Wednesday, April 6, 2011

U.S. Supreme Court Update: Public Campaign Financing and Gender Based Employment Discrimination

Last Monday, the U.S. Supreme Court heard arguments in McComish v. Bennett.  In 1998 the voters of Arizona passed the Citizens Clean Elections Act.  The program has increased the number of women and minorities running for office in Arizona.  The referendum was passed in reaction to Arizona elections corruption scandals.  The Act set up a full and voluntary public financing system for legislative and statewide races.  Some Arizona candidates challenged the “triggered funds” provision contained in the Act claiming that it violated their First Amendment right to free speech.  Opponents said that the fear of “triggered” funds kicking in kept them from raising and spending money – that this fear censored candidates that opted out of the public financing system.  The theory is that a candidate that opts out will spend right up to the triggering threshold but no more– thereby limiting that candidate’s First Amendment rights.  

The Roberts Court will likely find the trigger funding provision unconstitutional because the Court has ruled that “…states and cities may not try to ‘level the playing field’ between candidates for public office.”  The decision in the Arizona case could have serious consequences for matching fund programs in four other states: Maine, New Mexico, North Carolina, and Wisconsin.  The potential impact on women and minority candidates in those states now rests in the hands of the Roberts Court.

Last Tuesday, the U.S. Supreme Court heard oral arguments in the case of Wal-Mart v. Dukes.  This case represents the largest employment discrimination class action lawsuit in U.S. history.  The case is predicated on allegations that Wal-Mart has engaged in systematic gender discrimination in their employment practices, including pay equity and promotion practices.  The question before the Supreme Court is whether the female Wal-Mart employees can join together in a class action against Wal-Mart.  

The Supreme Court must decide “…whether the women suing Wal-Mart have enough in common to justify a collective lawsuit.”  The National Women’s Law Center provides a detailed analysis of the facts in this lawsuit.  There is also a new report from the Alliance for Justice detailing the pattern of discrimination at Wal-Mart and how this case may affect the rights of at least 1.5 million female Wal-Mart employees in the U.S. 

Absent the right to sue in a class-action, workers who have suffered discrimination would lose the most effective means for fighting large corporations.  Most of the women in the Dukes class action would never bring an individual lawsuit.  Proving individual discrimination is hard…And even for those who could prove it, the damages they would be entitled to often aren't worth suing over.”  In fact, “[t]he deterrent effect of a large class-action lawsuit may be the only thing that will encourage employers to root out discrimination among their managers: Tellingly, Wal-Mart has made an impressive effort to treat women more equitably in the 10 years since the case was filed.”    

A new research report from the Institute for Women’s Policy Research: Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope, finds that “…class action is key to winning systemic change--especially among very large employers like Wal-Mart. Class action helps to balance an unequal power relationship."

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