Dukes v. Wal-Mart going state by state

Posted on: November 10th, 2011 by Steve Larson
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I previously posted several blogs about the Dukes v. Wal-Mart case in which the U.S. Supreme Court said a national sex discrimination case was simply too large, and reversed class certification of a Rule 26(b)(2) injunctive class seeking to recover backpay.  The holding by the Supreme Court was really limited to injunctive class actions.

In response to this ruling, the lawyers representing the female employees are now filing regional actions.  A complaint was filed in federal court in Texas on October 28, 2011.  The complaint is the second to be filed since a nationwide class action against the company was thrown out by the Supreme Court in June, 2011. On October 27, 2011, a similar set of claims was filed in federal court in California. In both Texas and California, plaintiffs are seeking class action status for female Wal-Mart workers in that state.

Attorneys for female Wal-Mart employees are now pursuing a state-by-state strategy, said Joseph Sellers, an attorney for Cohen Milstein, at a news briefing on Thursday announcing the California lawsuit.  Sellers represented plaintiffs in the nationwide lawsuit.  Sellers said that more lawsuits will be filed in different regions in the next three to six months.

The Texas lawsuit alleges the company paid women at lower rates than men for similar work and kept them from being promoted to management-track jobs. The complaint names Stephanie Odle, who has worked at Wal-Mart owned Sam’s Club stores in three states and claims she was unfairly denied a promotion.

“Managers in Texas Regions do not require or use valid, job related factors in making the promotion selections,” the lawsuit said. “Wal-Mart’s managers rely on discriminatory stereotypes and biased views about women in making pay and promotion decisions.”

The proposed class of plaintiffs would include at least 45,000 women employed at Texas Wal-Mart and Sam’s Club stores from December 1998 through at least June 2004.  The plaintiffs are seeking changes in Wal-Mart’s promotion policies in Texas, compensatory relief and punitive damages.

The original class action lawsuit was filed in 2001 on behalf of up to 1.5 million female Wal-Mart workers across the country. A federal court in California granted the group class action status in 2004, and Wal-Mart appealed the decision.  The Ninth Circuit affirmed the trial court.

In June, the U.S. Supreme Court reversed the lower courts’ rulings and dismantled the national class action. In a 5-4 decision, the court found that female employees in different jobs, with different supervisors, at 3,400 stores nationwide did not have enough in common to be considered together in a single class-action lawsuit.