Walmart Gender Discrimination Lawsuit Starting Again at Square One

I blogged a few months ago about the Supreme Court, in a 5-4 decision, nixed a huge class action lawsuit against Walmart, alleging that the company engaged in discrimination against its female employees, passing them up for promotion in favor of men.

However, after several years of procedural wrangling (without ever touching on the merits of the lawsuit), the Supreme Court finally ruled earlier this year that a class action could not proceed, because the proposed class (all of Walmart’s female employees, as well as many former female employees. – about 1.5 million people) was too large, and would be completely unmanageable, considering the distinct factual and legal issues that each individual plaintiff might raise.

But as I said, the Court didn’t rule on the merits of the case. So, there’s nothing stopping the plaintiffs from filing a new, more narrowly-tailored lawsuit. With the same lead plaintiff, a new case has been filed in a federal court in California. This one has a much smaller class – it only covers Walmart’s California employees – about 45,000 people.

That’s still a very large class action, but it’s by no means the largest one that has ever been approved, and then been litigated to a final conclusion.

I think this is probably the better strategy for the plaintiffs to pursue. First of all, it’s far more manageable for the courts, which means it has a better chance of surviving motions to dismiss on the grounds that the proposed class is too large.

It also, in theory, allows the plaintiffs to do a more thorough job of vetting potential members of the class, ensuring that the issues they would raise are similar enough to warrant lumping their claims together. Furthermore, the media coverage of the case might focus more on the substantive issues this time around, rather than focusing on the record-breaking class size, and the resulting spectacle, of the previous one.

Also, by tailoring the plaintiff class more narrowly, and by region, it allows the plaintiffs to file multiple, simultaneous class-action lawsuits against Walmart across the country. Defending against several smaller class action lawsuits is probably more expensive and time-consuming than defending against just one, even if it is much larger. This might put more pressure on Walmart to settle these cases quickly, rather than take them to trial.

Of course, this says nothing about whether or not Walmart actually did discriminate against women, or if it still does. It’s worth noting that, since the first class action was filed several years ago, the company has instituted new policies designed to put more female employees on the management track, and changed its employee and manager training to make their policy against gender discrimination clearer. That’s very good news. However, if they did engage in discrimination in the past, they still can, and should, be held accountable.

For that reason, I hope that these class action lawsuits aren’t dismissed. Although we’ve made great strides in addressing gender and racial discrimination in recent years, we still have a long way to go.

Remedying this depends, in part, on holding employers who engage in discrimination accountable. And if the plaintiffs are able to prove that Walmart did, in fact, engage in discrimination, and a court holds the company liable, it will show that even the biggest corporations are not above the law. And given today’s political climate, where people on both the left and the right seem fed up with a lack of accountability, this would be a small but significant step in the right direction, and send a message to workers that at least one branch of government still cares about protecting their rights.

And, if the plaintiffs are unable to prove by a preponderance of the evidence that Walmart engaged in discrimination, the lawsuit will, and should, fail.