Wal-Mart Stores tells judge sexual bias lawsuit should be dismantled

Michael Liedtke

Thursday, Sept. 25, 2003 | 9:30 a.m.

SAN FRANCISCO -- Wal-Mart Stores Inc. on Wednesday argued that a sexual discrimination lawsuit seeking to represent 1.6 million current and former women workers should be dismantled into separate class actions against each of its 3,473 stores across the country.

Lawyers for the retailing giant pressed that idea during a daylong court hearing on whether a sexual discrimination complaint brought by six women working in Wal-Mart's California stores should be broadened to cover virtually all of the company's female employees dating back to 1998.

The suit alleges Wal-Mart has set up a system that frequently pays its female workers less than their male counterparts for comparable jobs and bypasses women for key promotions.

Bentonville, Ark.-based Wal-Mart contends the suit ignores the thousands of women who earn more than their male counterparts. The retailer also says the lawsuit's allegations are flawed because they don't consider the factors that cause one job to pay more than another.

For instance, some jobs require a gun license to sell firearms carried in some Wal-Mart stores while others pay a premium for workers skilled in handling live crickets sold for fishing, Wal-Mart lawyer Paul Grossman said.

In arguing against the broadening of the suit, Wal-Mart says that its 3,473 stores, including Sam's Club warehouse outlets, operate with so much autonomy that they are like independent businesses with different management styles that affect the way women are paid and promoted.

Pursuing the allegations as a single class action "is absolutely unmanageable on a nationwide basis," Grossman said. "It would require a mind-boggling number of individual determinations."

Grossman said it makes more sense to file class actions on a store-by-store basis and "they will either be settled or litigated."

If Wal-Mart faces a single class-action spanning the entire country, the company will seek testimony from 4,000 store managers, resulting in a trial that would last 13 years, said Nancy Abell, another company attorney.

Wal-Mart's theories were ridiculed by Brad Seligman, a lawyer seeking the right to pursue a single class action. If certified, would become the largest civil rights case in U.S. history.

"Wal-Mart stores are virtually identical in structure and job duties," Seligman said. "There is a high emphasis on a common culture, which is the glue that holds the company together."

Seligman estimated a trial on a single class action would last nine to 10 weeks.

U.S. District Judge Martin Jenkins didn't issue a decision Wednesday after listening to more than seven hours of often obtuse arguments in a packed San Francisco courtroom. He didn't provide a timetable for making his decision.

The attendance and length of the hearing reflected the high stakes in a case that already produced 1.25 million pages of evidence and 200 sworn depositions since the lawsuit was filed in June 2001.

The decision on whether the case merits class action status is a pivotal one. If the suit becomes a national class action, it would give lawyers for the women tremendous leverage against Wal-Mart as they pursue punitive damages, as well as back pay.

Without the muscle provided by a class action, Seligman said, Wal-Mart's women workers who believe they have been discriminated against probably won't be able to find attorneys to pursue a case against the nation's largest company.

Betty Dukes, one of the women spearheading the suit, said she was paid just $8.44 per hour during her first nine years working at a variety of positions in Wal-Mart's Pittsburg, Calif., store. Meanwhile, several men holding similar jobs but less seniority earned $9 per hour, Dukes said.