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High Court Urged to Steer Clear of Sex Bias Arbitration Fight


August 17, 2020

Tens of thousands of women who claim Sterling Jewelers improperly shorted them on pay and promotions pressed the U.S. Supreme Court on Monday to turn aside the company’s effort to limit when workers can pursue class arbitration, saying its legal rationale doesn’t hold water.

The group of around 70,000 women urged the high court to deny Sterling’s appeal of a November ruling by the Second Circuit blessing an arbitrator’s decision to certify an arbitral class of female retail employees that included those who didn’t explicitly opt into the long-running case, which dates back to 2005. The women have alleged that Sterling paid them less than their male peers and stymied their career advancement.

Sterling lodged its cert petition earlier this year, seeking to upend the Second Circuit’s decision. The question posed to the justices is whether an arbitrator can allow class arbitration that binds all parties as well as “absent” class members without finding that they consented to the process.

But in Monday’s opposition, the women noted that Sterling failed almost a decade ago to have the Supreme Court take up the case and that its “arguments are even weaker now” following multiple appeals.

“While Sterling says this case ‘vividly illustrates’ the problems of class arbitration, it more vividly illustrates a different problem: losers in arbitration seeking a second (and in this case a third and fourth) bite at the apple and burdening the judiciary with requests to review arbitral decisions they dislike,” the women said. “Sterling’s conception of judicial review — where arbitral awards are subject to judicial revision a decade after the fact, following several intervening appeals — presents the real threat to the efficiency and finality arbitration is meant to achieve.”

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If the high court takes the case, it will be the latest of numerous legal fights it has taken on in recent years that involve workplace arbitration agreements generally and class arbitration in particular as employers have increasingly gravitated toward programs mandating arbitration of legal disputes.

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The class is represented by Sam Smith and Loren B. Donnell of Burr & Smith LLP; Joseph Sellers, Kalpana Kotagal and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Jessica Ring Amunson and Lauren Hartz of Jenner & Block LLP; and Thomas Warren.

Read High Court Urged to Steer Clear of Sex Bias Arbitration Fight.