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A question of class

The Supreme Court will decide whether female employees of Wal-Mart can bring a class-action suit alleging sex discrimination.

January 03, 2011

The Supreme Court has agreed — ominously — to consider derailing a sex-discrimination lawsuit against the giant retailer Wal-Mart. If the justices rule that the class-action suit can't go forward, Wal-Mart employees may not be the only ones to be denied a meaningful day in court.

The allegations against Wal-Mart, which haven't yet been put to a trial, are that women are paid less than men for comparable jobs and that women receive fewer promotions. But those issues aren't before the Supreme Court. Instead, the justices will decide the more significant question of whether hundreds of thousands of female employees can join together as a "class" to be represented by a handful of named plaintiffs.

Though derided by business groups, which claim that they give plaintiffs an unfair advantage, class-action suits are often the only way to achieve justice for workers who can't — and shouldn't have to — proceed with anti-discrimination claims individually. But whether such suits can go forward depends on a court's determination that there are questions of law and fact common to members of the class. This case is a bold attempt to persuade a conservative Supreme Court to dramatically narrow the criteria for determining what a class is. If Wal-Mart succeeds, victims of discrimination in future cases will find it much more difficult to pursue justice. There is currently no limit on the size of a class, nor should there be.

Wal-Mart says that its huge female workforce doesn't have enough in common to form a class, and points out that hiring and promotion decisions are made by individual store managers, not at the company's Arkansas headquarters. It dismisses the plaintiffs' argument that there is a corporate culture that requires allegations of discrimination to be considered on a company-wide basis.

A majority of the U.S. 9th Circuit Court of Appeals found that it was reasonable in this case to regard all female employees as a class. Writing for the majority, Judge Michael Daly Hawkins cited a finding by a lower court that Wal-Mart's system for compensating and promoting employees was sufficiently similar across regions and stores to raise issues "common to all class members." The dissenters ridiculed that notion, with Chief Judge Alex Kozinski saying that members of the proposed class "have little in common but their sex and this lawsuit."

But the majority got it right. Referring to the court's estimate of 500,000 female Wal-Mart employees, Judge Susan P. Graber wrote in a concurring opinion: "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class." In other words, Wal-Mart's size shouldn't immunize it to a lawsuit that otherwise meets legal standards.

Underlying the dispute about the contours of a class is a more general question: Should civil rights laws be interpreted liberally, or should courts adopt narrow interpretations that close the courthouse door to victims of bias? A victory for Wal-Mart would represent the triumph of the latter view.

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