Posted by marykeating on June 26, 2011 under Sex-based discrimination | 
In the wake of the Supreme Court’s refusal to allow an enormous class action to proceed against Wal-Mart, representatives of employees and employers are evaluating its message. Justice Scalia’s pointed criticism of the plaintiff class’s approach intrigues some management representatives. The plaintiffs argued that by giving almost unfettered discretion to male managers to hire, pay and promote, Wal-Mart ensured an old boy’s club to flourish. The Supreme Court rejected this idea completely, saying that without a company-wide policy of discrimination, the class could not prove its case.
Now some advisers are contemplating whether to recommend more discretion and less top-down control, in the interest of avoiding class discrimination complaints. Others are not so sure.
A healthy corporate culture is imposed from, and rewarded from, the top. Nicely worded statements in the employee handbook are worth nothing if they have no backup. A manager who is permitted to discriminate, treat his employees like dirt, and look the other way when racial or sexual harassment pervades the workplace has no incentive to change his ways. If the behavior goes too far and the company is sued, however, the particular victims of this person’s discrimination do not have to mount a class action. One, two, or five people suing the company for discrimination costs less than a class action to defend, but is not something any employer courts. A maverick manager defying the company does more harm than simply inviting lawsuits. Morale suffers, some good employees leave the company, and sick leave usage rises as the miserable employees take time off for stress-related ailments. Fettered discretion is much smarter.
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 May 9, 2011 under Economic situation, Sex-based discrimination, Uncategorized, Wage and hour issues |
Last week’s Department of Labor study on Women’s Employment During the Recovery provides a framework for understanding how the female workforce is recovering from the recession. The good news: the unemployment rate among women is lower than that of men. Part of that disparity results from the fact that women are more likely to be employed in the public sector. In addition, more women have college educations than do men, though more college educated men are working full time.
Women are underrepresented in some sectors, such as engineering, computer science, and architecture. Some of the areas expected to have the highest growth rates over the next few years, other than health care, still have a distinctly male focus.
The report collects and analyzes a large amount of data, including a dispiriting analysis of the cumulative effects of the wage gap. It then discusses the initiatives designed to give women more opportunities in male-oriented jobs, enforce equal pay laws, and increase workplace flexibility.
Almost two thirds of mothers are in the workforce.
The hurdles that face a truly equal workplace can look too tall to leap over. But we mothers can change the mindsets of the children who will join the companies and institutions, so that they do not expect pay or assignments to be based on gender, family responsibilities, or race.
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 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.
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 11, 2010 under Gender orientation discrimination |
The EEOC negotiated a huge settlement with Outback Steakhouse restaurant chain on behalf of women who were unable to advance because of the company’s glass ceiling.
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.
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.
