Wal-Mart v. Women
The employment discrimination lawsuit against Wal-Mart, which the Supreme Court heard last week, is the largest in American history. If the court rejects this suit, it will send a chilling message that some companies are too big to be held accountable.
It began in 1999 after Stephanie Odle was fired when she complained of sex discrimination. As Ms. Odle recounted in sworn testimony, as an assistant manager she discovered that a male employee with the same title and less experience was making $10,000 a year more than her.
She complained to her boss, who defended the disparity by saying the male had a family to support. When she replied that she was having a baby that she needed to support, the supervisor made her provide a personal budget and then gave her a raise closing just one-fifth the gap.
The plaintiffs who have brought a class action on behalf of 1.5 million current and former female Wal-Mart employees allege that they, too, faced discrimination in pay and promotion. If Wal-Mart loses, it could owe more than $1 billion in back pay.
Wal-Mart has tried to end the litigation by arguing that 1.5 million women do not have enough in common to sue for discrimination as a single class under the Federal Rules of Civil Procedure. A federal trial judge said they do. The United States Court of Appeals for the Ninth Circuit upheld that ruling, twice.
But during oral argument last week, conservative justices and liberals to some degree expressed skepticism: Is there enough “cohesion” among the women to justify treating them as a single class? If so, how could a solo trial judge manage such an enormous class action?
A brief by 31 professors of civil procedure explains why the women are a suitable class. Their claims meet the core test: They have in common the question of whether Wal-Mart discriminated against them. Meanwhile, the high cost of litigation compared to the low likely individual recoveries would make it hard for the women to proceed any other way.
The average wage gap each year for every member of the class is around $1,100, too little to give lawyers an incentive to represent them. The best way to judge their rights efficiently and fairly is by recognizing them as a group. That is the purpose of the class-action rule.
The case record contains 120 sworn statements made recounting sex discrimination in pay and promotion but also in the work environment: required company fishing trips where women weren’t included on their male peers’ boat; a supposedly retaliation-free system for complaints that led to women being fired. The lower courts ruled that this and other evidence provide compelling reasons for the case to move forward. The justices should move it along by having the trial judge allow further fact-finding.
If the court has doubts about whether the class is cohesive or manageable enough, it should ask the trial judge to explore whether there is a single class or more than one — say, salaried female employees and hourly employees or female store managers and other kinds of employees. That would be much fairer than dismissing the case and insisting that 1.5 million women fend for themselves.
Better Protecting Prisoners
The Justice Department is finalizing new rape-prevention policies that will become mandatory for federal prisons and state correctional institutions that receive federal money. The rules, based on recommendations from a Congressionally mandated commission, would be a major improvement. But the department needs to remedy several weaknesses before it issues final regulations.
Rape and other forms of sexual abuse by fellow inmates or correctional officers are a chronic hazard in prisons, jails and juvenile facilities across the country. According to federal estimates, 200,000 adult prisoners and jail inmates suffered some form of sexual abuse during 2008.
That works out to about 4.4 percent of the prison population and 3.1 percent of the jail population. The numbers are even higher in juvenile institutions, with 12 percent of the total population suffering some form of sexual abuse. Statistics showing that some institutions have higher rates of assault than others are consistent with the finding of the rape commission, which reported that some prisons had successfully created an atmosphere of safety while others tacitly tolerated assaults.
The commission came up with a long and compelling list of rape prevention recommendations, most of which have been adopted by the Justice Department. It is demanding a zero-tolerance approach to rape behind bars and will require better training of staff members, more effective ways to report assaults, more thorough investigations and better medical and psychiatric services for victims. In perhaps the most revolutionary development, prisons would be required to make sexual assault data public so policy makers could get a clear view of how well or how poorly vulnerable inmates were being protected.
Still, there are problems with the Justice Department’s approach. The decision to exclude immigration detention centers holding noncitizens goes against the Prison Rape Elimination Act of 2003, which defined a prison as any confinement facility administered by federal, state or local government.
Victims of sexual assault are often too traumatized to immediately speak out. So the provision permitting prisons systems to invalidate most complaints not lodged within 20 days seems arbitrary. Complaints should be taken seriously whenever they are reported. The department has obviously done the right thing by limiting cross-gender strip searches to emergency situations. But it should also set a goal of ending cross-gender pat-down searches.
Finally, the Justice Department needs to adopt the commission’s call for regularly scheduled, independent audits of prison rape prevention programs. That is the only sure way to know whether they are obeying the law.
A Temporary Reprieve for Nassau Bus Riders
A late infusion of cash from Albany has postponed the plan of the Nassau County executive, Edward Mangano, to cripple his county’s bus service, but only until the end of the year.
The State Senate came up with an $8.6 million bailout for Long Island Bus. That will allow the Metropolitan Transportation Authority, which operates the system, to put off cuts on more than half of the system’s 48 routes. At least 16,000 riders would have lost service, and 200 disabled riders would have lost their paratransit service. All bets are off in January because the system still faces a financing shortfall that Mr. Mangano doesn’t want to fill.
The transportation authority and Nassau County have long squabbled over financing for this essential service. Last year the county contributed $9.1 million of Long Island Bus’s $134 million operating budget. The transportation authority, which has long subsidized the money-losing bus system, wanted Nassau to kick in $24 million more to close a chronic $33 million shortfall. (It said the county has avoided paying its fair share for its own bus system the way Suffolk and Westchester Counties do. Westchester, whose bus system is as big as Nassau’s, paid almost $33 million last year for its buses.)
Mr. Mangano is going in the opposite direction. He wants to cut the county’s contribution to $4.1 million, sever Long Island Bus from the transportation authority and hand it over to a private operator. Buses limit traffic congestion and keep the economy moving. They are a means of survival for thousands of riders. Instead of protecting that vital service, Mr. Mangano says a privatized system would run better for significantly less money. That’s ludicrous, as anyone will tell you who remembers the 1970s, when the failures of Nassau’s jumble of badly run private bus lines prompted the state to rescue the system.
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