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When the Wal-Mart case gets to the stage where the plaintiffs are able to prove their case, and demonstrate discrimination on the basis of pay, then employment history at Wal-Mart, including time on the job, woulld be taken into account. Also, the plaintiffs' expert who testified about the appropriateness of allowing this case to go forward as a class action actually did review the salaries of men and women with the same employment history and found holding these kinds of variables constant that women still were paid less than men.

This raises an important issue that Walmart is appealing.  Each plaintiff is unique.  The lower court decisions effectively eliminated the individualized elements and defenses in a Title VII case.  This may result in some successful plaintiffs receiving less because they get swept into a class, and others getting more than they deserve.

Systemic discrimination is very possible at Wal-Mart according to the plaintiffs' allegations-- for they have identified a nationwide policy that has allowed discrimination to flourish against women in their pay and promotions by individual managers all across the country. The stereotyping of women described by the plaintiffs (e.g.  they don't need to support a family)  which led managers to give women with higher performance evaluations lower pay and fewer promotions has been allowed to be challenged by the Supreme Court in many cases over the years. This case has nothing to do with quotas but simply ending pay discrimination and the discrimination against women in promotions.

Discrimination is not acceptable.  However, this case before the Supreme Court is not about discrimination.  It is about the lower courts disregarding the law by improperly certifying a class -- certifying a class cannot abride, enlarge or modify any substantive right.  The class certification here has denied Walmart the right to assert individualized defenses and put individual plaintiffs to their proof.

It is certainly true that justice delayed can mean justice denied. Wal-Mart, like any defendant, has the legal right to raise many defenses, and it has done so vigorously in this case. The fact that 10 years have now gone by and that the plaintiffs have not even been able to get to the merits of their complaint shows how hard it can be to sue a major corporation with the resources of Wal-Mart. That is a reason why class actions like this one are so important, because they allow women to come together to follow the case through to the end.

Class actions do provide a means of addressing certain kinds of cases.  However, this case is under Title VII and employers are entitled to be able to assert individualized defenses, something this class certification does not permit.  This case is about process at this time, not merits. 

Back pay is a form of monetary damages.  Other damages may be possible like front pay depending on the particular plaintiff's situation.  The issue of damages is important to the class certification issue because it has denied Walmart the right to assert individualized defenses to the Title VII plaintiffs.

There is a big difference between backpay, which has been viewed by courts for decades as part of equitable relief (eliminating the discrimination) and damages, which can include a broad array of injuries that a person can suffer as a result of the discrimination. The plaintiffs in this case are not seeking compensatory damages.

The country is committed to eliminating discrimination on the basis of sex, race and other bases in order to be sure that not only are we as a nation doing what is fair and morally correct, but also that we have the benefit of the talents of all of us.

I agree with my colleague.  Resolving these issues, however, must be done consistently and fairly under our Rules of Procedure.

Numerosity is an element to consider whether or not a class should be certified.  However, the key issue is whether this class certification has modified substantive rights of Walmart.  If it has then the certification was improper as Walmart argues.  The key right Walmart is advocating for is the right to test the individual claims and assert particularized defenses for the individual class members.  The certification has lowered the burden on plaintiffs to show that they were infact actually victims of discrimination.

I believe that this question gets to the heart of the matter. The kind of discrimination alleged in the Wal-Mart case is no different than that dealt with in many other cases over the years-- what is special here is only that Wal-Mart is so big. It would be a travesty to our civil rights protections if the bigger the employer the better its chances of getting a free ride to discriminate .

Only time will tell.  If the court shows fidelity to the Rules Enabling Act then it could be like last week.  It could also be  a tight race.  I don't put much stock in the fact that 3 Justices are women - I think that the rule of law will control, not emotion.

It is difficut to predict what the Supreme Court will decide in any case, but i believe that if the Court follows its precedents the women plaintiffs will prevail.

That is not the issue at this time.  The issue is whether the class was properly certified, not the merits of the individualized claims.

There were about 120 sworn statements in this case by women who worked at Wal-Mart all over the country who described extremely discriminatory attitudes and treatment. It is important that they be allowed to prove the facts in the case, and that
Wal-Mart be held accountable for the full range of discrimation that plaintiffs are able to show.

And also that Walmart be allowed to present its defenses to each claim as Title VII allows/requires.

While employers certainly have a practical as well as moral reason to treat their employees in a non-discriminatory way, so that merit prevails--  it is still essential that the law remain strong and able to be enforced so that employers accross the Board are held accountable, and that their employment practices are fair regardless of their own sense of morality. In what ways and how Wal-Mart has changed its practices would be a part of the case when it reaches the merits.

I agree that this is a merits issue.  However, we aren't there yet.

Sorry, but I don't know the answer to this.

Wal-Mart's own statistic that it only has 14% of store managers that are women can reflect discrimination in its practices regarding promoting from within the ranks of Wal-Mart employees as well as recruiting from outside.

This is exactly the issue that Walmart is raising, and which DRI believes is required by the Rules Enabling Act.

The case presents far more than statistics-- including the specific situations faced by the plaintiffs and others who have already come forward, as well as other experts. Once the case goes to the merits all will be considered, and the strong reason to have a class is so that the full pattern and  context can be shown. Moreover, it is important to know that the statistics come from Wal-Mart's won data, and consider that kinds of variables raised in the question. Out of time-- thanks so much for these great questions, Marcia

I don't believe it was answered. That is the key issue on appeal.

The question was answered by the lower courts of whether there was enough of a common question of discriminationaffecting all of the class members and whether the claims of the named plaintiffs were typical enough of the class members to allow the class to go forward.

The issue is certification.  Did the class certifcation run afoul of the Rules Enabling Act's prohibition on modifying substantive rights of the litigants.  This is the central focus of DRI's Amicus Brief  filed on January 27, 2011.

The question is procedural-- whether the class can be certified, but it will have enormous implication as to whether, especially for large employers, the nation's non-discrimination laws will be enforceable as a practical matter.

The evidence that the plaintiffs have described reflect long-standing stereotypes that women don't need to work as much as men, for example, and the more people are treated as individuals rather than stereotypes the better for them and for the future of our country.

If Wal-Mart is held accountable for the full range of any sex discrimination it practices against pay and promotions then it would make an enormous difference.