Lexology.com
Edwards Angell Palmer & Dodge
Windy Rosebush Catino and Barbara A. Lee
USA
March 30 2011
Wal-Mart, the largest retailer in the world (with 3,400 stores globally), has been accused of sex discrimination in its promotion and compensation policies by a group of female employees. The case, Dukes v. Wal-Mart Stores, was filed in 2001, and no ruling on the merits of the case have yet occurred. The litigation so far has centered on whether the courts will allow the plaintiffs to pursue the case as a class action. Should the Supreme Court side with the plaintiffs’ class action request, the case will involve between one and 1.5 million plaintiffs, the largest discrimination class action in US history.
Under the Federal Rules of Civil Procedure, plaintiffs who seek class action certification must satisfy four requirements: 1) a sizable number of plaintiffs (not a problem in this case); 2) common questions of law or fact; 3) similar or common claims or defenses by the class representatives; and 4) a representative plaintiff who will adequately protect the interests of all members of the class. The primary issue before the Court is the second prong of the test: whether Wal-Mart’s promotion and compensation policies are sufficiently similar or common across the company to meet the test of “commonality” under the Federal Rule. In order to satisfy this portion of the test, the plaintiffs must identify one or more corporate policies that result in pay and promotion decisions that, in this case, are less favorable to women than to men.
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