Beck v. The Boeing Company Brief of Amici Curiae AARP and Others in Support of Plaintiffs-Appellees, Urging Affirmance

    No. 02-35140
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

MARY BECK, et al., 
Plaintiffs-Appellees,

v.

THE BOEING COMPANY, et al., 
Defendants-Appellants.

Appeal from the United States District Court 
For the Western District of Washington at Seattle 

Hon. Marsha J. Pechman 
District Court No. C00-030IP

Brief of Amici Curiae AARP, Association of Trial Lawyers of America, Center for Law in 
the Public Interest, Equal Rights Advocates, The Impact Fund, Lawyers’ Committee for 
Civil Rights Under Law, Lawyers’ Committee for Civil Rights of the San Francisco Bay 
Area, Legal Aid Society-Employment Law Center, Mexican American Legal Defense and 
Educational Fund, NAACP Legal Defense and Educational Fund, Inc., National Asian 
Pacific American Legal Consortium, National Association for the Advancement of Colored 
People, National Employment Lawyers Association, National Partnership for Women and 
Families, National Women’s Law Center, NOW Legal Defense and Education Fund, Public 
Advocates, Inc., Trial Lawyers for Public Justice, Women Employed, and Women’s 
Employment Rights Clinic at Golden Gate University School of Law in Support of 
Plaintiffs-Appellees, Urging Affirmance

Richard T. Seymour* (D.C. Bar 28100)
Lieff, Cabraser, Heimann & Bernstein, LLP
1100 New York Avenue, NW 
Suite 1080 - West Tower 
Washington, DC 20005-3934 

(202) 582-1000 
(202) 582-1500 (fax)

Brad Seligman 
Jocelyn Larkin 
The Impact Fund
125 University Ave.

Dated June 12, 2002 Berkeley, CA 94710-1616
(510) 845-3473

* Counsel of Record
(Counsel continued inside)



Donna M. Ryu
Women’s Employment Rights Clinic of 

Golden Gate Univ. School of Law
536 Mission Street 
San Francisco, CA 94105

Laurie A. McCann
AARP Foundation Litigation
Melvin Radowitz 
AARP
601 E Street, N.W.
Washington, DC 20049 

(202) 434-2060 
(202) 434-6424 (fax)

Lew Hollman
Center for Law in the Public Interest
10951 W. Pico Blvd., 3rd Floor 
Los Angeles, CA 90064-2126 

(310) 470-3000 
(310) 474-7083 (fax)

Doris Y. Ng
Equal Rights Advocates
1663 Mission Street, Suite 550 
San Francisco, CA 94103 

(415) 621-0672 
(415) 621-6733 (fax)

Thomas J. Henderson 
Michael Foreman
Lawyers’ Committee for Civil Rights Under Law
1400 New York Avenue N.W., Suite 400 
Washington, D.C. 20005 

(202) 662-8600

Michael Harris
Lawyers Committee for Civil Rights of the 

San Francisco Bay Area
131 Steuart Street, Suite 400 
San Francisco, CA 94105 

(415)543-9444

William C. McNeill, III, Esq., Cal. Bar No. 64392
Jory C. Steele, Esq., Cal. Bar No. 206944
The Legal Aid Society -  Employment Law Center
1663 Mission Street, Suite 400 
San Francisco, California 94103 

(415) 864-8848 
(415) 864-8199 (fax)

l



Antonia Hernandez, President
Thomas A. Saenz, Vice President of Litigation
MALDEF
634 South Spring Street 
Eleventh Floor 
Los Angeles, CA 90014 

(213)629-2512

Karen K. Narasaki 
Vincent A. Eng
National Asian Pacific American 

Legal Consortium
1140 Connecticut Ave NW, Suite 1200 
Washington, DC 20036 

(202) 296-2300

Elaine R. Jones, Director Counsel
Theodore M. Shaw
Norman J. Chachkin
Robert H. Stroup
NAACP Legal Defense and

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 

(212) 965-2200

Dennis C. Hayes, General Counsel
Yolanda Y. Riley
National Association for the

Advancement of Colored People
4805 Benjamin L. Hooks Drive 
Fifth Floor
Baltimore, MD 21215 

(410) 486-9191

Paula A. Brantner 
National Employment Lawyers 

Association
44 Montgomery Street, Suite 2080 
San Francisco, CA 94104 
(415) 296-7629

Judith L. Lichtman, President 
Jocelyn C. Frye, Director of Legal & Public Policy 
Adrienne DerVartanian, Policy Counsel 
National Partnership for Women & Families
1875 Connecticut Avenue, NW / Suite 650 
Washington, DC 20009 

(202) 986-2600

ll



Judith C. Appelbaum 
Dina R. Lassow
National Women's Law Center
11 Dupont Circle NW, Suite 800 
Washington, DC 20036 

(202) 588-5180

Arthur Bryant 
Victoria W. Ni
Trial Lawyers for Public Justice, P.C.
One Kaiser Plaza, Suite 275 
Oakland, CA 94612-3684 

(510)622-8150 
(510) 622-8155 (fax)

Attorneys for Amici Curiae

ill



Table of Contents

INTEREST OF AMICI ........................................................................................... 1

SUMMARY OF ARGUMENT............................................................................... 2

A. The Importance of Class Actions in Enforcing Title VII .................................4

B. In the CRA, Congress Intended to Expand Available Remedies for
Discrimination in Both Class and Individual Cases .........................................7

C. The Supreme Court’s Teamsters Model Governs Title VII Class Action
Procedures, and Provides for a Flexible Approach to Stage II .......................11

D. The Teamsters Model Has Never Deprived Defendants of the
Ability to Fully Rebut the Allegations at Any Stage ......................................14

E. In Appropriate Cases, Class Treatment of Punitive Damages is
Superior to Individual Treatment ..................................................................... 15

F. Courts Have Used Various Rule 23 Procedures
To Protect Due Process Rights..........................................................................20

G. “Negative Value” Individual Suits Are Not a Pre-Condition for Class
Certification, and Title VII Class Actions Are Generally Superior to 
Individual Litigation.........................................................................................21

H. The 1991 Civil Rights Act Did Not Limit the Ability of Plaintiffs
to Challenge Subjective Decision-Making Resulting in Discrimination........26

I. The Seventh Amendment Does Not Bar Class Certification............................28

Conclusion ..............................................................................................................29

Certificate of Compliance ......................................................................................34

Table of Authorities

1. Cases

Allison v. Citgo Petroleum Corp,
151 F.3d 402 (5th Cir. 1998),

iv



reh’g denied with explanation, 151 F.3d 434 (5th Cir. 1998) ....5, 21, 22, 28

Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997).................................................................................... 21

Arkansas Education Association v. Board o f Educ.,
446 F.2d 763 (8th Cir. 1971).......................................................................23

Arthur Young & Co. v. United States District Court,
549 F.2d 686 (9th Cir.), cert, denied, 434 U.S. 829 (1977)........................29

Beck v. Boeing Co.,
203 F.R.D. 459 (W.D. Wash. 2001) ..........................................................23

Bell v. Hood,
327 U.S. 678 (1946).................................................................................... 29

Bresgal v. Brock,
843 F.2d 1163 (9th Cir. 1987).......................................................................6

Caridad v. Metropolitan-North Commuter Railroad,
191 F.3d 283 (2nd Cir. 1999), cert denied, 529 U.S. 1107 (2000).............27

Celestine v. Petroleos de Venezuella SA,
266 F.3d 343 (5th Cir. 2001) ..................................................................5, 22

City o f Newport v. Fact Concerts, Inc.,
453 U.S. 247(1981) ....................................................................................  18

Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,
532 U.S. 424 (2001)..............................................................................16, 18

Cooper v. Federal Reserve Bank o f Richmond,
467 U.S. 867(1984).......................................................................................5

Cox v. American Cast Iron Pipe Co.,
784 F.2d 1546 (11th Cir.), cert, denied, 479 U.S. 883 (1986)....................20

Deters v. Equifax Credit Information Services, Inc.,
202 F.3d 1262 (10th Cir. 2000)......................................................................9

In re Diamond Shamrock Chemicals Co.,
725 F.2d 858 (2d Cir. 1984), cert, denied, 465 U.S. 1067 (1984) .............17

v



Domingo v. New England Fish Co.,
727 F.2d 1429 (9th Cir.),
modified in other respects, 742 F.2d 520 (9th Cir. 1984)...........................  12

EEOC v. Dinuba Medical Clinic,
222 F.3d 580 (9th Cir. 2000)...................................................................9, 10

EEOCv. W&O, Inc.,
213 F.3d 600 (11th Cir. 2000)..................................................................... 15

Eubanks v. Billington,
110 F.3d 87 (D.C. Cir. 1997) ...................................................................... 17

In re Exxon Valdez,
229 F.3d 790 (9th Cir. 2000).......................................................................  17

In re Exxon Valdez,
270 F.3d 1215 (9th Cir. 2001).....................................................................  17

Frank v. United Airlines, Inc.,
216 F.3d 845 (9th Cir. 2000), cert, denied, 532 U.S. 914 (2001)................ 15

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976).......................................................................................5

General Telephone Co. o f Southwest v. Falcon,
457 U.S. 147(1982) .....................................................................................26

Graniteville Co. (Sibley Division) v. EEOC,
438 F.2d 32 (4th Cir. 1971)............................................................................4

Hemmings v. Tidyman’s, Inc.,
285 F.3d 1174 (9th Cir. 2002)..................................................................... 19

Hensley v. Eckerhart,
461 U.S. 424(1983).....................................................................................25

Hilao v. Estate o f Marcos,
103 F.3d 767 (9th Cir. 1996)....................................................................... 13

Horn v. Associated Wholesale Grocers, Inc.,
555 F.2d 270 (10th Cir. 1977).....................................................................23

vi



International Brotherhood o f Teamsters v. United States,

James v. Stockham Valves Co.,
559 F.2d 310 (Former 5th Cir. 1977),
cert, denied, 434 U.S. 1034 (1978) .............................................................  15

Jefferson v. Ingersoll International, Inc.,
195 F.3d 894 (7th Cir. 1999).......................................................................20

Kolstad v. American Dental Association,
527 U.S. 526 (1999)..................................................................  17, 18, 19, 25

Kraszewski v State Farm General Insurance Co.,
912 F.2d 1182 (9th Cir. 1990), cert, denied, 499 U.S. 947 (1991)............. 13

Lemon v. International Union o f Operating Engineers,
216 F.3d 577 (7th Cir. 2000)...................................................................... 20

Lowery v. Circuit City Stores, Inc.,
158 F.3d 742 (4th Cir. 1998),
vacated and remanded on other grounds, 527 U.S. 1031 (1999) ................6

Lowery v. Circuit City Stores, Inc.,
206 F.3d 431 (4th Cir.), cert, denied, 531 U.S. 822 (2000)........................  16

Madison v. IBP, Inc.,
257 F.3d 780 (8th Cir. 2001), petition for cert, filed,
70 USLW 3445 (U.S., Dec. 19, 2001) (No. 01-985)..................................  16

McCowan v. All Star Maintenance, Inc.,
273 F.3d 917 (10th Cir. 2001) ....................................................................  16

Midlen v. Treasure Chest Casino, LLC,
186 F.3d 620 (5th Cir. 1999, cert, denied, 528 U.S. 1159 (2000)..............29

National Center for Immigrant Rights v. INS,
743 F.2d 1365 (9th Cir. 1984),
vacated on other grounds, 481 U.S. 1009 (1987).........................................6

National R.R. Passenger Corp. v. Morgan,
_  U.S. _ ,  2002 WL 1270268 (June 10, 2002) .....................................6, 10

vii



Otting v. J. C. Penney Co.,
223 F.3d 704 (8th Cir. 2000) ...................................................................... 15

Paige v. California,
102 F.3d 1035 (9th Cir. 1996).......................................................................6

Passantino v. Johnson & Johnson,
212 F.3d 493 (9th Cir. 2000) ......................................................................19

Pegues v. Mississippi State Employment Service,
899 F.2d 1449 (5th Cir. 1990)..................................................................... 13

Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211 (Former 5th Cir. 1974)..........................................................  12

Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843 (2001) ......................................................................................7

Robinson v. Metropolitan-North Commuter R.R. Co.,
267 F.3d 147 (2d Cir. 2001),
cert, denied, 122 S. Ct. 1349 (2002) ................................................. 5, 28, 29

Romano v. U-Haul International,
233 F.3d 655 (1st Cir. 2000), cert, denied, 122 S. Ct. 41 (2001) .................8

Segar v. Smith,
738 F.2d 1249 (D.C. Cir. 1984), cert denied, 471 U.S. 1115 (1985) ......... 13

Sledge v. J.P. Stevens & Co.,
585 F.2d 625 (4th Cir. 1978), cert, denied, 440 U.S. 981 (1979).............4, 5

Smith v. Texaco, Inc.,
263 F.3d 394 (5th Cir. 2001),
withdrawn and cause dismissed, 281 F.3d 477 (5th Cir. 2002) .................22

Sterling v. Velsicol Chemical Corp.,
855 F.2d 1188 (6th Cir. 1988) ....................................................................20

Stewart v. General Motors,
542 F.2d 445 (7th Cir. 1976), cert denied, 433 U.S. 919 (1977)................ 13

Swinton v. Potomac Corp.,
vm



270 F.3d 794 (9th Cir. 2001), cert, denied, 122 S. Ct. 1609 (2002).............8

Thiessen v. General Electric Capital Corp.,
267 F.3d 1095 (10th Cir. 2001), 
petition for cert, fded, 70 USLW 3410
(U.S., Dec. 14, 2001) (No. 01-881)......................................................... 5, 11

Watson v. Fort Worth Bank and Trust,
487 U.S. 977 (1988)....................................................................................27

Watson v. Shell Oil Co.,
979 F.2d 1014 (5th Cir. 1992),
reh ’g en banc granted, 990 F.2d 805 (5th Cir. 1993),
appeals dismissed by consent, 53 F.3d 663 (5th Cir. 1994) .......................19

Zepeda v. INS,
753 F.2d 719 (9th Cir. 1983).........................................................................6

2. Constitution, Statutes and Rules

Seventh Amendment, U.S. Constitution ..........................................................3, 28

Age Discrimination in Employment Act of 1967,
29U.S.C. §§ 621 etseq.................................................................................. 5

Civil Rights Act of 1991,
42 U.S.C. § 1981a ............................................................................... passim

Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq..............3,4, 11, 13,21,22,23,25,26,27,28,29

Sec. 703(a) of Title VII,
42 U.S.C. § 2000e-2(a)................................................................................27

Sec. 706(g)(2)(a) of Title VII,
42 U.S.C. § 2000e-5(g)(2)(a) ...................................................................... 10

42 U.S.C. § 1981a(c) .............................................................................................. 11

Rule 23, Fed. R. Civ. P............................................................................... 1,2,3, 11

Rule 23(b)(2), Fed. R. Civ. P............................................................................20, 27

IX



Rule 23(b)(3), Fed. R. Civ. P. 20,21

Rule 23(d)(2), Fed. R. Civ. P..................................................................................20

3. Legislative Materials

Amendment 1295,
137 Cong. Rec. SI5445-02, 1991 WL 221702 ............................................9

H.R. Rep. No. 102 40(1) (1991),
reprinted in 1991 U.S.C.A.A.N.................................................................. 7, 8

H.R. Rep. No. 102 40(11) (1991),
reprinted in 1991 U.S.C.A.A.N......................................................................7

Statement of Rep. Doolittle in extension of remarks,
137 Cong. Rec. E2086 01,
1991 WL 96880 (Cong. Rec.) (June 7, 1991)...........................................7, 8

Statement of Rep. Goodling,
137 Cong. Rec. H3932,
1991 WL 94661 (Cong. Rec.) (June 5, 1991)...............................................8

Statement of Sen. Kennedy,
137 Cong. Rec. 15445-02,
1991 WL 221702 (Cong. Rec.) (Oct. 30, 1991) ...........................................9

4. Administrative Materials

U.S. Equal Employment Opportunity Commission,
Enforcement Guidance: Compensatory and Punitive Damages 
Available under Sec. 102 of the Civil Rights Act of 1991 
(July 14, 1992), downloadable as
http://www.eeoc.Rov/docs/damages.html ...............................................9, 10

5. Treatises, Reports, and Law Reviews

Herbert Newberg and Alba Conte, Newberg on Class Actions, 3d Ed.
(The West Group, 1992) .......................................................................  13, 21

Manual on Complex Litigation-Third
(Federal Judicial Center, 1994)...................................................................29

x

http://www.eeoc.Rov/docs/damages.html


R. Bone, Statistical Adjudication: Rights, Justice and Utility
in a World o f Process Scarcity, 46 Vand. L. Rev. 561 (1993) ...................  14

Steven S. Gensler, Bifurcation Unbound,
75 Wash. L. Rev. 705 (2000) .....................................................................28

Marika F. X. Litras, Ph.D.,
Civil Rights Complaints in U.S. District Courts, 1990-98 
(January 2000), downloadable
http://www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pd .....................................24

G. Robinson & Kenneth Abraham, Collective Justice in Tort Law,
78 Va. L. Rev. 1481 (Oct. 1992)................................................................. 14

M. Saks & P. Blanck, Justice Improved: The Unrecognized Benefits o f 
Aggregation and Sampling in the Trial o f Mass Torts,
44 Stan. L. Rev. 815 (1992) ........................................................................ 14

L. Walker & J. Monahan, Sampling Damages,
83 Iowa L. Rev. 545 (March 1998) ............................................................  14

xi

http://www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pd


Rule 26.1 Corporate Disclosure Statement

All of the amici are tax-exempt nonprofit organizations. None of the amici 

has any corporate parent. None of the amici has any stock, and therefore no 

publicly held company owns 10% or more of the stock of any of the amici.

Counsel of Record

Dated: June 12, 2002



INTEREST OF AMICI

All parties have consented to the filing of this brief. Letters of 

consent have been submitted to the Court.

AARP, the Lawyers’ Committee for Civil Rights Under Law, the 

Mexican American Legal Defense and Educational Fund, the National Asian 

Pacific American Legal Consortium, the National Association for the 

Advancement of Colored People, the NAACP Legal Defense and 

Educational Fund, Inc., the National Partnership for Women and Families, 

the NOW Legal Defense and Education Fund, and the National Women’s 

Law Center, are nonprofit national organizations dedicated to removing 

racial, ethnic, sexual, age or disability discrimination in employment, among 

other goals. Each of these organizations worked closely with Congress in 

framing the Civil Rights Act of 1991 (“CRA”), and each represents victims 

of discrimination who will be affected by the interpretation of the CRA and 

Rule 23.

The Center for Law in the Public Interest, the Legal Aid 

Society—Employment Law Center, Equal Rights Advocates, The Impact 

Fund, the Lawyers’ Committee for Civil Rights of the San Francisco Bay 

Area, Public Advocates, Inc., Women Employed, and the Women’s 

Employment Rights Clinic at Golden Gate University School of Law, are

1



nonprofit organizations that are dedicated to removing racial, ethnic, and 

sexual discrimination in employment, among other goals. Each of these 

organizations represents victims of discrimination who will be affected by 

the proper interpretation of the CRA and Rule 23.

The Association of Trial Lawyers of America and the National 

Employment Lawyers Association are nonprofit national organizations of 

attorneys whose members represent many thousands of clients in lawsuits 

seeking relief under the CRA, and who from time to time must depend on 

the availability of Rule 23 in order to secure justice for their clients.

Trial Lawyers for Public Justice is a national public interest law 

firm seeking to advance the public good in civil rights, consumer rights, and 

other areas.

Each amicus also has a strong interest in the access of victims 

of discrimination to the courts and to the remedies provided by Congress, 

often available only through Rule 23.

SUMMARY OF ARGUMENT

Class actions are an indispensable tool in making the promise 

of nondiscrimination real. They have been used successfully for more than 

three decades. In enacting the Civil Rights Act of 1991 (“CRA”), Congress 

intended to expand remedies, not contract them. Congress clearly intended

2



class actions to be available in disparate-treatment cases involving subjective 

discrimination, and intended class members to receive common-law 

damages. Nothing in the legislative history suggests that Congress intended 

to change the procedures by which class members’ entitlement to relief is 

determined. Acceptance of defendants’ arguments would require classes to 

choose between remedies, which is inimical to the intent of Congress.

In appropriate cases, punitive damages are suitable for 

classwide resolution, and classwide resolution of punitive damages may 

often be superior to individual litigation. The proper inquiry focuses on the 

employer’s state of mind as the key determinant of eligibility for punitive 

damages, and the state of its efforts to comply are a key determinant of its 

vicarious liability. These are both issues more suited to classwide than 

individual resolution.

Contrary to the arguments of defendants and their amici, Rule 

23 does not impose a condition that individual cases have “negative value.” 

They have overlooked significant reasons why Title VII class actions are 

normally superior to individual litigation, and have vastly overstated the 

value of individual claims.

Finally, procedures are available for the litigation of Title VII 

class claims that fully satisfy the Seventh Amendment.

3



A. The Importance of Class Actions in Enforcing Title VII

As this Court knows from its own docket, the primary burden 

of enforcing Title VII has fallen on private plaintiffs, and courts have long 

remarked that individual victims of classwide discrimination may be 

unaware of the discrimination. For example, the Fourth Circuit has observed 

that “sophisticated general policies and practices of discrimination are not 

susceptible to such precise delineation by a layman who is in no position to 

carry out a full-fledged investigation himself,” although “[l]ong observation 

of plant practice may bring the realization that he and his black coemployees 

are not getting anywhere.” Graniteville Co. (Sibley Division) v. EEOC, 438 

F.2d 32, 38 (4th Cir. 1971). In Sledge v. J.P. Stevens & Co., 585 F.2d 625, 

637-38 (4th Cir. 1978), cert, denied, 440 U.S. 981 (1979), the court reversed 

most of the findings of nondiscrimination as to the named plaintiffs because 

their claims had been adjudicated in isolation, without reference to the 

extensive proof of classwide patterns of discrimination that it affirmed. Id. 

at 634-36, 644. (That is why the EEOC similarly is empowered to look for 

patterns of discrimination in its investigations.) Obtaining a just outcome 

can depend entirely on proof of a discriminatory pattern. For this reason, the 

Supreme Court and lower courts have held that proof of a classwide pattern 

benefits class members by creating a rebuttable presumption that each class

4



member was victimized by the discrimination, shifting to defendants the 

burden of persuasion to establish the contrary.1 Justice depends on the 

court’s ability to see the whole picture.

Absent class certification, plaintiffs often cannot get discovery 

of the facts establishing a discriminatory pattern. Even where plaintiffs 

obtain such evidence because of an earlier unsuccessful effort to obtain class 

certification, and bring their case as 206 consolidated cases, one Circuit has 

held the plaintiffs could not rely on such evidence in litigating their 

individual claims because no class had been certified, and then affirmed the 

dismissal of all 206 plaintiffs’ individual claims. In effect, the denial of 

class certification blinded the court to the type of evidence that was 

dispositive in Teamsters, Sledge, and similar cases.

Moreover, even if individual plaintiffs prove pervasive 

discrimination, the absence of class certification may jeopardize their

1 In t’l Bhd. o f Teamsters v. United States, 431 U.S. 324, 361-62 
(1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 772-73 
(1976); Cooper v. Federal Reserve Bank o f Richmond, 467 U.S. 867, 875- 
76 (1984); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 
(2d Cir. 2001), cert, denied, 122 S. Ct. 1349 (2002); Thiessen v. General 
Electric Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001) (“significant 
advantage” in ADEA collective action), petition for cert.fded, 70 USLW 
3410 (U.S., Dec. 14, 2001) (No. 01-881).

2 Allison v. Citgo Petroleum Corp, 151 F.3d 402 (5th Cir.
1998), reh ’g denied with explanation, 151 F.3d 434 (5th Cir. 1998).

3 Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355— 
56 (5th Cir. 2001).

5



obtaining the kind of systemic injunction that will prevent future wrongs, to 

the extent it exceeds what is necessary to give individual relief to the named 

plaintiffs.4

Finally, in National R.R. Passenger Corp. v. Morgan,__U.S.

__, 2002 WL 1270268 (June 10, 2002), the Supreme Court rejected the

“continuing violation” doctrine for individual claims based on discrete 

employment actions such as promotions, but preserved the possibility that a 

different rule might apply in private pattem-and-practice cases. Slip op. at 

12 n.9. Thus, it is possible that some class members’ claims would be 

timely in a class action, and untimely if brought separately.

4 Zepeda v. INS, 753 F.2d 719, 727-29 (9th Cir. 1983) (absent 
class certification, injunction limited to individual plaintiffs); Nat 7 Center 
for Immigrant Rights v. INS, 743 F.2d 1365, 1371-72 (9th Cir. 1984)
(same), vacated on other grounds, 481 U.S. 1009 (1987); Bresgal v. Brock, 
843 F.2d 1163, 1170-71 (9th Cir. 1987) (classwide relief without class 
certification proper only when necessary to give relief to named plaintiffs); 
Paige v. California, 102 F.3d 1035, 1039 (9th Cir. 1996) (exercising pendent 
jurisdiction over class certification order in appeal from grant of injunction, 
stating: “Because the injunction issued here provides class-wide relief, we 
could not uphold it without also upholding the certification of the class.”); 
Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 766—67 (4th Cir. 1998), 
vacated and remanded on other grounds, 527 U.S. 1031 (1999) (reversing 
systemic injunction going farther than needed to give individual plaintiffs 
relief).

6



B. In the CRA, Congress Intended to Expand Available
Remedies for Discrimination in Both Class and Individual
Cases

The Supreme Court has held that the CRA was intended to 

expand remedies, not contract them. Pollard v. E.I. du Pont de Nemours & 

Co., 532 U.S. 843,852 (2001).

The legislative history clearly demonstrates that, from the 

outset of efforts to enact a damages remedy, class actions would be available 

in disparate treatment cases.5 Indeed, opponents of the CRA argued that 

class actions for compensatory and punitive damages without meaningful

5 E.g., H.R. Rep. No. 102-40(1) (1991) at 143, reprinted in 
1991 U.S.C.A.A.N. at 672 (“Class actions claiming intentional 
discrimination will be based as they are under current law on racial and 
sexual statistical imbalances in the workforce.”) (minority report); H.R. Rep. 
No. 102-40 (II) at 68 (1991), reprinted in 1991 U.S.C.C.A.N. at 754 (“Not 
only would H.R. 1 allow the recovery of punitive and compensatory 
damages in individual disparate treatment cases, it would allow recovery of 
such damages and jury trials for class action disparate treatment suits. Like 
disparate impact suits, a prima facie case in a ‘pattern and practice’ 
intentional discrimination lawsuit is established through the use of statistical 
evidence.”) (minority report); statement in extension of remarks of Rep. 
Doolittle on June 7, 1991, quoting a letter from Zachary Fasman of the 
defense-side law firm of Paul, Hastings, Janofsky & Walker in Washington, 
D.C., 137 Cong. Rec. E2086-01, 1991 WL 96880 (Cong. Rec.) (“The 
proponents of this legislation consistently have argued that the expanded 
remedies in question will apply only to cases of intentional discrimination.
In fact, * * * the bill would allow compensatory and punitive damages in * * 
* class actions premised upon the disparate treatment theory of 
discrimination.”).

7



caps would drive employers to adopt quotas.6 In response to these concerns, 

and faithful to the overwhelming need to increase the remedies available 

under the fair employment laws so as to deter discrimination and provide a 

make-whole remedy, Sen. Danforth proposed the remedial structure that 

became 42 U.S.C. § 1981a, allowing damages in both individual and class 

suits but capping damage recoveries for each individual. While amici 

disapprove of the caps, it is important to recognize that their limitations on 

individual recoveries provide an additional, if unneeded, reassurance that 

defendants engaging in intentional discrimination are treated fairly.7

6 E.g., H.R. Rep. No. 102-40 (I) at 127 (1991), reprinted in 
1991 U.S.C.C.A.N. at 656 (minority report) (“Further, the concerns with 
‘quotas’ . . . are heightened by inclusion of punitive and compensatory 
damages. Class action intentional discrimination claims are also based on 
statistical imbalances; employers will again feel inordinate pressure to 
engage in race- and sex- based preferential treatment.’”); statement in 
extension of remarks of Rep. Doolittle on June 7, 1991, quoting a letter from 
Zachary Fasman of the law firm of Paul, Hastings, Janofsky & Walker in 
Washington, D.C., 137 Cong. Rec. E2086-01, 1991 WL 96880 (Cong. 
Rec.); remarks of Rep. Goodling, 137 CONG. Rec. H3932, 1991 WL 94661 
(Cong. Rec.) (June 5, 1991) (“Mr. Chairman, for the past year and a half, we 
have argued the quota implications of H.R. 4000 and H.R. 1 are caused by 
the bills’ substantive provisions, namely, the rules of proof in disparate- 
impact cases which are stacked against employers, and the availability of 
punitive and compensatory damages in intentional discrimination class 
actions based on statistical proof which will drive employers to covertly hire 
and promote by the numbers to avoid costly litigation.”).

7 E.g., Swinton v. Potomac Corp., 270 F.3d 794, 820 (9th Cir. 
2001), cert, denied, 122 S. Ct. 1609 (2002); Romano v. U-Haul 
International, 233 F.3d 655, 673 (1st Cir. 2000), cert, denied, 122 S. Ct. 41

8



The damages section was originally subject to the construction that it 

did not allow the government to seek damages, limiting this relief to private 

litigation. When the EEOC pointed out the harm this would do to its 

enforcement program, however, the measure was amended to allow the 

government to seek damages. Senators Hatch, Kennedy, and Danforth later 

successfully proposed Amendment 1295 to the original structure to ensure 

that the caps would not be applied to the case as a whole, but to each person 

involved in the case. Sen. Kennedy explained that the kind of suit should be 

irrelevant to the application of the caps:

Mr. President, this amendment is designed to make clear 
that the limitations on damage contained in section 5 apply to each 
complaining party, not to all parties in a single case.

The amount of damages that a victim can recover should 
not depend on whether that victim files her own lawsuit or joins with 
other similarly situated victims in a single case.

137 Cong. Rec. S15445-02, 1991 WL 221702 (Cong. Rec.) (Oct. 30, 1991).

This Court has relied on this history. EEOC v. Dinuba Medical Clinic, 222

F.3d 580, 589 (9th Cir. 2000).

The EEOC’s contemporaneous interpretation supports this 

view. Its July 14,1992, Enforcement Guidance: Compensatory and 

Punitive Damages Available Under Sec. 102 of the Civil R ights Act

(2001); Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262, 
1272-73 (10th Cir. 2000).

9



OF 1991, attached hereto, is entitled to respect because it has the “power to 

persuade.” Nat’l R.R. Passenger Corp. v. Morgan, slip op. at 7-8 n.6. It 

states: “When the Commission, or an individual, is pursuing a claim on 

behalf of more than one person, the damage caps are to be applied to each 

aggrieved individual.” Guidance at 3a. Note 8, at pp. 14a-15a, states: 

“Since each individual who states a claim under one of these statutes is one 

who may bring an action, each is eligible for damages up to the cap. This is 

true even when their claims are joined . . .  in a class action brought by a 

private party.”8 The EEOC stated that “any other construction would 

conflict with Congressional intent to make damages available to fully 

compensate persons harmed by discrimination and to deter further 

discrimination.” Id. at 15a. This Court has agreed. EEOC v. Dinuba 

Medical Clinic, 222 F.3d at 589.

Congress wrote against a backdrop of decades of settled law 

that included the mechanisms described below in Parts C-F. Nothing in the 

legislative history suggests that Congress intended to change the manner in

8 It is commonplace that the courts grant remedies only to 
aggrieved individuals. Awards of backpay, admission to a union, 
reinstatement, and similar individualized relief are so limited, § 706(g)(2)(a) 
of Title VII, 42 U.S.C. § 2000e-5(g)(2)(a), and awards of punitive damages 
under the 1991 Act use the phrase “aggrieved individual” incidentally, in the 
course of defining the conduct that can give rise to an award of punitive 
damages. 42 U.S.C. § 198 la(b)(l). No larger significance can fairly be read 
into the CRA’s language.

10



which class members’ entitlement to relief is determined. The caps do not 

affect the trial, because the statute forbids the jury to be informed of them.

42 U.S.C. § 1981a(c). Whatever the factfinder determines, the court then 

applies the caps before the judgment is entered.

Defendants and their amici seek to place victims of 

discrimination in a quandary that could never have been intended by 

Congress: either abandon all claims for CRA relief or forfeit the class 

treatment that may be their only realistic hope for prevailing, and risk their 

ability to obtain a decree that will finally end discrimination. Congress 

cannot have intended that victims of intentional discrimination be forced to 

choose between their right to backpay or damages and their right to a full 

injunction. The imposition of this Hobson’s choice would be a virtual 

judicial repeal of the backpay and damages remedies.

C. The Supreme Court’s Teamsters Model Governs Title VII
Class Action Procedures, and Provides for a Flexible
Approach to Stage II

In Teamsters, the Court established the procedural structure for 

the litigation of pattem-and-practice cases, including Title VII class actions.9 

Pattem-and-practice liability is tried first. If plaintiffs prevail then

9 Age discrimination pattern-and-practice cases, while not 
subject to Rule 23, follow the Teamsters model as well. Thiessen v. General 
Electric Capital Corp., 267 F.3d at 1105.

11



classwide remedies, such as injunctive and declaratory relief, are ordered.

To the extent that class members seek monetary relief, they enter Stage II 

proceedings for that purpose and are entitled to a presumption that 

discrimination occurred. 431 U.S. at 360-62. This two-stage method is 

particularly efficient because, if liability is not found in Stage I, the parties 

do not waste resources conducting discovery and presenting evidence about 

individual-specific injuries.

There are two basic models for awarding relief in Stage II 

proceedings. The first involves individualized determinations that attempt to 

recreate what would have occurred in hirings or promotions absent 

discrimination. E.g., Teamsters, 431 U.S. at 371-72. Teamsters did not 

hold that separate hearings were required for each discriminatee, but merely 

that “additional proceedings” would determine individual relief. Id. at 361.

Where the recreation of history leads the court into a “quagmire 

of hypothetical judgments,” it can depart from individual hearings and 

determine backpay on a classwide basis. Pettway v. American Cast Iron 

Pipe Co., 494 F.2d 211,260 (Former 5th Cir. 1974). Accordingly, courts 

have allowed proof of aggregate monetary relief in Title VII actions by 

means of expert statistical analysis as an alternative. Domingo v. New 

England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir.), modified in other

12



respects, 742 F.2d 520 (9th Cir. 1984); Stewart v. General Motors, 542 F.2d 

445, 452-53 (7th Cir. 1976), cert denied, 433 U.S. 919 (1977); Segar v. 

Smith, 738 F.2d 1249, 1289-91 (D.C. Cir. 1984), cert denied, 471 U.S. 1115 

(1985). See 2 Newberg, Herbert, and Conte, Alba, N ewberg on Class 

Actions, 3d Ed. (1992) § 10.05.

Over the past 25 years, the Teamsters model has taken into 

account complex facts relating to large numbers of class members, resulting 

in sophisticated awards, without losing class-action efficiencies by 

devolving into an individualized quagmire, or by trammeling anyone’s 

constitutional rights. E.g., Kraszewski v State Farm General Insurance Co., 

912 F.2d 1182 (9th Cir. 1990) (individual hearings to determine entitlement, 

and formula to determine relief), cert, denied, 499 U.S. 947 (1991). Segar, 

738 F.2d at 1289-93 (hearings for lower-level black agents, but statistical 

multi-factor approach to backpay for senior agents); Pegues v. Mississippi 

State Employment Service, 899 F.2d 1449 (5th Cir. 1990). There is no 

reason why the Teamsters model cannot apply to Title VII punitive-damage 

claims. Sampling techniques are also available.10

10 In Hilao v. Estate o f Marcos, 103 F.3d 767, 779-87 (9th Cir. 
1996), this Court upheld classwide resolution by a jury, based on sampling, 
of compensatory and punitive damage claims raised by 10,000 class 
members who suffered from human rights abuses, resolving issues far more 
daunting than those presented herein. Scholars have also supported the

13



D. The Teamsters Model Has Never Deprived Defendants of 
the Ability to Fully Rebut the Allegations at Any Stage

Boeing wrongly complains that the Teamsters model deprives it 

of a fair opportunity to rebut the allegations.

To demonstrate a pattern and practice, plaintiffs typically use 

three kinds of evidence: (a) testimony and documentary evidence describing 

the challenged practices, and demonstrating intent; (b) expert testimony 

showing how the practice has affected the class; and (c) anecdotal testimony 

from class members to bring “the cold numbers convincingly to life.” 

Teamsters, 431 U.S. at 339.

Defendants are free to attack this evidence or offer their own 

proof. If a defendant has evidence explaining away an overall statistical 

showing, it may present such evidence in Stage I and explain why its own 

analysis is more probative. It can select representative parts of its workforce 

and present individual explanations that, if accepted by the jury, would 

undermine or destroy plaintiffs’ statistics.

concept of using sampling techniques to aid in determining damages. G. 
Robinson & Kenneth Abraham, Collective Justice in Tort Law, 78 Va. L. 
Rev. 1481 (Oct. 1992); R. Bone, Statistical Adjudication: Rights, Justice 
and Utility in a World o f Process Scarcity, 46 Vand. L. Rev. 561 (1993); M. 
Saks & P. Blanck, Justice Improved: The Unrecognized Benefits o f 
Aggregation and Sampling in the Trial o f Mass Torts, 44 Stan. L. Rev. 815 
(1992); L. Walker & J. Monahan, Sampling Damages, 83 Iowa L. Rev. 545 
(March 1998).

14



In addition, if a defendant shows that there is no discriminatory 

pattern in a specific part of its workforce it will not only have avoided the 

need for Teamsters determinations as to that portion, it will preclude that 

part of the class from attempting in individual cases to rely on a 

discriminatory pattern. Whichever side benefits from class certification, 

however, it is clear that the existence vel non of a discriminatory pattern was 

a class issue.

E. In Appropriate Cases, Class Treatment of Punitive 
Damages is Superior to Individual Treatment

In some cases, defendant’s conduct giving rise to punitive

damages is not committed individually, but with respect to the entire class.

Examples are decisions to (1) apply height and weight standards for airline

attendants in a facially discriminatory manner,11 (2) segregate employees

racially in pay lines, etc., (3) refuse to allow disabled employees to return

• • •  • • • 1 3to work with restrictions on activities, (4) refuse to allow pregnant 

employees to wait on tables,14 (5) allow Hispanic employees to be subjected

11 Cf. Frank v. United Airlines, Inc., 216 F.3d 845, 853-55 (9th 
Cir. 2000), cert, denied, 532 U.S. 914 (2001).

12 Cf. James v. Stockham Valves Co., 559 F.2d 310, 319-28 
(Former 5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978).

13 Cf. Otting v. J.C. Penney Co., 223 F.3d 704, 711-12 (8th Cir.
2000) .

2000).
14 Cf. EEOC v. W&O, Inc., 213 F.3d 600, 611-12 (11th Cir.

15



to repeated ethnic slurs,15 (6) ignore all harassment complaints rather than 

investigate them,16 or (7) suppress reports of, rather than eradicate, classwide 

disparities.17 Such decisions are made with respect to the class as a whole, 

not particular individuals.

If plaintiffs prove such class-wide actions, it is simply incorrect 

that the assessment of punitive damages must be made on an individual-by­

individual basis. It is the essence of the defendant’s action that it was not 

done individually.

Moreover, punitive damages, like general prospective relief, are 

not intended to compensate individuals for particular injuries. Cooper 

Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). 

They do not require the individualized attention—not necessarily hearings, 

but attention—appropriate for awards of backpay and compensatory 

damages.

In appropriate cases, class treatment of punitive damages can be 

superior to individualized treatment because it can help avoid multiple

15 Cf. McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 
923-26 (10th Cir. 2001).

16 Cf. Madison v. IBP, Inc., 257 F.3d 780, 795-96 (8th Cir. 
2 m ) ,  petition for cert, fded, 70 USLW 3445 (U.S., Dec. 19, 2001) (No. 01- 
985).

17Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 445^16 (4th 
Cir.), cert, denied, 531 U.S. 822 (2000).

16



punitive awards for the same pattern of discrimination. As this Court noted 

in In re Exxon Valdez, 229 F.3d 790, 795-96 (9th Cir. 2000), punitive 

damages classes can help prevent “the unfairness that results when a few 

plaintiffs—those who win the race to the courthouse—bankrupt a defendant 

early in the litigation process” and “the possible unfairness of punishing a 

defendant over and over again for the same tortious conduct.” The Second 

Circuit refused to grant mandamus to overturn certification of such a class, 

accepting the district court’s reasoning that “courts adjudicating later 

individual claims would admit evidence as to the payment of punitive 

damages in prior cases,” that later claimants may get less, and that “punitive 

damages ought in theory to be distributed among the individual plaintiffs on 

a basis other than date of trial.”19

Class treatment of punitive damages is, moreover, consistent 

with the Supreme Court’s analysis of the CRA’s punitive damage remedy in 

Kolstad v. American Dental Association, 527 U.S. 526 (1999). While 

Kolstad involved an individual action, its logic applies equally to class cases. 

The Court zeroed in on the employer’s knowledge and behavior, rather than

18 This Court’s recent remand of the $5 billion punitive 
damages verdict as excessive did not disturb the use of the mandatory 
punitive damages class. In re Exxon Valdez, 270 F.3d 1215, 1238—47 (9th 
Cir. 2001).

19 In re Diamond Shamrock Chemicals Co., 725 F.2d 858, 861— 
62 (2d Cir. 1984), cert, denied, 465 U.S. 1067 (1984).

17



on an individualized analysis of harm to plaintiffs. Thus, a CRA punitive 

damages claim presents global factual and legal issues about the employer’s 

wrongdoing that particularly lend themselves to class resolution.

Kolstad specifically rejected a standard for punitive damages 

that would only examine whether employees had been victims of 

particularly egregious behavior. Instead, it stated: “the view that § 1981a 

provides for punitive awards based solely on an employer’s state of mind is 

consistent with the 1991 Act’s distinction between equitable and 

compensatory relief.” “The terms ‘malice’ or ‘reckless indifference’ pertain 

to the employer’s knowledge that it may be acting in violation of federal 

law. . . .” 527 U.S. at 535.20

Kolstad grounded its interpretation firmly in the language and 

purpose of the CRA. The Court emphasized the statute’s “two-tiered 

structure.” Id. at 534-35. The first tier includes all cases of intentional 

discrimination. The cases in the second tier are the subset of those first-tier

20 The CRA’s punitive damages focus on the employer- 
wrongdoer, rather than the victim, is in line with the Supreme Court’s 
general principles on that issue: “Punitive damages, by definition are not 
intended to compensate the injured party, but rather to punish the tortfeasor 
whose wrongful action was intentional or malicious, and to deter him and 
others from extreme conduct.” City o f Newport v. Fact Concerts, Inc., 453 
U.S. 247, 266-67 (1981). Punitive damages operate as “private fines” 
intended to punish and deter future wrongdoing. Cooper Industries, Inc. v. 
Leatherman Tool Group, Inc., 532 U.S. at 432.

18



cases that qualify for punitive damages. The fact-finder determines whether 

to award punitive damages by “focus[ing] on the employer’s state of mind” 

to find out whether the employer acted ‘“with malice or with reckless 

indifference to the [plaintiffs] federally protected rights.’” Id. at 535; see 

also id. at 549 (Stevens, J., joined by Justices Souter, Ginsburg, and Breyer,

concurring) (§ 1981 ’s “purely mental standard” perfectly consistent with

21Act’s ‘two-tiered’ damages scheme).

In cases like this, the second-tier inquiry transcends 

individualized questions about what happened to each person, requiring a 

more focused examination on the employer, the results of which would 

apply to all class members. This interpretation serves the purposes of the 

CRA. By focusing on the employer’s actions and by providing a defense for 

employers making good-faith efforts to comply, the Court created incentives 

for employers to be proactive in remedying and preventing discrimination. 

527 U.S. at 545^46. These are questions that must ordinarily be answered 

globally, because the answers would not often vary by individual. Punitive 

damage claims work well with class action treatment.

21 And see Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1197— 
99 (9th Cir. 2002); Passantino v. Johnson & Johnson, 212 F.3d 493, 515-16 
(9th Cir. 2000).

22 This is not novel. See e.g., Watson v. Shell Oil Co., 979 F.2d 
1014 (5th Cir. 1992) (mass-tort punitive-damages claim presents

19



F. Courts Have Used Various Rule 23 Procedures To Protect
Due Process Rights

Courts have thoughtfully analyzed the procedures a district 

court may deploy in order both to comply with Rule 23 and address any due 

process concerns raised. Jefferson v. Ingersoll In t’l, Inc., 195 F.3d 894, 

896-99 (7th Cir. 1999), set forth three such options for CRA damages class 

actions: (a) certify a (b)(2) class, and use 23(d)(2) to order notice and 

opportunity to opt-out; (b) order hybrid or “divided” certification (as 

herein), so that liability issues fall under (b)(2), and damage claims are 

treated under (b)(3); or (c) certify the entire matter under (b)(3), as 

discussed below. See also Lemon v. Int 7 Union o f Operating Engineers, 

216 F.3d 577 (7th Cir. 2000) (endorsing the three Jefferson options); 

Robinson, 267 F.3d at 165-67 (CRA compensatory-damages case, 

remanding with instructions to consider (b)(2) with notice and opt-out at 

damages phase); Eubanks v. Billington, 110 F.3d 87, 95 (D.C. Cir. 1997) 

(discussing (b)(2) backpay class with opt-outs); Cox v. American Cast Iron 

Pipe Co., 784 F.2d 1546, 1554 (11th Cir.) (discussing hybrid certification

predominantly common issues and class treatment is superior), reh ’g en 
banc granted, 990 F.2d 805 (5th Cir. 1993), appeals dismissed by consent, 
53 F.3d 663 (5th Cir. 1994); Sterling v. Velsicol Chemical Corp., 855 F.2d 
1188, 1217 (6th Cir. 1988) (punitive damages can be awarded in State-law 
23(b)(3) action for contaminated drinking water).

20



with opt-outs at backpay stage), cert, denied, 479 U.S. 883 (1986); 1 

Newberg on Class Actions §4.14.

G. “Negative Value” Individual Suits Are Not a Pre-Condition 
for Class Certification, and Title VII Class Actions Are 
Generally Superior to Individual Litigation

Defendants (Brief at 38-39) and their amici (Brief at 24) argue

that Title VII claims are not appropriate for class treatment because they are

no longer “negative value” suits, where the monetary value of an individual

claim is outweighed by transaction costs in litigating it. They assert that all

Title VII claims are now effectively worth at least $300,000 each. This

misreads the law, overstates the monetary value of most Title VII claims,

and ignores the importance of class actions.

Rule 23 does not require that class members’ claims have

negative value to qualify for class treatment. Amchem Products, Inc. v.

Windsor, 521 U.S. 591,616-17 (1997), discussed a balancing test between

the size of individual stakes and the will and ability of class members to take

care of their own interests, although “the text of Rule 23(b)(3) does not

exclude from certification cases in which individual damages run high.”

9 9
The only Court of Appeals opinion to discuss seriously 

“negative value” analyses in a Title VII employment class action is Allison,
151 F.3d at 420, and it merely said that ‘“negative value’” cases were “‘the 
most compelling rationale” for finding superiority in a class action’” and that 
that factor was not present in the case at bar. Its subsequent decision in

21



Amici have shown above that the ability of individual plaintiffs 

to obtain the discovery to prevail, be able to rely on it, and to obtain 

systemic injunctive relief, can be impaired outside of class litigation. That 

consideration is reinforced in this case, in which plaintiffs had to file twenty 

motions to compel discovery, and in which the fruits of discovery are 

broadly claimed to be confidential and are thus kept out of the hands of 

subsequent plaintiffs. Here, the balancing test favors class certification.

Celestine, discussed above, demonstrated that it was factually wrong. The 
Fifth Circuit did not say that negative values were indispensable for class 
certification, and disclaimed any such holding in its former decision in Smith 
v. Texaco, Inc., 263 F.3d 394, 416 (5th Cir. 2001) (“Although a negative 
value suit is not a prerequisite to class certification, its absence is a 
significant detraction from the superiority of the class action device.”), 
withdrawn and cause dismissed, 281 F.3d 477 (5th Cir. 2002).

In the view of amici, Allison is poorly reasoned dicta that 
cannot be squared with earlier Fifth Circuit precedent. See the dissenting 
opinion of Judge Dennis. Id. at 426-34. The order denying rehearing, id. at 
434, stated that the real issue was whether the lower court abused its 
discretion in allowing consolidation of hundreds of claims rather than class 
certification, and there was no abuse of discretion. Allison never addressed 
what it described as the real issue, and its broad discussion was unnecessary 
to the result. Further, these dicta failed to consider the importance of 
injunctive relief or concerns about employer reprisal. Allison also relied on 
the assumption that all Title VII claims are worth $300,000, untenable in 
light of Celestine. Finally, the order denying rehearing distanced itself from 
the issues presented herein: “We are not called upon to decide whether the 
district court would have abused its discretion if it had elected to bifurcate 
liability issues that are common to the class and to certify for class 
determination those discreet [sic] liability issues.” Id.

22



This test favors class certification to an even further extent in

Title VII cases. Defendants’ notional $300,000 value per case assumes that 

all cases will be successful and provide the maximum possible remedy. If 

that is so, then their gender discrimination must be widespread, and clearly a 

systemic challenge and injunction are long overdue.

Defendants further assume that every female employee is able 

to overcome her fear of retaliation,24 can readily find counsel, and will bring 

an independent lawsuit. If that is so, the docket should be full of individual 

lawsuits against defendants and class certification or consolidation would 

help clear the docket below. The fact that amici could find few cases against 

defendants, juxtaposed with the lower court’s having found plaintiffs’ 

statistical showing substantial enough to warrant class certification, shows 

instead that there may be a classwide problem for which individual lawsuits 

are not an effective remedy.

24 Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 
275 (10th Cir. 1977) (taking judicial notice of employees’ apprehensiveness 
about offending their employers); Arkansas Education Ass ’n v. Board o f 
Educ., 446 F.2d 763, 765 (8th Cir. 1971) (“those teachers who remain in the 
school system could have a natural fear or reluctance to bring this action on 
an individual basis”). The lower court similarly stated that “the Court 
cannot ignore the realities of choosing to litigate an individual claim against 
a resource-heavy organization such as defendants’,” and added that “most of 
these women would not pursue their claims individually, and thus have little 
or no interest in ‘controlling the prosecution . . .  of separate actions.’” Beck 
v. Boeing Co., 203 F.R.D. 459, 467 (W.D. Wash. 2001).

23



If defendants’ approach were applied to an ordinary accident 

claim, the claim would have infinite value because there is no cap on the 

potential recovery. Plainly, the value of a claim is based on the likely size of 

the verdict for that claim discounted by the myriad risks in litigation.

This common sense view of claim value is supported by 

government data regarding employment discrimination cases. The 

Department of Justice’s Bureau of Justice Statistics has released a Special 

Repoif stating that only 5% of employment discrimination complaints in 

federal district courts in 1998 were resolved by trial. It states that 39% of 

the complaints were settled, leaving 56% dismissed or voluntarily 

withdrawn. Id. at 6. Of the 5% of employment discrimination cases 

resolved by trial, plaintiffs won only 35.5% of the time, which means that 

plaintiffs won at trial about 1.8% of the total cases filed. The median 

judgment was for only $137,000. Id. at 9. Discounting that figure by the 

almost 60% probability of losing produces a median value under $55,000. 

Even that figure, however, is likely an overstatement because the cases 

studied by the Bureau include high-back-pay cases such as hiring and firing 

cases, and the claims here involve promotions, which normally involve

25 Civil Rights Complaints in U.S. District Courts, 1990-98, by 
Marika F. X. Litras, Ph.D. (January 2000) (attached). The document can be 
downloaded at http://www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pd.

24

http://www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pd


much smaller back-pay claims. Moreover, it does not include the further 

whittling away of victories on appeal.

The theoretical availability of punitive damages does not 

change this calculus because such awards are included in the study. Nor is 

this surprising. To obtain punitive damages, Kolstad requires a heightened 

standard of proof. Even where such proof is ultimately obtained, at the 

outset of a case a lawyer could rarely know that an award of punitive 

damages is certain.

Nor does the availability of attorneys’ fees make Title VII 

claims less appropriate for class treatment. Fees have been available since 

1965 and class actions have still been necessary. The trial court has broad 

discretion to eliminate hours not reasonably spent and to weigh the extent of 

success and results obtained, among other factors. Hensley v. Eckerhart,

461 U.S. 424 (1983). Defendant’s amici argue (Brief at 24) without case 

support that the availability of statutory attorneys’ fees alone would support 

a finding that Title VII claims are not “negative value” suits. By such logic, 

no class action would lie for any of the federal causes of action where 

statutory attorneys’ fees are provided. Moreover, it is highly unlikely that 

district courts would allow recovery, in individual cases, for the time and 

expense of discovering and analyzing patterns of classwide discrimination.

25



Consideration of the superiority of class or individual actions 

differs fundamentally between negligence actions seeking only money, and 

suits requiring proof of intentional misconduct that seek systemic injunctive 

relief as well as money. Obtaining proof of discriminatory intent requires a 

much wider sweep for evidence, with a heavier expenditure of time and 

money, and making reliance on a pattern of conduct much more important 

than in negligence cases seeking only money. It is far more economical in 

judicial, party, and attorney resources to litigate and resolve such questions 

once than to do so in largely repetitive individual cases. Moreover, the 

intent of Congress in eradicating discrimination cannot be achieved if 

employers can rely on the windfall that fear and retaliation will lead many 

victims not to become plaintiffs in individual cases. These factors militate 

much more strongly in favor of class certification.

H. The 1991 Civil Rights Act Did Not Limit the Ability of 
Plaintiffs to Challenge Subjective Decision-Making 
Resulting in Discrimination

The Supreme Court has repeatedly affirmed that plaintiffs may 

challenge an employer’s use of subjective criteria in Title VII class actions. 

General Telephone Co. o f Southwest v. Falcon, 457 U.S. 147, 159 n. 15 

(1982), stated that a class of both applicants and employees might be 

justified by proof of a “general policy of discrimination,” and used “entirely

26



subjective decisionmaking processes” as an example. Watson v. Fort Worth 

Bank and Trust, 487 U.S. 977, 989-91 (1988), held that disparate-impact 

analysis applies to subjective as well as objective employment practices, and 

pointed out that any other result might lead to further discrimination by 

employers that saw subjective discrimination as a “safe harbor” immune 

from disparate-impact analysis. Here, defendants and their amici 

impermissibly seek to create a “safe harbor” by making subjective decisions 

immune from challenge in any class action seeking common-law damages.

Defendants’ amici argue without case support (Brief at 11) that 

the CRA fundamentally altered Title VII, thereby rendering class-wide 

challenges to subjective decision-making improper. They cite § 703(a) of 

Title VII, which was not amended by the CRA, and provisions involving 

“mixed motives” cases, which are inapplicable here and which rarely if ever 

apply to statistical cases or patterns of subjective decisionmaking.

Defendants’ amici also point to the CRA’s expansion of 

remedies, but this provision deals only with remedies, not liability, and so 

cannot advance their argument.

They also argue that “subjective criteria” claims are too 

individualized to satisfy Rule 23(b)(2) commonality. Neither the Supreme 

Court nor any Circuit shares this view. Most recently, in Caridad v. Metro-

21



North Commuter Railroad, 191 F.3d 283, 292 (2nd Cir. 1999), cert denied, 

529 U.S. 1107 (2000), a decision not cited in defendants’ amici's brief, the 

Second Circuit rejected the identical argument.

I. The Seventh Amendment Does Not Bar Class Certification 

While there has been an increased concern with Seventh 

Amendment considerations concerning Title VII class actions, see Allison v. 

Citgo Petroleum Corp., 151 F.3d at 422-25, there should be no presumption 

that Title VII class actions are inappropriate because of the Seventh 

Amendment. A number of procedural devices can accommodate Seventh 

Amendment concerns and would allow employment discrimination cases to 

go forward as class actions. See Robinson v. Metro-North Commuter R.R.. 

Co, 267 F.3d at 169-70.26

The widespread granting of new jury trials on limited issues 

shows that the Seventh Amendment does not require that the same jury 

resolve all factual questions. It requires that no jury revisit a prior proper 

jury determination, and Seventh Amendment concerns are routinely 

discharged by an instruction that the new jury is bound by the previous 

jury’s findings. There is no impediment to having one jury determine the

“Nor does the risk of re-examination justify a presumption 
against bifurcation in cases involving separate juries.” Steven S. Gensler, 
Bifurcation Unbound, 75 Wash. L. Rev. 705, 736 (2000) (footnote omitted).

28



existence of a classwide pattern of discrimination sufficient to create a 

rebuttable presumption that individual class members were victims of 

discrimination, Robinson, 267 F.3d at 167-69, and then have that jury, or as 

many supplemental juries as necessary, conduct Stage II Teamsters trials of 

the claims of class members. Id. at 169 n.3; Arthur Young & Co. v. United 

States District Court, 549 F.2d 686, 692-93 (9th Cir.), cert, denied, 434 U.S. 

829 (1977); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 628-29 

(5th Cir. 1999, cert, denied, 528 U.S. 1159 (2000). The Manual FOR 

Complex L itigation states that in mass tort cases “liability issues may be 

consolidated for joint trial, reserving damage issues for later individual 

trials.” MCL 3d § 21.631. Thus, separate juries can even be used outside 

the context of a class action.

CONCLUSION

The class action procedure has for thirty-seven years been, and 

still remains, the most important means for achieving the goal of equal 

opportunity promised by Title VII. This Court should reject defendants’ 

invitation to read the CRA as turning back the clock on decades of Title VII 

class action jurisprudence.

Federal courts should continue to follow fair procedures that 

give effect to the intent of Congress. Cf. Bell v. Hood, 327 U.S. 678, 684

29



(1946) (“where federally protected rights have been invaded, it has been the 

rule from the beginning that courts will be alert to adjust their remedies so as 

to grant the necessary relief.”) (footnote omitted).

The decision of the district court should be affirmed. 

Respectfully submitted,

Richard T. Seymour* (D.C. Bar 28100)
Lieff, Cabraser, Heimann & Bernstein, LLP
1100 New York Avenue, NW 
Suite 1080 - West Tower 
Washington, DC 20005-3934 

(202) 582-1000 
(202) 582-1500 (fax)

Brad Seligman 
Jocelyn Larkin 
The Impact Fund
125 University Ave.
Berkeley, CA 94710-1616 

(510) 845-3473

Donna M. Ryu
Women’s Employment Rights Clinic of 

Golden Gate Univ. School of Law
536 Mission Street 
San Francisco, CA 94105

*Counsel of Record

30



Laurie A. McCann
AARP Foundation Litigation
Melvin Radowitz 
AARP
601 E Street, N.W.
Washington, DC 20049 

(202) 434-2060 
(202) 434-6424 (fax)

Lew Hollman
Center for Law in the Public Interest
10951 W. Pico Blvd., 3rd Floor 
Los Angeles, CA 90064-2126 

(310) 470-3000 
(310) 474-7083 (fax)

Doris Y. Ng
Equal Rights Advocates
1663 Mission Street, Suite 550 
San Francisco, CA 94103 

(415)621-0672 
(415) 621-6733 (fax)

Thomas J. Henderson 
Michael Foreman
Lawyers’ Committee for Civil Rights 

Under Law
1400 New York Avenue N.W., Suite 400 
Washington, D.C. 20005 

(202) 662-8600

Michael Harris
Lawyers Committee for Civil Rights of the 

San Francisco Bay Area
131 Steuart Street, Suite 400 
San Francisco, CA 94105 

(415)543-9444

31



William C. McNeill, III, Esq., Cal. Bar No. 64392 
Jory C. Steele, Esq., Cal. Bar No. 206944 
The Legal Aid Society -  Employment Law 

Center
1663 Mission Street, Suite 400 
San Francisco, California 94103 

(415)864-8848
(415) 864-8199 (fax)

Antonia Hernandez, President
Thomas A. Saenz, Vice President of Litigation
MALDEF
634 South Spring Street 
Eleventh Floor 
Los Angeles, CA 90014 

(213)629-2512

Karen K. Narasaki 
Vincent A. Eng
National Asian Pacific American 

Legal Consortium
1140 Connecticut Ave NW, Suite 1200 
Washington, DC 20036 

(202) 296-2300

Elaine R. Jones, Director Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Robert H. Stroup 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 

(212) 965-2200

32



Dennis C. Hayes, General Counsel
Yolanda Y. Riley
National Association for the

Advancement of Colored People
4805 Benjamin L. Hooks Drive 
Fifth Floor
Baltimore, MD 21215 

(410) 486-9191

Paula A. Brantner 
National Employment Lawyers 

Association
44 Montgomery Street, Suite 2080 
San Francisco, CA 94104 

(415) 296-7629

Judith L. Lichtman, President 
Jocelyn C. Frye, Director of Legal & Public Policy 
Adrienne DerVartanian, Policy Counsel 
National Partnership for Women & Families
1875 Connecticut Avenue, NW / Suite 650 
Washington, DC 20009 

(202) 986-2600

Judith C. Appelbaum 
Dina R. Lassow
National Women’s Law Center
11 Dupont Circle NW, Suite 800 
Washington, DC 20036 

(202) 588-5180

Arthur Bryant 
Victoria W. Ni
Trial Lawyers for Public Justice, P.C.
One Kaiser Plaza, Suite 275 
Oakland, CA 94612-3684 

(510)622-8150 
(510) 622-8155 (fax)

Attorneys for Amici Curiae

33



Certificate of Compliance

Pursuant to Rule 32(a)(7), F.R.A.P., the undersigned certifies that this 

brief complies with the type-volume limitations contained in that rule. It 

was produced in Microsoft Word version 2002 with MacPac, and contains 

7,000 words exclusive of the cover, tables of contents and authorities, lists of 

counsel, corporate disclosure statement, and certificates of compliance and 

service.

Dated: June 12, 2002

Richard T. Seymour 
Counsel of Record

34



Certificate of Service

I certify that I have served a copy of the foregoing brief this 12th day

of June, 2002, on counsel for the parties by facsimile commencing before

midnight, and that I will deposit copies in the U.S. Mail, first-class postage

prepaid, prior to 3:00 A.M. on June 13, 2002, addressed to them as follows:

Joseph M. Sellers, Esq.
Christine Webber, Esq.
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W., Suite 500 
Washington, D.C. 20005

Jerry R. McNaul, Esq., Michael D. Helgren, Esq., and 
Robert M. Sulkin, Esq.
McNaul Ebel Nawrot Helgren & Vance, P.L.L.C.
One Union Square, Suite 2700 
600 University Street 
Seattle, WA 98101-3143

Barbara Berish Brown, Esq.
Neal D. Mollen, Esq.
Paul, Hastings, Janofsky & Walker LLP 
1299 Pennsylvania Avenue N.W., 9th Floor 
Washington, D.C. 20004

C. Geoffrey Weirich, Esq.
Paul, Hastings, Janofsky & Walker LLP 
600 Peachtree Street N.E., Suite 2600 
Atlanta, Georgia 30308-2222

35



Lawrence B. Hannah, Esq. 
Jeffrey A. Hollingsworth, Esq. 
Nancy Williams, Esq.
Perkins Coie LLP 
1201 Third Avenue 
Seattle, WA 98101-3099

Signed:_____________________
Richard T. Seymour 
Attorney for Amici Curiae

Dated: June 12, 2002

36