By Lucile Malandain
WASHINGTON, March 29, 2011 (AFP) – The Supreme Court began considering Tuesday a bid by Wal-Mart to stop as many as 1.5 million female workers from proceeding with the largest discrimination class-action lawsuit in US history.
If the bid is rejected it would pave the way for claims dating as far back as 1998 that could cost Wal-Mart, the largest private employer in the United States, tens of billions of dollars in back-pay and punitive damages.
Even more significantly, the ruling is expected to set a new precedent for labor discrimination cases, opening the door to a possible flood of class-action suits from women, minority groups and people with disabilities.
The original case was filed a decade ago by six female Wal-Mart workers who claim they systematically received lower pay than their male counterparts and were passed over for promotions.
The often liberal-leaning Ninth Circuit Court in San Francisco agreed by a 2-1 vote in 2007 and again in a narrow 6-5 decision in April of last year to grant the case the class-action status the women are seeking.
At the heart of the matter is whether the nature of the discrimination against the women is uniform enough to be fairly treated in one single case.
Wal-Mart argues that decisions are left to individual managers across its 3,400 stores and that any discrimination was not the result of an over-arching corporate policy.
Legal observers say the Supreme Court is unlikely to rule in favor of the women, noting its tendencies to make pro-business and pro-free market rulings.
During opening oral arguments on Tuesday, several justices expressed skepticism that between 500,000 and 1.5 million women could be lumped together in one case.
“There are some inconsistencies,” said justice Anthony Kennedy, often seen as a crucial swing voter on the court, which is the top judicial body in the United States and the final arbiter on fundamental legal matters.
“Do you think you adequately show that this policy was a fraud, was a central policy?” asked Antonin Scalia, the longest-serving justice, and considered a leading conservative.
Lawyers representing the plaintiffs note that women at Wal-Mart made up about two-thirds of the workers but only a fraction became store managers.
They also point out that in nearly every job category, women earned less than men, even though most had logged more years with the company than their male counterparts.
The women are seeking back-pay and punitive damages, as well as a judgment that would force Wal-Mart to amend its pay practices.
If the court allows the women to sue as one bloc, the case would constitute the largest labor discrimination case in US history, with tens of billions of dollars at stake.
In seeking to block the case, Wal-Mart warned in August last year of the enormity of the class-action, describing it as “larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined.”
If the company loses, it risks having to pay out on claims from all the female workers it has employed since 1998.
Wal-Mart maintains it is impossible to assert a case of discrimination based on company employment figures and says there is no pay difference between men and women at the vast majority of its outlets.
Instances where those differences do exist are made on merit, not because of a discriminatory company-wide policy, Wal-Mart insists.
A final Supreme Court ruling is expected before the end of June.
Created under Article III of the US Constitution, the Supreme Court consists of a chief justice and eight associate justices — all of whom are appointed for life by the president.
Court rulings are approved by a majority and their opinions written up by one of the justices. The other justices can add their own comments or, if they opposed the ruling, write a dissenting opinion.