Wal-Mart Ruling Raises Bar for Job Bias Suits

By Kenneth Jost
Supreme Court Editor, CQ Press
      The U.S. Supreme Court’s decision to throw out a major sex discrimination case against Wal-Mart will make it more difficult to bring job discrimination cases against major employers in the future, according to legal experts.
      The high court on Monday [June 20] rejected an effort to bring a class action against the giant discount retailer on behalf of up to 1.5 million women who have worked for Wal-Mart over the past decade.
      Dividing 5-4 along ideological lines on the most important issue, the justices said the plaintiffs had failed to produce sufficient evidence of a companywide policy discriminating against women in pay and promotions to justify a class action as opposed to individual suits.
      In opposing certification of the case as a class action, Wal-Mart maintained that it has a companywide policy prohibiting discrimination but grants wide discretion on personnel matters to individual managers at the company’s 3,400 stores nationwide. To counter the claim, plaintiffs’ lawyers in the case introduced affidavits alleging sex discrimination by 120 women along with statistics indicating significant gender disparities in pay and advancement.
      Writing for the majority in Wal-Mart Stores, Inc. v. Dukes, Justice Antonin Scalia found the evidence “worlds away” from what would be needed to charge Wal-Mart with a general policy of discrimination. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. joined Scalia’s opinion.
      Writing for four liberal dissenters, Justice Ruth Bader Ginsburg found the evidence more persuasive. “The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture,” Ginsburg wrote. Ginsburg was joined in the dissent by Justice Stephen G. Breyer and President Obama’s two appointees to the court: Sonia Sotomayor and Elena Kagan.
      The justices were unanimous on a secondary issue: whether the plaintiffs could seek back pay in the suit as filed. The court ruled that back pay would generally be available only under a more complex class action rule that allows individual plaintiffs to opt out of the case and file their own suits.
      Wal-Mart, the nation’s largest private employer, could have faced hundreds of millions of dollars in back pay awards if the class action, originally filed in 2001, had been approved with the back pay claims intact. In a statement, the company said Monday it was pleased with the ruling and again claimed it has maintained “strong policies” against discrimination for years.
      “The Court today unanimously rejected class certification,” Wal-Mart’s statement read, “and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.”
      Experts in a telephone conference call arranged by the progressive American Constitution Society stressed that the court did not rule on the merits of the sex discrimination claim. “The ruling doesn’t in any way exonerate Wal-Mart,” said Cyrus Mehri, a Washington, D.C., lawyer who represents plaintiffs in discrimination cases. “The only way that could have been achieved would have been with a trial.”
      In the same call, Suzette Malveaux, a civil procedure expert at Catholic University’s Columbus School of Law in Washington, said the court’s decision creates “a new and higher burden” for plaintiffs to meet in job discrimination class actions against big employers. “Given all the evidence the plaintiffs put together, it’s difficult to imagine how any plaintiffs can come forward with a case that could challenge an employer like Wal-Mart,” she said.
      From the opposite perspective, the U.S. Chamber of Commerce praised the ruling as protecting companies from the threat of what it called “bet-the-business blockbuster class actions.” Robin Conrad, executive vice president of the chamber’s National Chamber Litigation Center, said the ruling “reinforces a fundamental principle of fairness in our court systems: that defendants should have the opportunity to present individualized evidence to show they complied with the law.”
      The suit, originally brought by six named plaintiffs, was certified as a class action by a federal judge in San Francisco in 2004. The federal appeals court for California upheld the decision in 2010 by a 6-5 vote.
      The Supreme Court’s ruling leaves the remaining three named plaintiffs in the case, including Betty Dukes, a greeter at the Wal-Mart store in Pittsburg, Calif., free to pursue their individual suits. Plaintiffs’ lawyers were not immediately available to comment on their next steps in the litigation, but Malveaux said the court’s ruling “killed this case as a class action.

      For background see, Kenneth Jost, “Class Action Lawsuits,” CQ Researcher, May 13, 2011 (subscription required).