Riddle: How Many Make a Class for a Wal-Mart Class Action?

September 1st, 2010. By LucyC

Question: How many people does it take to make a class in a class action lawsuit?

Answer: That depends on how much money you have to spend.

Faced with a potential class action lawsuit over allegations that the world’s largest private employer discriminated (discriminates?) against its female employees, Wal-Mart has so far managed to avoid a trial by insisting that the roughly 1 million women who worked for them since 2001 don’t constitute a class. That’s nine years of legal wrangling and it ain’t over yet.

Just as a quick reference, according to one legal dictionary I checked the definition of a class is: “a lawsuit that allows a large number of people with a common interest in a matter to sue or be sued as a group.” That seems fairly straight forward to me. As indeed it did to a federal court judge in 2004, who ruled that the women do constitute a class. Wal-Mart, apparently having the funds available to drag this out—appealed the decision, but in April, the Ninth Circuit Court of Appeals also ruled that the 1 million women constitutes a class, and that the case could proceed.

But no. Not yet. Wal-Mart—the harbingers of “Save Money. Live Better.”—seem to be following their own advice to the letter, figuring it’s likely cheaper to fight this now than risk going to court or paying a settlement—both outcomes they are very familiar with—is taking the matter to the Supreme Court. 

A recent editorial in the NY Times states this is “probably a smart legal move, given the court’s clear tendency to rule in favor of corporations, particularly when big classes or discrimination claims are involved. We hope the court resists the temptation to toss out the case, which would force women to file lawsuits one by one. Wal-Mart’s employment practices deserve a full hearing.” Here! Here!

The NY Times piece states that if Wal-Mart does go to court over what “would be the largest employment discrimination lawsuit in American history,” the company could be looking at over $1 billion in damages if they lose. ‘Save Money. Live Better. ‘ Indeed.

Not only is this legal hair-splitting to the enth degree, it also appears to me as a colossal waste of public resources. Wal-Mart is quite prepared to tie up the Supreme Court for its own interests when the Court could be spending its time on far more pressing matters, of which I’m sure there’s no shortage.

But while money talks, on the surface I would say the facts in this case scream to be heard. The lawsuit was originally brought by seven female Wal-Mart employees, who realized that their male counterparts were being paid more money than themselves for comparable jobs and being passed over for promotion. You know the script—it’s as old as it gets. In 2004, Martin J. Jenkins, a district judge, wrote that the statistics bore out the women’s complaints—with female employees being paid less than male employees in every region, and in most job categories. Further the salary gap widened between women and men—with men making more—even among those people hired at the same time. The judge also wrote that women took longer to get into management positions.

But does this constitute discrimination? Wal-Mart doesn’t think so, apparently. (I’d be interested to see what they do consider to be discriminatory practices.) And, they don’t see that there’s a pattern. Of course they don’t.

Judge Jenkins believed that the potential discrimination affected enough women to be considered a class, and the ninth circuit court agrees, stating that it would be more expedient to deal with one large lawsuit rather than thousands of individual suits. Now that would put a strain on the court system, so much so that the suits could end up being consolidated into a class in any event, which Wal-Mart would probably also fight.

While it may seem that all we can do is wait and see on this one—personally, I’ll be thinking about twice about shopping at Wal-Mart. After all, who’s really saving money here?

Tags: Discrimination, Employment, Fair Pay, Wal-Mart, Walmart

This was posted on Wednesday, September 1st, 2010 at 10:31 am and is filed under Employment . Feel free to respond, or trackback. Read our comments policy.