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Ninth Circuit grants Wal-Mart rehearing in gender discrimination case

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] granted an en banc rehearing [order, PDF] to Wal-Mart, Inc. [corporate website] Friday in a long-running gender discrimination suit against the retailer. According to the order, a majority of the Ninth Circuit judges, excluding the three judges who heard an earlier appeal [JURIST report] in which class certification was upheld, voted in favor of an en banc hearing. The case, Dukes v. Wal-Mart, Inc., is a class-action lawsuit filed in 2001 by female employees of Wal-Mart [class website] who have alleged that the retailer violated their civil rights by discriminating against them because of their gender. The class has grown to include nearly 2 million women who have worked for Wal-Mart since 1998. In the 2004 class certification ruling, a federal district court judge found evidence [San Francisco Chronicle report] that Wal-Mart paid women less than men in every region and in most job categories, and took longer to promote women to management.

A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. Wal-Mart also objected to the size of the class certified, which they say is the largest in US history and would violate its due process rights. Wal-Mart argued that its stores operate independently and should be sued individually; plaintiffs' lawyers countered that individual lawsuits would be impractical. The district court also rejected Wal-Mart's claim that the class size was "impractical on its face" and approved a statistical formula for paying damages if discrimination is proven.

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