Director of Workplace Fairness

Cross-posted from the American Constitution Society.

The U.S. Supreme Court is hearing oral argument today in Coleman v. Maryland Court of Appeals – a case that could erode the right of millions of state workers to take job-protected, unpaid leave under the Family and Medical Leave Act (FMLA) when faced with a serious illness.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member. The FMLA offered leave on a gender-neutral basis rather than creating a special right to self-care leave for medical illness surrounding pregnancy, in part to avoid creating perverse incentives for further discrimination against women.

Since its enactment 18 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance. An adverse decision from the Supreme Court could put access to FMLA self-care leave at risk for millions of state workers. At stake is their fundamental right to take time off to address their own serious medical needs, including pregnancy and childbirth.

Petitioner Daniel Coleman was working for a Maryland court when his doctor ordered bed rest due to serious illness. Within hours of requesting medical leave, Coleman was fired. He then filed a lawsuit alleging a violation of the FMLA. Contrary to the plain language of the statute, the lower courts ruled that the state of Maryland could not be sued for monetary damages under the FMLA’s self-care provision.

The Supreme Court is now poised to decide whether Congress validly abrogated the states’ Eleventh Amendment sovereign immunity by acting to address unconstitutional discrimination.

In point of fact, when the legislation was being considered, Congress collected an enormous amount of evidence demonstrating clearly that outdated workplace policies and practices denied women equal employment opportunity, including discriminatory policies and practices by state governments. Congress found that women continued to face persistent sex discrimination relating to pregnancy and childbirth. Thus, Congress enacted the FMLA pursuant to its power to address unconstitutional discrimination under section 5 of the Fourteenth Amendment.

Joined by a broad coalition of civil rights groups, workers’ rights groups, and labor organizations, the National Partnership for Women & Families filed an amicus brief urging the Court to uphold the plain language of the FMLA, which established critical leave rights for state workers. Like private employers, states must be held accountable when they violate their employees’ rights to self-care leave.

Notably, the Supreme Court already has established that state workers can sue their employers for monetary damages for violations of the family-care provision of the FMLA. In the 2003 case of Nevada Department of Human Resources v. Hibbs, the Court ruled that Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment authority with respect to the FMLA’s family-care provision. Writing for the majority, Chief Justice Rehnquist concluded that Congress clearly intended to protect state workers from sex discrimination by providing job-protected leave to care for a family member. Indeed, the Court got it right in the Hibbs case, and the same analysis applies under the self-care provision at issue in the Coleman case.

The millions of state workers who are struggling with their own medical illness or who may face a serious illness in the future have to fervently hope that the Court gets it right again. Those workers have a tremendous amount at stake in this case.

Director of Workplace Fairness

Nearly 20 years ago, passage of the Family and Medical Leave Act (FMLA) was a major milestone in the effort to help families meet their work and family needs. For the first time ever, many workers were guaranteed up to 12 weeks of unpaid leave a year to care for a close family member or address their own serious health concerns, including pregnancy and childbirth. For women in particular, the law aimed to combat gender discrimination by granting women and men equal access to leave and preventing women from being penalized or unfairly denied job opportunities due to assumptions about their family caregiving responsibilities.

To date, no other law has had a greater impact on workers’ ability to meet their work and family obligations, without sacrificing their jobs, than the FMLA. In fact, we estimate that the law has been used more than 100 million times by women and men across the country. But sadly, nearly half of the workforce isn’t eligible for FMLA leave, others may not know the law exists or experience other barriers to accessing it, and many cannot afford to take the unpaid leave it provides (which is why it is important that Congress and state legislators adopt paid leave programs).

The National Partnership was the lead organization behind the FMLA and the driving force behind its passage. We have long supported efforts to expand the law, increase eligibility and improve overall access. We helped win amendments in 2008 and 2009 that now provide military families up to 26 weeks of unpaid leave under the law to care for a wounded service member, or up to 12 weeks for qualifying exigencies related to active duty. And forward-thinking legislators in many states have advanced their own expansions of the law to cover more workers. Find out what your state offers through our policy database: www.nationalpartnership.org/wfdb

We’re always seizing opportunities to improve the FMLA and make accessing leave easier for workers. So when the Department of Labor (DOL) announced it was seeking comments on the forms used by employers and employees when an FMLA leave request is made, we knew it was an important chance to address a potential barrier to accessing FMLA leave. DOL currently provides model forms for employers and employees to use in providing notice of FMLA eligibility, rights and responsibilities, and for the certification and re-certification of need for leave. While these forms are aimed at making the process easier, there is room for improvement to help ensure smoother application of the FMLA.

In a letter the National Partnership submitted to the department, joined by 60 of our committed allies, we recommended key ways to enhance the clarity and usefulness of these forms – and stressed the need to minimize paperwork burdens for workers. Our key recommendations included giving employees access to a new optional form to request leave, removing irrelevant and invasive medical questions, and requiring employers to properly explain their reasons for denying a request for leave. We believe that these adjustments can go a long way toward reducing some common barriers to FMLA leave.

Much more can – and must – be done to ensure that all workers can take the job-protected time they need to care for their families and their own serious health conditions – and request forms are an important consideration. We are happy the department has taken on the issue and hope the comments it receives will result in improved forms and, consequently, improved access to FMLA leave for working families. Our nation’s families, businesses and communities will be stronger when workers can take the job-protected time they need.

Director of Workplace Fairness

This term, the U.S. Supreme Court will hear Daniel Coleman v. Maryland Court of Appeals – a case that could erode the right of millions of women and men to work free from discrimination and to take job-protected, unpaid leave for serious medical conditions.

In 1993, Congress enacted the Family and Medical Leave Act (FMLA) to address persistent sex discrimination caused by unfair employee leave policies. The FMLA guaranteed workers job-protected, unpaid leave for two key reasons: self-care and family-care. A primary purpose of the self-care provision was to prevent discrimination against women based on pregnancy and childbirth. Congress heard ample evidence that outdated workplace policies and practices denied women equal employment opportunity. The self-care provision offered leave on a gender neutral basis to avoid creating incentives for further discrimination against women.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member. At the National Partnership, we know the details well. After all, we drafted and led the fight for this critical law.

Since its enactment 18 years ago, workers have used the FMLA more than 100 million times. It has helped workers with new babies and dying parents, workers disabled by pregnancy or recovering from childbirth, and workers who have had heart attacks and hysterectomies. More than six million private and public sector workers take FMLA leave each year. It is an incredibly important law for the country’s women and families. But the case now before the Supreme Court could put access to FMLA leave – and the protection from discrimination it ensures – at risk for millions of state workers.

Daniel Coleman was working for a Maryland court when his doctor ordered bed rest due to serious illness. Coleman requested medical leave and, within hours, was fired. Soon after, and with good reason, he filed a lawsuit under the self-care provision of the FMLA.

Unfortunately, the lower courts ruled that the state of Maryland can’t be sued for such violations and they denied his claim. The Supreme Court must now decide if Congress intended for the FMLA’s self-care provision to cover state workers like Coleman. This should be an easy case because the language of the law makes clear that Congress expressly included state workers. The Court should rule to affirm their essential rights.

That’s why, this week, the National Partnership led a coalition of the country’s top civil and workers’ rights and labor organizations that filed a friend-of-the-court brief urging the Court to uphold fundamental FMLA rights for state workers. As we explain, Congress always intended for state workers to be covered by both provisions of the law. And states must be held accountable – like other employers – if they violate it.

The Supreme Court already has established that Congress intended for state workers to be covered by the family-care provision of the FMLA. In the 2003 case of Nevada Department of Human Resources v. Hibbs, we represented state worker, William Hibbs, in his appeal to hold the state of Nevada accountable for violating the family-care provision. The Court ruled that Congress did intend to protect state workers from sex discrimination through that provision.

The Court got it right in the Hibbs case, and the same rule should apply to the self-care provision at issue in the Coleman case. The fundamental right of millions of state workers to take time for their own serious medical needs, including pregnancy and childbirth, is at stake.

Debra Ness, President

On Monday, the country will celebrate Labor Day – a national holiday established to honor the strength of America’s workers and its unions. All workers who are in unions benefit from higher wages, better benefits, retirement security and more – but the union difference for today’s women is especially striking, particularly when it comes to fair pay.

Women now make up half of America’s workforce, and we’re the primary or co-breadwinners in two-thirds of families. When women are paid unfairly, entire families and the national economy suffer. Yet today, women in this country are still paid, on average, only 77 cents for every dollar paid to men. For African American and Latina women, the gap is even worse.

But women in unions experience a much smaller gap. In fact, collective bargaining rights have helped union women to earn almost 34 percent more than nonunion women. That’s a union difference of $217 per week – or more than $11,000 a year! And the difference is greatest for women and people of color. Overall, African American and Latino union workers are paid 31 percent and almost 51 percent more, respectively, than their nonunion counterparts.

Unfortunately, just 11 percent of working women are in unions. And unions nationwide are struggling mightily in the face of shifting industries, a changing economy and unprecedented political attacks. As we all saw in Wisconsin – a state with a long history of advancing rights for workers and women – the governor eliminated collective bargaining rights for a majority of the state’s public employees. The positions most affected were dominated by women and included teachers, nurses and child care providers. Sadly, hostile lawmakers have launched similar attacks on workers and the unions they count on around the nation.

The attempts to weaken unions in this country are attacks on all working people. These attacks cause grave harm to women and families by making it harder for us to win fair wages and the level playing field that we need in the workplace.

As advocates for women continue to push for federal legislation like the Paycheck Fairness Act, we will not forget about the union difference and the role that unions play in establishing standards and protections for America’s workers.

This Labor Day, I hope all women will join me in showing support and solidarity for America’s workers and its unions. A vibrant labor movement in this country helps to promote the fair pay and economic security that America’s working women and our families need and deserve.

Director of Workplace Fairness

“[M]any women will give up because it’s too hard to sue Wal-Mart on their own. It’s not easy to take on your own employer. It’s even more difficult when that employer is the biggest employer in the world. In this country, there are many Betty Dukes who want their voices to be heard when they are denied equal pay and equal promotion. For many of these women, I am afraid that the Court’s ruling leaves them without having their day in court.”

–Betty Dukes, testifying before the Senate Judiciary Committee, June 29, 2011

With the recent decisions in Wal-Mart v. Dukes and AT&T Mobility v. Concepcion, the Supreme Court weakened the ability of individuals to band together in class action lawsuits to challenge corporate misconduct. While lower courts grapple with the ramifications of these decisions and Congress weighs legislative responses like the Paycheck Fairness Act and the Arbitration Fairness Act, critical workers’ rights hang in the balance.

Class actions serve a particularly vital role in the employment discrimination context. For many workers, class actions provide the only meaningful access to the courts. In most cases, workers – especially low-wage workers – cannot afford to file individual cases. Many may also fear retaliation for filing individual cases. Furthermore, individuals may be unaware of patterns of discrimination that can go undetected and unremedied in the absence of a class action. For example, many employers have instituted pay secrecy policies that make it difficult for workers to find out about unlawful pay discrimination. In the Wal-Mart case, it was only after Betty Dukes filed her lawsuit that she learned that women working at Wal-Mart stores across the country were paid less and denied promotions, despite higher performance evaluations and greater tenure.

Class actions have long provided an effective tool to address systemic discrimination and promote equal employment opportunity. Class action cases foster reform through injunctive relief that is not available in individual cases. Examples include requiring employers to post job opportunities, conducting pay equity studies, establishing equal employment opportunity complaint processes or establishing specific, job-related criteria to be used in making personnel decisions. Reforms like these have the power to transform corporate culture, policies and practices.

Class actions also often provide an efficient way for workers, business and the courts to resolve complex issues. Indeed, the business community highlighted the inefficiencies of piecemeal, serial litigation in support of the corporate-backed Class Action Fairness Act of 2005, which sought to move class actions out of state courts and into the federal courts. During the push for this legislation, the Chamber of Commerce acknowledged that “[c]lass action litigation is a necessary part of our legal system because it can bring efficiency and fairness to situations involving many people with similar claims.” And in a recent Supreme Court amicus brief, the Chamber acknowledged that there is an “enormous societal interest in preventing serial litigation.” Contrary to these societal interests in promoting efficiency and fairness, the Supreme Court’s decisions in Wal-Mart and AT&T created new hurdles for individuals seeking to band together in class actions to address widespread corporate misconduct.

In Wal-Mart v. Dukes, the Supreme Court overturned the lower courts’ decision to certify the class, leaving the women of Wal-Mart with little choice but to pursue their claims for fair pay and fair promotions in smaller classes or individual cases. Justice Scalia’s opinion for the five Justices in the majority offered a narrow interpretation of Rule 23 of the Federal Rules of Civil Procedure. To establish commonality under Rule 23, the majority concluded that class members’ “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.”

The majority also discounted the putative class members’ sociological evidence of a discriminatory corporate culture on the grounds that such evidence could not easily be quantified. The majority was not persuaded by the sociological expert evidence in the record and offered its own self-confident analysis that “left to their own devices, most managers in any corporation – and surely most managers in a corporation that forbids sex discrimination – would select sex-neutral performance-based criteria for hiring and promotion.” The majority gave weight to the fact that “Wal-Mart’s announced policy forbids sex discrimination,” suggesting that a written anti-discrimination policy is sufficient to establish that an employer could not have “operated under a general policy of discrimination.” At a time when charges of discrimination filed with the Equal Employment Opportunity Commission have reached record numbers – despite the fact that most employers have anti-discrimination policies on the books – the majority showed itself to be out of touch with the reality of how discrimination plays out in the workplace.

In the wake of Wal-Mart, lower courts have cited various aspects of the decision in denying class certification. The Northern District of California noted that Wal-Mart represents “a significant restatement of the commonality requirement.” The District Court for South Carolina cited Wal-Mart in denying collective treatment in an FMLA case, concluding that collective treatment is improper in cases involving multiple employment locations, decentralized policies or practices, or multiple supervisors with independent decision making authority.

Courts also cite Wal-Mart in denying class certification in cases involving “individualized” remedies, including back pay. The Northern District of California concluded that Wal-Mart “heightened the [c]ourt’s concerns” that individualized issues would predominate over class-wide issues and precludes the determination of individualized damages by formula. . The Eastern District of New York interpreted Wal-Mart to provide that noneconomic losses, damages, and the intangible benefits of employment require an individualized inquiry, which may not be susceptible to classwide proof. The Western District of Washington has ruled that under Wal-Mart, claims for individualized relief, such as back pay, defeat Rule 23(b)(2) certification. Similarly, the Southern District of California found that where the amount of restitution would vary from class member to class member and in some cases constitute a significant sum, Wal-Mart requires that these “individualized” claims for restitution be carved out of a Rule 23(b)(2) class and pursued instead by a Rule 23(b)(3) subclass. In the wake of Wal-Mart and its progeny, the need for legislative remedies has become even clearer. The Paycheck Fairness Act, which was reintroduced in the 112^th Congress, would expand workers’ rights to proceed as a class to challenge unfair pay. In part, the law would enable Equal Pay Act claims to proceed as opt-out class actions, rather than opt-in collective actions, as is the current rule. Additional legislation responding to the Wal-Mart decision is expected later this year.

The Court’s decision in AT&T Mobility v. Concepcion earlier this year also dealt a blow to the class action vehicle by opening the door for class action waiver provisions in mandatory arbitration agreements. AT&T followed closely on the heels of the 2010 decision in Stolt-Nielsen S.A. v. Animalfeeds International Corp., in which the Court ruled that an arbitration agreement that is silent on the issue of class arbitration does not permit plaintiffs to proceed as a class. With AT&T the Court further limited the ability of individuals to pursue class arbitration. By a slim five-to-four majority, the Court upheld a class action waiver that was included with a mandatory arbitration provision in AT&T’s consumer contracts. The Court concluded that the Federal Arbitration Act preempts California’s rule against class action waivers in arbitration agreements.

Under the facts of the AT&T, Vincent and Liza Concepcion signed up for AT&T’s wireless service, lured by the promise of “free” cell phones. They soon learned that the phones were not truly free of cost because AT&T charged each new subscriber sales tax on the retail value of his or her phone. The Concepcions filed a class action suit claiming that AT&T’s offer of a “free” phone was fraudulent. AT&T pointed to the written service agreement, which required arbitration and barred class actions, and demanded that the plaintiffs’ claims be submitted to individual arbitration.

However, according to California contract law, the arbitration clause and class action waiver were unconscionable and thus unenforceable. AT&T argued that the Federal Arbitration Act – which states that written arbitration agreements are generally valid and enforceable – trumped California law. Both the district court and the U.S. Court of Appeals for the Ninth Circuit rejected this argument, holding that the Federal Arbitration Act does not prevent California or other states from striking down class action waivers in arbitration clauses as unconscionable.

According to the five Justices in the majority, class arbitration is excessively formal, slow and costly to defendants, thus undermining the Federal Arbitration Act’s intent to promote arbitration. The Court’s decision changes the law in at least twenty states, where class action waivers have been held unenforceable.

In his dissenting opinion, Justice Breyer noted that the Federal Arbitration Act does not preempt state contract law principles regarding unconscionable contract provisions. He argued that arbitration and class treatment are not inconsistent, and that small-dollar claims will go unredressed if they cannot be challenged on a class basis.

Although the case arises in the context of a consumer dispute, the decision has been cited in subsequent employment decisions. While some courts have cited AT&T and Stolt-Nielsen to compel arbitration in the employment context, other courts have distinguished these decisions. The Southern District of New York, for example, rejected the argument that AT&T required the enforcement of a class arbitration waiver in a gender discrimination pattern and practice case, holding that enforcement of the arbitration clause at issue would interfere with the enforcement of a federal substantive right, namely Title VII of the Civil Rights Act. In another employment discrimination case, the Northern District of California concluded that an arbitration provision was unconscionable under state law, but the court nevertheless compelled arbitration, finding that the plaintiff had waived her right to object to the enforceability of the arbitration clause.  Many employers are likely weighing the addition of class action waivers into their mandatory arbitration clauses, while the lower courts continue to grapple with the application of AT&T and Stolt-Nielsen in the employment context.

At least one thing is clear – the Supreme Court’s recent arbitration decisions further limit the ability of individuals to vindicate their rights in a court of law and to proceed as a class to challenge systemic violations of the law. These decisions threaten the critical procedural protections established by state law to ensure that unconscionable contracts are not enforced.

Here too a legislative remedy would address the Court’s recent rulings. The Arbitration Fairness Act, which was also reintroduced in the 112^th Congress, would prohibit forced arbitration clauses in employment, consumer and civil rights cases.

The Supreme Court’s decisions in Wal-Mart v. Dukes and AT&T delivered a one-two punch that diminished essential rights for workers in this country. They underscore the need to strengthen federal laws to deter companies from unlawful conduct and provide real remedies for those who experience discrimination. In the meantime, the rights of workers like Betty Dukes hang in the balance.

Cross-posted from SCOTUSblog.com.

Debra Ness, President

It’s Women’s Equality Day – a commemoration of the 19^th Amendment and women’s steady march toward equality, a tribute to how far we have come, and a reminder of the work still to do.

Women have achieved much in the past 91 years. We hold positions of power throughout our government and society. We constitute half the workforce. We are the primary or co-breadwinners in six out of 10 families. And more women than men are attending college. These achievements – and many, many more – are a testament to the hard work of the leaders who came before us and all of us who work to keep the dream of full equality alive.

But today, it’s clear that we’re not yet there. In too many aspects of our lives, women’s rights and equality still don’t exist – or they are under attack.

In the workplace, women are still paid only 77 cents for every dollar paid to men – an unacceptable wage gap that hurts women and their families nationwide. And, despite our equal numbers in the workforce, we are still vastly underrepresented in many well-paid occupations.

This is made worse by a failure to provide family friendly workplace policies. Women today bear the brunt of the burdens caused by a lack of paid sick days and paid leave standards in this country. As primary caregivers and co-breadwinners, when women can’t take paid time off to recover from pregnancy or illness, or to care for a sick child, they have to make impossible choices between their families’ health and a paycheck.

Outside of the workplace, our basic health and reproductive rights are under attack. Conservative lawmakers are determined to restrict access to abortion services. And efforts to repeal and defund health reform – the greatest advance for women’s health in a generation – are relentless. These dangerous attacks threaten women’s access to essential care and many of our hard-fought victories.

Women cannot afford these giant steps backward – and neither can our families. We have come a long way since the passage of the 19^th Amendment, but there is still much to be done to achieve the dream of full equality. We must redouble our efforts, learn from past successes and continue the march.

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

The Supreme Court’s decision in Wal-Mart v. Dukes was deeply disappointing for those who care whether workers can vindicate their statutory rights. Last week’s narrow and controversial decision creates new hurdles for the 1.5 million women who are fighting the discriminatory pay and promotion practices of the nation’s largest private employer and for all workers who seek to challenge systemic employment discrimination in the future. The ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it.

Wal-Mart’s ten-year strategy in this case was to divide and conquer. Unfortunately, that strategy prevailed before the Supreme Court. The corporate giant convinced a narrow majority to reverse lower court decisions to certify the class of women. The Court was sharply divided on the question of whether the women should be allowed to move forward.

Justice Scalia’s opinion for the five justices in the majority held that the women could not proceed because they did not satisfy the commonality requirement of Rule 23(a) of the Federal Rules of Civil Procedure, which provides that a class can only proceed if there are common questions of law or fact.

By contrast, Justice Ginsburg’s opinion for the four dissenters found that the plaintiffs’ voluminous anecdotal, statistical and sociological evidence did in fact present common questions that should enable the class to proceed. The dissenters recognized that the plaintiffs’ evidence “suggests that gender bias suffused Wal-Mart’s company culture.” They also recognized that the plaintiffs satisfied their burden to identify “particular policies and practices” that were “alleged to affect, adversely and globally, women employed at Wal-Mart’s stores.” In other words, the dissenters recognized a widespread culture of discrimination that played out in lower pay and fewer promotions for women.

While there was agreement that the class could not be certified under the procedures set out under Rule 23(b)(2), the dissenters would have remanded the case for a determination of whether the class could proceed under the notice and opt-in requirements of Rule 23(b)(3).

The majority’s narrow reading of Rule 23 in the case establishes new and troubling precedents. Even though the Court was presented with the limited question of whether to certify the class, the majority delved deep into the merits of the underlying claims of discrimination. They noted that an employer could not “operate[] under a general policy of discrimination” if it has an “announced” anti-discrimination policy on the books, as Wal-Mart did. The majority seemed to suggest that plaintiffs should have to meet some threshold ratio of affidavits relative to the number of class members. On one hand, the majority discounted sociological expert evidence of bias and stereotypes in the corporate culture on the basis that such evidence could not be quantified in precise figures; on the other hand, they discounted statistical evidence that quantified the discrimination.

Ultimately, the majority concluded that a corporate policy that delegated excessive, subjective decision-making authority to managers did not create a common question. However, the dissenters noted that unstructured policies and practices open the door for unlawful bias to creep into personnel decisions. “The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” wrote Justice Ginsburg. “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

The Wal-Mart decision underscores the urgent need for a system of justice that levels the playing field for individuals like Betty Dukes who challenge corporate Goliaths like Wal-Mart. As noted in the amicus brief filed by the National Partnership for Women & Families, the U.S. Women’s Chamber of Commerce and California Women’s Lawyers, historically, class actions have served as a tool to do just that – to level the field for workers seeking to vindicate statutory rights and obtain meaningful relief. Class actions have long played a key role in rooting out discrimination, and they provide an efficient mechanism that can serve the interests of workers, employers and the courts.

Even though the Court dealt a significant blow to the women of Wal-Mart and to the class action vehicle with this decision, the fight for fair pay and fair opportunities for advancement for women is not over. This decision was a denial of class certification alone; it did not pertain to the merits of the significant claims of discrimination. The plaintiffs have vowed to continue their fight for justice in the courts through smaller class actions or individual cases.

On a parallel track, advocates will intensify the fight to advance policy solutions. The Court’s decision underscores the need for legislation like the Paycheck Fairness Act, which would deter companies from breaking the law and provide real remedies for those who experience discrimination.

Women need fair pay and fair opportunities for advancement – for themselves, their families and the strength of our communities. The pursuit of justice at Wal-Mart and throughout the country is far from over.

Judith L. Lichtman, Senior Advisor

Today, the Supreme Court ruled that the women of Wal-Mart cannot proceed as a group as they challenge the company’s discriminatory pay and promotion practices. It was a disappointing day for the women involved in the case and for all of us who are fighting for fair pay and fair opportunities for advancement for America’s women.  But today’s decision is not the end.

The good news is that the Court’s decision was not about the merits of the women’s charges, only whether or not they could continue with the case as one group or class. On that question, the Court decided that the women of Wal-Mart did not have enough in common to bring a class action for claims of discrimination. Incredibly, the Justices relied on the fact that Wal-Mart has a written policy prohibiting discrimination, paired with individual managers’ discretion, to support its ruling. As all three women on the Court, led by Justice Ginsburg and joined by Justice Breyer, noted in dissent, the majority ignores the realities of how employment discrimination really plays out in the workplace. “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

This setback means that the women of Wal-Mart will have to continue their pursuit of justice in smaller groups and through individual cases. After 10 years of fighting for their day in court, there is no doubt that many will continue to do so. Wal-Mart can now expect to deal with thousands of charges of discrimination nationwide.

These women have legitimate cases and Wal-Mart – as the nation’s largest private employer – must be held accountable. There is clear evidence that the company paid women less than men in every job category and that managers hand-picked employees for promotions based on a “good old boys” network. That is unacceptable – and it is against the law.

What is just as clear is that this opinion underscores the serious need for a federal law that will help prevent and remedy pay discrimination against women in this country.  America’s families rely more than ever on women’s incomes—which makes the need for fair pay all the more urgent.

Wal-Mart’s actions are part of a larger pattern of discrimination in this country. Women are still paid, on average, only 77 cents for every dollar paid to men. We hold only 40 percent of management positions and one out of six corporate officer positions.

Part of the reason pay inequity is so widespread is because employers know that under existing laws they won’t be held accountable for discrimination’s true cost. And most victims of pay discrimination don’t realize they’re being underpaid. Many employers, like Wal-Mart, discourage or prohibit their employees from discussing their wages with co-workers.

Fortunately, the Paycheck Fairness Act – re-introduced in Congress on Equal Pay Day this year – would close the loopholes in existing laws that make it easier for employers to engage in pay discrimination, protect employees who discuss or inquire about pay, and strengthen the penalties for employers who choose to break the law. If the Paycheck Fairness Act had been in place 10 years ago, many women in the Wal-Mart case would have been protected from the discrimination that they are challenging today.

The pursuit of justice for the women of Wal-Mart and women facing discrimination around the country is far from over. The Wal-Mart women will continue to challenge the company’s policies in the courts, and we will continue to call on Congress to pass the Paycheck Fairness Act and other measures to restore our civil rights protections.

Women need and deserve fair pay and fair opportunities for advancement. We will get there, in spite of today.

Debra Ness, President

President Obama hit the mark during his recent Women’s History Month address on fair pay when he said that “achieving equal pay for equal work isn’t just a women’s issue. It’s a family issue.” At the National Partnership, we’ve been saying the same thing for decades: when women do better, families do better. It couldn’t be more true.

Women today are balancing more roles than ever before, including, in more and more cases, that of sole or co-breadwinners for their families. The majority of working mothers in the United States now bring in at least a quarter of their families’ income. Nearly 14.5 million households nationwide are headed solely by women. Women are an integral factor in the economic security of America’s families.

That’s why the fact that women are still being paid only 77 cents for every dollar paid to men is so concerning. In 1963, women were paid just 59 cents for every dollar paid to men. That means that in nearly five decades the wage gap has closed at a rate of less than half a cent per year. At this pace, women will have to wait another four decades to even come close to wage equality.

Women and families have waited long enough. The time to prioritize fair pay is now.

When women are paid low wages and suffer from wage discrimination, the strain is felt throughout their families and communities. In tough economic times like these, the loss of critical income can mean the difference between having basic necessities, and going without. For those living in or near poverty, the consequences of wage discrimination can be particularly severe.

For Equal Pay Day, the National Partnership released state reports that illustrate the harm being done to women and their families as a result of the wage gap. The findings are astounding. In states across the country, women are collectively losing tens of billions of dollars annually – money that could alleviate the strain on countless families and pay for years’ worth of basic necessities. Alaskan women, for example, could buy 1.7 years’ worth of food with the money they lose. In Connecticut, women could pay for 15 more months of rent. California’s women could buy 2,100 gallons of gas.

That’s what the wage gap is costing families. But solutions are within reach. One of them will advance today, on Equal Pay Day, when Senator Barbara Mikulski (D – Md.) and Representative Rosa DeLauro (D – Conn.) re-introduce the Paycheck Fairness Act. By closing loopholes in the Equal Pay Act and establishing stronger workplace protections for women, the legislation can break harmful patterns of wage discrimination and tighten the wage gap.

We need every member of Congress to support this common sense bill. President Obama has already shown his commitment to equal pay by signing the Lilly Ledbetter Fair Pay Act as his first piece of major legislation, establishing the National Equal Pay Enforcement Task Force to crack down on wage discrimination, and publicly continuing to call for fair pay.

The public is on board too. In a national poll, 84 percent of registered men and women voters said they support a law – like the Paycheck Fairness Act – that would give women more tools to get fair pay in the workplace. Seventy-two percent said they strongly support such a law. The public knows what too many legislators and employers have failed to figure out. When women do better, families do better, and we all benefit. It’s just that simple.

So let’s keep up our energy and momentum in the coming months, and remind lawmakers about what is really at stake in the fight for fair pay. It is certainly about women and achieving true equality, but it is also about the economic security of families – yours, mine, and the generations of families to come. It’s time to take a stand for fair pay.

Director of Workplace Fairness

In a few months, the Supreme Court will decide if the women in the landmark Dukes v. Wal-Mart wage discrimination case will get their day in court to challenge unfair pay and promotions. Today, on Equal Pay Day, Senator Barbara Mikulski and Representative Rosa DeLauro will re-introduce the Paycheck Fairness Act – legislation that would establish workplace supports to help advance fair, discrimination-free workplaces. Both are big news in the fight for fair pay this year, and both represent critical ways to combat the wage discrimination that continues to hurt America’s women and their families.

Currently, a full-time working woman in the United States is paid, on average, $10,622 less than a full-time working man. For African American and Latino women, the gap is even worse, $18,514 and $23,806 respectively. Those who doubt the wage gap and its relevance argue that differing experiences, priorities and choices are the true culprit but, according to a 2003 study conducted by the Government Accountability Office, even after accounting for personal choices, a significant wage gap remains. The data and stories from women across the country prove that, sadly, wage discrimination persists in today’s workplaces.

To effectively combat wage discrimination, working women need to be both aware that they are being paid unfairly, and capable of challenging their employers’ actions. In the case of Dukes v. Wal-Mart, 1.6 million current and former female employees at Wal-Mart are attempting to do just that. The women have come together to challenge the widespread, systemic discrimination in pay and promotions they suffered at the hands of the nation’s largest private employer. The company is arguing that the group is too big and too dissimilar to proceed with the case as a class. On March 29^th, the Supreme Court heard arguments on whether or not the case should continue. Its decision is expected in June.

In cases of wage discrimination in particular, often women don’t know that they are being paid less than their male co-workers because many employers discourage employees from sharing salary information. If they do find out, many fear retaliation for reporting it or taking action. Other women don’t have the resources to hire attorneys and follow through with their claims in court.

This situation allows unlawful wage discrimination to continue – and it’s what makes Dukes v. Wal-Mart especially important. If women can’t come together to challenge unequal treatment, countless instances of discrimination will go unaddressed.

The ability to combat wage discrimination once it has happened is critical but it would be better if we could prevent the discrimination in the first place. That is why strengthening wage discrimination laws and the enforcement of those already in place is essential. The Paycheck Fairness Act is a huge step in that direction. The bill would make it easier for employers, employees and government agencies to identify discriminatory pay policies, while also enhancing those agencies’ ability to enforce wage discrimination laws. If passed, the Paycheck Fairness Act would help to prevent the wage discrimination that is taking a significant financial toll on working women and their families.

There is no one solution to the problem of unequal wages in this country. But protecting women’s ability to challenge wage discrimination and helping to prevent it through greater transparency and improved enforcement would be a good start. Those simple steps could change the lives of generations of women.

In honor of Equal Pay Day and recent steps to advance fair pay, let’s harness the energy around this issue and recommit to turning the vision of workplaces free from wage discrimination into reality.