WASHINGTON — Justices of the U.S. Supreme Court — hearing arguments Tuesday involving the sex-discrimination lawsuit against Wal-Mart Stores  — questioned whether the class-action suit should go forward.
The suit, filed in 2001 on behalf of current and former female workers who currently number almost 3 million, alleges that Wal-Mart systematically paid women less than men and provided fewer opportunities for promotion.
The Supreme Court is expected to issue a decision by summer, according to published reports.
The Associated Press quoted Justice Anthony Kennedy as saying he is unsure "what the unlawful policy is" that Wal-Mart engaged in, and Justice Antonin Scalia said he felt "whipsawed" by the issue, asking, “Which is it? Either individual managers are on their own [in making decisions] or else a strong corporate culture tells them what to do."
However, Justice Ruth Bader Ginsburg, who brought discrimination claims to court when she was a practicing lawyer, said the issue at this point is not to prove whether discrimination existed but simply to show whether there is enough evidence to allow the case to go forward. “We're talking about getting a foot in the door," she said — a standard she said is not hard to meet.
Joseph Sellers, the lawyer for the plaintiffs, said lower courts that ruled in favor of the discrimination lawsuit going forward were persuaded by statistical and other evidence that a strong corporate culture at Wal-Mart stereotyped women as less aggressive than men, which translated into lower pay and fewer promotions. "The decisions are informed by the values the company provides," Sellers explained.
However, Theodore Boutros Jr., an attorney representing Wal-Mart, said, "There is absolutely no way there can be a fair process here," noting that at least 544 women serve as Wal-Mart store managers and subsequently "are alleged to be both discriminators and victims."