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.