Gender Discrimination Case Against Merck Moves Forward

Posted April 29th, 2016.

As It Appeared On
Corporate Counsel

Sue Reisinger, Corporate Counsel

Merck & Co. Inc.’s legal department may need more than a pill to get relief from the pain of a federal judge’s ruling that conditionally certified a $250 million class action alleging discrimination against women sales representatives.

Five named women filed their amended complaint in January 2014, claiming 12 counts of discrimination and retaliation on behalf of all women similarly situated. The suit alleges that Merck systematically discriminates against female sales representatives, and pregnant women in particular, in pay, promotions and other conditions of employment.

On Wednesday U.S. District Judge Michael Shipp in New Jersey granted plaintiffs’ motion to certify the action under the Equal Pay Act, and he authorized an “opt-in notice to be sent to all potential members of this [equal pay] action.”

In an emailed statement Merck called the ruling merely “a procedural step that is typical in the early stages of lawsuits of this kind, and it does not mean any employees have been treated unfairly. The company will continue to vigorously defend itself, and remains fully committed to providing equal employment opportunities for all employees.”

But one of the plaintiff’s lawyers, Deborah Marcuse, sees it differently. “Merck may not find the ruling meaningful,” she says, “but it means a lot to the thousands of women who are now going to get court-approved notice of the fact that the case is out there, and get an opportunity to join seeking equal pay.”

Marcuse, a partner at Feinstein Doyle Payne & Kravec in Pittsburgh, is co-counsel with Russell Kornblith, senior litigation counsel at Sanford Heisler Kimpel. Marcuse formerly worked at Sanford Heisler.

Sanford Heisler has claimed several victories in gender discrimination suits brought by employees of global pharmaceutical companies. Six years ago it won a stunning $250 million verdict against Novartis Pharmaceuticals Corp., the largest monetary award ever in a U.S. discrimination suit. Novartis later settled the case for $152.5 million.

The law firm has a gender discrimination suit ongoing against Forest Laboratories Inc. and Forest Pharmaceuticals Inc. in federal court in New York City.

Marcuse says there is still a lot of gender-based discrimination in the pharma industry, and that there are “eerie parallels” between the Novartis case and Merck’s. “And that’s surprising, given the message that should have been sent by that mind-boggling verdict,” she adds.

Merck’s statement says it provides multiple avenues for employees to raise concerns and to ensure that those concerns are addressed, that it maintains a nonretaliation policy, and that it has many policies providing support to working parents.

“Merck has been ranked by Working Mother magazine as one of the top 100 companies for working mothers for the past 26 consecutive years, and has been listed for the past two years among the top 50 companies for executive women by the National Association for Female Executives,” the drugmaker states.

But Merck shouldn’t count too much on those public accolades. Novartis also had repeatedly made Working Mother’s list of the top 100 companies for women to work. Apparently the district court jury was not impressed.

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