The Importance of Class Actions in Fighting Workplace Discrimination

By Ariela Migdal, Staff Attorney, ACLU Women’s Rights Project

It’s no secret that the fight for equality in the workforce is far from over. In fact, even though it’s been more decades since Congress passed the key laws that were supposed to eradicate employment discrimination ― Title VII of the Civil Rights Act of 1964 and the Equal Pay Act ― inequality in the workforce stubbornly persists, and on a large scale. Women make less money than men, are less well-represented in higher-paying positions, and suffer inequality in promotions.

In recent years, employees have fought back, banding together to challenge widespread discrimination by large national corporate employers. Workers have brought class action lawsuits to combat discrimination in pay, hiring, promotion, and other practices at gigantic companies, including Wal-Mart, Costco, Novartis, Home Depot, Merrill Lynch, and others.

Because these companies are so big, with many workers in different locations, it’s hard for any one employee to make an impact through an individual lawsuit. Systemic challenges to discriminatory practices are often brought as class actions on behalf of a large group of the company’s workers. Some challenge the companies’ pay practices, others challenge the way the companies hire or promote workers, especially when hiring or promotion is done based on subjective decisions made by a mostly-male set of managers. The class action system for bringing workplace discrimination lawsuits allows workers to make their collective voices heard and aggregate their individual claims into a larger case that gets the attention of employers and the public.

Unsurprisingly, employers have been hostile to class actions. They have argued in court, with some success, that discrimination is not a systemic company policy, and that plaintiffs’ grievances amount to a series of unconnected employment decisions that don’t add up to a class action.

This was the argument made by the Cintas Corporation, a company that supplies uniforms to businesses. Cintas is the defendant in a nationwide class action lawsuit alleging that it discriminated against women in hiring sales representatives. More than 90 percent of the sales representatives hired during the years in question were men, and more than 90 percent of the hiring managers were men. Yet the trial court bought Cintas’s argument that the hiring decisions were all made for a diverse range of reasons, not linked by a company policy of sex discrimination, and that the court should not hear the case as a class action.

The women appealed. Last Wednesday, the ACLU and other civil rights groups filed a brief arguing that the trial court was wrong to look at each individual hiring decision in isolation, instead of as part of a pattern. The class action system is designed to make sure courts don’t miss the forest for the trees. And the fight against discrimination depends on workers being able to stand up to discrimination together, instead of one at a time.