On March 29, 2011 the United States Supreme Court heard arguments in the “Wal-Mart” case; known as the largest sex-discrimination class action in history. The outcome will not be known for some time but the court watchers are not in agreement regarding the probable outcome.
Wal-Mart’s attorney argued that a class of women composed of workers throughout the country numbering well over one million does not have enough in common to be a “class” for litigation. The lawyer for the plaintiff, class, seemed to have inconsistent arguments: on the one hand he argued that the strong culture in the head office made it difficult for women to receive fair treatment in pay or advancement. On the other hand he argued that excessive discretion in the hands of local managers was the cause of the discrimination. Justice Kennedy remarked to Plaintiff’s counsel: “it’s not clear to me: what is the unlawful policy that Wal-Mart has adopted, under your theory of the case.”
For a class action the plaintiff needs to prove “commonality” and “numerosity.” (Common claims and large numbers) Manifestly, there is a sufficient number for the class, the issue for the Supreme Court is “commonality.” Although it is unknown what the Supreme Court will ultimately decide, it looks as if Wal-Mart is ahead at this point.
Image Source: http://commons.wikimedia.org/wiki/File:Walmart_exterior.jpg
Dan Durrant - Civil Litigation Attorney
Author: Dan Durrant is an experienced litigation attorney in Phoenix, AZ, providing lead counsel on over 100 trials in his career. Notable areas of practice include: employment law, professional liability, sex/gender discrimination, lender liability, and product liability.
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