What's Impeding the Walmart Women's Lawsuit

Tuesday was a good day for Walmart, but a bad day for the female employees they are notorious for having abused. A total of 1.5 million women are accusing the company of employment discrimination, but Walmart has contended that individually, they do not have enough in common to combine forces for a viable class action lawsuit. So, on Tuesday, the Supreme Court heard oral arguments from both parties to decide whether or not that is indeed true.

The plaintiffs have two things going against them: 1) their case is being held in the ultra-conservative Roberts court, which has ruled for business interests 61% of the time, and 2) much of their argument is supported by “social framework analysis,” a relatively new branch of sociology, that isn’t being taken seriously by everyone because of its lack of concrete statistics. As Chris Cassidy at Ms. Magazine writes, it was no surprise that on Tuesday, “the case went really, really badly.”

There is a lot at stake. If the suit is approved, it will not only cost the company billions of dollars in back pay and punitive damages, it will go down as the largest (by far) class action lawsuit in history. (Home Depot’s $104 settlement of its own gender discrimination suit only covered 25,000 women).

In order to qualify as a class action, Justice Elena Kagan said that the plaintiffs need to show “that there  is a practice, a policy of subjectivity that on the whole results in discrimination against women, not that each one of those women in the class were themselves discriminated against.”

So during the oral argument, when Justice Anthony Kennedy asked the plaintiff’s attorney Joseph Sellers what illegal behavior Walmart had committed against its entire female work force, Sellers asserted that they were guilty of fostering a sexist culture and allowing local managers too much liberty in making hiring, raise, and promotion decisions. Replied Kennedy:

“Your complaint faces in two directions. Number one, you said this is a culture where … the headquarters knows everything that’s going on. Then in the next breath, you say … these supervisors have too much discretion.”

Cassidy notes sarcastically (though aptly):

“It seemed to Justice Kennedy and his conservative colleagues that these were inconsistent positions…For instance, how could a company have sexist training materials but still not closely oversee local hiring, raises and promotions? Unimaginable, the conservative jurists essentially countered.”

Walmart has had one of the most glaring cases of sexism and discrimination in the workplace. If you’ve seen the documentary, “Walmart: The High Cost Of Low Price,” or simply looked at the statistics, this is pretty much irrefutable. They have certainly made efforts as of late to amend their offenses against women–they even made the list of the NAFE (National Association for Female Executives) Top 50 Companies for women — but that only proves that they now need to compensate and admit their wrongdoing to the 1.5 million female employees they slighted in the past. If the women of the not-yet-class-action-lawsuit are denied the chance to bring Walmart to court, it will set a precedent of impossibility for future women–future anyone, really–attempting to obtain justice after discriminatory practices by a major company.


Author: Maura Hehir

Maura Hehir is a writer and student studying creative nonfiction writing at New York University. She volunteer-teaches a creative writing class to kids in Harlem and works in the marketing and design department at a bookstore.


  1. Aaron Mayer says:

    The legal issue in the Walmart case, from what I can tell, is merely a question of whether Walmart will have to provide notice to the class. Most class actions for damages are filed under Rule 23(b)(3), which requires an opportunity for potential class members to opt out. The Walmart case has proceeded under 23(b)(2), which has historically never been used to obtain money damages and does not require notice to the class nor an opportunity for class members to opt out.

    Thus, even if the Court rules that the class can’t proceed as a 23(b)(2) class, it is highly probable that the class can proceed as a 23(b)(3) class – the only difference is that people have the opportunity to opt out.

    • Chris Cassidy says:

      Great piece, Maura.

      Aaron — My understanding of this case is that it hinges on commonality, which is part of the test for certification of any class. Absent commonality, there is no basis for the plaintiffs’ claims being treated as a class under any provision of FRCP 23. (See FRCP 23(a)(2) – http://www.law.cornell.edu/rules/frcp/Rule23.htm)

      So, with commonality being the centerpiece of the briefs and oral argument transcripts at SCOTUS, I’m not sure that your statement of the issue is accurate. Rather, the determination of commonality will resolve whether the case may proceed as a class action, period. In other words, if the Supremes determine that the plaintiffs’ claims are sufficiently disimilar, this case is ripe for dismissal without prejudice, leaving individual plaintiffs with the right to sue individually (assuming that the statute of limitations hasn’t lapsed.)

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