The Supreme Court threw out the largest employment discrimination case in the nation's history, in part because the plaintiffs had too little in common.  The class-action suit against Wal-Mart had sought billions of dollars on behalf of as many as 1.5 million female workers, who charged Wal-Mart had discriminated against them in pay and promotion decisions. 

Plaintiffs Had Too Little In Common.   As discussed more fully below, the majority opinion, written by Justice Scalia, concluded that the allegations against Wal-Mart were too vague and the evidence too weak to establish the common injury essential to encompass all women employed since 1998 in the 3,400 or so U.S. Wal-Mart stores.  The decision is sure to reverberate in other employment class actions, with lower courts scrutinizing more carefully the factors that constitute a class for the purpose of bringing mass claims.

Unanimous on Issue of Monetary Claims.  The Justices were unanimous on the issue that plaintiffs; lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims - although the Court did not decide whether, in fact, Wal-Mart had in fact discriminated against the women - only that the plaintiffs could not proceed as a class. 

The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones brought by investors and consumers, because it tightened the definition of what constituted a common issue for a class action and said that judges must often consider the merits of plaintiffs’ claims in deciding whether they may proceed as a class.

Ideological Lines on Defining a Class.   The Justices voted 5-4 along ideological lines on the basic question in the case - whether the suit satisfied a requirement of the class-action rules: that “there are questions of law or fact common to the class” of female employees.

The court’s 5 more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions.  Justice Antonin Scalia, writing for the majority, said the women suing Wal-Mart could not show that they would receive “a common answer to the crucial question, why was I disfavored?” He noted that the company, the nation’s largest private employer, operated some 3,400 stores, had an expressed policy forbidding discrimination and granted local managers substantial discretion.

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”

The case involved “literally millions of employment decisions,” Justice Scalia wrote, and the plaintiffs were required to point to “some glue holding the alleged reasons for all those decisions together.”

Business groups welcomed the decision, and labor and consumer groups strongly criticized it.  But all agreed it was momentous.  

To continue reading, go to:  [NYTimes, WSJournal, 6/20/11]