Wal-Mart Stores, Inc. v. Dukes Brief Amici Curiae in Support of Respondents

    N o. 10-277

In The

S u p re m e  C o u rt of tfje ® m teb S ta te s

Wal-Mart Stores, Inc.,
Petitioner,

v.

Betty Dukes, et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

Brief of NAACP Legal Defense and Educational 
Fund, Inc., National Association for the 

Advancement of Colored People, Leadership 
Conference on Civil and Human Rights, AARP, 

Disability Rights Education and Defense Fund, Inc., 
LatinoJustice PRLDEF, Asian American Justice 

Center, Asian Law Caucus, and Lawyers’ 
Committee for Civil Rights Under Law 

As Amici Curiae In Support of Respondents

John Payton 
Director-Counsel 

DEBO P. Adegbile 
Counsel of Record 

Kimberly Liu 
Ryan Downer 
NAACP Legal Deense & 
Educational Fund, Inc. 

99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

mailto:dadegbile@naacpldf.org


1

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................... iii

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

SUMMARY OF ARGUMENT................................... 1

ARGUMENT............................................................. 4

I. Class actions of the kind at issue here play 
a vital role in the enforcement of Title VII.......4

A. Civil rights cases are paradigmatic
cases for Rule 23(b)(2) certification............... 4

B. Plaintiffs’ claims must proceed as a
class action to allow proper judicial 
evaluation of, and, if appropriate, 
remedies for the broad-scale 
discrimination they allege..............................8
1. The pattern-or-practice claim alleged 

by Plaintiffs requires class treatment
for proper resolution.................................8

2. Wal-Mart’s arguments threaten to
undermine the viability of disparate 
impact claims in addressing systemic 
workplace discrimination.......................15

3. Classwide treatment of both the
disparate impact and the pattern-or- 
practice claims alleged here is 
necessary for Plaintiffs to obtain a 
just outcome............................................. 19



11

T A B L E  O F  C O N T E N T S
(continued)

II. Wal-Mart’s attempt to bar monetary relief 
from 23(b)(2) class actions would severely 
hamper the effectiveness of 23(b)(2) class 
actions and is unsupported by legislative 
intent or legal precedent................................... 24

A. Back pay remedies are central to full
equitable relief and consistent with 
Rule 23(b)(2) certification............................26

B. The issue of punitive damages in (b)(2)
classes should not be considered by this 
Court..............................................................27

C. The fact that the class includes former
employees is not an appropriate ground 
for denying certification under Rule 
23(b)(2)...........................................................29

CONCLUSION.........................................................32

ADDENDUM............................................................ la



Ill

TABLE OF AUTHORITIES

Cases

Page(s)

Adreani v. First Colonial Bankshares Corp., 154 
F.3d 389 (7th Cir. 1998).................................... 13

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)....................................passim

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974)................................................ 6

Allison v. Citgo Petroleum Corp.,
151 F.3d 402 (5th Cir. 1998)......................  16, 28

Amchem Products, Inc. v. Winsdor,
521 U.S. 591 (1997).............................................. 5

American Federation of State, County, &
Municipal Employees v. Washington,
770 F.2d 1401 (9th Cir. 1985)..........................  13

Ash v. Tyson Foods, Inc.,
546 U.S. 454 (2006)............................................ 28

Bacon v. Honda of America 
Manufacturing, Inc.,
370 F.3d 565 (6th Cir. 2004)................  12, 17, 18

Bazemore v. Friday,
478 U.S. 385 (1986)........................................... 11



IV

Bell v. EPA,
232 F.3d 546 (7th Cir. 2000)...............................9

Bolin v. Sears Roebuck & Co.,
231 F.3d 970 (5th Cir. 2000)............................. 31

Bowe v. Colgate-Palmolive Co.,
416 F.2d 711 (7th Cir. 1969)............................. 27

Califano v. Yamasaki,
442 U.S. 682 (1979)...........................................  21

Carman v. McDonnell Douglas Corp.,
114 F.3d 790 (8th Cir. 1997)............................. 13

Celestine v. Petroleos de Venezuella SA,
266 F.3d 343 (5th Cir. 2001)............................. 12

Chisholm v. U.S. Postal Service,
665 F.2d 482 (4th Cir. 1981).............................27

Coe v. Yellow Freight System, Inc.,
646 F.2d 444 (10th Cir. 1981).................... 18, 19

Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867 (1984).......................................  8, 15

Cooper v. Southern Co.,
390 F.3d 695 (11th Cir. 2004)...........................28

Davis v. Coca-Cola Bottling Co. Consolidated,
516 F.3d 955 (11th Cir. 2008)

T A B L E  O F  A U T H O R IT IE S
(continued)

1 2



V

T A B L E  O F A U T H O R IT IE S
(continued)

Dothard v. Rawlinson,
433 U.S. 321 (1977)...........................................  16

Duke v. University of Texas at El Paso,
729 F.2d 994 (5th Cir. 1984)............................ 23

East Texas Motor Freight System Inc. v.
Rodriguez, 431 U.S. 395 (1977)......................... 5

EEOC v. Associated Dry Goods Corp.,
449 U.S. 590 (1981)............................................. 9

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984)............................................... 9

EEOC v. United Association of Journeymen,
235 F.3d 244 (6th Cir. 2000)............................  11

Ellis v. Costco Wholesale Corp.,
240 F.R.D. 627 (N.D. Cal. 2007)......................  32

Franks v. Bowman,
424 U.S. 747 (1976)............................9, 11, 12, 14

Frontiero v. Richardson,
411 U.S. 677 (1973).......................................... 17

Gay v. Waiters’ & Dairy Lunchmens Union,
549 F.2d 1330 (9th Cir. 1977)..........................  27

General Telephone Co. of the Southwest v.
Falcon, 457 U.S. 147 (1982)............................. 10



VI

Griggs v. Duke Power Co.,
401 U.S. 424 (1971).....................  7, 15-16, 17, 26

Hall v. Alabama Association of School Boards,
326 F.3d 1157 (11th Cir. 2003)......................... 11

Hazelwood School District v. United States,
433 U.S. 299 (1977).....................................  10, 13

Holmes v. Continental Can Co.,
706 F.2d 1144 (11th Cir. 1983)...........................6

In re Monumental Life Insurance Co.,
365 F.3d 408 (5th Cir. 2004)........................30-31

Ingram v. Coca-Cola Co.,
200 F.R.D. 685 (N.D. Ga. 2001)........................ 19

International Union v. Johnson Controls, Inc.,
499 U.S. 187 (1991)............................................. 6

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977).......... passim

Kristian v. Comcast Corp.,
446 F.3d 25 (1st Cir. 2006)............................... 23

Kyriazi v. Western Electric Co.,
647 F.2d 388 (3d Cir. 1981)................................5

Lemon u. International Union of Operating
Engineers, 216 F.3d 577 (7th Cir. 2000)......... 29

T A B L E  O F A U T H O R IT IE S
(continued)



Vll

T A B L E  O F  A U T H O R IT IE S
(continued)

Lewis v. City of Chicago,
127 S. Ct. 2191 (2010).......................................17

Lilly v. Harris-Teeter Supermarket,
720 F.2d 326 (4th Cir. 1983)............................. 10

Lopez v. Metropolitan Life Insurance Co.,
930 F.2d 157 (2d Cir. 1991)..............................13

Lowery v. Circuit City Stores, Inc.,
158 F.3d 742 (4th Cir. 1998).................  12, 21-22

Madsen v. Women’s Health Center, Inc.,
512 U.S. 753 (1994)........................................  21

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)........................................  12

Melendez v. Illinois Bell Telephone Co.,
79 F.3d 661 (7th Cir. 1996)............................... 18

Munoz v. Orr,
200 F.3d 291 (5th Cir. 2000)............................  11

Nevada Department of Human Res. v. Hibbs,
538 U.S. 721 (2003)........................................  17

Obrey v. Johnson,
400 F.3d 691 (9th Cir. 2005)............................  11

Pegues v. Mississippi State Employment
Service, 899 F.2d 1449 (5th Cir. 1990)............  27



Vlll

Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843 (2001)...........................................25

Reed v. Arlington Hotel Co.,
476 F.2d 721 (8th Cir. 1973)............................. 32

Ricci v. DeStefano,
129 S. Ct. 2658 (2009)...................................... IV

Robinson v. Metro-North Commuter Railroad,
267 F.3d 147 (2d Cir. 2001).................  11, 13, 29

Robinson v. Shell Oil Co,
519 U.S. 337 (1997)...........................................  32

Rogers v. Paul,
382 U.S. 198 (1965).............................................. 5

Sellers v. Delgado Community College,
839 F.2d 1132 (5th Cir. 1988)........................... 27

Senter u. General Motors Corp.,
532 F.2d 511 (6th Cir. 1976)............................. 27

Shipes v. Trinity Industries,
987 F.2d 311 (5th Cir. 1993)............................. 10

St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993)...........................................  13

Stephen v. PGA Sheraton Resort, Ltd.,
873 F.2d 276 (11th Cir. 1989)..........................  18

T A B L E  O F  A U T H O R IT IE S
(continued)



IX

Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981).....................  11-12

United States v. Chicago,
549 F.2d 415 (7th Cir. 1977)............................. 16

United States v. City of New York,
683 F. Supp. 2d 225 (E.D.N.Y. 2010).............. 10

United States v. N.L. Industries, Inc.,
479 F.2d 354 (8th Cir. 1973)............................. 27

Walters v. Reno,
145 F.3d 1032 (9th Cir. 1998)........................... 30

Wang v. Chinese Daily News, Inc.,
623 F.3d 743 (9th Cir. 2010).............................27

Watson v. Fort Worth Bank & Trust,
487 U.S. 977 (1988)....................................6-7, 15

Wetzel v. Liberty Mutual Insurance Co.,
508 F.2d 239 (3d Cir. 1975)................  5-6, 27, 31

Wicker v. Hoppock,
73 U.S. 94 (1867)...............................................  25

Docketed  Cases

Butler v. Home Depot, Inc.,
No. 3:94-cv-4335
(N.D. Cal. Jan. 14, 1998)............................  19-20

T A B L E  O F  A U T H O R IT IE S
(continued)



X

Davis v. Eastman Kodak Co.,
Nos. 6:04-cv-6098, 6:07-cv-6512
(W.D.N.Y. Sept. 3, 2010)...................................19

EEOC v. Abercrombie & Fitch,
No. 3:04-cv-04731-SI
(N.D. Cal. Nov. 8, 2004)....................................  19

Gonzalez v. Abercrombie & Fitch Stores, Inc.,
Nos. 3:04-cv-2817, 3:04-cv-4730, 3:04-cv-4731 
(N.D. Cal. Apr. 15, 2005).................................. 19

In re Indus. Life Ins. Litig.,
No. 1371 (E.D. La. Jan 11, 2006)....................  31

Satchell v. FedEx Corp.,
Nos. 3:03-cv-2659, 3:03-cv-2878
(N.D. Cal. Aug. 14, 2007)..................................  19

Statutes and  Rules

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17................................................................4

42 U.S.C. § 2000e-6....................................................8

42 U.S.C. § 2000e-2(k)..............................................16

42 U.S.C. § 2000e-2(k)(l)(A)(i)........................ 13, 16

42 U.S.C. § 2000e-2(k)(l)(A)(ii)............................... 16

T A B L E  O F  A U T H O R IT IE S
(continued)



XI

42 U.S.C. § 2000e-5(g)............................................. 26

42 U.S.C. § 2000e-5(g)(2)(B)................................... 18

Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 (1991) (codified at 42 U.S.C.
§ 1981a)............................................................. 25

Americans with Disabilities Act of 1990, 42
U.S.C. § 12117(a)................................................. 7

29 C.F.R. § 1607.4.A................................................ 23

T A B L E  O F  A U T H O R IT IE S
(continued)

Legislative Materials

S. Rep. No. 92-415 (1971), reprinted in 
Subcommittee on Labor of the Senate 
Committee on Labor and Public Welfare, 
Legislative History of the Equal 
Opportunity Act of 1972 (1972) ........................ 7

H.R. Rep. No. 92-238,), reprinted in 
Subcommittee on Labor of the Senate 
Committee on Labor and Public Welfare, 
Legislative History of the Equal 
Opportunity Act of 1972 (1972).............  9, 22, 23

Other A uthorities

Fed. R. Civ. P. 23 advisory committee’s note,
39 F.R.D. 69 (1966)................................... 4, 5, 30



X ll

Miriam Hechler Baer, Corporate Policing and

T A B L E  O F A U T H O R IT IE S
(continued)

Corporate Governance: What Can We 
Learn From Hewlett-Packard’s 
Pretexting Scandal?, 77 U. Cin. L. Rev.
523 (2008)...........................................................20

Elizabeth Bartholet, Application of Title VII 
to Jobs in High Places, 95 Harv. L. Rev.
945 (1982)...........................................................  18

Robert Belton, A Comparative Review of 
Public and Private Enforcement of Title 
VII of the Civil Rights Act of 1964, 31 
Vand. L. Rev. 905 (1978)..................................... 7

Robert L. Carter, The Federal Rules of Civil 
Procedure as a Vindicator of Civil Rights,
137 U. Pa. L. Rev. 2179 (1989)............................6

Tristin K. Green, Targeting Workplace 
Context: Title VII as a Tool for 
Institutional Reform, 72 Fordham L. Rev.
659 (2003)..........................................................  22

Melissa Hart, Subjective Decisionmaking and 
Unconscious Discrimination, 56 Ala. L.
Rev. 741 (2005).................................................  10

Nancy Levitt, Megacases, Diversity, and the 
Elusive Goal of Workplace Reform,
49 B.C. L. Rev 367 (2008)........................ 20



X lll

Barbara T. Lindemann & Paul Grossman, 
Employment Discrimination Law (4th ed.
2007)...................................................9, 13, 18, 26

Note, Certifying Class and Subclasses in 
Title VII Suits, 99 Harv. L. Rev.
619 (1986)....................................................  12, 19

Alba Conte & Herbert Newberg, Newberg on
Class Actions (4th ed. 2002)...............................6

Petition for Rehearing En Banc, Dukes v. Wal- 
Mart Stores, Inc. Nos. 04-16688 & 04- 
16720, (9th Cir. Feb. 20, 2007)........................ 29

Hon. Jack B. Weinstein, et al., Some
Reflections on the “Abusiveness” of Class 
Actions, 58 F.R.D. 299 (1973)

T A B L E  O F  A U T H O R IT IE S
(continued)

22



INTEREST OF AMICI CURIAE1
Amici NAACP Legal Defense & Educational 

Fund, Inc., National Association for the 
Advancement of Colored People, Leadership 
Conference on Civil and Human Rights, AARP, 
Disability Rights Education and Defense Fund, Inc., 
LatinoJustice PRLDEF, Asian American Justice 
Center, Asian Law Caucus, and Lawyers’ Committee 
for Civil Rights Under Law are non-profit 
organizations dedicated to, among other goals, 
eradicating workplace discrimination and addressing 
workplace conditions that affect racial and ethnic 
minorities, women, older workers, and those with 
disabilities.

More details about individual amici are included 
in the Addendum.

SUMMARY OF ARGUMENT
Title VII jurisprudence has consistently 

recognized that class treatment of claims alleging 
pervasive and systemwide discrimination is often the 
best, and sometimes the only, way to ensure effective 
resolution of claims of workplace civil rights 
violations. Taken together, Title VII and Rule 
23(b)(2) provide a mechanism for the fair and 
efficient adjudication of claims similarly affecting

1 Pursuant to Supreme Court Rule 37.6, counsel for amici 
state that no counsel for a party authored this brief in whole or 
in part, and that no person other than amici, its members, or 
its counsel made a monetary contribution to the preparation or 
submission of this brief. The parties have filed blanket consent 
letters with the Clerk of the Court pursuant to Supreme Court 
Rule 37.3.



2

large classes of individuals. The statute and Rule 
have a long history of working in tandem to address 
the congressional purpose of eradication of 
discrimination in the workplace.

As explained in detail in Plaintiffs’ brief, Wal- 
Mart seeks to resist class treatment by imposing a 
series of heightened standards on Plaintiffs’ claims, 
above and beyond the appropriate and rigorous 
review conducted by the district court. Such 
heightened standards are inconsistent with the 
purposes of the Rule, and would dramatically narrow 
the circumstances in which the class action vehicle 
could be used, regardless of the extent and scope of 
the underlying discriminatory conduct. Considered 
separately, each of the proposed interpretations of 
Rule 23 is legally tenuous. But when viewed 
collectively, Wal-Mart’s stance would unnecessarily 
constrict access to the class action as a viable vehicle 
for challenging broad-scale discrimination, contrary 
to congressional intent and well-established practice 
and precedent.

In this case, perhaps the most serious threat to 
the continued salience of the class action vehicle for 
employment discrimination claims is Wal-Mart’s 
novel argument that back pay is entirely 
inconsistent with (b)(2) certification. Wal-Mart’s 
reading of Rule 23 would effectively force plaintiffs 
to choose between maintaining a viable class action 
and seeking make whole relief. Significantly, this is 
not merely an academic exercise about the 
appropriate subsection of the rule under which to 
seek certification: Wal-Mart argues that Plaintiffs’ 
claims cannot go forward as a class under either 
(b)(2) or (b)(3).



3

In this brief amici explain some of the important 
consequences of Wal-Mart’s approach to class 
certification. First, Wal-Mart’s arguments conflict 
with decades of precedent as to the applicability of 
(b)(2) certification to employment discrimination 
cases, including those that challenge discrimination 
conducted through excessively subjective 
decisionmaking. Indeed, hampering discrimination 
victims’ ability to proceed on a classwide basis would 
gravely undermine two well-established theories of 
liability under Title VII—pattern-or-practice and 
disparate impact—both of which are essential tools 
in eradicating broad-scale discrimination of the sort 
alleged here. Both types of class actions allow 
plaintiffs broader access to the evidence necessary 
for careful judicial evaluation of systemic patterns of 
discrimination and, where appropriate, the remedies 
necessary to eradicate them.

Second, Wal-Mart’s proposal to limit (b)(2) classes 
to those plaintiffs who request exclusively injunctive 
relief conflicts with decades of judicial precedent and 
with congressional intent. Back pay is a 
presumptively available remedy for victims of job 
discrimination, is integral to full equitable relief, and 
is uniformly available in (b)(2) class actions. This 
Court need not decide whether punitive damages are 
consistent with (b)(2) certification in the instant case 
because the Ninth Circuit vacated and remanded 
that issue for a factual determination by the district 
court in the first instance.

Finally, Wal-Mart’s assertion that the question of 
whether injunctive relief predominates can be 
answered by calculating the number of former 
employees in the class is contrary to logic and case



4

law, and would create perverse incentives for 
employers.

This Court should reject Wal-Mart’s invitation to 
refashion Rule 23 and affirm the Ninth Circuit’s 
decision to certify the plaintiff class.

ARGUMENT
I. Class actions of the kind at issue here play a

vital role in the enforcement of Title VII.
The “central statutory purposes” of Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. §§2000e to 
2000e-17, are “eradicating discrimination 
throughout the economy and making persons whole 
for injuries suffered through past discrimination.” 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 
(1975). Private class actions play a vital role in 
achieving these purposes. In the instant case, 
Plaintiffs seek only a fair opportunity to vindicate 
their rights through the proper enforcement of Title 
VII. Class treatment is necessary for this goal to be 
achieved.

A. Civil rights cases are paradigmatic cases 
for Rule 23(b)(2) certification.

The case at bar, aimed at redressing systemic 
discrimination, fits comfortably within the Rule 
23(b)(2) civil rights class action paradigm. The 
Advisory Committee’s Note to Rule 23 recognizes 
that civil rights class actions seeking injunctive and 
other relief to end invidious discrimination are 
paradigmatic cases for (b)(2) certification. Fed. R. 
Civ. P. 23 advisory committee’s note, reprinted in 39 
F.R.D. 69, 102 (1966) [hereinafter Advisory



5

Committee Note]. The Note cites eight class action 
lawsuits as illustrative of the principal category of 
cases intended to be certified under this subsection, 
each of which was brought on behalf of a class of 
African Americans and other minorities to eradicate 
intentional race discrimination.2 See id. Both before 
and after the 1966 Amendments, this Court has 
recognized the particular suitability of anti- 
discrimination suits for class action treatment. See, 
e.g., Amchem Prods., Inc., v. Winsdor, 521 U.S. 591, 
614 (1997) (recognizing that civil rights cases 
alleging class-based discrimination are “prime 
examples” of appropriate (b)(2) cases); E. Texas 
Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 
405 (1977) (“We are not unaware that suits alleging 
racial or ethnic discrimination are often by their 
very nature class suits, involving classwide 
wrongs.”); Rogers v. Paul, 382 U.S. 198, 199 (1965).

Courts have also frequently invoked the Advisory 
Committee’s Note in holding that this subsection is 
suitable for class certification of Title VII cases 
specifically. See, e.g., Kyriazi v. W. Elec. Co., 647 
F.2d 388, 393 (3d Cir. 1981) (explaining that a Title 
VII class action seeking relief for systemic 
discrimination is “the paradigm of a Rule 23(b)(2) 
class action”); Wetzel v. Liberty Mut. Ins. Co., 508

2 Wal-Mart’s contention that the Rule’s citation to 
desegregation cases alone indicates that employment 
discrimination cases are disfavored for class treatment is 
unpersuasive. Pet. Br. 48. As Plaintiffs properly point out, the 
Advisory Committee’s Note to Rule 23 was drafted prior to the 
passage of Title VII, meaning no case law existed from which to 
cite. Resp. Br. 51-52. As we explain above, the assertion is also 
contrary to experience.



6

F.2d 239, 250 (3d Cir. 1975) (“[A] Title VII action is 
particularly fit for (b)(2) treatment, and the drafters 
of Rule 23 specifically contemplated that suits 
against discriminatory hiring and promotion policies 
would be appropriately maintained under (b)(2).”); 
see also 8 Alba Conte & Herbert B. Newberg, 
Newberg on Class Actions §24:81, at 315 (4th ed. 
2002) (“The aptness of designating employment 
discrimination suits as class actions under Rule 
23(b)(2) has been recognized repeatedly and 
definitively by courts.”). Indeed, Title VII and Rule 
23(b)(2) work in tandem: “[The two] should be 
construed so as to further the strong public policy of 
eradicating all vestiges of racial discrimination in 
employment.” Holmes v. Cont’l Can Co., 706 F.2d 
1144, 1152 (11th Cir. 1983).

In bringing suit under Title VII, “the private 
litigant not only redresses his own injury but also 
vindicates the important congressional policy 
against discriminatory employment practices.” 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 
(1974). This principle applies a fortiori when private 
plaintiffs pursue class actions to challenge broadly 
applicable policies and practices of discrimination 
and seek classwide relief. See, e.g., Robert L. Carter, 
The Federal Rules of Civil Procedure as a Vindicator 
of Civil Rights, 137 U. Pa. L. Rev. 2179, 2184 (1989) 
(describing the “special dependence of civil rights 
(and other public rights) litigation on the device of 
the class action”). Accordingly, class actions have 
led to many of the key employment discrimination 
precedents that invigorated enforcement of Title VII. 
See, e.g., Int’l Union v. Johnson Controls, Inc., 499 
U.S. 187 (1991); Watson v. Fort Worth Bank & Trust,



7

487 U.S. 977 (1988); Albemarle Paper Co., 422 U.S. 
405; Griggs v. Duke Power Co., 401 U.S. 424 (1971); 
see also Robert Belton, A Comparative Review of 
Public and Private Enforcement of Title VII of the 
Civil Rights Act of 1964, 31 Vand. L. Rev. 905, 932- 
47 (1978).

Congress too has continuously recognized the 
importance of class actions to the enforcement of 
Title VII.3 For example, in 1972, when Title VII was 
amended by the Equal Employment Opportunity 
Act, proposals to abolish class actions or to restrict 
their scope in Title VII cases were rejected. As the 
Senate Report stated: “This section [706] is not 
intended in any way to restrict the filing of class 
complaints. The committee agrees with the courts 
that Title VII actions are by their very nature class 
complaints, and that any restriction on such actions 
would greatly undermine the effectiveness of Title 
VII.” S. Rep. No. 92-415, at 27 (1971), reprinted in 
Subcomm. on Labor of the S. Comm, on Labor and 
Pub. Welfare, Legislative History of the Equal 
Opportunity Act of 1972, at 436 (1972) [hereinafter 
Legislative History].

3 Title VII remedies and procedures have also been 
explicitly incorporated into other major federal civil rights 
statutes, giving the availability of Title VII class action 
remedies even broader significance. See, e.g., Americans with 
Disabilities Act of 1990, 42 U.S.C. §12117(a) (incorporating 
Title VII remedies into the Americans with Disabilities Act of 
1990, which provides nondiscrimination protection to 
individuals with disabilities).



8

B. Plaintiffs’ claims must proceed as a class 
action to allow proper judicial 
evaluation of, and, if appropriate,
remedies for the broad-scale 
discrimination they allege.

Plaintiffs have alleged in great detail a broad 
pattern of discrimination that begins in Wal-Mart’s 
Home Office and affects female employees in stores 
throughout its network. Appropriately, therefore, 
Plaintiffs put forth two well-established legal 
theories that are uniquely suited to addressing this 
type of broad-scale discrimination. Limiting the 
availability of the class action vehicle will inevitably 
constrain courts’ ability to properly resolve
allegations of the pervasive type of discrimination at 
issue here. Class treatment is essential in this 
instance to give thousands of female employees a fair 
opportunity for vindication of their substantive 
rights under Title VII.

1. The pattern-or-practice discrimination 
claim alleged by Plaintiffs requires class 
treatment for proper resolution.

Plaintiffs here allege disparate treatment on a 
systemic basis. For decades, this pattern-or-practice 
framework4—first established by this Court in

4 Title VII explicitly empowers the Attorney General to 
bring a civil action whenever he or she “has reasonable cause to 
believe that any person or group of persons is engaged in a 
pattern or practice” of discrimination. 42 U.S.C. § 2000e-6. 
Although Title VII endows only the government with such 
technical “pattern-or-practice” authority, it is commonplace for 
courts and parties to refer to disparate treatment suits brought 
on a classwide basis as “pattern-or-practice” cases. See, e.g., 
Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876



9

Franks v. Bowman, 424 U.S. 747 (1976), and further 
developed in International Brotherhood of Teamsters 
v. United States, 431 U.S. 324 (1977)—has been 
recognized by courts as an essential tool in 
combating pervasive workplace discrimination and 
providing “make whole relief’ to large groups of 
victims.5 See Teamsters, 431 U.S. at 336 n.16 
(observing the necessity of pattern-or-practice 
litigation to address discrimination that is “repeated, 
routine or of a generalized nature”); see also Shell 
Oil Co., 466 U.S. at 69 (noting that the pattern-or- 
practice model is “essential if the purposes of Title

(1984); Bell v. EPA, 232 F.3d 546, 553 (7th Cir. 2000); Barbara 
T. Lindemann & Paul Grossman, 1 Employment Discrimination 
Law 104 (4th ed. 2007) [hereinafter Lindemann & Grossman].

5 Congress too has recognized the particular problem of 
systemwide discrimination, and the difficulty of attacking it. 
As the House Committee reported, in considering the 1971 
amendments to Title VII: “Pattern or practice discrimination is 
a pervasive and deeply imbedded form of discrimination. 
Specific acts or incidents of discrimination . . . are frequently 
symptomatic of a pattern or practice which Title VII seeks to 
eradicate.” H.R. Rep. No. 92-238, at 14 (1971), reprinted in 
Legislative History, at 74. So important was this theory of 
liability that Congress granted the EEOC authority to 
prosecute such cases because “ [ujnrelenting broad-scale action 
against patterns or practices of discrimination is . . . critical in 
combating employment discrimination.” Id.; see also EEOC v. 
Shell Oil Co., 466 U.S. 54, 69 (1984) (“Congress was aware that 
employment discrimination was a ‘complex and pervasive’ 
problem that could be extirpated only with thoroughgoing 
remedies.” (citation omitted)). But as the Supreme Court 
subsequently observed, Congress still considered the private 
litigant “a ‘private attorney general,’ whose role in enforcing 
the ban on discrimination is parallel to that of the Commission 
itself.” EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602 
(1981) (citation omitted).



10

VII [are] to be achieved”). It continues to be 
necessary for those purposes, particularly where, as 
here, the alleged discriminatory practices are 
ongoing and pervasive. See, e.g., United States v. 
City of New York, 683 F. Supp. 2d 225, 232- 
33 (E.D.N.Y. 2010) (finding a pattern-or-practice of 
discrimination in the New York City fire 
department).

Moreover, this Court has endorsed the use of the 
pattern-or-practice framework to address hiring and 
promotion processes based on excessively subjective 
criteria. See Gen. Tel. Co. of the Sw. v. Falcon, 457 
U.S. 147, 159 n.15 (1982); Hazelwood Sch. Dist. v. 
United States, 433 U.S. 299, 301, 303 (1977). 
Classwide evaluation of such decisionmaking 
processes makes sense where, as here, an employer 
is structured and administered in such a fashion 
that the challenged employment practices are likely 
to have an impact throughout the class. See Lilly v. 
Harris-Teeter Supermarket, 720 F.2d 326, 331-33 
(4th Cir. 1983) (upholding (b)(2) certification of 
challenge to excessively subjective decisionmaking 
process); Shipes v. Trinity Indus., 987 F.2d 311, 316 
(5th Cir. 1993) (same). The class action device 
allows for consideration of overly subjective decisions 
in the aggregate, which may reveal a pattern of 
discrimination. See Melissa Hart, Subjective 
Decisionmaking and Unconscious Discrimination, 56 
Ala. L. Rev. 741, 788 (2005).

In any pattern-or-practice class action, the 
plaintiff bears the initial burden at the liability 
phase of demonstrating “that unlawful 
discrimination has been the regular procedure or 
policy followed by an employer or group of



11

employers.” Teamsters, 431 U.S. at 360. If the 
plaintiff meets this high burden, it establishes a 
presumption that “any particular employment 
decision, during the period in which the 
discriminatory policy was in force, was made in 
pursuit of that policy,” thus shifting the burden of 
persuasion to the defendant employer. Id. at 362. 
This is as it should be: “No reason appears . . . why 
the victim rather than the perpetrator of the illegal 
act should bear the burden of proof on this issue.”6 
Franks, 424 U.S. at 772 n.32.

Teamsters makes clear that because pattern-or- 
practice cases involve a distinct type of 
discrimination, the inquiry is correspondingly 
distinct from that in an individual case. Teamsters, 
431 U.S. at 357. A court’s chief role in a pattern-or- 
practice case is to determine whether discrimination 
is the employer’s standard operating procedure, 
rather than to parse the motives behind individual 
employment decisions. Id. at 360 & n.46. In 
contrast, in an individual case, even if patterns of 
discrimination are shown to exist, the individual 
plaintiff must also prove that a particular adverse 
employment decision was motivated by

6 The Teamsters framework is well-established law that has 
been endorsed and utilized by federal courts for decades. See, 
e.g., Bazemore v. Friday, 478 U.S. 385, 398 (1986); Obrey v. 
Johnson, 400 F.3d 691, 694 (9th Cir. 2005); Hall u. Alabama 
Ass’n of Sch. Bds., 326 F.3d 1157, 1171 (11th Cir. 2003); 
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 
(2d. Cir. 2001); EEOC v. United Ass’n of Journeymen, 235 F.3d 
244, 251 (6th Cir. 2000); Munoz v. Orr, 200 F.3d 291, 299 (5th 
Cir. 2000).



12

discriminatory intent.7 See Texas Dep’t of Cmty. 
Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
802-05 (1973). This individual method of proof is 
appropriate for evaluating isolated instances of bias, 
but is ill-suited to uncover a pattern of 
discrimination. The pattern-or-practice framework 
not only allows, but requires courts to step back and 
assess the universe of an employer’s actions as a 
whole; only through this broader lens can 
widespread discrimination be uncovered and 
evaluated.

The pattern-or-practice framework is strongly 
tied to the class action vehicle. This Court first 
elucidated this important framework in the context 
of a (b)(2) class action, Franks, 424 U.S. at 747, and 
today, the prosecution of such claims often depends 
on certification of a class. Although this Court has 
never held that individual plaintiffs cannot utilize 
the Teamsters framework, several circuit courts have 
indeed so concluded. See, e.g., Davis v. Coca-Cola 
Bottling Co. Consol, 516 F.3d 955, 968-69 (11th Cir. 
2008); Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 
565, 575 (6th Cir. 2004); Celestine v. Petroleos de 
Venezuella SA, 266 F.3d 343, 355-56 & n.4 (5th Cir. 
2001); Lowery v. Circuit City Stores, Inc., 158 F.3d 
742, 759 (4th Cir. 1998), vacated on other grounds, 
527 U.S. 1031 (1999).

7 “In a time when overt acts of employment discrimination 
are relatively rare— when discrimination takes more subtle if 
no less invidious forms—such a showing is extremely difficult 
to make.” Note, Certifying Class and Subclasses in Title VII 
Suits, 99 Harv. L. Rev. 619, 628 (1986) [hereinafter Note].



13

Even evidence indicating a pattern of 
discrimination has been considered by some courts to 
be inadmissible, or of limited relevance, in a case 
brought by an individual plaintiff. See, e.g., Carman 
v. McDonnell Douglas Corp., 114 F.3d 790, 792 (8th 
Cir. 1997). In particular, statistical evidence 
demonstrating an employer’s discriminatory conduct 
toward a class of employees is considered “rarely 
determinative” and sometimes irrelevant when the 
suit is not a class action. See 1 Lindemann & 
Grossman 79; see also Adreani v. First Colonial 
Bankshares Corp., 154 F.3d 389, 400 (7th Cir. 1998); 
Robinson, 267 F.3d at 158 n.5. By contrast, pattern- 
or-practice theory allows courts to take legal 
cognizance of the fact that statistical disparities are 
often indicative of institutional, pervasive, and 
sometimes relatively covert discrimination.8 See 
Hazelwood, 433 U.S. at 307-08 (1977) (observing

8 This is not to say that statistical disparities alone require 
the conclusion that an employer is using a discriminatory 
policy. Courts have rejected that view and amici do not press it 
here. See, e.g., Lopez v. Metro. Life Ins. Co., 930 F.2d 157, 161 
(2d Cir. 1991), overruled on other grounds by, St. Mary’s Honor 
Ctr. v. Hicks, 509 U.S. 502 (1993); Am. Fed’n of State, Cnty., & 
Mun. Employees v. Washington, 770 F.2d 1401, 1407 (9th Cir. 
1985). Certainly, statistical disparities may exist for benign or 
legitimate reasons. And both the pattern-or-practice and the 
disparate impact evidentiary frameworks allow employers the 
opportunity to explain any such disproportionalities. 42 U.S.C. 
§2000e-2(k)(l)(A)(i) (employer has the opportunity to 
“demonstrate that the challenged practice is job related for the 
position in question and consistent with business necessity”); 
Hazelwood, 433 U.S. at 308-09 (employer may challenge 
statistical proof offered or suggest other explanation for the 
apparent statistical anomaly).



14

that “[w]here gross statistical disparities can be 
shown, they alone may in a proper case constitute 
prima facie proof of a pattern or practice of 
discrimination”); Teamsters, 431 U.S. at 340 (noting 
that statistical evidence is often “the only available 
avenue of proof . . .  to uncover clandestine and covert 
discrimination by the employer”).

Plaintiffs here have demonstrated that women 
throughout Wal-Mart’s stores were paid significantly 
less than men, J.A. 518a-519a, and that “a 
statistically significant shortfall of women [were] 
being promoted into each of the in-store
management classifications over the entire class 
period,” App. 212a. Only if Plaintiffs here can 
proceed on a classwide basis, allowing a challenge to 
Wal-Mart’s entire system of pay and promotion, is 
the larger picture likely to be considered legally 
relevant.

Wal-Mart would eliminate this well-established 
method of proof, requiring instead that systemic 
discrimination cases be litigated for both liability 
and remedies on an individual-by-individual basis. 
Plaintiffs would be required to prove that “the 
motive for every single discretionary pay and 
promotion decision affecting every single class 
member was discriminatory.” Pet Br. 40 (emphasis 
in original). This is contrary to the very essence of a 
pattern-or-practice claim in which the relevant 
question at the liability stage is whether 
discrimination was the employer’s “standard 
operating procedure,” Teamsters, 431 U.S. at 336, 
and “individually applicable evidence cannot serve 
as a justification for the denial of relief to the entire 
class.” Franks, 424 U.S. at 772 (emphasis added);



15

see also Cooper, 467 U.S. at 876 (observing that in “a 
pattern-or-practice trial the focus often will not be on 
individual hiring decisions, but on a pattern of 
discriminatory decisionmaking”) (quoting Teamsters, 
431 U.S. at 360 n.46). If Wal-Mart’s argument is 
accepted, no disparate treatment class action where 
plaintiffs’ individual claims for relief differed, even 
minimally, in merit or value could ever be certified, 
and the entire concept of the pattern-or-practice 
claim would be upended. Wal-Mart’s position, 
advocating for heightened standards for certifying 
these claims as a class, would undermine the role of 
pattern-or-practice suits in the private enforcement 
of Title VII, as well as other laws—federal, state, 
and municipal—that follow Title VII precedent.

2. Wal-Mart’s arguments threaten to 
undermine the viability of disparate 
impact claims in addressing systemic 
workplace discrimination.

Plaintiffs also allege that Wal-Mart’s excessively 
subjective decisionmaking practices cause a 
disparate impact on female employees. More than 
twenty years ago, this Court removed any doubt that 
Title VII reaches this kind of practice under 
disparate impact theory. Watson, 487 U.S. at 990- 
91.

Disparate impact theory goes to the purpose of 
Title VII itself, which “proscribes not only overt 
discrimination but also practices that are fair in 
form, but discriminatory in operation.”9 Griggs, 401

9 Title VII’s disparate impact provisions prohibit 
employment practices that operate to discriminate on a 
prohibited basis even where such practices are not motivated



16

U.S. at 431. Disparate impact suits—which 
challenge facially-neutral policies that 
disproportionately disadvantage members of a 
protected group—“by their very nature implicate 
class-based claims.” Allison v. Citgo Petroleum 
Corp., 151 F.3d 402, 409 (5th Cir. 1998); accord 
United States v. Chicago, 549 F.2d 415, 427 (7th Cir. 
1977). Indeed, the disparate impact theory of 
liability—first articulated by this Court, and later 
codified by Congress—relies exclusively on class- 
based inquiries. Griggs, 401 U.S. at 426; 42 U.S.C. 
2000e-2(k). The initial showing, for example, 
requires statistical evidence demonstrating the 
disproportionate effect of an employment practice on 
members of a protected group as a whole. Thus all 
members of the protected group are implicated, and 
no individualized facts or decisions are considered. 
See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 329 
(1977); Griggs, 401 U.S. at 426. After the plaintiff 
meets that initial burden, the employer must show 
proof of business necessity. 42 U.S.C. §2000e- 
2(k)(l)(A)(i). Should the employer make that 
showing, the plaintiff may demonstrate that the 
employer could have used a less discriminatory 
alternative. Id. at §2000e-2(k)(l)(A)(ii). Both these

by discriminatory intent. See 42 U.S.C. 2000e-2(k); Griggs, 401 
U.S. at 426 n.l, 433-36. Because Congress intended for Title 
VII to reach the consequences of employment practices, rather 
than just the motivations underlying them, the “absence of 
discriminatory intent does not redeem employment procedures 
or testing mechanisms that operate as built-in headwinds” for 
protected groups. Id. at 432 (internal quotation marks 
omitted).



17

inquiries also go generally to the employer’s conduct 
and its effect classwide.

Unsurprisingly then, use of the (b)(2) class action 
to bring disparate impact claims has been essential 
to efforts at combating widespread, institutional 
discrimination. See, e.g., Lewis v. City of Chicago, 
127 S. Ct. 2191 (2010); Griggs, 401 U.S. 426; see also 
Bacon, 370 F.3d at 576 (noting that disparate impact 
analysis usually arises in the class action context). 
Such litigation continues to be essential to the 
eradication of employment discrimination, 
particularly as obstacles to fair workplaces are often 
covert and thus harder to identify and resolve 
through disparate treatment theory. See Nev. Dept 
of Human Res. v. Hibbs, 538 U.S. 721, 730 (2003) (“It 
can hardly be doubted that . . . women still face 
pervasive, although at times more subtle, 
discrimination . . .  in the job market.” (quoting 
Frontiero v. Richardson, 411 U.S. 677, 686 (1973)) 
(internal quotation marks and brackets omitted)); 
Ricci v. DeStefano, 129 S. Ct. 2658, 2696 (2009) 
(Ginsburg J., dissenting) (“More subtle—and 
sometimes unconscious—forms of discrimination 
replaced once undisguised restrictions.”).

Restricting the reach of 23(b)(2) class actions— 
by, inter alia, limiting their certification to instances 
where monetary relief is not requested—contravenes 
the structure and purpose of disparate impact 
theory, as first conceived by this Court. An 
individual plaintiff is not the most logical vehicle for 
dismantling class-based “built-in headwinds”—the 
goal of a disparate impact claim. When an 
individual brings suit under this theory, the court’s 
focus changes from the overall impact of the practice



18

to the individual employment decision: The plaintiff 
must show not only that the employment practice in 
question negatively impacted a protected class as a 
whole, but that “the allegedly discriminatory 
practice directly resulted in harm to him or her.”10 
See 1 Lindemann & Grossman 111 n.8; accord Coe v. 
Yellow Freight System, Inc., 646 F.2d 444, 451 (10th 
Cir. 1981) (“Where the disparate impact doctrine has 
been used by the courts in individual actions rather 
than class actions, a plaintiff has been required to 
show that he personally has been the victim of 
discrimination by the general practice . . . 
Melendez v. Ill Bell Tel. Co., 79 F.3d 661, 668 (7th 
Cir. 1996). Accordingly, courts frequently dismiss 
individual disparate impact cases at the liability 
stage despite evidence of a classwide adverse 
impact.11 See, e.g., Bacon, 370 F.3d at 577 
(“Whatever the validity of [plaintiffs] disparate 
impact claims . . .  we agree with the district court 
that the plaintiffs cannot show that the policies 
injured them personally, and therefore their claim 
must fail.”); Stephen v. PGA Sheraton Resort, 
Ltd., 873 F.2d 276, 279 (11th Cir. 1989) (holding that 
even if the plaintiff s proof showed disparate impact,

10 This inquiry is separate and apart from the “same 
decision” affirmative defense, which applies at the remedy 
phase to prohibit courts from awarding individual remedies, 
such as reinstatement or back pay, to plaintiffs who were 
subject to an adverse employment decision for reasons other 
than discrimination. 42 U.S.C. §2000e-(5)(g)(2)(B).

11 Individual disparate impact cases may actually require 
more intrusion on an employer’s prerogatives than a class- 
based suit, where specific decisions need not be scrutinized at 
the liability stage. See Elizabeth Bartholet, Application of Title 
VII to Jobs in High Places, 95 Harv. L. Rev. 945, 1002 (1982).



19

that impact did not relate to this particular plaintiff 
who was terminated for a legitimate reason); Coe, 
646 F.2d at 451. “In both adverse-impact and 
disparate-treatment cases, then, the difference 
between the success and the failure of a valid claim 
is often the difference between a class action and an 
individual suit.” Note, 99 Harv. L. Rev. at 628 
(emphasis added).

3. Classwide treatment of both the disparate 
impact and the pattern-or-practice claims 
alleged here is necessary for Plaintiffs to 
obtain a just outcome.

Both the pattern-or-practice and the disparate 
impact causes of action play vital roles in the 
enforcement of Title VII. Each type of class action 
is well-suited to combat institutional and ingrained 
discrimination in the modern workplace. 
Increasingly, the most serious instances of alleged 
employment discrimination involve large corporate 
entities whose reach extends across multiple states 
and regions.12 Although large corporations

12 See, e.g., Davis v. Eastman Kodak Co., Nos. 6:04-cv-6098, 
6:07-cv-6512 (W.D.N.Y. Sept. 3, 2010) (approving class
settlement on behalf of over 3,000 current and former African- 
American employees); Satchell v. FedEx Corp., Nos. 3:03-cv- 
2659, 3:03-cv-2878 (N.D. Cal. Aug. 14, 2007) (approving class 
settlement on behalf of 20,000 African-American and Latino 
employees); Gonzalez v. Abercrombie & Fitch Stores, Inc., Nos. 
3:04-cv-2817, 3:04-cv-4730, 3:04-cv-4731 (N.D. Cal. Apr. 15, 
2005) (approving consent decree settling claims of systemic 
discrimination against Latino, African-American, Asian- 
American, and female applicants and employees); Ingram v. 
Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) (approving class 
settlement on behalf of 2,200 current and former African- 
American employees); Butler v. Home Depot, Inc., No. 3:94-cv-



2 0

frequently function through the operation of semi­
independent branches, corporate uniformity can be 
imposed through the maintenance of a company­
wide corporate culture and standardized workplace 
policies and practices. Miriam Hechler Baer, 
Corporate Policing and Corporate Governance: What 
Can We Learn From Hewlett-Packard’s Pretexting 
Scandal?, 77 U. Cin. L. Rev. 523, 549 (2008) (noting 
that some commentators urge the adoption of 
“mechanisms” that would encourage the creation 
and maintenance of a single “corporate culture 
across the firm”); Nancy Levitt, Megacases, 
Diversity, and the Elusive Goal of Workplace Reform, 
49 B.C. L. Rev 367, 417 (2008) (observing that 
“CEOs have enormous influence” in producing and 
changing corporate cultures). Therefore, the core 
purposes of Title VII can be realized only if 
discriminatory company-wide policies and practices 
are challenged at their source. See id. at 417-29. 
Class-based claims offer significant advantages in 
achieving this goal.

First, class-based discrimination claims allow for 
the formulation of broader remedies that have a 
realistic chance of reforming workplace practices. In 
the Title VII context, a (b)(2) class provides the 
vehicle for a generally applicable and efficient 
classwide remedy, resulting in cessation of the 
discriminatory practice and, where appropriate, 
additional equitable remedies for class members. 
This is particularly true in cases where the harm is

4335 (N.D. Cal. Jan. 14, 1998) (approving consent decree on 
behalf of 17,000 current and former female employees and 
200,000 unsuccessful applicants).



21

extraordinarily widespread and ingrained. In this 
case, Plaintiffs have introduced into evidence 
statistics showing that Wal-Mart’s female employees 
are paid less than male employees in virtually every 
job category in every one of Wal-Mart’s regions, 
despite the fact that female employees on average 
have greater seniority and higher performance 
scores. J.A. 518a-519a. Moreover, it is a matter of 
record that Wal-Mart’s own Executive Vice President 
for People regularly reported that it lagged 
“significantly behind” its competitors in the 
advancement of women in management. J.A. 408a. 
If proven, these systemic harms will require a 
comprehensive and universal solution.

Absent class certification, courts often refrain 
from granting relief that extends beyond the harms 
suffered by the individual plaintiffs. See Madsen v. 
Womens Health Ctr., Inc., 512 U.S. 753, 765 (1994) 
(“[Ijnjunctive relief should be no more burdensome to 
the defendant than necessary to provide complete 
relief to the plaintiffs.”); Califano v. Yamasaki, 442 
U.S. 682, 702 (1979) (“[T]he scope of injunctive relief 
is dictated by the extent of the violation 
established.”). In this case, where Plaintiffs have 
claimed pervasive and systematic gender 
discrimination by the nation’s largest private 
employer, relief granted to an individual plaintiff, or 
even a small group of plaintiffs, would be 
inadequate. Class treatment empowers courts to 
craft relief appropriate to the extent of the identified 
problem. See Albemarle Paper Co., 422 U.S. at 418 
(1975).

The difficulty of obtaining meaningful relief as an 
individual is real. For example, in Lowery v. Circuit



2 2

City Stores, a unanimous jury found that Circuit 
City had engaged in a pattern or practice of racial 
discrimination, and the district court ordered broad 
injunctive relief, including the creation of new 
procedures to ensure nondiscriminatory promotion. 
158 F.3d at 755-56. On appeal, the Fourth Circuit 
held that because the trial court had declined to 
certify a class, the Teamsters framework was 
inapplicable. The court promoted one of the named 
plaintiffs, but vacated all other equitable relief, 
including an injunction requiring the employer 
merely to promote employees “without regard to 
their race.” Id. at 766-67. Here, the lack of class 
certification forced the court to disregard a finding of 
pervasive discrimination, thwarting the plaintiffs’ 
effort to fully vindicate the purposes of Title VII.

Unlike most individual suits, the “impact of class 
suits in civil rights cases is substantial.” Hon. Jack 
B. Weinstein et al., Some Reflections on the 
“Abusiveness” of Class Actions, 58 F.R.D. 299, 304 
(1973). “Precedent alone never has the effect of a 
judgment naming a particular class of which a 
person is a member. Very often, a class action 
permits the judge to get to the heart of an 
institutional problem.” Id. Because it broadens “the 
number of complainants, the class action triggers 
inquiry about institutional and organizational 
sources of harm and encourages development of 
solutions aimed at systemic reform.” Tristin K. 
Green, Targeting Workplace Context: Title VII as a 
Tool for Institutional Reform, 72 Fordham L. Rev. 
659, 678 (2003). This fits with the nature of 
employment discrimination in practice, which “is a 
far more complex and pervasive phenomenon” than



23

just “a series of isolated and distinguishable events.” 
H.R. Rep. No. 92-238, at 8 (1971), reprinted in 
Legislative History at 68.

Second, class proceedings allow victims to obtain 
and present the evidence necessary to prove broad- 
based discrimination, either intentional patterns and 
practices or disparate impact. When the issue is one 
individual’s job treatment rather than the treatment 
of a larger class, courts may not permit the extensive 
discovery and proof needed to understand how an 
employment system operates. Even if statistical 
evidence were equally probative in individual cases, 
the practical realities of modern litigation mean that 
such evidence is available only in class proceedings. 
An individual “is unlikely to have or make available 
the up-front costs needed to prosecute” a complex 
lawsuit requiring experts, sophisticated statistical 
analyses, and extensive discovery. Kristian v. 
Comcast Corp., 446 F.3d 25, 54-55 (1st Cir. 2006). 
Extensive discovery is essential to the prosecution of 
almost any employment discrimination claim, 
because evidence of an employer’s practices 
regarding such matters as hiring, assignment, 
promotion, workplace conditions, and termination 
lies almost completely within the employer’s control. 
See, e.g., 29 C.F.R. § 1607.4.A (requiring employers 
subject to Title VII to maintain certain employment 
records). But discovery of this evidence -  especially 
in cases involving large employers — is prohibitively 
expensive in individual actions, and thus the ability 
to spread the costs over a class is essential to 
obtaining redress. See, e.g., Duke v. Univ. of Texas 
at El Paso, 729 F.2d 994, 996-97 (5th Cir. 1984) 
(reversing judgment against discrimination plaintiff



24

in order to permit broad discovery in support of a 
class certification motion, and observing that “[h]ad 
Duke’s class claims prevailed, she would have faced 
a distinctively less onerous burden at the trial of her 
individual claim”). Class actions allow for burden 
sharing in order to level the playing field against 
sophisticated and well-resourced corporate entities. 
These limitations on obtaining evidence make 
individual cases relatively poor vehicles for rooting 
out institutional discrimination.

II. Wal-Mart’s attempt to bar monetary 
relief from 23(b)(2) classes would severely 
hamper the effectiveness of such actions and is 
unsupported by legislative intent or legal 
precedent.

Wal-Mart’s opening brief argues that Rule 
23(b)(2) “does not authorize certification of any 
monetary claims.” Pet. Br. 44. Wal-Mart also 
argues that punitive damages are categorically 
unavailable in a (b)(2) action. See id. at 55. Wal- 
Mart’s proposed standard for class certification of 
Title VII claims that include monetary relief is 
unsupported by existing case law, inconsistent with 
congressional intent, and a harmful interpretation of 
Rule 23.

Wal-Mart’s proposal that victims of 
discrimination must waive their entitlement to all 
but injunctive relief in order to proceed as a class 
would vitiate Title VII’s purposes of making victims 
whole and eradicating discrimination. “If employers 
faced only the prospect of an injunctive order, they 
would have little incentive to shun practices of



25

dubious legality.”13 Albemarle, 422 U.S. at 417. Any 
reading of Rule 23(b)(2) that prohibits economic 
remedies when victims of discrimination seek to 
litigate as a class denies them a remedy that is equal 
to their injury: “Title VII deals with legal injuries of 
an economic character occasioned by racial or other 
antiminority discrimination. . . . And where a legal 
injury is of an economic character, . . . ‘the 
compensation shall be equal to the injury.’” Id. at 
418 (quoting Wicker v. Hoppock, 73 U.S. 94, 99 
(1867)).

Forcing plaintiffs to forgo their entitlement to full 
Title VII remedies in order to litigate as a class 
would contravene the principle that relief in Title 
VII cases should not frustrate the purposes of the 
statute.14 See id. at 421.

13 This theme has been consistent throughout the history of 
Title VII. For example, the legislative history of the Civil 
Rights Act of 1991, amending Title VII to, inter alia, include 
the possibility of punitive damages for victims of intentional 
discrimination, makes clear that Congress sought to expand, 
not curtail, remedial relief to such victims in order to better 
achieve the original purposes of the statute. See Civil Rights 
Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1072 
(1991) (codified at 42 U.S.C. § 1981a); see also Pollard v. E.I. du 
Pont de Nemours & Co., 532 U.S. 843, 852 (2001) (“In the Civil 
Rights Act of 1991, Congress determined that victims of 
employment discrimination were entitled to additional 
remedies . . . without giving any indication that it wished to 
curtail previously available remedies.”) (emphasis in original).

14 Significantly, Wal-Mart is not engaging the Court in an 
inquiry as to which subsection of Rule 23 is best suited for 
certification of this action. Wal-Mart argues that Plaintiffs’ 
claims cannot be certified under (b)(2) or (b)(3). Pet. Br. 43.



26

A. Back pay remedies are central to full 
equitable relief and consistent with Rule 
23(b)(2) certification.

Congress enacted Title VII as part of the Civil 
Rights Act of 1964 to “achieve equality of 
employment opportunities and remove barriers that 
have operated in the past to favor an identifiable 
group of white employees over other employees.” 
Griggs, 401 U.S. at 424. A central objective of the 
statute is “to make persons whole for injuries 
suffered on account of unlawful employment 
discrimination.” Albemarle, 422 U.S. at 418.

These objectives are achieved in part through the 
Title VII remedial scheme, which critically includes 
back pay. 42 U.S.C. § 2000e-5(g). This Court has 
explained that back pay has an “obvious connection” 
to Title VII’s central purposes, and is a necessary 
catalyst for employers to “endeavor to eliminate, so 
far as possible, the last vestiges of an unfortunate 
and ignominious page in this country’s history.” 
Albermarle, 422 U.S. at 417-18 (internal quotation 
mark omitted). For this reason, this Court has made 
clear that back pay is presumptively available to 
victims of discrimination under Title VII: “[Gjiven a 
finding of unlawful discrimination, backpay should 
be denied only for reasons which, if applied 
generally, would not frustrate the central statutory 
purposes of eradicating discrimination throughout 
the economy and making persons whole for injuries 
suffered through past discrimination.”15 Id. at 421.

15 “[Cjourts have cited few circumstances that justify 
denying back pay other than the plaintiffs failure to mitigate 
damages.” 2 Lindemann & Grossman 2757 & n.27; see also



27

Accordingly, federal courts have-for decades- 
held that back pay relief is available in (b)(2) class 
actions, and that the award of this monetary remedy 
is consistent with the requirement that declaratory 
and injunctive relief predominate. See, e.g., Wang v. 
Chinese Daily News, Inc., 623 F.3d 743, 754 (9th Cir. 
2010); Chisholm u. U.S. Postal Serv., 665 F.2d 482, 
488 (4th Cir. 1981); Gay v. Waiters’ & Dairy 
Lunchmen’s Union, 549 F.2d 1330, 1331-34 (9th Cir. 
1977); accord Senter v. Gen. Motors Corp., 532 F.2d 
511, 525 (6th Cir. 1976); Wetzel, 508 F.2d at 250-53; 
United States v. N.L. Indus., Inc., 479 F.2d 354, 378- 
80 (8th Cir. 1973); Bowe v. Colgate-Palmolive Co., 
416 F.2d 711, 719-21 (7th Cir. 1969).

Indeed, as the Ninth Circuit en banc correctly 
noted, every circuit to have addressed the issue has 
held that Rule 23(b)(2) allows for claims of monetary 
relief, and that a “request for back pay in a Title VII 
case is fully compatible with the certification of a 
23(b)(2) class.” App. 91a.

B. The issue of punitive damages in (b)(2) 
classes should not be considered by this 
Court.

This Court need not resolve whether punitive 
damages may be certified under Rule 23(b)(2). The 
Ninth Circuit en banc vacated and remanded the 
punitive damages claim for the district court to 
decide in the first instance whether punitive

Pegues v. Miss. State Employment Serv., 899 F.2d 1449, 1457 
(5th Cir. 1990) (“[Ojnce a plaintiff establishes a violation of the 
statute, ‘the instances wherein [a backpay] award is not 
granted are exceedingly rare.”’ (quoting Sellers v. Delgado 
Cmty. Coll., 839 F.2d 1132, 1136 (5th Cir. 1988))).



2 8

damages predominate over injunctive relief. Thus, 
the issue is not properly before this Court.

Wal-Mart attempts to manufacture a circuit split 
because the Ninth Circuit, in vacating the punitive 
damages certification, did not foreclose the 
possibility of certification entirely and instead 
ordered the district court to inquire into the 
particular facts of this case. Pet Br. 55 (asserting 
that in “not foreclosing [the possibility of
certification of punitive damages under (b)(2)] the 
Ninth Circuit broke ranks with every other circuit”). 
But no such circuit split exists. Indeed, Wal-Mart’s 
merits brief conspicuously fails to cite any case law 
supporting its contention that the Ninth Circuit’s 
decision to remand because the district court had not 
conducted a predominance inquiry was inconsistent 
with other circuits. Indeed, the circuits that have 
declined to certify punitive damages in a (b)(2) class 
have recognized that this issue requires an 
approach tied to the individual circumstances of the 
case, consistent with the Ninth Circuit’s decision to 
remand. See Allison, 151 F.3d at 417 (declining to 
certify a claim for punitive damages where the 
award would be dependent on compensatory 
damages, but explicitly allowing for the possibility 
that punitive damages might “be awarded on a class­
wide basis, without individualized proof of injury” in 
an appropriate case); Cooper v. S. Co., 390 F.3d 695, 
720 (11th Cir. 2004) (upholding district court’s 
refusal to certify class after it found that too many 
individualized issues would be involved in the award 
of both compensatory and punitive damages in that 
particular case), overruled on other grounds by, Ash 
v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006);



29

Lemon v. Int’l Union of Operating Engrs, 216 F.3d 
577, 579 (7th Cir. 2000) (remanding for
consideration of whether class for punitive damages 
could be certified under Rule 23(b)(2) if notice and 
opt-out rights were provided); see also Petition for 
Rehearing En Banc at 11-12, Dukes v. Wal-Mart 
Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (Nos. 04- 
16688 & 04-16720) (citing the previous three cases 
as representing the only other Courts of Appeals to 
consider this issue).

C. The fact that the class includes former 
employees is not an appropriate ground 
for denying certification under Rule 
23(b)(2).

Wal-Mart argues that Plaintiffs’ claims for 
monetary relief predominate because the “majority” 
of the class are former employees who lack standing 
to pursue injunctive relief. Pet. Br. 52. Besides 
failing to demonstrate that the underlying assertion 
is factually correct, Wal-Mart has cited no case law 
to support this argument, and has failed to explain 
how it is relevant to the modified “incidental 
damages” standard it proposes for determining 
whether monetary relief predominates.16 See Pet. 
Br. 50-51

16 Indeed, to the extent that Wal-Mart raises this, it seems 
to have adopted the Second Circuit’s approach that the 
subjective intent of plaintiffs in bringing suit should be 
paramount. See Robinson, 267 F.3d at 164. This approach 
could logically allow for limited consideration of the proportion 
of the class who are former employees as an indication of the 
intent of the plaintiffs in seeking injunctive relief. See id. 
(“Insignificant or sham requests for injunctive relief should not



30

Wal-Mart cites no case law for its argument that 
the question of whether injunctive relief 
predominates can be definitively settled by 
calculating the proportion of the class that is former 
employees. Indeed, this proposition is contrary to 
the accepted understanding that “ [a]n action or 
inaction is directed to a class within the meaning of 
[23(b)(2)] even if it has taken effect or is threatened 
only as to one or a few members of the class, 
provided it is based on grounds, which have general 
application to the class.” Advisory Committee Note, 
39 F.R.D. at 102; see also Walters v. Reno, 145 F.3d 
1032, 1047 (9th Cir. 1998) (“Even if some class 
members have not been injured by the challenged 
practice, a class may nevertheless be appropriate.”). 
The appropriate question then is whether a 
defendants’ actions are based on grounds generally 
applicable to the class, not whether a majority of 
class members will benefit from an injunction. 
Advisory Committee Note, 39 F.R.D. at 102.

To the extent that the number of class members 
who will benefit from injunctive relief is relevant to 
the inquiry of whether monetary relief 
predominates, it is only if that number is so trivial 
as to call into question the legitimacy of the request 
for injunctive relief. One appellate court has 
asserted that where the proportion of the class that 
could benefit from injunctive relief is “negligible” it 
may endanger (b)(2) certification because it would 
raise the question of whether “the class as a whole is 
deemed properly to be seeking injunctive relief.” In 
re Monumental Life Ins. Co., 365 F.3d 408, 416 (5th

provide cover for (b)(2) certification of claims that are brought 
essentially for monetary recovery.”).



31

Cir. 2004). On remand in that case, the district 
court found that certification was inappropriate 
where fewer than 2% of class members could possibly 
benefit from the requested injunctive relief. In re 
Indus. Life Ins. Litig., No. 1371, slip op. at 4-5, 6, 9 
(E.D. La. Jan 11, 2006); see also Bolin v. Sears 
Roebuck & Co., 231 F.3d 970, 978 (5th Cir. 2000) 
(finding class certification was inappropriate where 
the “vast majority” of the class could not benefit from 
injunctive relief, and where the equitable relief 
“serve[d] only to facilitate the award of damages”). 
Wal-Mart has never alleged that the number of 
current employees in Plaintiffs’ class is so 
insignificantly small as to be “negligible.”17 
Moreover, the district court found as a matter of fact 
that Plaintiffs’ claims for prospective relief “would 
achieve very significant long-term relief in the form 
of fundamental changes to the manner in which Wal- 
Mart makes its pay and promotions decision 
nationwide that would benefit not only current class 
members, but all future female employees as well.” 
App. 239a.

Wal-Mart’s proposed rule is not only untethered 
to any legal basis, but it would create perverse 
incentives for employers and frustrate the objective 
of Title VII to eliminate discrimination. Cf. Wetzel, 
508 F.2d at 247 (asserting that if a former employee 
could not serve as a class representative, “employers 
would be encouraged to discharge those employees 
suspected as most likely to initiate a Title VII suit in 
the expectation that such employees would thereby 
be rendered incapable of bringing the suit as a class

17 Indeed, Wal-Mart never raised this argument as to 
former employees in the district court at all.



32

action” (citing Reed v. Arlington Hotel Co., 476 F.2d 
721 (8th Cir. 1973)); Ellis v. Costco Wholesale Corp., 
240 F.R.D. 627, 637 (N.D. Cal. 2007) (“To hold that 
employees must continue to work in jobs where they 
face discrimination in order to challenge the 
discrimination would pervert Article Ill’s injury-in­
fact requirement.”). In many cases, including the 
instant one, victims leave their employer because of 
the very discrimination challenged or as a result of 
retaliation for having objected to discriminatory 
treatment. J.A. at 1158, 1162, 1167, 1209, 1297, 
1300. If a majority of victims had to remain with a 
discriminatory employer in order for a class to seek 
prospective relief, employers could manipulate their 
workforce in order to avoid class-wide liability. Cf. 
Robinson v. Shell Oil Co, 519 U.S. 337, 346 (1997). 
Wal-Mart’s rule would create a constantly moving 
target for discrimination victims to hit in order to 
certify their class—a target that is entirely in the 
control of the defendant.

CONCLUSION
Wal-Mart proposes a version of class action law 

that would force plaintiffs to choose between class 
certification and full remedial relief.

That interpretation of the class action rule and 
law is at variance with Congress’s intent and this 
Court’s precedents. It would dramatically 
undermine Congress’s stated goals of eliminating 
discrimination throughout the workplace and 
making victims of discrimination whole, and 
unnecessarily heighten barriers for class



33

certification. It should therefore be firmly rejected 
by this Court.

Amici respectfully request that this Court affirm 
the Ninth Circuit’s decision affirming certification of 
the plaintiff class under Rule 23(b)(2).

Respectfully submitted,

John Payton 
Director-Counsel 

Debo P. Adegbile 
Counsel of Record 

Kimberly Liu 
Ryan Downer 
NAACP Legal Defense & 
Educational Fund , Inc. 

99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

March 1, 2011

mailto:dadegbile@naacpldf.org


ADDENDUM



la

The NAACP Legal Defense & Educational Fund, 
Inc., is a non-profit corporation established to assist 
African Americans in securing their civil and 
constitutional rights through the prosecution of 
lawsuits that challenge racial discrimination. For 
six decades, LDF attorneys have represented parties 
in litigation before the Supreme Court and other 
federal courts on matters of race discrimination in 
general, and employment discrimination in 
particular, including Lewis v. City of Chicago, 127 S. 
Ct. 2191 (2010); Patterson v. McLean Credit Union, 
491 U.S. 164 (1989); Franks u. Bowman
Transportation Co., 424 U.S. 747 (1976); Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975); and Griggs 
v. Duke Power Co., 401 U.S. 424 (1971); LDF has 
focused its employment discrimination work 
particularly upon class actions because of their 
effectiveness in securing systemic change.

The National Association for the Advancement of 
Colored People (NAACP) is a non-profit corporation 
with membership throughout the nation. The 
NAACP is the nation’s oldest and largest civil rights 
organization. The mission of the NAACP is to 
ensure the political, educational, social and economic 
equality of all persons and to eliminate racial hatred 
and racial discrimination. For over a century, the 
NAACP has been at the forefront of ending unlawful 
employment discrimination. The NAACP relies on 
the use of class actions, inter alia, as an effective 
method of eliminating systemic workplace 
discrimination.

The Leadership Conference on Civil and Human 
Rights is a coalition charged by its diverse 
membership of more than 200 national organizations



2 a

to promote and protect the civil and human rights of 
all persons in the United States. It is the nation’s 
premier civil and human rights coalition working to 
build an America that’s as good as its ideals. The 
Leadership Conference was founded in 1950 by A. 
Philip Randolph, head of the Brotherhood of 
Sleeping Car Porters; Roy Wilkins of the NAACP; 
and Arnold Aronson, a leader of the National Jewish 
Community Relations Advisory Council. For more 
than half a century, The Leadership Conference, 
based in Washington, D.C., has led the fight for civil 
and human rights by advocating for federal 
legislation and policy, securing passage of the Civil 
Rights Acts of 1957, 1960, and 1964; the Voting 
Rights Act of 1965; the Fair Housing Act of 1968; 
and the Americans With Disabilities Act of 1990. 
Many of the member organizations of The 
Leadership Conference use the class action 
mechanism in their efforts to combat discrimination 
and advance civil and human rights.

AARP is a non-partisan, non-profit organization 
of people age 50 or older dedicated to addressing the 
needs and interests of older people. AARP supports 
the rights of older workers and strives to preserve 
the legal means to enforce them. More than half of 
AARP’s members are in the work force and are 
protected by Title VII of the Civil Rights Act of 1964, 
as well as other civil rights laws at the federal, state 
and municipal level in regard to which legislatures, 
courts, and enforcement agencies look to Title VII as 
a model. AARP attorneys also represent clients in 
cases concerning access to healthcare and long-term 
care, consumer protection and other matters of 
concern to older persons. In each of these areas, the



3a

option of seeking systemic and/or broad-based relief 
through a class action may be and often is critical to 
vigorous and successful private enforcement of the 
rights and claims of older persons. AARP thus has a 
strong interest in the continued vitality of class 
actions as a means of serving the needs and interests 
of older persons, including older persons of limited 
means, older persons of color, older women and other 
vulnerable groups of older persons.

The Disability Rights Education and Defense 
Fund, Inc., (DREDF) is a national nonprofit 
disability civil rights law and policy organization 
dedicated to protecting and advancing the civil 
rights of people with disabilities. Based in Berkeley, 
California, DREDF has remained board- and staff- 
led by people with disabilities since its founding in 
1979. DREDF pursues its mission through 
education, advocacy and law reform efforts, and is 
nationally recognized for its expertise in the 
interpretation of federal disability civil rights laws. 
As part of its mission, DREDF works to ensure that 
people with disabilities have the legal protections, 
including effective legal remedies, necessary to 
vindicate their right to be free from discrimination. 
The federal Americans with Disabilities Act 

explicitly incorporates Title VII remedies to enforce 
its employment nondiscrimination protections, and 
thus DREDF and the disability community it 
represents have an interest in the Title VII issues 
presented by this case.

Latino Justice PRLDEF is a national not for 
profit civil rights organization that has advocated for 
and defended the constitutional rights and the equal 
protection of all Latinos under law; sought to



4a

promote the civic participation of the pan-Latino 
community; and to cultivate future Latina/o 
community leaders. Since our founding in 1972 as 
the Puerto Rican Legal Defense and Education 
Fund, we have brought precedent-setting impact 
litigation across the country on behalf of the Puerto 
Rican and the greater pan-Latino community in the 
areas of education, employment, fair housing, 
language rights, immigrants’ rights, redistricting 
and voting rights. During its 39 year history, 
LATINOJUSTICE PRLDEF has litigated numerous 
cases of employment discrimination on behalf of 
Latina and Latino workers, and seeks to ensure that 
Latina/o workers continue to have unfettered access 
to the courts for full legal redress of workplace 
discrimination.

The Asian American Justice Center (AAJC) is a 
national nonprofit, nonpartisan organization whose 
mission is to advance the civil and human rights of 
Asian Americans and to promote a fair and equitable 
society for all. A member of the Asian American 
Center for Advancing Justice, AAJC engages in 
litigation, public policy, advocacy, and community 
education and outreach on a range of civil rights 
issues, including anti-discrimination. AAJC’s 
longstanding interest in employment discrimination 
matters that impact Asian Americans and other 
underserved communities has resulted in the 
organization’s participation in numerous amicus 
curiae briefs before the courts.

Founded in 1972, the Asian Law Caucus (“ALC”) 
is the nation's oldest legal organization advancing 
the civil rights of Asian American and Pacific 
Islander communities. A member of the Asian



5a

American Center for Advancing Justice, ALC has a 
long history of protecting low-wage immigrant 
workers and engages in broad community education 
and litigation on pressing civil and employment 
rights issues. ALC is committed to ending 
discrimination and unfair treatment of vulnerable 
workers.

The Lawyers’ Committee for Civil Rights Under 
Law is a tax-exempt, nonprofit civil rights 
organization that was founded in 1963 by the leaders 
of the American bar, at the request of President 
John F. Kennedy, in order to help defend the civil 
rights of minorities and the poor. Its Board of 
Trustees presently includes several past Presidents 
of the American Bar Association, law school deans 
and professors, and many of the nation’s leading 
lawyers. The Lawyers’ Committee is dedicated, 
among other goals, to eradicating all forms of 
workplace discrimination affecting racial and ethnic 
minorities, women, individuals with disabilities and 
other disadvantaged populations. Since the passage 
of the Civil Rights Act of 1964, the Lawyers’ 
Committee has relied on the class action mechanism 
and all available remedies as essential tools for 
combating unlawful discrimination in the workplace.