Cross-posted from the American Constitution Society.
Fairness and equal opportunity are among our nation’s most basic values. They are especially critical in the workplace due to families’ increasing dependence on the wages of both men and women. That’s why Congress has passed landmark civil rights laws designed to protect workers’ right to hold jobs and provide for their families free from harmful discrimination. Yet, just last year, the United States Supreme Court eroded that right with its decision to deny more than one million women the ability to join together to challenge the discriminatory practices of the nation’s largest private employer. Fortunately, Congress now has the chance to undo the damage.
The Supreme Court’s decision in Wal-Mart v. Dukes was a devastating blow to the right of all workers to combat systemic discrimination in the workplace. In short, the Court said that Betty Dukes – a female greeter at Wal-Mart who received lower pay and fewer promotion opportunities than her male co-workers – could not join with other female Wal-Mart workers to hold the company accountable for unlawful widespread discrimination through a class action lawsuit. In doing so, the decision created significant barriers to justice for future victims of discrimination.
Now, workers who seek to challenge the widespread discriminatory practices of their employers must meet stringent new standards to show that their claims are similar enough to be joined together. This makes it more difficult for workers to challenge discrimination that occurs through the subjective judgments that often factor into personnel decisions. And it opens the door for companies to hide behind the existence of written nondiscrimination policies, despite evidence that discrimination exists in practice.
It should not be so difficult for workers who suffer discrimination to combat unlawful employer practices and have their day in court. The Equal Employment Opportunity Restoration Act of 2012, which was introduced today, would reverse the damage done by the Wal-Mart decision and restore the right of workers to join together to challenge systemic discrimination. It is critical legislation that would give workers who suffer from unlawful practices a fighting chance.
The Equal Employment Opportunity Restoration Act would give back to workers fundamental rights under our nation’s civil rights laws. Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act of 1973, Section 1981 of the Civil Rights Act of 1866 and the Genetic Information Nondiscrimination Act provide critical protections from workplace discrimination. This bill would ensure that, once again, workers filing claims under those laws can effectively band together to seek justice – no matter the size of their employer, no matter the size of the group that experienced unlawful discrimination, no matter the subjectivity of the challenged personnel decisions, and no matter the existence of written nondiscrimination policies if they are not consistently and effectively implemented. Specifically, the bill establishes an alternative to the Rule 23 class action in the form of a group action.
Too many workers still suffer from discrimination in this country. Betty Dukes and the women of Wal-Mart are not alone. In fact, in 2011, the Equal Employment Opportunity Commission received an unprecedented 100,000 claims of discrimination. Without the ability to join together, workers too often cannot effectively stand up for their rights and hold their employers accountable because they either don’t have the resources or are vulnerable to employer retaliation. Justice should not be limited to a few, and our courts should not be making it more difficult to root out discrimination.
The Equal Employment Opportunity Restoration Act would undo the damage done by the Wal-Mart decision by ensuring that workers have the rights and tools they need to challenge unlawful, systemic discrimination by their employers.