This summer, the Supreme Court will rule whether to allow the district court certification of the class action gender bias case against Wal-Mart.
While much of the attention has focused on the enormous size of the class, the impact of the case is likely to be felt across a range of class action and employment discrimination cases, says Pauline Kim, JD, the Charles Nagel Professor of Law at Washington University in St. Louis and employment law expert.
According to Kim, the case hinges on the rules governing certification of class actions.
“If the Supreme Court raises the bar for showing common questions justifying class treatment, it could have the effect of making it far more difficult for plaintiffs in general to meet the requirements of a class action,” she says.
Kim notes that Wal-Mart’s argument has three main components: 1) there are not enough common issues; 2) the named class representatives do not have claims that are typical of the class; and 3) their interests may be adverse to some of the class members.
“The plaintiffs’ assertion that the class members’ claims share common issues and that the class representatives can properly represent the interests of the class is complicated by the sheer size of the class and the number of different locations and types of jobs included in the class,” Kim says.
The different types of class actions also come into play in this appeal.
The class certified in the Wal-Mart case is a “b2” class action.
“This type of class is intended to apply to situations where a party has acted against a class as a whole and where the primary relief sought is an injunction,” Kim says.
“Wal-Mart is arguing that a b2 class is inappropriate because the plaintiffs are seeking back pay, and that any class would have to be certified as a b3 class — a more difficult standard to meet.
“If the Supreme Court were to rule that a b2 class is inappropriate in this case, it would make if far more difficult to bring discrimination claims on a class, rather than an individual, basis,” Kim says.
Kim says that underneath the class action certification issues is a disagreement about the nature of employment discrimination.
“Wal-Mart is arguing that each female employee’s situation is unique — and therefore, each woman who believed she was discriminated against should have to prove that the specific decisions regarding her pay or job assignments were motivated by intentional discrimination,” she says.
“The plaintiffs are arguing, on the other hand, that sex discrimination was systemic at Wal-Mart. They assert that a corporate culture that fostered sex stereotyping, together with a system that gave managers largely unguided discretion in determining pay and promotional opportunities, meant that women were systematically underpaid and excluded from opportunities for advancement.
“The discrimination may not necessarily have been conscious in every case, but the company’s practices systematically disadvantaged women employees.
“By permitting the case to proceed as a class action or not, the Court may implicitly endorse or reject these competing theories of what it means to discriminate on the basis of sex in employment,” Kim says.