Walmart Sex Bias Case Dealt Blow

Walmart Sex Bias Case Dealt Blow
Legal experts say that defending itself against individual lawsuits could be costly for Walmart. (Wal-Mart Stores Inc.)

A federal judge in Florida ruled earlier this month that 79 women with claims of sex discrimination against Walmart must file their cases against the Bentonville retailer as individual lawsuits, rather than as a group.

The ruling is the latest blow to the plaintiffs, who allege they didn’t receive the same pay as men for the same jobs at Walmart. Some of the women also allege they weren’t promoted because of their sex.

Walmart has argued for years that allegations involving pay discrimination should be tried individually and not as a class action or as a group of women.

In 2011, the U.S. Supreme Court blocked a sex bias case against Walmart that had up to 1.5 million plantiffs from moving forward as a class action because there were too many women in too many jobs to include in one lawsuit.

Since that ruling, some of those women have filed proposed class-action lawsuits for the regions they lived in, but those, too, have been blocked from going forward. The recent plaintiffs’ cases stem from those regional lawsuits.

Since the July 12 ruling by U.S. District Judge Robert N. Scola Jr., plaintiffs’ attorneys have been filing individual lawsuits against Walmart alleging sex bias. And more lawsuits could be coming, said Christine Webber of Cohen Milstein Sellers & Toll of Washington, who is coordinating with co-counsel on 19 cases with 150 individual plaintiffs.

Some of the allegations of bias date back to the late 1990s. “The merits of their claims have never been addressed,” Webber said.

With the ruling in Florida, Webber said, “it’s another instance of Walmart trying to put up procedural barriers to drag out the cases and ultimately doesn’t deter us from pursuing the merits.”

The move to defend each individual case is expected to drive up the legal fees for Walmart.

If fact, Walmart probably could have saved money by settling the case years ago rather than continuing to spend money on legal fees, said Michael Selmi, a professor at Arizona State University College of Law who teaches employment discrimination law. “The whole litigation has evolved. It just keeps going. It’s kind of crazy.”

The 79 plaintiffs were part of two lawsuits filed in February in the Southern District of Florida, 45 plaintiffs in one case and 34 in the other.

Walmart spokesman Randy Hargrove said the company was happy with the ruling from Florida, which “ended yet another attempt by these lawyers to group dozens of plaintiffs into one suit against us. As we have said, if these plaintiffs believe they have been treated unfairly, they deserve to have their timely, individual claims heard in court, but not in some package the law does not recognize.”

He also said Walmart has had a “strong policy against discrimination in place for many years, and we continue to be a great place for women to work and advance.”

Hargrove said that last year nearly 60% of the company’s U.S. hourly promotions went to women. “The allegations from these plaintiffs are not representative of the positive experiences millions of women have had working at Walmart,” he said.

A Message From Walmart?

The plaintiffs said they were in salaried and hourly positions and “have been regularly paid less on average than similarly-situated men, although on average the women have more seniority and higher performance ratings than the men.”

The women were seeking damages that include back pay, front pay or reinstatement plus interest. They also were seeking damages to punish Walmart.

But before those cases could move forward, Walmart asked that each plaintiff file her own case.

“This case is the latest of several failed attempts of Plaintiffs and their counsel to engage in aggregate litigation against Walmart on behalf of a group of allegedly aggrieved female employees claiming sex discrimination in compensation and promotional opportunities,” Walmart said in its motion to sever the claims.

Walmart asked that each plaintiff’s case be tried individually, and Judge Scola agreed.

He noted that the plaintiffs worked at different Walmart stores during different time periods and under different policies and supervisors.

And none of the counts in the lawsuit is tailored to individual plaintiffs, he wrote. Instead, plaintiffs each identify themselves by the Walmart store they worked at and the years they worked there, Scola said.

The plaintiffs provide a summary of the alleged discrimination practices; some include as little as three sentences of allegations while others include a full page of details, he said.

Scola ordered the court clerk to have the complaints refiled with each plaintiff getting her own individual case.

Walmart’s Hargrove said the company “will thoughtfully address each case as we continue to defend the company.”

Elizabeth Tippett, an associate professor at the University of Oregon School of Law, said she thought Walmart was trying to send a message to plaintiffs’ attorneys not to bring a group case.

Webber said she and her co-counsel aren’t discouraged by the judge’s ruling. “It means that there’s going to be a lot more depositions,” she said. “And that gives us more opportunity to collect more evidence.”

More Cases, More Costs

Webber said she thought Walmart would want the cases tried as a group to save money. “I would think Walmart didn’t get to be as rich a business as it is by having its employees sitting day after day in depositions, but if that’s the tack they choose to take, it’s no disadvantage to us,” she said.

Webber said having 79 individual cases will run up the attorneys’ fees for the plaintiffs as well as for Walmart — and the plaintiffs will seek to recover those legal costs.

Selmi, the Arizona law professor, said discovery costs “can be extraordinarily expensive for both sides, but particularly for Walmart.”

He said that if Walmart had been asked years ago whether it would rather go to trial with one case with thousands of plaintiffs or 10,000 individual cases, “I think they would have chosen the one case.

“I think they were counting on these cases going away,” he said. “And they certainly have not.”