Supreme Court to Rule on Whether Wal-Mart Discrimination Suit is Class-Action

Robin Marty

In what could be a great boon for the retailer, the Supreme Court has announced it will hear Wal-Mart's appeal that the gender discrimination suit not be allowed as class-action.

It has been nearly a decade since allegations of sexual discrimination were filed against one of the country’s largest retailers, but today the Supreme Court has announced that they will in fact rule on whether the discrimination lawsuit can be heard as a class action lawsuit or not.

Via CNN:

The justices announced Monday they had accepted the Arkansas-based company’s appeal in a case of corporate versus worker rights, and will hold oral arguments next spring. A divided 6-5 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals earlier this year had allowed the combined, multiparty litigation to move ahead to one trial, where a verdict against the company could result in billions of dollars in damages.

At issue is whether as many as 1.6 million current and former Wal-Mart employees can band together in their claims of discrimination, which they say has occurred over the past decade, at least. The plaintiffs allege women were paid less than, and were given fewer opportunities for promotion than, their male counterparts. They seek back pay and punitive damages against the world’s largest retailer.

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The high court will decide only whether to handle the original lawsuit as a class action, instead of lower courts potentially being flooded with thousands of individual discrimination claims against the company. A potential ruling by the justices against Wal-Mart permitting class action could put severe pressure on the company to settle the claims out of court.

As lawyer Jessica Pieklo wrote when the case was first appealed to the Supreme Court:

Wal-Mart’s petition does not challenge the substance of the discrimination claims, but rather seeks to have the class certification aside–a smart move that could set plaintiffs efforts back years if granted.  If denied Wal-Mart may find a whole new interest in settling these claims rather than trying them.

This case has been in the pipeline for ages now.  It was originally filed in 2001 by six women in federal court in San Francisco, and Wal-Mart has vigorously battled against the claim every step of the way. It’s a pretty safe assumption that Wal-Mart will seek review of the decision by the United States Supreme Court.  Given the Federalist bend of Chief Justice John Roberts, it would be another safe assumption that this is a case he’d be eager to hear.  The Roberts Court has shown an itch to attack threshold procedural questions like jurisdiction and class-action status as a way to limit the availability of federal courts to plaintiffs.

Blocking the ability to file class action lawsuits wouldn’t just limit the prosecution and punishment of companies who discriminate, but even the awareness that the practice is occurring, which is how many find out about discrimination in the first place.  According to Nancy Folbre at the New York Times:

One important way that workers find out about discrimination is through the reporting of successful class-action lawsuits. Many of these suits, however, end with confidential settlements that discourage publicity. Prof. Minna Kotkin of Brooklyn Law School argues that “secret settlements have created an information vacuum.”

Even cases that go to trial and result in major victories for plaintiffs, like the recent case against Novartis, the pharmaceuticals giant, don’t seem to get much publicity.

Folbre gives an excellent rundown of how the company-wide discrimination worked, via a boy’s club buddy system that nearly barred women from any chance of advancement.

According to expert testimony by William T. Bielby, a sociologist who analyzed company documents, Wal-Mart managers were not required to post information about new job openings or training opportunities. They could simply “tap the shoulder” of workers they liked the best and invite them to apply.

Most managers were men, and the evidence seems to suggest that they preferred to tap other men on the shoulder. More than two-thirds of Wal-Mart’s hourly employees at the time were women, but women represented fewer than one-third of lower-level managers and only 15 percent of store managers.

The case will be precedent-setting, not just for potential discrimination suits yet to come, but in relation to whether or not corporations have any legal responsibility over how individual franchises are run, even if the franchisees are in fact instituting a policy handed down by corporate itself.  But more interesting will be how the newest members of the Supreme Court rule on the matter, as both Justices Sotomayor and Kagan have experience in the matter. 

The New York Times writes in an additional article:

In their briefs in the case, Wal-Mart Stores v. Dukes, No. 10-277, the two sides cited the work of the court’s newest justices to the court. Wal-Mart twice relied on an influential unsigned law review note that Justice Elena Kagan wrote as a student at Harvard Law School on class certification in employment discrimination suits.

The plaintiffs responded by noting that Justice Sonia Sotomayor had voted to certify an even larger class action in an antitrust case involving eight million merchants when she was a judge on the United States Court of Appeals for the Second Circuit, in New York. Wal-Mart was a plaintiff in that class action.

Judge Sotomayor acknowledged that the very fact of class certification provided the plaintiffs with “leverage in settlement negotiations.”

“While the sheer size of the class in this case may enhance this effect,” she added, “this alone cannot defeat an otherwise proper certification.”

The case will be one of the most highly watched cases on the 2011 docket. It is will also be vivid reminder of the difficulties of ensuring equal pay for equal work that has stalled in the opposition of the Lily Ledbetter Paycheck Fairness Act, which was once again voted down in Congress.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

News Law and Policy

GOP Pushes LGBTQ Discrimination on Pulse Shooting Anniversary

Christine Grimaldi

A business or other organization drawing on taxpayer money and acting on those views, for instance, could deny child care, health care, and retirement benefits to an employee with a same-sex spouse without penalty from the federal government.

On the one-month anniversary of the massacre at the Pulse nightclub in Orlando, Florida, congressional Republicans pushed legislation that would shield individuals and groups that receive federal funds from penalties for discriminating against LGBTQ people.

A U.S. House of Representatives committee Tuesday debated the First Amendment Defense Act (FADA). Republicans have proposed multiple official and unofficial versions of FADA. All of them share a common purpose: Protect recipients of federal dollars that act on their “religious belief or moral conviction” against same-sex marriage or sex outside of marriage. Conservative groups such as the Heritage Foundation have praised FADA for building on broader Religious Freedom Restoration Act (RFRA) and other so-called religious liberty bills. (The legal website Justia breaks down the similarities and differences between RFRA and FADA.)

A business or other organization drawing on taxpayer money and acting on those views, for instance, could deny child care, health care, and retirement benefits to an employee with a same-sex spouse without penalty from the federal government, Democratic lawmakers opposing the bill said at the House Oversight and Government Reform Committee hearing. Employers could even refuse to provide time off under the Family and Medical Leave Act to care for an ill same-sex spouse.

That possibility troubled Jim Obergefell, the plaintiff in the landmark U.S. Supreme Court ruling on marriage equality. “This is not the kind of dignity and respect that the Supreme Court spoke so eloquently of in the decision granting the freedom to marry nationwide last June,” Obergefell told lawmakers.

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If enacted into law, FADA would also empower those with religious objections to be able to turn away LGBTQ people seeking services such as housing or medical care, experts testified before the committee.

Rep. Elijah Cummings (D-MD), the committee’s ranking member, fellow Democrats, and 80 civil rights and other groups petitioned Republicans to reschedule the FADA hearing, to no avail. More than 3,000 faith and clergy last year leaders voiced their opposition to FADA, he said.

“To say that this hearing is ill-timed is the understatement of the year,” Cummings said as he opened the hearing. That evening, House Democrats and the Congressional LGBT Equality Caucus gathered on the capitol steps for a vigil honoring the 49 victims of the Pulse shooting.

Rep. Raúl Labrador (R-IN) introduced the House’s bill (H.R. 2802), and Sen. Mike Lee (R-UT), the identical Senate counterpart (S. 1598). FADA has little to no chance of becoming law this year given President Barack Obama’s increasingly outspoken support for the LGBTQ community, indicating that he would veto any such legislation that somehow managed to advance in the House and Senate. A Mississippi judge recently blocked a similar state law from taking effect.

House Democratic aides provided Rewire with a revised FADA draft that they said Labrador has been circulating since last Friday that goes even further.

Lawmakers and witnesses at the hearing discussed the revised draft, which they said would apply to all businesses—both for-profit and nonprofit. This draft permits discrimination against same-sex and opposite-sex couples except by federal employees acting in the scope of their employment and for-profit federal contractors acting in the scope of a government contract, they added.

David Stacy, the government affairs director for the Human Rights Campaign, the prominent LGBTQ civil rights group, described these exemptions, and others for hospital visitations and medical decisions, as concessions that don’t mask FADA’s underlying discrimination.

“That all being said, the bill has really significant problems that remain,” he said in an interview.

Columbia School of Law professor Katherine Franke underscored that FADA would go beyond permitting discrimination against LGBTQ individuals and include unmarried parents and heterosexual couples.

“A broad reading of this bill would create a safe harbor from penalties associated with an enormous range of behavior that is otherwise illegal or prohibited by federal law and regulation,” Franke said in her testimony before the committee.

Under FADA, she said, the federal government could not deny Title X funding to a health-care clinic that provides family planning services only to patients that can furnish a marriage license. Nor could the government deny a Violence Against Women Act grant to a domestic violence shelter that required residents to pledge their opposition to marriage equality or extramarital relations, she added.

Schools that accept federal funds could fire teachers suspected of having premarital sex, the Huffington Post reported. NARAL Pro-Choice America highlighted the “legislation that lets your boss fire you for having premarital sex (yes, really)” in a scathing memo sent to reporters.

“Are you a single mother whose landlord doesn’t believe in sex outside of marriage? Under this law, your landlord could refuse to house you,” the memo said. “Do you work at a company where your boss doesn’t believe in premarital sex? Under this law, if your boss found out about your private life, they could fire you.”