Class actions

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 …”

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.