The number of women who could be included in the sex discrimination class-action suit is measured in millions. The amount of damages for which the nation’s largest private employer could be liable is estimated in billions.
If the Supreme Court agrees the case can move forward, it would be the largest employment discrimination class-action suit in U.S. history. As Wal-Mart likes to point out, the suit could include more people than the number now serving in the Army, Navy, Air Force, Marines and Coast Guard combined. Oral arguments are scheduled for Tuesday.
The prospect of such a massive lawsuit — or, alternatively, a ruling that hobbles workers from mounting class-action suits against large, national employers — has drawn an outpouring of competing briefs from corporate America and the nation’s leading civil rights groups.
The suit, filed by six female Wal-Mart employees in 2001, will also spotlight two intriguing story lines about the Supreme Court.
One is the perception, reinforced by President Obama, congressional Democrats and civil rights groups, that the court is overly protective of the corporate world. There is evidence to support the claim as well as exceptions, but there seems little doubt about how a ruling for Wal-Mart would be portrayed by liberal groups already suspicious of the court and the huge company.
Also notable is that the case — featuring charges by women of unequal pay, sexist remarks and insurmountable obstacles to promotion — arrives at a court whose membership for the first time is one-third female.
Justice Ruth Bader Ginsburg, 78, the oldest member of the court, made her career advancing the rights of women and challenging laws that treated the sexes differently. She has been joined by fellow Democratic nominees Sonia Sotomayor and Elena Kagan.
“The mere presence of three female justices on a previously male-dominated bench gives the plaintiffs’ side a symbolic boost,” said Barbara Perry, who studies the court at the University of Virginia’s Miller Center for Public Affairs. Referring to the Wal-Mart greeter who is the lead plaintiff in the case, she added, “The more women on the bench, the more likely Betty Dukes’ story of discrimination will resonate.”
That said, Perry also noted that the court is not deciding whether Wal-Mart is guilty of discrimination. Instead, it will decide whether the small group of plaintiffs have satisfied federal class-action rules, allowing them to stand for co-workers nationwide who they say have suffered under common discriminatory practices. The class would include all women who have worked at Wal-Mart since December 1998.
A federal judge in San Francisco ruled that the suit could go forward. The plaintiffs’ attorney, Brad Seligman, a class-action specialist at the Impact Fund, a tiny public-interest law firm in Berkeley, Calif., assembled statistics showing that women constitute 80 percent of hourly Wal-Mart workers but hold only a third of managerial jobs. The percentage decreases on each step up the company hierarchy.