The Ninth Circuit Court of Appeal issued a decision today in Dukes v. Wal-Mart Stores. In that case, six women complain of sex discrimination in pay and promotion decisions, but seek to bring an action on behalf of the class of all women who have worked at Wal-Mart since December 26, 1998. After the district court determined that class treatment was appropriate, Wal-Mart appealed.
On appeal, Wal-Mart argued that a class that size was too unwieldy. By a margin of 6 to 5, the appellate court disagreed. The following are among the points raised in the strongly worded dissent:
"No court has ever certified a class like this one, until now. And with good reason. In this case, six women who have worked in thirteen of Wal-Mart’s 3,400 stores seek to represent every woman who has worked in those stores over the course of the last decade—a class estimated in 2001 to include more than 1.5 million women."
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"Without evidence of a company-wide discriminatory policy implemented by managers through their discretionary decisions, or other evidence of a discriminatory company-wide practice, there is nothing to bind these purported 1.5 million claims together in a single action.
Then there is the problem of individual hearings. Under Title VII, Wal-Mart has the right to raise affirmative defenses as to each class member’s claim. This means the court must allow up to 1.5 million individual determinations of liability. On its face, a class action of this sort makes no sense."
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Wal-Mart is the largest private employer in the world. When the action was filed in 2001, it employed 930,000 retail employees in hundreds of different jobs in 3,400 different stores. It divides its retail operations into 7 divisions, 41 regions, and approximately 400 districts. Hiring and promotion decisions are made at the store manager level. Store managers determine pay (within established guidelines) for hourly employees and district managers do so for salaried employees. Wal-Mart argued (and the dissent agreed) that, given the large number of decision-makers involved, there was not sufficient "commonality" to justify class treatment.
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"This principle is simple common sense. A female employee in a store in California, for example, may have a valid claim that her supervisor discriminated against her when making decisions regarding promotion opportunities. But this individual claim would not by itself entitle the California employee to bring the alleged discrimination claims of female employees in a store in Wyoming."
You can read the entire 137-page decision here. Wal-Mart has issued statements that it may seek Supreme Court review.