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Wal-Mart case hits high-court skepticism

Class-action status sought in lawsuit claiming sex bias


WASHINGTON - The Supreme Court appears ready to block a massive sexual-discrimination lawsuit against Wal-Mart on behalf of up to 1.6million women, and that could make it harder for other workers 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.

The case could affect other class-action lawsuits that pool modest individual claims into a single action, creating the potential for a big judgment and increasing the pressure to settle.

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

Justice Anthony Kennedy found fault with the women's argument in the lawsuit.

"You said this is a culture where Arkansas knows ... everything that's going on," Kennedy said to Joseph Sellers, the women's attorney. "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. He said Wal-Mart's corporate culture stereotypes women as less aggressive, and that translates into pay and promotion decisions at Walmart and Sam's Club stores across the U.S.

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

Justice Ruth Bader Ginsburg said the issue is not proving discrimination but showing enough evidence to go forward. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor also seemed inclined to allow the case to proceed.

But several of their more conservative colleagues seemed to agree with Theodore Boutrous Jr., Wal-Mart's attorney. He said the class-action nature of the case is unfair because it forces Wal-Mart to defend the treatment of female employees regardless of their job or location.

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