A group of women who took their employer Sterling Jewelers to arbitration over alleged sex discrimination argued on Monday for the Second Circuit to reverse a lower court judge’s decision and add 70,000 employees to the case, saying the arbitrator was right to include them.
Laryssa Jock and other women who work for Sterling subsidiaries like Kay Jewelers and Jared the Galleria of Jewelry have litigated against the company for more than 10 years on claims that they are sexually harassed by male colleagues and paid and promoted less than men.
An arbitrator allowed those claims to proceed as a “class arbitration,” but U.S. District Judge Jed Rakoff struck that down in January, citing U.S. Supreme Court Justice Samuel Alito’s concurring opinion in Oxford Health Plans v. Sutter, another case involving class arbitration. At oral arguments Monday, U.S. Circuit Judge Peter Hall indicated that he would vote for reversal, but Gerald Maatman of Seyfarth Shaw LLP, representing the company, urged him to rethink it.
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The company contends that the arbitrator’s rulings should only apply to women who filed claims — and there are fewer than 300 of them. But Jock says that by agreeing to take part in RESOLVE, women who work at Sterling shops consent to take part in class arbitration, even if they don’t file a claim. The program uses rules of the American Arbitration Association that allow for such a process, they argue.
When Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, representing the plaintiffs, took the lectern to argue that Judge Rakoff got it wrong, Judge Hall indicated that he agreed, at least up to a point. Sterling has argued that Judge Rakoff’s decision was simply in line with a ruling remanding the case that the Second Circuit handed down in 2017, but Sellers said it should be “clear that the remand didn’t preordain the result.”
“That was my understanding,” Judge Hall said.
“Ours, too, your honor,” Sellers said.
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