"Not Merely There to Help the Men": Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action

By Engstrom, David Freeman | Stanford Law Review, January 2018 | Go to article overview

"Not Merely There to Help the Men": Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action


Engstrom, David Freeman, Stanford Law Review


Table of Contents  Introduction  I. St. John v. General Motors and Midcentury Litigation.    A. Pay Equity Circa 1938    B. The St. John Trial (I): Legal Limbo and the Perils of Litigation       1. Between Lochner and the New Deal       2. Lochnenan hangovers and the new civil procedure       3. The challenge of finding plaintiffs' counsel.    C. The St. John Trial (II): Pay Equity's Complexities and Judicial       Competence       1. The puzzle of "similarly employed" and "actual" versus          "legal" capacity       2. The puzzle of multiple causation and calculating damages.    D. Denouement: Decision and Appeal  II. From Litigation to Legislation: The Drive to Enact Pay Equity     Laws in St. John's Wake     A. Postwar Politics and a Legislative Deluge     B. Pay Equity and the Dilemmas of Regulatory Design        1. Defining comparable work        2. Choosing agencies or courts     C. The Union Connection: Control, Collective Bargaining        Agreements, and Collateral Attacks        1. Labor's conflicted position on pay equity        2. The design of pay equity laws, collective bargaining, and           labor's control imperative        3. Gauging labor's imprint  III. Legacies: St. John, Gender Equality, and Collective Rights in      U.S. Law      A. St. John and the Struggle for Gender Equality      B. St. John and the Class Action's Emergence      C. St. John and the Modern Supreme Court Appendix A 

Introduction

Florence St. John spoke proudly of her "ten-year pin" recognizing a decade of service to General Motors (GM) at the vast Olds Motor Works in Lansing, Michigan. (1) Of course, she had some gripes. The work was hard: St. John assembled harmonic balancers, which Carl Dobbins, a foreman in the department where St. John reported each day, considered "one of the heavier operations." (2) The women's lunchroom was in "a very unsanitary condition" because its broken windows allowed birds to come in and roost on the tables. (3) But what really upset St. John was the pay situation. Though she toiled on the assembly line alongside men, she earned as much as fifteen or twenty cents an hour less--a substantial hit when the hourly wage of line-level production workers, male or female, was less than a dollar. (4) Adding insult to injury, St. John's male coworkers "kidded" her that they "got a bigger check" even as she "broke the men in"--that is, trained newly arrived male employees--on how to assemble balancers. (5) The final straw came in her tenth year at the plant, when St. John was unceremoniously shunted into a newly created "Women's Assembling Division" and then, a few months later, laid off entirely despite her seniority over men in her former department who kept their jobs. (6) Deprived of a paycheck on which she had long depended, St. John did what a modern observer would not find at all surprising: She found a lawyer willing to take her case. Meeting in living rooms around Lansing, she convinced twenty-eight other women who had worked at the Olds Motor Works to join her. (7) And then she sued.

In retrospect, however, St. John's lawsuit was not merely surprising; it was extraordinary. For starters, the year was 1938. (8) When St. John filed suit, General Motors boasted over 260,000 employees and more than $1 billion in annual sales, easily placing it among the nation's, and the world's, largest and most powerful companies. (9) The lawsuit's timing also meant that St. John could not assert claims under a statute like Title VII of the Civil Rights Act of 1964 (10) or even the many state-level job discrimination laws that came before it, beginning in 1945 in New York and New Jersey. (11) Nor was the lawsuit a damages class action. Those, too, did not yet exist in anything like their present form. Instead, St. John asked the twenty-eight women to assign their claims to her and then brought a common law damages action hitched to section 556 of the Michigan Penal Code--an unusual law, passed by the Michigan legislature near the end of the Progressive Era in 1919, that made it a criminal misdemeanor to "discriminate in any way in the payment of wages as between sexes. …

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