Last April, the Ninth U.S. Circuit Court of Appeals gave the green light to a nationwide sex discrimination class action against Wal-Mart Stores, Inc., the nation’s largest employer. Unwilling to permit the suit to proceed without a further challenge, Wal-Mart has now petitioned the U.S. Supreme Court to revisit the class certification issue. The Ninth Circuit’s decision had defined a class of up to 1.5 million women who worked at any Wal-Mart in the last 12 years, making the lawsuit the largest potential class action ever pursued under Title VII of the Civil Rights Act of 1964.
Wal-Mart’s petition argues that the case raises important questions under Title VII and affects operations at some 3,400 separately managed stores. Permitting the massive suit to proceed on a class basis risks violating the rights not only of Wal-Mart but also potentially of many class members. The company also urges the Court to consider whether class treatment is the appropriate mechanism for an action that focuses primarily on monetary damages and highly individual claims and defenses.
The attorney representing the plaintiff class has labeled Wal-Mart’s petition to the Supreme Court as “unwarranted and premature.” He asserted that the class certification approved by the Ninth Circuit was based on evidence that raised an inference of companywide sex discrimination in pay and promotional opportunities.
The case began when six women who had worked at 13 Wal-Mart stores filed a lawsuit on behalf of all women employed at Wal-Mart stores at any time since December 26, 1998. The crux of their claim was that Wal-Mart policies resulted in discrimination against women in every store nationwide, regardless of whether they worked in hourly or salaried jobs. They asserted that women at Wal-Mart are paid less than men in comparable positions, despite having higher performance ratings and greater seniority, and that women receive fewer — and wait longer for — promotions to in-store management positions than men.
Now the Supreme Court must weigh in on whether to get involved at this stage of the dispute. With billions potentially on the line, Wal-Mart has a lot riding on that decision.
Nancy Williams is a partner with Perkins Coie LLP and an editor of Washington Employment Law Letter.