GENDER RENDERS LEGAL ISSUES
Byline: Vicki M. Young
NEW YORK — Its sheer enormity gives it greater visibility, but Wal-Mart is one of several large retailers to be hit with suits for discrimination by current and former employees.
In September 1997, the Home Depot agreed to pay $87.5 million to settle a California class-action lawsuit involving gender discrimination claims, as well as reaching agreements in principle to resolve three remaining discrimination suits. The settlement was reached during a court-ordered mediation in the California suit. Terms of the settlement were not disclosed and Home Depot did not admit to any wrongdoing. All four suits were filed by women who complained that they were not given the same opportunity for advancement as men.
The California suit, filed by four named plaintiffs, was granted class-action status and was set for trial if mediation had not proved successful. It involved allegations of discrimination in 150 Home Depot stores in 10 western states.
In one of the other cases that also reached a settlement, Carol Ann Griffin filed a lawsuit against Home Depot in a Louisiana federal court in New Orleans, charging gender discrimination. She said in the lawsuit that she wasn’t allowed to use skills learned from her 15 years experience as a home construction and design consultant, and charged that Home Depot reserves its more “desirable” jobs for men. The federal Equal Employment Opportunity Commission joined in her action, suing 310 Home Depot stores east of the Mississippi.
In a still-pending case before a Manhattan federal court, the EEOC in June 1999 filed a lawsuit against Venator Group Inc., charging the company with laying off hundreds of employees at its now defunct F.W. Woolworth operation because of their age. The lawsuit that was filed included 54 plaintiffs. They alleged in court papers that employees over 40 years old were “disproportionately” targeted for layoffs beginning in September 1995 until the five-and-dime chain store shut its doors in October 1997. The EEOC also alleged that many of the fired employees were then replaced by younger individuals hired from the outside. The lawsuit said that the unlawful employment practice was implemented on a nationwide basis by Woolworth store managers and approved by the company’s human resources personnel. The allegations did not involve any of Venator’s other operating divisions. A trial date has not yet been set in the case.
Including similar past lawsuits seeking class-action status from other high profile names such as Texaco, one might think that employers have figured out what to do correctly to avoid the risk of discrimination suits.
Not so, according to Robin Frederick, partner in the labor and employment department at Shipman & Goodwin in Connecticut. “Why do we still have sexual discrimination lawsuits filed and why do these claims sustain themselves? People are still learning how to act properly in the workplace. In my practice, I am very busy as an employment lawyer. I don’t see that any of this has slowed down. In Connecticut, a significant portion of all cases in the federal district court here are employment-related cases,” she said.
Frederick noted that certain states, such as California, are known to have higher damage awards. The settled Home Depot action that resulted from court-ordered mediation originated in California. Betty Dukes’s lawsuit against Wal-Mart was filed in a federal district court in San Francisco.
She said that her advice to employers when conducting management training sessions is that they need to be fair and they need to look fair. “I’m not saying Wal-Mart was or wasn’t fair, but if asked what a company can do to prevent these types of lawsuits, then it is that the company has to be perceived to be and is treating employees fairly. Companies have to make sure that the policies comply with all the laws in the jurisdiction that they operate in, that the policies are clear so people understand them and that the policies have to be disseminated electronically or in hard copies.” She noted that her clients often look to see what other employers in the same field are doing, whether its about time off or family values.”
Michael Thrope, a labor partner in the Phillips Nizer Benjamin Krim & Ballon law firm in New York, added, “Our basic advice to management is to promulgate and implement lawful effective personnel policies concerning nondiscrimination, sexual harassment and all other conduct on the job. Companies need to have policies which tell employees what is expected of them and what the employer will do for them. Employers also need to formulate effective internal dispute resolution procedures. Employees should feel that they have an outlet to air their grievances, but they also need to know what those policies are at a particular workplace. If the policies are in place and are followed, that is a defense against an attack by a current or former employee.”
Thrope noted that while the Wal-Mart suit serves as the latest wakeup call to employers about the necessity of having nondiscriminatory policies in place, he doesn’t expect that it will do much to change the litigation landscape.
“These suits will still keep coming because it is a very lucrative area of law. Most of these cases are settled, and the legal fees [can be] gigantic. In the Home Depot settlement, of the $87.5 million, $65 million went to the class and $22.5 million went to the attorneys,” Thrope noted.
Thrope predicted that if class certification is not obtained, the lawsuit against the retailer will likely be settled.