Issue link: https://cp.revolio.com/i/30780
law I DISCRIMINATION for a decade now. In this latest—and likely last appeal before the case pro- ceeds to trial—the corporation is chal- lenging an April 2010 ruling by the U.S. Court of Appeals for the 9th Circuit that upheld a 2004 decision by a California District Court allow- ing the class action to go forward. This “class certification” indicates that a group of people experienced similar-enough discrimination to per- mit their individual cases to be han- dled together. In the 2004 decision, the court con- cluded that there was significant evi- dence of company-wide pay and promotion discrimination and that Wal-Mart long knew of it but failed to take corrective action. Wal-Mart ap- pealed the case unsuccessfully four times before the 9th Circuit before pe- titioning for Supreme Court review. Obviously Wal-Mart would much rather divide the cases than face one all-encompassing case. If the plaintiffs are not permitted to proceed as a class, the vast majority of claims would never become individual lawsuits, since it would be too cost-prohibitive for workers to pursue them. Among its arguments to the Supreme Court, Wal-Mart insists there is not enough uniformity among the claims to justify a class ac- tion. But, the plaintiffs responded, the lower court felt there was ample evidence: For example, Wal-Mart failed to make it policy to post pro- motion opportunities for retail-store employees, nor did it specify criteria for setting pay or making promotion decisions. All of those are standard practices in the American work- place—just not at Wal-Mart. Instead, plaintiffs argue, Wal-Mart chose to maintain highly subjective policies, enforced by its home office. According to the plaintiffs, evi- dence shows that Wal-Mart has long recognized that its female workforce 48 | SPRING 2011 suffers the most from its subjective policies. The corporation’s own data shows that its women employees, on average, perform better and are more experienced than Wal-Mart’s male employees, but women’s pay lags far behind in every major position in all 41 of the company’s regions. Women at Wal-Mart have also faced a classic glass ceiling: They hold only 34.5 percent of management jobs in Wal- Mart stores, and that number sinks at each rung up the management ladder. If the Supreme Court sides with Wal-Mart, it could have a devastating impact on the use of class actions as a tool to combat discrimination. Plain- tiffs argue that it would preclude “certification of all but the smallest employment-discrimination cases, and would require this court to over- rule 45 years of civil rights and class- action precedent.” “Wal-Mart contends that the class certified in this case is too large to be manageable,” says Joseph M. Sellers, who will argue the case for Wal- Mart’s women before the Supreme Court on March 29. “But the large size of the class is the direct result of the broad evidence of discrimination and the large number of women ad- versely affected by Wal-Mart’s dis- criminatory policies and practices. There is no large-company exception in the civil rights laws.” If the class certification is upheld, the case will proceed to trial—and we’ll see then how Wal-Mart explains its policies. n JUSTINE ANDRONICI is an attorney at the Centre County Women’s Resource Center in Pennsylvania and of counsel to Katz, Marshall & Banks, LLP, a civil rights law firm in Washington, D.C., specializing in employment discrimination, sexual harassment and women’s rights. DEBRA KATZ is a partner with Katz, Marshall & Banks, LLP. www.feminist.org