June 24, 2018
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Setback for women’s rights

By Miami Herald, Special to the BDN

The U.S. Supreme Court’s recent decision tossing out a huge employment discrimination lawsuit filed on behalf of up to 1.5 million female workers at Wal-Mart represents a major setback for gender rights in the workplace, and beyond that for investors, consumers and others who file class-action lawsuits.

The court’s action reverses decades of precedent allowing women and other workers to challenge common practices that have a harmful outcome, regardless of intent and notwithstanding written policies that ostensibly forbid discrimination. In the case involving Wal-Mart, evidence presented to the court showed that women filled 70 percent of hourly jobs but occupied only 33 percent of management positions. In addition, voluminous anecdotal evidence was presented suggesting a corporate culture where it was common to belittle women and deny them advancement.

Justice Antonin Scalia, writing for the 5-4 majority, disparaged the statistical evidence as failing to meet the standard of “significant proof” that Wal-Mart operated under a discrimination policy. The pay and promotion gaps, he wrote, might be explained by factors other than discrimination because corporate policy gave local managers substantial discretion in hiring. As for the anecdotal evidence, like the woman who said she was instructed to “doll up,” Justice Scalia also found that insignificant in a case involving “literally millions of employment decisions.”

His decision suggests that outcomes don’t matter in the absence of a showing of specific intent. For the workplace, it’s a throwback to the situation that prevailed decades ago — and is still present, albeit to a lesser degree, today — in which gender discrimination was not recognized as a problem and effective policies and practices prohibiting bias and promoting gender equality based on skill for pay and promotion were unheard of.

According to U.S. Census Bureau figures for 2009, women earn, on average, only 77 cents for every dollar earned by men. African-American women earn only 62 cents, while Hispanic women earn only 53 cents for each dollar earned by white males. The latest action by the court will make it harder to level the playing field because it will henceforth make it difficult, if not impossible, for women to act in unison in the courtroom.

All three female members of the court dissented, joined by Justice Stephen G. Breyer. Justice Ruth Bader Ginsburg said that “evidence of gender bias suffused Wal-Mart’s corporate culture.” This is not, she was careful to point out, necessarily a deliberate result, but rather that managers “may be prey to biases of which they are unaware.”

Women can still pursue cases at a local level, but the larger and better remedy for the court’s lamentable decision is legislative. The Paycheck Fairness Act would update the Equal Pay Act of 1963 by requiring employers to demonstrate, rather than merely claim, that pay differentials are based on factors other than sex. It would also permit reasonable comparisons between employees within  clearly defined geographical areas to determine fair wages and strengthen penalties for equal pay violations.

In the last Congress, the act passed the House of Representatives but fell two votes short of approval in the Senate, even though it had majority support. Now, with the Supreme Court’s adverse ruling and loopholes in other existing laws forbidding gender bias that have failed to do the job, it’s time for Congress to step up.

You’ve come a long way, baby? Clearly, not far enough.

Miami Herald  (June 27)

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