Plaintiffs in Suit Claim Wal-Mart Fudged on Study

Attorneys suing Wal-Mart Stores Inc. on behalf of thousands of female employees alleged in court filings Wednesday that the world’s largest retailer used a discredited survey and made “false assertions” in its effort to stop the huge class-action lawsuit.

In their brief, the plaintiffs disparaged a Wal-Mart survey, conducted by the discount chain’s own experts, that showed no significant pay differences between men and women at 90% of its 3,400 U.S. stores.

The lawsuit contends that Wal-Mart systematically paid and promoted women less than men.

The plaintiffs’ brief noted that the Wal-Mart survey was discredited by a federal judge, who ordered it stricken from the record during proceedings in which he allowed the class-action status. The survey divided each store into many small departments, and plaintiffs argued that the sizes made meaningful statistical analysis impossible.

More reliable, the plaintiffs’ attorneys said, is their analysis of company payroll records showing that on average, women at the retailer earned at least 5% less than men in all regions and job classifications.

U.S. District Court Judge Martin Jenkins in San Francisco ruled last summer that as many as 1.5 million current and former female employees could sue Wal-Mart as a group, creating the largest discrimination class ever.

Wal-Mart appealed the ruling in late November, arguing that the court ignored regional and store-to-store differences. The Bentonville, Ark.-based company said store managers have wide latitude in personnel decisions, and that each case should stand on its own merits.

The plaintiffs’ brief filed Wednesday noted that Wal-Mart is famous for its highly centralized operations and shouldn’t be allowed to dilute the strength of the class by breaking it up.

“While Wal-Mart is eager to reap the financial benefits conferred by its mammoth size, it must also accept accountability on the same scale when it violates the rights of workers,” said the brief, filed by attorneys for the Impact Fund, an Oakland-based public interest law firm.

The appeals court is expected to hear oral arguments in the first half of next year.

Wal-Mart spokeswoman Mona Williams would not comment specifically on Wednesday’s filing, but reiterated the company’s position that each discrimination case should be tried separately. “This case should not proceed as a class action because individual experiences vary enormously,” she said.