[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday affirmed [opinion, PDF] certification of the largest class action lawsuit in US history against Wal-Mart [corporate website] for allegedly discriminating against female employees. The 6-5 en banc ruling upholds a previous decision [JURIST report] by the Ninth Circuit that the lawsuit could go to trial despite the large size of the class. The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies violate Title VII [text] of the Civil Rights Act of 1964, alleging that women employed by Wal-Mart are paid less than men in comparable positions and wait longer for management promotions than men, despite their higher performance ratings and seniority. In a statement [text], Wal-Mart said that they are going to proceed by reviewing their options:

We disagree with the decision of the sharply divided 6-5 court to uphold portions of the certification order, and are considering our options, including seeking review from the Supreme Court. It is important to remember the court did not address the merits of this case. The court reiterated, "our findings relate only to class action procedural questions; we neither analyze nor reach the merits of Plaintiffs' allegations of gender discrimination." The court further noted that the trial court "has the discretion to modify or decertify the class."

The certified class, which in 2001 was estimated to encompass more than 1.5 million women, includes all women employed by Wal-Mart nationwide at any time after December 26, 1998.

The Ninth Circuit granted an en banc rehearing [JURIST report] to Wal-Mart last year. According to the order, a majority of the Ninth Circuit judges, excluding the three judges who heard an earlier appeal [JURIST report] in which class certification was upheld, voted in favor of an en banc hearing. A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. Wal-Mart also objected to the size of the class certified, which it says would violate its due process rights. Wal-Mart argued that its stores operate independently and should be sued individually, while plaintiffs' lawyers countered that individual lawsuits would be impractical. The district court also rejected Wal-Mart's claim that the class size was "impractical on its face" and approved a statistical formula for paying damages if discrimination is proven.