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Wal-Mart appeals in job bias case

UPDATE: The Wal-Mart petition has been docketed as 10-277.


Wal-Mart Stores, the nation’s largest private employer, urged the Supreme Court on Wednesday to put new limits on the use of payroll-wide lawsuits in job bias cases, and to block such sweeping claims when workers are asking for back pay and other forms of money damages.  In a petition for review (not yet assigned a docket number), Wal-Mart also contended that the Ninth Circuit Court had stripped it of some of its legal defenses to a massive workplace discrimination claim, affecting at least 1.5 million women.  The appeal by the huge discount retail chain mounts a broad attack on a 6-5 ruling in April by the Ninth Circuit; that court’s en banc ruling can be found here.

The appeal raises two questions: first, whether claims for money damages may ever be the basis for a class-action lawsuit under the court rule used in this case, and, if so, when, and, second, whether the order creating a “sprawling” class of workers violates federal law on employment discrimination, two clauses of the Constitution, or federal court rules on class-action lawsuits.

The class created in the case, Wal-Mart said, is the largest in history in an employment lawsuit, and “includes every woman employed for any period of time over the past decade, in any of Wal-Mart’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 claims in the case, it added, are for “billions of dollars in monetary relief” under Title VII for alleged discrimination based on the women workers’ sex.

This “is one of the most important class-action decisions since the modern Rule 23 [governing such claims] was adopted in 1966,” the petition commented.  It noted that the Circuit Court ruling, upholding a trial judge’s class order, has drawn widespread attention “in the national and academic press.”  Quoting one of the dissenting Circuit judges, the petition noted that the class involves such a wide array of women that they have little in common except their gender and this lawsuit.

As certified by the order at issue, the lawsuit will embrace the claims of “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenge pay and management track promotions policies and practices.”  In upholding the trial judge’s order on the class scope, the Circuit Court noted that the judge would be free to undo the class if it were found to be unmanageable as the case moved along.  The Circuit Court noted that it was taking no position on whether Wal-Mart’s job policies did discriminate against women workers.   The six present and former Wal-Mart workers contended that the company gives local managers wide discretion over employment policy, and this has resulted in treating women workers less favorably than men, through sex stereotyping and outright discrimination.

The Title VII lawsuit, originally filed more than nine years ago, has not yet gone to trial.  In fact, in May, all parties involved in the case agreed that all proceedings in the District Court would be “stayed until the Supreme Court rules on Wal-Mart’s forthcoming petition for a writ of certiorari to review the Ninth Circuit’s April 26, 2010, en banc decision” — that is, its ruling upholding the class order.  (The stipulation on the stay can be found here.)  The case is pending in federal District Court in San Francisco (Dukes, et al., v. Wal-Mart Stores, docket 01-2252.)  District Judge Martin J. Jenkins certified the class that Wal-Mart is contesting. (Judge Jenkins in 2008 left the federal bench to become a state appeals court judge, and the Wal-Mart case has been taken on by Chief Judge Vaughn R. Walker.)

On the class issue, the new petition noted that Judge Jenkins had based the order on a federal court rule (23[b][2]) that “applies only to claims for injunctive or corresponding declaratory relief.”   There is now a three-way split among Circuit Courts on this issue, Wal-Mart said; it noted that the Supreme Court in the past had agreed to review aspects of this question, but has not yet done so finally.  “It is now time to do so,” it argued.

Besides protesting the class order, the petition contended that the en banc majority “departed from this Court’s precedents, and created conflicts with virtually every other circuit, on several other important and recurring issues in class action and employment law.”

The majority, it argued, freed the suing workers from bringing forth significant proof of an illegal job practice or policy affecting all class members in the same way, and “swept aside the need to determine millions of individual issues by relieving [the workers] of their burden of proving intent and injury and by stripping Wal-Mart of its right to assert crucial defenses explicitly established by Title VII.”  Besides contradicting numerous decisions of the Supreme Court and other courts, that approach, the discount chain asserted, violated its constitutional right to due process, its constitutional right to a jury under the Seventh Amendment, and federal court rules.

The case, of course, has now reached the Justices early enough that, if granted, it could be decided in the coming Term of the Court, likely to run until late next June.  Under the Court’s rules, the suing workers have 30 days to respond to the petition, although that time can be extended.  It now appears that the Court is not likely to act on the petition until late this fall; if granted, the case is expected to draw a large group of supporting and opposing briefs from business, labor and individual rights groups.