Betty Dukes

Scaled Back Wal-Mart Gender Bias Claim Fails

Even the scaled back gender bias lawsuit against Wal-Mart Stores, cut back from 1.5 million to 150,000, doesn’t qualify for class action status, a federal judge said on Friday.

After losing at the U.S. Supreme Court in 2011 in an attempt to bring the largest national sex discrimination suit ever, lawyers for women in California sought class status based on allegations Wal-Mart discriminated in pay and promotion decisions.

U.S. District Judge Charles Breyer said that although the class has been pared back the number of potential plaintiffs, “it is essentially a scaled-down version of the same case with new labels on old arguments.”

The Supreme Court originally rejected the case as too disparage and wide ranging to resolve a common legal question for all members of the class that could tie them together.

Breyer said smaller class still faces the challenge of difference decisions across hundreds of managers and decision makers at Wal-Mart, thus inviting an inability to prove the case a multiple points in each region of California.

“Plaintiffs have amassed substantial evidence of discrimination against women that occurred at Wal-Mart stores during the period at issue in this suit,” Breyer said.  But the Supreme Court required that the women show that similar decisions resulted in discrimination across all potential class members.

The lawsuit began in 2001 with claims by Betty Dukes that the company discriminated against women in pay and promotion.  Through years of appeals solely focused on certifying the massive class action, the original case ultimately failed at the U.S. Supreme Court.

Going back to the drawing board, with a smaller case, focused on California didn’t help.  The same issue of common claims and evidence of bias in promotion and pay questions could not be resolved in the women’s favor.  Breyer said no to class certification.

The decision does not consider whether the Dukes and other individual women were victims of discrimination, the individual claims can continue.

The practical effect of individual claims is that they become more expensive to litigate than the alleged damages suffered by individual women.

Case:  Dukes v. Wal-Mart Stores Inc., No. 10-cv-3005CRB



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