- The Washington Times - Monday, December 6, 2010

The Supreme Court on Monday agreed to hear an appeal by Wal-Mart Stores Inc. as part of the ongoing largest employment-discrimination case in the nation’s history.

The high court will not focus on whether Wal-Mart discriminated against its female employees, but whether the women it employed during the past decade should be allowed to band together and collectively sue the world’s largest retailer.

Wal-Mart is arguing that all its female workers — divided among 3,400 stores with 170 different job classifications — do not have enough in common to qualify as a “class” in bringing a class-action lawsuit. As many as 1.5 million could be part of the “class,” according to court records.

“The Supreme Courts ruling may well be one of the most important employment-discrimination class-action decisions in decades, and may change the workplace class-action landscape permanently,” employment lawyer Gerald L. Maatman, Jr. wrote in an article about the case.

A group of female employees are currently suing Wal-Mart on the grounds that they received less pay than men in comparable positions, despite having higher performance ratings and greater seniority, according to court documents.

The female employees are seeking back pay and punitive damages that could amount to billions of dollars. Lower courts granted the women’s request that the suit include all woman who worked at Wal-Mart at any time since Dec. 26, 1998.

Wal-Mart is asking the Supreme Court to prevent such a large number of women from taking part in the suit.

“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,” wrote attorneys for Wal-Mart, the nation’s largest private employer, in a brief asking the high court to hear the case.

Wal-Mart argued the lower courts’ rulings conflict “with every pertinent decision of (the Supreme Court) and many decisions of other circuits on numerous important, recurring issues in class-action litigation, both in discrimination cases and generally.”

In a statement, Wal-Mart said it was “pleased that the Supreme Court has granted review in this important case.”

“The current confusion in class-action law is harmful for everyone — employers, employees, businesses of all types and sizes, and the civil justice system,” the statement read. “These are exceedingly important issues that reach far beyond this particular case. We look forward to the Courts consideration of the appeal.”

Attorneys for the female employees argued that the lower courts allowed the large class-action suit to go forward after hearing expert testimony that indicated gender discrimination was pervasive throughout Wal-Mart’s stores and known to management. They further argued that it is premature for the Supreme Court to review the case, particularly as the exact size of the “class” isn’t certain yet.

Wal-Mart is a uniquely large and unusually uniform and centralized company,” attorneys for the women wrote in a brief requesting the high court not hear the case. “Perhaps no other employer presents a factual predicate to support class certification similar to the record upon which the district court based its detailed and rigorous fact-finding.”

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