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

    NOS. 04-16688 & 04-16720

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, 
KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA

Plaintiffs/ Appellees,
v.

WAL-MART STORES, INC.,
Defendant/Appellant.

ON A PPEA L FROM  THE UNITED STATES D ISTRICT COURT 
FO R  TH E N O RTH ERN  D ISTRICT OF CALIFORN IA

BRIEF OF AMICI CURIAE N A A CP LEGAL D EFEN SE & ED U CATIONAL FUND, 
INC, A M ERICA N  CIVIL LIBERTIES UNION, A SIA N  A M ERICAN  JUSTICE 

CENTER, LA W Y ER S’ CO M M ITTEE FO R CIVIL RIG H TS, LEGAL M OM ENTUM , 
N A TIO N A L EM PLO YM EN T LAW YERS ASSOCIA TIO N , NA TIO N A L 

PA RTN ERSH IP FO R  W O M EN  & FAM ILIES, N A TIO N A L W O M EN ’S LAW  
CENTER, W O M EN  EM PLOYED IN SUPPORT OF PL A IN TIFFS’ PETITION FO R

REHEARING

THEODORE M. SHAW,* 
DIRECTOR COUNSEL 
Debo Adegbile 
Robert H. Stroup

NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 

99 HUDSON ST., SUITE 1600 
NEW YORK, N.Y. 10013 
TELEPHONE: 212 965-2200

*Counsel of Record
ATTORNEYS FOR AMICI CURIAE 

(Additional Counsel Listed on Inside Cover)

00002608.WPD.



Lenora M. Lapidus Stefano G. Moscato
Ariela M. Migdal National Employment Lawyers Ass’n
Women Rights Project 44 Montgomery St., Suite 2080
ACLU Foundation San Francisco, Ca. 94104
125 Broad Street, 18th Floor 
New York, N.Y. 10004 Jocelyn C. Frye

Vincent A. Eng
National Partnership for Women & 

Families
Asian American Justice Center 1875 Comiecticut Ave., N.W., Suite 650
1140 Connecticut Ave., N.W. Washington, D.C. 20009
Suite 1200
Washington, D.C. 20036 Jocelyn Samuels

Michael Foreman
Dina R. Lassow
National Women’s Law Center

Megan Moran-Gates 11 Dupont Circle, #800
Lawyer’s Committee for Civil Washington, D.C. 20036
Rights Under Law
1401 New York Ave., N.W. Melissa Josephs
Suite 400 Women Employed
Washington, D.C. 20005 111 N. Wabash, Suite 1300

Jennifer K. Brown 
Legal Momentum 
395 Hudson Street, 5th Floor 
New York, N.Y. 10014

Chicago, 11. 60602

00002608.WPD 00002608. WPD



RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Amici are tax-exempt nonprofit organizations. None of the amici have 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.

Dated: January 18, 2008.

Robert H. Stroup

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TABLE OF CONTENTS

Rule 26.1 Corporate Disclosure Statement........................................ .................... i

Table of Contents.................................................................................................... ii

Table of Citations................................................................................................... iii

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

SUMMARY OF ARGUMENT............................................................................ 5

ARGUMENT........................................................................................................ 9

I. THE COURT SHOULD RECONSIDER ITS NEW LIMITATION ON 
STANDING....................................................................................................... 9

A. The Court’s Unprecedented Limitation on Standing Severely Limits the
Ability of Courts to Provide “Make Whole” Relief to Victims of 
Discrimination.................................................................................................9

B. The Court’s Opinion Overlooks Common Interests That Many Current
and Former Employees Often Share............................................................. 13

C. The Court’s Limitation on Standing Interferes with the EEOC’s
Mandate to Seek Voluntary Resolution of Class Charges............................ 14

D. Contrary to the Act’s Purposes, the Court’s New Limitation on Standing
Creates an Unwarranted Incentive for Employers to Retaliate Against 
Employees Who File EEOC Charges Containing Class Allegations............18

CONCLUSION...................................................................................................20
Certificate of Compliance

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TABLE OF AUTHORITIES

FEDERAL CASES

Augst-Johnson et al. v. Morgan Stanley & Co. Incorporated f/k/a Morgan Stanley 
DWInc., 2008 U.S. Dist. LEXIS 18 (D.D.C. Jan. 2, 2008)................ ..................17

Bates v. United Parcel Service,
2004 U.S. Dist. LEXIS 21062 (N.D. Cal. 2004)................................................ 9, 15

Bates v. United Parcel Service, Inc.,
2007 U.S. App. LEXIS 29870 (9th Cir. Dec. 28, 2007)..........................................9

Cookv. Boorsten, 763 F.2d 1462 (D.C. Cir. 1985)................................................18

Drayton v. Western Automobile Supply, 203 F.R.D. 520 (M.D. Fla. 2000...........13

Ellis v. Costco Wholesale Corp., 240 F.R.D. 627 (N.D. Cal. 2007)............ 6, 14, 15

Leduc v. Micron Technology, Inc., 2005 U.S. Dist. LEXIS 29456 
(D. Idaho 2005)...................................................................................................... 11

Lewis v. City o f Chicago, 2003 U.S. Dist. LEXIS 10826 (N.D. 111. 2003)............15

Moody v. Albemarle Paper Co., 422 U.S. 405 (1972).......................................6, 10

Paige v. California, 233 Fed. Appx. 646 (9th Cir. 2007)................................ 15-16

Reed v. Arlington Hotel Co., Inc., 476 F.2d 721 (8th Cir. 1973)...................... 7, 19

Robinson v. Shell Oil Co., 519 U.S. 337 (1997).................................................... 14

Shields v. BCI Coca-Cola Bottling Co., 2005 U.S. Dist. LEXIS 43990 (W.D.
Wash. 2005)............................................................................................................ 11

W.R. Grace & Co. V. Local Union 759, International Union o f Rubber, Cork, 
Linoleum & Plastic Workers o f America, 461 U.S. 757 (1983)............................ 14

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Wamboldt v. Safety-Kleen System, 2007 U.S. Dist. LEXIS 65683
(N.D. Cal. 2007).....................................................................................................14

Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3rd Cir. 1975)...... 6, 13, 19

Wofford v. Safeway, 78 F.R.D. 460 (N.D. Cal. 1978)........................................ 7, 19

Wright v. Stern, 450 F. Supp. 2d 335 (S.D.N.Y. 2006)..............................11,15, 20

FEDERAL STATUTES

Fed. R. Civ. P. 23(b)(2)......................................................................6, 7, 10, 12, 17

42 U.S.C. Section 2000e-5(g)(l)............................................................................14

MISCELLANEOUS

Rule 23(b)(2) Advisory Committee Notes (1966 Amendment)............................ 10

U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover 
Survey (2006)........................................................................................ 12

U.S. E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n , Charge Statistics (FY1997 
through FY2006) (Feb. 26, 2007)...........................................................20

U.S. E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n , EEOC Investigations -
What an Employer Should Know............................................................ 12

U.S. E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n , f y  2006 P e r f o r m a n c e  
a n d  A c c o u n t a b il it y  R e p o r t , Strategic Objective: Justice and 
Opportunity, Proficient Resolution ........................................................ 17

U.S. E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n , Press Release, E E O C  and 
Chase Reach $2.2 Million Settlement in Disability Discrimination Claim 
Nov. 22, 2006)..........................................................  16

-IV -



U.S. E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n , Press Release, EEOC and 
Com-ED Settle National Origin Bias Complaint for Up to $2.5 Million 
(Nov. 2, 2000)....................................... .................................................16

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INTEREST OF THE AMICI CURIAE1

Amici herein are nonprofit organizations dedicated to, among other goals, 

eradicating workplace discrimination affecting racial and ethnic minorities, 

women, and other disadvantaged persons.

The NAACP Legal Defense & Educational Fund, Inc., was established to 

assist African-Americans in securing their constitutional rights through the 

prosecution of lawsuits and to provide legal services to African-Americans and 

other persons of color suffering injustice by reason of racial discrimination. For 

six decades LDF attorneys have represented parties in litigation before the United 

States Supreme Court and the various Courts of Appeals involving race 

discrimination and particularly discrimination in employment.

The American Civil Liberties Union (ACLU”) is a nationwide, non-partisan 

organization dedicated to preserving the principles of liberty and equality 

embodied in the Constitution and this nation’s civil rights laws. Through its 

Women’s Rights Project (founded in 1972 by Ruth Bader Ginsburg), the ACLU 

has long worked to counter unlawful discrimination against women in the 

workplace.

1 Through an agreement between plaintiffs’ and defense counsel, all parties 
have consented to the filing of this brief.

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The Asian American Justice Center, formerly National Asian Pacific 

American Legal Consortium is a national non-profit, non-partisan organization 

whose mission is to advance the legal and civil rights of Asian Americans. AAJC 

and its affiliates, the Asian American Institute, Asian Law Caucus, and the Asian 

Pacific American Legal Center of Southern California, have over 50 years of 

experience in providing legal public policy, advocacy, and community education 

on discrimination issues.

The Lawyers Committee for Civil Rights Under Law (LCCRUL) is a 

nonprofit, civil rights organization founded in 1963 by the leaders of the American 

bar, at the request of President Kennedy, to help defend the civil rights of racial 

minorities and the poor. LCCRUL has long recognized Rule 23 as an essential tool 

for civil rights enforcement efforts. LCCRUL has contributed to the development 

of the law under Rule 23.

Founded in 1970, Legal Momentum is the nation’s oldest legal advocacy 

organization dedicated to advancing the rights of women and girls. With 

headquarters in New York City and offices in Washington, D.C., Legal Momentum 

has been a leader in establishing legal, legislative, and educational strategies to 

secure equality and justice for women across the country. Legal Momentum 

litigates employment discrimination cases frequently.

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The National Employment Lawyers Association (NELA) is the largest 

professional membership organization in the country comprised of lawyers who 

represent workers in labor, employment and civil rights disputes. NELA advances 

employee rights and serves lawyers who advocate for equality and justice in the 

American workplace.

The National Partnership for Women & Families is a non-profit, national 

advocacy organization founded in 1971 that promotes equal opportunity for 

women, quality health care, and policies that help women and men meet both work 

and family responsibilities. The National Partnership has devoted significant 

resources to combating sex, race, and other forms of invidious workplace 

discrimination.

The National Women’s Law Center (“NWLC”) is a non-profit legal 

advocacy organization dedicated to the advancement and protection of women’s 

rights and the corresponding elimination of sex discrimination from all facets of 

American life. Since 1972, NWLC has worked to secure equal opportunity in the 

workplace by supporting the full enforcement of anti-discrimination laws, 

including Title VII of the Civil Rights Act of 1964.

Women Employed is a national membership association of working women 

based in Chicago. Since 1973, the organization has assisted thousands of working

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women with problems of discrimination and harassment, monitored the 

performance of equal opportunity enforcement agencies, and developed specific, 

detailed proposals for improving enforcement efforts.

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SUMMARY OF ARGUMENT

The Court should grant rehearing for the limited purpose of revisiting the 

portion of the opinion filed December 11, 2007 that provides that putative class 

members no longer employed by Wal-Mart at the time a federal court complaint is 

filed “do not have standing to pursue injunctive or declaratory relief.” Slip Op., at 

16240. The Court erred when it undertook to assess the standing of individual 

class members to seek injunctive relief, rather than finding that the class as a whole 

has standing to seek such relief so long as at least one named plaintiff has standing. 

Although the Court remanded to the district court to determine the scope of the 

class, correcting its error is critical, because the implication of the Court’s standing 

inquiry is that putative class members not employed on the date that the complaint 

was filed must be excluded from the class — a conclusion at odds with Supreme 

Court and Ninth Circuit authority on class actions.

The Court’s limitation on standing runs counter to fundamental purposes 

embraced by Title VII’s statutory scheme and Rule 23. It undermines the 

underlying purpose of Title VII to make the victims of an employer’s 

discrimination whole because it erects roadblocks that will prevent individual 

victims from using the class action mechanism to obtain class-wide relief. The 

Supreme Court has held, in the context of Title VII and Rule 23, that back pay

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relief should be denied only for reasons that would not frustrate the underlying 

purposes of the Act. Moody v. Albemarle Paper Co., 422 U.S. 405 (1972). Yet the 

wholesale exclusion of former employees (as of the date a complaint is filed) from 

obtaining make whole relief under Rule 23(b)(2), does precisely that. The drafters 

of Rule 23(b)(2) contemplated just the opposite.

The limitation on standing also overlooks the common interests that many 

current and former employees often share. For example, many former employees 

seek reinstatement when discriminatory practices are ended. Others seek an end to 

discriminatory practices both for themselves as well as other members of a 

particular community, other family members and especially for their children. 

Courts have long recognized these common interests shared by current and former 

employees, and have concluded that former employees are adequate 

representatives of classes that seek injunctive relief for both categories of 

employees. See, e.g., Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 637 (N.D. 

Cal. 2007); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd Cir. 1975). These 

shared interests are additional reasons the Court should grant rehearing.

Additionally, the Court’s limitation on standing diminishes the ability of the 

EEOC to fulfill its statutory role in promptly resolving discrimination charges 

containing class claims. The class representative who seeks to achieve the

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promises of Title VII -  to make whole the victims of discrimination -  is likely to 

leave the EEOC administrative process as quickly as possible, as the Court’s 

opinion places a premium upon filing the federal lawsuit at the earliest possible 

date. To do otherwise means that employees who would have been class members 

and could have been made whole through the class action (had they remained 

current employees until complaint filing) will be unable to participate in class 

proceedings under Rule 23(b)(2). This would have the effect of, at best, splitting 

civil rights classes into subclasses and creating additional hurdles of delay and 

expense for victims, and at worst, denying all relief to victims who no longer work 

for the discriminatory employer. Either result is contrary to the Act’s underlying 

policies.

The Court’s new limitation on standing also creates an unwarranted 

incentive for employers to retaliate against employees who file charges. By firing 

employees who have filed class-wide discrimination claims, employers are given 

the power to rid themselves of employees with standing to obtain injunctive relief. 

Courts have recognized this risk, allowing it to be a basis for treating former 

employees as appropriate class representatives for claims of injunctive relief. 

Wofford v. Safeway, 78 F.R.D. 460, 490 n.6 (N.D. Cal. 1978); Reed v. Aldington 

Hotel Co., Inc., 476 F.2d 721, 723 (8th Cir. 1973).

-7-



Nor is the risk of retaliation remote or conjectural. The EEOC reports 

significant increases over the past ten years in the number of EEOC retaliation 

charges filed. Such Title VII charges have increased from 20% to nearly 26% in 

the past 10 years, and for all statutory claims giving rise to EEOC charges (not just 

Title VII charges), that number has risen to nearly 30% as of FY 2007.

For these reasons, amici ask this Court to grant rehearing.

-8-



ARGUMENT

I. THE COURT SHOULD RECONSIDER ITS NEW LIMITATION ON 
STANDING.

Plaintiffs have moved the Court for rehearing regarding the Court’s opinion

filed December 11, 2007, which held that:

putative class members who were no longer Wal-Mart employees at 
the time Plaintiffs’ complaint was filed do not have standing to pursue 
injunctive or declaratory relief. . . . This does not mean that the entire 
class must fall. Those putative class members who were still Wal- 
Mart employees as of June 8, 2001 (when Plaintiffs’ complaint was 
filed) do have standing to seek the injunctive and declaratory relief 
requested in the complaint.”

Slip op., at 16240.

A. The Court’s Unprecedented Limitation on Standing Severely Limits the 
Ability of Courts to Provide “Make Whole” Relief to Victims of 
Discrimination.

The Court’s conclusion that former employees lack standing to seek 

injunctive relief is contrary to recent Ninth Circuit authority and threatens to push 

those employees out of the class, leaving them without a remedy or forcing them to 

proceed on a separate track, resulting in increased delays and barriers to relief. See 

Bates v. United Parcel Service, Inc., 2007 U.S. App. LEXIS 29870, at *9 (9th Cir. 

Dec. 28, 2007) (holding that so long as “at least one named plaintiff’ has standing 

to seek injunctive relief, the entire class has standing.) (citations omitted). Amici

-9-



submit that the en banc decision in Bates provides a substantial basis for rehearing. 

In addition, this Court should grant rehearing for the reasons argued herein.

Courts have long recognized that Congress enacted the Civil Rights Act of 

1964 to provide make whole relief to victims of employment discrimination on a 

class-wide basis. Moody v. Albemarle Paper Co., 422 U.S. 405 (1972) (holding, in 

the context of Title VII and Rule 23, that back pay to victims of discrimination 

should be denied only for reasons that, if applied generally, would not frustrate the 

central statutory purpose of eradicating discrimination and making persons whole 

for injuries suffered through past discrimination). Likewise the drafters of Rule 

23(b)(2) envisioned the rule as a mechanism for victims of discrimination to secure 

class-wide relief. Fed. R. Civ. P. 23(b)(2) advisory committee's note (1966 

amendment) (citations omitted) (noting that “actions in the civil-rights field” are 

“illustrative” of the cases the Committee intended as Rule 23(b)(2) cases).

Yet this Court has adopted a limitation on standing that would prevent those 

who do not remain employed between the filing of the class EEOC charge and the 

filing of the federal court complaint from proceeding with the rest of the class.

This unnecessarily limits the Court’s ability to make victims of discrimination 

whole and undermines the core purposes of both Title VII and Rule 23(b)(2).

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The EEOC reported that for FY 2006, the average processing time for 

charges of all types of private sector cases was 193 days.2 The EEOC also reported 

that the average time for mediation of a case (separate from investigation) was 84 

days.3 Certainly for the most complex cases, such as those with class allegations, 

the time is significantly longer. See, e.g., Wright v. Stern, 450 F.Supp.2d 335, 357 

(S.D.N.Y. 2006) (EEOC charges filed in March, 1999; lawsuit filed at conclusion 

of EEOC administrative process more than 26 months later in 2001); Leduc v. 

Micron Tech., Inc., 2005 U.S. Dist. LEXIS 29456, *3 (D. Idaho 2005)(Third 

Charge filed with EEOC on December 26, 2002; complaint filed with district court 

on October 18, 2004); Shields v. BCI Coca-Cola Bottling Co., 2005 U.S. Dist. 

LEXIS 43990, *6 (W.D. Wash. 2005)(EEOC charges filed in June 2002; complaint 

filed with district court on April 1, 2004). It is common, then, for an EEOC 

investigation of class charges to last 18-24 months or longer.

In circumstances where the EEOC administrative process delays the filing of 

a federal lawsuit by as much as 18-24 months, many employers will have a 

dramatically changed workforce. A significant number of individuals who were

2 T h e  U.S. E q u a l  E m p l o y m e n t  O p p o r t u n it y  C o m m is s io n  (“EEOC”), f y  
2006 P e r f o r m a n c e  a n d  A c c o u n t a b il it y  Re p o r t , Strategic Objective: Justice 
and Opportunity, Proficient Resolution,
http ://www.eeoc. gov/abouteeoc/plan/par/2006/obj ective 1 ,html#resolution.

-11-

http://www.eeoc


current employees at the time the EEOC charge was filed (and therefore within the 

class of potential victims eligible for redress) will have become former employees 

by the filing of the federal lawsuit. The reality of high employee turnover in many 

industries, coupled with the Court’s unprecedented limitation on standing, will 

substantially and adversely impact the statutory purpose. For example, the annual 

job separation rate for all private employers in 2006 stood at 45.3%.3 4 In the retail 

industry, this rate was even higher, standing at 55.6%.5 Thus, the employees 

subjected to discriminatory practices at the time any class EEOC charge is filed are 

likely to be vastly different from the employees subjected to those same 

discriminatory practices 18-24 months later. The Court’s standing rule threatens to 

significantly and unnecessarily diminish the pool of victims that can be made 

whole in a Rule 23(b)(2) class action.

3 EEOC, EEOC Investigations -  What an Employer Should Know, 
http://www.eeoc.gov/emnlovers/investigations.html. (last visited Jan. 15, 2008).

4U.S. Dep’t of Labor, Bureau of Labor Statistics (“BLS”), Job Openings and 
Labor Turnover Survey (2006), http://data.bls.gov/PDO/outside.isp7survevHt 
(Last visited Jan. 9, 2008) (variables selected include: (1) total private industry (for 
industries); (2) total US (for region); (3) total separations (quits, layoffs and 
discharges and other separations) (for data elements); (4) rate was chosen as the 
format to display the information; and (5) the data was not seasonally adjusted).

5 Id. (variables selected include: (1) retail trade (for industries); (2) total US 
(for region); (3) total separations (quits, layoffs and discharges and other 
separations) (for data elements); (4) rate was chosen as the format to display the 
information; and (5) the data was not seasonally adjusted).

-12-

http://www.eeoc.gov/emnlovers/investigations.html
http://data.bls.gov/PDO/outside.isp7survevHt


B. The Court’s Opinion Overlooks Common Interests That Many Current
and Former Employees Often Share.

The Court’s ruling also fails to consider that many former employees retain 

a significant interest in bringing an end to an employer’s discriminatory practices. 

Former employees subjected to discriminatory practices often seek reinstatement to 

their former jobs. This is even more likely to happen when class-wide relief brings 

an end to discriminatory practices. Other former employees value an end to the 

employer’s discriminatory practices, not for themselves alone, but because of the 

expanded job opportunities that would result for other members of a particular 

community, such as other women or minorities, or their own children or other 

family members.

Numerous cases have recognized the common interests shared by former 

and current employees. In the context of class certification, courts have found 

those interests sufficiently alike to permit former employees to serve as 

representatives for classes composed of both current and former employees. See, 

e.g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3rd Cir. 1975) (“The 

interests of Wetzel and Ross in combating the sexually discriminatory policies of 

the Company surely are coextensive with all female technical employees, whether 

formerly or presently employed. We do not perceive any interests of the former

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employees antagonistic to those of present employees.”); 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.”); Drayton v. 

Western Auto Supply, 203 F.R.D. 520, 528 (M.D. Fla. 2000) (citations 

omitted) (“Although Plaintiffs are all former employees of Western, courts have 

routinely certified classes of both applicants and employees if both groups are 

alleged to have been impacted by the same employment policy, as in the instant 

case.”); Cf. Wamboldt v. Safety-Kleen Sys., 2007 U.S. Dist. LEXIS 65683, **34- 

35 (N.D. Cal. 2007) (observing in claim for failure to pay overtime wages, that a 

former employee “has standing to pursue injunctive relief on behalf of current and 

former employees.”).6

C. The Court’s Limitation on Standing Interferes with the EEOC’s
Mandate to Seek Voluntary Resolution of Class Charges.

By changing the incentives for potential class plaintiffs, the Court’s opinion 

on standing also creates the potential to undermine Congressional policy which

6 Nor is there any question regarding the power of the Court to order relief in 
a Title VII case for former employees. Robinson v. Shell Oil Co., 519 U.S. 337, 
342 (1997) (noting that remedial provisions of Title VII extend to former 
employees). See also, 42 U.S.C. Section 2000e-5(g)(l).

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favors the prompt and relatively inexpensive resolution of employment disputes. 

The role of the EEOC, under the statutory framework, is to provide an 

administrative process for the investigation and conciliation of disputes as an 

alternative to costly litigation. W.R. Grace & Co. V. Local Union 759, Int’l Union 

o f Rubber, Cork, Linoleum & Plastic Workers o f Am., 461 U.S. 757, 770-771 

(1983) (“Congress intended cooperation and conciliation to be the preferred means 

of enforcing Title VII.”). While the EEOC investigation and conciliation process 

may take 18-24 months in many complex cases, federal court litigation of 

employment class actions often takes even longer, some cases lasting many years 

before final resolution. See, e.g., Paige v. California, 233 Fed. Appx. 646 (9th Cir. 

2007) (unpublished opinion)(District Court complaint filed on January 5, 1994; 

judgement entered on November 18, 2004); Ellis v. Costco Wlwlesale Corp., 240 

F.R.D. 627 (N.D. Cal. 2007) (Complaint filed on August 17, 2004; class 

certification granted on January 11, 2007); Bates v. United Parcel Service, 2004 

U.S. Dist. LEXIS 21062 (N.D. Cal. 2004) (Complaint filed on May 31, 1999; 

District Court Judgment entered on October 21, 2004); Wright v. Stern, 450 

F.Supp.2d 335 (S.D.N.Y. 2006) (District Court complaint filed in May, 2001; 

decision denying summary judgment entered September, 2006); Lewis v. City o f

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Chicago, 2003 U.S. Dist. LEXIS 10826 (N.D. 111. 2003) (Complaint filed in 1998; 

order on the merits entered in March, 2003). Retaining a rule that requires 

certification of separate subclasses for current and former employees would only 

add to this already significant delay.

Numerous employers avail themselves of the EEOC administrative process 

to resolve class complaints. See, e.g., Conanan v. FDIC, #00-cv-3091 (D.D.C) 

(Agreement in principle reached by parties in EEOC administrative process prior 

to filing of federal lawsuit).7 The Commonwealth Edison Company in Chicago 

used the EEOC administrative process to settle class claims raised by Latino 

employees denied promotions, agreeing to pay $2.5 million and providing 

injunctive relief.8 After the EEOC found probable cause, JPMorgan Chase agreed 

to settle a class-wide disability claim for $2.2 million and injunctive relief without 

litigation.9 Other employers have entered into agreements with the EEOC to

7 Pis.’ Mem. Supp. Mot. Final Approval of Consent Decree & Class 
Certification, Nov. 14, 2001, available at
http://www.fdic.gov/about/diversity/consent/motfinappmem.hhnl.

8 Press Release, EEOC, EEOC and Com-ED Settle National Origin Bias 
Complaint for Up to $2.5 Million (Nov. 2, 2000), httph/www.eeoc.gov/press/l 1-2- 
00.html.

9 Press Release, EEOC, EEOC and Chase Reach $2.2 Million Settlement in 
Disability Discrimination Claim (Nov. 22, 2006), http://www.eeoc.gov/press/! 1- 
22-06.html.

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http://www.fdic.gov/about/diversity/consent/motfinappmem.hhnl
http://www.eeoc.gov/press/l
http://www.eeoc.gov/press/


participate in mediation of all charges filed with the Commission.10 See e.g., 

Augst-Johnson et al. v. Morgan Stanley & Co. Incorporatedf/k/a Morgan Stanley 

DWInc., 2008 U.S. Dist. LEXIS 18 (D.D.C. Jan. 2, 2008) (Parties participated in 

pre-litigation mediation -  outside the EEOC process -  in order to resolve complex 

class action and avoid costly litigation.).11

Unfortunately, the Court’s ruling will encourage plaintiffs who seek to 

maximize the remedy for Title VII victims to remove their charges from the EEOC 

administrative process and file a lawsuit at the earliest possible time, rather than 

allowing the EEOC process to mn its course. To do otherwise would leave 

potentially large numbers of victims of the employer’s discriminatory practices 

without a Rule 23(b)(2) remedy. A class representative who foregoes the EEOC’s 

administrative process will minimize the number of “former” employees otherwise 

eligible for relief within the limitations period whose injunctive relief and ability to

10 EEOC, f y  2005 P e r f o r m a n c e  a n d  A c c o u n t a b il it y  Re p o r t , Promotion 
and Expansion o f Mediation,
http://www.eeoc.gOv/abouteeoc/plan/par/2005/mda_objectivel.html#expansion 
(As of the close of FY2005, more than 900 employers, including national 
corporations, had entered into agreements with the EEOC to participate in 
mediation of all charges filed with the Commission).

11 Augst-Johnson et al. v. Morgan Stanley & Co. Incorporated f/k/a Morgan 
Stanley DW Inc., No. 06-01142, Settlement Agreement (D.D.C. Apr. 23, 2007), 
http ://www. fmdjustice. com/files/S ettlement_Agreement_(Signed_Final)_4-24- 
07.pdf.

-17-

http://www.eeoc.gOv/abouteeoc/plan/par/2005/mda_objectivel.html%23expansion


proceed with the rest of the class would be foreclosed as a result of this Court’s

opinion. This disincentive to participate in the EEOC administrative process is

another powerful reason to reverse the standing ruling.

D. Contrary to the Act’s Purposes, the Court’s New Limitation on
Standing Creates an Unwarranted Incentive for Employers to Retaliate 
Against Employees Who File EEOC Charges Containing Class 
Allegations.

The Court’s new rule on standing creates an incentive for employers to 

discharge employees who file EEOC charges, particularly those perceived by the 

employer to have any basis for a class action lawsuit. By terminating the 

employment of such employees, the employer effectively immunizes itself against 

any lawsuit that requests changes in on-going employment practices. The Court 

also gives employers the ability to manipulate the scope and shape of any federal 

lawsuit and to “divide and conquer” the class of affected employees by firing some 

employees, leaving them unable to participate in an injunctive class maintained by 

current employees. Neither Rule 23 nor Title VII contemplates this result. See 

Cook v. Boorsten, 763 F.2d 1462, 1472 (D.C. Cir. 1985) (holding in context of a 

class action that, “[i]f our nation is to move with speed toward genuine equality of 

opportunity, employers . . .  cannot be allowed to escape the requirements of Title 

VII by a litigation strategy of divide and conquer”). For the smaller employer, this

-18-



“divide and conquer” strategy is particularly powerful given potential numerosity 

issues that may arise under Rule 23(a) when the class is divided up unnecessarily.

Courts have recognized this risk, and some have expressly permitted former 

employees to represent a class of current and former employees in an effort to 

counteract the employer’s incentive to engage in retaliatory conduct. Wofford v. 

Safeway, 78 F.R.D. 460, 490 n.6 (N.D. Cal. 1978) (“A mle disqualifying 

discharged employees from representing current employees as a matter of law 

would be intolerable, since it would allow an unscrupulous employer to immunize 

himself from class action suits.”)(citations omitted); Wetzel, 508 F.2d at 247 

(concluding that rejection of former employees as class representatives would 

encourage employers “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 action.”); Reed v. Arlington Hotel 

Co., Inc., 476 F.2d 721, 723 (8th Cir. 1973) (adopting mle that former employee 

could properly represent class of current employees, otherwise “there would be a 

windfall for the employer,” as contrary mle would permit the employer to avoid 

class actions by discharging those who filed charges) (citation omitted).

This phenomenon is neither hypothetical nor conjectural. The EEOC reports 

that charges including retaliation have steadily increased over the past decade.

-19-



Twenty percent of Title VII charges filed in FY 1997 included claims of 

retaliation, either standing alone or in conjunction with other charges; by FY 2006, 

that number had increased to nearly twenty-six percent.12 For all statutory claims 

giving rise to EEOC charges, not just Title VII charges, the percentage of charges 

that included retaliation claims reached nearly thirty percent as of FY 2006.13 One 

district court recently found retaliation so prevalent in the practices of an employer 

to create a triable issue of fact on the question of class-wide retaliation. Wright v. 

Stern, 450 F.Supp.2d at 374 (S.D.N. Y. 2006) (“Plaintiffs have presented evidence 

from which a reasonable jury could find that Parks engaged in a pattern or practice 

of retaliating against employees who engaged in protected activity.”)

CONCLUSION

For the foregoing reasons, and those authorities relied upon separately by the 

plaintiffs in their motion for rehearing, this Court should grant rehearing and set 

aside its ruling with respect to standing.

Dated: January \0^2OO8.

12 EEOC, Charge Statistics (FY 1997 through FY 2006) (Feb. 26, 2007), 
http://www.eeoc.gov/stats/charges.html.

13 Id.

-20-

http://www.eeoc.gov/stats/charges.html


Respectfully submitted,

Theodore M. Shaw, Director- 
Counsel
(Counsel of Record)

Robert H. Stroup 
NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, 
INC.

99 Hudson St, 16th Floor 
New York, N.Y. 10013 
(212) 965-2200

Lenora M. Lapidus 
Ariela M. Migdal 
Women Rights Project 
ACLU Foundation 
125 Broad Street, 18th Floor 
New York, NY 10004

Vincent A. Eng 
Asian American Justice Center 
1140 Connecticut Avenue, N.W. 
Suite 1200
Washington, DC 20036

Michael Foreman 
Megan Moran-Gates 
Lawyers’ Committee for Civil 

Rights Under Law 
1401 New York Avenue, NW 
Suite 400
Washington, DC 20005

-21-



Jennifer K. Brown 
Legal Momentum 
395 Hudson Street, 5th Floor 
New York, New York 10014

Stefano G. Moscato 
National Employment Lawyers 

Association
44 Montgomery St., Suite 2080 
San Francisco, CA 94104

Jocelyn C. Frye
National Partnership for Women 

& Families
1875 Connecticut Avenue, NW 
Suite 650
Washington, DC 20009

Jocelyn Samuels
Dina R. Lassow
National Women’s Law Center
II Dupont Circle, NW, # 800 
Washington, DC 20036

Melissa Josephs 
Women Employed
III  N. Wabash, Suite 1300 
Chicago, II. 60602

ATTORNEYS FOR AMICI 
CURIAE



CERTIFICATE OF COMPLIANCE 
WITH FEDERAL RULES OF APPELLATE PROCEDURE 

29 AND 32(A)(7)(B) & CIRCUIT RULE 29-2

Pursuant to Fed. R. App. P. 29 and 32(a)(7)(B) and Ninth Circuit Rule 29-2,

the attached amicus brief is proportionally spaced, has a typeface of 14 point

Times New Roman and according to Microsoft Office Word 2003 contains 3,984

words, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii).

Dated: January 18, 2008

Robert H. Stroup



CERTIFICATE OF SERVICE

I hereby certify that on this * Q day of January 2008,1 caused two copies of the foregoing

brief to be served by first-class, postage pre-paid, to:

JOSEPH M. SELLERS 
CHRISTINE E. WEBBER 
JENNY R. YANG
COHEN, MILSTEIN, HAUSFELD & 

TOLL, PLLC
1100 New York Ave., #500 
Washington, D.C. 20005-3964 
(202) 408-4600

IRMA D. HERRERA 
DEBRA A. SMITH 
EQUAL RIGHTS ADVOCATES 
1663 Mission Street, Suite 250 
San Francisco, CA 94103 
(415) 621-0672

SHEILA Y. THOMAS 
5260 Proctor Avenue 
Oakland, CA 94618 
(510) 339-3739

STEVE STEMERMAN 
ELIZABETH A. LAWRENCE 
DAVIS, COWELL & BO WE, LLP 
595 Market Street, Suite 1400 
San Francisco, CA 94105 
(415) 597-7200

BRAD SELIGMAN
Counsel o f Record
JOCELYN D. LARKIN
THE IMPACT FUND
125 University Avenue, Suite 102
Berkeley, CA 94710
(510)845-3473

STEPHEN TINKLER 
THE TINKLER LAW FIRM 
309 Johnson Street 
Santa Fe, NM 87501 
(505) 982-8533

DEBRA GARDNER 
PUBLIC JUSTICE CENTER 
500 East Lexington Street 
Baltimore, MD 21202 
(410) 625-9409

SHAUNA MARSHALL 
HASTINGS COLLEGE OF THE LAW 
200 McAllister Street 
San Francisco, CA 94102 
(415) 565-4685



MERIT BENNETT 
MERIT BENNETT, P.C.
460 St. Michaels Drive, Suite 703 
Santa Fe, NM 87505 
(505) 983-9834

NANCY L. ABELL
PAUL, HASTINGS, IANOFSKY, &
WALKER, LLP
Twenty-Fifth Floor
515 South Flower Street
Los Angeles, CA 90071-2228

THEODORE I. BOUTROUS, IR. 
GAIL E. LEES
GIBSON, DUNN & CRUTCHER 
333 South Grand Avenue 
Los Angeles, CA 90071

MARK A. PERRY
AMANDA M. ROSE
JAIME D. BYRNES
GIBSON, DUNN & CRUTCHER, LLP
One Montgomery Street
San Francisco, CA 94104

Robert H. Stroup