By Emily J. Martin, Vice President and General Counsel, National Women's Law Center.
The Supreme Court heard oral argument today in Wal-Mart v. Dukes, the case that will decide whether the hundreds of thousands of women employed at Wal-Mart stores around the country will be able to come together to challenge companywide policies leading to discriminatory pay and promotion decisions. The Court's decision will not only determine whether the women of Wal-Mart will be able to move forward with their claims; it may also determine whether class actions will continue to be viable for individuals across the country experiencing discrimination on the job.
Why does this matter? Because women (and men) facing discrimination at work-and in particular pay discrimination-face significant obstacles to challenging that discrimination, as the National Women's Law Center set out in its friend-of-the-court brief in support of the women of Wal-Mart. Class actions help overcome these systemic obstacles.
First, if women don't know how much men in their company are making, they won't know if they are making less. Evidence in this case indicates Wal-Mart had a pay secrecy policy, so if women found out about coworkers' salaries, it was by word-of-mouth or sheer accident. And this is not unusual. Employees typically have little or no information about their co-workers' wages and salaries. Indeed, many employers maintain rules explicitly barring discussion of pay within the workplace. In a recent survey by the Institute for Women's Policy Research, 50 percent of respondents, and 61 percent of private sector employees, reported that discussing pay was prohibited or discouraged in their workplace. And late last year, a minority of senators successfully blocked passage of the Paycheck Fairness Act, which would have prohibited employers from punishing employees who talk about their compensation. As a result, pay is hidden under a veil of secrecy, making pay discrimination difficult for individuals to detect. Class actions help lift this veil by subjecting an employer's discriminatory pay practices to judicial scrutiny regardless of whether each employee in the class has independently been able to gather the information to determine she has suffered pay discrimination.
Second, even if a woman does have information that suggests she is being discriminated against, the fear of retaliation leads many to remain silent. For example, in this case, one woman who had worked at Wal-Mart for twenty-five years reported that a representative from the company's Home Office told her and other female employees who made complaints of sex and race discrimination: "Don't bother using your quarter to call us. I can fire you, without taking any steps, for using the open door" policy to make discrimination complaints. Pay secrecy policies in effect promise retaliation should an employee complain of discrimination based on forbidden discussions of compensation. And the threat of retaliation is especially significant for employees who wield little power in their workplace, such as low-wage workers, both because they are more likely to live paycheck to paycheck and thus less able to absorb a job loss, and because their employer may perceive them as easily replaceable. Class actions provide protection to those who want to speak out against discrimination, as individuals are less likely to be individually targeted when they are one of many challenging an employer. It is easier to be brave in a crowd than when standing alone.
Third, especially for low-wage workers, the economic stakes in discrimination cases, while high to the individual, can be low in absolute terms-often just a few thousand dollars, or even less. This can make it impossible to find an attorney willing to bring an individual discrimination case, which will often be complex and expensive, particularly against a large employer with vast legal resources at its disposal. Indeed, only about five percent of employees who believe that they have been discriminated against are able to find lawyers. Class actions can bundle lots of small claims together, making it possible to challenge discrimination that would otherwise go unremedied.
Class actions ensure that civil rights laws like Title VII will continue to be robustly enforced as Congress intended. Otherwise, the difficulties the average woman faces in bringing a discrimination case threaten to make the law an empty promise. The Supreme Court should respect the purposes and intent of the civil rights laws and the class action rule and allow the women of Wal-Mart, and those women who will come after them, to make their case.
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