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Walmart went before the US Supreme Court yesterday to argue that a class action lawsuit brought against it in the name of hundreds of thousands of women, charging that it has systematically discriminated against women in management, should not be treated as a class action, but instead should move through the justice system on a piecemeal, individual basis.

If the court finds against Walmart and allows the class action to proceed, it could eventually cost the retailer billions of dollars, either through a settlement or if it is found guilty of unfairly denying women earned promotions and pay increases.

Bloomberg reports that there seemed to be a gender gap in the Court’s questioning of the lawyers for both Walmart and the plaintiffs, “as the court’s three female justices tussled with their male colleagues.”

According to the story, “Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voiced at least qualified support yesterday for the class-action suit ... The three took the lead in questioning Wal-Mart’s attorney, Theodore Boutrous. Ginsburg spoke about how corporate decision- makers tend to hire people like themselves, while Sotomayor endorsed the use of statistical analysis in discrimination cases. Kagan balked when Boutrous said the workers’ case was based on an ‘incoherent theory’.”

The Los Angeles Times reports that the female justices “asserted that a corporate policy of letting store managers decide on promotions could result in discrimination against women. The statistics generated in the case so far strongly suggested that was what had occurred, they said.”

Bloomberg goes on: “Their queries put them at odds with Justices Antonin Scalia and Anthony Kennedy ... Scalia said the company had an ‘announced policy against sex discrimination’ and expressed disbelief when the lawyer representing the women argued that the reality was just the opposite. ‘Do you think you’ve adequately shown that that policy is a fraud and that what’s really going on is that there is a central policy that promotes discrimination against women?’ Scalia said.”

The story continued: “Justice Stephen Breyer was the lone male justice who suggested he agreed with his female colleagues. He joined Sotomayor in asking Boutrous why the justices couldn’t at least allow a limited class action seeking an injunction against the company ... The case ultimately may divide the court along familiar lines, leaving those four in dissent. Kennedy, often the court’s swing vote, suggested the workers could press a nationwide class action only if they could show the company tolerated gender discrimination through ‘deliberate indifference’.”

The LA Times writes that “the case heard Tuesday is the most important and far-reaching job-discrimination dispute to come before the high court in more than a decade. It could determine whether job-bias claims must proceed as individual lawsuits or instead could go ahead as broad, class-action claims that rely mostly on statistics.”

And, the Wall Street Journal writes, “The case potentially could set new standards for future employment class action. Much of corporate America, including Altria Group Inc., General Electric Co., Microsoft Corp. and Tyson Foods Inc., has backed Wal-Mart, arguing that a plaintiff victory could open the door to unprecedented liability.

“But civil rights, women's rights and labor rights groups have sided with the plaintiffs, contending that a sweeping class action is one of few effective tools against ingrained discrimination in the workplace.”

And, the New York Times writes, “The court of Chief Justice John G. Roberts Jr. has recently issued a series of rulings in favor of plaintiffs suing for employment discrimination that cut against the court’s pro-business reputation.”

A ruling is not expected until June.
KC's View:
Despite what the Times says, my general reading of the various stories suggests that the court seems more likely to support Walmart than not.

I’m not a lawyer, so I have no idea about the legal precedents here; I do think that taking away the class action status will virtually cripple many of the plaintiffs, and Walmart will de facto win.

But I have to admit that I will be troubled if the court ruling breaks down on gender differences - if all the women feel one way, and all the men feel another. I’m not sure that this will look like justice as much as it will look like the usual suspects behaving in the usual way.