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Arbitrator slams Sterling for ‘misleading’ memo
The arbitrator in the ongoing gender discrimination suit against Sterling Jewelers called an email the retailer sent to employees about the case a “troubling” document that contains “misleading partial truths and omissions.”
New York--The arbitrator in the ongoing gender discrimination suit against Sterling Jewelers called an email the retailer sent to employees about the case a “troubling” document that contains “misleading partial truths and omissions.”
On Feb. 2, arbitrator Kathleen Roberts issued her most recent major decision in the case, ruling that that current and former female employees of Sterling Jewelers Inc. can pursue claims challenging the retailer’s pay and promotion practices as a class, though she threw out claims that the alleged discrimination was intentional.
According to court papers, the following day, Sterling sent an email titled “Legal Update: Arbitrator Finds No Convincing Proof of Companywide Discriminatory Pay and Promotions Policies at Sterling” to all its employees, a communication that caused the women’s attorneys to cry foul because, they said, it was “biased and misleading.”
Claimants’ lawyers filed an emergency motion asking the arbitrator to restrict Sterling’s communications with members of the class, including those who still work for the retailer, and to force the retailer to issue a notice correcting its memo.
On March 16, Roberts declined the motion for corrective notice, stating that members of the certified class will receive arbitrator-approved information about the award in the future, but chastised Sterling in her ruling.
She wrote that the memo “presents a seriously incomplete and misleading description of the award that diminishes the significance of the award and could potentially discourage interest and participation in the class arbitration,” court papers state.
Sterling Jewelers spokesman David Bouffard said while they “respectfully disagree” with the arbitrator’s characterization of their corporate communication, the arbitrator did conclude that the memo “did not significantly impact the arbitration process.” The retailer, which has maintained throughout the case that the discrimination claims are not representative of its corporate culture, has appealed the arbitrator’s Feb. 2 ruling.
Among the points of the Sterling memo that Roberts found misleading is the title, which “improperly and erroneously suggests” that her Feb. 2 ruling contains a determination on the merits of the intentional discrimination claims in the case.
However, Roberts stated, all that was determined was that claimants failed to present the sufficient proof necessary to pursue claims of intentional pay and promotion discrimination as a class. The standard of proof she used in the case was the one set by the huge Walmart class action, a case that has created “substantial hurdles” for pursuing claims of
intentional discrimination as a large class.
She also noted that the claimants and other current and former employees are free to pursue claims of intentional discrimination individually.
Roberts also stated that the memo doesn’t clearly convey the main point of her Feb. 2 ruling: that she has cleared the way for tens of thousands of current and former female employees of Sterling Jewelers to pursue claims that the retailer’s pay and promotion practices had a disparate impact on women.
Going forward, she has prohibited Sterling’s attorneys from contacting class members, including those who are current employees of the jeweler, about the arbitration without the consent of class counsel or her order.
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