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Oral Arguments In Wal-Mart Gender Bias Case Heard by Supreme Court

WASHINGTON, D.C. - (Mealey's) A class of more than 1 million current and former female employees in a gender bias suit against the nation's largest retailer was improperly certified after Federal Rule of Civil Procedure 23(a)'s cohesion requirements and Rule 23(b)(2)'s requirements for certification of a mandatory non-opt-out class were not met, the attorney for Wal-Mart Stores Inc. told the U.S. Supreme Court on March 29 (Wal-Mart Stores, Inc. v. Betty Dukes, et al., No. 10-277, U.S. Sup.). 

"Regarding Rule 23(a), because the plaintiffs' claims in this case hinge on the delegation of discretion to individual managers throughout the county, they cannot meet the cohesion requirements that are reflected in Rule 23(a).  The delegation of discretion in some ways is the opposite of cohesive claims that are common to everyone in the class.  The common policies that the plaintiffs point to are either neutral and not argued to be discriminatory or they are affirmatively nondiscriminatory.  The company has a very strong policy against discrimination and in favor of diversity," Theodore J. Boutrous Jr. of Gibson Dunn & Crutcher in Los Angeles argued on behalf of Wal-Mart.   

On June 8, 2001, Betty Dukes, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnowski and Edith Arana sued Wal-Mart in the U.S. District Court for the Northern District of California, seeking to represent a class of approximately 1.6 million of its employees at 3,400 stores across the United States.  The plaintiffs claim that the Bentonville, Ark., company made discriminatory decisions based on gender in determining female employees' pay and eligibility for promotions, resulting in billions of dollars in damages. 

On June 22, 2004, Judge Martin Jenkins certified a class of all current and former employees of Wal-Mart who worked at its U.S. stores at any time since Dec. 26, 1998.  On Dec. 11, 2007, a Ninth Circuit U.S. Court of Appeals panel asked that Judge Jenkins limit the class to exclude workers who were not employed by Wal-Mart at the time the plaintiffs filed their first amended complaint on June 19, 2001. 

On April 26, 2010, the en banc Ninth Circuit affirmed the panel's 2007 ruling by a vote of 6 to 5.  Wal-Mart then petitioned the high court.  The justices agreed Dec. 6 to hear the appeal. 

Arguing in favor of the certification, Joseph M. Sellers of Cohen, Milstein, Hausfeld & Toll in Washington told the court that there is no requirement to show a formal policy of discrimination.  "[O]ur theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court's Watson [v. Fort Worth Bank & Trust (487 U.S. 977 [1988])] decision addressed that was used to pay women less than men who were doing the same work in the same . . . facilities at the same time, even though . . . those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex," he argued. 

[Editor's Note:  Full coverage will be in the April issue of Mealey's Litigation Report: Employment Law.  In the meantime, the oral arguments transcript is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #43-110401-011T.  For all of your legal news needs, please visit] 

Download the document now: - Document #43-110401-011T - Document #43-110401-011T 

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