[JURIST] A judge for the US District Court for the Northern District of California [official website] expressed his concern on Friday that the plaintiffs may not have sufficient evidence to proceed with their gender discrimination case against Wal-Mart. Although they filed [JURIST report] an amended lawsuit [complaint, PDF] in Wal-Mart v. Duke [Cornell LII backgrounder; JURIST report] with the state court narrowing their claims to California stores, Judge Charles Breyer informed the plaintiffs that he was not able to see from where the evidence derived and noted that the new suit will only survive if they are able to demonstrate enough evidence to survive the US Supreme Court’s criticism. The lawyers for Wal-Mart have argued that the new claim relies on the same theory that the Supreme Court expressly rejected. On the other hand, the lawyer for the plaintiffs argued that they gathered new facts and information including comments by the company’s managers.

The plaintiffs filed a new suit against Wal-Mart in October after Breyer ordered [text, PDF; JURIST report] in August that the group of women seeking damages from Wal-Mart should file it by October. Two month earlier, the US Supreme Court rejected the plaintiffs’ request for a class action [JURIST report] because they did not meet the requirements for class certification. The original suit was filed in 2001 by female Wal-Mart employees [class website] contenting that Wal-Mart’s policies resulted in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed the class certification that was upheld [JURIST reports] by the US Court of Appeals for the Ninth Circuit [official website].