Ninth Circuit Panel Rules Against Wal-Mart in Gender Discrimination Class Action and Sets a Potentially Dangerous Precedent for Employers

On February 6, 2007, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a long-awaited ruling in Dukes, et al. v. Wal-Mart Stores, Inc., Nos. 04- 16688 & 04-16720 (9th Cir. Feb. 6, 2007), a nationwide gender discrimination class action. In its ruling, the Ninth Circuit affirmed a controversial class certification order from the U.S. District Court for the Northern District of California from June, 2004 that had certified a class of nearly 1.5 million current and former employees challenging Wal-Mart’s pay and promotional practices as discriminatory. The decision addresses several cutting-edge class action issues of substantial importance to employment discrimination litigation. In affirming the district court’s decision to certify a class, the Ninth Circuit has now positioned itself separately from other federal circuits.