9th Circuit Again Approves Wal-Mart Gender Discrim Class Action

The 9 ^th U.S. Circuit Court of Appeals’ latest ruling marks the second time this year it affirmed the designation of a class originally projected to include 1.5 million women who work or previously worked in one or more of Wal-Mart’s 3,400 stores in 41 regions at any time since 1998.

The 9 ^th Circuit issued the first version of its order upholding the class designation in February (See 9th Circuit Clears Road for Wal-Mart Gender Discrimination Class Action ). In both cases, the appellate panel split 2-to-1, with Circuit Judge Andrew Kleinfeld dissenting.

The biggest difference between the new version and the old version of the ruling was a direction to U.S. District Judge Martin J. Jenkins of the U.S. District Court for the Northern District of California to reconsider his decision on the makeup of the plaintiff class – specifically concentrating the current versus former employee issue. Circuit Judge Harry Pregerson, writing for the court, said the panel had turned aside Wal-Mart’s contention that the current versus former employee issue should invalidate the entire class designation.

“We agree with Wal-Mart to this extent: those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed do not have standing to pursue injunctive or declaratory relief,” Pregerson wrote. “This does not mean that the entire class must fall. Those putative class members who were still Wal-Mart employees as of June 8, 2001 (when plaintiffs’ complaint was filed) do have standing to seek the injunctive and declaratory relief requested in the complaint and we are satisfied that these putative class members would reasonably bring this suit to put an end to the practices they complain of.”

The suit alleged that women at Wal-Mart:

• are paid less than men in comparable positions, despite having higher performance ratings and greater seniority, and
• receive fewer — and wait longer for — promotions to in-store management positions than men.

The plaintiffs argued that Wal-Mart’s strong, centralized structure facilitates gender stereotyping and discrimination, that the policies and practices underlying this discrimination are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.

Plaintiffs lawyer Brad Seligman of Berkeley, California’s The Impact Fund told Law.com that the revised panel ruling should weaken any application for the 9 ^th Circuit judges to rehear the issue together and, in any case, make that process go faster.

The latest 9th Circuit ruling is here .