Behind Wal-Mart Class Action 2.0: Why Women Are Suing Again

By Eric B. Meyer

Back in June, the United States Supreme Court ruled that a class of 1.5 million women could not pursue gender discrimination claims together against Wal-Mart because they lacked a common injury.

If, at first, you don’t succeed, file this Complaint in California on behalf of a class of only 90,000 plaintiffs. Will this small smaller lawsuit hold up?

Size matters, ladiesLet’s recap exactly what went wrong the first time, when the class consisted of 1,500,000 plaintiffs.

The plaintiffs alleged that, nationwide, there was a general practice of discrimination against women. However, the Supreme Court reasoned that the class, consisting of so many current and former Wal-Mart employees from across the county, could not have possibly suffered the same injury. The Court said:

The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.”

So, if 1,500,000 plaintiffs from across the country is too large a class, how about 90,000 plaintiffs from California only. Judy Greenwald at Business Insurance has a story on Walmart Class Action 2.0, in which she reports that Wal-Mart believes that the second verse will be the same as the first:

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A Wal-Mart spokesman said the company has long held that the plaintiffs’ claims are unsuitable for class action treatment “because the situations of each of the individuals are so different.” The latest proposed class is “no more appropriate than the class that the Supreme Court rejected,” he said.

While Wal-Mart “continues to believe anyone treated unfairly should have their day in court,” it is a “great place to work” and the retailer is ready to defend its record, the spokesman said.”

Will Wal-Mart prevail again?

Back when I discussed the Supreme Court decision, I predicted that we would see some smaller class-actions against Wal-Mart But 90,000 plaintiffs? These women claim to have been subjected to gender discrimination as a result of specific policies and practices in Wal-Mart’s regions located in California. The plaintiffs allege three forms of gender discrimination:

  1. Denial of equal pay for hourly retail store positions;
  2. Denial of equal pay for salaried management positions up to and including Co-Manager; and
  3. Denial of equal opportunities for promotion to management track positions up to and including Co-Manager.

Before any court will get to the merits of the discrimination claims, it must determine whether this class of women can proceed together. Ultimately, whatever size the class, the plaintiffs must be able to identify a “common mode of exercising discretion” among the decisionmakers at the subject Wal-Mart locations. Otherwise, they will not be able to proceed as a class.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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