* Woman says Wal-Mart manager told her to "doll up"
* Protesters rally outside the Supreme Court
* Ruling expected by late June could affect other cases
(Adds share price, Wal-Mart statement)
By James Vicini
WASHINGTON, March 29 Wal-Mart got a sympathetic
hearing from several Supreme Court justices on 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
(WMT.N), accused of paying women less and giving them fewer
Justice Anthony Kennedy, a moderate conservative who often
casts the decisive vote on the nine-member court, said, "I'm
just not sure what the unlawful policy is."
Another 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. "Which is it?" he asked.
Scalia questioned if it would be fair to the company, 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, Arkansas-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" and "The women of Wal-Mart are not
Chris Kwapnoski, a 24-year Wal-Mart employee and one of the
named plaintiffs in the case, told reporters after the
arguments, "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, California, who first filed a lawsuit
against the retailer in 2001.
Gisel Ruiz, a Wal-Mart executive vice president, said after
the arguments, "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 make a ruling by late June. The
decision could change the legal landscape for workplace and
other class-action lawsuits, affecting a similar case against
Costco Wholesale Corp (COST.O).
Shares of Wal-Mart, a component of the Dow Jones industrial
average, rose 7 cents to $52.26 on Tuesday.
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Businesses say a Wal-Mart defeat could make every large
corporation vulnerable to sweeping allegations of employment
bias and would water down class-action requirements.
The Supreme Court is only deciding whether the lawsuit can
go to trial as a group. If the court rejects the class-action
status, the individual women still can sue, both sides in the
Large class-action lawsuits make it easier for big groups
of plaintiffs to sue corporations and they have led to huge
payouts by tobacco, oil and food companies.
Wal-Mart's attorney, Theodore Boutrous, said female
employees in different jobs and in different stores do not have
enough in common to be in a single class-action lawsuit.
"It's not fair to anyone to put this all into one big
class," he told the justices, adding that the company has a
strong policy against discrimination.
Joseph Sellers, an attorney for the women, argued the
class-action lawsuit should be allowed to go to trial for a
decision on the merits of the claims. "This is an extraordinary
case," he said.
Women's groups have said a Wal-Mart victory could signal a
significant retreat for women's rights in the workplace.
Companies have sought to limit such lawsuits to individual
or small groups of plaintiffs. The Supreme Court, with a
conservative majority, has often agreed.
Sanford Bernstein analyst Colin McGranahan said he
estimates a settlement could cost roughly $1.5 billion. That
equates to 26 cents per Wal-Mart share, or less than 0.5
percent of the company's current share price.
He said Wal-Mart could "easily" fund that through existing
liquidity or free cash flow, with less than 1 percent impact on
its earnings per share.
Chief Justice John Roberts cited Wal-Mart's policy against
discrimination and asked whether its pay disparity between men
and women was less than the U.S. average.
The Supreme Court case is Wal-Mart Stores Inc v. Betty
Dukes, No. 10-277.
(Additional reporting by Jeremy Pelofsky and Jessica Wohl in
Chicago, editing by Philip Barbara)