California-Only Class Refiles Sex Discrimination Suit Against Wal-Mart

By Judy Greenwald

Oct. 27, 2011

Plaintiffs in the Betty Dukes et al. vs. Wal-Mart Stores Inc. sex discrimination litigation refiled the case Thursday in federal court, but this time on behalf of at least 45,000 current and former female employees in California.

The U.S. Supreme Court had ruled against a proposed class of some 1.5 million members nationwide in June. The majority ruled that the “respondents have not identified a common mode of exercising discretion that pervades the entire company.”

The suit, originally filed in 2001, involves allegations that Bentonville, Arkansas-based Wal-Mart promoted and paid female employees less than men despite female’s higher performance ratings and seniority.

The San Francisco federal court, where the motion was filed Thursday, is the same court that granted the national case class action status in 2004.

“The Supreme Court did not rule on the merits of the action, but only ruled that the class as certified could not proceed. It did not preclude prosecution of a class that was consistent with its newly announced guidelines and standards,” according to the revised suit.

Accordingly, it said, the revised complaint alleges claims on behalf of present and former female employees “who have been subjected to gender discrimination as a result of specific policies and practices in Wal-Mart’s regions located in whole or in part in California.”

The lawsuit alleges that “Wal-Mart has had a significantly lower percentage of female managers in its California region compared to its largest competitors” and that female employees “have been much less likely than their male counterparts to receive promotion to management track positions.”

The suit also states that “senior management officials, senior people division officials and outside consultants have warned Wal-Mart that women are not sufficiently represented in management positions, that women are paid less than male employees in the same jobs, and that Wal-Mart lags” competitors “in the promotion of women to management positions.” The suit charges that managers “rely on discriminatory stereotypes and biased views about women in making pay and promotion decisions” in California.

Among other things, it seeks class certification; unspecified damages including back pay, lost compensation and job benefits; punitive damages; and an injunction against engaging in unlawful practices.

Wal-Mart could not be immediately reached for comment.

Commenting on the litigation, co-lead counsel Joseph M. Sellers, a partner with Cohen Milstein Sellers & Toll P.L.C. in Washington, said the case relies on evidence that was not part of the original action.

“This California case relies upon new information and statistical analyses, not before the Supreme Court, that show a consistent pattern of discrimination in pay and promotions throughout the Wal-Mart regions in California,” he said.

Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago, said it is difficult to estimate the chances of this new litigation’s success. “It depends on statistical proof, which people who aren’t parties to the case haven’t seen,” he said. “There’s going to be kind of a different playing field on which the parties are going to battle,” with a different set of numbers, he said.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email

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Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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