New York Times
June 27, 2004
By Jonathan D. Glater
Attention Wal-Mart Plaintiffs: Hurdles Ahead
IT may be the biggest employment discrimination lawsuit ever
filed, as the lawyers who brought it contend. But that may make
the challenge in the case against Wal-Mart Stores all the more
The lawyers must keep the case simple. On that much, at least,
other lawyers and legal scholars agree.
The plaintiffs are women who contend that Wal-Mart, the world's
biggest company by sales and the nation's biggest
retailer by far, discriminated against them, both by paying them
less than men in comparable jobs and by failing to
promote them. The lawsuit states that while 65 percent of Wal-Mart's
hourly employees are women, only 33 percent of
Wal-Mart's managers are.
Statistics showing how many women hold management positions are
a crucial part of the case, but much more evidence -
particularly examples that show what kind of workplace Wal-Mart
is for women - will also play a role, the lawyers and experts
not directly involved in the case said.
"There's one issue here," said Michael C. Harper, who
teaches employment law at Boston University. "That is: Did
they have this policy of practicing discrimination?"
Wal-Mart has argued that the experiences of the women it employs
- the case could affect more than 1.6 million women, according
to lawyers for the plaintiffs - are too varied to draw any sort
of conclusion about its practices, and that their claims should
not be combined into a class-action lawsuit. Employment practices
are set at the regional level or even at individual stores, not
by Wal-Mart headquarters in Bentonville, Ark., according to the
But the plaintiffs appear to have cleared an important hurdle.
Judge Martin J. Jenkins of the United States District Court in
San Francisco certified the lawsuit as a class action in a decision
dated June 16 but released only last week, finding that the experiences
of women employees at the company did have much in common. Achieving
class-action status helps the plaintiffs; in the absence of the
judge's finding, each woman would have to bear the risk of filing
a claim on her own. "While the size of the proposed class
is unique, the issues are not novel, and plaintiffs' claims are
relatively narrow," Judge Jenkins
wrote in his decision.
Wal-Mart said it would appeal the decision to the Ninth Circuit
Court of Appeals. If the court hears the appeal and if the company
succeeds in persuading the court to limit the size of the class
- for example, by separating the claims of unequal pay from those
about lack of promotion - that would raise the cost of litigation
for plaintiffs, perhaps discouraging some of them. Wal-Mart would
also benefit from the chance to win some cases even if it lost
"Judge Jenkins is simply saying he thinks it meets the legal
requirements necessary to move forward as a class action,"
Mona Williams, a Wal-Mart spokeswoman, said in a statement released
after the judge's decision. "We strongly disagree."
Lawyers not involved in the case said Wal-Mart would probably
try to argue that Judge Jenkins should have decided that employment-related
decisions at Wal-Mart are not made centrally, and so a class-action
suit against the whole company is based on an erroneous idea.
Under this argument, the plaintiffs would have to sue individual
stores or regions of the company to show more specific and individualized
facts supporting discrimination claims.
But if Wal-Mart's appeal succeeds and the case is split in two,
the women will proceed anyway, said Joseph M. Sellers,
a partner at Cohen, Milstein, Hausfeld & Toll in Washington,
one of the law firms representing the women. "We would try
them separately," he said. "We wouldn't simply abandon
The importance of keeping the case simple is evident even in
the kind of arguments the plaintiffs are making. They are not,
for example, arguing that Wal-Mart was a hostile work environment
for women. That kind of claim could allow the plaintiffs to recover
compensatory damages for pain and suffering and the like, but
calculating those amounts could be difficult, said Mr. Harper,
the law professor. "This way it simplifies a class action,"
If the women ultimately win the suit - and that would probably
take years - Mr. Sellers said it would be relatively simple to
work out how much to pay each woman in the class. The plaintiffs
have developed a formula to determine the difference between what
women were paid and what they should have been paid. So any woman
in the class seeking to recover money would not have to go through
a legal or arbitration proceeding, but might have to provide only
dates of employment, for example.
"There is less room to wiggle on the compensation side,"
said Goodwin Liu, who teaches at the law school at the University
of California at Berkeley.
FOR those claiming that they were unfairly denied promotions,
though, calculating damages is more difficult because not all
women who might have sought promotions would have received them.
Further, Wal-Mart managers did not always post promotion opportunities,
so women might not have known that they could have applied. To
recover money, members of the class may have to show, somehow,
that they would have applied, if they had known they could; then
a wage difference could be calculated. "It's a little more
complicated," Mr. Sellers said.
But a lot has to happen before any money could be paid out. If
the court of appeals allows the case to continue, both sides will
gather evidence, and that will prompt a legal brawl of its own,
said Lawrence Lorber, a partner in the Washington office of Proskauer
Rose, which is not involved in the litigation. "This would
be a discovery war," he said.
Lawyers for the plaintiffs will be looking for more documents
on Wal-Mart's employment and compensation policies, especially
any policies the company has changed, Mr. Sellers said. Such evidence
could support a motion for summary judgment, which, if granted
by the judge, would end the case before it went to trial before
Crucial to the case, though - what Mr. Sellers called "the
glue that holds the case together" - are statistics showing,
for example, the salary gap between men and women and the rates
"They can do it by numbers, statistical analysis,"
said Mr. Harper of Boston University, and in the process find
specific cases to put faces on the numbers. "It really helps
them to have some individual instances, some examples," Mr.
Harper said. "If they've got good plaintiffs here, if they've
done a good job - going up against Wal-Mart, you would hope they've
done a good job - they will have some named plaintiffs who will
have some good stories."
The plaintiffs would have to convince a jury that Wal-Mart was
liable for damages because it had a policy and practice of discriminating
against women, Mr. Harper said. "There doesn't have to be
a memo" or other smoking-gun document, he said, "but
it has to be something that's understood by managers, rewarded,
approved. If it's not a policy, it's just that at some stores
some managers discriminate, then they haven't really shown that
it's class-wide discrimination."
If the plaintiffs succeed in showing class-wide discrimination,
the trial will move to a damages phase. The same jury that agreed
discrimination had occurred would hear additional evidence to
decide how much the women should receive. But several lawyers
predicted that if a jury found Wal-Mart liable for discrimination,
the company would quickly settle the case rather than let unpredictable
jurors decide what the company should have to pay.
"That last step is not going to happen," Mr. Harper
said. "For sure."