SAN FRANCISCO (PAI) – The 1.2 million present and former female Wal-Mart workers who are victims of the monster retailer’s past and continuing sexual discrimination in pay and promotions urged the U.S. Supreme Court to let their massive class action suit against Wal-Mart proceed to trial in lower courts.

In a brief filed Oct. 21, attorneys for the women said the justices should let the federal court in San Francisco hear the case, rather than approve Wal-Mart’s demand that the high court decide whether a class action suit is merited at all.

Wal-Mart wants to force the women to sue it one by one for discrimination in pay and promotions since the day after Christmas in 1999. The case has been kicking around lower federal courts since 2001, mostly delayed by Wal-Mart’s attempts to stall it or break it up.

“This latest appeal is just another attempt to delay the case,” said Betty Dukes of Pittsburg, Calif., the lead plaintiff against Wal-Mart. Dukes had been a greeter and the case carries her name. “After nearly 10 years, the women of Wal-Mart deserve our day in court,” she said.

“Premature review risks wasting the [Supreme] Court’s resources because legal issues may change or be mooted by the time of any final judgment. Class certification orders, which may be altered or amended before final judgment, are especially fluid,” the women’s lawyers said. “This case is particularly ill-suited for review because even the scope of the class certification remains unsettled.”

Then, to get their point across, the women cited the intellectual leader of the High Court’s conservative bloc, Justice Antonin Scalia, as opposing premature review of lower courts’ orders. “We generally await final judgment in the lower courts before exercising our jurisdiction,” they quoted Scalia as saying.

Venal, vicious Wal-Mart, the world’s largest private retailer, is known for its always-low pay, always-bad benefits and its rampant labor law-breaking against the United Food and Commercial Workers’ attempts to unionize its workers.

The wide range of the discrimination was, again, revealed in details in the women’s brief to the justices. A footnote said the average full-time Wal-Mart worker in 2001, when the case started, earned $18,000 yearly.

But the expert analysts the women’s lawyers hired determined that female Wal-Mart workers – the overwhelming majority of the firm’s non-supervisors – earned 5 percent to 15 percent less than their identically qualified male counterparts.

“Wal-Mart’s system fosters gender stereotyping, and scores of class members gave powerful examples of it,” the women and their lawyers argued in their brief.

Documents, computer records and testimony also revealed chain-wide discrimination in promotions, the women’s lawyers told the justices in arguing the class-action case should go ahead. They said Wal-Mart imposed a culture of uniformity on its stores and did not post open management positions, thus barring many women who wanted promotions from even knowing about spots.

“The district court found that roughly 65 percent of hourly employees are women, while roughly 33 percent of management employees are women. When Wal-Mart’s representation of women in management was compared to that of its 20 largest competitors, there was a statistically significant shortfall at nearly 80 percent of the stores,” their brief added.

“Women also took longer than men to enter management positions. These ob-served differences existed even though female employees at Wal-Mart generally have more seniority and better performance ratings than do male employees,” they said.

Since all that evidence – and more – has already been uncovered and shown to be company-wide, the case should proceed as a class-action suit, no matter how many millions of dollars Wal-Mart claims a “guilty” judgment would cost, the lawyers said.

The lower courts ruled the case could go forward, with the women suing for back pay and punitive damages, but not compensatory damages. Wal-Mart didn’t even want that. The women and their lawyers accepted that condition.

Wal-Mart argues that condition “should be ignored where the amount of back pay for the class, collectively, could be a very large sum, although for the individual class member the average potential recovery would be a few thousand dollars a year. But Title VII” of the Civil Rights Act “places no cap on the equitable powers of the court to award back pay,” the women’s lawyers said.

“Where the class is large, the back pay total may also be large. But the aggregation of back pay resulting from class treatment does not alter the applicable legal principles,” they declared.

The justices are expected to decide whether to take the Wal-Mart case against class action, or send the whole thing back down to the lower courts for trial, by the end of this year. If they take it, the Supreme Court would hear arguments after January.

Image: Jackie Vance-Kuss // CC BY-NC 2.0