Supreme Court Justices Seem Leery of Walmart Plaintiffs

March 29, 2011 -- Several Supreme Court justices seemed skeptical today of the arguments made by an attorney on behalf of female plaintiffs that they should be allowed to band together and sue Walmart for sex discrimination.

The nation's largest private employer provided its managers with unchecked discretion that led to widespread sexual discrimination and women being paid less than men despite more seniority and higher performance, Joseph Sellers argued before the court.

But Walmart said a lower court was wrong to allow hundreds of thousands of current and former female employees to join forces and sue the company.

"The company has a very strong policy against discrimination and in favor of diversity, " lawyer Theodore Boutrous Jr. argued on behalf of the retail giant.

If the Supreme Court allows the case to go forward, it would be the largest employment discrimination class-action suit in history involving potentially billions of dollars.

Sellers said Walmart has a "very strong corporate culture" and that it allows its managers "broad discretion," which he called the "Walmart way."

But Justice Anthony Kennedy challenged Sellers, saying, "It's not clear to me what the unlawful policy that Walmart has adopted, under your theory of the case.

"Your complaint faces in two directions. Number one, you said this is a culture where ... headquarters knows everything that's going on. Then in the next breath, you say, well, now these supervisors have too much discretion," he said.

Justice Antonin Scalia agreed with Kennedy. "I'm getting whipsawed here," he said.

"It's either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do."

The case stems from a sexual discrimination suit filed in 2001 by six female employees alleging they had been paid less than men in comparable positions in violation of Title VII, the federal law that prohibits sex discrimination. As word spread, dozens and dozens of women joined the suit and a district court ruled the case could go forward on behalf of all similarly situated women.