Federal, state, and municipal statutes and regulations prohibit discrimination on the basis of gender, sexual harassment and pregnancy. Federal and state laws also prohibit discrimination between male and female employees by paying lower wage rates to employees of one sex than to the other for work which requires equal skill, effort and responsibility, and which is performed under similar working conditions. Strict compliance with administrative prerequisites and statutes of limitations is necessary to preserve such claims. If you think you have experienced sexual discrimination or harassment, the lawyers at Burr & Smith, L.L.P. can help you evaluate your rights and remedies.

On August 31, 2009, the United States District Court for the Southern District of New York denied in its entirety Sterling's motion to vacate the Arbitrator's clause construction decision or stay the arbitration.  The June 1, 2009 clause construction decision by the Arbitrator, Magistrate Judge Kathleen Roberts, found in favor of the female employees, holding that the RESOLVE Program does not prohibit class-wide arbitration of these claims. 

Sterling's motion to vacate that decision before the district court sought to preclude Claimants from seeking certification of their claims on a classwide basis.  Sterling also sought to stay the arbitration pending disposition by the United States Supreme Court in a separate case, Stolt-Nielsen SA v. Animalfeeds Int'l Corp., 548 F.3d 85 (2d Cir. 2008), cert. granted, 77 U.S.L.W. 3678 (U.S. June 26, 2009).  The district court's order setting forth its decision is linked below with an opinion explaining its reasoning to follow.

Current and former female employees of Sterling Jewelers Inc. (“Sterling”) have sued Sterling alleging that, as a class, they were paid less than similarly-situated male employees or denied promotional opportunities because of their gender.  The case is before an arbitrator, rather than in court, because Sterling’s alternative dispute resolution program called the RESOLVE Program requires that employees bring claims of this kind before an arbitrator, who acts as a private judge.  This case is filed with the American Arbitration Association (“the AAA”), a private agency that manages arbitrations like ours.  This case is pending before Kathleen Roberts, who is serving as the arbitrator.  Before she began work as an arbitrator, Ms. Roberts was a Magistrate Judge in the federal court in New York.  Sterling denies that it has committed any discrimination and also has argued that, in any event, its RESOLVE Program does not permit these women to pursue this case as a class action.

On June 1, 2009, Judge Roberts ruled in favor of the female employees, finding that the RESOLVE Program does not, as Sterling had argued, bar the pursuit of these sex discrimination claims in a class action.  Judge Roberts agreed with the female employees, finding that because the arbitration agreement “was drafted by Sterling and was not the product of negotiation,” Sterling must explicitly state in the RESOLVE Program that it seeks to prohibit the pursuit of discrimination brought on behalf of a class and, by failing to so state its position explicitly, Sterling could not ban the pursuit of a class claim on behalf of women workers.  The effect of the decision is that female employees may ask Judge Roberts to order that their claims may be pursued in a class action, rather than being pursued individually by each female employee as Sterling argued.

You may download Judge Roberts’ June 1, 2009 decision by clicking on the tab at the bottom of the page.

The amended complaint names thirteen women who seek to represent a class of women with similar claims.  Since the filing of the complaint, women from at least 27 states have come forward to confirm their interest in joining this case, as of June 1, 2009.  If the class is certified as alleged, the case could include more than 20,000 women.  You may download a copy of the most recent arbitration complaint by clicking on the tab below.

In the AAA arbitration, the female claimants seek to certify a class of all similarly situated female Sterling employees with retail sales responsibilities, up to and including district managers in the following Sterling retail chains:
 
Kay Jewelers
Jared the Galleria of Jewelry
Marks and Morgan Jewelers
J.B. Robinson Jewelers
LeRoy’s Jewelers
Osterman Jewelers
Goodman Jewelers
Weisfield Jewelers
Shaws Jewelers
Friedlanders Jewelers
Rogers Jewelers
Belden Jewelers.

The women who have brought this action seek back pay, compensatory and punitive damages, reasonable attorney fees and costs, and pre-post judgment interest on behalf of themselves.  The women also seek to compel Sterling to modify its employment practices that they allege discriminate against female employees, including the lack of job postings for management positions.

The female employees have brought their claims under the Equal Pay Act on behalf of themselves and other similarly situated female employees dating back to February 27, 2003, if a willful violation of the Equal Pay Act is established, or February 27, 2004, if a willful violation is not established.  In addition, the claimants are pursuing Title VII promotion and pay claims on behalf of themselves and other similarly situated female employees dating back at least two years prior to the earliest filed EEOC charge, which would include claims dating back to May 18, 2003.  If the arbitrator finds that the claimants have established a continuing pattern or practice of discrimination in promotion and pay that began prior to May 18, 2003 and continued into the charge filing period, claims could be asserted for periods preceding May 18, 2003.

Prior to filing the demand for arbitration, at least fifteen women filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”).  On January 3, 2008, the EEOC issued a determination finding that Sterling subjected the claimants and a nationwide class of female employees with retail sales responsibilities to a pattern or practice of sex discrimination in regard to promotion and compensation. On September 23, 2008, the EEOC filed a sex discrimination lawsuit against Sterling alleging a pattern or practice of pay and promotion discrimination against female retail sales employees, which is pending in the United States District Court for the Western District of New York.  You may download the EEOC’s determination and the EEOC’s Complaint by clicking on the tabs at the bottom of this page.

The next step for the female employees is to seek to have their claims certified as a class action.  Therefore, it is very important that individuals who have information about Sterling’s employment practices please call us at (813) 253-2010 or (866) 647-3110, or send us an email at rep@burrandsmithlaw.com providing your contact information and where you worked for Sterling.   You may also contact our co-counsel Thomas A. Warren Law Offices, P.L., (Misty McKinnon) toll-free at (866) 854-5152; or Cohen Milstein Sellers & Toll, (Jenny Yang), at (202) 408-4600.  We are interested in speaking with former or current employees, both male and female.  (Please note that we are not ethically permitted to discuss the case with current managers unless they believe they have experienced or are experiencing gender discrimination at Sterling).

DOWNLOAD THE ARBITRATION COMPLAINT
DOWNLOAD THE EEOC DETERMINATION
DOWNLOAD THE EEOC COMPLAINT
DOWNLOAD JUDGE ROBERTS’ JUNE 1, 2009 DECISION
DOWNLOAD JUDGE RAKOFF’S August 31, 2009 DECISION