Back in June, the United States Supreme Court ruled that a class of 1.5 million women could not pursue gender
discrimination claims together against Wal-Mart because they lacked a
If, at first, you don't succeed, file this Complaint
in California on behalf of a class of only 90,000 plaintiffs. Will this small
smaller lawsuit hold up?
Size matters, ladies.
Let's recap exactly what went wrong the first time, when
the class consisted of 1,500,000 plaintiffs. The plaintiffs alleged that, nationwide,
there was a general practice of discrimination against women. However, the
Supreme Court reasoned that the class, consisting of so many current and former
Wal-Mart employees from across the county, could not have possibly suffered the
The only corporate policy that the
plaintiffs' evidence convincingly establishes is Wal-Mart's "policy"
of allowing discretion by local supervisors over employment matters. On its
face, of course, that is just the opposite of a uniform employment practice
that would provide the commonality needed for a class action; it is a policy
against having uniform employment practices.
So, if 1,500,000 plaintiffs from across the country is
too large a class, how about 90,000 plaintiffs from California only. Judy Greenwald
at Business Insurance has a story on Walmart Class Action 2.0, in which she reports
that Wal-Mart believes that the second verse will be the same as the first:
A Wal-Mart spokesman said the company has
long held that the plaintiffs' claims are unsuitable for class action treatment
"because the situations of each of the individuals are so different."
The latest proposed class is "no more appropriate than the class that the
Supreme Court rejected," he said.
While Wal-Mart "continues to believe
anyone treated unfairly should have their day in court," it is a
"great place to work" and the retailer is ready to defend its record,
the spokesman said.
Will Wal-Mart prevail again?
Back when I discussed the Supreme Court decision, I predicted that we would see some smaller class-actions
against Wal-Mart But 90K plaintiffs? These women claim to have been
subjected to gender discrimination as a result of specific policies and
practices in Wal-Mart's regions located in California. The plaintiffs allege
three forms of gender discrimination:
Before any court will get to the merits of the
discrimination claims, it must determine whether this class of women can
proceed together. Ultimately, whatever size the class, the plaintiffs must be
able to identify a "common mode of exercising discretion" among the
decisionmakers at the subject Wal-Mart locations. Otherwise, they will not be
able to proceed as a class.
This article was originally published on Eric B. Meyer's blog, The Employer
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