An unprecedented lawsuit against Wal-Mart could permit up to 1.6 million women to join the class action, following a federal court decision on Tuesday.

Federal judge approves largest class-action discrimination suit against largest US retailer.

By Mark Sappenfield and Ron Scherer | Staff writers of The Christian Science Monitor

The federal decision sets the stage for a sex-discrimination trial of unprecedented size, with potential significance to working women.

The class action suit, nrought by six Bay Area women who allege that the low-price retailer has shown systemic bias against women in pay and promotion, the case will now probably become the largest civil rights class-action suit ever.

To Wal-Mart, it’s a decision fraught with danger, as the judge unleashes a trial of unprecedented scope and complexity, which could strain the legal system to the point of failure and unfairness. But to those bringing the case, the judge’s decision adds momentum to a lawsuit that could become a landmark for women’s rights.

“Wal-Mart sets the standard in lowering wages and benefits, not just in the grocery industry but all low-wage workers,” says Ellen Bravo, executive director of Nine-to-Five, the National Association of Working Women in Milwaukee.

Speaking of the first sexual harassment case that was accepted for class action status in 1991, a case against Eveleth Mines in Eveleth, Minn., Ms. Bravo adds: “This has the same kind of feel, the same weight and import as the first case in giving people the status and heft individual cases can’t have. It has the potential to make a difference in how they view and challenge the practices.”

Wal-Mart is the largest private employer in the United States, and more than two-thirds of its workforce is female. Yet less than one-third of its managers are female. Moreover, a study by the group leading the lawsuit, the Impact Fund, found that women were paid less than men in every department of the store.

Lawyers involved in sexual discrimination lawsuits say proving these cases can be very difficult. The plaintiffs have to show that they did their jobs but their employer made adverse decisions against them. Then, they must show that those decisions were based on sex, race, or religion.

“They are notoriously difficult to prove,” says Joseph Turco, a specialist in discrimination lawsuits at the firm Spar & Bernstein in New York. To prove the cases, the plaintiffs will be allowed to present circumstantial evidence. But the employer is allowed to pull out bad performance reviews. “The burden is then back on the plaintiff to show the reason given is pretext,” says Mr. Turco. But he says society has become more attuned to employers’ efforts to hide discrimination. “Our generation gets it,” he says.

Moreover, the sheer size of the case could present problems for both sides.

Stepping up the size of the case to a class action “gives them much greater leverage, because obviously the case is that much bigger,” says Judy Malone, an employment law attorney at Palmer & Dodge in Boston. “But it also complicates the case. They’ve gone from having to prove the case of how many individual plaintiffs they have to representing a class of 1.6 million people. It’s going to be a very big case to try to manage on both sides.”

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