Lawyers for Wal-Mart Stores Inc. urged a federal appeals court on Monday to block a sex-discrimination lawsuit against it that could cost the retailer an estimated billions of dollars.
The retailer is seeking to overturn a June 2004 U.S. District Court decision certifying as class-action a lawsuit that now covers more than 1.6 million women and charges Wal-Mart with discriminating against female workers in pay, promotions and training.
Attorneys for the six lead plaintiffs say the case is the largest civil-rights class-action in U.S. history ever certified and could cost Wal-Mart billions of dollars in economic losses.
But during a hearing in San Francisco, Wal-Mart attorney Ted Boutrous said the appellate judges should overturn the lower court's decision because the charges of the six lead plaintiffs were not typical or common of the entire class.
He also argued that the lower court's decision stripped Wal-Mart of its right to defend itself by ruling that the retailer could not call individual store managers to the stand to testify, for example, that there was no bias against women.
"Simply put, the named plaintiffs' experiences are not common or typical," Boutrous said. "Wal-Mart wouldn't be able to put on the testimony of a manager to say 'I didn't discriminate."'
The three-judge panel, whose decision will likely not come for months, grilled both sides during the less than one hour hearing and gave little indication on how they might rule.
In one round of questioning, Judge Andrew Kleinfeld asked plaintiff attorney Brad Seligman whether Wal-Mart's decision to leave its hiring up to local managers amounted to a systematic policy of discrimination.
"I have trouble getting from there to sex discrimination without statistics," the judge said.
Seligman, however, told the judges they should let the case proceed as class-action to prevent Wal-Mart from challenging each individual class member on an individual basis.
He argued this would make it more difficult to engender change and said Wal-Mart would not alter its policies until the company lost a nationwide case.
"What Wal-Mart is saying would lead to a more unjust result," Seligman said.
The lawsuit, filed in 2001 in U.S. District Court in San Francisco, charges Wal-Mart with discriminating against female employees in pay, promotion and training, and with retaliating against women employees who complain about the alleged abuse.
The suit demands a court order directing Wal-Mart to stop its allegedly discriminatory practices as well as compensation for lost wages.
The plaintiffs say that women only hold about one-third of the company's salaried managerial positions even though females make up about 65 percent of the U.S. Wal-Mart work force of nearly one million.
Wal-Mart has repeatedly denied there is a pattern of discrimination, and argues the number of men in management positions reflects the higher number of applications it receives from men - a defense that has been successfully used in other discrimination cases.
The lawsuit comes as Wal-Mart has faced a barrage of criticism for its employment practices. Earlier this year, it agreed to pay a record $11 million to settle a civil probe by U.S. authorities into charges it knowingly hired floor-cleaning contractors who employed illegal aliens.
Critics also charge that the Bentonville, Arkansas-company mistreats its workers and that the retailer's low wages force employees to seek government aid for health care, food and housing.