Megacases, Diversity and the Elusive Goal of Workplace Reform

Boston College Law Review Volume 49 Issue 2 Number 2 Article 2 3-1-2008 Megacases, Diversity and the Elusive Goal of Workplace Reform Nancy Levit Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Civil Rights and Discrimination Commons, and the Litigation Commons Recommended Citation Nancy Levit, Megacases, Diversity and the Elusive Goal of Workplace Reform, 49 B.C.L. Rev. 367 (2008), http://lawdigitalcommons.bc.edu/bclr/vol49/iss2/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact . MEGACASES, DIVERSITY, AND THE ELUSIVE GOAL OF WORKPLACE REFORM NANCY LEVIT * Abstract: Structural reform litigation, lawsuits that aim to create systemic' change, dates back to the school desegregation cases of the 1950s and today continues with employment discrimination class action suits. Some of' America's most important companies—Home Depot, Texaco, and CocaCola among them—have been subject to such litigation. This Article discusses the legal impetus towards the settling of such suits via consent decrees, and it examines several major consent decrees and the factors influencing the success or failure of each. The Article concludes that the defendant's acceptance of the desirability of creating a diverse workplace, coupled with making specific people accountable for delivering diversity, is a key component to a successful consent decree. INTRODUCTION Class actions have changed the stakes of employment discrimination litigation. The initial workplace cases, although critical in addressing discriminatory practices, overwhelmingly involved individual claims.' That changed with the Civil Rights Act of 1991. 2 It expanded compensatory and punitive damages, and made jury trials a matter of rights thus providing economic incentives for class claims. From 2001 to 2004, a time when the number of class action suits was decreasing across the board, the number of employment discrimination class suits rose by sixty-seven percent. 4 These cases have produced scores of mul* Copyright 0 2008 Nancy Levit, Curators' and Edward D. Ellison Professor of Law at the University of Missouri-Kansas City School of Law. I am indebted to the following people for advice, comments, editing suggestions, and intellectual noodling: David Achtenberg, Theresa Beiner, June Carbone, Bill Colby, Aaron Geary, Tim Geary, Melissa Hart, Jeff Hirsch, Robert Klonoff, Tony Luppino, Marcia McCormick, Allen Rostron, and Paul Secunda. Lawrence MacLachlan provided exceptional library and research support. This project was supported by a generous research grant from the University of Missouri-Kansas City Law Foundation. I See, e.g, McDonnell Douglas Corp. v. Green, 911 U.S. 792, 794 (1973), 2 Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified at 42 U.S.C. § 1981a (2000)). 3 42 U.S.C. § 1981 a(c); see also Melissa Hart, Will Employment Discrimination Class Actions Survive?. 37 AKRON L. REV, 813. 814 (2004). Melissa M. Mulkey, Class Dismissed: Defending and Preventing Employment Class Actions in Your VI/Laplace, 12 14R ADVISOR: LEGAL & PRAC. GUIDANCE, Aug. 2006, at 3 (noting the 367 368 Boston College Law Review (Vol. 49:367 timillion-dollar settlements against some of the nation's largest employers. 5 They have encouraged greater use of litigation to address deeply entrenched corporate practices. In addition, the consent decrees have inspired increasingly sophisticated social science research on the remedies that do—and do not—make a difference in workplace inclusivity. 6 With successful models of employment discrimination consent decrees now in place, informed by recent sociological research, the question now arises: what arc the most successful methods to address workplace diversity, and are the most promising methods effective only at the risk of losing the soul of the antidiscrimination principle? A number of the employment cases against major corporations from the late 1990s and early 2000s resulted in multimillion-dollar settlements. In 1996, Texaco settled a race discrimination class action for more than $175 million.? Four years later, Coca-Cola paid over $190 million to settle a class action with similar race allegations. 8 The past decade has seen a cascade of enormous settlements in discrimination class action suits: in 1997, Publix Supermarkets, one of the country's largest grocery chains, paid $81.5 million to settle claims of systematic sex discrimination in promotions, raises, and wage opportunities by 150,000 women;9 also in 1997, Home Depot agreed to settle a lawsuit by 25,000 current and former employees for discriminatory pay and promotion practices; 19 in 2004, Boeing paid $72 million to settle claims by almost 18,000 female employees involving similar allegations;" that same year, brokerage firm Morgan Stanley paid $54 million to settle an Equal Employment Opportunity Commission ("EEOC") suit claiming sex discrimination and sexual harassment, including outings to strip clubs, groping of women, and denial of training, mentoring, promotion opportunities, and pay raises to women. 12 Large settlements have filing of 222 federal employment discrimination class action suits in 2001, and 349 such suits in 2004). But see Allan Kanner, interpreting the Class Action Fairness Act in a Truly Fair Manner, 80 Tut. L. Rev. 1645, 1666-67 (2006) (noting hostility of the federal courts to class actions). 5 See infra notes 7-19 and accompanying text. 6 See infra notes 369-388 and accompanying text. 7 For a discussion of the Texaco settlement, see infra notes 154-187 and accompanying text. 8 For a discussion of the Coca-Cola settlement, see infra notes 226-261 and accompanying text. 9 Associated Press, Supermarket Chain Settles Bias Suit, CHI. TRia., Jan. 25, 1997, at 3. 10 For a discussion of the Home Depot settlement, see infra notes 188-206 and accompanying text. II Boeing to Pay .87211110 Settle Sex Discrimination Suit. LAW. WKLY., Nov. 21, 2005, at 22. is Silyanlal Majumdar, From Glass Ceiling to Pay Cap, Bus. STANDARD, July 16, 2004, at 8. 2008] Alegacases, Diversity, & Workplace Reform 369 occurred in the public sector as well. The U.S. Postal Service just settled the largest disability discrimination suit in history for $61 million." In February 2007, the U.S. Court of Appeals for the Ninth Circuit approved a California federal district court's certification of a class of potentially more than 1.6 million women in Dukes v. Wal-Mart, Inc.," the largest employment discrimination class action in American history." The plaintiffs claim that Wal-Mart systematically denied women good job assignments, pay, and promotions." One month earlier, a federal district court certified a class action against Costco on behalf of approximately 7 (...truncated)