Wal-Mart sex-bias case is blocked

WASHINGTON — The Supreme Court blocked the largest sex-discrimination lawsuit in U.S. history on Monday, siding with Wal-Mart and against up to 1.6 million female workers in a decision that makes it harder to mount large-scale bias claims against the nation's other huge companies.

The justices all agreed that the lawsuit against Wal-Mart Stores Inc. could not proceed as a class action in its current form, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. By a 5-4 vote along ideological lines, the court also said there were too many women in too many jobs at Wal-Mart to wrap into one lawsuit.

"Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question," Justice Antonin Scalia said in his majority opinion joined by Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The decision was a huge win for Wal-Mart, which could have faced billions of dollars in damages and back pay.

Theodore Boutrous Jr., Wal-Mart's lawyer, said the decision also would affect pending class-action claims against Costco and others. Companies as varied as the big Wall Street firm Goldman-Sachs & Co., electronics giant Toshiba America Inc., and Cigna Healthcare Inc. also face class-action claims from women they employ.

"This is an extremely important victory not just for Wal-Mart, but for all companies that do business in the United States," Boutrous said.

The assessment was similar on the other side of the issue. Marcia D. Greenberger, co-president of the National Women's Law Center, said, "The court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights."

With 2.1 million workers in more than 8,000 stores worldwide, Wal-Mart could have faced billions of dollars in damages if it had had to answer claims by the huge group of women.

Now, the handful of employees who brought the case may pursue their claims on their own, with much less money at stake and less pressure on Wal-Mart to settle. Two of the named plaintiffs, Christine Kwapnoski and Betty Dukes, vowed to continue their fight, even as they expressed disappointment.

"All I have to say is when I go back to work tomorrow, I'm going to let them know we are still fighting," Kwapnoski said in a conference call with reporters.

The women's lawyers said they were considering filing thousands of discrimination claims against Wal-Mart, but they acknowledged the court had dealt a fatal blow to their initial plan.

In a statement, Wal-Mart said, "The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs' claims were worlds away from showing a companywide discriminatory pay and promotion policy."

Scalia said there needed to be common elements tying together "literally millions of employment decisions at once." He said that in the lawsuit against the largest private U.S. employer, "That is entirely absent here."

Justice Ruth Bader Ginsburg, writing for the court's four liberal justices, said the women had presented ample evidence that there was a problem at Wal-Mart, where women fill 70 percent of the hourly jobs but make up only 33 percent of management employees.

"Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores," Ginsburg said. Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer joined her opinion.

House Democratic leader Nancy Pelosi and other congressional Democrats criticized the ruling and called on Congress to pass the Paycheck Fairness Act to reduce wage disparities between men and women.

"This case is not over," said Brad Seligman, one of the lawyers representing the women. He said individual suits alleging discrimination, or smaller class-action suits, may proceed. "Wal-Mart is not off the hook."

Information from the Washington Post was used in this report.

About the ruling

On a 5-4 vote, the justices ruled that the case did not qualify as a class-action because the experiences of the women didn't have enough in common. This so-called commonality, Justice Antonin Scalia said in the court's majority opinion, is the "glue" holding together the plaintiffs' claims of discrimination.

The plaintiffs argued cohesiveness in claiming that Wal-Mart gave its supervisors too much discretion in matters of promotion and pay, allowing discriminatory practices to take root.

The court rejected that claim, saying that "in a company of Wal-Mart's size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way" without some uniform policy directing them to do so.

Washington Post

Wal-Mart sex-bias case is blocked 06/20/11 [Last modified: Tuesday, June 21, 2011 12:35am]

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