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Judith L. Lichtman, Senior Advisor

From the desk of ... Judith L. Lichtman

The Pursuit of Justice is Not Over

June 20, 2011 | Workplace Fairness

Today, the Supreme Court ruled that the women of Wal-Mart cannot proceed as a group as they challenge the company's discriminatory pay and promotion practices. It was a disappointing day for the women involved in the case and for all of us who are fighting for fair pay and fair opportunities for advancement for America's women. But today's decision is not the end.

The good news is that the Court's decision was not about the merits of the women's charges, only whether or not they could continue with the case as one group or class. On that question, the Court decided that the women of Wal-Mart did not have enough in common to bring a class action for claims of discrimination. Incredibly, the Justices relied on the fact that Wal-Mart has a written policy prohibiting discrimination, paired with individual managers' discretion, to support its ruling. As all three women on the Court, led by Justice Ginsburg and joined by Justice Breyer, noted in dissent, the majority ignores the realities of how employment discrimination really plays out in the workplace. "Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes."

This setback means that the women of Wal-Mart will have to continue their pursuit of justice in smaller groups and through individual cases. After 10 years of fighting for their day in court, there is no doubt that many will continue to do so. Wal-Mart can now expect to deal with thousands of charges of discrimination nationwide.

These women have legitimate cases and Wal-Mart - as the nation's largest private employer - must be held accountable. There is clear evidence that the company paid women less than men in every job category and that managers hand-picked employees for promotions based on a "good old boys" network. That is unacceptable - and it is against the law.

What is just as clear is that this opinion underscores the serious need for a federal law that will help prevent and remedy pay discrimination against women in this country. America's families rely more than ever on women's incomes—which makes the need for fair pay all the more urgent.

Wal-Mart's actions are part of a larger pattern of discrimination in this country. Women are still paid, on average, only 77 cents for every dollar paid to men. We hold only 40 percent of management positions and one out of six corporate officer positions.

Part of the reason pay inequity is so widespread is because employers know that under existing laws they won't be held accountable for discrimination's true cost. And most victims of pay discrimination don't realize they're being underpaid. Many employers, like Wal-Mart, discourage or prohibit their employees from discussing their wages with co-workers.

Fortunately, the Paycheck Fairness Act - re-introduced in Congress on Equal Pay Day this year - would close the loopholes in existing laws that make it easier for employers to engage in pay discrimination, protect employees who discuss or inquire about pay, and strengthen the penalties for employers who choose to break the law. If the Paycheck Fairness Act had been in place 10 years ago, many women in the Wal-Mart case would have been protected from the discrimination that they are challenging today.

The pursuit of justice for the women of Wal-Mart and women facing discrimination around the country is far from over. The Wal-Mart women will continue to challenge the company's policies in the courts, and we will continue to call on Congress to pass the Paycheck Fairness Act and other measures to restore our civil rights protections.

Women need and deserve fair pay and fair opportunities for advancement. We will get there, in spite of today.


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