Class-action discrimination lawsuits after Wal-Mart

By Amanda Dysart & Ariela Migdal, ACLU Women’s Rights Project

Today, the United States Court of Appeals for the Sixth Circuit hears oral argument in Davis v. Cintas, one of the first nationwide class action discrimination cases to be argued since the Supreme Court issued its decision in Wal-Mart Stores v. Dukes last June. The court will decide whether women around the country who applied to be sales representatives at Cintas — a company that rents uniforms and supplies to businesses — can bring a class action to challenge what they claim are Cintas’s discriminatory hiring practices.

The women point to the fact that more than 90 percent of the sales representatives hired during the years in question were men, as were more than 90 percent of the hiring managers. They also argue that managers at Cintas based their hiring on stereotypes — like evidence that the CEO acknowledged a “myth” at the company that women could not be sales representatives, and statements by managers that women could not handle the job and their husbands would not like them working mostly with men. But the trial court found that the women who were rejected for the position did not have enough in common to proceed as a class.

The stakes are high — not only for the thousands of women in the class, but for all workers who need to band together to use class actions to challenge discriminatory workplace practices. Under the rules governing class actions, a group of people challenging discrimination can be certified as a class if they have questions of law or fact in common. Class actions allow people whose individual cases might not be worth much to band together to challenge broad, systemic discriminatory practices. Class actions are especially important for challenging workplace discrimination, like the hiring discrimination in Cintas, because workers often point to a pattern of discriminatory decision making that might go undetected, or be hard to prove, in the context of an individual decision not to hire someone.

In Wal-Mart, women workers brought a class action claiming that Wal-Mart promoted men over women and paid men more, using subjective practices that allowed local managers to rely on gender stereotypes in making decisions — like the stereotype that men need larger salaries because they are working to support their families. The Supreme Court, however, held in a 5-4 decision that there was no evidence of a company-wide policy to discriminate, but only one that allowed managers to hire and promote based on their individual discretion. In the wake of the decision, the women of Wal-Mart continue to push their case in smaller lawsuits, but they were forced to divide and conquer.

Cintas is one the first cases to consider the effect of the Wal-Mart decision on women’s ability to challenge discriminatory practices as a group. The ACLU wrote an amicus brief, along with the ACLU of Michigan and the Impact Fund, arguing that a class action is often appropriate where employees are trying to show that discrimination was the company’s standard operating procedure. Without a way to band together as a class, women will bring fewer sex-based employment discrimination claims, and without the fear of legal repercussions, companies will continue to discriminate against women on the job.

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