On March 29, the Court will conduct a limited review of the Ninth Circuit’s order upholding class certification in this case, which alleges sex discrimination in Wal-Mart’s pay, promotions, and other employment practices. At issue in Dukes is whether hundreds of thousands of female Wal-Mart employees can collectively seek an injunction and lost pay against the store. Four lower courts, including the Ninth Circuit sitting en banc, have upheld plaintiffs’ class certification, finding that they presented sufficient evidence of gender discrimination, and that Wal-Mart has failed to address this discrimination, despite being well aware of its presence. Now, the Supreme Court will decide whether plaintiffs can finally have their day in court.

The brief takes issue with Wal-Mart’s asserted legal standard, which would require the Court to establish a new and highly restrictive standard for certifying claims involving subjective or discretionary employment practices, such as those at issue in this case. Applying a heightened legal standard to cases that involve subjective decision-making is at odds with core Title VII enforcement principles, and would restrict employees’ ability to seek redress for valid claims involving discriminatory employment policies. Moreover, such a standard would reduce employer incentives to adopt practices that counteract or minimize bias in pay, promotion and other employment decisions. The brief underscores the reality that to deny plaintiffs their day in court would have far-reaching, negative consequences for future victims of systemic and structural race- or gender-based discrimination. Read the PDF of the brief.

UPDATE: Bob Egelko of the San Francisco Chronicle covers the opposition to Browne in a Feb. 3, 2010, article and join us for a Feb. 11 briefing by Alliance for Justice on the Browne nomination.

A coalition of more than seventy civil rights, women’s rights, consumer, fair housing and legal organizations – including the Equal Justice Society – this week sent a letter to Congress urging the Senate Health, Education, Labor, and Pensions (“HELP”) Committee to reject the nomination of Sharon Browne to the Board of Directors of the Legal Services Corporation (“LSC”).

“Sharon Browne’s nomination is highly troubling because she has spent her entire career advocating against the very constituencies the Legal Services Corporation serves, said Nan Aron, Alliance for Justice.   “After extensively reviewing her record, I have seen nothing to indicate that she is committed to supporting women, people of color, or the poor – the very people LSC was created to support.”

When creating the LSC, Congress established that members of the legal services board should be committed to the development of legal assistance for the poor and supportive of the principal that this population have access to adequate and effective legal services.

Eva Paterson of the Equal Justice Society indicated, “At a time when inadequate funding means that legal services turns away nearly half of those who seek its help, LSC needs leadership from those dedicated to its core mission:  serving society’s neediest.”

“Sharon Browne’s nomination defies the basic criteria that Congress established in identifying LSC board members,” continued Paterson.  “She would not contribute to making the LSC board representative of those who provide, use, and support legal services.  She is not committed to keeping politics out of the LSC’s work.  And, her track record reveals a long history of political efforts against the LSC’s basic mission of providing equal justice for the poor.”

“AFJ and the more than 70 organizations who have signed onto this letter urge Congress and the HELP committee to reject Browne’s nomination and ask that another nominee – with a personal and professional commitment to providing equal justice for the poor – be identified,” concluded Nan Aron.

In the petition, the Asian Pacific American Legal Center, Mexican American Legal Defense and Educational Fund, Equal Justice Society, California NAACP and the NAACP Legal Defense and Educational Fund, Inc. argue that in order to protect the fundamental rights of all Californians, a higher standard is required to overturn the right to marry. Minority communities cannot be stripped of their fundamental rights by a simple majority vote.

“We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community,” said Eva Paterson, president of the Equal Justice Society. “If the Supreme Court allows Proposition 8 to take effect, it would represent a threat to the rights of people of color and all minorities.”

The petition filed by Raymond C. Marshall of Bingham McCutchen and Prof. Tobias Barrington Wolff of University of Pennsylvania Law School on behalf of leading African American, Latino, and Asian American groups echo the arguments made in the November 5 lawsuit filed by the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights: Proposition 8 prevents the courts from exercising their essential constitutional role of enforcing the equal protection rights of minorities.

The California Constitution requires that any measure attempting to revise the underlying principles of the constitution must first be approved by a two-thirds vote of the legislature before being submitted to the voters. Proposition 8 was not approved through that constitutionally required process.

“Proposition 8 contradicts the most basic protection guaranteed by the California Constitution, which is the right to equal protection of the laws,” said John Trasviña, President and General Counsel of the Mexican American Legal Defense and Educational Fund. “We can not allow the Constitution to sanction discrimination against one group of people.”

“Direct democracy cannot override the California Constitution, which requires more than a majority vote to deprive a minority group of their fundamental rights,” said John A. Payton, President and Director-Counsel of the NAACP Legal Defense Fund.

“We cannot become a society that picks and chooses who is entitled to equal rights,” said Alice A. Huffman, president of the California State NAACP. “We should include all people from all walks of life in the entitlement to all freedoms now enjoyed by the majority of our population As a civil rights advocate, we will continue the fight of eliminating roadblocks to freedom.”

“Consistent with core equal protection principles, minority communities must not be stripped of their fundamental rights by bare majority rule,” said Karin Wang, Vice-President of Programs for the Asian Pacific American Legal Center. “California went down this path before when the majority population chose to bar interracial marriages involving an unpopular minority: Asian immigrants. The state Constitution exists exactly for this reason – to protect the fundamental rights of minority communities.”

“Let’s not forget the landmark 1967 case of Loving v. Virginia, which allowed two people of different races to marry,” said Paterson of the Equal Justice Society. “People then believed it was acceptable to keep Mildred Loving from marrying a white man because of their ideas of who should marry whom. We must not return to those times.”

The court has precedent for invalidating an improper voter initiative. In 1990, the court overruled an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.

A copy of the writ petition is available here.