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The Walt Disney Company is certainly a huge corporation. But is it so big that it is impossible to resolve in court whether Disney’s female workforce at large suffers from discriminatory pay? In Los Angeles Superior Court, the entertainment giant is basically telling a judge that the answer to this question is yes. Disney is now demanding that women suing it for allegedly violating California Fair Pay Act do so on an individual basis.
Back in April, Disney was hit with a putative class action led by two women.
LaRonda Rasmussen, who has worked for the company for more than a decade as a product development manager, alleges that she is paid less than the men who perform similar work at Walt Disney Studios. Karen Moore, who has spent over two decades working as a senior copyright administrator for Disney’s Hollywood Records, makes a similar complaint.
Disney, though, is more than just a movie production company and a record label. The company has theme parks, broadcast units, home distribution subsidiaries, a research and development wing, and much much more.
After Disney signaled that it intended to challenge whether Rasmussen and Moore could fairly represent other females at the company, the lawsuit was amended to include eight additional women as plaintiffs (Ginia Eady-Marshall, Enny Joo, Rebecca Train, Amy Hutchins, Nancy Dolan, Anabel Pareja Sinn, Dawn Johnson and Kathy Ly), each at different divisions at the conglomerate hoping to address alleged rampant gender pay discrimination.
“Because Disney’s pay practices negatively affect their female co-workers throughout the state, Plaintiffs bring this case as a class action,” states the amended complaint.
Disney still isn’t satisfied and has now made a move in the case to get the judge to rule they may not proceed collectively.
“The Walt Disney Company described in Plaintiffs’ Complaint is not The Walt Disney Company that exists in fact and law,” states the defendant’s demurrer. “The Disney Companies categorically deny that they pay any female employee less than her similarly situated male coworkers and will vigorously defend themselves against each Plaintiff’s individual claims. But that is all this case is — an assortment of individual claims, based on highly individualized allegations.”
This case holds the possibility of breaking ground.
California’s Fair Pay Act dates back to 1949, but it has been largely toothless thanks to loopholes that allowed companies to justify a gender wage gap. A few years ago, then-Gov. Jerry Brown signed into effect amendments to the law that activists hope will culminate in better pay balance. But how will it happen? According to Disney’s latest papers, its lawyers at Paul Hastings failed to identify any case under the law that has ever been certified for class action. Disney hopes to avoid becoming the first.
To proceed as a class action, the plaintiffs must convince the judge there’s a community of interest among an ascertainable class.
Disney says that’s not possible, and that individual questions predominate here. Although the lawsuit has expanded, the corporation argues these 10 plaintiffs still aren’t adequately representing others who work in animation, cable programming, cruise lines, vacation clubs, restaurants and so forth.
The very big company also pokes at what the pay discrimination suit lacks.
“For example, they do not assert a putative class of cashiers or store managers, performing relatively consistent job duties and functions across a business enterprise,” write Disney’s lawyers. “Rather, Plaintiffs point to specific comparators outside of their jobs, generally in roles one or more levels above the Plaintiffs, but allegedly performing substantially similar work.”
Disney continues: “The comparisons Plaintiffs seek to make — across different jobs, different levels, and with potentially unspecified other differences — would demand an individual-by-individual review of the duties, skills, effort, responsibility, and working conditions of each woman in every job, compared to each man in every job, to identify the correct comparator pool.”
Plus, Disney adds, context could matter.
According to Disney’s lawyers, there is no violation of law if the wage differential is due to seniority, a merit system or a “bona fide factor other than sex, such as education, training or experience.”
And so, when comparing the women with the men, Disney says it is entitled to assert defenses based on the situation.
“For one putative class member, the Disney Companies may argue that she lacks the job critical prior experience of a male colleague,” states Disney’s court brief. “For another putative class member, the Disney Companies may argue that she lacks important education or training required for the job. For many others, no defense will be necessary at all because the female employee will be the highest paid among her peers.”
A hearing on whether Disney can stop a class action from the get-go is scheduled for Dec. 11. In advance, the company seems to be preparing itself for the long haul.
According to Paul Hastings attorney Felicia Davis, “The parties do not need to litigate this case for three years to discover what is clear today — Plaintiffs’ claims are not appropriate for class or representative treatment.”
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