By  on August 9, 2005

SAN FRANCISCO — The landmark federal gender bias lawsuit against Wal-Mart may very well come down to statistics.

A three-judge appeals court panel discussed Monday how best to measure how many current and former Wal-Mart workers might have been passed over for promotions and raises.

Wal-Mart is challenging a lower-court decision granting some 1.5 million current and former workers at the retailer the ability to sue the company as a group, or class. There originally were only six claimants.

Theodore Boutrous Jr., Wal-Mart's lawyer, said, "The class certification in this case is literally unprecedented," arguing the lower-court judge should have relied on Wal-Mart's accounting of potential discrimination instead of the plaintiffs'.

However, Judge Andrew J. Kleinfeld questioned whether Wal-Mart's study, which showed that in more than 90 percent of its stores there was no significant disparity in wages or promotions, would make any difference to the case.

Wal-Mart claims its statistics survey employment conditions at all of its stores, while the plaintiffs' do not.

The lawyer representing the workers, Brad Feligman of the Impact Fund, said, "What Wal-Mart wants to do is challenge each and every class member ... and have each manager stand up and say why I liked you more than Mary."

At one point, Judge Harry Pregerson criticized Boutrous for not showing enough deference to the district court judge, Martin Jenkins. Pregerson criticized Boutrous' appeal brief, saying it made unfounded conclusions and said he believed the lawyer should apologize to Jenkins for some of his statements in the brief, such as saying the judge made "unfounded assumptions."

The appeals court will not judge the merits of the case against Wal-Mart, but only will decide if Jenkins overstepped in granting class-action status.

"The way you get it resolved is you go to trial and work out the statistics before a jury," said Joe Sellers, another lawyer for the plaintiffs outside the courtroom afterward, flanked by lead plaintiff Betty Dukes.

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