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Walmart discrimination suit raises concerns with justices

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    D.J. Campbell, left, and others participated in a rally yesterday outside the Supreme Court in Washington, D.C., to support a class-action lawsuit against Walmart. The suit claims the retailer favors men over women in pay and promotions.

WASHINGTON » The Supreme Court appears ready to block a massive sex discrimination lawsuit against Walmart on behalf of up to 1.6 million women, and that could make it harder for other workers nationwide to bring class-action claims against large employers.

The 10-year-old lawsuit, argued in lively exchanges at the court yesterday, claims that Wal-Mart Stores Inc., the world’s largest employer, favors men over women in pay and promotions. Billions of dollars are at stake if it is allowed to go forward.

The case also could affect the future of other class-action lawsuits that pool modest individual claims into a single action that creates the potential for a large judgment and increases the pressure on businesses to settle.

In yesterday’s arguments, several justices suggested they were troubled by the case and lower-court decisions against Ben­ton­ville, Ark.-based Walmart. Estimates of how many women could be included in the lawsuit run from 500,000 to 1.6 million.

Justice Anthony Kennedy, often a key vote on the high court, said the women’s argument points in apparently conflicting directions.

“You said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on,” Kennedy said to Joseph Sellers, the women’s lawyer. “Then in the next breath you say, well, now these supervisors have too much discretion.

“It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.”

Sellers said that lower courts had been persuaded by statistical and other evidence put forth so far in the lawsuit. He said Walmart’s strong corporate culture stereotypes women as less aggressive than men, and that translates into individual pay and promotion decisions at the more than 4,300 Walmart and Sam’s Club stores across the country.

“The decisions are informed by the values the company provides,” Sellers said.

Justice Antonin Sca­lia said he felt “whipsawed” by Sellers’ description. “Well, which is it?” Sca­lia asked. Either individual managers are on their own, “or else a strong corporate culture tells them what to do.”

Justice Ruth Bader Ginsburg said that at this stage of the lawsuit, the issue is not proving discrimination, but showing enough evidence to go forward. “We’re talking about getting a foot in the door,” Ginsburg said, a standard she called not hard to meet.

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