House and Senate Introduce Legislation to Restore Workers’ Rights
Also, to Reverse Damage Resulting From Wal-Mart Supreme Court Decision.
WASHINGTON, D.C., June 20, 2012 – One year ago today, in Wal-Mart v. Dukes, the Supreme Court severely limited workers’ rights to combat discrimination. To mark the anniversary of Wal-Mart, the Senate and the House have introduced the Equal Employment Opportunity Restoration Act of 2012 to reverse the damage done by the Supreme Court decision and restore workers’ rights to band together in group actions to fight systemic discrimination in the workplace.
“This legislation has great importance to the larger civil rights community, which has used group actions effectively to address systemic employment discrimination against African Americans and other minorities,” said Lawyers’ Committee Public Policy Director Tanya Clay House. “As a national leader in combating employment discrimination, the Lawyers’ Committee applauds Congress for introducing this legislation and will continue to work closely with legislators in the coming months to ensure passage of the bill.”
In Wal-Mart v. Dukes, the Supreme Court dismissed a lawsuit brought by a group of female Wal-Mart employees across the country, despite strong evidence of discrimination. The workers alleged that Wal-Mart’s policy of delegating to local managers decisions concerning pay and promotion, combined with a culture of sex stereotyping, resulted in widespread discrimination against women in pay and promotions. As described in Justice Ruth Bader Ginsburg’s dissent: nationwide, women comprised 70 percent of Wal-Mart’s hourly workers but only 33 percent of managers. There are even fewer women in higher level and better-paid management jobs. Women were paid less in every region and the salary gap grew over time – even for men and women hired at the same time for the same job.
The Supreme Court placed significant hurdles in the way of any group of employees joining together to fight discrimination in the workplace by:
Making it difficult for employees to challenge subjective employment practices where managers are given discretion to make hiring, pay, and promotion decisions.
Imposing a stringent standard for showing that the claims of employees are sufficiently similar to allow them to band together in a class action.
Crediting employer non-discrimination policies even where they are not consistently and effectively enforced.
Limiting the discretion of courts to determine the best and fairest way to calculate the appropriate monetary relief to be awarded to a group, and making it extremely difficult in some cases for individuals to obtain any monetary damages.
Courts have refused to certify class actions alleging sex or race discrimination against such employers as Costco, Family Dollar Stores, Nucor, and Lockheed Martin citing to the Wal-Mart decision.
The Equal Employment Opportunity Restoration Act of 2012 restores workers’ civil rights protections:
• It creates an alternative mechanism for bringing group actions challenging discriminatory employment practices that violate Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and 42 U.S.C. sec. 1981:
For more than 40 years class actions have played a crucial role in achieving racial and gender justice. Class actions were designed to change system-wide discriminatory employment practices that affect large numbers of people. When employers have system-wide policies, the only meaningful way to bring about change is through injunctive relief applicable to the whole class. Without group actions, many employees would find it financially prohibitive to finance an individual case, would have difficulty finding an attorney to take such a case and might fear retaliation.
• It makes clear that employees can challenge subjective employment practices:
One of the most common forms of employment policy or practice is to leave personnel decisions to the discretion of supervisors. The bill makes clear that such practices are not immune from challenges of discrimination. Subjective practices may be challenged in the same way as other employment practices. If an employer adopts an employment practice of allowing supervisors to make individual decisions, these decisions constitute a single employment practice.
• Employer Written Non-Discrimination Policies Are Only to Be Considered Where the Policies are Enforced Consistently and Effectively:
Wal-Mart suggests that the mere existence of a written nondiscrimination policy may shield an employer from liability. The Act requires that an employer prove that its non-discrimination policy in fact operates to prevent such discrimination.
• The Act Restores the Flexibility and Discretion Given to Courts to Fashion Relief So as to Make Whole Victims of Discrimination:
When an employer is found to have discriminated against a group, the civil rights statutes provide that the victims of this discrimination are to be made whole. Make-whole relief includes damages for lost wages and other forms of monetary relief. Courts have traditionally been given broad discretion to determine what remedies to award victims and how to calculate monetary relief. Courts have approved the use of formulas, statistical models, mathematical calculations and individual adjudication. The Act restores judicial discretion to use those procedures that will best ensure that members of the group will be made whole in the most reliable and efficient way.
“The Equal Employment Opportunity Restoration Act of 2012 will ensure that employees have the tools to come together to combat continuing workplace discrimination through group actions. The Act also provides courts with the flexibility to award injunctive and monetary relief to victims of discrimination,” said Lawyers’ Committee Employment Discrimination Project Senior Counsel Jane Dolkart.