The case is important for the scope of the claims.  The decision pointed out that size alone could not drive the decision to certify a class or make each discrimination case proceed alone.  Instead, the issue in class action certification is whether the common issues to be decided predominate.  The majority of the Ninth Circuit noted that the trial court had found “significant evidence of company-wide corporate practices and policies, which include (a) excessive subjectivity in personnel decisions, (b) gender stereotyping, and (c) maintenance of a strong corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias.”  

The 137-page opinion can be accessed through the class action’s website, as can information related to joining the class.

According to one source, the Supreme Court is likely to take an interest in the case.   If so, the case will linger for a few more years before any proof is heard.

But increasing the representation of women and minorities is important for a number of reasons, not the least of which is avoiding liability for discrimination.  A better way to avoid liability for discrimination is to abandon discrimination.   Can a truly color and gender blind organization exist?  Maybe not, but some are more equal than others (with apologies to George Orwell).  An organization can foster a culture where all newer workers are given mentors, are judged according to their merits and contributions, and not thought of first as “the Asian woman” or “that African-American guy.”

Where that does not happen, minorities and women have found it helpful to band together and find mentors of their own gender or race.  The polite response from the majority leadership is to accept and promote these efforts at a distance, without trying to run them.

But sometimes the majority leadership can’t help themselves.  An especially rich example of this comes from the New York State Bar Association.  In order to give women lawyers some helpful pointers on their shortcomings, the bar association offered a panel discussion entitled “Their Point of View: Tips From the Other Side.”   The program brochure describes the discussion as follows.   “A distinguished panel of gentlemen from the legal field will discuss the strengths and weaknesses of women in the areas of communication, negotiation, mediation, arbitration, organization, and women’s overall management of their legal work.”

Brilliant.  One blogger, Bridget Crawford, was incensed, and stated as follows:
I call for all members of the NYSBA to boycott this panel discussion. Yes, the speakers have a right to speak, but we don’t have to go and listen.  Men have been telling us FOR YEARS how we don’t measure up.  To have a panel of men, endorsed by the New York State Bar Association, discussing our “strengths and weaknesses,” is a regression and an insult to all women in the legal profession.

After this and other complaints, the program was changed, both to include women and to describe the “challenges” faced by women, rather than a discussion of their “strengths and weaknesses.”

The truth is that women have high enrollment numbers in law school, and have for years, yet proportionally speaking are not advancing in the field.  Still, having men point out our weaknesses in the overall management of our legal work?  Somebody needs diversity training.

The management positions at Outback were filled by men.  To be considered for management positions, the applicant had to have kitchen experience.  Outback, however, did not give women the kitchen jobs.  That pattern led to a $19 million settlement that will be shared by a number of women who worked at Outback for at least three years between 2002 and now.

A settlement of this magnitude alone sends a cautionary message, and in most cases should inspire an employer to institute reforms.  But the settlement agreement itself requires Outback to make substantive changes in its application procedures, hire a “Vice President for People,” and hire an outside consultant for two years to monitor progress.  The EEOC will also require semi-annual reports.

The EEOC obtained a large verdict against Outback in 2001, based on a single instance of sex discrimination in pay, and retaliation against the woman who complained about her male counterpart making nearly double her salary.

Is it possible for a company to reform its discriminatory ways?  In this case, the EEOC’s oversight measures are designed to force both change and awareness of the impact of policies that result in discriminatory decisions, even if not consciously made.  But cultures favoring one sex or race can be difficult to alter.  If the Outback upper management has fostered a corporate culture of men-in-charge, it may not change in any systemic way.  On the other hand, the oversight and the boon to the women working at Outback should keep the decisions scrutinized for some time.  Perhaps the transparency will require Outback’s culture to evolve.