Appeals court upholds women's right to sue Wal-Mart for alleged discrimination

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By Ylan Q. Mui
Washington Post Staff Writer
Tuesday, April 27, 2010

A federal appeals court ruled Monday that thousands of female Wal-Mart employees can sue the world's largest retailer as a single class over allegations that it paid them less than men and gave them fewer promotions.

The 6 to 5 decision by the U.S. Court of Appeals for the 9th Circuit in San Francisco is the latest step in a nearly decade-long battle to bring the case to trial. Wal-Mart said that it now plans to request that the Supreme Court review the ruling. But attorneys for the women said they hope the case will go to trial by the end of the year.

"Our clients are determined to see this case through to its conclusion," said Joseph Sellers, a lawyer with Cohen Milstein and co-lead counsel on the case.

The appeals court did not rule on whether discrimination occurred at Wal-Mart but on whether female employees could sue the company collectively. The original class covered women who have worked at Wal-Mart's sprawling fleet of about 3,400 stores since 1998, initially estimated to number about 1.6 million, which would have made it the nation's largest sex discrimination case.

But the appeals court decided to carve out female workers who left the company before the suit was filed in 2001. Sellers estimates that the class still encompasses more than 1 million women, but Wal-Mart said the number has been whittled to roughly 500,000. The circuit court also referred to a lower court the issue of whether employees can seek back pay and punitive damages.

The decision upholds the appeals court's 2007 decision approving the class, which Wal-Mart had asked the court to reconsider under a larger panel of judges. Several business groups, including the U.S. Chamber of Commerce, also had filed amicus briefs calling for a reversal of the class certification.

"We've always believed that this case presented issues that go far beyond the parties," said Ted Boutrous of the law firm Gibson Dunn, who is representing Wal-Mart. "This formula is really a recipe for massive litigation against companies around the country."

The original case named six plaintiffs led by Betty Dukes, a Wal-Mart greeter in California, who accused the company of paying them less than their male counterparts, despite having higher performance ratings and more seniority. They also claimed that they received fewer promotions and had to wait longer for them. The women are represented by the nonprofit Impact Fund and several other groups.

Wal-Mart said it has made significant strides to support female employees and noted that it was named one of the 10 best companies to work for by Pink Magazine, which is aimed at women in business.


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