Wal-Mart Gender Bias Case Revived on Appeal

     (CN) – Plaintiffs who saw their class disbanded after accusing Wal-Mart of discriminating against female employees can press their case because the retailer has known of the allegations for years, the Sixth Circuit ruled.
     In 2011, the Supreme Court disbanded the class in Dukes v. Wal-Mart, a decade-old case claiming women working for Wal-Mart are paid less and receive fewer promotions than men in comparable positions.
     Wal-Mart argued that the class of 1.5 million women was too big, and employees should have to file individual lawsuits, and the high court agreed.
     “Respondents filed some 120 affidavits reporting experiences of discrimination – about 1 for every 12,500 class members – relating to only some 235 out of Wal-Mart’s 3,400 stores,” Justice Anton Scalia said, writing the majority’s opinion.
     “Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ which is what respondents must show to certify a companywide class,” Scalia said.
     After the Supreme Court’s decision, Cheryl Phipps, Bobbi Miller, and Shawn Gibbons, unnamed class members in Dukes, filed suit in the Nashville, Tenn. Federal Court bringing the same claims.
     The Sixth Circuit revived this offshoot of Dukes on Tuesday, finding that the putative class claims are not barred by the statute of limitations.
     “Wal-Mart has been on notice of the claims brought against it and the generic identities of the plaintiffs who would potentially participate in any judgment since the nationwide class action complaint was filed in Dukes in 2001,” U.S. Circuit Judge Jane Stranch said, writing for the three-judge panel.
     Therefore, tolling the statute of limitations does not prejudice Wal-Mart, as it will not be subjected to any unfair surprise, the court said.
     Wal-Mart argued that permitting plaintiffs’ suit to continue will allow serial class action litigation, and create immense pressure for corporate defendants to “buy peace” and settle.
     “But that apprehension need not bar legitimate class action lawsuits or distort the purposes of American Pipe tolling. Instead, we follow the Supreme Court’s lead and trust that existing principles in our legal system, such as stare decisis and comity among courts, are suited to and capable of addressing these concerns,” Stranch said.
     The court expressly made no decision as to whether the class is distinct enough to survive a class certification challenge.

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