Keeping class action plaintiffs lawyers honest about sex discrimination
claims is vital to preserving the rights of all, both employees
Hypocrisy: Turning the Tables on Plaintiffs Lawyers In Class
Action Discrimination Lawsuits
their own class action lawsuits against asbestos, tobacco and food,
many of the big plaintiffs firms are now putting gender on
trial in search of a new con game to play for jackpot justice. These
law firms new marks include Costco, Wal-Mart, Merrill Lynch,
Boeing, Home Depot and others, while the pawns are those companies
employees, who allege gender bias and sexual discrimination.
class action sex discrimination lawsuits threaten nearly 40 years
of law and precedent aimed at putting women on an equal footing
in the workplace. Not because one woman cannot prove her claim,
but rather because her lawyers are trying to stretch individual
claims to obtain relief for dozens, hundreds, and, in some cases,
thousands of "similarly-situated" individuals in an attempt
to quietly lift the wallets of corporate America.
Federal Rule of Civil Procedure 23, for a plaintiff class to be
certified, there are four requirements: (1) a sufficiently numerous
class; (2) questions of law or fact common to the class; (3) representatives
whose claims are typical of the class; and (4) representatives who
will fairly and adequately protect the class interests.
is not space here to analyze whether each of the prominent cases
meets those requirements. Suffice it to say that there are thousands
of articles, analyses and opinions that present widely divergent
positions. Nevertheless, the real difficulty for the plaintiffs
lawyers in these cases lies in the proof that any wrongs were actually
committed, not that such an outmoded concept matters much in todays
high stakes litigation.
no mistake, plaintiffs lawyers are relying on a tried and
true tactic: running a numbers game. Take, for example, the lawsuit
against Costco, which seeks class action status for about 650 women
whom plaintiffs attorneys contend were eligible for promotion
to top positions in Costco stores over the past three years. For
proof of discrimination, the lawsuit asserts that nearly 90 percent
of general managers at Costco stores are male and that only two
of Costcos 33 top executives are women, despite a total work
force that is nearly half female.
the Wal-Mart case, the U.S. Court of Appeals for the Ninth
Circuit is currently deciding whether the class action can proceed.
Earlier this summer, a lower federal court certified the class claiming
that Wal-Mart systematically favored men over women in pay and promotions.
If allowed to go forward, plaintiffs lawyers claim that 1.6
million women (both former and existing employees) are potential
members, making it the largest private employment discrimination
case in U.S. history. Reports indicate Wal-Mart currently employs
only 1.3 million individuals.
Wall Street has been run over by class action sexual discrimination
lawsuits. Merrill Lynch and Morgan Stanley have made payouts to
employees who lodged similar complaints.
June, a lawsuit was filed against PricewaterhouseCoopers alleging
the accounting firm systematically discriminated against women.
Remarkably, that case may just change the battlefield. Thats
because accountants are numbers gurus and understand figures better
than any other profession, including lawyers.
lawyers are desperately trying to prove the second element of class
action certification status ― that questions of law or fact
are common to the class. The lawyers claim that if one female can
prove that she was discriminated against, that proves that all of
the women were discriminated against because the number of female
employees in management compared to the number of male employees
in management is evidence of a common ground of discrimination.
Those who wonder why we have a litigation explosion might want to
read that last sentence again.
employment law scholars, no matter what side of the legal fence
theyre on, will readily admit that discrimination and harassment
are hard to prove for the very reason that its difficult to
show that individual management decisions were sex motivated. Discriminatory
patterns, often tracked through hiring and firing, are almost impossible
to find and the high burden of proof on the plaintiff makes these
sex discrimination cases even more difficult to succeed, although
diabolically expensive to defend. Just this week, Home Depot settled
a case with employees from their Colorado stores in order to avoid
the cost of protracted litigation.
if class action plaintiffs lawyers can cook the books to create
the appearance of sexual discrimination, why cant anyone?
for example, the glass ceiling of the legal profession. Despite
the increasing number of female law students (reports indicate that
half of law school graduates are women), women remain underrepresented
as partners in law firms. Studies also show a wide gap between the
compensation of male and female attorneys with women making,
on average, less than their male colleagues. Ironically, a decent
(or maybe even mediocre) plaintiffs lawyer could make the
case that, given some of the gender statistics on law firm employment,
sex discrimination is just as big if not a bigger
problem for the lawyers as it is for the companies they are suing.
for example, at some of the private law firms and "public interest"
groups representing the plaintiffs in these class action sex discrimination
cases. Simply going by the numbers and the twisted logic they have
adopted, these lawyers own employment practices reek of discriminatory
Boasting itself to be the nations largest class action firm
and "a leader in protecting interests of men and women,"
the law firm of Milberg Weiss disproportionately favors male partners
over female partners (32 vs. 10) and male associates over female associates
(32 vs. 19), according to the firms own website.
according to the website of Lieff Cabraser Heimann & Bernstein
LLP, which is representing the plaintiff class in the Costco
case, the firm has 20 male members (partners) to only 11 female
members, and 13 male associates as compared to 8 female associates.
Due to gender-neutral names, the gender of three associates is unknown.
numbers for the co-lead counsel in the Wal-Mart case are
even more embarrassing. According to Martindale-Hubbell, a legal
directory, the law firm of Davis, Cowell & Bowe has 9 male partners
and only 3 female partners, yet has an equal number of male and
female staff attorneys/associates with one of each.
the Wal-Mart case and the embarrassment is
the law firm of Cohen, Millstein, Hausfeld & Toll, which, according
to Martindale-Hubbell, has 12 male partners to only 4 female partners,
and 14 male associates but only 8 female associates. Statistics
worthy of a lawsuit perhaps?
out the plaintiffs firms in the Wal-Mart case are Tinkler
& Firth, whose website reports 2 male attorneys and no female
attorneys, and Merit Bennett, P.C., whose website lists a sole male
nonprofit groups, the Impact Fund, Equal Rights Advocates and the
Public Justice Center, are also co-representing the plaintiffs in
the Wal-Mart case.
By the numbers,
each of these public interest groups appears to practice reverse discrimination.
The Impact Fund, according to its website, has 10 female members on
its Board of Advisors and only 5 men, with 4 women serving on the
Board of Directors as compared to 2 men.
Equal Rights Advocates website lists 15 female staff members with
no male counterparts, and 16 female members of the Board of Directors
dwarfing the other three men.
finally, the Public Justice Centers website lists 9 female
staff members who work with only 5 males.
legal profession defends its disparate numbers by arguing that women
leave jobs before reaching higher employment levels in order to
pursue marriage and parenthood. But isnt the same true in
does all of this really mean? Nothing, perhaps, other than the reflections
that class action plaintiffs lawyers are seeing in the glass
ceiling may, in fact, be their own.
class action plaintiffs lawyers honest about sex discrimination
claims is vital to preserving the rights of all, both employees
and employers. Numbers, unsupported by facts, are meaningless. And
because the plaintiffs lawyers are relying on twisted numbers
to make their class action cases, its hard to see how they
can have any merit. In order to evaluate the validity of the plaintiffs
claims, individual factual questions regarding the recruitment and
promotion (or lack thereof) of each woman who is suing is the only
legitimate method on which to base a judgment of discrimination.
download the discriminatory
chart , click
download the more discriminatory
download the reverse discrimination
August 27, 2004]
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