Class action

But what level of proof shall the courts demand of such discrimination? Individual facts on a case-by-case basis — or impersonal nationwide statistics?

The civil suit Dukes v. Wal-Mart, initially brought on behalf of six current and former female employees, has dragged through the California courts for nine years — spending six years at the 9th U.S. Circuit Court of Appeals, alone.

The lawsuit argues retail giant Wal-Mart practiced just such discrimination in pay and promotion practices against its female employees.

In April, the appellate court ruled the lawsuit could proceed as a class action, meaning 1.5 million women, working for Wal-Mart in different jobs across the country, could be represented as a single “class” of defendants — a “class” larger than the active-duty personnel of the U.S. armed forces.

Wal-Mart appealed. The Supreme Court accepted the case Monday. The justices will not decide the merits of the individual claims filed by the six women in 2001. They will instead decide whether a single lawsuit is proper when alleging charges of pay discrimination and lack of promotions spread across thousands of stores all over the country.

That decision itself could have a bigger impact than a ruling on the underlying claims.

Business groups say certification of a class action puts enormous pressure on a company to settle regardless of whether the charges can be proved, because of the cost of the litigation and the potential award at stake — even as it takes away the firm’s practical ability to argue each alleged incident individually.

The Wal-Mart case could be worth billions of dollars.

In critiquing the 9th Circuit ruling, The Wall Street Journal highlighted Judge Sandra Ikuta’s dissent, which concluded: “The majority’s ruling provides scant limits to the types of classes that can be certified. … Put simply, the door is now open to Title VII (discrimination) lawsuits targeting national and international companies … based on nothing more than general and conclusory allegations, a handful of anecdotes, and statistical disparities that bear little relation to the alleged discriminatory decisions.”

This lower standard, if affirmed by the Supreme Court, “will serve as a beacon for plaintiffs’ attorney’s to bring more cases styled as class actions,” argues Angelique Lyons, partner with national labor and employment law firm Constangy, Brooks & Smith. “In a class action involving so many different people in different positions with different stories, the sheer number of plaintiffs becomes unmanageable, and the employer will not be given the chance to explain each and every decision it made. The end result could be that these types of cases will revolve around statistical exercises, and companies could be found liable without any regard to what actually happened.”

Not only would that risk a massive miscarriage of justice, it could pile huge burdens on American employers for “wrongdoing” that never occurred — for mere statistical phantoms.

Let the workers sue if they believe they’ve encountered discrimination, by all means. But let the merits of each individual case be heard.