Outten & Golden: Empowering Employees in the Workplace

Archive for June, 2004

Wal-Mart Ruling Creates a Media Firestorm, and Systemic Change to Come

Tuesday, June 29th, 2004

Unless you’ve been holed up under a rock for the past week, you have probably heard by now about the ruling allowing the most massive sex discrimination class action case ever to go forward against Wal-Mart Stores. And at this point, there probably isn’t much left that hasn’t been said about it already, because such a key ruling against the world’s largest employer is so newsworthy that every other article that appeared in the past week seems to be about Wal-Mart. So in case you missed the articles, because you were at the NELA Convention in San Antonio, on summer vacation, or too busy to keep up, we have compiled a comprehensive list of the articles right here.

If you’re one of the very few that hasn’t yet heard, here’s what happened, in a nutshell: On Tuesday, June 22, U.S. District Judge Martin Jenkins of the Northern District of California ruled that approximately 1.6 million current and former female employees could sue their employer, Wal-Mart, as part of a class action, rather than individually. The suit includes virtually all women who have worked at Wal-Mart since 1998, and is designed to address allegations that Wal-Mart set up a system that frequently pays its female workers less than their male counterparts for comparable jobs and bypasses them for key promotions. (See Associated Press article.)

Based on the evidence already put forward by the attorneys for the plaintiff class, Judge Jenkins found that the “plaintiffs present largely uncontested descriptive statistics which show that women working at Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time, that women take longer to enter management positions, and that the higher one looks in the organization the lower the percentage of women.” While Wal-Mart is certain to appeal this ruling, and the female employees are unlikely to see any relief for years to come, the decision is nonetheless extremely significant, both for the size of the class certified, and for the ripple effect the decision against an employer the size of Wal-Mart is likely to have for years to come.

A case of this size and scope is not allowed to proceed without a tremendous amount of hard work by all of the attorneys involved in the case, so congratulations are definitely in order! (view Attorney Profiles).

Here is a compilation of many of the recent articles on the decision:

Associated Press (law.com): Class Action Status Granted in Wal-Mart Discrimination Case

Associated Press (Arizona Republic): Wal-Mart sex-bias case may reshape retail world

Atlanta Journal-Constitution: Author had eyes opened at Wal-Mart job

Baltimore Sun: Sex-bias suit is reminder of salary gap

Business Week: What a Wal-Mart Deal Might Look Like

Chicago Tribune: 1.5 million in Wal-Mart suit

CNBC: Wal-Mart on trial

Contra Costa Times (registration required): Wal-Mart sex bias suit given class-action status

Underdog affinity fires Seligman’s legal career (Profile of attorney Brad Seligman)

Daytona Beach News-Journal: Fight for equity: American women still lose in the workplace

Forbes.com: Wal-Mart And Sex Discrimination By The Numbers

Lawrence Journal-World (Newsday): Wal-Mart battling negative publicity

Los Angeles Times: Wal-Mart Lawsuit Could Pave Way for Other Massive Job-Bias Claims

Minneapolis Star-Tribune: Editorial: Wal-Mart in court/Ruling to bring useful scrutiny

New York Times: Wal-Mart Sex-Bias Suit Given Class-Action Status

Attention Wal-Mart Plaintiffs: Hurdles Ahead

Social Issues Tug Wal-Mart in Differing Directions

NPR (audio report): Landmark Wal-Mart Sex-Bias Suit Moves Forward

The Oregonian: Job equality doesn’t just happen, girls

Philadelphia Inquirer: Learning from suit against Wal-Mart

Richmond Times-Dispatch: 4 Va. women go public about suit

San Diego Union-Tribune: Wal-Mart sex-bias case could stir up talk, more lawsuits

San Francisco Chronicle: Wal-Mart faces huge sex discrimination suit

Time Magazine: Wal-Mart’s Gender Gap

USA Today: Wal-Mart in record sex bias suit

‘Rife with discrimination’

Women say Wal-Mart execs knew of sex bias

Washington Post: Wal-Mart Bias Case Moves Forward

Wal-Mart Suit May Force Wider Look at Pay Gap Between Sexes

Workday Minnesota: Working women applaud certification of Wal-Mart discrimination suit

Other Resources:

Wal-Mart Class Website

Judge Jenkins’ Order in Dukes v. Wal-Mart

Class Action Complaint in Dukes v. Wal-Mart

Press Release: Federal Judge Orders Wal-Mart Stores, Inc., the Nation’s Largest Private Employer, To Stand Trial for Company-Wide Sex Discrimination

New Supreme Court Sexual Harassment Ruling: Splitting the Baby

Wednesday, June 16th, 2004

Almost lost in the flurry of cases released by the U.S. Supreme Court earlier this week was the Court’s decision in Pennsylvania State Police v. Suders, involving the liability of an employer when an employee finds conditions so intolerable that she quits. Admittedly, this decision would have been hard-pressed in any event to compete with this Term’s most-watched case, Elk Grove v. Newdow, determining whether the words “under God” would be stricken from schoolchildrens’ recital of the Pledge of Allegiance. However, Suders is unlikely to ever be considered all that noteworthy in its own right, rather than a middle-of-the-road logical extension of this Supreme Court’s previous sexual harasment rulings. Both employees and employers can claim victory after reading this Solomonic “split the baby” decision.

Nancy Drew Suders had had enough. She had been hired in March 1998 as a telecommunications operator by the Pennsylvania State Police (PSP), which plunged her into an environment where she was constantly barraged by sexual comments and lewd gestures. Particularly noteworthy was Sgt. Easton, who would talk about having sex with animals and how young girls should be trained to perform oral sex. Corp. Baker was no better–he grabbed his crotch and yelled “Suck it!” five to ten times a night–his rendition of a move made popular by a World Wrestling Entertainment star. (See Philadelphia Daily News article.) Corp. Prendergast just made fun of Suders, telling her that the “village idiot could do her job.” She hoped that passing a computer skills exam would entitle her to a promotion that would get her out of the barracks where she worked, away from her extremely crude coworkers where the atmosphere was “more like ‘Animal House’ than a police station.” However, she was told that she had failed the exam on several occasions, so that transferring out wasn’t an option.

In June 1998, she happened upon copies of her exams in the office, and they appeared never to have been graded, meaning that it wasn’t necessarily true that she had failed several times. She took them, so that she would have proof of the PSP’s discrimination. When Suder’s supervisors discovered that the exams were missing, they hatched a plan to catch the “thief,” dusting the drawer where they had been stored with powder that turns blue when touched. Suder went to return the exams, ended up with blue powder on her hands, and was promptly arrested for theft. When they started to question Suders, she asked to be allowed to submit her resignation letter (which she had already prepared.) The PSP initially refused to release her, and insisted on continuing her interrogation and reading Suders her Miranda rights, but finally let her resign and leave. She was never formally charged with theft.

After her tumultuous resignation, Suders filed a lawsuit against the PSP for sexual harassment and constructive discharge, which means she claimed that the circumstances of her resignation were legally equivalent to being fired by the PSP. She lost in front of the federal district court, but won before the 3rd Circuit Court of Appeals. The key issue, which the Supreme Court was ultimately required to resolve, was whether a constructive discharge, where the plaintiff resigns under circumstances “so intolerable that a reasonable person in the same position would have felt compelled to resign,” is to be considered a “tangible employment action.”

The Supreme Court had previously ruled, in the 1998 cases of Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth that for an employer to be strictly liable (i.e., automatically liable without any defenses) for a supervisor’s harassment, there had to be a “tangible employment action,” (such as discharge, demotion, or undesirable reassignment). If there wasn’t a tangible employment action, then the employer could raise two defenses: 1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

In Suder’s case, the PSP argued that there was no tangible employment action, since they never fired her and she resigned on her own, and that she didn’t complain about harassment prior to her resignation, so the PSP was never given an opportunity to take any corrective action. This persuaded the trial court to throw out Suder’s case. However, the 3rd Circuit on appeal had ruled that a termination, whether constructive or actual, constituted a tangible employment action, so the PSP did not get to raise the defense of Suder’s failure to complain.

A complete win for employees would have been a ruling similar to the 3rd Circuit’s opinion which would make a constructive discharge fully equal to a termination initiated by the employer, which would be considered a tangible employment action preventing the employer from raising any of the Ellerth/Faragher defenses. A complete win for employers would have been a ruling that under only extremely limited or no circumstances (or none at all) does a constructive discharge count as a tangible employment action, allowing employers to raise the defenses in every case where an employee quits rather than taking the harassment one more second. The Supreme Court’s ruling is a careful balance between those two extremes, with something to love for both sides. In that way, Suders is quite similar to Faragher and Ellerth, which themselves sought balance between employee and employer by creating certain strict liability situations favoring the employee, and also creating situations where the availability of defenses generally favors the employer.

The opinion was written by Justice Ruth Bader Ginsburg, and joined by all justices except for Justice Clarence Thomas, who wrote his own dissent (surprisingly not joined by his ideological partner on the Court, Justice Antonin Scalia). The Court’s holding was relatively straightforward:

We conclude that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s official act precipitates the constructive discharge; absent such a “tangible employment action,” however, the defense is available to the employer whose supervisors are charged with harassment.

This ruling essentially builds a new branch on the tree built by Faragher and Ellerth, most likely to be referred to as the “last straw.” Was the “last straw” prompting the resignation an official act by a supervisor, making the company liable? Or was it co-worker conduct or unofficial supervisory conduct, permitting the company to raise its defenses?

Given how much emphasis the Faragher and Ellerth rulings placed on ensuring that companies were punished only for the acts of supervisors and/or those with significant authority over the harassed employees, whether it was the harassment itself, or by failing to act when learning about the harassment of others, this ruling continues that trend. An employee who quits without supervisor involvement, either in the harassment itself or any corrective efforts, will still face an extreme uphill battle before the courts. However, given that these cases are extremely fact-specific, the Suders ruling provides additional fact-finding avenues (such as were the working conditions so intolerable that a reasonable person would have felt compelled to resign?). Judges are supposed to leave such fact-finding to a jury (but do so far too little.) Suders’ case has been sent back to the lower court for further fact finding, and as Suders herself acknowledges: “Justice delayed is justice denied. It’s taken this a long time to get to this point. And the battle’s still not over. It’s just begun.” (See Philadelphia Daily News article.)

Suders definitely belongs in the “refinement of existing law” category when compared to groundbreaking legal opinions such as Ellerth and Faragher. However, it provides further clarity in a hotly-contested area of the law, continues a moderate balancing approach between employee and employer, and may prove quite helpful to employees under severe harassment who quit without complaining, oblivious to their legal obligation to do so. These attributes, coupled with a healthy dose of “it could have been worse” cynicism, should lead employees and their advocates to consider this decision a generally positive outcome for workers.

Additional News Articles:

New York Times: Rules Are Set for Some Harassment Cases

Seattle Post-Intelligencer (Associated Press): Court clarifies sexual harassment ruling

Los Angeles Times: Supreme Court Clarifies Law on Sex Harassment

San Francisco Chronicle: Justices clarify sex harassment on the job

Indianapolis Star (Knight Ridder): Court delivers mixed message on harassment

Other Resources:

Oral Argument Transcript

(a must-read which makes the outcome seem all the more positive)

Brief of the Petitioner Pennsylvania State Police

Brief of the Respondent Nancy Drew Suders

Amicus Brief for the Lawyers Committee for Civil Rights Under Law

(joined by NELA and a number of other civil rights groups)

Workers of the U.S., Unite at the Polls!

Tuesday, June 8th, 2004

Those attending last week’s conference sponsored by the Campaign for America’s Future in Washington, DC (like myself) were treated to a steady stream of rousing speeches and policy advocacy from some of our nation’s leading politicians, strategists and activists. But the message which overwhelmingly stood out for me after two and a half jam-packed days of presentations: American workers, in order to protect their interests, must vote in November. Yet many don’t, and those who do often do so for reasons other than those issues critical to their livelihood. Those of us who wish to elevate the plight of the American worker and make workplace issues a key part of the policy debate have a great deal of work to accomplish before November 2004.

There are few things more central to the lives of Americans than work. It provides the means for subsistence, is often the primary source of intellectual stimulation and social interaction, and is often the primary determinant of where and how you and your family live. In the words of the recently departed President Reagan, if you ask the American worker whether he or she is better off than four years ago, what would that answer be?

Most workers are paying more for health care benefits, or no longer have health benefits at all, either as a result of losing their jobs or being employed in jobs where health benefits are not provided by the employer. Many workers are making less, working harder, and spending less time with their families, sometimes juggling multiple jobs where one full-time job was formerly sufficient. A number of workers who had hoped to now be enjoying retirement are still working, either because their pension security is not what they had hoped, health benefits are too expensive, or the decline in their personal investments left them short of what they needed to retire. And an unacceptably high number of workers still have no jobs at all, no immediate prospects of finding work in an economy where entire industries are disappearing or being shipped overseas, and few if any resources left after exhausting unemployment benefits.

When asked, Americans say that workplace issues are important to them. In polling results released by veteran strategist Stan Greenberg at the conference, 62 percent of those polled agreed with the following statement

They say the economy is doing well, but that’s not true for middle class and working people. Jobs are scarce, incomes stagnant, benefits are being cut, even while health care costs

skyrocket.

while only 35 percent agreed with this statement:

The economy is showing real signs of success – record growth, highest home ownership ever, new jobs and rising stock values and our economy is moving in the right direction.

And 75 percent strongly favor a candidate with the following proposal:

Our economy has lost 3 million jobs, and very few new jobs are being created in America. The old policies are failing before this fundamental challenge. While we accept the benefits of technology and global trade, we need a major national effort to create millions of jobs in America – at least ten million jobs in four years. My plan includes a new national investment in education and training and a major investment in our towns and communities, to modernize housing, parks, roads and highways, to create good jobs, including the hiring of new teachers, day-care workers and nurses.

Americans believe these things are important (as well they should), but will that be enough to motivate them to vote? And to base their vote on the respective candidates’ positions on jobs and economic issues? During the first day of last week’s conference (June 2), on the front page of the USA Today newpaper delivered to each hotel guest, was an article entitled “Churchgoing closely tied to voting patterns.” The key point of this article:

Where will you spend Sunday morning? Will you go to church or Home Depot? Sing in the choir or play golf? Answer that question and you’ve given the most reliable demographic clue about your vote on Election Day.

It is certainly not our intent to denigrate the importance or power of religious values. However, it is not necessary to secularize society to hope for a day where the quality of the five days or more that Americans spend at work weighs as heavily on their voting decisions than where they spend two hours on Sunday morning. While churches have demonstrated their abilities to organize the faithful, we cannot leave it only to labor unions to ensure that workers, especially those who are dissatisfied with their jobs and the economy, choose to vote this November. We all have an obligation to point out the paramount importance of work-related issues to those who would otherwise stay home, or base their votes on issues with a lesser impact on daily life.

Workplace Fairness is non-partisan, and as such, cannot tell you who you should vote for. But as Julian Bond told conference attendees so eloquently about his own organization, the NAACP, “non-partisan doesn’t mean non-critical.” Whether it’s the elimination of ergonomic standards, the decimation of overtime as we know it, or the appointment of judges hostile to workers’ interests, there is plenty of which to be critical. And plenty for those who care about making the workplace better, not just for corporate executives, to do between now and November 2, 2004.

Register to Vote

Getting Out the Vote (GOTV) Volunteer Information:

America Coming Together

Progress for America

AFL-CIO: Fight for America’s Working Families

More Speeches from the Conference

News Articles:

AlterNet: On the Spot: Progressives Flex Their Muscles and Their Fantasies

Wall Street Journal: Hopeful Liberals See Signs of a Political Comeback

Washington Post: ‘Take Back America’ Aims at Left

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