Undoubtedly, some Americans love WalMart while others have a strong dislike for it. Many shoppers love the low prices WalMart offers. On the other hand, labor unions have attacked WalMart repeatedly for fighting efforts to unionize it. In fact, many employees have sued WalMart because of claimed unfair treatment. Some of those cases are described below.

Recently in the news, Saturday Night Live actor, Tracy Morgan, sued WalMart because one of its trucks had hit Morgan’s limousine. The crash killed fellow comedian James McNair. Morgan suffered serious bodily injury. Apparently, the WalMart driver, Kevin Roper, had been driving for more than 24 hours consecutively. Morgan claimed that driving for such a long period of time was negligent and that WalMart knew of that negligent behavior.

Although not an accident case, WalMart settled, in 2009, a case filed by potential driver applicants for $17.5 Million. (Nelson v. WalMart.) The applicants claimed that WalMart had denied them positions in the company because they were African-American. They, and the other applicants, had been required to provide credit ratings. Apparently, those ratings denied African-Americans positions as drivers more routinely than non-African-Americans.

In California, twenty-thousand WalMart cashiers claimed that they should have been provided seats to sit on during their shifts. WalMart appealed after a federal judge certified the case. The parties are now waiting for the Ninth Circuit to decide whether the law in California requires WalMart to provide those seats. That pending case is: Brown v. Wal-Mart Stores, Inc.

Another California case, and probably the most significant case involving WalMart, is WalMart v. Dukes. The Plaintiff, Dukes, was a female employee. She said that WalMart had wrongfully denied her promotions because of her gender. She alleged that WalMart had an institutional bias against women. Statistically, WalMart’s labor force was made up of approximately 70% women, while only about 30% of its managers were women. Regardless, the United States Supreme Court ruled that the case could not proceed as a class action on behalf of 1.5 million women. According to the Supreme Court, WalMart store managers had much discretion in determining the amount of money each employee could earn and the criterion used to promote employees. Because of that discretion, the managers had likely decided to promote or not to promote women employees for many various reasons, depending on the circumstances. Thus, no single reason for not promoting women could be consistently applied throughout all the WalMart stores, and, according to the Court, the case could not be certified as a class action because the reasons for not promoting women would vary too much.

Later, the potential California class members tried to certify a much small class that was only made up of female employees in California, rather than employees from across the country. The federal judge denied certification again and cited the Supreme Court holding in Dukes to support his decision. Essentially, the Court said that the class, even though smaller, still suffered from the same problem. There was no common reason for denying women promotions amongst all the stores in California. The Court denied certification even though it said that the employees “had amassed substantial evidence of discrimination against women that occurred at Wal-Mart stores”. Regardless, that was not enough to allow Dukes to represent the entire class against WalMart. Presumably, the female employees would need to file each of their cases separately.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)