Freedom Line

Keeping class action plaintiffs’ lawyers honest about sex discrimination claims is vital to preserving the rights of all, both employees and employers.

Send this story to a friend
Enter recipient's e-mail:


Sexual Hypocrisy: Turning the Tables on Plaintiffs’ Lawyers In Class Action Discrimination Lawsuits

Mimicking 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.

Wholesale 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.

Under 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.

There 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 today’s high stakes litigation.

Make 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 Costco’s 33 top executives are women, despite a total work force that is nearly half female.

In 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.

Even 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.

In June, a lawsuit was filed against PricewaterhouseCoopers alleging the accounting firm systematically discriminated against women. Remarkably, that case may just change the battlefield. That’s because accountants are numbers gurus and understand figures better than any other profession, including lawyers.

Plaintiffs’ 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.

Most employment law scholars, no matter what side of the legal fence they’re on, will readily admit that discrimination and harassment are hard to prove for the very reason that it’s 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.

But if class action plaintiffs’ lawyers can cook the books to create the appearance of sexual discrimination, why can’t anyone?

Take, 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.

Let’s look, 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 hypocrisy.

Boasting itself to be the nation’s 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 firm’s own website.

And, 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.

Discriminating 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.

Sharing 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?

Rounding 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 practitioner.

Three 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.

The 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.

And, finally, the Public Justice Center’s website lists 9 female staff members who work with only 5 males.

The 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 isn’t the same true in corporate America?

What 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.

Shame on them.

Keeping 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, it’s 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.

  • To download the discriminatory hypocrisy chart , click here (pdf).

  • To download the more discriminatory hypocrisy chart, click here (pdf).

  • To download the reverse discrimination chart, click here (pdf)

[Posted August 27, 2004]

Return to Current Events Index