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US: Merrill Lynch Ordered To Pay For Sexual Bias

by Patrick McGeehanNew York Times
April 21st, 2004

Merrill Lynch & Company, the nation's biggest brokerage firm, discriminated against women who worked as stockbrokers, according to a panel of arbitrators that has awarded $2.2 million to one of them.

That decision, which was made Monday but not disclosed until yesterday, was the first legal ruling to find that a Wall Street firm had engaged in systematic discrimination. The finding could be used to bolster the claims of about 40 current and former Merrill brokers who have not settled their discrimination claims against the firm. Merrill has already paid more than $100 million in settlements with hundreds of other women who joined a class-action case against the firm more than five years ago.

Merrill and another large brokerage firm, the Smith Barney unit of Citigroup, are in the latter stages of a protracted process to resolve mass claims of sex discrimination that were filed in the late 1990's. Women who had worked as brokers at the two firms contended that the firms continued to favor men and pay them more than women long after many other white-collar industries had ended such practices.

Since those suits were filed, the biggest firms on Wall Street have said that they have improved their treatment of employees who are women and have taken steps to prevent sexual harassment.

Eight women representing female employees of Merrill's brokerage operation sued in 1997, contending that they had been denied promotions and opportunities to succeed that were routinely offered to their male co-workers. Some also contended that they had been subjected to sexual harassment in a hostile work environment. The class included 2,800 women, more than 900 of whom brought claims.

Merrill settled the original lawsuit by agreeing to resolve the claims individually, first through mediation and then arbitration.

"Merrill's failure to train, counsel or discipline employees who engaged in sexual harassment constitutes discrimination with malice or reckless indifference to the federally protected rights of female employees," the arbitrators wrote in their decision in favor of E. Hydie Sumner, a former Merrill broker.

The decision, by a panel of three arbitrators, was the biggest victory for the plaintiffs' side in two ways. It was the first to accept the class claim that Merrill systematically discriminated against female employees of its nationwide brokerage business. And it came with the biggest monetary award.

Ms. Sumner, who worked for Merrill in San Antonio from 1991 to 1997, contended that her supervisor, Stephen McAnally, harassed her and other women and minorities and retaliated against her when she complained to the firm about his behavior. Mr. McAnally responded to the women's complaints by distributing around the office he managed copies of a magazine article titled "Stop Whining" that warned "constant complaining can cost you your job," the decision said.

To compensate for Merrill's retaliation against Ms. Sumner, the arbitrators went beyond the limit of punitive damages, awarding her $500,000 on top of more than $1.6 million in back pay and lost earnings. The total of $2.2 million exceeded the only other award arbitrators have made to a woman who has gone through the Merrill claim-resolution process. Last fall, a panel awarded $500,000 to another plaintiff.

In granting the award to Ms. Sumner, the panel found that Merrill had violated Title VII of the Civil Rights Act of 1964, the federal Equal Pay Act and Texas labor law. But the panel rejected her claim that Merrill had driven her to quit her job.

A spokesman for Merrill, Mark Herr, declined to comment on the panel's finding of discrimination. He issued a statement that focused on the specific behavior Ms. Sumner had complained about.

"The firm described in the panel's decision is not today's Merrill Lynch," the statement said. "We agree, and regret, that nearly a decade ago there was inappropriate behavior in the San Antonio office. It should not have occurred and would not be tolerated today."

Mr. McAnally left Merrill in early 1999, Mr. Herr said.

The arbitrators based their finding of discrimination on 28 hours of testimony about a statistical review of Merrill's hiring, promotion and pay practices. As of 1999, that review showed, Merrill had only one district director, 11 regional vice presidents and 5 sales managers who were women in a network of more than 15,000 brokers.

Merrill argued that there was a nondiscriminatory cause for women to hold so few senior management positions. But the panel was not persuaded. "Merrill has not articulated," the decision said, "a legitimate nondiscriminatory explanation for the gross underrepresentation of women in management positions."

For Linda Friedman, a lawyer in Chicago who filed the original suit against Merrill and represented Ms. Sumner in her arbitration, the greatest cause for celebration was the finding of discrimination.

"For the 2,800 women who were members of the class," Ms. Friedman said in an interview yesterday, "it's vindication to know that their failure to succeed was the result of class-wide discrimination."

She said that no adjudicator had ever made such a finding about a major Wall Street firm, though she hoped arbitrators would reach a similar conclusion later this year in one of the cases against Smith Barney. One woman who joined the Smith Barney suit won an award of $3.2 million in late 2002, but in that case, the arbitrators did not take a position on whether there was firmwide discrimination.

In a separate case that is headed for trial in federal court in New York this year, the federal Equal Employment Opportunity Commission has said it believes there is enough evidence to prove that Morgan Stanley, another large securities firm, engaged in "a pattern and practice of discrimination" against female employees. In that case, the class is made up not of brokers but of sales agents and traders in Morgan Stanley's investment banking division.

Jeffrey Liddle, a lawyer in New York who is representing Nancy Thomas, another woman headed to arbitration against Merrill Lynch, said the Sumner decision should be helpful in future cases because other plaintiffs should not have to relitigate the question of firmwide discrimination.

"It's taken a long time to get there but it's certainly a big positive," Mr. Liddle said. "It's always a big positive any time you get an arbitration panel to actually write out a decision. This sounds like a tremendous decision."

The ruling does not carry the weight of a precedent in court because arbitration panels generally are not bound to consider previous decisions. But Lawrence Z. Lorber, a partner in the Washington office of the law firm of Proskauer Rose, said the ruling "is going to be strong guidance" in future arbitrations against Merrill.





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