Lead women plaintiffs in the sex discrimination case against Wal-Mart (Dukes v. Wal-Mart Stores, Inc.) today filed a briefing opposing Wal-Mart's request to the U.S. Supreme Court that it review a lower court's class action decision.
In April 2010, after nearly a decade of pre-trial wrangling, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of class action status for the case. The lawsuit alleges systemic discrimination against women in compensation and promotions at Wal-Mart and its subsidiary, Sam's Club. It is the largest civil rights class action in history. Wal-Mart has lost the class action issue four times before the U.S. District and the Ninth Circuit Court of Appeals.
"This latest appeal is just another attempt to delay the case," said Betty Dukes, a Pittsburg, Calif., Wal-Mart greeter for whom the case is named. "After nearly 10 years, the women of Wal-Mart deserve our day in court."
The brief filed in opposition to Wal-Mart's Petition argues that the Ninth Circuit ruling upholding the class was proper. It states that Wal-Mart ignores the compelling facts that led the trial court--in a detailed 84-page opinion--to conclude that there was significant proof to raise an inference of company-wide pay and promotion discrimination. The evidence also showed that Wal-Mart lagged far behind its competitors in its promotion of women and long knew of the discrimination against its female employees but failed to act.
Wal-Mart's real argument, ultimately, is that "it is too big to be held accountable," according to the women's brief. "The class is large because Wal-Mart is the nation's largest employer and manages its operations and employment practices in a highly uniform and centralized manner."
The brief also states that the class certification decision in this case does not threaten employers with good records on diversity or open the floodgates to class actions.
"In fact, in the nearly four years since the Ninth Circuit first affirmed Dukes in February 2007, not a single Title VII class action - small or large - has been certified within the Ninth Circuit. In the same four-year time period, nine Title VII class actions have been certified in the federal courts across the entire country - about two cases a year. Only four of these cases involved private corporate employers.
"The very small number of Title VII class action cases certified in the recent past underscores another important point... It highlights how different Wal-Mart is from the typical employer. Wal-Mart is a uniquely large and unusually uniform and centralized company." Wal-Mart has lagged far behind its competitors in its promotion of women. The evidence against Wal-Mart fully supports a class action.
The Supreme Court is expected to decide whether to take the case by the end of the year.
For more information and a copy of the Opposition brief, visit www.walmartclass.com.
Dukes v. Wal-Mart plaintiffs are represented by The Impact Fund, Berkeley, Calif; Cohen Milstein Sellers & Toll, PLLC, Washington, DC; Equal Rights Advocates (ERA), San Francisco; Davis Cowell & Bowe, San Francisco; Public Justice Center, Baltimore; and Tinkler Law Firm and Merit Bennett, Santa Fe, N.M. SOURCE Cohen Milstein Sellers & Toll PLLC