Supreme Court to Decide Whether Millions of Female Employees Can Sue Walmart

Court to rule if current, former female workers can sue for sex discrimination.

March 24, 2011, 5:54 PM

March 25, 2011 -- The Supreme Court will hear arguments Tuesday in a case that pits Walmart, the nation's largest private employer, against millions of former and current female employees who allege gender discrimination.

At issue before the court is whether the women can band together as a "class" and bring their case, or whether they must file on an individual basis.

If the court grants the women class certification, it most likely will become the largest employment class action suit in history, potentially involving every female worker employed at the company since 1998.

"The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines and Coast Guard combined -- making it the largest employment class action in history by several orders of magnitude," said Walmart attorney Theodore J. Boutrous.

The case is being carefully watched by the business community, which fears that it could lead to an increase of similar suits and force big business into premature settlements out of fear of exposure to gigantic monetary awards in the billions of dollars.

The Chamber of Commerce issued a brief on the side of Walmart arguing that the lower court ruling that allowed the case to go forward as a class action, "will likely encourage an avalanche of new class action litigation on a broad array of subject matters, beyond employment issues."

But lawyers for the women said that fears of an avalanche are absurd.

"The reality is that we haven't even had a few snowflakes," said Joseph Sellers, who will argue on behalf of the women on Tuesday.

The district court heard months of evidence in the case and properly found that the women had met the standards of class certification, Sellers added.

"The Supreme Court and the lower courts have set very demanding standards for class certification," he said.

Sellers and civil rights groups supporting the women said class action certification is essential to give anti-discrimination laws the force and intent they were meant to have. They argued that the women, forced to file individually, would have neither the means nor the incentive to bring their case against such a large company.

Even though the justices won't wade into the merits of the case regarding gender discrimination, Sellers said, the question of whether the women can proceed as a class action is of equal importance.

"Technically, this case is not a ruling on the merits," he said, "but the ability to pursue claims like this is vital to the private enforcement of civil rights laws."

The case stems from a sexual discrimination suit filed in 2001 by six female employees who alleged they were paid less than men in comparable positions in violation of Title VII, the federal law that prohibits sex discrimination.

As word spread, dozens more women joined the suit, and a district court ruled the court could go forward on behalf of all similarly situated women.

Christine Kwapnoski, one of the original plaintiffs, worked for almost 25 years at Sam's Club, owned by Walmart, without a promotion. At one point, she said, her general manager, who was male, told her to "blow the cobwebs off my makeup" and to "doll up" in order to advance. Two weeks after the suit was filed, Kwapnoski finally received a promotion.

She scoffed at Walmart's contention that there was no widespread discrimination at the company.

"They'll tell you that one particular lady had a wonderful experience," said Kwapnoski, "but when you've got women in the millions saying differently, it just proves that it is a widespread problem in the company. "

She would not have been able to bring the suit alone, she said.

"My voice against Walmart?" she asked. "Are you kidding me, they would sweep me under the carpet real fast. When we band together, then Walmart has to listen to us."

Lawyers for the women said that besides the anecdotal evidence, statistical analysis demonstrated that hourly and salaried retail female employees received lower pay and less advancement opportunities than their male counterparts.

"The patterns are inescapable," Sellers said. "This is not simply a case where you group together a bunch of independent decision-makers, it shows a pattern that is stunning in its consistency showing that women were uniformly disadvantaged." While there were stores across the country, Sellers alleged, Walmart managed its operations and employment practices in a centralized manner.

But lawyers for Walmart vigorously denied the allegation.

"In Walmart's retail stores, women made up two-thirds of all employees and two-thirds of all managers," Boutrous said. "The record actually shows that the number of women who were promoted at Walmart was equal to or greater than the number who applied for the jobs.

"Plaintiffs' data is deeply flawed and highly misleading," he added. "Where the data runs counter to their theory, they simply disregard it or re-label it to obscure the major gaps in their case."

Arguments at court are likely to be technical and revolve around the technical standards of class certification. Walmart argues that the lower courts were wrong to allow the women to join together in their lawsuit because they don't satisfy the so called "commonality requirement" which is necessary to prove that they can proceed as a class.

"The commonality requirement is part of the rule of civil procedure governing class actions," said Andrew Trask, co-author of "The Class Action Playbook." "It means that the women's claims have to be similar enough so that if you prove one woman's claim you have proven every woman's claim."

In court briefs, Walmart said that so many different women, working at so many different Walmarts across the country, could not bring forward any issues that are common to them all.

"Keep in mind there are 3,400 stores, 170 different job classifications, 53 different departments in the store and 41 different retail regions, each of which has its own vice president," said Trask.

Timothy Sandeful of the Pacific Legal Foundation, who submitted a brief in support of Walmart, disagreed with the lower court's reliance on statistical analysis provided by the plaintiffs to document what they said was widespread discrimination at Walmart.

"There's all sorts of reasons why people might choose to work in other jobs, or choose to not work as managers, or stay out of the workplace for a long time that are not proof of discrimination," he said.

But Sandefur's argument enrages some of the women's rights group supporting the Walmart plaintiffs.

"Statistical evidence demonstrates that even if you control for job performance and seniority, pay discrepancies existed at all the major job groups within Walmart," said Sarah Crawford of the National Partnership for Women and Families.

"These women are seeking to vindicate their civil rights, their rights to fair pay and promotions at Walmart in the face of a great deal of evidence that systemic discrimination was standing in their way," she said. "We are still trying to get our day in court."

ABC News' Susanna Kim contributed to this report.

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