The allegations were too vague and the evidence too weak to make a case for common injury, which was essential to include all female employees employed since 1998 in a sweeping sex discrimination lawsuit against Wal-Mart. So said the Supreme Court Monday when throwing out the sex-discrimination lawsuit against Wal-Mart. The alleged victims had too little in common to form a single class of plaintiffs.
This decision will surely affect other employment class action cases because lower courts will look harder at the factors that constitute a class for bringing mass claims. The majority held that plaintiffs must identify a specific employment practice that unlawfully discriminates. The plaintiffs alleged that Wal-Mart's personnel policy permitted sex biases that pervaded the corporate culture and denied fair opportunity to women. Consequently, women remained concentrated in the rank and file positions with lower wages while men rose and dominated the managerial ranks with higher wages. The statistics showing these pay and promotion differences prove nothing according to the justices.
The Federal Rules of Civil Procedure set out the criteria for class-action lawsuits. Plaintiffs must demonstrate that the facts and law at issue are "common to the class." Justice Scalia did not accept the data and experts the plaintiffs provided.
Justice Ruth Bader Ginsburg wrote that the allegations met the test that earlier Supreme Court decisions have set out for employment-discrimination suits. The lower courts records indicated promotions were made by a tap on the shoulder process. Vacancies are not regularly posted...managers choose individuals to promote on the basis of their own impressions.
Wal-Mart and the business community are praising the ruling as demonstrating that company-wide discriminatory pay and promotion policies cannot be demonstrated statistically.
The plaintiff's attorneys intend to regroup and will concentrate on smaller, more focused class action groups. They are encouraging women that Wal-Mart may have discriminated against to file individual complaints with the Equal Employment Opportunity Commission.
Justices Curb Class Actions, The Wall Street Journal, June 21, 2011