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Sex Discrimination Case Against National Jewelry Retailer Shows Difficulties Employees Face In Ending Company-Wide Discrimination

A New York Times article by Susan Antilla describes a recent lawsuit 12 women have filed against Sterling Jewelers for age and gender discrimination and sexual harassment under the Equal Pay Act and Title VII of the Civil Rights Act of 1964.  The allegations include unequal pay, discrimination in promotions, demotions, and terminations, and retaliation for complaining about discrimination and harassment.  The plaintiffs are seeking certification of a class of approximately 44,000 current and former employees in order to pursue the case as a class action lawsuit.  Because Sterling Jewelers required its employees to agree to arbitrate employment discrimination claims, the case will be resolved through arbitration with the American Arbitration Association.   

Despite the factual strength of the plaintiffs' claims, they face a difficult legal path because of recent U.S. Supreme Court cases. 

Among the recent Supreme Court cases that have hurt employee's abilities to take legal action against illegal employer practices, three stand out in thinking about the Sterling Jewelers case: Wal-Mart v. Dukes, which held that a group of current and former female employees of Wal-Mart could not pursue sex discrimination claims against Wal-Mart as a class because of differences in the employee's circumstances, AT&T v. Concepcion, which held that plaintiffs could not file as a class action under an arbitration agreement that required the parties to bring claims in an "individual capacity," and Stolt-Nielsen v. Animalfeeds, which held that an arbitrator could not evaluate class action claims under an arbitration agreement that was silent to the issue of whether parties may pursue arbitration as a class.

In the Sterling Jewelers case, the Complaint alleges that the arbitration agreement between the plaintiffs and the employer is silent as to whether the parties may bring claims in a class action suit.  While the Stolt-Nielsen case generally prevents class action arbitrations when the arbitration is silent as to class action procedures, the women claiming discrimination against the retailer argue that the intent behind their arbitration agreements was to include class action claims in arbitrations. 

If the arbitrator (or court if the employer seeks review of the case) decides that class action arbitration is appropriate under the arbitration agreement, the arbitrator must also decide whether the plaintiffs' claims are similar enough to be decided in one case.  The plaintiffs must show that the questions of law and fact in their claims are common to those of the other 44,000 in the class.  To show this, the Complaint argues that questions regarding the jewelry retailer's employment policies are common to all members of the class.

In the face of these challenges, the reason for the courage and determination of these plaintiffs is clear.  As printed in the New York Times article, one of the plaintiffs explains:

“There’s a hole in my heart — I don’t know if it will ever be filled — for the way I was treated,” she said. “But the purpose we are here for is to make sure this stops. We’re working just as hard as the men, so give us our due.”


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