San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 Wal-Mart has famously, perhaps infamously opposed union organization in its stores.  They have survived the very few union elections that have been held.  But, they may not survive the latest effort to improve working conditions at Wal-Mart stores.  Organization United for Respect at Wal-Mart (OUR Wal-Mart) does not seek to form a union, but does seek to improve working conditions.  See Workplace Prof report.  The group claims to have thousands of members and will soon have a web site and Facebook page.  They seek to improve the low pay, benefits and simply to gain more respect. 

The group receives some union financial support and in the end, may be a better fit for Wal-Mart workers. 

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 The very large Wal-Mart class action lawsuit is going to the US Supreme Court for review this week.  See CBS news report. The class involves 500,000 to 1.6 million potential plaintiffs. The suit alleges discrimination against women. The suit was initially filed ten years ago in California.  It was most recently the subject of an appeal at the federal Ninth Circuit Court of Appeals in California.  Wal-Mart claims the class involves too many women in too many different positions at Wal-Mart.  If the members of the class are too different, then the class action fails.  The case is said to be the largest employment discrimination case ever.   Betty Dukes, Et Al v. Wal-Mart Stores, Inc.

I have written about this class action here and here.  It was a close 6-5 decision at the Ninth Circuit. In the midst of the appeals, a report was leaked showing Wal-Mart knew it had anti-female practices in place. A major law firm had prepared a report for Wal-Mart noting disparities in how women are hired and paid.  

Of course, to be a class action, the plaintiffs must show their claims are similar. Does the discrimination apply to all women? All female managers? Or, just female clerical employees? The plaintiffs are apparently trying to show the evidence applies to all female employees. If each individual claim is too small, then the employees would never obtain a lawyer willing to accept their case. 

The plaintiffs have several actual, named plaintiffs who include one female manager and one female greeter. In 2001, when the lawsuit was filed,  job openings were rarely posted.  In 2001, only 14% of store managers were women, while 80% of lower ranking employees were women. These numbers are strong, but statistical evidence in itself is rarely enough.  

The major issue appears to be does the plaintiff's evidence support such a broad class? Twenty other large corporations have filed friends of the court briefs, arguing against class certification.  If the best the plaintiffs could do at the relatively friendly Ninth Circuit is 6-5, then one must wonder about their chances at the relatively employer friendly US Supreme Court. 

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 It was significant news when a class action lawsuit against Wal-Mart was certified a few weeks ago.  Class action lawsuits are always significant, but especially so when the employer is Wal-Mart.  I talked previously about the court ruling allowing the class certification.  See blog post.  

Now, someone at Wal-Mart leaked a report to the NY Times regarding an investigation made into Wal-Mart's potential bias against women in the mid-90's.  See NY Times report.  At Wal-Mart's request,  prominent law firm, Akin, Gump Hauer and Feld looked into possible gender issues at Wal-Mart's request.   The firm found wide-spread disparities in how women were hired and how they were paid.  The law firm, a well-known defense firm, urged the company to take several steps to make the system more fair, to avoid possible liability.  The report was released internally in 1995. The class action lawsuit was filed in 2001 by seven women.  The class action suit is styled Dukes v. Wal-Mart.  

This report could upset the balance.  Contrary to the NY Times report, such evidence could be admissible.  There are many cases holding that evidence of past bias is admissible, even if that past evidence was intended for internal review.  In this instance, portions of the report describing pay disparities might be admissible to show knowledge or intent on the part of Wal-Mart regarding gender discrimination.  The only hiccup is the fact that Akin, Gump performed the investigation.  So, the current defense law firm can argue this was attorney work product or attorney-client privileged.  Law professor thinks the report will not be admissible in court.   

I mentioned several weeks ago that Wal-Mart is one of the more difficult employers to sue.  They are known for obstreperous litigation tactics.  This report may well set the stage for a large settlement against a difficult to sue employer. 

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 The Ninth Circuit granted class certification in a lawsuit against Wal-Mart alleging gender based discrimination against some 2 million women.  See report.  It was a close 6-5 decision at the court.  The Ninth Circuit heard the arguments en banc, which means the that the Ninth Circuit issued an initial decision.  One of the parties did not like the initial decision, so they asked  for the entire Ninth Circuit (en banc) to hear the case.  The en banc court then granted the class certification. 

It is a big win for employees.  Wal-Mart commits its share of violations of employment statutes.  The class will be for current and former female employees who have been passed over for promotion. 

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 Yes, racism is still alive and present in dark corners of the country.  Today, we find some sort of racism in a New Jersey Wal-Mart store.  An announcement is made over the intercom telling "all black people" to leave the store, now.  See CBS news report.  

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