‘We’re Back’: Walmart Plaintiffs File Amended Sex Discrimination Complaint

After a big defeat at the Supreme Court last spring, current and former female Walmart employees filed an amended complaint in federal court today hoping to band together as a smaller class and sue the retailing behemoth for sex discrimination.

Last spring, the Supreme Court ruled that the original case, which had grown into a challenge involving hundreds of thousands of female employees across the county and potentially billions of dollars, could not go forward.

Plaintiffs had claimed they could prove Walmart discriminated against all women employees by using statistics, by alleging that the company’s corporate culture was suffused with gender stereotypes, and by pointing to the company’s practice of allowing local managers wide discretion in hiring and promoting, which supposedly allowed those stereotypes to impact the lives of women employees.

However, Justice Antonin Scalia, writing for himself and the other conservative justices on the bench, ruled that the women failed to prove a common practice or policy of discrimination at Walmart that would allow them to band together and bring the suit.

The amended complaint, filed in U.S District Court for the Northern District of California, limits the potential class to current and former employees who worked in the company’s California stores. Experts say the plaintiffs will have to do more than show their newly constructed class of employees is smaller.

“The Supreme Court decision certainly did not foreclose smaller class actions,” said Michael Selmi, a professor of law at George Washington University, “but it will not be as simple as making the classes smaller. Size was not the only issue. … The plaintiffs will need to identify some common connection for the plaintiffs in the smaller classes, which may not be easy to do unless they proceed on a store-by-store basis.”

In a statement, Brad Seligman, the plaintiff’s lead attorney said, “We’re back.”

“This case and the fight for justice for the women of Walmart are not over,” he added. “The complaint filed against California Walmart is well within Supreme Court guidelines and we are determined to see that California Walmart women employees who have been waiting up to 11 years for justice finally get their day in court.”

Andrew Trask, author of Class Action Playbook , said the plaintiffs will have to alter the focus of the original complaint.

“While limiting their complaint to a single state was a wise move, the plaintiffs’ continued focus on corporate culture over actual promotion decisions seems to ignore the court’s clear warnings about the kinds of classes one can certify following the federal rules.”

Greg Rossiter, a spokesman for Walmart, said he believes the courts will ultimately reject the class action suit.

“As we have said all along, these claims are unsuitable for class treatment because the situations of each individual are so different and because the claims of the plaintiffs are not representative of the thousands of women that work in Walmart, ” he said. “The fact is, the statewide class that the plaintiff’s lawyers now propose is no more appropriate then the nationwide class that the Supreme Court has already rejected. ”

Plaintiffs’ lawyers say in the coming months they will file similar, smaller class action suits across the country.

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