Ninth Circuit Upholds Class Certification in Wal-Mart

In a case that essentially presents the question whether there is a ?very, very large employer? exception for Title VII class actions, the Ninth Circuit??? ?upheld??? ?2-1??? ?the??? ?district??? ?court?s certification of the largest employment class action in history. ?Women who work for Wal-Mart claim they are paid less than their male counterparts and promoted less frequently. ?The plaintiffs claim that Wal-Mart?s? centralized ?structure ?facilitates uniform decision making based on gender stereotypes.?? ?The class includes 1.5 million members.???? ?The?? Ninth?? Circuit?? majority?? made several important rulings: ?(1) The methodology of plaintiff?s stereotyping expert, sociologist William Bielby, was sound and Wal-Mart?s criticisms went to the weight only.? ?It did not matter that his testimony about the company?s general structure did not deal in exact or quantifiable conclusions; (2) Daubert does not apply with the same force on a class certification motion; (3) statistical evidence showing discrimination can be gleaned at the regional level and need not be done store by store; (4) anecdotal discrimination evidence from 120 class members was probative; (5) a company wide policy of subjective decision making can raise an inference of discrimination when coupled with statistical evidence; (6) Rule 23(b)(2) certification is appropriate even though many of the plaintiffs are former employees; (7) the large size of the plaintiffs? requests for back-pay and punitive damages does not defeat the claim that the injunctive relief predominates so that certification under Rule 23(b)(2) is permissible; (8) neither due process nor Title VII requires an individualized hearing?? for?? each?? plaintiff?? on?? damages,?? and statistical methods may be used to determine back- pay and punitive damages relief for individual members;? (9)? it? is? up? to the? plaintiff? to? choose whether to proceed under a single motive/a determining factor standard or a mixed motive/a motivating factor standard and if the plaintiff chooses the former there is no same action defense; and (10) the district court properly limited promotion as a remedy to only those plaintiffs who had showed an interest in and qualifications for open positions. Dukes v. Wal-Mart, 474 F.3d 1214 (9th Cir. 2007)