Asking female applicants whether they were married and planned to have children in a job interview. Telling female employees how to dress (and show more skin). Overtly and concretely penalizing female employees for taking maternity leave. Promoting low-performing men over the highest-performing women. Asking women employees to have sex with their boss to advance their careers. Penalizing female employees for not taking part in alcohol-fueled corporate partying when they were pregnant or breastfeeding. Bragging about how many female subordinates a male executive had had sex with.
This sounds like the bad old days but, unfortunately, it isn’t. Just a few years ago, current and former female sales representatives at a medical cosmetics company, Medicis Pharmaceutical (now owned by Valeant Pharmaceuticals), banded together to bring a class action against their employer for regularly doing all of these things, and more, including unequal pay and retaliation for reporting discrimination and harassment. Each of the approximately one hundred women in the class who filed claims received an average of $44,000 in back pay and damages, and the attorney’s fees were not taken out of that compensation. That’s not small change.
But there’s more. In theory, an individual woman could have brought the case and gotten back pay and damages. What an individual woman could almost certainly not have done was force Medicis to change its practices – Medicis could have paid her money and washed its hands. Here, though, the class was able to use its leverage to get Medicis to agree to, among other things, create anti-discrimination policies and training; establish systems for investigating reports of discrimination and harassment; be transparent about how it set and measured sales goals; eliminate penalties for taking parental leave; and establish policies about alcohol at corporate events and intra-office romantic and sexual relationships. In other words, it took a class action to ensure that Medicis follows the law not just with regard to the women who sued, but with regard to all the women who come after.
In the minefield of workplace discrimination and harassment, there’s another advantage to class actions, too. One woman bringing these types of claims may (unfortunately and wrongly) be easily dismissed as too sensitive, as not qualified for the promotion she sought, or as subject to one-off comments from a single troublesome executive. She may also be retaliated against for speaking out – as many of the women in this suit were. But where woman after woman after woman tells the same story, she cannot be so easily dismissed.
And yet Congress is on the verge of wiping away the ability for women to band together and challenge such discrimination and harassment in the workplace. Last week, the House GOP narrowly approved the so-called “Fairness in Class Action Litigation Act.” The bill would drastically roll back the ability to bring class action lawsuits like the one against Medicis. Fourteen Republicans opposed the bill, along with every single Democrat in the House, but that wasn’t enough to defeat it. After being pushed through the House Judiciary Committee – without a hearing, and with a nighttime vote – the bill now makes its way to the Senate, where a record 21 female Senators will be among those deciding its ultimate fate. While the Senate has not yet scheduled any action on the issue, civil rights groups and their allies are mobilizing to ensure the House proposal never becomes law.
There are a lot of big, important and downright frightening ideas making the rounds on Capitol Hill these days, from taking away Americans’ health insurance to eliminating Meals on Wheels and turning the Environmental Protection Agency over to oil and gas lobbyists. But it’s imperative that voters insist their Senators give proper attention to this all-out assault on the courts. Unless they do so, a key tool in battling discrimination could quickly disappear. That threat is too real, too serious and has too many dire consequences for too many Americans for Senators to do anything other than give it the deliberative attention – and debate – that it deserves.
This post was co-authored by Public Justice Staff Attorney Leah Nicholls.