By: Dina Lassow, Senior CounselPosted on April 28, 2010 Issues: Judges & Courts Workplace

by Dina Lassow, Senior Counsel, 
National Women's Law Center 

After years of litigation over Wal-Mart’s efforts to get rid of the case, a sharply divided Court of Appeals for the Ninth Circuit ruled on Monday that the claim that Wal-Mart discriminates against women by paying them less than similarly situated men and failing to promote them can proceed as a nation-wide class action. The National Women’s Law Center joined with other civil rights groups in filing an amicus brief supporting the women employees.

Wal-Mart, the nation’s largest private employer, was essentially arguing that it was too big to be sued in a class action—the process by which a few named plaintiffs can sue on behalf of others with common claims. In this case, millions of women employed at any Wal-Mart in the United States since Dec. 26, 1998 who claim that they were subject to discriminatory pay and promotions are potentially members of the class. Fortunately, the full Court rejected Wal-Mart’s argument and held that it was not too large to be bound by the rules. 

The plaintiffs amassed a wide range of evidence in support of their argument that each worker’s claim and each Wal-Mort store need not be examined individually—as Wal-Mart claimed was necessary. They demonstrated that even though about two-thirds of Wal-Mart’s hourly employees are women, they were only one-third of lower-level managers and only 14 percent of the store managers. They also showed that women in every major job category were paid less than men of equal seniority, with their total earnings ranging between 5 and 15 percent less than those of similarly situated men.

The plaintiffs also provided examples of pervasive gender stereotyping in Wal-Mart stores—with managers making comments such as "men are here to make a career and women aren't. Retail is for housewives who just need to earn extra money," and giving a manager position in the sporting goods department to a male because the store manager "needed a man in the job."
Although the decision this week was a huge victory for the plaintiffs and the many Wal-Mart employers, this decision is not a ruling on the merits of the case—on whether Wal-Mart in fact discriminated. That has yet to be decided—but the ruling allows the employees to join together to prove their case, and their right to a court order that Wal-Mart change its practices, give them back-pay, and pay damages. After many years of litigating just the right proceed as a class, we look forward to the women finally having their day in court.