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Smaller sex discrimination class action refiled against Wal-Mart

After the U.S. Supreme Court turned away a class action involving 1.5 million nationwide Wal-Mart workers in 2011, many people may have assumed that was the end of the story. The high court’s ruling in Dukes v. Wal-Mart held that the size of the proposed class was too large, that the situations of the women involved were too different, and that the claims lacked enough specificity to justify the certification of the case as a class action.

The lawsuit, which alleged that Wal-Mart engaged in a systemic practice of sex discrimination in pay and promotions, has just been refiled. This time, however, plaintiffs in several areas have filed their class actions on a regional basis.

Moreover, seeking to achieve class certification in light of the previous Supreme Court case, they have limited the proposed classes to more similarly-situated plaintiffs and provided new statistical evidence purporting to show that women at Wal-Mart are paid less and promoted less often than they would be in a non-discriminatory system.

Wal-Mart’s attorney responded to the new filings in part by insisting that each of the plaintiffs should be required to file her claim individually “because each plaintiff is so different.”

However, it’s fair to say that presenting each claim separately might not present a full, fair picture of the alleged discrimination. A claim that a supervisor personally discriminated against a particular woman is one thing. A claim that a company demonstrably engages in systemic sex discrimination, on the other hand, could be viewed quite differently by a judge or jury.

The most procedurally advanced of the new class actions was filed in Northern California and includes the same named plaintiff as the previous case. Therefore, it will also be called Dukes v. Wal-Mart. Other groups are seeking class-action status in Wisconsin, Florida, Texas and Tennessee.

Source: Thomson Reuters News & Insight, “Wal-Mart plaintiffs, in second try, hope to distinguish case,” Carlyn Kolker, April 17, 2013

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