On Capitol Hill

Wal-Mart, Class Action, and Rules Without Remedies

One of the daunting realities of modern life is that we as individuals are confronted by far more powerful corporations. When we want to buy a product, get a job, or seek to hold a large corporation accountable for its misdeeds, our negotiating power is limited by the fact that we are individuals. In contrast, due to its eternal life, its being composed of thousands or even millions of people, and its many state-granted benefits such as limited liability, corporations have consolidated vast resources that would be impossible for any living person attain.

So when that corporation does wrong against individuals – when it engages in a pattern of illegal discrimination, sells defective products, or cheats its customers – the victims often are powerless to hold the corporation accountable unless they, too, can consolidate their resources.

That’s why class actions are so important – and why Big Business keeps asking the Roberts Court to sabotage people’s ability to band together in class actions. Earlier this term, the Corporate Court undercut class actions against consumer fraud in AT&T v. Concepcion. And Monday, it struck out against women employees seeing to hold Wal-Mart accountable for illegal employment discrimination.

Wal-Mart is the nation’s largest private employer. Several women sued the corporate giant on behalf of themselves and similarly situated women around the country - anywhere from 500,000 to 1.5 million employees. To sue as a class, they would have to show that they have claims typical of the whole group.

So that’s what they did. As Justice Ginsburg’s dissent pointed out, the district court that had certified them as a class had identified systems for promoting in-store employees that were sufficiently similar across regions and stores to conclude that the manner in which these systems affect the class raises issues that are common to all class members. The women showed that Wal-Mart has a national corporate climate infused with invidious bias against women. Wal-Mart’s policy is to have personnel decisions made by local managers, all of whom are products of that toxic corporate climate.

But the conservative majority’s 5-4 opinion, authored by Justice Scalia, went out of its way to overlook that obvious commonality, focusing instead on the differences that will inevitably be present when a corporate giant targets so many people. The Roberts Court accepted Wal-Mart's assertion that the women cannot be designated a class because the representative plaintiffs do not have claims typical of the whole group.

What this 5-4 opinion states is that Wal-Mart is so large – and the discrimination it has allegedly engaged in is so great – that its victims cannot unify as one class to hold the company accountable. Individuals or small groups are much less likely to have the resources to seek justice.

Large corporations may be licking their chops at the opportunities the Roberts Court has opened to them to violate the law. They realize that a rule without a remedy is no rule at all.

PFAW

PFAW urges you to contact Congress tomorrow on Equal Pay Day

Equal pay in America needed to be put back on track after the devastating Ledbetter ruling, and the Lilly Ledbetter Fair Pay Act answered that call – but it wasn’t the last word. The Paycheck Fairness Act would move us even further forward by providing the tools necessary to enforce equity in the workplace and prevent further disturbing incidents like the one that befell Lilly Ledbetter. It strengthens the remedy, enforcement, and exception provisions of the existing Equal Pay Act. It engages the Equal Employment Opportunity Commission (EEOC) and the Department of Labor in a number areas including technical assistance, data collection and review of existing data, and the provision of wage discrimination training to government employees and individuals seeking their assistance. It supports negotiation skills training for women and girls and general public awareness regarding the means available to eliminate pay discrimination.

Representative Rosa DeLauro (D-CT3) and Senator Barbara Mikulski (D-MD) are expected to reintroduce the Paycheck Fairness Act tomorrow in honor of Equal Pay Day. Ask your Representative and Senators to support this important legislation. Be sure to thank them if they’re already cosponsors.

According to the National Committee on Pay Equity, tomorrow:

[S]ymbolizes how far into 2011 women must work to earn what men earned in 2010.

Equal Pay Day was originated by the National Committee on Pay Equity (NCPE) in 1996 as a public awareness event to illustrate the gap between men's and women's wages.

Since Census statistics showing the latest wage figures will not be available until late August or September, NCPE leadership decided years ago to select a Tuesday in April as Equal Pay Day. (Tuesday was selected to represent how far into the work week women must work to earn what men earned the previous week.) The date also is selected to [avoid] religious holidays and other significant events.

Because women earn less, on average, than men, they must work longer for the same amount of pay. The wage gap is even greater for most women of color.

In addition to NCPE, National Women’s Law Center, the American Association of University Women, and the American Civil Liberties Union are among the many good resources for information and action. I would also encourage you to check out MomsRising. Then visit our web site for a fact sheet and letters to the House and Senate.

PFAW