a better company than we were a few years ago," and cited, among other points, this improved record on female leadership. From 2004 to 2009, according to data provided by the company, the percentage of officers and managers who were female jumped from 38.8 percent to 41.4 percent. While Wal-Mart does at times spin its own data in misleading ways, women working in the stores -- including some of the Dukes plaintiffs -- tell me that they, too, see more women being promoted into management.
That's because Wal-Mart has improved its personnel system in response to the lawsuit. Instead of, say, just telling their buddies about opportunities over beers at Hooters, managers now have to let their employees know about the openings: Management positions -- and opportunities for management training -- must be posted nationwide, where everyone at the company can see them.
Wal-Mart has also, since the suit was filed, made it easier for a worker who wants to bypass a sexist manager to apply for such positions by computer. The company has also instituted programs to promote some workers into management more quickly than in the past, and many women have been promoted this way. As Dukes said in a telephone conference this week, "I have personally been thanked by women who have been promoted."
Some of the women who should be thanking Dukes -- who is herself, at 61, still a greeter barely making ends meet -- are now in upper management at Wal-Mart headquarters. Before Dukes filed her suit in 2001, Wal-Mart had just one woman in senior management (who has since left the company); now, there are six among the 35 top positions. The company now has three women on its board; before the lawsuit, Wal-Mart continuously struggled to keep even one token female director.
And Wal-Mart itself should be grateful to Dukes, as the National Association of Female Executives this year named the retailer one of the 50 Top Companies for Executive Women, an accolade that would have been unimaginable a decade ago.
To be sure, there remain gross disparities between men and women at Wal-Mart. The company's own data show there are still far more women than men among the ranks of the company's low-wage hourly workers, and far more men than women running Wal-Mart. Equal Rights Advocates -- one of the firms litigating on behalf of the plaintiffs -- has a hotline for women at Wal-Mart, and its executive director, Arcelia Hurtado, said in the same phone conference call with Dukes that the line still gets complaints. Since Wal-Mart won't release data on its wage structure, it is difficult for outsiders to measure -- and importantly, quantify -- the progress. And of course, workers at Wal-Mart -- men and women alike -- continue to complain of other injustices, including low wages, capricious management and illegal union-busting tactics.
If the Supreme Court throws Dukes v. Wal-Mart out, all this progress may stall. It will take continued pressure from workers and from the public to bring the retailer into this century. But the threat of the suit alone -- and all the accompanying bad publicity -- became a powerful catalyst for much-needed change. As Dukes said earlier this week, "we have come a long way."
Though Wal-Mart can still do much better, it's important to recognize that no matter what the Supreme Court decides, Betty Dukes has made a difference.