LITTLE ROCK — Approaching a decade since it was filed, the Dukes v. Wal-Mart Stores Inc. sex-discrimination case is scheduled for oral arguments before the U.S. Supreme Court on March 29.
Dozens of companies and organizations have weighed in on the lawsuit, which seeks to represent about 1.6 million current or former female employees who have worked for Wal-Mart since Dec. 26, 1998.
Plaintiffs claim that they were systematically paid less than men performing the same jobs and were not given opportunities to move into better-paying, supervisory positions.
In class-action cases, the named plaintiffs seek to represent a much larger group of people alleging the same or similar grievances.
Despite the magnitude of the case, the attorneys and justices are not likely to spend much time on the core allegations of the lawsuit during the oral arguments. After 10 years, the two sides are still arguing over whether this is, indeed, a class that can be represented in a lawsuit.
Wal-Mart says no and is supported by other retailers and retail trade groups. Two panels of judges from the 9th U.S. Circuit Court of Appeals in California have said yes, though both were split decisions.
“This is the most important class-action issue to be decided in at least a decade,” said Scott Dodson, associate law professor at The College of William & Mary in Williamsburg, Va., and a former law professor at the University of Arkansas at Fayetteville.
Typically, class-action lawsuits certified under the Supreme Court rule used in this case are seeking action such as an order to cease discriminating against members of a class, rather than monetary damages, he said.
Originally filed in 2001, the lawsuit was certified as a class action by a trial judge in 2004. Since then, the legal battle has been whether that move was legal ..
Wal-Mart contends that certifying the class would deny its right to defend against specific claims of discrimination.
“The class members - potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country - assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses. The named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent,” Wal-Mart’s attorneys said in a brief filed with the court.
“These intractable prob-lems are compounded by a virtually boundless class definition that produces an across-the-board class pervaded by conflicts among its members,” the company said.
Brad Seligman, one of the plaintiffs’ attorneys, counters that lawsuits by individuals would not change the company’s behavior.
“Ultimately, what Wal-Mart hates about this case, and why all the large corporations are supporting them, is that this case levels the playing field,” he said. “On her own, Betty Dukes couldn’t challenge Wal-Mart. That’s essentially what it comes down to.”
The plaintiffs said in their Supreme Court brief that many of their claims amount to an annual wage loss of $1,100, compared with men’s salaries, a figure they said would not be sufficient to pursue in individual lawsuits.
Dukes, the named plaintiff,remains on the job as a greeter at a California store.
Among the plaintiffs’ arguments in the case is that Wal-Mart did not have a system to post-management opportunities or explain criteria for pay levels and for making promotion decisions.
Melissa Hart, a law professor who specializes in employment discrimination at the University of Colorado, said the court’s decision will be significant either way it goes. A decision is expected in June.
“This is a complicated case and a hard case, but the issues are clearly presented,” she said.
Hart is among about 30 law professors who filed a brief in the case urging the high court to uphold certification. She said the plaintiffs’ attorneys followed proper procedure and the 9th Circuit court should proceed to the merits of the case.
If the court reversed the 9th Circuit, she said, “there’s so many different ways they could do that, so many options, it’s hard to predict what that would look like.”
Other large retailers have weighed in on Wal-Mart’s behalf through the Retail Litigation Center, which is part of the Retail Industry Leaders Association. The group, of which Wal-Mart is a member, includes chains such as Target Corp., J.C. Penney Co., The Home Depot, Sears Holdings Corp. and Best Buy Co. Inc.
Calling the 9th Circuit’s certification of the case a “misguided and expansive interpretation of the class-action rules,” the group said the court “allowed a handful of plaintiffs to claim that allegations of isolated discrimination in a fraction of Wal-Mart’s stores entitled them to represent roughly a million women who work or once worked at every Wal-Mart store in the country, in a wide range of positions and at all levels of salary.”
The United Food and Commercial Workers International Union, which has tried with little success to organize Wal-Mart employees, filed a brief that said, in part, that “Wal-Mart does not acknowledge, much less attempt to deal with, the specifics of the named plaintiffs’ robust statistical evidence, and that head in the sand approach is unsurprising under the circumstances.”
The U.S. Chamber of Commerce warned in its brief that allowing the class-action status to stand would “have deeply destructive effects on businesses nationwide” and trigger a series of similar lawsuits.
The Supreme Court case is No. 10-277.
Business, Pages 71 on 03/20/2011