Fourth Circuit Court of Appeals Reverses Dismissal and Revives Case Against Family Dollar Stores

The Fourth Circuit Court of Appeals has given the pay discrimination class action against Family Dollar Stores, Inc. a second chance. Fifty-one female store managers of Family Dollar brought suit in federal court in Alabama against Family Dollar, claiming they were paid less than male store managers for doing the same work. Family Dollar then got the case transferred to a different court in North Carolina. Family Dollar then filed a motion for judgment against the Plaintiffs, arguing that the Plaintiffs could not meet the requirements for class action certification under the federal rules.

During this time, another major class action for gender discrimination was going on, the Dukes v. Wal-Mart case. Dukes v. Wal-Mart was a class action sex discrimination case brought on behalf of 1.5 MILLION female employees of Wal-Mart. At the time, that case had been reversed in favor of the Plaintiffs by the Ninth Circuit on the class action certification issue, but Wal-Mart took the case to the U.S. Supreme Court for . . . ahem  . . . further consideration . . . .

Meanwhile, in the Family Dollar case, the trial court in North Carolina originally denied Family Dollar's motion for judgment against the Plaintiffs. HOWEVER, it appears that Family Dollar succeeded in getting the case transferred to yet another different judge who would . . . ahem . . . maybe see the case differently. And indeed the new judge did. That is because, while the case was being stalled and moved around to different courts and different judges (it appears here that Family Dollar's attorneys may have been stalling for time and awaiting the U.S. Supreme Court's decision in the Wal-Mart case), the Supreme Court reversed that Ninth Circuit's decision in Wal-Mart and threw out the Plaintiff's class action claims.

The Court in Wal-Mart held that the Plaintiffs could not meet the commonality requirement for class action certification where they were all from different districts and the decisions that were allegedly discriminatory were made by different district managers. In other words, as relevant to Family Dollar, if one manager decides to pay you less because you're a woman, and a different manager decides to pay somebody else less because she is a woman, your claim does not have enough in common with the other woman's claim, even though you are working for the same company and have the same claims, because there are different decision makers involved, so you cannot bring the claims together in the same law suit (or at least not as a class action).

Well, the trial court in the Family Dollar case cited the new Wal-Mart decision when it threw out the Plaintiffs' claims by granting Family Dollar's motion for judgment and denying the Plaintiffs' motion to amend their Complaint, thereby axing their entire case. This was despite the fact that the Wal-Mart decision essentially added new and additional requirements to what must be included in the Plaintiffs' original complaint, but the Plaintiffs were not allowed to correct their original Complaint to account for those new requirements. The OTHER Catch-22 of course, was the fact that the Plaintiffs in Family Dollar were alleging that it was the centralized corporate policies of Family Dollar that led to the pay discrimination (the same policies in every district), yet they were never given the chance to pursue that theory or those allegations. The ultimate Catch-22 with these cases (and with all the new and additional pleadings requirements being erected by the courts in recent years, the overall point of which, imho, is just to make it more difficult for individuals to sue big corporations), is that one cannot prove one's theories in the absence of discovery during litigation (the process by which the parties obtain information from the other side to prove their respective theories of the case), yet they are never given the chance to engage in any discovery which they would need to prove their case, because their claims are axed at the outset, based on the fact that they have not put enough established information (a.k.a PROOF that they don't yet have) IN THEIR COMPLAINTS! Argh.

So, on the basis of Wal-Mart, the trial court in Family Dollar finally axed the Plaintiffs' claims.

BUT THEN, in came the Fourth Circuit, which REVERSED the trial court's denial of the Plaintiffs' request to amend their Complaint. As the Fourth Circuit observed, even if lower level managers are making different subjective and discriminatory decisions, they are not the ones setting the policies for the entire corporation, so if the policies themselves are discriminatory, then that equates to commonality for class action purposes. And, as the Court also noted, the Plaintiffs were alleging that higher level managers were also making discriminatory decisions that affected multiple districts and plaintiffs. Again, commonality. The court used these and other facts to distinguish the Wal-Mart case from the Family Dollar case. Simply put, the Plaintiffs should at least get the CHANCE to make the allegations they need to make to satisfy the Wal-Mart class action requirements (which, imho, are now essentially new and additional requirements which are NOT set forth in the federal class action rule), because giving them that chance is "necessary to ensure meaningful review."

The Court also shot down Family Dollar's arguments that allowing the Plaintiffs to amend their complaint would be prejudicial to Family Dollar. The Court pointed out that Family Dollar cannot turn around and claim prejudice now when Family Dollar was the one prolonging the litigation all along. Bam. Eat it and like it, Fortune 500 friends!

So now the Plaintiffs can amend their complaint and revive the class action lawsuit. Thank you, Fourth Circuit! Here is a link the the Fourth Circuit's opinion:

Luanna Scott et al v. Family Dollar Stores, Inc. - Bloomberg Law

And for point-and-counterpoint purposes, here is a pro-corporate rant about how horrible this decision was:

Supreme Disregard in Scott v. Family Dollar - The Wall Street Journal

Now, we can probably expect Family Dollar to try to take it up with the Supreme Court. . . .

Gender Equality Rankings by U.S. State

Here is a really cool compilation of data and infographic which tells us the rankings for all U.S. states in terms of women's equality. The Map incorporates all kinds of different factors, from number of women in political office, to number of women living in poverty, size of the wage gap, pro-choice/anti-choice laws, paid leave laws, number of women in management positions, etc. If you click on the link to explore the data in more detail, you can actually look at each individual factor they analyzed and view all the states by rank on that particular factor. Many of these rankings are no surprise, but there are others which seem inconsistent with my personal experiences . . . . One thing that came as no surprise to me, however, is that the Deep South is not the nation's hub for gender equality! How do your states fare?

Mapping the State of Women in America - Center for American Progress

Virginia Tech Pays $155,000 to Settle Pay Discrimination Case

Interesting legal chronology in this case: Plaintiff goes all the way through a jury trial, a jury of her peers finds in her favor on BOTH claims, and THEN the judge decides unilaterally to TOSS OUT the jury decision because he did not agree with it, tossing out one claim completely and ordering a new trial on the other claim. I'm not sure what basis the judge had for this, but undermining a jury verdict like that seems entirely unAmerican to me. So the Plaintiff has to go ALL THE WAY through a SECOND jury trial, in which the second jury finds against her on the one remaining claim and she loses, and then all the way through an appeal in which the appeals court reverses the second jury's finding against her and reinstates her one remaining claim--none of which would have happened if the judge would not have gone against the original jury in the first place. What a headache!

Virginia Tech Settles Lawsuit Over Retaliation - Times Dispatch

The Reality of Second Generation Sexism in the Working World

I'm glad to see someone finally discussing second-generation gender bias in the context of all the recent equal pay discussions. Why in so many different professions do women start out in equal numbers to men at entry level, but when you get to the top you see they have almost all dropped off the path to advancement? According to this article, it's because the path to advancement "is often interrupted for a simple reason: when women display leadership behaviors we consider normative in men, we see them as unfeminine. When women act more feminine, we don’t see them as leaders." This is the classic double bind that is the heart of second generation sexism. Either way, we lose. It is sexism reinforcing itself. Circular reasoning.

Studies also show women do not receive the same desirable or lucrative projects or assignments that would allow for advancement within a company. And women don't have the same opportunities for mentorship by leaders at the top. These vicious cycles are simply the reality of sexism reinforcing itself, again and again.

Ambitious Women Face More Obstacles Than Just Work-Life Balance - Harvard Business Review

Snow Hill, Maryland Liquor Control Board Settles Pay Discrimination Suit

The Liquor Control Board in Snow Hill, Worcester County, Maryland, has settled with three former female employees who sued the Board for pay discrimination. I'll drink to that!

Worcester County Settles Gender Pay Claim; Women to be Compensated - delmarvanow.com

Worcester County Will Pay $60,000 to Resolve EEOC Pay Discrimination Lawsuit - EEOC Press Release

Women's Work . . . As Unpaid Interns

Here is an interesting piece about how women are disproportionately working as unpaid interns:

Women's Work and the Race to the Bottom - Huffington Post

This writer makes a good point about how there are fewer opportunities for fair compensation in female-heavy industries.

New Equal Pay Law in New Jersey

Here is a new law in New Jersey signed just yesterday by New Jersey Governor Chris Christie (a Republican!), which will help women in New Jersey fight for equal pay. The law gives employees the right to discuss salaries openly in the workplace and prohibits employers from retaliating against employees who choose to discuss their salaries. Other states (including Colorado) already have these laws on the books. This is also what the Paycheck Fairness Act would do, which is a pending federal law. These laws are important because breaking the silence--you know, putting an end to that long-standing social taboo of discussing pay in the workplace--helps women to discover and prove the fact that they are still only earning 77% as much as men are!  Way to go, Jersey! (Incidentally, Jersey was also the only place where early colonial women were allowed to vote in the U.S. from 1790-1807--before it was banned in 1807.)

Chris Christie Signs Equal Pay Bill Into Law - Think Progress