Cynthia Foster writes for The Recorder, an American Lawyer affiliate.
A year after the U.S. Supreme Court found that a nationwide class of female Wal-Mart employees was too big to pursue gender discrimination claims against the discount retail giant in Wal-mart v. Dukes, a federal judge ruled Friday that he’s not ready to squelch the retooled claims of a smaller group of employees.
The new proposed class of 45,000 workers, mostly from California and still including named plaintiff Betty Dukes, claims that Wal-Mart’s executive management discriminated against women by failing to offer them opportunities because of their gender. In its motion to dismiss the case before U.S. District Judge Charles Breyer in San Francisco, Wal-Mart argued that the smaller class, like the national class, lacks the evidence needed to prove an overall policy of discrimination existed.
But Breyer ruled that Wal-Mart’s objections to the suit would more properly be argued later.
“With rare exceptions, the appropriate vehicle for testing the sufficiency of class allegations is a motion for class certification,” Breyer wrote. “This case is not one of the exceptions.” He went on to write that the proposed class could be certified if the the plaintiffs can make an evidentiary showing consistent with the Supreme Court ruling.
The plaintiffs “must still prove that every decision maker” at the Wal-Mart stores they worked at “operated under a common policy or mode of decision making,” Breyer wrote. He pointed to several instances in which the Supreme Court found the evidence to be insufficient to support a national class, but noted that the smaller class had already shown “specific examples” of discrimination.
“This court is not prepared to deny them an opportunity to marshal and present evidence in support of their class allegations,” Breyer wrote.
Reached Friday, co-lead counsel for the plaintiffs, Brad Seligman of Berkeley’s Impact Fund, said he was “delighted” by the judge’s ruling.
“To quote Mark Twain, reports of our death have been vastly exaggerated,” he said. “Wal-Mart had hoped to put a final nail in the coffin,” he said, but “we live on.”
The plaintiffs, who are also represented by Joseph Sellers of Cohen Milstein Sellers & Toll, are set to their motion for class certification in the beginning of 2013. Seligman said his team hasn’t done any discovery in this case since 2003 so more will need to be done.
“We’ve got a lot of work ahead of us,” he said.
In an emailed statement, Theodore Boutrous Jr., the Gibson, Dunn & Crutcher partner who argued successfully for Wal-Mart at the high court, said Breyer’s ruling “does not address whether the claims meet the class certification standards.” And he said the women’s claims are “too individual” to survive that next procedural hurdle.
