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Wal-Mart bias challenge fails again

The twelve-year effort by women employees of the giant Wal-Mart Stores discount chain to prove that they are victims of workplace bias has hit another legal obstacle, as a federal judge in San Franicsco turned aside their newly crafted plan to join together in common claims of sex discrimination in pay and promotions.  They had pared down their group claim from a class of 1.5 million workers — a class rejected by the Supreme Court two years ago — to one-tenth that number, 150,000.

But, Senior U.S. District Judge Charles R. Breyer, in a seventeen-page ruling issued Friday, said the new class was still too large and that the claims were still too lacking in specifics to show that the women in the group suffered the same kind of bias from managers or company leaders   He thus refused to allow them to continue their case as a class-action lawsuit under federal civil rights law.  The ruling left the female workers, present and former, to try to prove their own claims individually.  The judge did not rule on any of those.

Instead of seeking to press their claims on a nationwide class of workers at Wal-Mart’s 3,400 stores, as their initial version did, the female workers had asserted that they represented about 150,000 employees in what is called the “California Region” of the company — an area made up of three Wal-Mart geographic zones and 250 stores.  The new version sought to represent any female workers who had been on the company payroll between December 26, 1998, and December 31, 2002, and who were subject to pay scales based on hourly rates and on salary levels, and were eligible for promotion to management trainee or area manager.

In its 2011 decision, the Supreme Court had blocked the larger class claim, the largest ever made, concluding that the women’s lawsuit had not offered enough evidence that they shared the same legal claims of bias, and thus had not proven that all of their claims could be litigated in one massive case.  The case then returned to lower courts, and the challenging employees offered what Judge Breyer called a “retooled class definition, allegations, argument, and evidence” which they believed would show that their claims did share commonality — one of the key requirements of the federal court rule (Federal Rule of Civil Procedure 23) that governs class-action lawsuits.

But, the judge decided, the new class “continues to suffer from the problems that foreclosed certification of the nationwide class.”  Though the workers “insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.”

Judge Breyer found that the new version failed both in its claim that Wal-Mart pay and promotion practices actually treated female workers worse than male workers, and its separate claim that those practices had a more negative impact on women than on men.

While the judge conceded that the suing employees “had amassed substantial evidence of discrimination against women that occurred at Wal-Mart stores during the period at issue in this suit,” they had not satisfied the legal standards that the Supreme Court set for them in its 2011 decision on the scope of Rule 23.

Judge Breyer’s decision is subject to appeal to the Ninth Circuit Court and, ultimately, to the Supreme Court.  Judge Breyer is the brother of Justice Stephen G. Breyer, who often declines to take part in reviewing decisions issued by his brother on a lower court.



Recommended Citation: Lyle Denniston, Wal-Mart bias challenge fails again, SCOTUSblog (Aug. 5, 2013, 12:34 AM),