“Rarely does a binding precedent dictate an outcome more clearly than Wal-Mart Stores, Inc. v. Dukes dictates denial of class status here.”
—Corbin K. Barthold, WLF Litigation Counsel

(Washington, DC)—Washington Legal Foundation today filed an amicus curiae brief urging the Ninth Circuit to affirm the denial of a motion to certify a class of current and former employees of Microsoft.

Under Wal-Mart v. Dukes, a class may not challenge an array of employment decisions as discriminatory unless “some glue” holds “the alleged reasons for all those decisions together.” Without evidence that the various decisions are directly connected, Wal-Mart declares, it is “impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”

Like the plaintiffs in Wal-Mart, the plaintiffs in Moussouris v. Microsoft seek to certify a class of female employees who allegedly suffered sex discrimination in pay and promotions. Like the employees in Wal-Mart, however, the employees here participated in a discretion-based pay-and-promotion system. A discretion-based system stands on the judgment of individual managers. Left to their own devices, those managers will usually reach their pay and promotion decisions using a diverse array of factors. Like the plaintiffs in Wal-Mart, therefore, the plaintiffs here cannot point to a “common contention,” the “truth or falsity” of which will resolve “in one stroke” an “issue that is central to the validity” of each class member’s claim. The district court thus concluded that, just as in Wal-Mart, class certification here is improper.

In its brief, WLF establishes that this case is legally indistinguishable from Wal-Mart. WLF also discusses the many benefits of dispersing authority to lower-level managers. To keep pace with the rapidly changing modern economy, WLF explains, companies must remain creative and adaptable—and thus decentralized. 

Celebrating its 42nd year as America’s premier public-interest law firm and policy center, WLF advocates for free-market principles, limited government, individual liberty, and the rule of law.