Constitutional Law

In Landmark Discrimination Case, Wal-Mart Challenges Class Certification

Sitting en banc, the 9^th U.S. Circuit Court of Appeals heard oral argument yesterday in the largest sex discrimination case in American history in Dukes v. Wal-Mart.

The issue considered by the court was 'whether to uphold a lower court ruling allowing about 2 million current and former female Wal-Mart workers to sue the firm for sexual discrimination as a group,' reports Reuters. 'The lawsuit argues that female workers were paid less and received fewer promotions at Wal-Mart than male counterparts and that the firm's corporate structure fostered this gender discrimination and made it pervasive at over 3,000 U.S. stores.'

Wal-Mart is challenging the class certification granted by the district court and previously approved 2-to-1 by the 9^th Circuit. According to the San Francisco Chronicle, 'The company maintains that allowing as many as 2 million past and present female workers to claim they were harmed by Wal-Mart policy, rather than requiring each woman to prove she was wrongly denied pay or promotion, ‘takes away the rights of the defendant,' attorney Thedore Boutrous told an 11-judge panel.'

'This is not ‘Wal-Mart didn't know what was going on,'' plaintiffs' counsel Brad Seligman (pictured above with lead plaintiff Betty Dukes) told the court. 'This is conduct that was approved of and acquiesced [to] for years.'

'The Obama administration has sided with the plaintiffs,' wrote the San Jose Mercury-Sun. 'The U.S. Equal Employment Opportunity Commission filed a brief last week arguing Wal-Mart's position would keep the government from ever seeking punitive damages from companies with a pattern of discrimination and would impede the EEOC's ability to enforce discrimination laws.'

Observers expect either party to appeal to the Supreme Court upon losing before the 9^th Circuit.

Full post as published by ACS Blog on March 25, 2009 (boomark / email).