Social Justice Monday – Reinvigorating Commonality: Gender and Class Actions
January 30, 2017
The modern class action, the modern feminist movement, and Title VII were all products of the creativity and turmoil of the 1960s. As late as 1961—a year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman—the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation.
Simultaneously—at least in part in response to the civil rights movement and the Civil Rights Act—an (all-male) Judicial Conference and Supreme Court ushered in the modern era of collective litigation by promulgating Rule 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil right plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women—and men—across many industries.
In this discussion, Professors Brooke Coleman and Liz Porter examined the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years. They discussed how the four “waves” of feminism found corresponding analogs in the development of Title VII class action law. While not an empirical or comprehensive study, this discussion aimed to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender. The discussion also reflected on whether the Rule 23(b)(2) suit continues to serve a vital function in achieving gender equality, as well as how the relative decline in feminist legal theory over the past 20 years, particularly but not only in procedure, has impacted its vitality.
Professors Coleman and Porter presented their analysis last Fall at NYU as part of a larger panel on class actions. Click here for a link to their presentation at NYU.
Interested in learning more? Check out these books:
On television, Wal-Mart employees are smiling women delighted with their jobs. But reality is another story. In 2000, Betty Dukes, a fifty-two-year-old black woman in Pittsburg, California, became the lead plaintiff in Dukes v. Wal-Mart Stores, a class action, representing 1.6 million women. In her explosive investigation of this historic lawsuit, journalist Liza Featherstone reveals how Wal-Mart, a self-styled “family-oriented,” Christian company: Deprives women (but not men) of the training they need to advance. Relegates women to lower-paying jobs like selling baby clothes, reserving the more lucrative positions for men. Inflicts punitive demotions on employees who object to discrimination. Exploits Asian women in its sweatshops in Saipan, a U.S. commonwealth. Featherstone goes on to reveal the creative solutions that Wal-Mart workers around the country have found, like fighting for unions, living-wage ordinances, and childcare options. Selling Women Short combines the personal stories of these employees with superb investigative journalism to show why women who work these low-wage jobs are getting a raw deal, and what they are doing about it. A new preface to the paperback edition will reflect on Wal-Mart’s response to this lawsuit and its critics-including this one. – From Amazon
A Practitioner’s Guide to Class Actions
Marcy Hogan Greer
The book is divided into three parts: Anatomy of a Class Action; Special Issues in Class Actions; and Jurisdictional Survey of Local Requirements Governing Class Actions. Included are discussions on: precertification, ethical and practical issues of communications with members of a class, interlocutory appeals, settlements, claims administration, the Class Action Fairness Act, bankruptcy and class actions, and arbitration.
Complete with a state-by-state analysis of the ways in which the class action rules differ from the Federal Rule of Civil Procedure 23, this comprehensive guide provides practitioners with an understanding of the intricacies of a class action lawsuit. – From the Publisher
If you were unable to attend this presentation, it is available via video recording here: Social Justice Mondays Recordings.