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Though a sex-discrimination lawsuit against Walmart Inc. was ended by the U.S. Supreme Court in 2011, echos of the action, Betty Dukes et al v. Wal-Mart Stores Inc., continue.

Some of the women from that 1.5 million-member class -- the largest in U.S. history -- are now suing the Bentonville retailer. Two suits that together represent 79 women gained national attention when they were filed last month in Florida, and their attorney says hundreds more lawsuits are in the works.

Lindsey Wagner, an attorney with Scott Wagner & Associates law firm who represents the Florida women, said in a phone interview that the plaintiffs were all members of the certified class in the Dukes case. The firm also represents women in Ohio and California, along with hundreds in Florida, who are preparing similar "spinoff" suits, she said.

Wagner's law firm works on Walmart lawsuits with Cohen Milstein Sellers & Toll in Washington as its lead counsel. Cohen Milstein was involved in the original Dukes lawsuit. Wagner said the firm is also joining efforts with law firms across the country to help the women get their day in court.

"Our Florida case is just one of many lawsuits that our collective group is intending on filing within the next few months that are the next wave of Dukes cases," Wagner said.

Walmart spokesman Randy Hargrove said the company "has had a strong policy against discrimination in place for many years, and we continue to be a great place for women to work and advance."

The plaintiffs' claims "are not representative of the positive experiences that millions of women have had working at Walmart," Hargrove said. "We've said all along that if someone believes they have been treated unfairly, they deserve to have their timely, individual claims heard in court. We plan to defend the company against these claims."

DUKES V. WALMART

Betty Dukes, who died in 2017, was a greeter at a Walmart store in California when she and five other employees sued the retailer in 2001. The women said they were paid less than male co-workers and were passed over for raises and promotions that went to less-qualified men.

They accused Walmart of violating Title VII of the Civil Rights Act of 1964, which prohibits discrimination against workers based on their race, religion, ethnicity or sex. They asked for damages including back pay.

A federal judge in the Northern District of California certified the suit as a class action in 2004. The court upheld the plaintiffs' claims concerning equal pay. On the issue of promotions, the judge affirmed that the female employees were discriminated against but rejected their demands for back pay.

Both sides appealed the 2004 ruling, which was upheld in 2007 by the 9th U.S. Circuit Court of Appeals. After that, the battle centered on the legality of the class certification.

The yearslong fight ended June 20, 2011, when the Supreme Court reversed the class certification order.

The justices did not examine the merits of the suit's claims of discrimination on the basis of sex. Rather, they ruled unanimously that the plaintiffs failed to prove a pattern of sex discrimination at Walmart, and therefore the suit didn't meet the standards for class certification. They also ruled 5-4 that the plaintiffs didn't have enough in common to constitute a class.

Justice Ruth Bader Ginsburg wrote in her partial dissenting opinion that the plaintiffs' evidence suggested that sex bias "suffused" Walmart's culture.

"Managers, like all humankind, may be prey to biases of which they are unaware," she wrote. "The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes."

However, Justice Antonin Scalia wrote in the majority opinion that the plaintiffs "provide no convincing proof of a companywide discriminatory pay and promotion policy" at Walmart.

When the court made its ruling, Dukes' attorney Joseph M. Sellers said Walmart would see more sex-discrimination suits filed by individuals or smaller groups of plaintiffs. And that is exactly what has been happening over the past eight years and continues to happen, Wagner said.

SPINOFF LAWSUITS

Eighteen years after Dukes and her co-workers sued Walmart, former and current employees who were part of that class continue to pursue their discrimination claims in court.

The most recent suit, Brenda Houle et al v. Wal-Mart Stores Inc., was filed March 21 in U.S. District Court for the Middle District of Pennsylvania. A similar suit was filed in Pennsylvania's Western District just a week earlier.

Wagner said a federal lawsuit titled Kathleen Forbes et al v. Wal-Mart Stores Inc., filed Nov. 6, 2017, in the Southern District of Florida by seven plaintiffs, was the first in the current wave of litigation in that state. Previous cases have all been resolved, she said.

On Feb. 1, Jewel Price et al v. Wal-Mart Stores Inc., with 45 plaintiffs, and Francine Radtka et al v. Wal-Mart Stores Inc., with 34 plaintiffs, were filed in the same court. These are the suits that, because of the large number of women involved, drew renewed media attention to the ongoing Dukes saga.

Before lawsuits alleging discrimination can be filed in federal court, claims must be vetted by the Equal Employment Opportunity Commission. If the agency finds enough cause to merit a lawsuit, it will issue the complainant a right-to-sue notice. The lawsuit must then be filed within 90 days of receipt of the notice.

All complaints related to the Dukes case are handled through the Equal Employment Opportunity Commission office in Little Rock.

Of all the spinoff lawsuits filed since the Dukes suit ended, Wagner said, not one has been heard by a jury. Some have been settled, while others remain in litigation or in the appeals process.

"A lot of people think the Dukes case is over, that those cases have died, but the fact is they still continue on," Wagner said. "Our plaintiffs are even more determined for the opportunity to have their day in court for adjudication of their case on merit.

"We're moving forward with the intention that we want a jury to hear these stories of these women and to put a value to what they've gone through, collectively, through their experience with Walmart."

Photo by AP
Betty Dukes

SundayMonday Business on 03/31/2019

Print Headline: Lawsuits over bias still dog Walmart

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