Wal-Mart v. 1.5 Million Women

As one of the largest class action suits ever brought against a corporation, Betty Dukes and other female employee’s allegations have entered uncharted legal territory in their pursuit to expose Wal-Mart as a corporation rife with systemic and institutionalized discrimination against female employees. The Supreme Court will hear arguments from both sides on the merit of the case and its status as a class action. The Plaintiff’s hope to demonstrate that Wal-Mart pays females substantially less than similarly situated male employees and grossly underrepresented in management-level position, evidenced by key data showing that 80% of hourly supervisors are women, but only one-third of store management jobs are held by women and members of this protected class diminish at each step up the hierarchy. The Chicago Times reports:

“A key, at least for what it appeared to be a majority of justices, is whether Wal-Mart as a company had in place policies that encouraged supervisors to treat women employees differently than men. The company’s attorney, Theodore J. Boutrous of Los Angeles, argued the company instead took a strong stand against discrimination, and that any case of disparate pay or treatment was the product of rogue managers.

“They haven’t shown a pattern across the map,” Boutrous said.

Several justices, too, seemed critical of contention by the lawyer for the plaintiffs, Joseph M. Sellers, that Wal-Mart faced liability because it allowed its managers too much leeway in hiring and pay decisions.

“Wal-Mart provided to its managers unchecked discretion … that was used to pay men more than women,” Sellers said.

That troubled Justice Antonin Scalia, who could not reconcile the notion of unbridled individual managers applying highly subjective standards to hiring decisions with the argument that Wal-Mart, as a company, discriminated as part of a corporate policy.

“Which is it?” Scalia said. “It’s either individual supervisors who are left on their own or there is a strong corporate culture that tells you what to do.

“If somebody tells you how to exercise discretion, you don’t have discretion,” Scalia said.

Chief Justice John Roberts Jr. also wondered whether the company should be subject to a class action because, among thousands of stores, “you’re going to have some bad apples.”

Boutrous, representing Wal-Mart, also argued that the plaintiffs claims were too dissimilar — the class encompasses 170 separate job classifications — to be tried together.

“Each of the plaintiffs have very different stories,” Boutrous said. “It’s not fair to anyone to put this all into one big class.”

But Justice Stephen Breyer reminded his colleagues that they weren’t passing judgment on the merits of the plaintiffs’ claims, but merely whether such a large suit can be brought to trial. “We’re just talking about getting your foot in the door,” he said.

The three women on the court, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, appeared to be most sympathetic to the plaintiffs’ case, with Ginsburg suggesting that Wal-Mart could be liable if it knew of widespread discrimination and did nothing to check it.

“Isn’t there some responsibility on the company to say, ‘Is gender discrimination at work?’ And if there is, isn’t there an obligation to stop it?” Ginsburg asked.

But even they worried aloud about issues revolving around back pay and other relief and whether plaintiffs would be barred from pursuing separate claims for economic damages. Sotomayor, in particular, seemed troubled by the plaintiffs’ intention to use statistical models to award back pay if the plaintiffs prevailed, which, she said, might not give the company any opportunity to contest individual instances of discrimination.

Those concerns left open the possibility that, rather than a divided court issuing an opinion in a highly charged case involving sex discrimination, the justices could decide to remand the case to the lower court under a revised set of guidelines.”

The disposition of this case could have far-reaching implications on what constitutes a class and what type of evidence can substantiate a claim of sex discrimination and will be followed closely by our staff.