[ by Melanie Gretchen ]

Getting a job and keeping it is getting harder these days.

Bank of America Corp's Merrill Lynch brokers who sued the firm for bias experienced another setback this week.  The lawsuit accused Merrill of steering blacks into clerical positions and diverting lucrative accounts to white brokers, resulting in lower pay and fewer career growth opportunities.  On 2/24 of this year, the 7th U.S. Circuit Court of Appeals in Chicago ruled that Merrill's claim had misinterpreted a 2011 Supreme Court decision, Wal-Mart Stores Inc v. Dukes, that made it significantly harder to pursue class-action cases.  This Monday, the U.S. Supreme Court ruled the same way, striking down an appeal by the unit to pursue their lawsuit as a class action:

"There is no indication that the corporate level of Merrill Lynch (or its parent, Bank of America) wants to discriminate against black brokers. Probably it just wants to maximize profits.  But in a disparate impact case the presence or absence of discriminatory intent is irrelevant."

[C-I Note: Now that that decision's been made, what will the brokers' future look like at the firm from here on out?  If the firm lets the brokers go, will could the brokers sue on the grounds of being punished for having sued?  Will these brokers – or any previously litigious employees – have an even harder time of getting a job somewhere else?]

A Fight Far From Over. George McReynolds, a longtime Merrill broker who leads the brokers, first sued the company in 2005 – it's unlikely he's going to throw in the towel anytime soon.  [C-I Note: His position at the firm is still standing, though we don't know under what circumstances.]  Currently, the brokers are also challenging Merrill's allegedly paying them lower retention bonuses than white brokers to keep them from defecting after the company merged with Bank of America on Jan. 1, 2009.  Here are 2 possible next steps:

• they could challenge Merrill's policies of teaming and distributing accounts to brokers, which are policies of the parent and not within the discretion of local managers, Circuit Judge Richard Posner wrote for the 7th Circuit
• they could try to prove losses over the bonuses as part of their overall damages, the 7th Circuit said on 9/11/12]

The case: Merrill Lynch, Pierce, Fenner & Smith Inc v. McReynolds et al, U.S. Supreme Court, No. 12-113.

For further details, go to [Reuters, 10/1/12].