The federal government got off the sidelines Thursday to throw a few blocks for plaintiffs in a huge gender class action against Wal-Mart.
The move is a reversal by the U.S. Equal Employment and Opportunity Commission, which had previously decided to sit the case out. Instead, the EEOC now opposes Wal-Mart's bid to try punitive damages on a case-by-case basis, according to an amicus curiae brief the commission filed with the 9th U.S. Circuit Court of Appeals.
Plaintiffs lawyers first sought the government's intervention in 2006 when the case was before a three-judge panel of the 9th Circuit. But the EEOC declined without stating a reason, said Brad Seligman of the Impact Fund in Berkeley.
The panel upheld class certification for 2 million potential plaintiffs. But the Ninth Circuit decided to take the case en banc. With next week's oral arguments fast approaching, Thursday was the deadline for amici filings.
At the EEOC, the staff makes a recommendation to the full commission, which ultimately signs off on litigation decisions. When it previously declined the case, three Republicans and two Democrats were in charge.
Now, with one vacancy, the commission is evenly split. Its top staffer, a President Bush appointee, returned to Steptoe & Johnson shortly after the new administration took over.
EEOC attorney Barbara Sloan wouldn't talk about internal deliberations, saying only that the commission intervenes when it deems an issue important enough to its functions.
Seligman applauded the government. "This is not a radical new EEOC making this decision," he said.
Business interests, meanwhile, were not so celebratory.
"I think this filing reveals a disturbing view of positions the EEOC may take in future cases," said Robin Conrad, executive vice president of the U.S. Chamber of Commerce's litigation arm, a Wal-Mart amicus. "It's very troubling that the Obama administration thinks it might be appropriate to impose massive punitive damages on companies without ever giving them their day in court."
The lawsuit against Wal-Mart represents years of toil for federal judges. The plaintiffs say Wal-Mart uniformly paid women less than men across the country. Then-Northern District Judge Martin Jenkins signed off on the class certification in 2004.
The company echoes the arguments put forward in a dissent to the panel opinion.
"This class poses a considerable risk of enriching undeserving class members and counsel, but depriving thousands of women actually injured by sex discrimination of their just due," 9th Circuit Judge Andrew Kleinfeld wrote.
The EEOC tackled the question of punitives.
"If Wal-Mart's arguments were accepted, it could effectively preclude a claim for punitive damages in most if not all Title VII pattern-or-practice cases including those brought by the Commission," the EEOC wrote.
But Wal-Mart's lawyer, Theodore Boutrous Jr. at Gibson, Dunn & Crutcher, called the EEOC's position "fundamentally incorrect." In addition, Conrad said it "squarely conflicts with numerous Supreme Court punitive damages decisions."
The court will hear en banc arguments Tuesday at 2 p.m. in San Francisco.
