The United States Supreme Court will hear oral arguments in the case of Wal-mart Stores, Inc. v. Dukes on March 29, 2011.  With 500,000 plaintiffs (reduced from 1.5 million by the 9th Circuit), this case is the largest employment discrimination action under Title VII in U.S. history.   The plaintiffs allege sex discrimination at  3400 Wal-mart stores across the country, specifically claiming  both hourly and salaried wage discrepancies between men and women and the systemic denial of promotions based on gender.   This case has been litigated for 1o years, but the Supreme Court will not decide the merits of the case.  The questions presented to the Court are purely procedural.  The first issue is whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2).  The parties were also instructed by the Court to address whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(b)(a).

Wal-mart argues, and critics agree, that there is too much variety among the individual members in the action such that they do not constitute a common class by a preponderance of the evidence.  For instance, promotion decisions were made by individual store managers at 3400 different stores and pay rates (and the discrepancies amongst them) vary across the 170 employee positions that the plaintiffs represent.

The National Organization of Women has condemned Wal-mart’s employment practices for years.  Recently, N.O.W. President, Terry O’Neill stated, “First we have banks that are ‘too big to fail’–now Wal-mart’s lawyers are claiming that the company is too big to sue!…Well, guess what?  When you’re the biggest employer in the nation and the richest company in the world, and you get that way by paying unfair wages, you should expect to find yourself on the wrong end of a massive lawsuit one day.”  So far, several fortune 500 companies have filed briefs in support of Wal-mart.

The Supreme Court is expected to issue its decision this summer.

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