biasscale.jpgThe Supreme Court began hearing arguments today in the biggest sexual discrimination lawsuit in U.S. history, and it’s unclear whether working women or Corporate America will prevail.

The case is against the largest private employer in the country Walmart and it involves hundreds of thousands, maybe millions, of female employees, current and former, who may have been discriminated against when it comes to pay and promotions dating back to 1998. At issue, is whether this large group of women be allowed to proceed with a suit en masse.

We may not know the outcome until June. June! The anticipation of the justices’ ruling is killing me, so I asked some legal experts on both sides of the issue, to review arguments today and offer a glimpse of how the high court may be leaning.

Here’s some of the input I’ve gotten so far:

John Mahoney, Head of the Labor & Employment Practice Group at Tully Rinckey PLLC

“Petitioner (Wal-Mart) does not seem to be arguing that class actions are inappropriate in employment discrimination claims, just that the women’s claims are not sufficiently similar to support a pattern & practice in that Wal-Mart’s promotion decisions are decentralized and delegated to each store and its management. At the outset of the argument, the justices pushed Wal-Mart’s lawyer saying that Headquarters indifference to adverse impact of that decentralized promotion practice could serve the purpose of establishing that the company intentionally discriminated against the women.

At the outset of the Respondent (the women’s) argument, the justices seemed interested in Seller’s argument that no formal policy of discrimination was necessary. The Chief Justice seemed interested in how many subjectively discriminatory actions were necessary to conclude hat Wal-Mart had a discriminatory promotion policy generally.

Consequently, it does not seem that the Court is interested in throwing out class actions. Rather whether the facts of this case = a class action. That’s hopefully good news for plaintiffs but not necessarily the plaintiffs in this case.”

Sarah Crawford, Director of Workplace Fairness, National Partnership for Women and Families:

“Justice Ginsburg clarified that Supreme Court precedent has already established that subjective, standardless HR practices can run afoul of anti-discrimination law if they allow discrimination to creep in. She also suggested that it is the employer’s obligation to correct discrimination when it becomes known.

Chief Justice Roberts seemed to acknowledge that multiple complaints of discrimination from different stores can establish a pattern of discrimination.

Justice Scalia seemed to express the view that Wal-Mart did not have a corporate culture of discrimination as evidenced by the fact that it had an “announced” written anti-discrimination policy. Counsel for the Dukes class countered that such an interpretation would give employers license to discriminate with impunity.”

Mark Batten, an employment lawyer and co-head of employment firm Proskauer’s Class/Collective Action Group:

“The Court’s questions suggest that an outright affirmance is unlikely, but it is difficult to assess how broad the Court’s opinion will be. Several justices seemed to be considering the possibility of trimming out the back pay element and allowing the class to stand as a more classic 23(b)(2) class, strictly limited to injunctive and declaratory relief — although that raises a question about conflicts between current and former employees, both of which are in the potential class.

Also, the Court gave almost no attention in argument to the Rule 23(a) issues that occupied much of the briefing, diminishing the hopes of defense counsel that an opinion reversing the Ninth Circuit will offer clarification of class certification standards that would be useful outside of the Title VII context in which this case was brought.

Lots of commentators in the press have described Wal-Mart’s argument as saying the class is “too big to certify.” That’s really not the relevant question at all. It’s not the mere size of the class that is worrying to those of us on the management side; it’s that the plaintiffs hope to lump together in one case a vast array of individual promotion and pay decisions that appear not to have any connection with each other.”

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