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White House Equal Pay Task Force ReportAAUW applauds the White House’s release of a progress report detailing the activities of the president’s Equal Pay Task Force. The report was released along with a presidential proclamation to mark April 17 as Equal Pay Day, the day women’s earnings finally catch up to what men made last year. The task force was created in 2010, and their report showed the group’s achievements to date on a host of equal pay and workplace sex-based discrimination issues.

In a tough economy, technical assistance to employers and civil rights enforcement are especially critical. Right now, most women are just relieved if they have work. They’re worried they might jeopardize their jobs if they ask too many questions, making them that much more vulnerable to pay discrimination.

The task force’s progress report noted areas in which they have been actively promoting full compliance with equal pay laws, working cross-departmentally to address gender pay disparities. AAUW is pleased to see special attention paid to enforcement and litigation efforts at the U.S. Equal Employment Opportunity Commission (EEOC), as well as increased interagency cooperation between EEOC, the Office of Federal Contract Compliance Programs (OFCCP), and the Department of Justice. Of particular note, OFCCP has evaluated the pay practices of more than 10,000 federal contractors, helping to ensure a fair shot at equal pay for more than 4.3 million workers.

AAUW is excited by the administration’s commitment to addressing pay discrimination. We hope they continue to use the bully pulpit to remind employers and employees of the centrality of the issue. After all, we’re all in this together – and when women aren’t paid equally, their families and entire communities suffer.

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AAUW is deeply critical of today’s U.S. Supreme Court’s sharply divided decision in Wal-Mart v. Dukes. Although the high court did not rule on the merits of the case, this misguided decision prevents the women of Wal-Mart from taking on America’s largest private employer as a nationwide class-action group, leaving each woman to file her claim individually or perhaps in smaller, reformulated class-action groups.

Named plaintiff Betty Dukes said in a conference call just hours after the decision, “I am disappointed that we were not able to proceed forward as a class action collectively. … We will fight one on one [and] we will persevere, even though we did not get the ruling we hoped for. We are still determined to move forward. … I believe the truth will come out on the merits of the case, and then we can go forward.”

Another named plaintiff, Christine Kwapnoski, asserted in the same conference call, “I will still be heard, I will just be saying it differently. …I’ll be saying it individually. …We’re not done with Wal-Mart yet.”

In the ruling, the Supreme Court chose to ignore more than 40 years of established jurisprudence and severely restricted the ability of workers to fight discrimination together in a class action. Essentially, the court’s extremely conservative decision gave great weight to the mere presence of a corporate anti-discrimination policy, even though it seems that the policy was routinely not followed. This decision appears to give a red light for future employee class-action cases and a green light for employers to continue to use highly subjective pay and sex discrimination practices.

“The Supreme Court says the Wal-Mart case is ‘simply too large.’ Maybe that’s because — from the corner office to the corner store — gender discrimination is widespread,” said AAUW Executive Director Linda D. Hallman, CAE. “The court ignored most of the evidence, a disturbing development for other fair pay and discrimination cases. What a missed opportunity to warm up the chilly climate many women still experience in the workplace.”

This disappointing decision comes just two days after Edith Arana, a named plaintiff in the case, and her attorney Arcelia Hurtado, executive director of Equal Rights Advocates, spoke at the AAUW National Convention. The women spoke as part of A Conversation on Justice, a session on workplace gender discrimination that took place on Saturday, June 18, at the Renaissance, Washington, D.C. Hotel. CSPAN filmed the session, which aired this morning.

While the ruling does not determine whether Wal-Mart is guilty of gender discrimination, it will have far-reaching effects on class certification in workplace discrimination lawsuits.

AAUW strongly believes in protecting the rights of Americans to bring appropriate class-action suits against discriminatory employers. Such cases ensure that all affected workers can right the wrongs against them and stand together in the face of corporate misconduct. Sometimes, class actions are the only way to force a company to change its unfair practices. Class actions also serve as powerful deterrents to keep other employers from engaging in the same practices.

“Wal-Mart is not off the hook. Nothing in this opinion changes the legitimate and timely claims of women workers at Wal-Mart,” said AAUW Director of Public Policy and Government Relations Lisa Maatz. “The Supreme Court has been wrong before — just ask Lilly Ledbetter. AAUW will be looking at all the angles in this case, and we still have a range of options available to right yet another Supreme Court wrong. This case is not over any more than the fight for pay equity is over.”

Any Wal-Mart and Sam’s Club workers who feel they have faced sex discrimination should contact walmartclass.com or Equal Rights Advocates. As Dukes stated in today’s conference call, “I am Betty Dukes, and my voice has been heard, but I am not the only Betty Dukes in this country. There are many, many more, and they need to contact us and let their voices be heard.”

“AAUW’s resolve will not be shaken by this decision, and this case is not over,” said Hallman. “We will continue to stand 100 percent behind the women of Wal-Mart as they pursue what’s only simple fairness.”

Take Action:

If you’re like me and are upset about this ruling, you can take immediate action by attending one of the many rallies that are planned for tomorrow around the nation. I’ll be participating in one outside the Supreme Court in Washington, D.C., from 11 a.m. to 2 p.m.

You can also take action by donating to the Legal Advocacy Fund and designating your donation to case support.

Already, AAUW’s Legal Advocacy Fund provided case support and signed an amicus brief for the plaintiffs in the case. Thanks to AAUW funds, lead plaintiff Betty Dukes and the other named plaintiffs, including Edith Arana, were able to come to Washington, D.C., to attend oral arguments at the Supreme Court in March.

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Lisa M. Frehill, the director of research, evaluation, and policy at the National Action Council for Minorities in EngineeringLisa M. Frehill, the director of research, evaluation, and policy at the National Action Council for Minorities in Engineering, talked with us last week about her experiences with workplace discrimination. Join Frehill and other esteemed speakers at AAUW’s Equal Pay Day panel on Monday, and remember that Equal Pay Day is Tuesday, April 12!

Have you ever faced discrimination in the workplace?

Yes. I started as an engineer in 1980. There was daily sexual harassment on the factory floor, but once I got accustomed to that, it was just “noise,” but I can now see that it could have deterred women from working as engineers at that plant. That actually bothered me less than knowing that I was given different assignments and different pay than equally qualified men. The subtle discrimination was far more problematic than the overt stuff. And when I entered academic employment, even though I was in a field with a lot of women, the different treatment of women and men was clear. Men were permitted more leeway to do things like not hold office hours, treat people badly, and teach poorly, whereas these offenses for women were not tolerated.

Tell us about the first time you negotiated your own salary.

When I took my first academic job, I had been told to negotiate salary. So when the department head called and made an offer, I immediately countered, and he pretty much chilled me out and said there was not any more money for salary. He basically closed the negotiation before it could even start. After I ran a program about increasing women’s participation in academia and learned more about gender differences in negotiation, I refused to let others shut me down so early in the process. I now negotiate all the time and have been quite successful.

What hopes do you have for the next generation of women?

That they will live in a world where you don’t have to negotiate for the things that you should rightfully be provided to perform your job well, [that] an employer will make sure that the resources necessary to perform work will be provided without the individual having to beg.

How did you get involved in this issue, and what are your future plans?

I have long known that engineering is one of the few disciplines where women could make good money right out of college. And I have long been interested in the issues that face women economically due to their segregation into low-paying jobs. Engineering is an important job in terms of its content and the decent salaries earned but also because engineers eventually move up in organizations. That is, if we look at the top of companies, there are many that have engineers in the boardroom … so if we want to get women into powerful positions, engineering is an avenue to that. And if we want women to be in positions where they can make decent money, engineering is a place to be for that too.

What’s the most striking statistic or story you’ve heard about the pay gap?

That Wal-Mart [allegedly] engages in regular discrimination against women and that there is a possibility that the women who have filed a lawsuit may form a class … against Wal-Mart, which is the largest employer in the world.

If you had to choose a pay equity theme song, what would it be?

“Money” by Pink Floyd!


More Equal Pay Day Q and A:  Angela Stevenson Deborah FrolingBey-Ling Sha

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As you may know, AAUW signed an amicus brief supporting the plaintiffs of Wal-Mart v. Dukes and offered financial assistance to the lead plaintiffs so they could attend the oral arguments at the U.S. Supreme Court yesterday. As program manager for the AAUW Legal Advocacy Fund, I have coordinated these efforts, but my interest in the case deepened when I met and heard from the lead plaintiffs at a reception that AAUW and the Alliance for Justice hosted on Monday night.

Each plaintiff I met has been part of the case for at least 10 years. Had they individually pursued lawsuits, they very likely would have achieved justice, but they wanted to do something more to change the climate and procedures at Wal-Mart to benefit all women employees. So they chose the longer, more difficult route of moving forward as a class action, which, of course, is what the Supreme Court will decide this year — whether or not they can move forward as such a large class (approximately 1.6 million women employees). I was inspired by their strength of character and their commitment to equity.

The plaintiffs were very grateful and humbled by the support of AAUW. Betty Dukes and Edith Arana — who is speaking at the AAUW national convention in June — shared their gratitude to AAUW and their thoughts on the eve of the Supreme Court hearing. We caught this moment on video.

3-28-11 AAUW-AFJ Wal-Mart plaintiff reception, plaintiffs Betty Dukes and Edith Arana with AAUW Executive Director Linda Hallman and ERA attorney Arcelia Hurtado

On Tuesday morning, I went to the U.S. Supreme Court at 4:45 a.m. with the goal of procuring one of the 50 seats that are open to the public for the oral arguments. So many people who care about the case showed up that I was 69th in line. Many people at the front had arrived between 1 and 2 a.m. and had camped out in sleeping bags. As we waited, the mood was energetic and cheerful despite the cold, darkness, and early hour. We all were there to support the plaintiffs and were hopeful for a positive outcome not only for them but for workers at large corporations across America who will be affected by the outcome.

Sadly, I was not able to attend the oral arguments, but I was moved to a line where we could take turns viewing the argument for five minutes. I waited more than five hours to view five minutes, but it was worth it! I would do it again. It was one way I could show the women of Wal-Mart that I support them. When I finished my five minutes, I was thrilled to see dozens of supporters of Wal-Mart women in front of the Supreme Court, including folks from AAUW who helped rally participants. I joined them, holding signs and chanting things like, “What do we want? Fair pay! When do we want it? Now!”

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In June, we’ll find out if the women of Wal-Mart can pursue fair pay as a group.

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Today is an important day for pay equity and workers’ rights as the U.S. Supreme Court hears oral arguments in the Wal-Mart v. Dukes case. AAUW supported the lead plaintiffs financially through the AAUW Legal Advocacy Fund and by signing an amicus brief earlier this month. The generous support of AAUW members ensured that the plaintiffs could attend the oral arguments.

The Supreme Court will determine whether the case can be filed as a class-action suit. Lead plaintiff Betty Dukes, a current Wal-Mart employee, has alleged gender discrimination in pay and promotion policies and practices in Wal-Mart stores. If she and the other plaintiffs prevail, their case will become the largest class-action civil rights suit in the nation’s history, representing approximately 1.6 million Wal-Mart and Sam’s Club employees. A lower court will hear the discrimination allegations after the Supreme Court’s ruling.

AAUW supports class certification because it allows workers to band together to fight discrimination. Such cases can also send a strong message to employers to follow the law in the first place.

Co-plaintiff Edith Arana

“AAUW isn’t just proud to support these women; we believe it’s absolutely necessary. Alone, Betty and her co-workers stand before a corporate Goliath, each woman burdened with enormous legal fees and without the moral support that a class action provides,” said AAUW Executive Director Linda D. Hallman.

“This case illuminates the dirty little secret that women know all too well — that pay discrimination is alive and well and undermining the economic security of American families,” said AAUW Director of Public Policy and Government Relations Lisa Maatz. “Betty Dukes and the other plaintiffs are proof positive of the systemic problem in American workplaces that sometimes people are paid differently simply because of their gender.”

The alleged gender discrimination in pay and promotions in this case contributed to AAUW’s decision to support the lead plaintiffs. The Legal Advocacy Fund offers financial and organizational support for workplace- and academia-based cases that have the potential to set a significant precedent for all women. Since 1981, LAF has disbursed nearly $2 million to more than 100 sex discrimination cases to help offset legal fees. This support has been instrumental to the success of many cases.

Check back later this week for LAF Program Manager Holly Kearl’s interview with the women who are suing Wal-Mart.

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Arcelia Hurtado, executive director of Equal Rights Advocates (ERA), a national nonprofit legal organization, took time out of her busy schedule to do a quick interview about the AAUW-supported case Dukes v. Wal-Mart. Oral arguments for the case take place on March 29, 2011, at the U.S. Supreme Court.

Left to right: Arcelia Hurtado, executive director of Equal Rights Advocates with plaintiffs Edith Arana and Betty Dukes

AAUW Legal Advocacy Fund Program Manager Holly Kearl (HK): How long has ERA been involved with Dukes v. Wal-Mart?

Hurtado (AH): ERA has represented the women of the historic Wal-Mart class action since day one. ERA began receiving complaints from Wal-Mart women employees through our Advice and Counseling Hotline in 1999. ERA helped lead plaintiff Betty Dukes file her original complaint in this case with the U.S. Equal Employment Opportunity Commission. ERA, along with co-counsel, filed the class-action lawsuit in 2001 on behalf of Betty Dukes and six other women representing a class of women workers similarly situated.

In 2002, ERA and co-counsel then traveled the country talking to potential class members and taking their statements in support of our class-certification motion, which was filed in 2003 and granted in 2004. … Wal-Mart has since vigorously appealed that decision, and ERA has remained with the women of Wal-Mart through the case’s long journey through the appellate process and all the way to its current resting place on the U.S. Supreme Court’s docket.

HK: What are the legal issues that will be addressed in the Supreme Court oral arguments on March 29?

AH: The plaintiffs presented extensive evidence in the trial court, which the trial judge ruled was sufficient to allow them to proceed as a class. The 9th U.S. Circuit Court of Appeals affirmed this decision two times. The U.S. Supreme Court is now going to decide whether the trial court that heard and considered all this evidence firsthand erred in granting class certification.

The evidence the trial and appeals courts reviewed consisted of Wal-Mart’s own internal employment data, which revealed, among other things, that even though 65 percent of Wal-Mart’s 1 million hourly employees were women, women held fewer than one-third of management jobs and only 15 percent of store manager positions, making Wal-Mart one of the worst American retailers in terms of percentage of women in management.

The internal data also showed that women were paid less than men of equal seniority in every major job category, even though women on average had higher performance ratings and less turnover. Statistical analysis indicated that the odds that this discrepancy in pay could be attributable to chance were “less than one chance in many billions.”

The hard numbers indicating something was very wrong at Wal-Mart were supplemented by the statements of Betty Dukes and over 100 other women employees who experienced similar treatment at Wal-Mart locations nationwide.

HK: Why is the outcome of this hearing so significant?

AH: Legal scholars have repeatedly outlined the implications of this, the largest employment class action in U.S. history, but what is first and foremost in my mind is the case’s significance to the courageous women who constitute the members of the class.

In the words of named plaintiff Edith Arana,

These women have names, they have families, they have faces. … This is something that I am determined to do until the end, whatever the end is, because I believe in what I am doing, and what I am doing is right.

The case also stands for the right of every working woman to be paid what her work is worth and to be given an equal opportunity to advance based on her merit. It implicates the American dream that if you work hard enough, you can get ahead. It implicates the fate of the working class in this country — women who have families to support, who are single mothers, who are struggling to make ends meet and failing due to systematic discrimination that is unfortunately not a relic of the past yet.

In the words of Betty Dukes,

I’m just existing, I’m not living at all. … With my age and my limited education, I had to press forward and maintain my independence, maintain my dignity even though I am not making a living wage by any stretch of the imagination, and there’s nothing I can do about it.

I saw a pregnant woman standing in the rain the other day. She had a baby, only a few months old, in a stroller. She told me she was homeless. I had my own two small boys in the car with me, and it struck me that this is the fate of the working poor who are constantly a hair away from losing their ability to survive. These are the human terms of this case. As long as ERA is involved, they will not be forgotten.

HK: It’s so important to remember the human aspect of the case, thank you. When do you expect the court to announce their decision?

AH: We expect the court to issue an opinion by June of 2011.

HK: Thanks for the important work you and ERA are doing!

AH: Sure. And your readers can obtain more information about our work at www.equalrights.org. We also have a toll-free, multilingual advice and counseling line for women with questions related to inequities at work and schools 800/839-4372.

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By UpstateNYer (Own work) [CC-BY-SA-3.0 (www.creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Last week, plaintiffs in the Dukes v. Wal-Mart Stores case filed their brief before the U.S. Supreme Court, alleging that female employees of Wal-Mart are denied advancement and training opportunities, paid less than men for the same or comparable work, steered to lower-wage departments, subjected to a sexually hostile work environment, and retaliated against when they attempt to address sex discrimination. Thanks to the generosity of our members, AAUW’s Legal Advocacy Fund provided case support to the plaintiffs. AAUW has also signed onto an amicus brief in support of the plaintiffs. The Supreme Court will hear this case on March 29, 2011.

The plaintiffs claim that Wal-Mart discriminates against women employees at its stores across the country, and their case has been certified for class-action status. They allege that Wal-Mart does not notify employees of its pay and promotion policies; instead, managers use secretive and subjective policies that result in few women in management positions. Additionally, they argue that Wal-Mart’s corporate culture is rife with demeaning gender stereotypes: Executives refer to women employees as “Janie Qs,” hold business meetings at Hooters restaurants, and attribute the absence of women in top positions to men being more aggressive in seeking advancement.

Depending on which estimates you look at, there could be between 500,000 and 1 million women represented in the lawsuit, making it the largest class-action suit in history. Two federal courts have approved the plaintiffs’ request for class-action status, and the Supreme Court agreed to hear Wal-Mart’s appeal of those decisions. The court will not decide the merits of the case. Rather, it will consider whether to uphold the lower courts’ rulings on whether the case should be granted class-action status.

How the Supreme Court decides this case will set a significant precedent for future cases, determining which lawsuits can and cannot be filed on behalf of workers and under what circumstances employees would be allowed to band together to fight discrimination. AAUW strongly believes that the court should uphold the application of the established civil rules of procedures for class-action pay discrimination and Title VII claims. In doing so, it would protect Americans’ right to bring appropriate and certified class-action suits against workplace discrimination. Such cases not only ensure that all affected workers can right the wrongs against them, but also can act as a deterrent to other companies regarding the lack of tolerance for discrimination in the workplace.

You can help by learning more about AAUW’s support of precedent-setting legal cases that affect the lives of women and girls. You can also help with a generous donation to the Legal Advocacy Fund.

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