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5 Times Justice Ginsburg Left an Imprint on Employment Law


September 21, 2020

Justice Ruth Bader Ginsburg made waves by taking issue with majority rulings in cases involving fair pay for women and access to birth control, but those dissents represent just a fraction of her output during nearly three decades on the U.S. Supreme Court.

And while attorneys say there are plenty of other employment cases in which Justice Ginsburg left her mark, they acknowledge that those two dissents will be forever synonymous with her. In Ledbetter v. Goodyear, she accused the majority of ignoring the realities of the workplace and spurred Congress to pass the Lilly Ledbetter Fair Pay Act in 2009. In Burwell v. Hobby Lobby, she opposed a five-justice majority’s conclusion that the Religious Freedom Restoration Act shields closely held companies from providing contraception coverage to their employees as required by a provision of the Affordable Care Act.

Here, Law360 digs deeper into the late jurist’s employment writings.

Wal-Mart Stores Inc. v. Dukes et al.

In one of its seminal employment decisions over the past 20 years, the high court in 2010 struck down a class of about 1.5 million women in a gender bias class action against retail giant Walmart in what has been called the largest Title VII sex discrimination case in U.S. history. The 5-4 ruling in Wal-Mart Stores Inc. v. Dukes authored by Justice Antonin Scalia reverberated throughout the employment law world because it made it harder for plaintiffs to obtain class certification and bring claims as a group.

The suit saw lead plaintiff Betty Dukes and a handful of other women allege that Walmart fostered a discriminatory corporate culture, paid women less than their male colleagues and passed them over for promotions.

In a partial dissent, Justice Ginsburg wrote that the women had adequately alleged a question common to the proposed class, namely that Walmart’s discretionary policies were discriminatory. She also criticized the majority for focusing on the dissimilarities between individual class members and for improperly “blending” the threshold issue of commonality with the more demanding requirements of the class action rule at issue. The dissenters, however, rejected certification under a separate section of the class action rule, Rule 23(b)(2) of the Federal Rules of Civil Procedure.

. . .

Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, who served as counsel for Dukes and her fellow class members, told Law360 on Monday that Justice Ginsburg’s dissent “reflected two of [her] real strengths — her mastery of civil procedure and her appreciation of the modern workplace and the ways in which bias can infiltrate modern personnel decisions.”

“Justice Ginsburg’s dissent was so characteristic of her,” Sellers said, noting that it was “an erudite treatment” of Rule 23 that critiqued the majority’s legal rationale “mixed with an empirical assessment of the ways in which bias can infiltrate personnel decisions that was informed by both common sense and an awareness of the modern workplace, which I think was missing from the majority opinion.”

Sellers also recalled that the oral argument session, in which he was peppered with dozens of questions by justices often speaking over one another, calmed when Justice Ginsburg spoke, which he attributes to the respect she was afforded by her colleagues on the bench.

“I think — reflecting the respect she got from the other justices — when she spoke, they tended to pause and let her finish her question,” Sellers said. “She didn’t speak a lot, but what she asked was really very, very much on the point and very insightful.”

“Many have spoken about how she was a role-model for women. I don’t know how many of us men can say that but I found her to be an incredible role-model as well,” he added

Read 5 Times Justice Ginsburg Left an Imprint on Employment Law.