Four months after the U.S. Supreme Court tossed a major nationwide sex discrimination class action against Wal-Mart, the women are back in the first of about a dozen new bias cases.
In a June 5-4 decision, the Supreme Court decertified a national class action lawsuit of more than a million women who sued Wal-Mart for receiving lower salaries and scoring fewer promotions to management positions than their male colleagues. While the court never decided the merits of the claims, the justices found that there was a lack proof showing that there was a single common policy under which female employees were discriminated against.
Wal-Mart essentially criticized the class action as too large, calling the suit a kaleidoscope of claims, defenses, issues, locales, events and individuals in court documents.
Our response is, OK, we're bringing it on, said Brad Seligman, lead counsel for the class, which must receive court certification.
The strategy is to break down the discrimination case and file individual class actions in regions that Wal-Mart set up for its stores. As of 2003, Wal-Mart, the largest private retailer in the U.S., has 41 regions with about 80 stores in each one, according to lawyers for the plaintiffs. They declined to say where the lawsuits will be filed, but one attorney said 12 to 15 complaints will be launched.
The lawsuit filed Thursday seeks to represent an estimated 90,000 women who are current or former employees at California Wal-Mart and Sam's Club stores.
It allows us to zero in -- as the Supreme Court said we had to -- on the decision makers, Seligman said of the new discrimination lawsuits. This complaint... focuses the class at the level of the managers at Wal-Mart who made pay and promotion decisions in the store. That's the key difference.
Such managers who are responsible for pay and promotion decisions are the store, district and regional managers, according to the complaint.
Wal-Mart: Plaintiffs' Argument Is Incorrect
Wal-Mart's lead attorney, Theodore J. Boutrous Jr. of Gibson Dunn & Crutcher, said in a statement that the new complaint includes the same theories that the Supreme Court rejected in June.
The plaintiffs' lawyers do not come close to meeting the standards for obtaining class certification and their arguments still rely on the same incorrect and discredited theories that the Supreme Court repudiated, said Boutrous. These lawyers seem more intent on alleging classes for their publicity value than their legal virtue.
This discrimination case is more than a decade old. In 2004, the female employees' lawsuit won class-action status. They claim that men of lesser or comparable experience were paid more and were more likely to get promotions than women. In the new case, the female employees argue that a new statistical analysis of each store and district--not previously part of the Supreme Court record--shows a pattern of discrimination.
If there were a disparity in the pay by gender, which our evidence shows, it was incumbent on the regional managers to fix it. And they didn't do that, said Joseph Sellers, a Cohen Milstein Sellers & Toll attorney representing the class of female Wal-Mart employees. [Region-based class actions will] permit us to make them much more carefully directed at the decision-making processes in these locales.