Appeals court OKs Wal-Mart class action

By Kathy Woods | Apr 27, 2010

SAN FRANCISCO (Legal Newsline)-A federal appeals court ruling this week has opened the door for thousands of female Wal-Mart employees to sue the retail giant in a single class action lawsuit for alleged gender discrimination.

The 10-year-old lawsuit is the biggest employment discrimination case in U.S. history.

The 9th U.S. Circuit Court of Appeals in San Francisco on Monday upheld a ruling in December by a three-judge appeals panel that approved class action status for a lawsuit claiming that Wal-Mart was discriminatory in its pay and promotion policies.

In the original case, filed in 2001, the Bentonville, Ark.-based retailer was sued by six female workers who claimed the company paid women less than men and give them fewer promotions. They said 65 percent of Wal-Mart's hourly employees were women, but just 33 percent of the company's management team is female.

Monday's 6-5 ruling did not address whether the discrimination took place. It only dealt with whether female employees could sue the company collectively in a single class action.

The number of women who qualify for the class action lawsuit is between 500,000 and 1 million. The court has limited the class to Wal-Mart employees who were working after the original lawsuit was filed in 2001.

"Although the size of this class action is large, mere size does not render a case unmanageable," Judge Michael Daly Hawkins wrote for the 9th Circuit's majority opinion.

Dissenting judges, however, argued the potentially mammoth case should not proceed as a single class action.

"Never before has such a low bar been set for certifying such a gargantuan class," Judge Sandra Ikuta wrote.

She noted that the lawsuit could be used to target other large companies "based on nothing more than general and conclusory allegations, a handful of anecdotes and statistical disparities that bear little relation to the alleged discriminatory decisions."

Wal-Mart, the nation's largest retailer, has said it will ask the U.S. Supreme Court to review the case.

"We disagree with the decision of the sharply divided 6-5 court to uphold portions of the certification order, and are considering our options, including seeking review from the Supreme Court," said Wal-Mart General Counsel Jeff Gearhart.

If the nation's high court accepts the case and reverses the case's class action status it could mean that the plaintiffs would need to proceed individually with legal action against the company.

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