…let’s take a moment to think about the workers at Walmart who will be out on a picket line on Friday – or forced to work on Thanksgiving night – while we enjoy our time with friends and family. AFJ’s Bolder Advocacy Blog has been spotlighting the campaign for justice at Walmart. Check out these two recent posts. This one offers and overview of the campaign, and how all of us can help:
- This Friday, the nation’s biggest shopping day, thousands of Americans will be calling on Walmart to improve working conditions at its stores and warehouses. The Black Friday day of action is the culmination of a wave of worker activism that started in October with an historic walkout in Los Angeles.As the recent recession accelerated the growth of the part-time economy, the opposition to Walmart’s practices takes on renewed relevance. Walmart sets an industry standard by creating part-time positions with low wages, unaffordable benefits, erratic scheduling, and unsafe workplaces.And there’s more about the campaign in this guest blog from Erica Smiley, Campaigns Director for Jobs with Justice and American Rights at WorkGood jobs are the cornerstone of a strong, healthy economy. A good job is one where workers have collective bargaining rights, employment security, and wages and benefits that allow their families to enjoy a decent standard of living. Thus, organizing to transform the economy means organizing to transform work into permanent, secure jobs where workers have dignity and respect.The many complaints against Walmart include widespread discrimination against women. The current protests are needed in part because the Supreme Court failed the women of Walmart when they ruled against them in a class-action suit. The Walmart case is among those featured in AFJ’s documentary Unequal Justice: The Relentless Rise of the 1% Court.On Tuesday, Sarita Gupta, executive director of Jobs with Justice and American Rights at Work will discuss the Walmart campaign at the formal premiere of Unequal Justice in Washington. She’ll be part of a panel that also includes AFJ President Nan Aron, Pam Gilbert, former executive director of the U.S. Consumer Product Safety Commission and Linda Lipsen, CEO of the American Association for Justice. The event is free, and there’s still time to register here.
- AFJ’s forthcoming video about corporate influence on the U.S. Supreme Court already is getting intensive media attention.AFJ worked with The Nation on a special issue devoted to “The 1 Percent Court” – available online starting Sept. 19 and on newsstands starting Sept. 20. The issue includes an article by AFJ President Nan Aron outlining specific action steps the legal community and the public at large can take to pry the thumb of big business off the scales of justice. This weekend, Nation editor Katrina vanden Heuvel previews the issue on the public television series Moyers & Company. Check their website for the date and time in your area.
Chris tells her story in Unequal Justice
When Chris Kwapnoski worked at Sam’s Club, a Wal-Mart affiliate, managers told her that she needed to “doll up” and “blow the cobwebs off” her makeup if she wanted to get ahead. At the same time, a male associate was given a larger raise because he had “a family to support,” even though at the time Chris was a single mother raising two young children.
And when Chris and more than a million other women joined together to hold Wal-Mart accountable for the discriminatory pay and promotion practices of its management, the Supreme Court told them that Wal-Mart was too big to sue.
In Wal-Mart v. Dukes, a narrow majority of the Court ruled that the 1.5 million women who faced systemic discrimination as Wal-Mart workers did not have enough in common to qualify for a class action, ignoring the volumes of anecdotal and statistical evidence to the contrary. And because of the Wal-Mart decision, it is now harder for employees and consumers to band together to fight corporate misbehavior. The Court significantly raised the bar for forming a class, which is one of the only effective ways to fight against widespread injustices committed by large, deep-pocketed corporate interests.
Chris’s story is featured in AFJ’s latest documentary film, Unequal Justice: The Relentless Rise of the 1% Court, which will be released this fall. The short documentary explores the growing pro-corporate bias in key Court decisions, like Wal-Mart v. Dukes, and their real-world impact on ordinary Americans. Click here to learn more about the film and sign up to host a screening.
Class-action lawsuits are a powerful tool for employees and consumers to fight for their rights against major corporations. However, thanks to the Supreme Court’s 2011 decision in Wal-Mart v. Dukes, which raised the threshold for the certification of class-action lawsuits, perhaps the correct way to have begun this post would be “Class-action lawsuits were a powerful tool.”
The tide against class-action lawsuits was never more resounding than in Wal-Mart. One year ago, the Supreme Court reversed the lower court’s grant of class certification, after female employees of Wal-Mart tried to bring a class-action lawsuit under Title VII of the Civil Rights Act of 1964 against the mega-corporation for consistently promoting and paying higher salaries to male employees. The employees presented facts showing that 70 percent of Wal-Mart’s hourly jobs are filled by women, while only a third of management positions are. Additionally, women are paid less than their male counterparts from day one and over the course of their employment (read our study here). The Court’s decision not only affected the rights of the one million current and former female Wal-Mart employees whose interests were at stake in the suit, but radically re-wrote the federal rules on class certification with implications for millions of other plaintiffs or would-be plaintiffs.
In Wal-Mart, the Court changed the commonality standard from an “easily satisfied” bar to one requiring that common issues “predominate.” The Court held that a discretionary management system that has produced disparity does not satisfy the new stricter standard. The new commonality standard means that to move forward as a class-action lawsuit, the claims must
depend upon a common contention of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . . . What matters to class certification [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.
Now not only must plaintiffs be affected by a decision made by high-level corporate executives (rather than by lower management), but the higher-ups’ decision-making must also be conscious and intentional. Needless to say, the Wal-Mart case has far-ranging implications for fighting sex discrimination in the workplace and for class-action litigation across the board.
There are many reasons why class-action litigation is an important vehicle for the vindication of civil rights. In cases involving systemic discrimination, each plaintiff’s case becomes stronger when seen in the aggregate. Furthermore, a wide-scale lawsuit can improve the lot for more employees (or consumers, as the case may be) and so is a more efficient means of delivering more justice than individual suits. Finally, a class action can affect a corporation’s bottom line in a way that individual litigation is unlikely to, and thus class actions are more likely to inspire improvements in corporate behavior.
In the wake of Wal-Mart, several circuits have prevented class-action lawsuits from moving forward. The Fifth and Second Circuits have followed language in Wal-Mart rejecting class-action lawsuits in which plaintiffs claim separate, individual damages, while the Ninth and Eighth Circuits have focused on Wal-Mart’s heightened commonality requirement.
In a troubling decision, Bennett v. Nucor Corporation, the Eighth Circuit affirmed a lower court’s dismissal of a suit, finding that the plaintiff employees failed to meet the commonality requirement under Wal-Mart. In that case, African-American employees at an Arkansas steel mill attempted to bring a class-action lawsuit for racial discrimination against their employer under § 1981 and Title VII. The court found that the employees did not speak for the entire plant because they only worked in one of five departments of the plant, where Confederate flag-style “do-rags” were sold in the company store, actual Confederate flags and nooses were publicly displayed, and racial comments were communicated over the radio, in e-mails, and scrawled on the equipment and in bathrooms.
Some courts, including the Third, Fourth, Sixth and Seventh Circuits, have distinguished Wal-Mart in cases against the De Beers and Hearst corporations, among others. In one of the most publicized post-Wal-Mart decisions, McReynolds v. Merrill Lynch, decided in February of this year, Judge Posner of the Seventh Circuit wrote for a three-judge panel that African-American financial advisors for Merrill Lynch could bring a class-action lawsuit under Title VII and § 1981 because the issue of disparate impact on African-American employees was appropriate for class-wide treatment.
Posner came to this conclusion by distinguishing Wal-Mart. In Wal-Mart, corporate policies formally forbade sex discrimination and assigned hiring decisions to local managers. However, in Merrill Lynch, the Seventh Circuit took issue with two corporate policies: the “teaming” policy and the “account distribution” policy. The teaming policy permits brokers to form their own teams, which in turn are supposed to improve client services. The account distribution policy permits brokers to compete for the clients of departing brokers, based largely on past successes. This is an important distinction because Merrill Lynch’s policies were created in the higher echelons of management — not by local managers — and facilitated discrimination in that the African-American employees claimed that they were less likely to be selected for teams or distributed-accounts.
Meanwhile, the Wal-Mart plaintiffs have re-filed as regional classes in California and Texas courts and intend to continue pursuing their important claims.
Although some lower courts are allowing class actions to proceed under the Wal-Mart standard, the Corporate Court may not be done with rewriting the class certification rules. Just last week, the Court agreed to hear Comcast v. Behrend during its next term, in order to address the question of what issues that bear on the merits of the case must be resolved at the class certification stage. If the Court reverses the Third Circuit’s plaintiff-friendly holding in this case, it will be erecting yet another barrier to justice for everyday Americans.