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.

Is Walmart Too Big to Sue?

The Supreme Court is not addressing the merits of the sex discrimination claims, only whether the women can go forward as a class.

Walmart argues that in order to qualify as a class, the women need to satisfy the so called "commonality requirement."

"The commonality requirement is part of the rule of civil procedure governing class actions," class-action litigation expert Andrew Trask said. "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."

Boutrous, the lawyer representing Walmart, argued today that the women in the case include every woman employed over a time for the past decade in any of Walmart's approximately 3,400 stores. "Here, the plaintiffs' claims simply aren't typical," Boutrous said.

"The women who are compelled to be in the class; they can't opt out, they're current employees, they're former employees, they cut across every position in the country, and there's no demonstration that they're being affected in a common way," he said

Justice Ruth Bader Ginsburg asked Boutrous whether a company that has gotten reports "month after month" showing that women are disproportionately passed over for promotion has any responsibility to say, "Is gender discrimination at work? And if it is, isn't there an obligation to stop it?"

But she also seemed concerned about how such a sprawling case could be managed by a judge if the women were allowed to proceed as a class. She asked Sellers how a judge could deal with an issue such as claims for back pay.

"But what seems to me is a very serious problem in this case is: How do you work out the back pay?" she asked.

Professor Suzette Malveaux of the Catholic University in Washington, D.C., who signed an amicus brief on behalf of the women plaintiffs, said that the size of the class will pose challenges if it is allowed to go forward.

"But this case is like many other employment discrimination class actions," she said. "While it gets a lot of attention for the number of employees, that is what the company asked for.

"If you are going to employ so many employees and be a worldwide player, than you assume the risk that you might be liable for billions of dollars of back pay. It's a function of the size of the company, it shouldn't immunize them from the law simply because they are big."

Outside court today, Betty Dukes, one of the original plaintiffs who works as a greeter at Walmart, agreed.

"Walmart may be a big company, " she said, "but they're not big enough where they can't be challenged in a court of law. If you do wrong, then you should be held accountable, from the least of us to the greatest of us."