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Mar 282011

Tomorrow the Supreme Court will consider whether nearly 1.5 million women can join together in an employment discrimination lawsuit against Wal-Mart. As noted by the New York Times, the oral arguments may center around an analysis from a sociologist.

In the original case, Dukes v. Wal-Mart, plaintiffs allege that they were unfairly treated with respect to pay and promotions because of their gender. The Supreme Court won’t be considering whether gender discrimination occurred; they’ll be considering whether the proposed class of hundreds of thousands of women have enough in common to join together in a single lawsuit.

Aside from the anecdotal evidence of discrimination and statistical analyses offered, the plaintiffs must identify the common policy or practice that led to the discrimination. William Bielby, a sociologist from the University of Illinois at Chicago, contends that the common policy leading to discrimination stems from two aspects of Wal-Mart’s corporate culture: centralized personnel policy and subjective decisions by managers in the field.

Bielby opined in the lower court that all of the class members were treated unfairly in pay and promotions even though he did not review the individual personnel decisions. In his report to the Court, Dr. Bielby stated “[s]ubjective and discretionary features of the company’s personnel policy and practice made decisions about compensation and promotion vulnerable to gender bias.” He also opined that there were “significant deficiencies in the company’s policies and practices for identifying and eliminating barriers to equal employment opportunity at Walmart.”

Dr. Bielby’s opinion was based on “social framework analysis.” Social framework analysis gives courts a general framework drawn from social science. Dr. Bielby told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” In describing social framework analysis, Dr. Bielby cited to the work of two law professors at the University of Virginia: Professors Laurens Walker and John Monahan. Walker and Monahan contend that in his analysis of the Wal-Mart case, Dr. Bielby has misused social framework analysis. Professor Walker stated, “[T]his is a case about a missing link. You can make the link, if you do the research. But what’s holding this class together is — nothing.”

In their 2008 article published in The Virginia Law Review, Walker, Monahan and Gregory Mitchell state that “Dr. Bielby’s report provides no verifiable method for measuring or testing any of the variables that were crucial to his conclusions.”

According to a 2009 article by Professors Melissa Hart and Paul Secunda, published in The Fordham Law Review, the debate surrounding Dr. Bielby’s testimony focuses on the existence of unconscious bias, the continued seriousness of discrimination as a force in the modern workplace and the appropriate reach of legal remedies to challenge discrimination. Professors Hart and Secunda stated that Professors Walker and Monahan “seem to suggest that their coining of this phrase gives them a unique right to define the terms and content of expert testimony offered in employment discrimination cases.”

The Supreme Court’s decision on the permissibility of social framework evidence in determining class certification issues has widespread implications for large employers. If this kind of evidence is permitted, large employers may face increased exposure to class-action claims. According to Professor Walker, “If [Dr. Bielby's declaration] is enough, this opinion is perfectly transportable.” Lawyers for Costco, who submitted a brief supporting Wal-Mart, argued that certifying a class in the Wal-Mart case would mean that “employers with decentralized business models will have few avenues available to escape a Bielby-enabled certification order, other than resorting to surreptitious quotas.”

We’ll be following the oral arguments tomorrow, and keep you updated on any developments. No final decision by the Supreme Court is expected until June.

Mar 232011
The Proactive Employer Podcast

When your employees verbally complain, you better listen!

Yesterday, the Supreme Court of the United States decided that oral complaints about wage and hour violations are protected under the anti-retaliation provisions of the Fair Labor Standards Act. The facts of Kasten v. Saint-Gobain Performance Plastics Corp, as summarized by Eric Meyer writing at The Employer Handbook, are as follows.

Kasten claims that he orally complained that Saint-Gobain located its timeclocks such that workers were not receiving credit for the time they spent putting on and taking off their work clothes – contrary to the FLSA’s requirements. Kasten says that Saint-Gobain discharged him because he orally complained to Saint-Gobain officials about the timeclocks.

The Supreme Court determined that Kasten’s oral complaint was protected by the anti-retaliation provision of the FLSA (read the decision here).

The decision in Kasten v. Saint-Gobain Performance Plastics Corp. is the latest of three opinions so far this term dealing with anti-retaliation provisions in employment discrimination law. The other two opinions – Thompson v. North American Stainless, LP and Staub v. Proctor Hospital dealt with the anti-retaliation provisions of Title VII and USERRA, respectively. In this week’s installment of The Proactive Employer Podcast, we’ll be discussing what the decisions in these three cases mean for employers, and highlight some of the key retaliation issues these three cases raise.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website and via iTunes.


Jan 282011
The Proactive Employer Podcast

Retaliation claims are the most frequently filed claims at the EEOC. A recent Supreme Court decision in Thompson v. American Stainless is likely to broaden the scope of people who may raise a retaliation claim.  Anyone within the “zone of interests” of the original victim of discrimination may now have a claim — even if they did nothing to participate in the original claim.

In this installment of The Proactive Employer Podcast, we’ll be talking with Philip Miles about this important court decision, and what employers need to know about retaliation claims. The installment will air on BlogTalkRadio at 8:30 AM this Friday and will be available for on-demand listening at The Proactive Employer website and via iTunes.

Sep 092010
walmart slide

I’m sure you’ve heard about the Dukes v. Wal-Mart Stores gender discrimination case. What you may not know is that the proposed class consists of approximately 1.6 million women, and has the potential to be the largest class-action suit in U.S. history.

In April, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled 6-5 that the lawsuit could proceed as a jumbo class action — the fourth judicial decision upholding a class action. Wal-Mart has asked the Supreme Court to review the case. The main issue before the Supreme Court will not be whether any discrimination occurred, but whether more than a million people can even make this joint claim through a class-action lawsuit.

Robin S. Conrad, executive vice president of the National Chamber Litigation Center, an agency of the U.S. Chamber of Commerce, said “[t]his is the big one that will set the standards for all other class actions.” In a legal brief filed on behalf of Wal-Mart, Theodore Boutros stated:

“The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined – making it the largest employment class action in history by several orders of magnitude.”

Here’s something to help you get some perspective on the size of the proposed class.

While the proposed class of 1.6 million pales in comparison to Ashton Kutcher’s 5.7 million Twitter followers, it’s still a lot of people. There’s a lot riding on this case - if the Supreme Court allows the case to go forward as a class action, legal experts estimate that Wal-Mart could pay $1 billion or more in damages. Aside from Wal-Mart’s exposure, the Supreme Court’s decision in this matter has implications for all future class action litigation.

Jun 032010

The world is indeed a strange place. We’ve heard about Price Waterhouse v. Hopkins, a case in which a female accountant claimed she was discriminated against for failing to conform to gender stereotyping. namely for not being “feminine enough”. In 1989 the U.S. Supreme Court ruled that Price Waterhouse discriminated against Hopkins for failing to conform to expectations of how women should behave. But Debrahlee Lorenzana is on the opposite side of this issue, claiming that she was terminated from her position with Citibank for being too feminine and “too hot”.

Ms. Lorenzana claims that her supevisors told her they couldn’t concentrate on their work because her appearance was too distracting. She alleges that she was forbidden to wear turtlenecks, pencil skirts, fitted business suits, and classic high-heeled business shoes. As summarized in her lawsuit, Ms. Lorenzana was told that “as a result of the shape of her figure, such clothes were purportedly ‘too distracting’ for her male colleagues and supervisors to bear.”

Ms. Lorenzana’s attorney, Jack Tuckner, was quoted in a Village Voice article : “It’s like saying that we can’t think anymore ’cause our penises are standing up – and we cannot think about you except in a sexual manner – and we can’t look at you without wanting to have sexual intercourse with you. And it’s up to you, gorgeous woman, to lessen your appeal so that we can focus!”

Ms. Lorenzana is claiming sexual harassment and retailation. According to the terms of her employment with Citibank, the case will be arbitrated. Under New York City’s Human Rights Law, Ms. Lorenzana will need to demonstrate that “it’s more likely than not” that Citibank created a discriminatory and hostile work environment based on her gender, that she was treated differently because of her gender, and that she was terminated in close proximity to her complaints of being treated differently. Citibank also has a burden of proof; it must demonstrate that it did not create a hostile work environment based on her gender and that she was fired for legitimate, non-discriminatory reasons.

This case is quite different from the majority of sexual harassment cases. Typically, the claim is that a woman was pressured into looking more attractive. In Ms. Lorenzana’s case, it’s the exact opposite.