By Jennifer Clark and Ariane Hegewisch
The Supreme Court heard arguments on Tuesday to decide whether the lower courts rightly certified the one million or more women at Wal-Mart as a class. According to Wal-Mart’s own salary data, women earn on average $1,100 per year less than men, differences that cannot be explained by experience or performance, and women are much less likely to get promotions than men.
An unprecedented number of amicus curiae (or ‘friend of the court’) briefs were submitted to the court, from groups as varied as the Chamber of Commerce, the NAACP, and the American Sociological Association, as well as the Institute for Women’s Policy Research. Below is a roundup of resources that break down what is at stake, not just for the million-plus women affected by this specific lawsuit, but for the country’s ability to address systemic employment discrimination.
Key to the Wal-Mart case is not just whether the class should be certified, but on which basis it should be certified. The lower courts certified the case on the basis of ‘injunctive relief,’ which asks primarily for changes to personnel policies and practices to prevent future discrimination; it does not ask primarily for monetary damages (although the women would still be entitled to get back pay for any discrimination they suffered). This approach is what Wal-Mart and its proponents take issue with. They argue that if there was class certification, then the certification should be on the basis of monetary damages—a procedure that requires, as it happens, a much higher burden of proof than certification on the basis of injunctive relief. Wal-Mart also claims that class certification is not necessary in the first place, because if there were discrimination anywhere, Wal-Mart reasons, then it could be tackled just as effectively by each woman suing Wal-Mart on her own.
Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope, a new report released yesterday from IWPR, finds otherwise. The report reviews injunctive relief in over 500 court-supervised employment discrimination settlements—also known as consent decrees—involving alleged sex and/or race discrimination in employment. The report finds that class action lawsuits are much more likely than other settlements to introduce changes to make a long term and sustained impact on discrimination. For instance, over 70 percent of certified class action settlements, compared to five percent of other settlements, mandate the introduction of objective and transparent criteria for job assignments and promotions. Lack of posting of promotion opportunities, or of criteria for being admitted to the training programs that were essential requirements for promotions, is a key complaint by women at Wal-Mart. More information on employment discrimination consent decrees are available on IWPR’s website.
Selected Amicus Briefs
In support of the Respondents (Betty Dukes, et al.)
- Institute for Women’s Policy Research reviews social science literature and research and argues that individual employment law suits hardly ever lead to injunctive relief; and class action lawsuits, because of their emphasis on best practice injunctive relief (changes to employment policies and practices) play a significant role in remedying systemic employment discrimination.
- National Women’s Law Center and the American Civil Liberties Union, et al., filed a brief arguing that, despite the size of the class, sex stereotypes, and discrimination in the workplace bring up issues that are common to the class of 1.5 million women.
- American Sociological Association, et al., filed a brief that establishes social science research as a rigorous and valid form of analyzing workplace culture and discrimination, and then argues that social science research has found that corporate policies that allow unchecked managerial decisions can lead to biased decision-making.
- U.S. Women’s Chamber of Commerce, National Partnership for Women and Families, and California Women Lawyers filed a brief that argues class action lawsuits, while rare, have benefited both employees and employers in promoting systemic reforms that comply with the law and work within corporations’ own needs and existing infrastructures.
In Support of the Petitioner (Wal-Mart Stores, Inc)
- U.S. Chamber of Commerce filed a brief that argues the Ninth Circuit Court of Appeals decision to uphold the class certification of the 1.5 million women misread the scope of Rule 23(b)(2) in certifying class action lawsuits.
- Society of Human Resource Management filed a brief arguing that personnel decisions made by individual managers against the backdrop of a larger company-wide diversity policy are not inherently discriminatory.
Around the Web
The National Women’s Law Center argues that Wal-Mart is not too big to be held accountable for employment discrimination. At AAUW, Holly Kearl outlines the basics of why the Wal-Mart case matters. On the National Partnership for Women and Families (NPWF) blog, NPWF Director of Workplace Fairness Sarah Crawford stresses the importance of this case in the efforts to achieve fair pay. On Huffington Post, Martha Burk, director of the Corporate Accountability Project at the National Council of Women’s Organizations, provides some numbers on Wal-Mart’s gender bias.
Jennifer Clark is the Development Coordinator at the Institute for Women’s Policy Research.
Ariane Hegewisch is a study director at the Institute for Women’s Policy Research. Her most recent report is Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope.