Careers

Diversity

With 17 offices, from New York to Los Angeles and Seattle to Orlando, we live and work in communities all over the U.S., collaborating across locations, disciplines and even borders. Our experienced, highly ranked lawyers serve businesses wherever they are and wherever they want to go.

Offices

About Us

Pages

Professionals

Thought leadership: blogs, podcasts, videos, publications, events and news

Insights

Services

Pro Bono

Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

Home | BakerHostetler

Partners discuss FTC rulemaking, litigation at direct selling seminar

Ohio Clock

Hallway with a grandfather clock displayed

The Weekly Hill Update

PDMI Take 20: AI Series, Ep. 2 — Regulatory Implications

Artificial Intelligence

Blockchain Monitor

Crypto Products Launch for Custody, Tokenization, Staking; Crypto Adoption Report Published; DFS Proposes New VC Guidance; NFT Initiatives Announced

<img decoding="async" loading="lazy" class="alignright wp-image-5835" src="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2019/08/retro-mother-baby-GettyImages-57260591_1200x630_72dpi.jpg" alt="" width="438" height="230" />
Ten years ago, the Ninth Circuit upheld the certification of a sprawling nationwide class action in Dukes v. Wal-Mart Stores, Inc., only to see that decision overturned a year later by the Supreme Court. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In the intervening decade, the Supreme Court similarly up-ended the Ninth Circuit authority that tried to limit the use of arbitration agreements design to rein in class action litigation. See, e.g., AT&T Mobility v. Concepcion, 113 S. Ct. 1740 (2011). For its part, the Ninth Circuit has side-stepped issues discussed in Dukes, such as perpetuating its own doubtful proposition that Daubert standards don’t apply at the certification stage. We’ve blogged that issue <a href="https://www.employmentclassactionreport.com/class-certification/daubert-standards-apply-certification-stage-ninth-circuit-splits/">here</a>.
A recent decision, however, gives at least grudging acknowledgment of Dukes’ central holdings. In <a href="/wp-content/uploads/sites/7/2023/07/18-35791.pdf">Moussouris v. Microsoft Corp., Case No. 18-35791 (9th Cir. Dec. 24, 2019)</a>, the plaintiffs brought claims that were essentially identical to those that had originally been brought in the Dukes case many years earlier. They accused the employer of company-wide gender discrimination and sought certification of a class of over 8,600 women for claims of both disparate impact and disparate treatment under Title VII and state law. The district court refused to certify the proposed class and the plaintiffs sought appeal pursuant to Rule 23(f), a request the court granted.
The Ninth Circuit affirmed, but only in a fairly brief decision it designated as not-for-publication, limiting its precedential effect. Among other things, it noted, as is often the case in these types of matters, that the challenged decisions were made primarily by individual managers, and thus there was no commonality across the entire class. It also noted, as should have been fatal in Dukes, that the class included many women who themselves had been managers, and thus included persons who simultaneously were being accused of making discriminatory decisions and being the victims of such decisions themselves. It rejected the notion that these issues could be resolved by the creation of subclasses as the plaintiffs proposed. The court therefore affirmed the denial of class certification for both the disparate impact and disparate treatment claims.
Given the size of the class and the nature of its claims, this matter likely warranted a published decision, but it still provides a worthwhile analysis and it is at least some evidence that the Ninth Circuit will follow Dukes’ core holdings, if only reluctantly.
The Bottom Line: The Dukes case continues to present substantial obstacles to company-wide discrimination class actions.

core/freeform

Employment Class Action Blog

Cleveland

Partner

Gregory V. Mersol

Employment/Wage and Hour Class Actions

Enterprise Issues

Labor and Employment

California Labor and Employment

Ninth Circuit (Barely) Acknowledges the Dukes Case in Discrimination Class Action Litigation

Related Services

Featured Insights