Walmart Sex Discrimination Case Takes Detour to Supreme Court On Monday, the Supreme Court agreed to decide whether all the women who claim that Walmart (WMT) discriminated against them in employment can sue the company as one giant class or not. And if they can, the court will decide whether they can sue for back pay under the class their lawyers have chosen, or only for judicial orders to force the world's largest retailer to change its behavior.

The issues are a little tricky, because various types of classes can be certified in a class action, and the justices will be ruling only on the class type that the plaintiffs are currently seeking. Thus, even if the women lose, they could in theory start over, seeking to sue as a different kind of class. Or, each employee could sue individually. However, given that nine years and many millions of dollars have been spent bringing the case this far, it's hard to see the plaintiffs starting from scratch.

Because the issues are how an appropriate class is defined and what it can sue for, the court's ultimate ruling should have an immediate impact on pending cases and shape future ones. Several large employers, among them Intel (INTC) and a group headed by Altria (MO), filed amicus briefs on Walmart's side, urging the court to hear the case.

Up until now, the women have been winning on the issue -- at trial, on appeal and on rehearing of that appeal -- so they must be frustrated that the justices agreed to hear the case, particularly since the Supreme Court rules against the prior winner most of the time. Nonetheless, that doesn't mean the plaintiffs will lose.

Preliminary Issue May Decide the Whole Outcome

If the women win this round in the Supreme Court, Walmart will likely be forced to negotiate a settlement with the largest group of plaintiffs ever, and -- out of appeals -- it will have relatively little bargaining power. Still, Walmart may chose to bet that it can win the actual case at trial in San Francisco District Court. Win or lose, if it fights, Walmart would make the trial long and costly, and appeal any verdict favoring the plaintiffs for as long as possible. That said, one of the main arguments in Intel's amicus brief is that classes like the women in this case have "blackmail" settlement potential.

If Walmart wins this round, however, its leverage would be overwhelming. The women's attorneys have surely sunk many millions into the case on contingency, hoping to recoup their investment with a settlement or a victory. If they're unable to keep class-action status for their clients, recovering that investment -- much less profiting from it -- would be difficult. Similarly, because the case is at such an early stage -- the issue of whether or not Walmart actually discriminated against the women hasn't been addressed yet -- much work would remain before any nonsettlement payday could arrive.

So, the Supreme Court's decision, even though it's on a preliminary issue, will likely drive the outcome for the millions of women who believe Walmart discriminated against them, regardless of how strong their claims are. The court will probably hear arguments in the case this spring.

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this is why women should stay home and cook and do laundry.

December 07 2010 at 3:47 PM Report abuse rate up rate down Reply

first our government tried to take successful Microsoft down...and now they are trying to take successful Walmart down. our government wants everyone to be losers like they are. is this okay with everyone? how do we make them make government smaller, taxes fewer and allow free markets? just wondering????

December 07 2010 at 8:56 AM Report abuse rate up rate down Reply
1 reply to scottee's comment

vote libertarian

December 07 2010 at 3:50 PM Report abuse rate up rate down Reply

I used to work for Walmart, several year's ago. I wasn't treated fair and square, at all. But that is water under the bridge. Something I have just learned to "live with". I still shop at Walmart, but that is all. The lady I was having problems with was in a higher position that I, but that isn't the idea of the whole story. Yes it is, I guess. She told me that I could never be hired as an employee again. Why? I don't know. I married into quite a bit of money and so I told Walmart they could just "kiss off" (to put it nicely).

December 06 2010 at 7:39 PM Report abuse rate up rate down Reply
2 replies to kaybullard's comment

nothing is life is fair...except taxes should be...but that's life!

December 07 2010 at 8:56 AM Report abuse rate up rate down Reply

ooops..that's supposed to be nothing IN life is fair...

December 07 2010 at 8:57 AM Report abuse rate up rate down Reply

This is a tricky one for courts, Walmart is largest employer in country and one of biggest sources of political donations. Can the Country afford to pick on this much power?

December 06 2010 at 3:40 PM Report abuse +1 rate up rate down Reply