District Judge Allows Sex Discrimination Class Action Against Bayer to Proceed

Last week, New Jersey U.S. District Judge Dennis Cavanaugh denied Bayer Corp.’s motion to strike class allegations and partially dismiss Barghout’s (plaintiffs’) amended second complaint in a $100 million sex discrimination suit. Despite presenting a strong legal analysis regarding potential problems with class certifications, Judge Cavanaugh ruled that Bayer’s argument (that the allegedly amorphous claims conflicted with the U.S. Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision) was premature and was not appropriate at that point of the case.

The employee-plaintiffs (women who work or used to work for Bayer HealthCare Pharmaceuticals and Bayer HealthCare Consumer Care) originally filed their case in March 2011 and filed their second amended complaint in July. The plaintiffs alleged that Bayer engaged in company-wide discrimination against female employees. Plaintiffs also claimed that Bayer itself recognized that there was a dearth of women in leadership positions in the company.

In Dukes, female employees of Wal-Mart brought a class action sexual discrimination lawsuit in what was the largest civil rights class action in U.S. history. The class action charged that Wal-Mart with discrimination against its female employees in pay, job assignments and promotion in violation of Title VII of the Civil Rights Act of 1964, which prohibits an employer’s refusal to hire or discrimination against any individual with respect to employment compensation, terms, conditions or privileges because of race, color, religion, national origin or gender. The Supreme Court ruled in favor of Wal-Mart, holding that the plaintiffs’ claims lacked commonality under Rule 23(b)(3) of the Federal Rules of Civil Procedure to constitute a class action. The Court, with Justice Antonin Scalia writing for the majority, held that the action could not proceed as any kind of class action suit.

In his decision, Judge Cavanaugh noted, “Although the Dukes court reasoning is binding and relevant to analysis of whether an expansive class of employee-plaintiffs should be certified, its applicability is tenuous as this stage of litigation.” Judge Cavanaugh concluded his decision in stating that it was too early to decide whether or not the plaintiffs could satisfy the applicable requirements of Rule 23.

The plaintiffs’ complaint is a collective action of female employees under the Equal Pay Act and requested at least $100 million in damages.

In addition to seeking to have the class allegations struck, Bayer claimed that the court should toss out the plaintiffs’ disparate impact and Equal Pay Act claims. Yet, Judge Cavanaugh’s ruling stated that the plaintiffs sufficiently pled their disparate impact claims in showing that a facially neutral practice resulted in a discriminatory impact on a Title VII-protected class of citizens. Furthermore, Cavanaugh noted, they identified pay disparities and promotions granted that sufficiently defeated Bayer’s dismissal bid regarding the Equal Pay Act claims.

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