New string of Wal-Mart discrimination class action lawsuits likely to fail

by Amy Wolf | Posted on Friday, Dec. 9, 2011 — 10:41 AM

Vanderbilt expert believes the cases don’t satisfy the Supreme Court’s test

Brian Fitzpatrick (Vanderbilt University)

In a second legal step after the U.S. Supreme Court turned down a national class action discrimination lawsuit filed against Wal-Mart on behalf of more than a million female employees, a series of statewide class action lawsuits are being launched. But Vanderbilt Law School professor Brian Fitzpatrick believes these new lawsuits will fail for the same reasons the nationwide suit did.

“The women in each of the new suits do not have anything in common with one another,” said Fitzpatrick. “Because Wal-Mart delegated decision-making to local store managers, the litigation will have to go forward on a store-by-store basis in order to satisfy the Supreme Court’s commonality test.”

So far, women representing current and former female Wal-Mart employees have filed two new smaller lawsuits claiming sex discrimination in pay, one in California and another in Texas. Rather than bringing together all of Wal-Mart’s female employees, the suits bring together all of Wal-Mart’s female employees in a particular region.

What went wrong in the national suit

This past June, the Supreme Court held that the lawsuit could not be maintained as a class action. The Court said the claims by the 1.5 million women did not have anything in common since Wal-Mart delegated discretion hiring and promotion decision-making to local store managers, thus, the Court held, there was nothing binding all of the women’s claims together.

“In these cases, the employment decisions were made in the discretion of thousands of local store managers. Normally, that sort of individualization defeats commonality, but, the plaintiffs allege that not having a centralized employment practice was a company policy common to all the women’s cases–that is, that Wal-Mart essentially had a policy not to have a policy,” said Fitzpatrick.

These cases involve what may be the largest employment discrimination case in American history, where hundreds of thousands–if not millions–of women have sued Wal-Mart for gender discrimination.

“If the Court ruled on the side of the plaintiffs, the potential damages in the case may be in the billions of dollars, which places the case in rarefied company,” said Fitzpatrick. “In my empirical study of all class action settlements in federal court from 2006-2007, there were only eight settlements for a billion dollars or more.”

Contact:
Amy Wolf, (615) 322-NEWS
amy.wolf@vanderbilt.edu