A Supreme Court ruling could make lawyers reluctant to take on women's workplace lawsuits

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Lawyers may argue the fine details of the recent U.S. Supreme Court ruling that blocked female employees of Wal-Mart Corp. from pursuing a massive sex-discrimination class action case against the retailer. But they seem to concur on one point: The high court's decision will make it tougher for employees to take on corporations over gender bias issues.

In the 5-4 decision handed down last month, the court's majority said there wasn't enough evidence the female plaintiffs suffered discrimination from a companywide policy on pay and promotions to certify the suit as a class action. If it had been certified, the case could have included more than 1 million women currently or formerly employed by the giant private retail chain, and would have been ranked as the largest class action case in history.

The opinion Justice Antonin Scalia wrote on behalf of the court's majority "certainly did make it harder for women and other employees to protect their right to fair and equal treatment in the workplace," said Kate Kimpel, a partner at Sanford Wittels & Heisler's in Washington, D.C. Her firm specializes in employment class actions and last year represented 6,200 female plaintiffs in a class action against Novartis Pharmaceuticals Corp. that was settled for $175 million, including back pay and compensatory damages for the women.

Because the Wal-Mart ruling makes it tougher to establish a class action, "it weights the scales very heavily in favor of corporations when a corporation and individual are going head to head," said Ms. Kimpel.

"Attorneys already looked and said these [class action cases] were hard to win. Now I'm worried that lawyers will look and say, 'It's too hard and I won't represent you.' "

Rona Kaufman Kitchen, an assistant professor of law at Duquesne University who teaches courses on corporations, labor law and working parents and the law, said the Supreme Court noted in the Wal-Mart decision that the company had an anti-discrimination policy in place and, therefore, the court assumed local managers and supervisors would make "sex-neutral, non-discriminatory" decisions about hiring and promotions.

"That's an unfortunate perspective ... and incredibly significant," said Ms. Kaufman Kitchen, adding that evidence in the case showed that while 70 percent of the hourly jobs at Wal-Mart are held by women, only 30 percent of the chain's managers are female.

One good result of the case, Ms. Kaufman Kitchen said, is that it "kind of renews the discourse on the topic, and that's always a good thing ... even though the decision didn't go well for the plaintiffs."

Jane Dolkart, senior counsel with the Lawyers Committee for Civil Rights Under Law, a Washington, D.C.-based nonprofit, said the Supreme Court in the Wal-Mart ruling doesn't completely eliminate class action cases, but it "raised the bar for commonality so high that it will be extremely difficult for plaintiffs across the board, not just in employment cases."

"This is a court that is basically protecting employers from employees."

Only a handful of class action cases involving employment issues are typically certified each year, Ms. Dolkart said, and the recent ruling could limit certification even further. "We don't know the full impact yet. It will be years before we know."

While it might be interpreted as a victory for corporations, one human resources expert warned that employers still need to take steps to prevent discriminatory practices.

The court handed down "a very technical ruling about how you form a class," said Steve Bruce, editor of HR Daily Advisor, a website and online newsletter based in Old Saybrook, Conn.

"It doesn't mean discrimination isn't illegal anymore. It's doesn't mean there can't be a class action suit. It means the rules are fairly strict about how you form a class. But it would be unfortunate if [employers] thought, 'We don't have to be careful anymore.' That's a pretty dangerous attitude to take."

Employers, he said, need to establish a "strong anti-discrimination policy that's well publicized" and then "train managers and supervisors to enforce the policy."

Beyond rules and training, however, he suggested employers examine their own practices and payrolls.

"If you have 100 sales people and half are women and not making as much as the men, then there could be gender discrimination," Mr. Bruce said. "There could be rational explanations, but on the face of it, it doesn't look very good and you can delve in and solve the problem before the governments and the courts do."

Despite concerns about overcoming strong barriers to class actions, Ms. Kimpel vowed to continue taking them on. Her firm in March filed a class action suit against Bayer HealthCare claiming women were treated unfairly compared to men in pay and promotions, and that the company also discriminated against pregnant women.

"The Bayer case may in fact be stronger than Novartis," she said. "We will do everything to make sure it meets class certification."

Joyce Gannon: jgannon@post-gazette.com or 412-263-1580.


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