Filevine25 Aug, 2017
3 Trends in Discrimination Class Actions
What does the future hold for civil rights and labor lawyers?
The conflict we saw in Charlottesville bubbles up in a million different forms and discussions about free speech, discrimination, and the future of our country. One place where these questions are being addressed in less sensationalist ways are our courts. As the nation argues over race and the limits of free speech, we’re also witnessing new swerves and twists on the prospects of class action lawsuits targeting discrimination in workplaces and universities.
Let’s look at the developments in three hot-button realms of class action discrimination law: 1) race and affirmative action in universities, 2) gender in high-tech, 3) and agism in the workplace.
Race in Higher Ed: Will White Applicants Start Winning Class Actions?
Those critical of President Trump’s soft response to the white supremacist and neo-Nazi protestors of Charlottesville point to another troubling project of his administration: a potential attack on affirmative action admissions policies in universities.
On August 1st, The New York Times reported that Jeff Session’s Department of Justice was circulating a memo on the possibility of suing universities which, in the quest for greater racial diversity, consider race in their admissions process. The DOJ quickly responded that the reporting was overblown, insisting that their interest lies only with one particular lawsuit against Harvard, regarding its treatment of Asian applicants.
But universities aren’t convinced, and remain on edge. Is it possible the DOJ could erode affirmative action, enabling white college applicants to win future discrimination lawsuits?
Most legal analysts are pessimistic about the chances that the DOJ could gain much traction in their defense of white and Asian students. We can point to a host of Supreme Court decisions finding race-conscious college admissions constitutional. As journalist Peter Schmidt notes in The Chronicle of Higher Education, in order to prevail, the DOJ would have to overcome the precedent laid down in cases such as the 1978 decision Regents of the University of California v. Bakke (which found racial quotas unconstitutional but upheld affirmative action), the 2003 University of Michigan law school ruling, and last year’s decision giving the go-ahead to the University of Texas at Austin to use race in their admission considerations. Schmidt writes:
The majority opinion in that latest decision reiterated the need for the university to continually make sure its policy is narrowly tailored, but also signaled the court’s willingness to give colleges significant deference in making such calls.
Arthur L. Coleman, managing partner of EducationCounsel LLC and a former deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights, puts it bluntly when speaking to the Chronicle: “It is inconceivable to me that there is any room to reverse four decades of Supreme Court precedent on this front.”
However, the framework could conceivably change, based on ongoing lawsuits. Federal lawsuits against Harvard and the University of North Carolina at Chapel Hill will both require at least two more years before litigation could take them as far as the Supreme Court.
However, while this is happening, lawsuits continue to be brought by people of color who are students and university workers alleging discrimination. Even without special attention by the DOJ, these suits are more likely to find success than alleged discrimination against white and male students.
Women in Tech: A Call for Class Actions
By now we’ve all heard about that ten-page memo sent out by the Google engineer James Damore, asserting that there are fewer women in tech because of biological reasons (such as the “neuroticism” of lady-brains).
The memo came in the middle of a growing body of claims that the scions of Silicon Valley systematically mistreat and harass the women who work for them (or try to work for them).
In search for a solution to a misogynist culture, lawyer Anita Hill has called for more class action lawsuits. In an op-ed published this month in the New York Times, she says “The tech industry is stuck in the past, more closely resembling ‘Mad Men’-era Madison Avenue or 1980s Wall Street than a modern egalitarian society. It may take the force of our legal system to change that.”
She points to precedent for proof: in the 1990s, a wave of class action lawsuits targeted Wall Street firms for their sexist behavior. This was the time of the infamous 1996 “Boom Boom Room” case, wherein 23 women brought a class action against a stock brokerage firm for gender discrimination and harassment. “By the time Smith Barney settled the case for $150 million, nearly 2,000 women had joined the suit and helped expose a culture of sexism to the outside world,” writes Hill.
The results were felt beyond the Boom Boom Room, as Wall Street corporations under the threat of lawsuits changed their practices system-wide. While disparities between men and women in these businesses remain, women have made significant gains in leadership positions. Hill concludes: “The lesson of these cases is clear: Class-action lawsuits can force industrywide change, even in the most entrenched, male-dominated industries.”
And indeed, there already appears to be a gender-discrimination lawsuit in the works targeting Google, with over sixty female employees already reaching out to a civil rights attorney. The firm feeling out this lawsuits claims their goal is not only to change the practices at Google, but to send a message to the entire Silicon Valley.
But a major obstacle remains for most women, who would otherwise heed Anita Hill’s call for more class actions: mandatory arbitration agreements. Most employers must sign them when they begin working, and most of those agreements make class actions impossible.
Some breaking news on that front: as I write, Susan Fowler is submitting an amicus brief to the Supreme Court attacking mandatory arbitration. Fowler is best-known as the former Uber engineer who exposed sexist practices at that company in a February blog post. The case before SCOTUS is Epic Systems Corp. v. Lewis, and is essentially pitting the power of the Federal Arbitration Act against the National Labor Relations Act, concerning the question of employees’ rights to sue. Fowler’s brief is likely to bring more attention problems with mandatory arbitration.
However, while all of this is happening, the Silicon Valley class action in the brightest spotlight at the moment is the one potentially brewing for that fired Google misogynist memo-writer himself. A potential class-action lawsuit could claim that sharing conservative beliefs about gender and biological determinism falls under ‘protected concerted activity.’ Policy analyst Trey Kovacs notes that the engineer’s chances of prevailing in court are fair, due to what he sees as a trend of overreach by the National Labor Relations Board. He points to a recent court ruling in Cooper Tire & Rubber Co. v. NLRB, where the 8th Circuit Court of Appeals required the company to give back pay and a job to an employee who said racially derogatory things to a mostly-black group of non-union workers who crossed a picket line.
As in the first section about race in universities, we see two sides claiming discrimination. Plaintiff-side attorneys will play a key role in both sides of this question, as the courts work through deep societal conundrums over ending gender discrimination and also protecting ideological diversity.
Agism on the Job: when Seniority is Punished
Google has other discrimination lawsuit problems on its plate: nearly 300 people have joined onto a class action claiming the tech giant passed them over unfairly because of their age. In a country where the labor force is aging, the median age at Google is still in the 20s. A similar lawsuit came their way in 2004, and was settled out of court for an undisclosed amount.
If indeed Google is booting out the elders, it’s not alone. Earlier this month, The New York Times wrote about the growing trend of firing older workers, particularly in manufacturing. While ‘seniority’ used to be a protective shield, it may now be a liability.
But litigating against this form discrimination can be difficult. Culturally, disparaging elders isn’t viewed with the same stigma as racial epithets and gender-based mockery. It’s a form of bias that remains culturally sanctioned. While racism and misogyny are considered ‘old-fashioned,’ agism pervades some of the most ‘progressive’ milieus.
This bleeds into the court system as well. The EEOC has found a sharp increase in age-related harassment complaints, but statements disparaging the elderly do not carry the legal weight of similar statements aimed at other minorities. If a boss grumbles about “slow old people” (or, like Mark Zuckerberg, insists that “young people are just smarter”) that statement could be part of a legal argument to persuade a court that an employer might have had the mindset to do discriminatory acts, but it is not in itself conclusive proof of bias.
What can aging workers do? Some of the worst practices are addressed in the Age Discrimination in Employment Act from 1967. But advocates worry the law doesn’t go nearly far enough to protect older workers. To make matters worse, the Supreme Court weakened protections in 2009, with the case Gross v. FBL Financial Services. Prior to that case, workers only had to prove that age was a factor in layoffs or demotion; after that, employers were responsible to prove they had other legitimate reasons for their acts. But with Gross, the Court decided that the entire burden of proof rests on plaintiffs to show that age was the deciding factor.
Some have looked to a legislative solution. There is a proposed Protecting Older Workers Against Discrimination Act, which would roll back this judicial reversal, and once more allow workers to prevail in cases of ‘mixed motives’ firings and demotions (where age is one of the reasons, if not necessarily the only one). But as the bill is condemned by business lobby groups, it doesn’t have much of a chance of passing.
But successful class action lawsuits against age discrimination are still possible. And plaintiff-side attorneys, recognizing the growth in this form of bias, are gearing up to take more cases in the future.
As our society works through the big questions on discrimination, one thing is clear amid the haze: class action lawsuits are an essential tool for protecting civil rights in this country. From Brown v. Board of Education until today, class action lawsuits have been one of the few means to prove patterns of widespread discrimination — and spur industry-wide remedies. Factors that weaken the tool of class action lawsuits — whether it’s mandatory arbitration agreements or the latest Supreme Court ruling splitting up potential classes by state — are also nullifying one of our society’s best tools for fighting oppression.
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