SAN FRANCISCO (CN) - Wal-Mart did not waive confidentiality over a legal memo that describes stark gender disparities in pay and promotion at the company, a federal judge ruled.
The attempt to remove attorney-client privilege from the memo is the most recent turn in the Betty Dukes-led 2001 federal class action that claims Wal-Mart paid women less and offered them fewer promotions than it offered men in comparable positions.
After the U.S. Supreme Court famously disbanded a massive class of such workers in 2011, the Northern District of California is currently weighing a bid to certify a more narrow class.
This group wants to open, read and use information from a package that they received, containing a 1995 memorandum created by Wal-Mart's outside counsel Akin Gump Strauss Haller & Feld at the direction of Wal-Mart's in-house counsel.
The New York Times reported that the memo was allegedly made available to it "by someone not involved in the lawsuit who said that Wal-Mart had not done enough to address the issues it raised."
Though The New York Times did not publish the memo, it reported several findings on June 3 and 4, 2010, including that "women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women." The memo also said men were more likely to be promoted to management positions at Wal-Mart, and that male department managers earned 5.8 percent more per hour than women in the same position earned, the Times reported.
Because Wal-Mart "would find it difficult to fashion a persuasive explanation for disproportionate employment patterns," the article quotes an estimate from the memo that says Wal-Mart's potential legal exposure in a gender discrimination class action was "$185 million to $740 million for 1993 alone."
The memo also indicated that overall disparities in job assignments were "statistically significant and sufficient to warrant a finding of discrimination unless the company can demonstrate at trial that the statistical disparities are caused by legitimate, nondiscriminatory practices," according to the Times.
When the newspaper contacted Wal-Mart for comment, spokesman David Tobar said the memo was "confidential and privileged," "stale," and "deeply flawed." Pointing out that the memo was 15 years old, he claimed that it bore "no relevance to our strong employment practices and diversity programs." He also criticized Akin Gump's methodology, saying the law firm "deliberately mimicked the type of statistical analysis done by plaintiffs' lawyers in class-action [sic] cases," and that the law firm still did not find significant disparities in the hourly wages of men and women.
Wal-Mart claimed that it told managers to promote more women and minorities, tied bonuses to achieving diversity goals, and said it "received repeated recognition or its performance on diversity in recent years from groups representing women and minorities."
Plaintiff counsel Joseph Sellers said he found the memo on his desk eight months later. It came in envelope addressed to him with no return address. The cover page purportedly bears Akin Gump's letterhead; it is addressed to multiple people at Wal-Mart; and it is marked "Privileged and Confidential/ Attorney Client Privilege." Sellers allegedly did not read any more of the document, opting to give it to his firm's human resources director who locked it in her office, where it remains. Akin Gump notified Wal-Mart two days later that it had the document and that it was locked away.