An eleven-judge panel of the Ninth Circuit Court of Appeals in San Francisco recently heard “rehearing” arguments in Dukes v. Walmart, the largest employment law class-action in United States history. 

The plaintiffs, representing a class of as many as 1.5 million female employees, have alleged that Walmart engages in a pattern or practice of gender bias in promotions and pay.  Specifically, the plaintiffs alleged that females at Wal-Mart stores had been paid less than their male counterparts every year and in every Wal-Mart region. The average gender disparity in annual pay ranged from $14,500 to $1,100. This inequity developed despite the fact that the average female had greater seniority and higher performance ratings than her average male counterpart.  Wal-Mart’s female employees were also promoted to management so much less often than comparable male employees that two-thirds of hourly employees at Wal-Mart were women but they made up only one-third of managers.

In June 2004, the federal district court in Northern California certified the case as a class-action, ruling that the plaintiffs could proceed as class representatives of 1.6 million women. The district court found that the plaintiffs were likely to prove that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.  In December 2007, the Ninth Circuit Court of Appeals affirmed the district court’s decision, finding that the class members are “united by a complex of company-wide discriminatory policies against women.”

Walmart petitioned the Ninth Circuit for “rehearing en banc”, meaning before the entire panel of judges of that Court, which was granted.  A central focus of the reargument is whether monetary damages may be determined on a class-wide basis without conducting individualized hearings.  Writing as amicus in support of the district court’s holding that backpay may be determined on a class-wide basis, the Equal Employment Opportunity Commission called the courts’ ability to determine damages on a class-wide basis without individualized hearings an important tool for ensuring that individuals injured by systemic discrimination may obtain redress for those injuries where, due to specific circumstances in the case, any attempt to reconstruct individual employment histories would drag the court into a quagmire of hypothetical judgments. 

Some courts have concluded that employment class-actions seeking damages should not be certified because the damages are too individually distinct from plaintiff to plaintiff. Other courts, including the Ninth Circuit, have previously held that so long as the primary purpose of the plaintiffs’ suit is to achieve equitable relief, the inclusion of a request for monetary damages should not defeat certification. Additionally, the Ninth Circuit heard arguments as to whether a class of plaintiffs can really challenge a national policy which delegates decision-making authority, or whether such a challenge is really an attack against many individual decisions at stores around the country.

The decision of the Ninth Circuit promises to have wide reaching effects in the area of gender discrimination law.