In a decision rendered last week, the Ninth Circuit Court of Appeals in California certified the biggest gender discrimination class action in United States history against Wal-Mart, the largest private employer in the United States.  The suit, Dukes v. Wal-Mart, originally filed in 2001, alleges that Wal-Mart systematically discriminated against female employees by paying them less than male employees, failing to promote them at the same rate as male employees, and steering them away from management positions into lower-level jobs, like cashier jobs, without much advancement potential.  Women comprise only 33% of the company’s managers but 65% of hourly employees.  

The Ninth Circuit upheld certification as to all females that have been employed at Wal-Mart stores since 2001.  This potential plaintiff class is estimated at over 1 million individuals.  The Ninth Circuit remanded the case back to the trial court for a decision as to whether female employees who were employed at Wal-Mart prior to the filing of the lawsuit in 2001 should be included in the class or certified as another class and whether class members should be allowed to assert punitive damages against Wal-Mart.  If all current and former workers are included, the case would cover about 2.5 million women and expose Wal-Mart to liability in the billions of dollars.

Wal-Mart has already announced that it will appeal the Ninth Circuit’s decision to the United States Supreme Court, arguing that claims for back pay are “highly individualized questions” that should not be handled on a class-wide basis.  In 2008, Wal-Mart agreed to pay as much as $640 million to settle 63 federal and state class actions that claimed the company cheated hourly workers and forced them to work through breaks.

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