Justices skeptical in Wal-Mart bias case

Wal-Mart got a sympathetic hearing from several Supreme Court justices Tuesday as the retailer sought to prevent female employees from bringing the largest class-action sex-discrimination lawsuit in history.

The justices sharply questioned whether more than a million female employees can join together against Wal-Mart Stores Inc., which is accused of paying women less and giving them fewer promotions.

Justice Anthony Kennedy, a moderate conservative who often casts the decisive vote on the court, said, "I'm just not sure what the unlawful policy is."

Justice Antonin Scalia said he felt "whipsawed" by the plaintiffs' argument and said they had not made clear whether it was Wal-Mart's corporate culture or local store managers who were allegedly at fault.

Scalia questioned whether it would be fair to the world's biggest retailer for the case to proceed. "Is this really due process?" he asked.

Potentially, liability could reach billions of dollars. But even if Wal-Mart loses at the Supreme Court and then at trial, financial analysts said the Bentonville, Ark.-based company has more than enough cash to make a big payout with little impact on its profits.

A crowd of protesters gathered outside the court, shouting, "Fair pay now" and carrying signs such as "Stop discounting the women of Wal-Mart."

Chris Kwapnoski, a 24-year Wal-Mart employee and one of the named plaintiffs in the case, said, "We're not going to lose." She recalled being told by a manager to "brush the cobwebs off" and "doll up" if she wanted advancement.

"Wal-Mart is trying their level best to keep us out of court so the facts will not be presented to the public at large or before a sitting jury," said Betty Dukes, a Wal-Mart employee in Pittsburg, Calif., who first filed a lawsuit against the retailer in 2001.

Gisel Ruiz, a Wal-Mart executive vice president, said, "We continue to have strong anti-discrimination policies in place, a strong record of advancement of women and we are always looking to be better."

The court is likely to rule by late June. It could change the legal landscape for workplace and other class-action lawsuits, affecting a similar case against Costco Wholesale Corp.

The Supreme Court is deciding only whether the lawsuit can go to trial as a group. If it rejects the class-action status, the individual women still can sue.