A federal District Court has rejected the Plaintiffs’ “retooled class definition” in the proposed sex discrimination class action against Wal-Mart. Dukes, et al., v. Wal-Mart Stores, Inc., No. CV 01-02252 CRB (N.D. CA Aug. 2, 2013). In 2011, the Supreme Court ruled that the Plaintiffs’ old proposed definition (which included a nation-wide class of 1.5 million women) lacked any questions with answers common to the class and that class-action treatment was not appropriate. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). Plaintiffs tried again with a new proposed class: 150,000 women in 3 Wal-Mart Regions in California. Plaintiffs alleged both disparate treatment and disparate impact.

This second class definition also failed. Plaintiffs offered statistics, but the statistics showed no significant disparate treatment in promotion decisions in more than half of the relevant districts and no statistically significant store-level disparities at all. At least 74% of stores showed no statistically significant disparity in pay for each year in the relevant time period. Plaintiffs also tried to prove that key Wal-Mart managers shared a culture, reinforced through corporate training, of discrimination against women. The evidence amounted to anecdotes about discriminatory attitudes held by “2 of 4 Regional Vice Presidents, 1 of 7 Regional Personnel Managers, 2 of 49 District Managers and 7 of 400 Store Managers.” This was insufficient to establish a general policy of discrimination suitable for class-action treatment.

On the disparate impact claim, Plaintiffs argued that Wal-Mart had a policy of promoting only hand-selected internal candidates and using so many subjective criteria that managers were forced to fall back and rely on their cultural training – to the disadvantage of women. But Plaintiffs were unable to present evidence of a class-wide policy of hand selecting candidates and the long list of subjective criteria to be used in promotion decisions only amounted to delegating discretion to local managers. As the Supreme Court ruled 2 years ago, this was not a common policy, but the lack of a common policy.

Some bad ideas are still bad at 1/10th the size.