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New Walmart Sex Discrimination Class Action Can Go Forward

By Casey C. Sullivan, Esq. on July 09, 2015 | Last updated on March 21, 2019

It was the largest civil class action lawsuit ever, until the Supreme Court cut it down. Now, the gender bias suit against Walmart has returned, short a million and a half class members or so.

The Sixth Circuit revived a gender bias class action against the world's largest private employer. The class action was filed on behalf of all female employees in Walmart's Region 43, centered in Tennessee but reaching to Alabama, Arkansas, Georgia, and Mississippi. It alleges systematic gender discrimination in pay and promotions.

Relitigating Duke, With Far Fewer Class Members

The class representatives had all been unnamed members of the previous Walmart class action -- the nationwide class action that failed. In that first suit, Wal-Mart Stores v. Dukes, the Supreme Court ruled that female employees couldn't show "commonality" among their class, as the biases alleged were too varied and disparate to be alleged in a single action.

Some took that decision to be an indication that megacorps could end up "too big to sue." SCOTUSblog's Lyle Denniston, for example, wrote the take-away from Duke was that each of the aggrieved women "will have to complain on her own to federal officials, or file her own lawsuit." The Sixth Circuit's recent decision may contradict that message, however.

Like the case before it, the class action here alleges that Walmart engaged in a pattern or practice of gender discrimination. More specifically, it's alleged that decisions on pay and promotions consistently disfavor women and that Walmart knew of this and refused to take corrective measures. The district court initially dismissed their suit, finding that their claims were barred by the statute of limitations.

Suit May Proceed, but Class Certification Is Unsure

The class's claims could be tolled from the initial filing in Dukes, the Sixth ruled. Under American Pipe, the statute of limitations is tolled on a class action from the point of filing until the class is rejected, at which point putative class members may protect their rights by filing their own suit. That's exactly what happened here, the Sixth said.

The court rejected Walmart's argument that allowing the class action to proceed would lead to "serial class action litigation." Legitimate suits should not be barred by such a fear, the Sixth ruled, since courts can handle such problems through their existing procedures.

The class will still need to be certified in order to advance. A 2011 class action in California, encompassing 150,000 employees, was rejected for similar reasons as Duke: failure to show commonality. Perhaps this new class attempt will be small enough to finally do so.

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