Supreme Court justices questioned the underpinnings of a massive class-action lawsuit against Wal-Mart on Tuesday and whether female employees could show that a common, discriminatory policy governed the company’s pay and promotion decisions.
Even justices who seemed sympathetic to letting the largest gender discrimination lawsuit in history proceed to trial had questions about how it might go forward.
March 29 (Bloomberg) -- David Ross, a partner at Seyfarth Shaw LLP, discusses Wal-Mart Stores Inc.'s bid to stop a class-action gender-bias suit. The U.S. Supreme Court is set to hear arguments today on whether allegations of discrimination over promotions and pay warrant a class-action suit potentially on behalf of more than 1 million female Wal-Mart workers.
Lawyers for women suing the nation’s largest retailer built their case on affidavits from more than 100 workers and a statistical model showing that, while women make up 80 percent of the company’s hourly workers, they account for only 30 percent of its managers. They allege pay discrepancies, unequal promotion policies and a male-dominated management.
But some justices said they had trouble understanding how, in the plaintiffs’ view, Wal-Mart carried out its policy of discrimination.
“It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?” asked Justice Anthony M. Kennedy, often the key vote on a divided court.
Joseph M. Sellers, a Washington lawyer who argued the case on behalf of Wal-Mart greeter Betty Dukes and other women, said Wal-Mart allowed great discretion to local managers to make pay and personnel decisions.
But he said the Bentonville, Ark.-based company instilled in those managers a sense of “the Wal-Mart way” that was used to “pay women less than men who were doing the same work in the same facilities at the same time . . . and provided fewer opportunities for promotion.”
Kennedy was not satisfied.
“Your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on,” Kennedy said. “Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there.”
Justice Antonin Scalia quickly picked up the theme.
“I’m getting whipsawed here,” Scalia said. “On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a — a strong corporate culture that guides all of this. Well, which is it?”
The questions echoed Wal-Mart’s argument that lower courts should not have certified a class-action suit against the company, because hiring practices and anecdotal evidence of discrimination cannot be tied to the company, which has an official policy of nondiscrimination.
“If the three named plaintiffs stand before the court, they are supposed to represent 500,000 or a million or more people,” said Theodore J. Boutrous Jr., who represented Wal-Mart. “And the claim is that the individual decision-makers in those other cases exercised their discretion in a way that was biased, and there’s no proof of that.”
The issue before the court is not whether Wal-Mart is guilty of discrimination, but whether the women suing the company have made a compelling case that a jury should hear the issue.
The court’s liberals stressed that point, and said that simply adopting a policy of nondiscrimination was not enough to insulate Wal-Mart from liability.
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