Posted by marykeating on September 1, 2010 under Interesting cases, Sex-based discrimination | 
Wal-Mart has appealed to the Supreme Court the Ninth Circuit’s green light for the massive class action suit. As reported here earlier, the class action could lead to disposition of 1.5 million claims by women blocked from promotional opportunities. The petition for review asks the Supreme Court to disallow a class action where each worker’s damages have to be separately calculated, and also complained of the sheer mass of the case. The petition makes two main arguments. One is based on the proper interpretation of the federal rule governing class actions. The other argument contends that the plaintiffs’ proof is eased by this method, and that trying a case in this way deprives WalMart of the right to trial by jury.
Lyle Denniston of Scotusblog predicts that the petition will be decided this coming term. If it is granted, then the parties will brief the issues, which are historic. There may not be enough time to conclude the case by the end of the coming term.
One easy prediction: the fact that there are now three women on the Supreme Court will be mentioned frequently (did you read it here first?)
Posted by marykeating on June 4, 2010 under Sex-based discrimination |
The New York Times got ahold of what should have remained a confidential memorandum from attorney to client. WalMart’s attorneys at Akin Gump warned the giant retailer fifteen years ago that its demographic statistics and haphazard practices of posting open jobs posed a danger. The survey by the law firm revealed that men were five and a half times as likely as women to be moved into management positions. There, they earned more than women.
As reported here before, the danger signs came together with a massive class action by women claiming a systematic pattern of gender-based discrimination. A judge in the class action will have to decide whether the memorandum can come into evidence. It would be a fiery bit of evidence to be sure, but it does not appear that WalMart waived the protection of the attorney-client privilege. WalMart also claims, in its response to the revelation of the memo, that it has improved its practices and the 15-year old report is too stale to pay attention to. The class action will proceed unless the Supreme Court can be convinced to reverse the decision to let all the claims proceed together.
Posted by marykeating on May 21, 2010 under Sex-based discrimination, Uncategorized |
After finding Novartis liable for wide-spread sex discrimination, the same jury returned a $250 million punitive damages verdict to the class of victims in the Novartis sex discrimination case. The jury announced its award on May 20, after hearing argument and evidence on the company’s worth. The 5,600 class members will be entitled to be heard on the scope of each of their damages. In these situations, the court appoints a special master to administer the pooled fund. In addition, these class members (other than the 12 plaintiffs represented originally in the six week trial) will also be entitled to seek their own compensatory damages, which are based on emotional distress. The judge may also award more back pay damages; $37 million is being sought.
Of course, that assumes that this verdict is final, and that is a lot to assume. Simply by virtue of the verdict’s size, Novartis is sure to appeal it. Many punitive damages awards have been reversed or, more commonly, reduced. A reduction could happen at the trial court level, as lawyers file post-trial motions complaining of the conduct of the trial, the size of the verdict, and various evidentiary issues. This dispute will probably take a few more years to resolve completely. Yet, for the women who have been waiting for as long as eight years, the announced verdict itself must be a victory, and changes at Novartis are a virtual certainty.
The case is Velez v. Novartis Pharmaceuticals Corp., 04 Civ. 9194, in the Southern District of New York.
Posted by marykeating on May 18, 2010 under Sex-based discrimination |
Yesterday a Manhattan jury wound up almost a week of deliberations and rendered a $3.3 million verdict in favor of the 12 named plaintiffs against Novartis AG. The class of 5,600 female sales representatives in the United States will also be able to continue a second phase of trial, and prove punitive damages. The women complained that since 2002 they were kept out of higher management, and according to their lawyer, “tolerated a culture of sexism, a boys’ club atmosphere.” One woman testified that her boss told her to get an abortion after she reported she was pregnant; others talked about managers who took male sales representatives to strip clubs.
This case represents the second largest employment class action on behalf of women, after the Walmart case recently certified to go forward. The jury found that Novartis had engaged in systematic gender-based discrimination, paying women less than similar male employees, failing to promote women to managerial positions, and treating pregnant women less favorably.
The punitive damage phase will begin today, with the jury being told that the value of the company is $9.5 billion.
Posted by marykeating on May 6, 2010 under Sex-based discrimination |
Last month, the Fourth Circuit overturned a trial judge’s decision to reject a sex discrimination claim before it got to trial. Deborah Merritt will now have a jury decide her claim that Old Dominion persists in applying sex stereotypes to its employees.
Merritt was a line haul driver for six years, taking freight to distant states. She wished to transfer to a local driving job so she could spend more time at home. The job is more physically demanding, since the driver does the loading and unloading of the freight. Its hours are more regular, though, and so some employees find it more desirable.
Only six out of the 3,100 local drivers at this company were female. Merritt also produced evidence that her supervisor said that “a girl should not have that position,” in part because the company was afraid women would be hurt on the job. Still, after several applications, and after making sure the men at the terminal did not mind working with a woman, Old Dominion placed her in the job. She did well. Six months later Merritt hurt her ankle and had to take some time to recover. When she was ready to return, she was put through a full-blown fitness test that is only given, occasionally, to new hires. She failed the test, but for reasons unrelated to her ankle injury and unrelated to her ability to perform the work. (For example, she was too short to reach a shelf.) The company fired her and replaced her with male workers.
In reversing the dismissal, the Fourth Circuit considered the pretextual policy of requiring injured workers (only on rare occasions) to take this test, and the statements by Merritt’s boss. It stated, “A plaintiff does not need a ‘smoking gun’ to prove invidious intent, and few plaintiffs will have one.” In this case, “evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction.” In his concurrence, Judge Davis emphasized that company tests must be applied in a neutral manner.
Posted by marykeating on April 1, 2010 under Economic situation, Race-based discrimination, Sex-based discrimination |
The Bureau of Labor Statistics released a report breaking down unemployment rates by various characteristics, including race, gender, age, educational level, and head of household status. The report shows that unemployment rates, and length of unemployment, among African-Americans are higher across all other categories. The highest burden is felt by African-American teens, with a 41.4% unemployment rate as of February. The report points out that while unemployment is bad enough, starting a work life in such a discouraging way has long-lasting ramifications.
I find two other comparisons troubling. College graduates are more likely to be employed than other groups, but the rate of African-American unemployment is higher (.2% v.s 4.5% for whites). Another striking comparison shows that the unemployment rate among women head of households (in other words, single mothers) is higher than the rate among women generally. Black women heading households experienced an even higher unemployment rate.
The report refrains from drawing any conclusions on the reasons for these stark differences, leaving that to academics with more time to develop and test theories. Surely segregation patterns must be considered. Lingering racism and discrimination against women with childcare responsibilities are pretty good possibilities as well.
Posted by marykeating on March 27, 2010 under Sex-based discrimination, mandatory arbitration |
Jamie Leigh Jones filed a federal lawsuit for damages, charging that while stationed in Iraq, her co-workers at Kellogg Brown and Root, then owned by Halliburton, drugged and raped her. Jones’ employer’s insistence that all of her claims must be arbitrated led to the successful passage of the Franken Amendment, reported here.
KBR’s argument focused on Jones’ employment agreement, which called for arbitration of employment disputes. After two years of litigation, Jones convinced the Fifth Circuit that some of her claims need not be arbitrated. Those claims involved the civil counts arising out of crimes; the court held that Jones’ bedroom, where she was raped, was not part of her “workplace, even though it was provided by her employer.
KBR asked the Supreme Court to intervene. Courts frequently give a great deal of deference to arbitration clauses, regardless of the disparity in power between the contracting parties. Employees may be required to waive their rights to a jury and appeal, and submit their claims to a single or trio of arbitrators rather than experienced judges. Arbitration is popular with employers for those reasons. But then the Franken Amendment passed. Now both sides have consented to have the case withdrawn from the Supreme Court’s docket.
Jones’ case is set for May.
Vail said he believes the case was withdrawn because of the so-called Franken Amendment. Following publicity about Jones’ case, Congress passed a defense appropriation last year with a provision advocated by Sen. Al Franken, D-Minn. The measure prohibits any contractor receiving federal defense funds from enforcing a contract that mandates use of arbitration to resolve civil rights, harassment and other types of disputes.
Posted by marykeating on March 2, 2010 under Sex-based discrimination |
The EEOC just settled a massive sex discrimination case against Walmart. Walmart was accused of refusing to consider women for order filling positions in its Kentucky distribution center, telling applicants that these jobs were not suitable for women. And yes, in case there is any question, these acts occurred in the 21st Century. Walmart will pay $11.7 million and the taxes payable on that amount, plus up to $250,000 in the administrative costs of distributing the money.
Walmart has been the defendant in a number of other cases ranging from disability and race discrimination to wide ranging allegations that its managers required workers to work off the clock. But it has moved past the boycott days, when the systematic refusal to pay benefits and keep hours low put many of its workers on state medical assistance and food stamps.
The EEOC’s website notes that it is hiring more investigators, and it appears to be going after bigger fish, making bigger waves in the fight against discrimination. Its settlements are not secret, and require the employer to be under scrutiny for a period of time, and to make up for past discriminatory actions. In the warehouse case, Walmart will fill the first 50 open positions with women, then give every other position to a woman, and then every third. After those first 150 positions, it is hoped, management at the facility will be used to women working in the warehouse, and will apply neutral standards.
Posted by marykeating on January 21, 2010 under Sex-based discrimination |
The post on January 15 described the furor about the panel described as having “distinguished gentlemen” weighing in on the strengths and weaknesses of women lawyers. The panelists, who apparently are well known for their mentoring of women lawyers, have all dropped off and the program’s description altered. These particular participants were not challenged, it was the poorly worded blurb leading to the perception that only men had the inner knowledge of what women needed to succeed.
Posted by marykeating on September 14, 2009 under Sex-based discrimination |
Last year the EEOC sued the Baltimore supermarket chain, Mars Super Markets, Inc., in the United States District Court in Baltimore, alleging sex discrimination. It accused the supermarket of refusing to permit women employees from becoming meat cutters in its deli departments. After a clerk in the Dundalk store was refused the job, the EEOC investigated and discovered a pattern, and filed suit in federal district court.
Mars agreed to settle the case earlier this month. In addition to paying a settlement of $275,000 to several women who were illegally denied these jobs, Mars agreed to train its supervisors in avoiding discrimination, to offer meat cutter jobs to women who had previously been denied them, to develop meat cutter job descriptions, to keep better records, and to post notices about the employees’ rights.
This case is a little unusual in its pattern of discrimination. It seems that most employers have caught on to the laws against gender discrimination, and the complaints of discrimination are often based on subtle indications of bias. In this case, though, the supermarket is accused of applying a blanket prohibition against women becoming meat cutters. Why – because men are thought to have superior physical strength? Or some notion that it’s a masculine job? In any event, Mars is taking detailed steps to prevent the same prejudices from barring women from performing this job.
