High Court Limits Wal-Mart Discrimination Case

The U.S. Supreme Court has thrown out the largest sex discrimination lawsuit in American history. It was a nationwide class action lawsuit brought against Wal-Mart on behalf of 1.5 million female employees.

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The U.S. Supreme court has reshuffled the deck in civil rights litigation, throwing out the largest sex discrimination lawsuit in U.S. history. In jettisoning a case brought by 1.5 million women against Wal-Mart, the Court, by a 5-to-4 vote sent a clear message: bringing class action employment discrimination cases will be much more difficult in the future. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: You could hear the elation in the voice of Wal-Mart's lead counsel Ted Boutrous. For the business community, yesterday's decision represented the best of times.

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

TOTENBERG: For civil rights lawyers, though, the decision represented the worst of times. Marsha Greenberger is president of the National Women's Law Center.

Ms. MARSHA GREENBERGER (President, National Women's Law Center): It's got a triple whammy of a disaster effect for those who are trying to fight discrimination in the workplace.

TOTENBERG: Civil rights lawyer David Sanford, who specializes in employment discrimination class actions, says the court's decision will remake the legal landscape. Sanford won a $175 million judgment against Novartis just last year on behalf of 6,000 women who brought a sex discrimination class action.

Mr. DAVID SANFORD (Attorney): We would not have succeeded in the way we did had this decision been on the books a couple of years ago.

TOTENBERG: Elise Bloom, who defends large corporations against class actions, said she's already looking at her still pending class action suits with an eye towards getting some of them thrown out. Even in cases where class actions have been certified to go to trial, she observes...

Ms. ELISE BLOOM (Attorney): The courts always have the ability to decertify.

TOTENBERG: The vote in yesterday's Supreme Court ruling was 5-to-4 on the core question. Writing for the five member court majority, Justice Antonin Scalia said that in order to be certified to sue as a single class at a single trial, the Wal-Mart women had to point to a discriminatory policy that affects all of them, and they could not do that. Said Scalia, There is no glue that holds together these 1.5 million women at 3,400 stores; nothing that produces a common answer to the crucial question, why was I disfavored.

TOTENBERG: Indeed, Scalia noted that Wal-Mart has a specific corporate policy against discrimination. The four dissenters, including the courts three female justices, pointed to previous Supreme Court decisions holding that a company-wide policy against discrimination can be undermined where, as alleged in this case, local supervisors have so much discretion that decisions are made without standards, often on the basis of personal biases and sexual stereotypes.

Supervisors may even be unaware of some of their biases, the dissenters said, observing that some often assume that a woman with a family is unwilling to relocate for a promotion.

That said, though, even the dissenters agree that the lower courts had used the wrong standard to certify the Wal-Mart class. The dissenters would have sent the case back to the lower courts for re-examination using a different and stricter standard.

Lawyers for the Wal-Mart women said they are not giving up. Lead counsel Joseph Sellers said he and other lawyers across the country would use the evidence they have compiled over the last ten years to file smaller class action sex discrimination suits against Wal-Mart at the state, regional, or even store level.

Mr. JOSEPH SELLERS (Attorney): Instead of one case, this case will be splintered into many pieces that may take longer and be harder to ever resolve.

TOTENBERG: Stanford Law professor Joseph Grundfest said that while yesterday's decision would make big class actions more difficult to bring at the federal level, many state courts have laws that more generously permit such suits. And he noted that the Supreme Court just last week ruled unanimously that state courts can entertain class action suits that would not be permitted in federal court.

JOSEPH GRUNDFEST (Stanford University Law Professor): If you can get sufficient victories in sufficiently large and populous states, you can actually create a situation where a de facto national standard evolves simply because you have to do business in large commercially important jurisdictions.

TOTENBERG: But that can't sugar-coat yesterday's tough decision for civil rights plaintiffs.

Nina Totenberg, NPR News, Washington.

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