By Andy Volin
After the Supreme Court rejected a nation-wide class action in 2011, female workers have sued Wal-Mart in a number of smaller class actions around the country. Wal-Mart has successfully argued that several of these new cases are untimely. In a new decision, a federal court dismissed the regional action filed in Wisconsin not as untimely, but because the allegations were essentially the same allegations that the Supreme Court rejected in 2011 . Ladik v.Wal-Mart Stores, Inc., No. 13-CV-123-bbc (W.D. Wisc. May 24, 2013). Like the nation-wide action, the Wisconsin class action included claims that Wal-Mart: (1) had no formal system for identifying workers for management training; (2) did not publicize openings and disqualified female applicants; (3) permitted excessive subjective decision making for management openings; (4) displayed discriminatory attitudes towards the idea of women in management; and (5) paid women less than men. The Court noted that the regional Wal-Mart policies being attacked were similar to the national policies used in the nation-wide action. The Supreme Court ruled the nation-wide policies could not be the basis for a class action, and the same reasoning applied here. The scale of the problem was smaller, because the mid-western case was only regional rather than national, but the claims based on the regional policies required individualized, rather than common, factual analysis.
Wal-Mart continues to come out ahead on the regional class actions, but the courts encourage the plaintiffs by acknowledging that the old corporate policies seem problematic under Title VII. We might yet see new individual claims against the world’s largest private employer.