You might remember my previous post, discussing the class certification of our gender discrimination case against Wal-Mart. You can take another look at Judge Jenkins' 84-page Order re class certification, here.
On July 6, 2004, Wal-Mart filed its Petition for Permission to Appeal with the Court of Appeals for the Ninth Circuit. Wal-Mart's primary argument is that it has a "fundamental right" to rebut each class member's claim on an individual-by-individual basis. In a nutshell, Wal-Mart argues that each of the 1.5 million to 2 million women must individually prove that Wal-Mart discriminated against her and must prove her individual damages. If this were true, then no judge would ever grant class certification on a case of any significant size because the individual hearings would render the action "un-manageable."
As the plaintiffs'/appellee's Reply Brief/Opposition to Appeal (filed today, July 19) eloquently explains, there is clear statutory authority and 25 years of Title VII jurisprudence indicating that liability and damages in an employment discrimination class action can in fact be determined on an aggregate basis using statistical analysis.
Wal-Mart also used its enormous size as a crutch to argue that Judge Jenkins committed legal error and "misapplied" the federal rule governing class actions. Those arguments get pretty technical and if you are interested in the details, I encourage you to read both briefs, hyperlinked above (they are 20 pages each). Otherwise, you can read the press release we issued about the appeal, here.
The Ninth Circuit will probably spend 60-90 days to decide whether to accept Wal-Mart's appeal. If the Ninth Circuit denies the Petition for Appeal, the case will move forward to trial. If the Ninth Circuit accepts the appeal, it may then still affirm the class certification, or it may overturn the class certification entirely, or it may modify the terms of the class certification. We are all holding our breath, as we "hurry up and wait."
American corporations are closely watching the Wal-Mart case and the class certification developments, especially in light of large settlements in two recent gender-discrimination cases. Boeing Co., in a private class action, recently agreed to change its employment and compensation practices and pay up to $72.5 million to as many as 29,000 current and former female workers in its Seattle-area aircraft plants. The Boeing class action alleged that Boeing's compensation and promotion practices denied equal pay and advancement opportunities to women employees. Similarly, Morgan Stanley, in a class action filed by the EEOC, recently agreed to pay $54 million to settle allegations that it systematically underpaid and failed to promote women in its institutional equities division.
A New York Times Editorial recently quipped that "Life in the Frat Lane" cost Morgan Stanley the $54 million. The "Frat Lane" and "Good Ole Boy's Club" are indeed what get these corporations into trouble. Morgan Stanley isn't the only culprit either ~~ Smith Barney and Merrill Lynch have also paid out more than $100 million to settle sex-bias suits. Women are not only underpaid and underpromoted at these huge corporations, but often, as at Morgan Stanley and Wal-Mart, must work in demeaning, offensive, or sexually hostile environments ~~ meetings get scheduled at strip clubs or Hooters restaurants, male employees celebrate birthdays with breast-shaped cakes, female employees are called names or told to stay home and care for their families, the list goes on and on. The seemingly huge settlements in Boeing and Morgan Stanley cases are probably equal to the bonus pay that one or two top executives might receive. Still, I hope it hits them deep enough in their pocket to really change their policies and to eliminate gender discrimination.
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