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Women Workers in a Post-Walmart World

By Katherine Kimpel

Last week, the Supreme Court issued a decision that makes it harder for women in the workplace to protect their rights to be free from discrimination.  In reaching their decision in Dukes v. Walmart, the Justices—the five men who wrote the majority opinion, notably overruling the objections of all three women on the court— assumed that discrimination in the workplace just doesn’t really happen that much anymore. But Supreme Court Justice Antonin Scalia and the other men on the court didn’t cite any evidence, didn’t refer to any studies, or even bother to tell any anecdote to back up that claim. They didn’t bother to contend with the fact that individuals and government agencies continually litigate, prove, and then settle or win employment discrimination cases—cases that show that discrimination is, alas, alive and well.

For example, just last year a jury in New York federal court delivered a unanimous verdict against Novartis Pharmaceuticals Corporation, finding that the corporation had discriminated against female employees in pay and promotions, and had discriminated against pregnant employees. Although the over $250 million dollars resulting from that verdict was significant, even more important were the 23 pages of changes to policies and procedures that the company later agreed to in order to settle the case.

You see, the brave women who stood up to Novartis to bring that lawsuit helped more than themselves.  They helped the other women at Novartis, by getting the company to change. They helped other women working in the pharmaceutical industry, by sending a message to employers that discrimination will not be tolerated and that litigation can result in just and heavy penalties. And they helped the government, by holding a global corporation accountable to our federal civil rights laws.

Congress knew, when drafting the civil rights laws, that we could never expect the government to shoulder enforcement by itself. They created a system where individual Americans could stand up and act as private attorneys general—essentially privatizing, in part, the enforcement of equal opportunity. However, had last week’s Supreme Court decision in Dukes v. Walmart been the law of the land in 2010 when Novartis was decided, the brave plaintiffs in the case may not have been successful, and the changes at Novartis may never have happened.

For women workers in a post-Walmart world, it is undeniable that the scales are weighted more heavily in favor of corporations, scaling back the progress for which our mothers, grandmothers, and great grandmothers fought so valiantly. That sad fact does not relieve us of responsibility; instead, it simply means that we will all have to fight harder and with more determination than before.

On a day-to-day basis, this fight takes shape in advocating for yourselves in negotiating starting salaries, demanding rightful raises, and pushing aggressively for promotions. This fight takes shape in developing trusted coworkers who will help you benchmark your compensation and better understand the ladders to success. This fight takes shape in keeping detailed records of all of this and of your employers responses, good or bad, so that if the day comes when you or they need to get outside help, you’re ready. This fight takes shape in refusing to be silent when you or a coworker is underpaid, passed over for promotion, subjected to harassment, or disproportionately disciplined.

All of those things are necessary and good, but they are not enough. Women workers— indeed, all workers—in a post-Walmart world need to be proactive about this affront to our fundamental right to equal opportunity. Educate family and friends, write letters to your local paper, and contact your elected representatives to let them know you’re paying attention, you’re concerned, and you expect the Supreme Court’s over-reaching on behalf of corporations to be corrected.

Justice Scalia and the four other men of the majority got it wrong when they assumed that our world is a better place than it is, when they assumed that discrimination doesn’t happen anymore. They got it wrong when they decided that protecting corporations was more important than protecting individual Americans, be they men or women of any race. But the underlying faith in people wasn’t entirely misplaced. Every day, I work with men and women whose bravery to stand up for what is right inspires me. The moment now calls for the rest of us to also stand up to a Supreme Court that has gone too far.

Katherine M. Kimpel is a Partner of Sanford Wittels & Heisler, LLP, a national law firm with offices in Washington, D.C., New York, and California.  Ms. Kimpel received her law degree from Yale Law School in 2006. She served as class counsel in the Velez v. Novartis gender discrimination case and authored the amicus brief on behalf of the U.S. Women’s Chamber of Commerce in Dukes v. Walmart. Before joining Sanford Wittels & Heisler in 2007, Ms. Kimpel served as Special Counsel to Senator Russell Feingold on the Senate Judiciary Committee, where she handled criminal justice and other civil rights issues for the Senator.

The Path to Pay Equity

By Caroline Dobuzinskis and Ariane Hegewisch

Yesterday, the U.S. Supreme Court ruled a class action lawsuit brought against Walmart by six plaintiffs representing 1.5 million employees did not have sufficient evidence to prove a corporate-wide policy in discrimination—and could not qualify as a class action suit for monetary damages.

This is potentially a major blow to the reduction of discrimination by large employers—and an obstacle in making pay equality a reality in the United States. IWPR research has shown that, through class action suits, consent decree litigations imposed on employers requiring changes in policy or behavior can help to eliminate discrimination in the workplace. Transparency and monitoring can ensure that these changes take hold in the long term, and create a shift in corporate policy away from discriminatory practices in corporate hiring and promotions.

Still a Long Way to Go for Pay Equality

The gender wage gap is real and will be around for some time. Women’s median annual earnings are only 77 percent of men’s and, according to an IWPR estimate, pay equity will not be reached until 2056.

Discrimination has been shown to be one of the factors that create the gender wage gap. Even after estimates control for age, experience, education, occupation, industry and hours of work, 41 percent of the wage gap remains.

In principle, the groundwork for eliminating pay inequality was laid almost five decades ago when President Joseph F. Kennedy signed the Equal Pay Act (EPA) in 1963 to prevent pay discrimination against women. In 1964, Title VII of the Civil Rights Act made it illegal to discriminate in terms of pay or employment conditions, on the basis of race, color, religion, sex, or national origin. After these historic legislative advances, progress in closing the gender wage gap has slowed in recent decades.

Experts Weigh in on Pay Fairness

A recent briefing on Capitol Hill attracted a standing-room-only crowd interested in hearing how to make pay equality the new reality—both in principle and in practice. The June 9 briefing was organized jointly by IWPR and the National Women’s Law Center, and was sponsored by longstanding pay equity champions Senator Barbara Mikulski and Congresswoman Rosa DeLauro who recently reintroduced the Paycheck Fairness Act to both Houses of Congress.

Pay Secrecy Often Goes Hand in Hand with Pay Discrimination

At the briefing, Ariane Hegewisch, Study Director at IWPR, argued that protection from pay discrimination exists in principle. But close to half of all workers and over 60 percent of private sector workers cannot discuss their pay—making pay equality difficult to ensure in practice.  Some workers can face disciplinary action, and even immediate dismissal, if they are caught discussing wages.

Fatima Goss Graves, Vice President for Education and Employment at the National Women’s Law Center, noted that the issue of pay secrecy did not receive much media attention in reporting on Walmart v. Dukes despite plaintiffs in the case expressing fear at employer retaliation if they discussed pay.

While pay secrecy policies and practices do not prove the presence of wage discrimination, IWPR’s recent research on sex and race discrimination settlements suggests that pay secrecy and wage discrimination often go hand in hand.

Carol Golubock, Director of Policy at SEIU- Service Employees International Union, added that in principle workers have the right to discuss their pay under the National Labor Relations Act of 1935 (NLRA). Because of weak enforcement and the absence of punitive damages or injunctive relief, however, many employers continue to get away with having explicit pay secrecy clauses.

Paycheck Fairness Act Prevents Pay Secrecy

All experts on the panel at the briefing emphasized the positive changes that could be brought through passage of the Paycheck Fairness Act—focusing in particular on its capacity to prohibit employer retaliation against workers who discuss salaries and wages. The impact of reducing pay secrecy could reach also hourly workers, helping them to ensure they are receiving their due through minimum wage and overtime laws.

The Paycheck Fairness Act would also spur growth in the economy and assist working families. Goss Graves pointed to the wider benefits that equal pay can have on families, especially single mothers, and communities. As overall tax revenues increase, more money is put in the economy, and more money available to keep children out of poverty and address their needs.

Adding to the discussion on pay equality, one panelist presented another facet of the unequal pay conundrum that lies outside of legislation. Lilla Hunter-Taylor, CEO of an employee recruitment company called The Staff Hunter, said she frequently encounters clients seeking women candidates because women do not negotiate as aggressively as men.

Caroline Dobuzinskis is the Communications Manager at the Institute for Women’s Policy Research (IWPR). Ariane Hegewisch is a Study Director with IWPR.

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