On the Legal Front: Eric Joins the Front
Art Gutman
Eric Dunleavy
Introducing Eric Dunleavy. I want to extend a warm welcome to Eric Dunleavy, who will be joining me as co-columnist for On The Legal Front. I introduced Eric to you in the January 2007 issue of TIP as a guest columnist. His work speaks for itself. Eric and I have been communicating about legal issues for the past 5 to 6 years and have collaborated on a number of projects over the past 2 years. I have a world of confidence in and respect for his talents. Our plan is to each do two columns a year and, on occasion, write jointly. I know you will enjoy his work as much as I do. AG
I was excited to be a guest columnist in On the Legal Front for the January 2007 column, and I am thrilled to be a co-columnist now. This column is a source that the I-O community can use to maintain familiarity with legal issues that are relevant to our discipline. Staying familiar with these legal issues is important because case law continues to evolve with shifting legal theory, changing burdens of proof, and revised professional guidelines. For example, a number of cases in 2007 have had implications for the legal defensibility of personnel practices, and there are more I-O-relevant cases on the docket. In addition, both the EEOC and the OFCCP have recently started large scale initiatives designed to combat systemic discrimination so it is likely that more claims and cases relevant to I-O are on the way.1, 2
1 http://www.eeoc.gov/abouteeoc/task_reports/systemic.html
2 http://www.dol.gov/esa/regs/compliance/ofccp/faqs/comstrds.htm
For those that don’t know me, I work for the American Institutes for Research in the equity analysis practice area, which offers employment discrimination litigation services. During my tenure at AIR we have focused primarily on large-scale class action lawsuits involving both adverse impact and pattern/practice scenarios, as well as some smaller disparate treatment cases. I have also been bugging Art about his columns since my second year in graduate school. Over the years, I may or may not have asked Art things like “Have any Supreme Court Justices had you arrested for things you wrote about them in your column?,” “Are you sure applicant flow data are more appropriate than similarly situated groupings for this type of claim?,” “What happened in Wards Cove? I know you’ve told me at least 15 times, but I still have no idea,” and “What exactly does constructive discharge mean? Does anyone in the world actually know?” Art has probably forgotten more legal issues than I have encountered, but hopefully my columns will be relevant for practitioners and academics alike who are interested in the legal defensibility of personnel practices.
In my mind, Art has been writing this column with a couple of larger goals in mind, and I am on board with them 100%. First, I think his primary goal is to keep the I-O community updated on happenings in employment discrimination litigation in real time. This issue of real time is an important one in my mind because we are all practicing our trade in real time, and finding out about new professional or legal standards years after they happen won’t help when a client, lawyer, or judge asks about it before then. Being familiar with the most recently favored legal standards, the most up-to-date professional guidelines, and recent enforcement agency policies is critical to those of us involved in developing personnel practice systems that will be in operation today, tomorrow, and well into the future. Art has been doing a terrific job with this by writing about rulings as soon as they happen, and the last three columns on employer retaliation post-BNSF v. White have been a great example of this.
Second, I think that Art also wants the column to accurately depict the larger political and societal context in which employment discrimination occurs and is litigated. Societal philosophies in this day and age do influence what is considered fair versus unfair and what is legal versus illegal. In other words, societal priorities may change over time.3 These philosophies are perhaps most clearly operationalized in what is happening in the courts and in enforcement agencies like the EEOC and OFCCP. I think that in some cases what goes on in Washington D.C. can help us to better understand trends in discrimination charge and litigation statistics, enforcement agency initiatives, and court decisions. I think Art has depicted the larger societal context in which employment discrimination litigation occurs and has left his personal political and social beliefs out of his columns (which isn’t always easy). Examples include his preview of Supreme Court Justice Alito’s view on various EEOC-related issues in the April 2006 column, and his treatment of Supreme Court Justice O’Conner’s legacy in the October 2005 column.
3 For a great example of context importance, see Richard Ugelow’s chapter on I-O psychology’s role in the Department of Labor (DOL) in Employment Discrimination Litigation edited by Frank Landy.
Third, I think the norm in this column has been to summarize a ruling and then to go much deeper. In other words, the real lessons learned are the “whys” behind particular rulings and often require consideration of professional guidelines, statutes, and relevant case law. In addition, understanding the whys can help us understand the potential implications of rulings as they relate to everyday I-O psychology. I think just about all of Art’s columns are good examples of this.
I’m taking the approach that if it isn’t broken don’t try to fix it, and when I am contributing to this column my goals will be to (a) update the general I-O community of relevant legal issues in real time, (b) consider the larger social context as a partial explanation of what is happening, and (c) dig a little deeper to understand the specifics of why a particular thing happened and consider potential implications.
Because Art and I are splitting this column, and I just spent some space giving you my perspective on the column, I thought I would preview two cases that have been ascending up the ladder of appeals courts toward the Supreme Court. Both will likely warrant full columns once rulings at higher levels are available and, for the purposes of this column, will be introduced only briefly. The first case is a little pattern and practice case called Dukes et al v. Wal-Mart, and you may have heard of this one. Something about a potential class of 1.5 million, potential damages in the billions, and some potential precedent-setting rulings for class certification across all types of litigation. Although this case is only in the class certification stage, it has already gone through one district court ruling and one appeals court ruling (2 to 1) in the 9th circuit and may be heading to a full 9th circuit en banc hearing soon. The second case is Ledbetter v. Goodyear Tire & Rubber Co., which is already on the Supreme Court docket in 2007, and concerns the time period that can be included in an employee’s lawsuit alleging discrimination in pay under Title VII. This case is likely going to require the court to determine whether compensation discrimination is a continuous or dichotomous phenomenon under Title VII.
Dukes et al v. Wal-Mart
Believe it or not, but this case was first referenced in TIP back in 2004, when Michael Harris and Lisa Harpe wrote about class action lawsuits in the employment discrimination context. Interestingly enough, the case is still at the class certification stage 3 years later. However, progress has been made. There are a number of legal issues being debated at this stage of the case, and some have more relevance to personnel testing than others. This case may become the prototype for what the EEOC refers to as “systemic discrimination,” which may include pattern and practice scenarios, adverse impact scenarios, or a combination of the two if discrimination occurs against an entire protected class via employment decisions and policies.
In this case, six named plaintiffs filed a class action suit alleging sexual discrimination under Title VII. As mentioned above, the district court certified the class, which may include between 1.5 and 2 million women who were similarly situated. Specifically, the class may include current and former female employees from 3,400 stores from 41 regions. The claim alleged that women employed at Wal-Mart stores (a) are paid less than men in comparable positions, (b) receive fewer promotions to in-store management positions, and (c) wait longer for these promotions. Thus, there are really three separate employment practices of interest here, which is common in pattern and practice claims of intentional discrimination.
Importantly, the plaintiffs asserted that Wal-Mart’s centralized structure facilitates gender stereotypes and that there was a pattern and practice of discriminatory treatment throughout Wal-Mart stores. In the eyes of both the district and appeals court the plaintiffs satisfied Rule 23 of the Federal Rules of Civil Procedures.4 The plaintiffs satisfied this rule by using (among other things) a combination of (a) sociological expert testimony focusing on the existence of a “centralized Wal-Mart culture,” (b) statistical expert testimony focusing on disparity analyses that supports gender gaps in the personnel practices of interest, (c) anecdotal evidence of gender bias, and (d) evidence that the policies and procedures in question were subjective in nature but were still centralized policies and procedures.
4 This is perhaps the most relevant dimension of the ruling for those in I-O. Please refer to the article by Harris and Harpe for a review of the prongs of this rule.
Wal-Mart appealed the appeals court ruling and petitioned for rehearing en banc, which would be in front of a larger group of 9th circuit judges. The appeal focused on potential errors in the court’s ruling that class certification requirements of Rule 23 were satisfied, as well as issues related injunctive versus monetary relief and potential damage computation methods that would violate due process. So will Wal-Mart get an en banc review? My guess is yes given the potential size of this class and potential damages, and because their appeal reads very similar to issues brought up by the dissenting appeals judge. Will the full en banc court decertify the class? If I had to guess without seeing the specific expert testimony, I would say probably not. If the district and appeals courts made an egregious error in interpreting Rule 23, it isn’t obvious to me as of right now. However, if plaintiff expert testimony is thrown out for any reason, then all bets are off. Likewise, the issues of injunctive versus monetary relief, damage computation methods, and due process may play a role in the ruling at the next level regardless of what happens concerning Rule 23. If an en banc ruling becomes available, you will see it here.
Ledbetter v. Goodyear Tire & Rubber Co.
This disparate treatment case will require the Supreme Court to consider the time period that can be included in an employee’s lawsuit alleging discrimination in compensation under Title VII. Briefly, the facts of the case are as follows. Lilly Ledbetter worked at the Goodyear Tire and Rubber Co. and claimed that Goodyear paid her a lower salary than her male co-workers because she is a woman. A jury from the U. S. District Court of Northern Alabama found that Ledbetter was paid less than her male counterparts because of her gender. In making their ruling, the jury considered a series of discrete pay review decisions made at different times by different people over Ledbetter’s long career at Goodyear and ruled in favor of the plaintiff.
Goodyear Tire & Rubber Co. appealed, and the 11th Circuit reviewed the case and chose not to consider the entirety of Ledbetter’s career. Instead, the Court held that, in cases where employers have a standardized method for evaluating employee pay, an employee can only consider the last discrete act affecting pay before the start of the limitations period. That is to say, a claim under Title VII must stem from a specific discriminatory act, like a particular paycheck, promotion, or raise. Because evidence was not within the limitations period created by the Title VII charge, the appeals court reversed the ruling and instructed the original court to dismiss the complaint.
So, it appears that the Supreme Court will have to consider whether pay discrimination should be treated as a discrete or continuous phenomenon when pay is systematically evaluated by the employer. Every paycheck after an initial discriminatory act may represent a lower salary as compared to what that salary would have been without discrimination. This continual aggregation of inequity may be considered adverse enough to reset the statute of limitations, similar to the way hostile environment claims do not represent individual acts of discrimination. Of course, it may be difficult for employers to defend against allegedly discriminatory pay decisions made years earlier under different compensation systems. The Supreme Court’s decision in this case is expected some time this summer.
Cases Cited
Dukes, Surgeson, Page, Gunter, Williamson, Kwapnoski, and Arana v. Wal-Mart Inc. No. 04-16720 D.C. No. CV-01-02252-MJJ
Ledbetter v. Goodyear Tire & Rubber Co., U.S. No. 05-1074, cert. granted 6/26/06.
References
Harris, M. M., & Harpe, L. (2004). Practice network: Class action lawsuits in the employment discrimination context: What I-O psychologists should know. The Industrial-Organizational Psychologist, 42(1), 89–97.
Ugelow, R. S. (2005). I-O psychology and the Department of Justice. In Landy, F. J. Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives. San Francisco: Jossey-Bass.