Today the American Constitution Society sponsored a panel discussion on the very important upcoming Supreme Court case of Wal-Mart v. Dukes (oral arg. next Tuesday) Thank you Grazie Grazie Merci ACS and their Director Ms. Frederickson.
This case, you recall isn't a Title VII gender discrimination on the merits, but it is a question of whether a class may be certified under 23(b)(2) of the rules of civil procedure of all these women (over a million) with different job titles/functions who all experienced what they allege is the same pervasive systemic patterns and practices of the OBN (Old Boy Network) denying women job pay and promotion opportunities.
I have to say I was honored to even be sitting in the room with Marcia Greenberger of the Women's Law Center who spearheaded the Lily Leadbetter legislation to redress the fact that the Supreme Court found her claims out of time overturning the three million or so dollars the company kept that should have paid her. She got nothing- but a nice photo op with the President. And she got to make her point into law for everyone. God Bless her.
This Wal-Mart case is hugely significant for class action plaintiffs attorneys who seek to do justice in the world and know that class actions are the only way to redress institutional grievances of a widespread nature with policies that uniformly affect an entire protected group of people. The sort of statistical data that can prove disparate impact cases can often not even be evidenced with single or even smaller multiplaintiff cases. There are objections as to 'overbroadness' typically leveled at discovery seeking to get data on other employees, and motions to compel follow with varying success at gaining this evidence. Typically defense will try to discredit the credibility of any one single plaintiff and make it just their issue and deem discovery pertaining to all the other women for example as just not relevant to any one person's claim. Injunctive or Declaratory relief sought under 23(b)(2) of the FRCP (Federal Rules of Civil Procedure). It is deeply fundamental to the ability to prosecute corporations in a way that forces them to implement or change policies across the board by this procedural mechanism.
Another panelist is a current Law Professor at Catholic U's law school, Suzette Malveau who bears a striking resemblance to her newscaster sibling, has written a law review article "Class Action At A Crosroads: An Answer to Wal-Mart v. Dukes" Vol.6, No.1, 2011 (winter) Harvard Law Review which is mandatory reading for anyone seriously interested in this. It's a bit technical but raises very interesting angles.
Women in this country make on average still 64 cents less on the dollar to men we were told by Marcia. We have come a little not a long way from the 54 cents when the Equal Pay Act first kicked off. We got a ten cent raise. The same stereotypical assumptions still pervade in large corporations and Wal-Mart is the largest private employer in the country with billions and billions in annual revenues. Women are considered en masse more non-career, able to make comparably less and forced to do so because the guy is supporting a family and so he should get the pay promotion. Women are presumed not to stay as long and cost more over maternity benefits and leave, etc. What this case showed is however that the performance evaluations were on the whole better for the women, and the women were treated unfairly by operation of the systemic corporate wide policies that kept them down- policies that gave too much discretion over pay and promotion with less guidelines than what they give store managers over how to control the temperature gauges inside stores, argued Marcia.
This case could and should say something very significant for women's equal rights and pay and dignity and standing in corporate life.
On a personal note, I have a grandmother who had to go back to work and earned a Masters' degree at age 50 because she was widowed. She worked into her late 70s as a professor at a Pennsylvania State College. I have an aunt who lost her husband with two small children when she was in her early 40s. I have another late aunt who was divorced with two small children and had to work. Half the country is divorced now and women have to work and support their children too. There is just no excuse for any pay promotion or hiring disparities in large corporations for women.
At this juncture in our history the Courts if they wish strong American families have to help make women strong and certifying this class action would send an enormous signal that life has to start getting fairer.
Some people are told to just swallow and accept the "Life is not Fair" conclusion. Others try to change it and believe they can. Ask what you can do for your country now. Let it not be in vain.
No comments:
Post a Comment