Ninth Circuit Upholds Certification Of Massive Class Action Against Wal-Mart

Ninth Circuit Upholds Certification Of Massive Class Action Against Wal-Mart

The Ninth Circuit Court of Appeals, in a 6-5 ruling, upheld the certification of a class action involving the claims of approximately 500,000 female Wal-Mart employees alleging sex discrimination in pay and promotions. Dukes v. Wal-Mart Stores, Inc., 2010 U.S. App. LEXIS 8576 (9th Cir. Apr. 26, 2010) (en banc). The women accuse Wal-Mart of a nationwide practice of paying female employees less than male employees for the same or similar work and promoting female employees at a lower rate than their male counterparts in violation of Title VII of the Civil Rights Act of 1964 (Title VII). The Ninth Circuit reduced the size of the punitive class from 1.5 million to 500,000 employees by excluding workers no longer employed by Wal-Mart at the time plaintiffs filed suit in 2001 from the class. Still, this remains the largest civil rights class-action case ever.

In a vigorous dissent, Judge Kozinski summarized the problems with the majority’s ruling:

Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment.

Id. at 2010 U.S. App. LEXIS 8576, at *236.

Given the broad significance of the decision, many legal experts believe the U.S. Supreme Court will be persuaded to review the Ninth Circuit’s ruling.