Finding The Strength To Carry On
After filing the initial charges in 2005, the Plaintiffs soon learned that they were required to arbitrate their cases before the American Arbitration Association (“AAA”) pursuant to Sterling’s RESOLVE Program, which was a three-step alternative dispute resolution program that culminated in arbitration. Whereas the RESOLVE Program promised the Plaintiffs a swift resolution to their complaints, the Plaintiffs found it became a major impediment to obtaining meaningful relief. In addition to being required to submit complaints more detailed than required by the courts, each Plaintiff recalls being required to submit to mediation before mediators employed by Sterling before they could litigate their claims in arbitration. Finally, in April 2008, more than three years after filing their first complaints, the Plaintiffs filed an arbitration demand with the AAA seeking to litigate collectively their pay and promotion claims under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.
In response to the Plaintiffs’ EEOC charges, the EEOC issued a cause finding, concluding that, from the evidence presented, there were reasonable grounds to find a pattern or practice of sex discrimination in the company’s pay and promotion practices. In September 2008, the EEOC filed its own lawsuit against Sterling in the United States District Court for the Western District of New York. EEOC v. Sterling Jewelers Inc., No. 08-cv-0706(A)(M) (W.D.N.Y.). Ultimately, in 2017, the EEOC settled its litigation against Sterling pursuant to a consent decree that required an outside examination of the company’s pay and promotion policies but provided no monetary remedies.
After nearly three years of litigation devoted exclusively to establishing that the Plaintiffs could pursue their claims collectively, they began conducting discovery of Sterling’s pay and promotion practices. Finally, in June 2013, more than five years after the Plaintiffs first sought to arbitrate their claims, they sought class certification. Many of the Plaintiffs attended the two-day class certification hearing, which was held in New York City. In February 2015, the arbitrator granted certification of the Title VII pay and promotion claims and certified a class of almost 67,000 women. The arbitrator also permitted the Plaintiffs to pursue their EPA claims collectively. Ultimately, over 10,000 women joined the EPA collective.
Notwithstanding the evidence of widespread harassment at all levels of the retail operations, the arbitration process went through a dizzying number of rounds including 14 motions from the defendant designed to thwart the women, six comprehensive mediations, additional discovery and the appointment of a new arbitrator.
Understandably, many of the women were frustrated with the length of time the case took to be resolved. Ms. McConnell stated, “I found the legal system to be a very slow process, even though we knew Sterling was a company with many problems. The case was like a never-ending chess game. It was like riding a rollercoaster, year after year, as we inched our way to the top, there were loops that went around and around. We persevered and were lucky to have a great legal team that believed in us from the start and were willing to take Sterling to the mat, even though we all knew Sterling would not go down without a fight.”
