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Walmart Women Still Seek Justice In Sex Discrimination Case

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Betty Dukes, Patricia Surgeson and Edith Arana, plantiffs in a Walmart class action, attend a San Francisco press conference last October.
Betty Dukes, Patricia Surgeson and Edith Arana, plantiffs in a Walmart class action, attend a San Francisco press conference last October.

The women who say Walmart discriminates aren't giving up.

Five hundred female employees in Alabama, Arkansas, Georgia, Mississippi and North Carolina filed discrimination charges last week with the Equal Employment and Opportunity Commission, a federal agency that litigates on behalf of workers against their employers. The filings will pave the way for women to continue their fight in lower courts after being turned away last summer by the Supreme Court in their class action against Walmart. The women argue that Walmart systematically favors men over women for raises and promotions.

The new filings also send a message to the giant retailer: Despite the landmark Supreme Court ruling in Dukes vs. Wal-Mart, the women will continue in their quest for justice.

"When the Supreme Court's decision came down, Walmart announced that the case was over," said Joseph Sellers, co-lead counsel for the Walmart plaintiffs. Things are far from over, according to Sellers, who argued the Dukes case. Sellers' firm and other lawyers for the plaintiffs say that they have been contacted by 12,000 women reporting discrimination at Walmart. Some were involved in the Dukes case and others are reporting new allegations. In October, plaintiffs from the Dukes case launched new class actions in California and Texas courts.

"Many of the women we've spoken to still work [at Walmart]," Sellers said. "What we've heard is that women continue to be treated as second-class citizens in many ways."

Walmart, meanwhile, filed a motion to dismiss the California case on Jan. 16. "Plaintiffs have failed to come to grips with the Supreme Court's ruling," company representatives wrote in the court document.

Filing charges with the EEOC is the first step for these women who might wish to pursue individual lawsuits or class actions in the future. The filings might also prompt the EEOC, an independent federal agency that investigates discrimination, to investigate and file lawsuits.

Sellers estimates that "thousands more charges will be filed." And he hopes that any class actions that might come after the fillings will succeed where Dukes failed. Although the Dukes decision came as a huge blow to plaintiffs, it didn't kill their case all together, as it did not rule on whether discrimination had occurred.

Instead, the Supreme Court established new standards for class actions, ruling that the individual claims of discrimination from 120 women -- which began in 2000 with San Francisco worker Betty Dukes -- couldn't be grouped together.

In the decision, the Supreme Court said that the 1.5 million women that Walmart employed was a group too large and too diverse to be considered a "class" and that the individual instances of discrimination alleged by the women had too little in common to be labeled a systematic company practice. Pay and promotion decisions were made by managers in stores and at regional levels, not by Walmart as a company, the court said.

By breaking the workers up into smaller groups, lawyers hope it will be easier to prove that discrimination was systematic within regions of Walmart stores. The suits filed in California and Texas, are the first two of these efforts.

More lawsuits will likely emerge after the EEOC filings. Eventually, Sellers expects the filings to generate "about a dozen" regional class actions around the country.

Walmart maintains that such class action efforts will be in vain, as they rest on the same logic as the case overturned by the Supreme Court. That is not to say that individual plaintiffs won't have their day in court, however.

"There's been a blurring of the lines beween the discrimination claims and the class action claims," said Greg Rossiter, director of corporate communications for Walmart. "These claims have never actually been heard on their merits."

Then there's the possibility of EEOC lawsuits prompted by the filings. The EEOC has sued Walmart in the past, independently of the Dukes case. In 2010, Walmart settled a lawsuit brought by the EEOC, paying $11.7 million in back wages and compensation damages to women in London, Ky., who were denied jobs because of their sex.

In an interesting twist, the EEOC would not have to prove that the Walmart workers constitute a "class" -- the very thing that stalled the Dukes case. That's because the EEOC represents the U.S. government, whose job is to ensure fair workplaces for citizens, not individuals whose claims must be consolidated.

Whatever route the lawsuits take, the Walmart women aren't giving up. "They're pressing ahead," Sellers said.

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