Wal-Mart and the 9th Circuit

2 of my favorite topics in one!

It seems that the 9th Circuit was very busy in the month of December. On December 11, 2007, the 3 judge panel “tweaked its decision upholding the certification of the largest Title VII plaintiff class in U.S. history. The class initially consisted of approximately 1.5 million female current and former Wal-Mart employees who allegedly suffered from gender bias in pay and promotions, and now is only slightly smaller.”[SHRM Workplace Law]

Basically, the court in revising it’s decision determined that those who no longer work for Wal-Mart, originally certified for the class action, no longer had any standing and was dropped from the class. The rest will go on as planned, despite the fact that one judge in the panel has made his dissension very clear.

Judge Andrew Kleinfeld, who disagreed with the majority in the panel’s original February opinion, again dissented in the revised decision. Kleinfeld was not persuaded by the theory that Wal-Mart’s practice of delegating discretion to store-level managers by itself was evidence of a common pattern of discrimination. At most, he reasoned, such a contention merely showed that individual employment decisions were “vulnerable” to sex discrimination, but “ ‘[v]ulnerability’ to sex discrimination is not sex discrimination.” Kleinfeld instead would have required a more substantial evidentiary showing of a corporate practice of discrimination to establish the necessary element of commonality between proposed class members prior to certification. [SHRM Workplace Law]

This is evidently the largest Title VII class certification ever. Leave it to Wal-Mart to do everything on such a large scale.