Walmart Faces Another Sex Bias Class Action

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By Lawrence E. Dubé

Wal-Mart Stores Inc. discriminated against women in pay and promotions and maintains a “corporate culture of discrimination based upon gender stereotypes,” a new class action alleges.

The lawsuit repeats longstanding claims of gender bias against the company, but it attempts to focus the litigation on Walmart operations in one area of the U.S. to show that a class action proceeding is appropriate under Title VII of the 1964 Civil Rights Act and federal court rules.

Walmart spokesman Randy Hargrove, however, told Bloomberg Law Nov. 7 that the sex discrimination allegations are the same claims that have been raised before, presented in a proposed class action that is “no more appropriate” than one the U.S. Supreme Court rejected years earlier.

The case “springs from” that earlier decision in which the Supreme Court rejected a nationwide class action that alleged sex discrimination in Walmart and Sam’s Club stores, Kathleen Forbes and other women say in the lawsuit filed Nov. 6 in the U.S. District Court for the Southern District of Florida ( Forbes v. Wal-Mart Stores, Inc. , S.D. Fla., No. 17-cv-81225, complaint 11/6/17 ).

The Supreme Court found in 2011 that a proposed nationwide class action under Title VII of the Civil Rights Act of 1964 wasn’t viable, but the Forbes plaintiffs say they’ve structured their new lawsuit in a way to pass muster under the high court’s ruling.

Bias Claimed in Southeast Operations

The lawsuit proposes that employees be divided into three classes, including females who have worked since Dec. 26, 1998, in Walmart stores in Florida, Georgia, and South Carolina, and Sam’s Club stores in seven southeastern states. The plaintiffs estimate there are more than 10,000 women in each of the three proposed classes.

The federal court complaint requests that the lawsuit be certified as a class action and that women affected by discriminatory practices be compensated by awards of back pay, front pay, and compensatory and punitive damages.

Earlier this year, a group of women hoping to intervene in a separate case in the same federal court in Florida lost their chance to pursue sexual harassment claims against the retailer after the lead plaintiffs individually settled their claims with Walmart and voluntarily dismissed the case. Forbes and six other plaintiffs included in the new complaint missed a 30-day deadline to appeal the dismissal, and the Eleventh Circuit in August rejected the women’s bid to participate as intervenors in the earlier case.

High Court Precedent Looms Large

In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court reversed class certification of a massive lawsuit alleging pay and promotion discrimination claims against Walmart on behalf of as many as 1.5 million female employees.

The justices ruled unanimously that lower courts improperly certified the case as a class action because the employees’ individual back pay claims were more than “incidental” to their requests for injunctive and declaratory relief. A 5-4 majority also ruled the proposed class couldn’t meet their burden of showing that a “common question of law or fact” affected the entire class.

In the new lawsuit, the plaintiffs said they’re not challenging Walmart practices at a national level, but in three regions. In each region, they allege, Walmart “cultivates” sex bias. The common questions of law and fact include the authority of management teams, the existence of a general policy of discrimination, the adverse impact of the company’s action on female workers, and whether management in each region failed to “prevent, investigate, or properly respond to” evidence of sex discrimination in the workplace, according to the lawsuit.

Hargrove disputed the allegations of discrimination. He said the claims in the lawsuit aren’t accurate, and the women named in the federal court complaint aren’t suitable representatives of Walmart’s workforce, including hundreds of thousands of women who have worked for the company. Walmart has a “long history” of opposing discrimination in the workplace, the spokesman told Bloomberg Law.

The company spokesman also said that the new lawsuit has the same flaw as the Dukes case that was rejected by the Supreme Court—the back pay claims of individuals would predominate in the litigation, making a class action procedure impractical.

Attorneys for the plaintiffs didn’t respond immediately to a request for comment on the lawsuit.

Scott Wagner and Associates P.A. and Cohen Milstein Sellers & Toll PLC filed the complaint.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

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