The Supreme Court agreed today to hear a case against Wal-Mart that could represent the largest employment class-action suit in U.S. history, with potentially far-reaching impact on class-action claims in other areas, like antitrust, securities, and products liability. The lawsuit, first filed in 2001 by six former and current female employees, including greeter Betty Dukes, alleges that Wal-Mart discriminated against 500,000 to 1.5 million of its female staffers in terms of both pay and promotion. But the Supreme Court won't be deciding whether Wal-Mart is guilty of discrimination. It will be deciding whether a single class-action suit is appropriate when the discrimination claims are spread across 3,400 stores and 170 job classifications. In fact, it was Wal-Mart that appealed the U.S. Court of Appeals for the Ninth Circuit's ruling in April that the suit could go ahead, pushing for a Supreme Court hearing. And no wonder: The lawsuit demands back pay and punitive damages for women employees that could amount to billions of dollars.
The decision pits civil-rights groups against business interests. Civil-rights advocates say class-action suits are the best way to make business stop discriminatory practices. Business groups, on the other hand, argue that class action puts pressure on companies to settle, regardless of the veracity of the charges, so that they can avoid the cost of litigation and size of the payout.
But the case could also end up pitting both of the court's new Democratic nominees against each other. In the briefs for Wal-Mart Stores v. Dukes, Wal-Mart twice cited an influential law-review note that Justice Elena Kagan wrote as a student at Harvard on class certification in employment-discrimination suits. Whereas the plaintiffs noted that Justice Sonia Sotomayor had voted to certify an even larger class action, where Wal-Mart was a plaintiff, in an antitrust case involving 8 million merchants when she was a judge in New York.
In their brief asking the Supreme Court to deny reviewing Wal-Mart's appeal, the plaintiffs said Wal-Mart's real objection to class action came down to the size of the class. “The class is large," they argued, "because Wal-Mart is the nation’s largest employer and manages its operations and employment practices in a highly uniform and centralized manner.” Wal-Mart countered that plaintiffs in 3,400 stores under 170 job classifications do not have enough in common to make class action appropriate, which some call a stalling technique since they're no longer contesting guilt. Hmmm, isn't that sort of like saying you can't charge us with mass theft because we robbed too many different people?