Wal-Mart faces historic sex bias case

In a dissent, 9th Circuit Court Judge Andrew Kleinfeld said the case should not be a class-action lawsuit.

"This case poses a considerable risk of enriching undeserving class members and counsel, but depriving thousands of women actually injured by sex discrimination of their just due," he wrote. "Plaintiffs' only evidence of sex discrimination is that around 2/3 of Wal-Mart employees are female, but only about 1/3 of its managers are female."

"Not everybody wants to be a Wal-Mart manager," Kleinfeld added. "Those women who want to be managers may find better opportunities elsewhere."

The decision by the San Francisco-based court will keep Wal-Mart on the defensive, said Brad Seligman, a lawyer for The Impact Fund, a nonprofit group in Berkeley, California representing the plaintiffs.

"Two courts now have ruled that Wal-Mart is going to have to face a jury," he said. "We fully expect Wal-Mart to keep appealing but we're very confident now that two courts have upheld this certification."

Donald Gher, chief investment officer of Coldstream Capital Management, which owns Wal-Mart stock, said the decision was a setback for the retailer and would cheer the company's critics in the U.S. labor movement.

"Clearly this is a big win for the tort lawyers and for the unions who are looking to cases like this to help bolster their ranks," he said.

But Gher noted that the lawsuit is far from over. "This could drag on for a very long time," he said.

(Additional reporting by Adam Tanner in San Francisco and Nicole Maestri in New York)