Washington, DC—Drawing on research from an Institute for Women’s Policy Research (IWPR) report released today, IWPR submitted an amicus brief in support of plaintiffs in their case against Wal-Mart for employment discrimination. On Tuesday, March 29, the Supreme Court will hear arguments in the case of Wal-Mart Stores, Inc (petitioners) v. Betty Dukes et al (respondents).

The plaintiffs allege that decisions about pay and promotions at Wal-Mart were subjective, reflected sex bias, and led to lower earnings and opportunities for women.

The Supreme Court will hear arguments to decide whether the class action was properly certified on the basis of Rule 23(b)(2), which is focused on providing ‘injunctive relief’—changes to employment policies and practices introduced as a result of employment discrimination litigation. An upcoming IWPR research report, Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope, finds that injunctive relief in certified class action settlements effectively tackles discrimination and bias in the workplace. The report finds that injunctive relief is a critical but underutilized feature of Title VII that can impact the overall workplace, not only for those who file complaints.

“Title VII has fueled progress for women in the workplace, and an important part of its power is class action, allowing a small group of women to sue on behalf of all similarly situated women,” said Heidi Hartmann, President of IWPR. “As our report shows, class action is key to winning systemic change—especially among very large employers like Wal-Mart. Class action helps to balance an unequal power relationship.”

The findings are based on a review of injunctive relief in over 500 court-supervised employment discrimination settlements involving alleged sex and/or race discrimination in employment. For the plaintiffs, the cases were settled by either the U.S. Equal Employment Opportunity Commission, the U.S. Department of Justice, or by private law firms on behalf of certified classes of plaintiffs. For injunctive relief to effectively tackle bias and discrimination it is key that employment decisions are transparent and managers are accountable for the consequences of their actions.

“Having good human resource management and diversity policies is important, yet our study shows that, without clear measurement, policies alone do little to prevent bias and discrimination in the workplace,” said Ariane Hegewisch, Study Director at IWPR and lead author of the report. “Monitoring of the gender and race outcomes of policies is essential to making real change.”

The report identifies nine sets of measures most likely to create effective change. All certified class action settlements include at least one of these measures, while the majority of other settlements include none.

• Over seventy percent of certified class action settlements, compared to five percent of other settlements, mandate the introduction of objective and transparent criteria for job assignments and promotions.
• Two-thirds of certified class action settlements, but fewer than one in ten other settlements, mandate the open posting of job vacancies.
• Over sixty percent of certified class action settlements, compared to fewer than five percent of other reviewed settlements, mandate the analysis of promotion and compensation decisions for potential sex or race bias.
• Certified class action settlements are more likely than other settlements to include measures to hold supervisors accountable for preventing discrimination through appraisal and rewards processes, are more likely to establish objective criteria for recruitment and termination decisions, and more often introduce new training or mentoring opportunities for members of the class.

“It is important to remember that behind each of the cases discussed in the report are individuals who suffered unfair treatment and other indignities in their efforts to earn a living,” said Cynthia Deitch, Associate Professor of Women’s Studies, Sociology, and Public Policy at George Washington University, and co-author of the report. “They deserve remedies designed to create long-term and sustained challenges to discrimination that monetary damages alone are unlikely to provide.”

Ariane Hegewisch, Cynthia Deitch and Evelyn Murphy, Founder and Director of The Wage Project, are the authors of the report, Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope. Funding was provided by the Ford Foundation.

The Institute for Women’s Policy Research (IWPR) conducts rigorous research and disseminates its findings to address the needs of women and their families, promote public dialogue, and strengthen communities and societies. IWPR is a 501 (c)(3) tax-exempt organization that also works in affiliation with the women’s studies and public policy programs at George Washington University.

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