Posted by marykeating on June 24, 2011 under Sex-based discrimination | 
By a 5-4 decision, the Supreme Court reversed the certification of a class action against Wal-Mart brought by women claiming to have been deprived of promotions and raises. The class of women affected numbered about a million and a half. The Supreme Court rejected the Plaintiff class’s theory that a culture of discrimination pervading Wal-Mart, and the discretion that individual managers were given over pay and promotions, worked together to keep women employees on the lower rungs of the ladder. The majority opinion denied that there was enough evidence to show that the company had a policy of discrimination; therefore, there was not enough commonality to allow the case to proceed as a single class of similar people. Justice Scalia held; “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.”
While a decision in favor of Wal-Mart was expected, the majority opinion went out of its way to deride the statistical evidence that starkly showed the disparity between male and female advancement and pay. When a court hears an appeal, it is ordinarily supposed to decide the legal issue before it. Sometimes the legal issue is whether the judge below had enough evidence to rule in favor of one side. More often the legal issues focus on whether the jury was properly instructed on the law, or whether the wrong done to the plaintiff is something that a court can remedy.
Activist judges are often criticized for “legislating from the bench.” Instead of rendering a decision on the one issue before them, activist judges use a case as a stepping stone to announce new theories of law, when that announcement was unnecessary to the decision.
The current Supreme Court has certainly been engaging in activism as when, for example, it decided that corporations had free speech rights. In this Wal-Mart case, too, Justice Scalia attempts to undo long-standing discrimination proof standards. A well-known Supreme Court watcher noted the pro-corporate stance of the majority, indicating a possible constitutional right to a jury trial of each claim for damages. It is of course too early to know if the words will be adopted by courts when they are hearing cases not involving class action suits.
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 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 April 27, 2010 under Gender orientation discrimination |
Wal-Mart is hoping the Supreme Court will take on its efforts to avoid trying a half million or more sex discrimination cases in a single lawsuit. On Monday, the Ninth Circuit Court of Appeals allowed the class action suit to go forward. Fittingly, given Walmart’s status as the largest private employer in the country, it’s the largest class action ever certified. All women employed by Wal-Mart any time after December 26, 1998, were members of the original class action. The new decision certifies as a class all currently employed females with claims that they have been paid less than men, or have been unfairly passed over or made to wait for promotional opportunities as compared with men. This class is eligible to present their claims for back pay and injunctive relief. The trial court will be asked to consider the extent whether to certify the punitive damages claims, and the claims of women who were members of the original class but who no longer work at Wal-Mart.
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.
