Top Court Rules In Favor Of Wal-Mart

The Supreme Court has ruled that the female employees of Wal-Mart cannot sue the retail chain for discrimination as a class.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

The Supreme Court has thrown out the largest sex discrimination lawsuit in American history. The nationwide class-action suit was brought against Wal-Mart on behalf of 1.5 million female employees. The 5-4 decision cannot prevent these employees from suing for discrimination individually.

But as NPR's Nina Totenberg reports, it does make any nationwide class-action lawsuit virtually impossible.

NINA TOTENBERG: By almost any marker, today's ruling is the most significant employment discrimination decision in more than a decade.

Ted Boutros represents Wal-Mart.

Mr. TED BOUTROS (Lawyer): This is an extremely important victory not just for Wal-Mart but for all companies who do business in the United States.

TOTENBERG: Joseph Sellers represents the women employees.

Mr. JOSEPH SELLERS (Lawyer): It's a great disappointment. It is not the end of the case by any means.

TOTENBERG: The issue before the Supreme Court was whether the female employees as a group could be certified as a single class to sue Wal-Mart at a single trial. Lawyers for the women introduced evidence showing that women held two-thirds of the lowest-level hourly jobs at Wal-Mart and only one-third of the management jobs, and that women overall were paid on average $1.16 an hour less than men in the same jobs, although the women had more seniority and higher performance ratings.

A federal judge, after hearing preliminary testimony, certified the class to proceed to trial, and Wal-Mart appealed all the way to the Supreme Court. Today, the company won.

Writing for the court majority, Justice Antonin Scalia said that in order to sue as a single class, the women would have to point to a discriminatory policy that affected all of them, and they could not do that. Indeed, Scalia noted that the company has a specific corporate policy against discrimination.

The four dissenting justices, including the court's three women, agreed that the lower courts had used the wrong standard in certifying the nationwide class, but they would have sent the case back to the lower courts for another look at whether the class could be certified using a stricter standard.

Writing for the dissenters, Justice Ruth Bader Ginsburg pointed to previous Supreme Court decisions holding that a companywide policy against discrimination can be undermined where, as alleged here, local supervisors have so much discretion that decisions are made without standards, often on the basis of biases unrecognized even by the supervisors themselves, for example, assuming that a female employee with a family would not be willing to relocate for a promotion.

Most experts saw the court's ruling as an expansive rejection of large employment discrimination class-action suits.

Civil rights lawyer David Sanford.

Mr. DAVID SANFORD (Lawyer): This is a disaster not only for civil rights litigants but for anyone who wants to bring a class action. The five-male majority decision today represents a jaw-dropping form of judicial activism.

TOTENBERG: Just last year, Sanford won a $175 million judgment against Novartis for its systemic discrimination against its 6,000 female salespeople nationwide on a theory similar to the one argued by the Wal-Mart plaintiffs that excessive discretion by supervisors resulted in gender discrimination. That case could not have been brought under today's ruling, he said.

Mr. SANFORD: I think it's going to change the landscape for class-action litigation.

TOTENBERG: Elise Bloom, who heads the class-action section at a law firm that defends large companies against class-action suits, agrees.

Ms. ELISE BLOOM (Lawyer): The first thing I'm going to do if there's been a certification decision, I'd go back and take a look at the certification decision and specifically take a look at, you know, what the basis for it was because the courts always have the ability to decertify.

TOTENBERG: Stanford law professor Debra Hensler, an expert on class-action suits, says she sees today's ruling as a pretty comprehensive defeat for civil rights plaintiffs.

Professor DEBRA HENSLER (Stanford Law School): I read this decision as saying absent that company having a policy that is clearly discriminatory on the face, which is, you know, hard to imagine in this day and age, that suits against discriminatory practices will now be much more difficult to pursue.

TOTENBERG: But Joe Sellers, the lawyer for the Wal-Mart women, says that while the road may be longer, he believes the case against Wal-Mart can still be made in cases brought on a statewide, region-wide or even storewide basis.

Mr. SELLERS: One of the things that was striking about this case more so than many, in my view, is how boldly and openly managers told women and men the reason why they weren't promoting women and were paying women less than men. This was not a practice that was furtive. It was quite out in the open.

TOTENBERG: Sellers says he's lining up lawyers around the country to use that data in smaller cases.

Nina Totenberg, NPR News, Washington.

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