San Francisco Judge Concerned About Revisiting Wal-Mart Sex Discrimination Suit in California Court

San Francisco Judge Charles Breyer expressed concerns in court this week about reviving in California federal court sex discrimination claims dismissed by the Supreme Court in Wal-Mart v. Dukes. California residents who had been part of the earlier class action suit dismissed by the Supreme Court last year now are confining their claims to California in the suit filed in the Northern District Court of California. They are alleging the same claims of sex discrimination in pay and promotion that led to female workers at Wal-Mart being disproportionately excluded from management positions and paid lower salaries than similarly situated male co-workers. These plaintiffs claim that the California federal court should not dismiss their claim because here they are confining themselves to female workers in California and not bringing suit on behalf of all female workers across the nation as in Dukes.
The largest civil rights suit in history, Wal-Mart v. Dukes attempted to bring suit on behalf of more than 1.5 million female workers who plaintiffs alleged had been subject to a nation-wide policy of sex discrimination at the company. In a 5-4 decision, the Supreme Court rejected the suit, finding that it was not appropriate for class action as not all of the over 1 .5 million female workers at Wal-Mart included in the suit faced similar enough discriminatory action or damages. The Court found that individual discrimination suits by each of the women was more appropriate, as it would give Wal-Mart the fair opportunity to defend itself from each claim. According to the Court, a class action suit would not allow Wal-Mart a fair chance to address the unique discrimination each woman might have faced.
While Wal-Mart workers around the country in response to the 2011 decision have already filed over 2,000 individual claims with the Equal Employment and Opportunity Commission, the California workers in this case attempted another class action. Here the workers attempted to file suit for all female workers across the state of California, in contrast to Dukes which was filed on behalf of female workers across the entire nation. The District Court Judge in San Francisco yesterday expressed concern that this case would face the exact same problems as in Dukes The Judge was skeptical that the plaintiffs would be able prove that their claims were similar enough to overcome the procedural hurdles of class action certification.
The plaintiffs in California attempted to distinguish their class action claim from that ruled against in Dukes in a number of ways. First, the plaintiffs’ lawyers claimed that there is direct evidence that 20 district managers and four regional managers approved all the pay and promotion decisions in California. As such, plaintiffs claimed that this California case would not run into the hurdle of demonstrating there was a company-wide policy that led to the discrimination the 45,000 female employees allege. In contrast, in the Dukes case, the Supreme Court found that there were too many individual decision-makers that may have discriminated for widely varying reasons and to widely varying effect for one combined nation-wide class action claim to work.
If the California plaintiffs indeed have evidence that the 20 district managers and four regional managers acted in tandem in discriminating against the women, then the class action certification of all 45,000 female Wal-Mart employees in California will survive. If such a class action case goes forward, though a fraction of the 1.6 million potential plaintiffs in the Dukes case, it would still be one of the largest class action employment lawsuits in California history.
All eyes are on Judge Charles Breyer and what he decides on this class action certification. If he goes forward with the class, he may set a precedent for judges around the country who are facing similar attempts at mini-Dukes claims. Such a step would be a victory for female employees everywhere, and especially for female employees at the largest company in the world.

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