Introduction: Bank of America and Merrill Lynch Sex Discrimination Lawsuit
On March 30, 2010, three female Financial Advisors filed a national class action lawsuit in federal court in New York, charging sex discrimination at Bank of America (BofA) and Merrill Lynch. In 2008, BofA acquired Merrill Lynch, and the respective brokerage divisions were joined under the Merrill Lynch name. As a result of the merger, BofA is one of the largest financial institutions in the world and the largest brokerage firm in the world.
Update: Court Rejects Bank of America Effort To Dismiss The Class Claims in This Case
We are pleased to announce that on September 27, 2012, U.S. District Court Judge Joseph F. Bianco of the Eastern District of New York denied Bank of America's motion to dismiss the class claims in this case.
Bank of America sought to dismiss the lawsuit on various grounds. Bank of America argued that Plaintiffs' class claims were precluded, as a matter of law, by the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2551 (2011). The Court rejected this argument:
"The fatal flaw identified by the Supreme Court in Dukes was that the class claims alleged discrimination by local managers exercising their broad, subjective discretion in the absence of any policies, which by its very nature could not satisfy the commonality requirement of Rule 23(a)(2). However, the Supreme Court made clear that a putative class could satisfy commonality, even where there is subjective decision making involved, if the subjective decision making was 'operated under a general policy of discrimination.' [Citation omitted.] That is precisely what plaintiffs allege here. In the third amended complaint, plaintiffs assert that specific employment practices namely, the criteria of the compensation and account distribution systems systematically favor male Financial Advisors at BOA, and result in a discriminatory impact on female Financial Advisors."
(Order, at 2.)
Bank of America also argued that Plaintiffs' disparate impact claims should be dismissed in their entirety pursuant to section 703(h) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"), which allows employers to maintain compensation systems that reward employees based on production or merit even if those systems otherwise have an adverse impact on a protected group. The Court rejected Bank of America's Section 703(h) argument, finding that Plaintiffs sufficiently alleged a disparate impact claim that was not barred by Section 703(h) of Title VII:
"Plaintiffs here allege that (1) the compensation and account distribution systems are not merit or production based, but rather are governed by tainted and discriminatory criteria, and (2) defendants intentionally discriminated in implementing these policies. Such allegations are sufficient to survive defendants' motion to dismiss and/or strike the class claims."
(Order, at 2.)
Female Financial Advisors at Bank of America and Merrill Lynch now have the opportunity to pursue their gender discrimination claims and show why their challenge to Defendants' common policies should be given class treatment. Plaintiffs allege that Defendants' account distribution and compensation policies are structurally unfair and inconsistently applied, creating stark, discriminatory, and very real-world differences in compensation and opportunities between men and women. We are especially pleased the court ruled that Defendants could not escape legal scrutiny simply by labeling these policies as so-called "merit" or "production" systems.
Plaintiffs' Allegations in the Lawsuit
The complaint charges that BofA and Merrill Lynch have engaged in a pattern and practice of gender discrimination against their female financial advisors with respect to business opportunities, compensation, professional support, and other terms and conditions of employment.
BofA/Merrill Lynch's discrimination against female Financial Advisors, as alleged in the complaint, include bias on the basis of gender in account distributions; partnership opportunities; up front money, pay-out rate, and other benefits in its compensation plan; as well as in other opportunities for brokers to increase their income. The complaint charges that these violations are systemic, based upon company-wide policies and practices.
The plaintiffs allege violations of federal and state laws, including Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, the New York City Human Rights Law, and the Florida Civil Rights Act of 1992.
Contact Plaintiffs' Counsel
Current and former Financial Advisors that wish to report their experiences at Bank of America and/or Merrill Lynch or to learn more about the lawsuit are welcome to contact plaintiffs counsel online or call us toll-free at 1-888-886-9359. There is no charge or obligation for our review of your claim. All information will be held strictly confidential.
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