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.