Walmart may avoid lawsuit by 1.6 million women

THE US Supreme Court appears ready to block a massive sex discrimination lawsuit against Walmart on behalf of up to 1.6 million women, and that could make it harder for other workers nationwide to bring class-action claims against large employers.

The 10-year-old lawsuit, argued in lively exchanges at the court, claims that Wal-Mart Stores, the world’s largest employer, favours men over women in pay and promotions.

Billions of dollars are at stake if it is allowed to go forward.

The case for now is the largest class action in US history, but the five-member conservative majority on the nine-member high court may derail it, judging by comments from the bench during argument.

The case could affect the future of other class-action lawsuits that pool modest individual claims into a single action that creates the potential for a large judgement and increases the pressure on businesses to settle.

In the arguments, several justices suggested they were troubled by the case and lower-court decisions against Arkansas-based Walmart. Estimates of how many women could be included in the lawsuit run from 500,000 to 1.6 million.

Justice Anthony Kennedy, a key swing vote who normally helps form the five-member conservative majority, said, “It’s not clear to me: What is the unlawful policy that Walmart has adopted, under your theory of the case?”

Plaintiffs attorney Joseph Sellers said Walmart store managers have been given “unchecked discretion”, and they use it to discriminate against women.

Kennedy said the complaint “faces in two directions. ... You said this is a culture where ... the company headquarters knows everything that’s going on. Then ... you say ... these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.”

Kennedy was seconded by fellow conservative Justice Antonin Scalia.

CNN also reported the female workers were facing an uphill battle, saying the narrow conservative majority appeared sceptical about allowing workers from across the country to file one suit and undergo one trial.

The court’s three female members — liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — appeared to favour the plaintiffs.

The Supreme Court is not reviewing the merits of the suit — whether Walmart is guilty of discrimination against women — but whether the enormous class action should be allowed to proceed.

The case started in San Francisco in 2001 when six women filed suit claiming discrimination, in part because they were passed over for promotion in favour of men. One says she was told, “It’s a man’s world.”

“This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart’s approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications,” the company’s petition to the Supreme Court said.

“The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.”

A federal appeals court panel and the full US Court of Appeals for the 9th Circuit, both divided, approved the certification of the class.

The Supreme Court should hand down a decision before the summer recess in late June or early July.