Women who originally sued Wal-Mart Stores Inc. (WMT) for sex discrimination on behalf of 1 million female co-workers across the U.S. amended their suit to cover bias claims of only workers in California.
The more limited filing today in federal court in San Francisco followed a U.S. Supreme Court ruling in June that barred the original suit as a national class action, or group case, because the plaintiffs failed to prove the world’s largest retailer had a nationwide policy that led to gender discrimination.
The new complaint alleges Wal-Mart blocked women in California from promotions and paid them less than men for comparable work. A California store manager suggested to one plaintiff that she “doll up” to become more promotable, while another told a female assistant manager who missed work because of a sick child that “this is why we are concerned about promoting women with children,” according to the complaint.
Lawyers for the women said they plan to file “an armada of cases” against Wal-Mart by regions or states to replace the national case they initiated in 2001.
“The Supreme Court did not rule on the merits of the action, but only ruled that the class as certified could not proceed,” they said in today’s filing. “It did not preclude prosecution of a class that was consistent with its newly announced guidelines and standards.”
The claims in the new complaint “aren’t representative of the thousands of women that work at Wal-Mart,” said Greg Rossiter, a Wal-Mart spokesman.
“These claims are unsuitable for class treatment because the situations of each individual are so different,” said Rossiter in an e-mail. “Wal-Mart is not the company the plaintiffs say it is. Not now. Not then.”
The amended lawsuit was filed by five current or former company employees on behalf of all women working in California Wal-Mart and Sam’s Club stores from December 1998 to the present. At least 95,000 current and former female Wal-Mart workers may be covered by the new complaint, said Brad Seligman, an attorney for the employees.
The new filing won’t answer the Supreme Court’s concerns, said attorney Theodore J. Boutrous Jr., who represents Bentonville, Arkansas-based Wal-Mart.
’Incorrect and Discredited’
“The Supreme Court rejected these very same class action theories when it reversed the plaintiffs’ lawyers’ last effort in June,” he said in an e-mail. “The plaintiffs’ lawyers do not come close to meeting the standards for obtaining class certification and their arguments still rely on the same incorrect and discredited theories that the Supreme Court repudiated.”
Seligman said the Supreme Court ruled that the plaintiffs couldn’t use nationwide statistics about promotion and pay for women at Wal-Mart to allege that individual managers made discriminatory decisions. The amended complaint relies on statistical and actual evidence showing that at the level of regional decision-makers, women were being discriminated against, he said.
Wal-Mart district managers were told at a 2004 meeting that the key to success was a “single focus to get the job done. Women tend to be better at information processing. Men are better at focus,” the employees were told, according to the complaint.
“We found and are able to document a staggering pattern of discriminatory pay and promotion” practices, Seligman said.
The original lawsuit was filed by six current and former Wal-Mart workers alleging discrimination in pay and promotions. The women were granted class-action status in 2004, allowing them to sue as a group. Wal-Mart appealed and the case was eventually heard by the U.S. Supreme Court, which blocked the nationwide case from going forward and sent it back to district court in San Francisco.
Wal-Mart denied bias in pay or promotions and sought reversal of court decisions allowing class-action status. The Supreme Court erased the class action in June.
The women allege that Wal-Mart continues to discriminate against them, according to today’s filing. "There have been some changes in practices,’’ Sellers said. “But the problems women encounter continue.”
The plaintiffs must seek a judge’s ruling that the California case can proceed as a group lawsuit. A ruling on that issue could be appealed by the losing side.
The California lawsuit is Dukes v. Wal-Mart Stores Inc., 01-cv-02252, U.S. District Court, Northern District of California (San Francisco). The Supreme Court case is Wal-Mart v. Dukes, 10-00277, U.S. Supreme Court (Washington).
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