Evidence of Decades of Sex Discrimination at Wal-Mart Stores: The History of Dukes v. Wal-Mart
Litigation against Walmart Stores has been ongoing since June 2001, in an effort dedicated to ensuring that millions of women who have worked for Walmart over the years receive equal pay and an equal chance at promotion.
Despite all of the procedural battles over the last 18 years, no court has ruled on the merits of the dispute over whether a pattern or practice of discrimination existed – and may still exist – in Walmart’s stores. But we are not without evidence illuminating that issue, based upon over one hundred depositions, review of tens of thousands of documents, and multiple expert analyses of Walmart’s personnel data.
Below is a brief overview of key dates and rulings in this complex litigation. Presented further below is a PDF document that offers a more in-depth look at the litigation with links to evidence in the public record, as well as links to the briefs, expert reports and court rulings.
2001 – 2004 – Initial Complaint to Class Certification
Dukes v. Walmart (N.D. Cal. No C-01-2252), a putative nationwide class action began in 2001, with several named plaintiffs. After discovery, on June 21, 2004, the District Court certified a nation-wide class consisting of at least 1.5 million women who worked, or had worked, in one or more of Walmart’s 3,400 retail stores in both hourly and salaried management positions from December 26, 1998 through date of trial who challenged discrimination in pay and management track promotions. In certifying the case, The Honorable Martin J. Jenkins of the U.S. District Court for the Northern District of California described the case as “historic in nature, dwarfing other employment discrimination cases that came before it,” recognizing its historical importance as the largest civil rights class action ever certified against a private employer. The Judge also noted that the class certification was being ruled upon in the year that marks the 50th anniversary of the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954). “This anniversary serves as a reminder of the importance of the courts in addressing the denial of equal treatment under the law whenever and by whomever it occurs.”
2004 – 2011 – Appeal to the Ninth Circuit to Supreme Court
Immediately following Jude Martin’s ruling, Walmart obtained permission to appeal the class certification decision. The US Court of Appeals for the Ninth Circuit affirmed the District Court’s ruling in February 2007, following a petition for rehearing the Ninth Circuit again affirmed, but with a corrected decision in December 2007. Walmart then filed a petition for rehearing en banc (by the full Ninth Circuit instead of a panel of three judges), and on April 26, 2010, the Ninth Circuit again affirmed the District Court’s decision to certify a class. Walmart then asked the Supreme Court to hear the case. On June 20, 2011, the U.S. Supreme Court decertified the nationwide class.
2011 – Present – Regional Class Actions to China Agritech Inv. v. Resh to Present
The Supreme Court held that the record before it did not support nationwide certification, in part because some decisions were made at the store level, and without having statistical analyses specific to the store level, it was possible that what appeared to be disparities across stores were really driven by a small number of stores with very large disparities, and further that it was possible that there were differences between the various regions. Given the Supreme Court’s comments about potential regional variation, and the need to do statistical analyses at the level of the relevant decisionmakers (store level for hourly pay, region level for management pay), Plaintiffs then filed several regional class cases. In each of these cases, Walmart raised the question of whether a subsequent class case could proceed where the timeliness of the claims depended on tolling the statute of limitations by the pendency of the earlier class case. Different courts reached different rulings on this, with the Sixth Circuit (the only circuit court to address the question in this series of Walmart cases) holding that if individual cases could be brought relying on tolling from the earlier case, so could class claims. Class discovery and briefing on class certification then proceeded in that case, Phipps v. Walmart, pending in M.D. Tenn. The record developed in Phipps spanned 1998 to 2009. It showed statistically significant disparities in hourly pay at the store level. It showed statistically significant disparities in management pay, and in promotion from hourly to management positions throughout the studied time period. Moreover, evidence showed that Walmart was aware of specific pay practices that contributed to pay disparities, but did not fix them for years. And even the changes in policies that Walmart belatedly made only reduced, but did not eliminate, the pay disparities. A summary of the evidence obtained, with links to the class cert briefing and expert reports is available below. However, in June 2018, in China Agritech Inv. v. Resh, an unrelated case, the Supreme Court held that following decertification or denial of class certification, that the tolling which permits timely filing of individual claims does not extend to class claims raised by such individuals. This put an end to the various regional class cases which plaintiffs were pursuing.
In late 2018, plaintiffs turned to the approximately 1800 women who had charges pending before the EEOC, and began filing cases to pursue individual, rather than class claims, although in several instances a small group of women filed one case encompassing each of their claims. The quest for equal pay and equal opportunities for promotion continues. See TIME, “Nearly Two Decades Ago, Women Across the Country Sued Walmart for Discrimination. They’re Not Done Fighting,” May 9, 2019.
Accessible here is a PDF with a more complete history of the Walmart litigation with links to evidence that is in the public record, as well as links to the briefs, expert reports, and court rulings.