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Sarah Crawford, Director of Workplace Fairness

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Too Big to Be Held Accountable?

March 1, 2011 | Workplace Fairness

The Women of Wal-Mart Deserve Their Day in Court to Challenge Unfair Pay

Cross-posted from the American Constitution Society.

Too often, the interests of workers and businesses are assumed to be at odds. According to a friend-of-the-court brief filed today, in the largest employment discrimination case in our nation's history, this doesn't have to be true.

The National Partnership for Women & Families joined with women's business groups to file the brief, which calls on the U.S. Supreme Court to consider the benefits of fair, inclusive policies for businesses, and the importance of class action lawsuits in reforming discriminatory practices, as it considers whether the case of Dukes v. Wal-Mart can continue as a class action.

Dukes v. Wal-Mart has been making headlines since it began. In 2000, Betty Dukes, a female greeter at a Wal-Mart store in California suffered an unfair pay cut and demotion. Soon after, she learned that female Wal-Mart employees across the country had experienced similar injustices. In 2001, Dukes and 1.6 million women like her, who had or currently were working for Wal-Mart, sought to hold the company responsible for the company's discriminatory pay and promotion practices.

Despite evidence that the practices in question were widespread and systemic, Wal-Mart has tried to avoid liability in the case by claiming that it is too big to handle. The argument has failed in the lower courts, but the company has appealed the issue to the Supreme Court. It will hear argument on whether or not the women should be able to proceed as one class on March 29th.

The future of the case currently rests on the claim by Wal-Mart — the nation's largest private sector employer — that its employees cannot collectively charge it with wrongdoing because the group is too large. Can a company really be too big to be held accountable when it breaks the law? According to the brief filed on behalf of the U.S. Women's Chamber of Commerce, California Women Lawyers and the National Partnership, the answer is no—and, notably, fair policies and the reforms achieved through class actions are not necessarily bad for business.

As the brief details, compelling research demonstrates the benefits of fair pay and promotion policies for businesses. By paying their workers fairly, employers boost employee retention and productivity while enhancing their own image. Contrary to common objections by employers, fairness in the workplace can actually boost business bottom lines. And of course, discrimination is against the law. Therefore, by following the law and treating their workers fairly, businesses protect themselves against costly litigation and liability.

While many employers have reaped the rewards associated with inclusive policies, not all businesses have recognized these advantages. On average, women are still paid only 77 cents for every dollar paid to men. And there are still significant disparities across industries. Over the course of their lives, women lose tens of thousands of dollars in income and savings. At the same time, six out of ten mothers act as primary or co-breadwinners for their families. It is clear that discrimination in today's workplace has a ripple effect on working women, their families and the national economy.

That is why class actions are so important. They provide a critical tool for individuals to challenge systemic discrimination. Workers may not have the time or money to pursue individual cases, they may fear retaliation, and often, they may not know that their rights have been violated. This is particularly true in cases of pay discrimination because employees are often unaware of how much their co-workers are being paid, and some employers go so far as to prohibit discussions of pay. Class actions provide an efficient way for workers, business and the courts to address serious issues that would otherwise go unremedied. They can also result in the type of systemic reforms needed to secure fair, discrimination-free workplaces.

In today's brief, the National Partnership and women's business groups urge the Supreme Court to recognize the intended purpose of our nation's guarantee of equal employment opportunity and the vital role of class actions. The women of Wal-Mart deserve their day in court to stand together to challenge unlawful discrimination.

Betty Dukes's story is the story of millions of women throughout this country who face workplace discrimination. On April 12th, just a few weeks after the court hears arguments in the case, the nation will recognize Equal Pay Day. The women of Wal-Mart have spent 10 years fighting for fair pay, and this case will determine the future of that fight. With critical rights hanging in the balance, Wal-Mart's attempt to divide and conquer must be stopped. The company is not too big to be held accountable for its actions.


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