- The Washington Times - Tuesday, March 29, 2011

The Supreme Court heard arguments Tuesday in a lawsuit brought by female Wal-Mart employees that could determine the fate of what has been described as the largest class-action sex-discrimination claim in U.S. history — one that seeks billions of dollars in back pay from the giant retailer.

The high court is being asked to determine whether allegations brought by six female employees 10 years ago accusing the firm of sex discrimination in pay and promotion policies should be bundled in a class-action suit covering as many as 1.5 million women who worked at Wal-Mart Stores Inc. since 1998.

A ruling in the case is expected in June, with some members of the high court — including Justices Antonin Scalia, Anthony M. Kennedy and Samuel Anthony Alito Jr. — hinting yesterday they might shield Wal-Mart from such a gender-bias suit.

Justice Kennedy told lawyers for the women he was “just not sure what the unlawful policy is,” while Justice Scalia described as inconsistent arguments that Wal-Mart fostered stereotypes of women while also allowing local store managers too much discretion in pay and promotion decisions.

Although the 9th Circuit Court of Appeals ruled to allow the lawsuit to receive class-action status, attorneys for the nation’s largest private employer, with 3,400 stores and more than 1 million employees, appealed that decision to the Supreme Court.

The attorneys argued that companywide policy expressly bars discrimination based on sex, and that Wal-Mart had “consistently promulgated and enforced equal-opportunity policies to foster diversity, ensure fair treatment and prohibit unlawful discrimination.”

They also noted that only three of the named plaintiffs remain members of the certified class, adding that they worked at different stores, at different times, in different positions, for different managers. They said they were promoted to and demoted from different jobs, disciplined for different offenses, paid different amounts for performing different jobs, applied for different management-training opportunities and kept working or not for different reasons.

The attorneys also challenged the certification order, saying claims asserted on behalf of millions of persons “do not remotely satisfy” the federal rules of civil procedure, adding that class plaintiffs must submit “significant proof that an employer operated under a general policy of discrimination.”

In this case, they said no such showing was made and could not be made “because Wal-Mart’s general policies uniformly prohibit discrimination and promote diversity.”

“Plaintiffs did not offer proof that Wal-Mart implemented its policies in a discriminatory fashion common to all female employees,” they said. “They have never suggested that Wal-Mart established an ‘entirely subjective decision-making process.’

“The discretion exercised by Wal-Mart’s local managers was governed not just by the company’s anti-discrimination policy, but also by a companywide framework for pay and promotions,” they said. “Plaintiffs have never offered significant proof that this framework was discriminatory.”

The attorneys said there was “unrebutted evidence” that more than 90 percent of the stores had no significant pay-rate differences between men and women.

But Marcia D. Greenberger, co-president of the National Women’s Law Center, said a Supreme Court decision on whether women employed at Wal-Mart can join together in a class action to challenge pay and promotion practices at the company will determine if, as a practical matter, employees across the country, especially women and others earning lower wages, will be able to join together as a class to challenge discrimination by their employers.

“The stakes in Wal-mart v. Dukes could not be higher,” Ms. Greenberger said. “If the Supreme Court gives the green light to the women of Wal-Mart to proceed as a class, as it should, it will mean that these women, after waiting 10 years, will finally have their day in court.

“They will finally have the chance to equalize pay and promotions at the country’s largest employer,” she said. “And the Supreme Court will have sent an important message that no company is too big or too powerful to be held accountable.”



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