Wal-Mart case has high stakes for all workers

The justices will hear oral arguments on the case, which has been kicking around lower courts for a decade, on Tuesday. At issue is whether the women can sue Wal-Mart as a class.

The women, half of them still at the retail giant, say they can sue as a class. Wal-Mart says they can’t, under federal court rules governing class action suits. It wants them to sue it one by one. The AFL-CIO, Coalition of Labor Union Women and unions support the women while business groups, led by the Chamber of Commerce, back Wal-Mart.

Panelists assembled by the American Constitution Society on March 25 agreed “class certification” to let the case proceed on its merits in the lower courts is the key issue the justices must decide. Several asserted the court’s ruling could have wide ramifications for other workers at companies large and small, nationwide.

“This involves whether or not the nation’s anti-discrimination laws will have the full force and effect Congress intended when it passed them,” said Marcia Greenberger of the National Women’s Law Center, who was heavily involved in Lily Ledbetter’s sexual pay discrimination case several years ago. The justices ruled against Ledbetter 5-4, limiting her right to sue, and Greenberger helped draft the law overturning that verdict.

This case is about the right of workers to sue an employer jointly “and the bigger the employer, the more important it is to band together and discover the facts at issue.”

Lawyers’ discovery motions in the Wal-Mart case – which hasn’t been tried on its merits yet – show a pattern and practice of unlimited management discretion at the retail behemoth, coupled with sexist practices in pay and promotions. The abuses ranged from lower pay for more-qualified women to no notices of management openings, which then arbitrarily awarded to men. And the corporate culture was such that Wal-Mart managers’ meetings were sometimes held in Hooters.

The women and their attorneys want back pay, punitive damages and a court injunction and declaration that Wal-Mart’s practices are illegal and must change.

The Wal-Mart women “had higher evaluations, lower pay, fewer promotions and the higher up the ladder they went, the fewer they got,” Greenberger added. She called its actions “a web of policy that disadvantaged women all across the country.”

The catch, speakers said, is that Wal-Mart is not alone. While it’s the biggest private company in the world, it’s not the only one that practices such discrimination. Indeed, lawyers for the Wal-Mart women report two similar suits against other retailers for the same reasons are pending in California alone, awaiting the High Court’s ruling.

Catholic University law professor Suzette Malvaux said the women’s lawyers should emphasize their push for the injunction and the court declaration that Wal-Mart’s discrimination is illegal as their main goal. That’s the important point not just for the Wal-Mart women but for other women workers waiting behind them, she said.

“If you have a defendant,” Wal-Mart, “that acts in a way that’s broadly applicable to everybody in a class, then class-action relief is appropriate. We allow this (injunction) because the class is very cohesive – and because we want this conduct to end,” she said. As for damages, “They want back pay, to make somebody whole again.”

Wal-Mart argues not just for one-by-one suits, but that federal court rules “ban monetary relief,” Malvaux noted. If the justices were to agree, the panelists said, class action cases overall would become difficult if not impossible to bring.

The dissenter on the panel, corporate attorney Andrew Trask, admitted even a large money judgment against Wal-Mart – the women are seeking $1 billion covering all 1.6 million over years of work at its stores – wouldn’t hurt Wal-Mart that much. “It has 1 million employees, $170 billion in assets and $384 billion in sales, so Wal-Mart can take care of itself,” Trask said of the retail behemoth.

“The question is ‘Can you take a rule for Betty Dukes,’” the present Wal-Mart greeter who’s the lead plaintiff in the case “and apply it to 1.6 million other people?”

He contended the answer, under federal court rules on class actions, may well be “no.” The fourth panelist, plaintiffs’ class-action lawyer Adam Klein added that’s “called ‘bridging the gap,’ and that’s the issue the court will tackle.”

Back pay is critical to righting wrongs, Trask said, and the Supreme Court has said so. The question then becomes, he added, whether the pay request – the billion dollars – overshadows the injunction demand. If it does, he contended, the suit fails.

It was Greenberger, however, who had the last word. The writers of both the court’s class action rules and federal civil rights laws had systemic discrimination and “systemic change in mind,” she said. “In a civil rights case, when you’re dealing with the nature of discrimination, that goes far beyond the numbers,” or that case alone.

Mark Gruenberg writes for Press Associates, Inc., news service. Used by permission.