On February 13, 2009, the U.S. Court of Appeals for the Ninth Circuit announced it will review the February 2007 decision to certify a class that potentially includes 1.5 million current and former female employees allegedly underpaid and denied promotion opportunities on the basis of their sex. As reported in our earlier post, this class has the potential to be the largest sexual discrimination suit in U.S. history and could be awarded potential damages into the billions of dollars. This class action was originally filed in 2001. Wal-Mart argued at the district court level and to the panel that the class should not be certified because of: due process difficulties in managing the trial of such a large class of individuals; differences between the class members—managers v. ordinary employees, former v. current employees, and geographic differences; the type of relief sought—allegedly not primarily injunctive; the lack of statistical evidence; and the alleged lack of standing of former employees included in the class.

Employers should continue to watch the progress of this case through the courts because it will set a precedent for future cases where classes of employees nationwide challenge a uniform policy or corporate culture of stereotyping alleging that it influenced individual subjective decisions by individual managers. If this class is certified, it opens a door to class action challenges by enormous classes of past and present employees at all levels in the organization to nationwide broadly applicable policies and/or corporate culture.