The Supreme Court will hear oral arguments March 29 in what is being classified as one of the largest sex-discrimination or employment-practices liability cases in history.

Knowledgeable insiders, including lawyers at the Washington Legal Foundation, say the critical component of the case is actually not its sex-discrimination implications—but what the court decides about certifying classes for class-action suits, a decision that will guide all lower courts on this matter of crucial importance to the insurance industry.

The case to be argued, Wal-Mart v. Dukes, deals with decisions by a lower court and the 9th Circuit Court of Appeals to certify as a class “all women employed by Wal-Mart at any time after Dec. 26, 1998.”

The suit alleges that Wal-Mart, as a policy, pays women less, gives them fewer promotions, and that these promotions take longer to obtain.

There are 63 named plaintiffs, led by Betty Dukes, a greeter at a store in Pittsburg, Calif., who has worked there since 1994. She alleges in the lawsuit that she has been paid significantly less than men with less seniority performing similar work, and that she was passed over for several promotions.

Some have filed briefs not on the specifics of the case, but rather the criteria the 9th Circuit used to allow certification of the class.

For example, the Association of Global Automakers Inc. says it takes no position on the issues of employment-discrimination law underlying the class-certification order. But the association's brief notes that “it is the effect of this court's decision on general principles of class certification that motivates Global Automakers to participate in this case.”

The brief states that the interpretation of rules dealing with certification of class-action lawsuits applied by the lower court “presents a serious threat to [the association's] members' interests in a stable, predictable and fair legal environment for business in the U.S.”

The brief explains, “Although this court may intend its articulation of the principles governing class certification to be tailored to this case, those principles will not necessarily be limited to employment-discrimination cases, which account for less than half the class-action proceedings in the federal courts.

“To the contrary, parties to future actions may argue that the principles announced in this case are generally applicable to every class action in every context—including antitrust, product-liability, warranty and false-advertising lawsuits.”

The automakers argue that the certification issues in the Wal-Mart case “arise in class-action litigation against Global Automakers' members with some frequency in cases that have nothing to do with employment matters.”

“Global Automakers has a strong interest in the formulation of those principles because the decision [of the 9^th Circuit, if broadly construed, may vastly expand the exposure of Global Automakers' members to unwarranted class-action litigation,” the brief says.

“Because the plaintiffs' bar views Global Automakers' members as attractive, deep-pocket defendants, members are routinely targeted by improper class-action litigation.

“Global Automakers accordingly has a powerful interest in this case,” according to the brief.

Washington Legal Foundation lawyers say they support Wal-Mart's contention that this group is too disparate to be a class, and that, if not as individuals, plaintiffs must sue through at least a group of separate suits.

Washington Legal Foundation lawyers say that if the case is approved as a class action by the Supreme Court, more than a million women who worked 1,700 different jobs in 3,400 stores—approximately half of whom are no longer employed—will be deemed a “class” and therefore eligible to be paid damages as a group.

Special Reports /

Wal-Mart V. Dukes Discrimination Case: Class-Action Implications Feared

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