It’s Walmart vs. the Women…

Legal Corner

Volume 111, No. 3March, 2011

Harvey Mars, Esq.

March is Women’s History Month, a perfect time to highlight a historic gender and pay discrimination lawsuit that will be heard by the Supreme Court sometime in June. The suit, easily the largest discrimination suit in the history of the United States, is Dukes v. Walmart Stores, Inc. and involves roughly 1.5 million female employees who claimed that they have been systematically denied promotions and paid less than male counterparts with the same seniority and skill. The issue that the court will grapple with this spring is whether the litigation can proceed as a class action. The stakes are high, since if the class action is allowed to proceed, the potential backpay liability for Walmart, the largest employer in the United States, could be in the billions of dollars.

Walmart’s own records seem to bolster the merits of the claim. Though more than two thirds of Walmart’s hourly employees are female, women only account for 15 percent of store managerial positions.

Further, women were paid less than men of equal seniority in every major job category, even though, on the whole, women had lower turnover and higher performance ratings than their male counterparts.

Unsurprisingly, this suit is more than ten years old and has already required three rulings from the United States Court of Appeals for the Ninth Circuit, one of which required a decision by each sitting circuit judge, which is known as an “en banc” decision. During this 10-year period of time, only the procedural issue of class standing has been considered by the courts. Thus, the Supreme Court will only be reviewing the Ninth Circuit’s recent determination that the suit could proceed as a class action, despite its enormous size. No determination has yet been made on the merits of the claims.

Proceeding as class action has great utility for a discrimination case such as this one since it is much easier for a plaintiff to pursue a law suit as a member of a class than as an individual litigant, who is then required to retain and pay their own lawyer.

Further, class action standing puts a huge amount of pressure on the defendant to settle because potential liability is huge. Here, class action status has particular utility because Walmart’s employment practices are centrally managed.

Whether a case may proceed as a class action rather than as individual law suits requires the court to make a determination whether each of the claims that could be asserted by the potential class members all have common issues. Further the court has to be satisfied that the class representatives have the ability to pursue claims on behalf of the entire class rather than just themselves. Finally, the court has to find that proceeding as a class is more practical than as individual claimants, and that there are enough plaintiffs with common claims to warrant class standing. Remarkably, it took ten years just for the class standing determination to be made.

So far both the District Court and the Ninth Circuit have agreed that class certification is appropriate even though the size of the class is 1.5 million. In fact, the only objection that Walmart has to class certification is that the size of the class is unmanageable. However, the mere size of the class does not matter if all the claims truly have common issues.

The fight over class standing may turn out to be the crucial issue, since Walmart will likely settle if the Supreme Court upholds the Ninth Circuit decision granting class certification. If it does not, it is very likely that hundreds of thousands of Walmart’s low paid female employees will be left without redress and that a very protracted legal battle will ensue for the claimants who decide to pursue individual claims. Let’s hope the Supreme Court, which is dominated by conservative jurists, affirms the well-reasoned Ninth Circuit decision.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived at (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.