December 9, 2010
Wal-Mart Stores is the largest private employer in the United States, with more than a million people on its payroll. It’s no wonder that a class-action lawsuit against the company would be major news when the suit alleges sex discrimination in pay and promotion against hundreds of thousands of female employees and could lead to back pay of billions of dollars.
The Supreme Court has even put the case on its docket, but no court has declared a winner at any level. The California federal trial court overseeing the lawsuit has yet to rule on the merits. Instead, as a judge for the United States Court of Appeals for the Ninth Circuit, in San Francisco, noted in a concurring opinion, the trial court has simply decided to let the group of women proceed against Wal-Mart in a class action.
Wal-Mart contends the group is too big to manage and spans so many types of employees that it doesn’t qualify as a class — and that, even if it did, it cannot get back pay. The Supreme Court agreed to hear the case prematurely. It should be sent back to the trial court so everyone involved can get on with it.
Rule 23 of the Federal Rules of Civil Procedure, defining class actions, sets no limit on size. Its purpose is to make it more efficient to litigate cases involving many people with common claims — specifically challenges of a large group of plaintiffs. If Wal-Mart discriminated against female employees on a scale matching the company’s reach, justice must be expansive enough to give them their due.
Court-watchers would be wise to notice that the justices have again asked for briefs and arguments about a question not raised by either party. That is, whether there are legal grounds for recognizing the plaintiffs as a class and allowing them to pursue justice.
Based on the trial judge’s careful opinion and the appeals court’s equally careful majority opinion, the answer should be yes, resoundingly. Based on liberties the Roberts court has taken when it has reframed other cases, this one bears watching, closely. There is a risk that the court will shift from addressing whether the class is a class to assessing the merits of the plaintiffs’ claims and usurp the role of the trial court.