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Supreme Court Hears Wal-Mart Gender Bias Discrimination Case

March 29, 2011 at 12:00 AM EDT
The Supreme Court heard arguments in a case involving a huge class-action gender discrimination lawsuit against Wal-Mart, the world's largest retailer. Gwen Ifill discusses the stakes of the case with The National Law Journal's Marcia Coyle.

GWEN IFILL: Everything about today’s Supreme Court case is big, from the scope — it’s the largest gender discrimination lawsuit in history — to the defendant, the world’s largest retailer, Wal-Mart, and to the financial stakes, estimated to be in the billions of dollars.

NewsHour correspondent Kwame Holman begins with some background.

KWAME HOLMAN: Demonstrators thronged the plaza of the Supreme Court this morning to give voice to hundreds of thousands of women who have accused Wal-Mart of employment discrimination.

But the question inside the courtroom wasn’t if Wal-Mart stores had mistreated their workers. It was whether to let the lawsuit go forward as a class action or to throw it out.

BETTY DUKES, plaintiff: Wal-Mart is a male-dominated company. That’s — that’s just a fact.

KWAME HOLMAN: The massive suit started out small almost a decade ago with a discrimination claim brought by Wal-Mart greeter Betty Dukes.

BETTY DUKES: I made them aware as often as feasible that I was interested in upper management, but those opportunities never opened up.

KWAME HOLMAN: Dukes and five female co-workers charged the retail giant with systematically paying men more than women and promoting them faster. They are seeking back pay and punitive damages.

Marcia Greenberger founded the National Women’s Law Center, which filed a friend of the court brief on behalf of the plaintiffs.

MARCIA GREENBERGER, National Women’s Law Center: They all boil down to the same thing. Women were called “Janie Q’s” and told that they should be paid less because women just work to work, and men work because they need the paycheck for their families. And these stories get repeated and repeated all over the country.

KWAME HOLMAN: Wal-Mart executives maintain the company has a long history of giving women opportunities to advance.

Vice president for human relations Gisel Ruiz spoke after today’s opening argument.

GISEL RUIZ, Wal-Mart: We’ve had policies, strong policies against discrimination, in place long before the lawsuit was filed. I remember learning about those policies when I joined the company. And as I grew up with the company, then it became my responsibility to teach them forward.

KWAME HOLMAN: About one-and-a-half million women work or have worked in Wal-Mart retail stores or its affiliate, Sam’s Club, since December 1998, and they all would be eligible to participate in the suit.

Attorney Richard Samp calls that number staggering. He’s lead counsel for a law firm backing the big-box chain. He said justices need to look carefully at how much the plaintiffs actually have in common.

RICHARD SAMP, Washington Legal Foundation: There aren’t common issues of fact and law. These are separate claims by different women who really have very little in common, other than they work for the same employer, but have different supervisors.

KWAME HOLMAN: The Women’s Law Center’s Greenberger disagrees.

MARCIA GREENBERGER: While many of those managers used different words, and it might have come up in different contexts, the underlying discrimination was the same.

KWAME HOLMAN: However the justices rule, both sides agree it will impact the ability to mount future class actions, not only in employment suits, but across the board, in cases involving product liability, securities and antitrust issues.

In a legal brief supporting Wal-Mart, the U.S. Chamber of Commerce warned that a ruling for the plaintiffs could “dramatically increase the class action exposure of the Chamber’s members and all companies doing business in the U.S.”

Attorney Richard Samp:

RICHARD SAMP: If they can get their case certified as a class action, they know that, at the end of the day, they will be able to get a large settlement, because employers cannot take these kind of cases to trial. They’re simply too expensive to bring to trial.

And that kind of travesty of justice is what I hope that the Supreme Court will bring an end to in this case.

KWAME HOLMAN: Civil rights groups, on the other hand, say the ability to band together sometimes is the only way for victims of discrimination to get their voices heard.

Marcia Greenberger:

MARCIA GREENBERGER: Workers who have been discriminated against, women and others, haven’t been able to have their day in court. And the class action is one tool that makes it somewhat more practical and feasible for them to be able to have their rights vindicated in court.

KWAME HOLMAN: A ruling in the case is expected by June.

GWEN IFILL: For more on today’s arguments, we are joined, as always, by Marcia Coyle of “The National Law Journal.” She was in the court today.

Marcia, at first blush, you listen to the arguments, and it sounds like it has all the hallmarks of a gender discrimination case, of a civil rights case, but that’s not what today’s arguments were really about.

MARCIA COYLE, “The National Law Journal”: No, it isn’t, Gwen. And it really bears repeating that this case will not decide whether Wal-Mart discriminated against its female work force.

It will only decide whether these women can join together as a class and go forward with their claims that Wal-Mart has discriminated against them on the basis of their sex.

GWEN IFILL: Which could also be a big deal.

Explain to us what a class action suit is, what it’s not, according to the arguments we heard today, and whether this case falls — that’s what the judges are be asked to decide, whether this case falls into that.

MARCIA COYLE: Right, exactly.

Most lawsuits are filed by individuals, but sometimes, a group or a large number of people may be injured by the same defendant, company, person, and it’s worth their while in terms of efficiency and cost to try to join together to bring a lawsuit seeking some kind of remedy for their injury. And that’s when they will turn to the class-action device.

There are specific federal rules that judges must examine to decide whether that device works for this group of people. Its — the rules are important to ensure fairness to the people who want to be part of the class, that their claims are going to be adequately represented, and also fairness to the defendant.

And the court itself, can it handle the class, depending on the size and the claims involved?

GWEN IFILL: Give us an example of a big class action suit that we are familiar with that has come to the court before.

MARCIA COYLE: To the Supreme Court?


MARCIA COYLE: There have been class actions involving product liability, drug companies that have injured people. There have been antitrust class actions, companies claiming that another company has monopolized the market.

There are a variety of class actions. In fact, class actions — even though there have been abuses of class actions, class actions have also resulted in some of the best consumer protection laws that we have in this country.

GWEN IFILL: So, let’s — let’s — take us inside the courtroom today. What are the interests in the chambers today? One of the interesting things about this is this is a court which is one-third women now, for the first time ever.


GWEN IFILL: Did that affect the rhythm of the argument at all?

MARCIA COYLE: Actually, I don’t think it does, because — or did. These three female justices are very aggressive questioners in every case, and very careful questioners. So, they were very active, and I think they were just as active as the other justices.

GWEN IFILL: So, how did it play out then?


GWEN IFILL: What was the — the crux of the arguments?


The court is focused on the rules for forming class actions. Wal-Mart’s attorney, Theodore Boutrous, was first up before the justices. And he said the lower court here was wrong to approve this as a class. First of all, he said Betty Dukes and the other five women who want to represent this class don’t have claims that are typical of all the women that would be up to half-a-million women who might be a part of this class.

He said each woman has different stories as to what happened to them. So, he said that fails one of the requirements, that you have typical claims.

GWEN IFILL: So, this idea — so, this idea that they were all called by demeaning names or that they didn’t get access to promotions was not universal among every — every…

MARCIA COYLE: Right. It wasn’t enough to satisfy the requirement.

He also said that they had to show that there was some sort of a company-wide policy or practice that was across the board, all the stores — Wal-Mart has over 3,000 stores — and that would show that they had a common fact that linked them, that made them cohesive as a group to be class, and they did not show that.

Justice Sotomayor noted that the lower court found that there was enough here. And she asked him, well, what do you need — what standard should we use to overturn what the lower court said here?

And Mr. Boutrous repeated that there has to be some sort of common effect across all stores. He noted that Wal-Mart’s expert claims that there are — there are no pay disparities in 90 percent of its stores.

GWEN IFILL: So, we just heard in Kwame’s piece that used that word commonality. And it came up again today in court.


GWEN IFILL: So, that is what a lot of this is turning on?

MARCIA COYLE: Yes. To form a class, you have to show that there are common issues of fact and law.

GWEN IFILL: How closely is this being watched by corporations?

MARCIA COYLE: Oh, it’s being very closely watched by corporations and by civil rights groups and consumer groups.

If you look at the briefs that have been filed in support on Wal-Mart’s side, it amounts to a who’s-who in corporate America. And on the other side, you have many consumer and civil rights organizations, as well as experts in the rules of civil procedure that govern class actions.

Betty Dukes and her fellow plaintiffs in this case were represented by Joseph Sellers. And he told the justices today that — look, obviously, he disagrees with Mr. Boutrous, but he said Wal-Mart had a policy here of giving its store managers unchecked, unfettered decision-making discretion by which they could pay women less for the same job as men and offer fewer opportunities for promotion.

He said every woman who works for Wal-Mart was subjected to that unfettered discretion. And that’s the common link. Whether they were harmed or not, that’s the common link. Some of the justices thought there was some inconsistency in his position. Justice Kennedy said, well, on the one hand, you have argued that Wal-Mart has this centralized management policy, a culture. They call it the Wal-Mart way. And, on the other hand, you’re saying there’s this individual discretion, decision-making discretion. They seem inconsistent.



But Mr. Sellers said that the store managers don’t make these decisions in a vacuum. It’s informed by Wal-Mart’s culture. And he said they have extraordinary amounts of evidence that show that there are sex stereotypes within that culture.

GWEN IFILL: OK. We will be waiting this summer to see how this all shakes out.

Marcia Coyle, “National Law Journal,” thank you so much.

MARCIA COYLE: My pleasure, Gwen.