Five Reasons Why the Walmart Decision Doesn't Affect Your Discrimination Case

Wal-Mart  Discrimination case There's been lots of hoopla over the Wal-Mart v. Dukes class action case that the Supreme Court just decided. You may have heard how the decision was a serious blow to class action discrimination cases. Maybe you're worried about your own discrimination case and have some concerns that the Supreme Court decision somehow affects your chances in court or with EEOC.

The Wal-Mart case involved a class of 1.5 million female employees, nationwide, who allegedly were denied promotions and pay increases. The class plaintiffs claimed that the retail giant's policy of allowing local managers to make promotion and pay decisions within their own discretion resulted in a statistically disparate impact on females across the entire company. For instance, they argued that women fill 70 percent of the chain's hourly jobs but hold only 33 percent of its management position. They claimed that promotional opportunities were not posted, but were done as a "tap on the shoulder," and that the tap tended to favor males.

They offered testimony that senior management referred to female associates as, "little Janie Qs," and that one manager said, "men are here to make a career and women aren't." They offered proof that a committee of female Walmart executives concluded that, "stereotypes limit the opportunities offered to women." They also offered expert testimony that Walmart's pay and promotion disparities "can be explained only by gender discrimination and not by . . . neutral variables."

Sounds bad, huh? So why did the Supreme Court toss the class action? And how does this affect other discrimination cases? Here are the top 5 reasons why the Walmart case probably doesn't affect your discrimination case one whit:

1. No impact on individual claims.

Many people think a case is a class action if there are 2 or more plaintiffs, but that's not so. A class action is one in which the plaintiffs are too numerous to list (say, 100 or more), and the class has one or more designated representatives who make claims on behalf of the entire class. Odds are that your case is about discrimination against you. Even if you can cite others who were subjected to the same type of discrimination, or if you sue along with some co-workers, that doesn't make it a class action.

2. Bias of individual decision makers.

One of the biggest beefs that the majority of Supreme Court justices had with the Walmart case is that they couldn't swallow the argument that thousands of local managers could all be infected with the same bias. In order to bring a class action, you have to show that the plaintiffs have "commonality," that is, questions of law or fact in common. The court found that the decision-makers likely acted for a host of different reasons. Some might have fewer female than male employees. Some might reward employees for scores on aptitude tests or education. Some might be guilty of intentional discrimination, but not all. Your case probably involves alleged discrimination by your supervisor, or by someone directly in the chain of command linked to you. If the person making the decision in your case was biased, you still have a discrimination claim.

3. Expert witness problems.

Experts are tough to deal with, and the Supreme Court had problems with the experts that the plaintiffs introduced. For instance, they offered testimony of a witness saying that the corporate culture of Walmart made it vulnerable to gender bias. However, he apparently couldn't say whether that bias affected 0.5 percent or 95 percent of the employment decisions at the company. The court's majority said that they found this testimony didn't advance the case at all, and they disregarded it. They also didn't like the analysis, region-by-region, showing significant statistical differences by gender. I can't say one way or the other whether the court was right in its analysis of the expert testimony, but I can say that your case probably doesn't involve experts. Even if you do have experts, yours probably won't be testifying about the same issues these experts testified about. The problems the court cited were very specific and likely don't affect your case at all.

4. Testimony by a small percentage of employees.

The plaintiffs offered 120 affidavits about discrimination against female employees. That's about 1 for every 12,500 employees. In contrast, the court pointed to a case that they allowed in which the plaintiffs offered affidavits for one in about every eight employees. A class this large is pretty unwieldy for a number of reasons. The court said that the affidavits didn't represent a large enough cross-section of employees. In your case, you'll likely have testimony from 100 percent of the plaintiffs -- namely, you. Even if you bring a case with two or more co-workers, you'll all testify.

5. Technical rules issues.

The other big issue in the Walmart case was which rule the damages claims should have been brought under. If the case hadn't been decided on the commonality issue, the decision on the technical rules issue would have allowed the plaintiffs to go back and plead under the right rule. And that's what usually happens when there is a pleading issue in a lawsuit. If your court finds that there are technical problems with your complaint, they'll probably let your lawyer go back and amend.

When you see a high-profile case like the Walmart case, you'll hear lots of opinions about it. Before you panic and decide that you no longer have a case, it's best to talk to an employment lawyer in your state about it. Your case will depend on your individual facts and the laws in your state.

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June 20 2011 at 5:02 PM Report abuse rate up rate down Reply

Regardless of what this pro-corporate court says, it does help if an employee has a good grasp of spelling and grammar. In reading the comments to this report, I am amazed that any person who cannot spell correctly or punctuate correctly (at least most of the time) would think he or she has a good shot at advancement anywhere, much less at WalMart. On the other hand, it is clear that the male corporate culture will prevail as long as the 5 Supreme Court Justices protect corporations over human beings.

June 20 2011 at 4:46 PM Report abuse rate up rate down Reply

The elephant in the living room is that the Supreme Court is totally biased toward corporations and against employees. Read the history of recent years. It would be easier to to get the Klan to state that you were a discrimination victum than to have such a finding by the five "conservatives" on the court.

June 20 2011 at 4:29 PM Report abuse rate up rate down Reply

It may appear to the American people that the Highest Court in the United States of America has gone astray, on it's decision not to hear the WalMart suit because of the size... Also it may have a bearing on the ability of the court to hear other high profile cases! This case should be settled; and by not hearing the case; the court has said, the case is not worthy to be in court... at least not their court.

June 20 2011 at 4:01 PM Report abuse rate up rate down Reply

Well i was a department manger but there was a male above me at walmart and everytime it was something to say to the upper mangagers they only listen to the one abouve me nothing i said would make it to hire person cause i was the wrong color and becausei was a women Pkay like when i found a new job i gave my notice no one even talk to me about it but the men where always talked to like why are you leaving but for me it was good luck and that was it. The manager of the store was a man that is not with the company anymore he did go to another walmart but was also let go there He was always downing the women and favoring the men big old Texan he was I my self called the home office a few times but of course nothing was done for me . It is just like a walmart to favor the blacks and the men James Bowen only like one thing and it was not the women that where department managers . I am glad that he is no longer with the comapny maybe more will have a chance to go futher i like my job very much and really didnt want to leave but i could not get the pay nor could i get the safication of bieng a women in charge of her onw department

June 20 2011 at 3:56 PM Report abuse rate up rate down Reply
1 reply to sueissweet4u's comment

Fortunately, individual women can still bring their cases against Wal-Mart. This case is only about whether 1.5 million can bring a case together.

June 21 2011 at 5:47 AM Report abuse rate up rate down Reply
Suzanne Lucas


This is brilliant and extremely helpful information. Sometimes we get so caught up in the big news that we forget to really evaluate if this actually applies to us.

June 20 2011 at 3:53 PM Report abuse rate up rate down Reply
1 reply to Suzanne Lucas's comment

Thanks Suzanne! I know people sometimes worry when they hear about big cases like this.

June 21 2011 at 5:46 AM Report abuse rate up rate down Reply

This is a great day for firms who were not previously able to participate now their back in the game! It's a free for all.

June 20 2011 at 3:44 PM Report abuse rate up rate down Reply

This just means more Lawfirms can get a piece of the pie. Not being a part of the lawsuit one day an having a shot at getting a stake in it after this decision probably cheers up the legal community. The chance of a Class Action being accepted kept other firms from getting involved so now they can advertise on TV to draw in specific customers.

Some firms basically were excluded but now it is an open field free for all to whomever gets to the potential clients first. Let the games began!

June 20 2011 at 3:39 PM Report abuse rate up rate down Reply


June 20 2011 at 1:56 PM Report abuse rate up rate down Reply

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