SAN FRANCISCO — Wal-Mart Stores Inc. ran into hostile questioning Monday from judges deciding whether the nation's biggest employer must face the country's biggest lawsuit claiming men were favored over women on the job.
Two of three judges on a federal appeals panel grilled the retail behemoth's attorney, bringing up facts harmful to the company's defense and faulting him for using "arrogant" language in criticizing the trial court judge.
For The Record
Los Angeles Times Tuesday August 16, 2005 Home Edition Main News Part A Page 2 National Desk 2 inches; 85 words Type of Material: Correction
Wal-Mart discrimination case -- An article in the Aug. 9 Business section about a class-action lawsuit by female Wal-Mart employees who claim discrimination said a lower-court judge had thrown out a study by a company expert that found no pay disparity at 90% of Wal-Mart stores. In fact, the judge had stricken from the record a company survey of store managers and ruled that the survey couldn't be used to defend the study's approach. The same error had occurred in an article published Dec. 30.
The most forceful of the three, U.S. 9th Circuit Court of Appeals Judge Harry Pregerson, left little doubt that he was inclined to uphold a San Francisco federal judge's ruling last year that allowed more than 1.5 million female employees and former employees to proceed toward trial as a class, rather than force them to sue as individuals or on a store-by-store basis. Wal-Mart has about 3,600 stores.
"I've read the decision" by U.S. District Judge Martin Jenkins, Pregerson said. "It's very thorough and painstaking in its detail, and that's what we're here for -- to see whether he abused his discretion." Sitting before scores of spectators in a packed courtroom, Pregerson told Wal-Mart attorney Theodore Boutrous Jr. of Los Angeles that he ought to apologize to Jenkins for accusing him of "trampling" on the company's rights.
The 4-year-old lawsuit claims that Wal-Mart has systematically discriminated against women in pay and promotion, and that analysis of the company's payroll records shows female employees earn an average of 5% less than men with the same titles, even when women have more seniority and better performance scores.
As appellate Judge Michael Hawkins reminded Boutrous, women account for about two-thirds of Wal-Mart's hourly employees, but just one-third of its salaried managers.
Employer defense lawyers and trade associations say that if the case proceeds as a class action, Wal-Mart may be forced to settle rather than risk paying out billions of dollars in back pay and punitive damages. They say that will encourage more sweeping suits to be brought against big companies.
Only Judge Andrew Kleinfeld, the sole Republican appointee on the panel, directed many pointed questions at Brad Seligman, the Oakland lawyer representing at least six women and potentially every woman who worked at Wal-Mart or Sam's Club stores since 1998.
Kleinfeld said he was concerned that each store had a fair degree of autonomy in deciding whom to promote and what to pay, making it questionable whether the women could hold higher management to account.
