Part of the charm and appeal of Walmart is the seeming ability of shoppers to find anything they could possibly need inside one of its 4,300 stores across the country. What you can also find in each of those stores is an employee who's part of a massive class action lawsuit claiming the retail giant discriminates against women by withholding promotions and pay raises.
On Tuesday, the Supreme Court met in its closed-door conference to discuss whether to take Walmart's appeal in a multi-billion dollar case that could have a significant impact on the world's largest private employer.
"I could see the men going forth and the women in the store stayed in the basic positions they were always in," Betty Dukes told an interviewer about what was happening to her at a Walmart in Pittsburg, California.
To her surprise, Dukes wasn't the only female who felt like she was passed over by the company. Soon after contacting a lawyer, Dukes, an ordained Baptist minister, joined five others as lead plaintiffs in a nationwide class action lawsuit involving current and former employees that's now the largest employment class action case in history, covering more than 1.5 million women and potentially leading to billions of dollars in damages.
Walmart denies any wrongdoing.
"We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates," Jeff Gearhart, Executive Vice President and General Counsel for Walmart said in a statement earlier this year. "Walmart is an excellent place for women to work and fosters female leadership among our associates and in the larger business world."
One of the lawyers representing the women tells Fox News that the evidence doesn't support Walmart's claims. Joseph Sellers points to years of anecdotal reports of women who were denied raises and promotions. He also points to Walmart's employment data showing disparate treatment of women. "That kind of evidence belies any claim by Walmart that it's a great place to employ women," Sellers said.
But the current case before the Supreme Court has little to do with the women's discrimination claims under the 1964 Civil Rights Act, rather it challenges their standing to form a class and sue. So far, Walmart has been unsuccessful in its attempts to convince lower courts that a class action suit of this size is impermissible. The store is now asking the high court to hear the case and ultimately stop a trial from ever starting.
The company's legal team argues that further review by the justices is necessary and claims that an adverse ruling from the Ninth Circuit U.S. Court of Appeals is not only incorrect but also adds to longstanding uncertainty over the rules governing the certification of class action suits.
Furthermore, Walmart's lawyers contend the Ninth Circuit's 6 to 5 ruling to permit a large group suit prevents the company from challenging the claims made against it. "An employer has a statutory, as well as a constitutional, right to an individualized defense," company lawyer Ted Boutrous wrote to the Supreme Court.
Walmart's brief quotes extensively from the five dissenters in the Ninth Circuit's decision including Judge Sandra Ikuta, who concluded that "any reasonable scrutiny of the evidence in this case compels the conclusion that although the six plaintiffs here may have individualized claims of discrimination, they cannot represent a class of 1.5 million past and present employees."
The U.S. Chamber of Commerce and the Retail Litigation Center each submitted briefs supporting Walmart's position, expressing concern that a ruling for the plaintiffs will open member businesses to more costly and unfounded lawsuits.
In its reply brief to the high court, lawyers for the female plaintiffs dispute Walmart's claim that the size of the certified class is too large. It is, they write, "a fact that is indisputably true but legally irrelevant." Sellers says Walmart's claim that the class action prevents the company from defending itself from specific individual claims flies in the face of longstanding precedents.
The plaintiffs' lawyers argue that the Ninth Circuit's ruling left key issues unresolved, making high court review at this point premature. In particular, they contend the lower court's ruling leaves open the question of whether the class can seek punitive damages and if former workers who left the company before the lawsuit was filed can participate. Until that matter is resolved, they argue, the Supreme Court should deny review.
A decision on whether the justices will take the case could come at any time but is not likely to happen before they return to the bench on November 29.