Labor tries new tactic after defeat at Walmart

WASHINGTON – Last year’s U.S. Supreme Court ruling throwing out the mammoth class action sexual pay discrimination lawsuit against the monster retailer Walmart has prompted civil rights groups and sympathetic lawmakers to draft legislation creating an alternative route for workers to get justice in such cases.

The measure, by Rep. Rosa DeLauro, D-Conn. a veteran campaigner for workers’ rights and women’s’ rights, and Sen. Al Franken, D-Minn., along with 20 other senators and 20 other representatives, leaves the High Court’s Walmart ruling in place, but sets up a way around it, says Jane Dolkart, the law professor who worked with them and the Lawyers Committee for Civil Rights Under Law to craft it.

And the new proposal also lowers the high bar the court’s five-man majority set for workers seeking to get damages once pay discrimination is proven, Dolkart told Press Associates Union News Service. The justices said even if a class-action suit wins, the workers would then have to sue one by one for damages. The proposal would permit lower courts to calculate lump sum damages in discrimination cases, and then split them up.

The key barrier the court erected is that, in so many words, it made Walmart – and other companies – too big to sue as a class, forcing workers who suffer pay and promotions discrimination to bring cases individually. Last year’s Walmart ruling also affected class action cases against Costco and Lockheed Martin, among others.

“Forcing workers to sue one by one effectively shields corporate America from having to pay out any money,” Dolkart says. “And money” – potential damages of millions – “is the incentive for corporations to do the right thing in the first place.”

But with the court having tossed class actions, “We set up an alternative, called a ‘group action.’ In place of the ‘commonality of interest,’ that class action suits require” for all class members involved – and that the majority said wasn’t there in the decade-long Walmart case – “you can challenge any employment practice that affects a substantial number of persons within a group” of workers.

“That includes subjective practices” by local supervisors in employment decisions which impact on a group of workers, she said. Another Walmart practice the High Court majority upheld was its defense that it left hiring, promotion and pay decisions to local supervisors.

Walmart also used its written anti-discrimination policy as a defense. The new bill, the Equal Employment Opportunity Restoration Act, says existence of a written anti-discrimination policy is no defense. The employer wins only if it can prove it enforces its policy “consistently and effectively,” the new measure adds.

The court’s majority – over the vocal and pointed dissent of Justice Ruth Bader Ginsburg, who questioned what world her colleagues were living in – “set the standard so high” that class action suits for pay discrimination by sex, race or other factors became virtually impossible, Dolkart said. The court majority even threw out the use of such things as statistical sampling to determine whether discrimination occurred.

The new proposal restores that, too.

The DeLauro-Franken bill is not likely to move in this Congress, given its jammed agenda and lack of working time before the November election. But its unveiling sets the stage for hearings and debate down the road. That’s a familiar journey for DeLauro in particular, a wily and veteran nose-cutter who has been toiling for more than a decade to enact other legislation outlawing pay discrimination on the job.

Photo: During Oct. 2011, an attorney speaks at a news conference as a group of former and current female Walmart workers listen. The California workers alleged that Walmart discriminates against women.   Jeff Chiu/AP


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.