NWLC Amicus Brief Argues Class Actions Are Key to Protecting the Rights of Working Women
Today National Women’s Law Center and our pro bono counsel Katz, Marshall & Banks filed an amicus brief in the Second Circuit Court of Appeals in support of retail workers in a case challenging pervasive gender discrimination in pay and promotions, Jock v. Sterling Jewelers. This appeal – just the latest step in the case’s ten- year history – comes after a federal district judge in New York vacated an arbitrator’s determination allowing the plaintiffs to pursue as a class their disparate impact claim under Title VII.
The retail workers at Sterling Jewelers have had to pursue these claims via arbitration due to the mandatory arbitration agreement in each of their employment contracts. Although the case arbitrator had certified a plaintiff class consisting of approximately 70,000 women employed as retail workers by Sterling Jewelers and impacted by the same discriminatory policies, a judge in the Southern District of New York disagreed. The district court’s constraint on employee collective action means that many of the 70,000 women may be denied the right to benefit from the class relief that may be awarded.
We urge the Second Circuit to reverse the district court’s decision and uphold the arbitrator’s certification of inclusive class arbitration. Our amicus brief emphasizes the importance of working women’s ability to proceed as a class to challenge gender discrimination, regardless of whether the case is being arbitrated or litigated in court.
Collective action plays a particularly important role in the fight for women’s equality. Over the years, working women have used class actions to address company-wide discrimination in pay and promotions, and to combat sexual harassment in the workplace. For example, private class actions brought by women have successfully challenged company policies ranging from a rule denying women reinstatement to their prior jobs following maternity leave, to a rule that did not permit women to bid for jobs requiring lifting of more than 35 pounds, to a policy requiring women to make larger pension contributions than men.
Through collective action, working women are better equipped to overcome some significant barriers to justice. Importantly, group action reduces the likelihood of retaliation– a significant fear for an individual bringing action against their employer. Further, group action promotes more efficient and consistent outcomes by allowing all women in a company to benefit from the outcome of the case.
Class actions also serve the practical purpose of defraying individual costs and increasing the ability to develop a factual record sufficient for a finding of discrimination. Through pooling funds, knowledge, and evidence, individuals involved in group actions are able to access resources that may otherwise be out of reach. This is particularly relevant in pay and promotion disparate impact cases, like Sterling, where proof of such practices generally requires significant expert evidence and testimony regarding disparities.
NWLC’s brief is particularly significant because the Sterling decision represents one of many recent attacks on employees’ ability to act collectively to challenge workplace injustice. In October 2017, the Supreme Court heard oral arguments in National Labor Relations Board v. Murphy Oil, a case addressing whether employers can use mandatory arbitration agreements in employment contracts to force their employees to give up the right to participate in group or class action. A finding against the employees in this case would authorize employers to use mandatory arbitration clauses in employment contracts to bar employees from addressing issues in the workplace by group or collective action. This is a particularly scary prospect when one considers how easily a clause like this could be slipped into an employment agreement without the employee’s knowledge or consent.
The decisions of the Supreme Court and the Second Circuit – separately and, especially, together – will have a lasting impact on working women’s ability to use collective action to challenge discrimination and ensure their rights.