• April 7, 2015

    by Caroline Cox

    At Share America, Geoffrey Stone takes a look at the history of civil liberties during wartime.

    Dahlia Lithwick of Slate explains how arguments against same-sex marriage are impossible to reconcile with arguments in support of religious freedom acts.

    At The New Republic, Sam Eifling discusses the unusual circumstances that prompted Wal-Mart to oppose Arkansas’s proposed attack on gay rights.

    In The New York Times, Mitch Smith writes that the Wisconsin Supreme Court election has raised concerns about partisanship in the judicial branch.

    William Greider considers at The Nation how the Supreme Court decision in Hobby Lobby has provided inspiration for countless new conservative campaigns.

    Coral Davenport reports for The New York Times on how Laurence Tribe has become an outspoken – and unlikely – opponent of President Obama’s ambitious new plans to fight global warming.

  • June 20, 2012
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families

    Fairness and equal opportunity are among our nation’s most basic values. They are especially critical in the workplace due to families’ increasing dependence on the wages of both men and women. That’s why Congress has passed landmark civil rights laws designed to protect workers’ right to hold jobs and provide for their families free from harmful discrimination. Yet, just last year, the United States Supreme Court eroded that right with its decision to deny more than one million women the ability to join together to challenge the discriminatory practices of the nation’s largest private employer. Fortunately, Congress now has the chance to undo the damage. 

    The Supreme Court’s decision in Wal-Mart v. Dukes was a devastating blow to the right of all workers to combat systemic discrimination in the workplace. In short, the Court said that Betty Dukes – a female greeter at Wal-Mart who received lower pay and fewer promotion opportunities than her male co-workers – could not join with other female Wal-Mart workers to hold the company accountable for unlawful widespread discrimination through a class action lawsuit. In doing so, the decision created significant barriers to justice for future victims of discrimination.

    Now, workers who seek to challenge the widespread discriminatory practices of their employers must meet stringent new standards to show that their claims are similar enough to be joined together. This makes it more difficult for workers to challenge discrimination that occurs through the subjective judgments that often factor into personnel decisions. And it opens the door for companies to hide behind the existence of written nondiscrimination policies, despite evidence that discrimination exists in practice.

    It should not be so difficult for workers who suffer discrimination to combat unlawful employer practices and have their day in court. The Equal Employment Opportunity Restoration Act of 2012, which was introduced today, would reverse the damage done by the Wal-Mart decision and restore the right of workers to join together to challenge systemic discrimination. It is critical legislation that would give workers who suffer from unlawful practices a fighting chance.

  • March 30, 2011

    The Supreme Court heard oral arguments yesterday in Wal-Mart v. Dukes, the gender discrimination case that could decide the future of class actions, and the justices appeared to divide largely along gender lines, suggesting a possible win for Wal-Mart, Bloomberg reports.

    Although the issue on appeal centered around the nature of the class action, “the disagreement among the justices focused as much on the substance of the federal job-discrimination laws as on the requirements for class actions,” according to Bloomberg.

    Justice Anthony Kennedy questioned the nature of the alleged unlawful policy, saying, “Your complaint faces in two directions. You said this is a culture where Arkansas knows, the headquarters knows, everything that's going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there's an inconsistency there …”

  • March 29, 2011
    Guest Post

    A gender discrimination case before the Supreme Court today that will decide whether women employees and former employees of Wal-Mart can proceed with a class action lawsuit against the company is among the "most important" discrimination cases, testing whether the force and intent of discrimination laws will be protected, said Marcia Greenberger, founder and co-president of the National Women's Law Center, during an ACS panel discussion about Wal-Mart v. Dukes.

    "Through the most technical and dense-sounding legal issues, this court will ultimately decide whether employees in this country, women in this country, minorities, others, older workers, disabled workers, will be able to hold employers accountable, or whether it will be left to an individual to uphold and protect her rights against the biggest employer in this country and have to find the resources on her own to combat the kind of litigation," Greenberger said.

    "It's the class action mechanism that allows employees to be able to bring these issues to the fore and to enable justice to be served and ultimately fairness to be meted out," she added.

    The procedural issues in the case include whether the class is properly before the court seeking injunctive relief when they are also seeking monetary damages as part of their claim, explained McGuireWoods lawyer Andrew Trask, who suggested the case was brought under the wrong provision, Rule 23(b)(2), and should have instead been brought under Rule 23(b)(3), which imposes a more onerous burden on the plaintiffs.

    But Suzette Malveaux, an associate professor of law at Columbus School of Law, Catholic University, explained that Rule 23(b)(2) is silent as to whether or not monetary damages may be sought, and that the rule's drafters intended to allow plaintiffs to seek monetary relief, so long as that relief did not overshadow any injunctive relief sought.

  • April 16, 2009
    Guest Post
    By Melissa Hart, Associate Professor, University of Colorado Law School.

    An en banc panel of the Ninth Circuit recently heard arguments in Dukes v. Wal-Mart, the largest employment law class action in U.S. history, alleging gender discrimination against as many as 1.5 million female employees of the retail giant. The oral arguments came nearly eight years after the case was first filed in 2001, five years after the district court certified the class and four years after the case was first argued to a panel of the Ninth Circuit.

    Thus far, both courts to consider the question have decided that the plaintiffs (some of which are pictured below) should be able to pursue their claims against the retail giant as a class. The case raises some of the most central questions in both class litigation and sex discrimination law, and the Ninth Circuit's en banc decision stands poised to contribute significantly in both areas.