(PAI) The Obama administration, represented by the federal Equal Employment Opportunity Commission, has weighed in on the side of the female workers who filed a class action sexual discrimination suit against Wal-Mart eight years ago. The government was silent until now, but EEOC attorneys who sided with the women are career personnel, not GOP Bush government appointees.
In a friend-of-the-court brief sent March 19 to the 9th U.S. Circuit Court of Appeals in San Francisco before that 11-judge court’s March 24 trial on the case, the agency supported a lower-court ruling on how back pay could be determined, should the lawsuit ever come to trial. Six women filed the suit against the monster retailer, and asked that it cover all women presently or formerly working for Wal-Mart.
Wal-Mart has tried to throw out the case twice, but lost both in the lower court and before a smaller panel of appellate court judges. This trial was before the full court.
“To achieve Title VII’s key goal of providing make-whole relief to victims of discrimination, this court and others have held that class-wide relief may be appropriate where, because of factors such as the passage of time and the employer’s own subjective employment practices, any attempt to reconstruct individual employment histories more precisely would drag the court into a quagmire of hypothetical judgments,” the EEOC told the judges in its brief.
Title VII is the sweeping enforcement section of the Civil Rights Act, which outlaws discrimination based on race, sex, religion or other factors. Pre-trial investigation showed Wal-Mart, unlike its retail competitors, consistently paid female workers less than it paid men in the same jobs with the same experience, and discriminated against women in promotion as well.
EEOC said any court’s power to determine back pay for a class of workers without individual hearings and trials on each case is “an important tool for ensuring individuals injured by systemic discrimination may obtain redress for those injuries.” That principle holds not just for class action cases the agency brings, but for private cases, too, EEOC said. “We therefore urge the court to ensure that nothing in its decision restricts the availability of these relief procedures in Title VII pattern-or-practice cases,” its brief added. Its attorney called Wal-Mart’s position “nonsensical.” The lawyers for the women in the case, Dukes et al vs. Wal-Mart, told the judges that “following two years of discovery, including review of over a million pages of documents — including Wal-Mart’s employee compensation data — depositions of both (continued) Press Associates, Inc. (PAI) — 3/27/2009 (Wal-Mart case, cont. -2) Wal-Mart executives and our clients, testimony of statisticians, a labor economist and a sociologist, the (federal) District Court certified the class, finding that common questions of fact and law existed.
“The court also found there was significant evidence of corporate-wide practices and policies of excessive subjectivity and gender stereotyping in personnel decisions. The class was certified for injunctive relief and punitive damages,” they pointed out.
Wal-Mart stuck to saying it wanted each individual female worker to sue it for discrimination, and prove her case. It was joined by business lobbies, including the Chamber of Commerce, along with the Pacific Legal Foundation, a Radical Right organization well-known for suing for corporate property rights.
“When broad social justice goals are embedded in the law, then courts must redress these claims,” the womens’ lawyers replied. “Title VII was enacted with the stated goal of eliminating the societal norm which relegated women and men of color to second-class status in employment, excluding them from many jobs, paying them lower wages and subjecting them to the least-desirable working conditions.
“Class actions were established as a vehicle for addressing systemic harms, and Wal-Mart and many other large businesses seek to convince the courts that justice is better served on an individual case by case basis. But given the astronomical disparity in resources between Wal-Mart and the underpaid female class members, this case presents the textbook example of why class actions have been — and still are — the only viable means of redressing systemic discrimination,” the lawyers declared.
“A Wal-Mart employee has a better chance of winning the Lotto than garnering the resources to sue one of the largest profit-making enterprises in the world. Wal-Mart knows if it can defeat class certification, it diminishes the likelihood it will be held accountable for its wide-spread discriminatory practices,” they concluded.