On Friday, U.S. District Judge Charles Breyer observed that the gender discrimination lawsuit brought against Wal-Mart can be re-filed only if the plaintiffs succeeded in overcoming the criticisms of the Supreme Court made while dismantling an earlier class-action last year. The judge said he had “difficulty” seeing sufficient evidence to justify a reformulated filing of the case and was “seriously concerned” whether the women trying to move the case forward again had the necessary evidence in their favor.
The plaintiffs in the present case belong to the plaintiffs’ group in an earlier case where Wal-Mart was accused of denying pay raises and promotions to women in a discriminatory manner. The earlier case was denied class-action by the U.S. Supreme Court last year leading to the dismantling of a class of 1.5 million current and former employees.
In October, the plaintiffs regrouped to file a new lawsuit in San Francisco confining their allegations to California. Brad Seligman, the attorney for the women told the court that the plaintiffs had unearthed sufficient new facts including specific comments made by managers in Wal-Mart. “This is direct evidence of discrimination,” he said.
The reformulated lawsuit addresses the problem by creating narrowly tailored classes and would be including about 45000 women employees of Wal-Mart in California.
Theodore Boutrous, the attorney for Wal-Mart said that the plaintiffs were harping on the same tune, and he said, “These are the exact arguments the plaintiff has been making for 11 years.”
Does that take away their merit?
The case in U.S. District Court, Northern District of California is Betty Dukes, Patricia Surgeson, Edith Arana, Deborah Gunter and Christine Kwapnoski, on behalf of themselves and all others similarly situated v. Wal-Mart Stores Inc, 01-2252.
Last year, the case had fallen through when the Supreme Court refused to grant national class certification to the plaintiffs. However, the decision was that of a 5-4 divided court, which is a pretty narrow margin.
But more than questions of law, it was the law of procedure that led to the demise of the earlier action as the court unanimously held that the lawyers of the plaintiffs had sued improperly under a part of class-action rules that were not for considering monetary claims.
In the earlier rejection of the case of the plaintiffs, the court did not decide the question of fact about whether Wal-Mart had discriminated against its female employees or not.