The Supreme Court appears ready to block a massive sex-discrimination lawsuit against Walmart on behalf of at least a half-million women, and that could make it harder for other workers nationwide to bring class-action allegations against large employers.
The 10-year-old lawsuit, argued in lively exchanges at the court Tuesday, contends that Walmart, the world's largest employer, favors men over women in pay and promotions. Billions of dollars are at stake if it is allowed to go forward.
The case also could affect the future of other class-action lawsuits that pool modest individual allegations into a single action that creates the potential for a large judgment and increases the pressure on businesses to settle.
In Tuesday's arguments, several justices suggested that they were troubled by the case and by lower-court decisions against Bentonville, Ark.-based Walmart.
Justice Anthony M. Kennedy, often a key vote on the high court, said the women's argument points in apparently conflicting directions.
"You said this is a culture where Arkansas knows, the headquarters knows, everything that's going on," Kennedy said to Joseph M. Sellers, attorney for the women. "Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there's an inconsistency there, and I'm just not sure what the unlawful policy is."
Sellers said that lower courts had been convinced by statistical and other evidence put forth so far in the lawsuit. He said that Walmart's strong corporate culture stereotypes women as less aggressive than men and that this translates into individual pay and promotion decisions at the more than 4,300 Walmart and Sam's Club stores across the country.
"The decisions are informed by the values the company provides," Sellers said.
Justice Antonin Scalia said he felt "whipsawed" by Sellers' description. "Well, which is it?" Scalia asked. Either individual managers are on their own, "or else a strong corporate culture tells them what to do."
Justice Ruth Bader Ginsburg said that at this stage of the lawsuit, the issue is not proving discrimination but showing enough evidence to go forward. "We're talking about getting a foot in the door," Ginsburg said, a standard she called not hard to meet.
Ginsburg, who made her name as a lawyer in discrimination cases, said it was possible that Walmart could disprove the allegations at a trial.
The court's other two female justices, Elena Kagan and Sonia Sotomayor, and Justice Stephen G. Breyer also appeared inclined to allow the lawsuit to proceed.
But several of their more conservative colleagues appeared to agree with Theodore J. Boutrous Jr., representing Walmart, that even subjecting the company to a trial would be unfair.