The largest employment discrimination suit ever filed in the US moved one step closer to trial this past April when the 9th Circuit Court of Appeals in San Francisco affirmed a lower court’s decision to certify the case as a class action.
Dukes v. Wal-mart was first filed in 2001 by Betty Dukes. Dukes and five other plaintiffs claimed that they had been subjected to systematic sex discrimination while employed by Wal-mart. The women accused Wal-mart of paying female employees less, offering them fewer promotion opportunities and giving them smaller pay raises than their male counterparts.
The 9th Circuit’s decision to uphold the class certification makes the Wal-mart case the biggest class action in the nation’s history, with a potential class size exceeding one million.
Wal-mart argued that the lower court erred by certifying the class because the class size would be too large for the retailer to defend against their claims. Wal-mart also argued that the alleged experiences of the named plaintiffs were not representative of the more than one million women who worked at the 3400 Wal-mart stores nationwide within the last decade.
The majority of the 9th Circuit judges, however, did not agree. In a 137-page opinion, the divided court affirmed the district court’s 2004 decision to certify the class.
Wal-mart has promised to appeal the 9th circuit ruling to the US Supreme Court. Most legal commentators believe the Court will agree to hear the appeal, which may be in Wal-mart’s favor: the Supreme Court has not shown much sympathy in recent years to large class actions nor has it upheld very many decisions coming out of the 9th Circuit.
However, if the 9th Circuit’s decision stands, then Wal-mart could be facing the potential of paying out billions of dollars in damages. The possibility of suffering such a huge financial loss at trial most likely will push Wal-mart into settling the discrimination claims out of court. Regardless, even if Wal-mart reaches a settlement with the plaintiffs, the retailer’s pocketbook still will be hit hard, especially if the class includes one million or more plaintiffs.