By Gretchen Cook
Monday, December 20, 2004
Gender-bias suits enjoyed a banner year in 2004 despite an increasingly unfriendly legal and political climate. Successful litigants, lawyers say, often measure victory more in terms of boosted confidence than dollars.
(WOMENSENEWS)--Looking back on it, 2004 was a banner year for gender-bias suits as U.S. female employees brought actions against some of the biggest companies in the world.
A suit pending against Wal-Mart, Bentonville, Ark., that covers up to 1.6 million women charges the mega-retailer with systematically denying women pay and promotions.
Costco faces a class action by 650 current and former female employees, who make up 50 percent of its work force but hold just 12 percent of general manager posts. The complaint says that job openings at the retailer--based in Issaquah, Wash.--are not even posted and that there are not any application procedures--other than a "tap on the shoulder"--almost always by a man.
Last July there was a spree of settlements.
That month, Home Depot agreed to pay $5.5 million to settle a discrimination and retaliation suit on behalf of 38 Colorado employees who alleged hostile work environments and discrimination on the basis of sex, race and national origin at the home-improvement giant based in Atlanta, Ga.
Boeing in July said it would pay between $40.6 million and $72.5 million to as many as 29,000 current and former female workers in its Seattle-area aircraft plants in July to settle a class-action gender bias suit against the aerospace company.
On July 12, Wall Street brokerage firm Morgan Stanley agreed to settle a $54 million sex-discrimination suit covering up to 340 women, who said they were denied equal pay and promotions.
These high-profile cases have drawn much-needed attention to issues of workplace discrimination, said Irma Herrera, the executive director of Equal Rights Advocates, a San Francisco-based organization that works to secure equal rights and opportunities for women and girls through litigation and advocacy. The group is working on behalf of female employees of Wal-Mart, and the plaintiffs' lawyers have received over 5,000 calls for current and former employees since the class-action suit became public, Herrera said.
"But for every woman who calls us, there are 1,000 out there who aren't calling," she said. "We have to focus on what we can do to ensure compliance with [anti-discrimination] laws and what we can do to keep these issues in the public eye."
On the Supreme Court level, gender bias suits have captured media attention. One pending case, Jackson v. Birmingham Board of Education, focuses on the issue of gender discrimination in high-school sports. The case came up when a girls' basketball coach in Alabama was fired after protesting the unequal treatment of his players.
But that doesn't mean that female workers who have been putting up with lower wages than male counterparts or who are tired of watching younger male colleagues zoom past them on the corporate ladder can expect a more sympathetic legal and political climate, says Georgetown University Law Center Professor Nina Pillard.
Pillard, who has litigated numerous gender discrimination cases and lectures frequently on the subject, says lawyers are also less likely these days to work pro bono--usually the only way working class women can afford to sue--because income for their paid work has been trending downward like the economy.
Legal aid organizations, meanwhile, says Pillard, are disappearing fast.
Worse still, the Equal Employment Opportunity Commission--the government's discrimination law enforcer--is overloaded, under-funded and lacking the political mandate to pursue sex discrimination cases aggressively, says Pillard.
So why have so the new suits emerged against this discouraging backdrop?
Pillard says the answer, at least in part, is in part the sorry state of the employment market. There have been 2.7 million jobs lost in the manufacturing sector alone since 2001, the year Bush took office and New York and Washington were attacked.
"It's natural for people who are victims of discrimination to just move on and try to find a new job," says Pillard. "But when you have a tighter job market, people who are discriminated against have it harder and find alternatives" like lawsuits.
Linda Meric, with the Milwaukee-based 9 to 5 National Association of Working Women, emphasizes that there aren't necessarily more cases, just bigger, more visible ones.
"It's class-action suits versus individual ones so there's more people and more money and these high-profile cases just get more attention," she says.
While the legal and political hurdles to prosecuting gender bias suits are mounting, some social barriers may be coming down.
Americans appear more willing to recognize gender bias in pay and hiring.
A Findlaw Web site survey posted in July, finds 16 percent of women say they have experienced job discrimination because of their gender.
Many women and men believe women are not paid fairly, according to a series of polls collected by the Washington-based National Committee on Pay Equity, a nonprofit group.
Meric says that increased public recognition of gender bias does help these cases. Plaintiffs, she says, also benefit when they pursue class action suits. It's much easier when a group--rather than an individual--sticks its collective neck out. "There's always strength in numbers," says Meric.
That was certainly the case for Dona De Sanctis. For years, she believed she was the problem.
She'd been turned down for dozens of jobs with the U.S. Information Agency though she says she scored high on the agency's application tests and was eminently qualified.
"You're just awash with self-doubt. Nobody seems to want you. I felt awful," says De Sanctis, who worked as a temp for nine months at the agency's Voice of America broadcast network in 1984.
Then came a phone call five years later from attorney Bruce Fredrickson, hot on a class-action suit against Voice of America.
He charged the agency skewed the hiring process in favor of men, resorting among other things to tampering with test scores and personnel files. Some 1,100 women were victims of those tactics, and De Sanctis' case was one of the most egregious. The suit launched in 1977 dragged on for more than two decades. Finally in 2000, 11 years after Fredrickson's first call, De Sanctis was awarded some $500,000--minus substantial taxes--as part of a $508 million settlement, the largest such award in the history of the Civil Rights Act.
De Sanctis says the vindication and boost to her self-confidence were more important than the financial settlement. "The most important thing was I had my day in court and those men had to get up on the witness stand and, quote, explain their action. I know it sounds Pollyanna, but that was worth the half million."
De Sanctis is now deputy executive director of the Sons of Italy, the largest Italian-American heritage organization, which is based in Washington, D.C. "It never occurred to me I was being discriminated against. All those years I'd carried around that gnawing feeling that I somehow had not been good enough to work for the USIA."
Some of the new discrimination suits may actually dwarf that historic Voice of America settlement financially. But Fredrickson, a partner at Webster, Fredrickson and Brackshaw, in Washington, D.C., says many of those new litigants will, like De Sanctis, value their moral victory more than anything.
"A lot of women just take what people say at face value and they are typically harmed in more ways than are economic," says Fredrickson. "Going through the process and getting vindication tells you it's not your fault, [that] it's the employer who was treating you unfairly."
Fredrickson says the plaintiff's emotional suffering figures largely when he argues for compensation. But how does he put a price on that?
"That's exactly what juries are for," he says. "Not just to size up 'was there discrimination here?' but 'has she been harmed emotionally and mentally?' Because it's a difficult concept to assess the value, it's critically important that juries serve that function."
Fredrickson believes juries can handle this responsibility. "People do recognize that work is a very vital part of our lives and when that's taken away from you, there's more than just pocketbook harm."
-- Robin Hindery contributed to this story.
Gretchen Cook is a Washington, D.C., print and radio reporter.
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