On Tuesday, a group of business women and leading women’s organizations filed a friend-of-the-court brief urging the U.S. Supreme Court to consider the business benefits of fair and inclusive policies, and the importance of class action lawsuits in reforming discriminatory practices. The brief offers a unique, business perspective in support of the plaintiffs in the upcoming Wal-Mart v. Dukes case.
At issue in Wal-Mart v. Dukes — the largest civil rights class action in the country’s history — is whether 1.6 million women who are current and former Wal-Mart employees can proceed as a class with their charges that the company engaged in discriminatory pay and promotion practices. Evidence indicates that the group faced widespread, systemic discrimination, but Wal-Mart claims that the case is too big for the courts to handle. The case has been put on hold and appealed to the Supreme Court until it decides whether or not the women can proceed as a class. Oral argument is scheduled for March 29, 2011.
The brief was filed on behalf of the U.S. Women’s Chamber of Commerce, the National Partnership for Women & Families and California Women Lawyers. It offers compelling research to demonstrate that fair compensation and promotion policies and practices benefit businesses in addition to workers. Fair pay boosts employee retention and productivity levels, and enhances corporate image. Meanwhile, businesses with high numbers of women managers and executives report above average profitability, market share and stock performance.
"The outcome of this case will have important consequences for the millions of women who work at Wal-Mart, but also women throughout the country who seek fair pay and equal opportunity for advancement," said Debra L. Ness, president of the National Partnership for Women & Families. "If victims of employment discrimination cannot band together as a class, countless instances of discrimination will go unaddressed and civil rights in this country will suffer tremendously, as will women and the families that rely on their incomes. This is a critically important case."
"Fairness in pay and promotions for women makes good business sense," said Margot Dorfman, CEO of the U.S. Women’s Chamber of Commerce. "Many businesses have adopted practices to ensure equal opportunity for women workers, including conducting internal pay equity studies and establishing objective criteria for pay and promotion decisions. Companies that are out of step with these industry standards do injustice to their female employees and ultimately hurt their own bottom line."
Still, not all businesses have caught on to the benefits of these practices. As discussed in the brief, women who work full-time, year-round are still paid only 77 cents for every dollar paid to men, and women hold only 40 percent of managerial positions. Six out of ten mothers act as primary or significant breadwinners, meaning both working families and the national economy are affected by employers that pay and promote women based on their sex.
"Although women have made great strides since the passage of Title VII of the Civil Rights Act of 1964, disparities and discrimination persist in many workplaces," the brief reads. "When recalcitrant employers fail to address systemic discrimination and ignore internal calls for reform, employees are more likely to turn to class litigation to obtain compliance with the law."
The brief describes how class action lawsuits are an effective and efficient way to address harms from employment discrimination that would otherwise go unremedied and to foster greater adoption of fair policies. "[C]lass actions have played a critical role in changing discriminatory business practices and promoting systemic reforms that comply with the law, industry standards and best practices," the brief reads. "These reforms have been proven to be carefully-tailored to the corporations’ own needs and infrastructures and to have long lasting effects."
The brief was co-authored by Sarah Crawford, director of workplace fairness at the National Partnership for Women & Families, and Katherine Kimpel, a partner with the law firm of Sanford Wittels & Heisler, LLP.
As Crawford explained, "When employers fail to follow the law and adopt fair pay policies — which would increase their bottom lines — workers must be able to take action as a class. Many workers cannot file individual lawsuits due to high costs, fear of retaliation, or simple lack of familiarity with anti-discrimination laws. Class actions provide an important mechanism to vindicate the rights of these workers, change employment policies and practices, and deter employers from future violations."
Kimpel served as lead counsel in Velez v. Novartis — the largest gender discrimination class action ever to go to trial. The case, the unanimous verdict on behalf of a class of nearly 6,000 women, the landmark verdict and settlement, the systemic reforms required by the settlement, and the court’s commentary after the settlement are all referenced in the brief as yet another example of how class actions can and do yield positive results.
"The Women’s Chamber of Commerce and other signatories demonstrate in the brief that Wal-Mart is not ‘too big’ to be held accountable," said Kimpel. "To the contrary, they show how very critical it is to have an independent check on those corporations that continue to flout our nation’s equal protection laws. In addition, the brave members of the business community speaking up here acknowledge that the carefully-tailored reforms that result from successful class actions not only make the companies in question better, they make the industry and economy as a whole better. If Wal-Mart is ‘too big’ for anything, it is too big to be given a pass on its unfair and detrimental employment practices."
The brief is available online at: www.nationalpartnership.org/walmart
The National Partnership for Women & Families is a nonprofit, nonpartisan advocacy group dedicated to promoting fairness in the workplace, access to quality health care and policies that help women and men meet the dual demands of work and family. More information is available at www.NationalPartnership.org.