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Ninth Circuit to rehear Wal-Mart class action

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The Tampa Tribune

Published: February 27, 2009

In what may be the largest ever employment law case, the Ninth Circuit Court of Appeals plans to rehear an appeal filed by Wal-Mart challenging a ruling by a U.S. District Court judge in California certifying a class action of roughly 1.5 million female Wal-Mart employees. The underlying lawsuit asserts claims against Wal-Mart for violation of Title VII of the Civil Rights Act of 1964. The lawsuit, brought initially by six female employees, alleges that women employed in Wal-Mart stores are paid less than men in comparable positions despite having higher performance ratings and greater seniority. The lawsuit also alleges that women employees received fewer, and waited longer for, promotions to in-store management positions.
Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, makes it unlawful to fail or refuse to hire or to discharge any individual or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of the individuals race, color, religion, sex or national origin. The act also makes it unlawful to retaliate or discriminate against an individual because the individual filed a charge of discrimination, participated in a Title VII proceeding or refused to participate in discriminatory activity.

In April 2003, the plaintiffs filed a motion to certify a nationwide class of women who have allegedly been subjected to Wal-Mart's discriminatory pay and promotions policies. The class consists of women employed in a wide range of Wal-Mart positions since 1998. It is estimated to include more than 1.5 million women who worked in Wal-Mart's roughly 3,400 stores in 41 regions. The lawsuit seeks injunctive relief as well as back pay and punitive damages.

Wal-Mart opposed class certification, contending that the women employee's claims were too dissimilar. Wal-Mart also objected claiming it was entitled to respond to each employee's individual claims. Wal-Mart also opposed the class as being too large; "historically large" in the words of Wal-Mart's attorney.

The District Court judge certified the class with regard to the unequal pay claims finding that common questions of fact and law existed. The court found that there was significant evidence of corporate-wide practices and policies of excessive subjectivity and gender stereotyping in personnel decisions. The District Court also certified the class for purposes of injunctive relief and punitive damages related to the women's promotion claims but did not certify the class for purposes of determining back pay.

Wal-Mart appealed the decision. A three-judge panel of the San Francisco-based Ninth Circuit Court of Appeals affirmed the trial court's certification of the class. It held that the employee's factual evidence, expert opinions, statistical evidence and anecdotal evidence demonstrated that Wal-Mart's women employees nationwide were subjected to a single set of corporate policies that may have worked to unlawfully discriminate against them in violation of Title VII.

On Feb. 13, however, the Circuit Court judges decided they would rehear the issue "en banc," meaning that the matter will be heard by all Ninth Circuit judges. At issue is whether Wal-Mart will face the largest class action lawsuit in U.S. history brought on behalf of 1.5 million women employees.

Randall Love is an attorney with Randall J. Love & Associates, New Port Richey, and practices in the areas of employment law, commercial and real estate litigation, personal injury and probate litigation. He is a certified Circuit Court mediator.

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