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Wal-Mart Plaintiffs Face Historic Class Challenge

Tuesday, June 29, 2010

Over a million current and former Wal-Mart female employees allege gender discrimination in a single lawsuit. In this news analysis, Susan Stromberg explains what it will take for them to hang together before the courts this summer.

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Over a million current and former Wal-Mart female employees allege gender discrimination in a single lawsuit. In this news analysis, Susan Stromberg explains what it will take for them to hang together before the courts this summer.

Wal Mart(WOMENSENEWS)--More than one million current and former Wal-Mart female employees alleging gender discrimination stand to be certified this summer as the largest civil rights class action in history.

Their fate lies with the U.S. Supreme Court, which will be asked to decide whether a small group of employees' claims of sex discrimination are indicative of a company-wide policy or just isolated incidents. If the High Court does not hear the case, a lower court's ruling will stand and the trial against Wal-Mart will proceed on behalf of the million-plus plaintiffs.

It's a case of enormous importance for women in the paid work force across the country, says Fatima Goss Graves, vice president for education and employment at the Washington-based National Women's Law Center, one of the many organizations to file briefs in support of the class-action certification.

"The conduct alleged in the Wal-Mart litigation highlights that current law fails to provide adequate deterrence and sufficient tools to address widespread pay discrimination in the workplace," said Graves.

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In a case nearly a decade old, six female Wal-Mart employees sought certification to represent more than one million female employees in a lawsuit alleging gender discrimination in violation of federal law.

The claim of these six women is supported by 120 documented incidents from other female employees. In their suit, the six assert that they were paid less than men in comparable positions, despite higher performance ratings and greater seniority, and that they received fewer--and waited longer for--promotions than men.

Ninth Circuit Decision

Following an April decision by the Ninth Circuit Court of Appeals, the class will encompass all women employed by Wal-Mart at any time since June 8, 2001, when the lawsuit was first filed, and may possibly date back to December 26, 1998, pending clarification by the lower court.

The Ninth Circuit ruling certifying the class focused on whether the accusations made by these six women would be common to all female Wal-Mart employees, as is necessary for class certification.

Wal-Mart, headquartered in Bentonville, Ark., denies any systematic discrimination and argues that any claims should be tried individually and not as a class action. Among its arguments, Wal-Mart contends that the range of employees within the class is too diverse. It says that six women who have worked in 10 of the retailer's 3,400 stores nationwide cannot represent every female employee from every store--from part-time entry level hourly workers to salaried managers--over the course of a decade.

Before those allegations can be considered on the merits fully, the courts must first decide whether the million women represented by the six plaintiffs can hang together now that Wal-Mart plans to petition the Supreme Court for review.

The issue of class certification is governed by detailed and complicated procedural rules that will determine whether the million stay as part of the Wal-Mart case.

If the Supreme Court either decides not to hear the case or hears the case and agrees with the class certification, the lawsuit will go back to the lower court for a trial to determine if Wal-Mart discriminated against its female employees.

However, if the Supreme Court accepts review and overturns the class certification, each of the million possible plaintiffs would need to file individual lawsuits to raise any claims of discrimination.

Wal-Mart Attorney Hopeful

Wal-Mart attorney Theodore J. Boutrous, Jr., of the New York-based law firm Gibson, Dunn and Crutcher, is hoping the High Court will take the case and undo the class certification.

Boutrous believes the ruling certifying the class contradicts numerous decisions of other federal appellate courts and the Supreme Court itself, making it appropriate for review.

"This conflict and confusion in class action law is bad for everyone--employers, employees, businesses of all types and sizes and the civil justice system," Boutrous told Women's eNews.

If certified, the class members will be allowed to seek back pay and injunctive relief, which would require Wal-Mart to end any discriminatory practices. The issue of whether the plaintiffs may seek punitive damages also requires clarification by the lower court.

For now, lead plaintiff Betty Dukes, a Wal-Mart greeter in Pittsburg, Calif., is pleased with the Ninth Circuit's ruling allowing her case to go forward as a class action.

"It has taken a very long time and a tremendous amount of work, but it looks like we're finally going to get our day in court," said Dukes in a press statement. "That's all we've ever asked for."

Her attorney Brad Seligman of The Impact Fund, based in Berkeley, Calif., is optimistic about that day in court.

"We are very confident that at the end of the day, we will prevail. The evidence is that strong and the wrongdoing is that clear," he said.

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Susan V. Stromberg is an attorney and freelance writer.