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For the first time in history, women are half of all U.S. workers, and mothers are the primary or co-bread winners in nearly two-thirds of American families. The recent economic downturn accelerated this trend: men lost three-quarters of the jobs shed from December 2007 to October 2009. Consequently, gender discrimination has become not just a women’s issue, but a family issue that has taken center stage in the country’s legal and political arena. Developments in this area are increasingly affecting American employers—and their corporate law departments—as evidenced by the growing popularity of multimillion-dollar gender discrimination lawsuits filed against some of the world’s largest corporations. Some of these suits have had devastating results for employers, including a 2010 $250 million jury verdict against Novartis AG, a company that was previously voted by Working Mother magazine as one of America’s top 100 places for women to work. The U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes, despite being generally friendly to employers, seems only to have motivated private counsel and government agencies to become more creative in pursuing these claims. For example, following the Supreme Court’s ruling, the Dukes plaintiffs filed a number of regional class actions as well as hundreds of individual charges with the Equal Employment Opportunity Commission. On the federal front, President Barack Obama’s National Equal Pay Enforcement Task Force has actively pursued its agenda, with a strong focus on collecting data from private sector employers to better understand the nature and scope of pay gaps and to target enforcement efforts. The president also appointed new leaders of the EEOC, the Department of Labor, and the Office of Federal Contract Compliance Programs (OFCCP). These leaders, who have extensive experience in civil rights advocacy and enforcement, are committed to an aggressive enforcement agenda—particularly with regard to systemic discrimination—and have been given additional financial resources to pursue their activities. Given this leadership, the agencies’ systemic discrimination enforcement efforts are not likely to wane in the near future, particularly in light of President Obama’s re-election. Corporate law departments should expect to continue to face a multitude of challenging and nuanced legal issues, particularly with regard to pay, promotions, and other emerging work-life balance issues. Thinking ahead is critical for mitigating risk and avoiding future claims.

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