Legal News

Justice Voices Skepticism Over Suit Against Wal-Mart

By Ashby Jones

Well, this could be rather anti-climactic.

If court-side reporters at the WSJ, Bloomberg, Reuters, and the AP are to be believed (and we’ve no reason to doubt them), the plaintiffs in the huge discrimination case  aimed at Wal-Mart have some serious uphill climbing to do to carry the day.

Nearly all of the accounts flowing out of the high court on Tuesday indicate that the justices seemed skeptical of the suit, hinting that it was unfair to Wal-Mart. A ruling in favor of the retailer, justices alleged, could open up a Pandora’s Box of liability for a wide swath of corporate America.

The backstory: The suit, filed in 2001 on behalf of current and former workers whose numbers now total almost three million, alleges that Wal-Mart systematically paid women less than men and provided them fewer opportunities for promotion.

But several justices challenged the lawsuit's premise, which alleges that Wal-Mart maintained a "pattern and practice" of discrimination-a legal standard for liability–by granting local managers wide discretion in employment decisions.

"I'm getting whipsawed here," Justice Antonin Scalia told Joseph Sellers, the attorney representing a half-dozen women who seek to represent the massive class.

Justice Anthony Kennedy seconded that view. On the one hand, the plaintiffs allege that "Arkansas knows everything," he said, referencing the corporation's home state. But on the other, individual managers have too much autonomy.

Plaintiffs' claims are based on statistical evidence of pay and promotions that favor men over women. In light of this, Justice Samuel Alito asked if that meant "every single company" in the country could potentially be in violation of the Civil Rights Act of 1964, which prohibits employment discrimination.

Possibly so, Sellers said.

Liberal justices were more open to the plaintiffs theory. "Excessive subjectivity" in employment decisions could qualify as an unlawful practice, Justice Elena Kagan suggested.

The question before the court wasn't whether Wal-Mart discriminated, but rather whether the millions of alleged victims, who worked in 170 job classifications across 3,400 stores, have enough in common that their claims can be fairly decided in single action.

The plaintiffs allege that subjective personnel decisions on the store level and an absence of job postings for job promotions exist within a corporate culture "rife with gender stereotypes," according to a brief filed with the Supreme Court.

Full post as published by Law Blog - WSJ.com on March 29, 2011 (boomark / email).