Justices Take Up Crucial Issue in Wal-Mart Bias Suit

But several justices expressed qualms about how to administer a lawsuit involving as many as 1.5 million women seeking back pay that could amount to billions of dollars.

At issue in Tuesday’s arguments is not whether Wal-Mart, the country’s largest retailer and biggest private employer, discriminated against women who worked there. For now, the question before the justices in the case, Wal-Mart Stores v. Dukes, No. 10-277, is whether hundreds of thousands of female workers have enough in common to join together in a single lawsuit.

The plaintiffs’ theory is that a centralized companywide policy gave local managers too much discretion in pay and promotion decisions, leaving Wal-Mart vulnerable to gender stereotypes. The plaintiffs have presented sworn statements and statistics to support their claim.

Wal-Mart calls that evidence unrepresentative and unreliable. The company says its policies expressly bar discrimination and promote diversity and that the plaintiffs — who worked in 3,400 stores in 170 job classifications — do not have enough in common to warrant class-action treatment.

Justice Anthony M. Kennedy said the theory about how the company discriminated — through a central policy conferring local discretion — was internally inconsistent. “The complaint faces in two directions,” he said.

Theodore J. Boutrous Jr., a lawyer for Wal-Mart, echoed that point. “The common policy is one that affects everyone differently, by definition,” he said.

But Justice Stephen G. Breyer said Wal-Mart could be held accountable if it failed to take action in the face of reports of discrimination from its stores. “Should central management under the law have withdrawn some of the discretion to prevent discrimination?” Justice Breyer asked.

Justice Ruth Bader Ginsburg agreed, saying that companies had a responsibility to make sure that women were treated fairly in local workplaces.

There has been no ruling in any court yet on the plaintiffs’ assertions that they were discriminated against. Several justices wondered just how back pay decisions would be made if the case were allowed to go forward and the plaintiffs prevailed.

A lawyer for the plaintiffs, Joseph M. Sellers, said the trial court could rely on statistics culled from databases, which he said were more reliable than the evidence that might be presented in individualized hearings.

Justice Antonin Scalia had a fundamental objection to the proposed hearings. “We must have a pretty bad judicial system,” he said, if judges must rely on statistics rather than individualized proof. “We should use that at jury trials, too,” he said of statistics, sarcastically.

Chief Justice John G. Roberts Jr. asked about some of the statistics at issue. “Is it true,” he asked Mr. Sellers, “that the Wal-Mart pay disparity across the company is less than in the nation?”

Mr. Sellers said that was not the appropriate comparison. “The comparison that’s relevant,” he said, “is men and women and Wal-Mart.”

Article source: http://feeds.nytimes.com/click.phdo?i=b3e1c469e6f047046ab0ba49b17211c0