San Francisco, Wal-Mart Stores urged a federal appeals court on Monday to dismiss a lawsuit alleging that female employees were discriminated against in pay, promotions and training. The retailer is appealing a federal judge’s decision to let the nation’s largest employment discrimination lawsuit go to trial. The chain says the conventional rules of class actions should not apply in this case because its 3,400 stores operate like independent businesses. The suit, which claims that as many as 1.6 million current and former female employees earned less than men and were bypassed for promotions, could cost the retailer an estimated billions of dollars.
Wal-Mart attorney Theodore Boutrous told a three-judge panel of the 9th U.S. Circuit Court of Appeals that female Wal-Mart employees were not discriminated against and that the charges of the six lead plaintiffs were not typical or common of the entire class. He also argued that the lower court’s decision stripped Wal-Mart of its right to defend itself by ruling that the retailer could not call individual store managers to the stand to testify, for example, that there was no bias against women.
Plaintiff attorney Brad Seligman told the judges that they should let the case proceed as class action to prevent Wal-Mart from challenging each individual class member on an individual basis.
Judge Harry Pregerson said that the circuit was not litigating the merits of the case. Pregerson said the appeals court was reviewing whether a federal judge abused his discretion in allowing the case to go to trial.
The three-judge panel’s decision on whether the case can go to trial will likely not come for months. The judges grilled both sides during the 40-minute hearing.