Legal Advocacy continued

Legal Advocacy in Action

Rule 23 of the Federal Rules of Civil Procedure establishes the framework for certifying a class of litigants.

Moussouris v. Microsoft is an important case to clarify Ninth Circuit law with respect to the Rule 23 standards for approving or “certifying” a class action lawsuit. Over time courts have been weakening the ability of women to band together to pursue joint action challenging systemic discrimination.

This case has been brought on behalf of a class of current and former female Microsoft employees who have been disadvantaged by Microsoft’s pay and promotion systems.

The plaintiffs in the case asserted that Microsoft systematically undervalued female technical employees in their “calibration” or evaluation process because female employees received, on average, lower rankings despite equal or better performance. In their complaint, the plaintiffs also allege that Microsoft has a “continuing policy, pattern, and practice of sex discrimination against female employees in technical and engineering roles … with respect to performance evaluations, pay promotions, and other terms and conditions of employment.” The plaintiffs Katherine Moussouris and Holly Muenchow moved to certify a class of employees, representing approximately 8,000 current and former female Microsoft employees.

The U.S. District Court for the Western District of Washington denied class certification of their Title VII gender discrimination class action.  The district court found that the plaintiffs’ did not demonstrate a common question to be resolved on behalf of the putative class, the claims were not typical of the class members, and the plaintiffs were not adequate representatives of absent class members.

The plaintiffs sought to appeal the decision.  We signed on to the initial amicus brief asking for the appeal, and on September 20, 2018, the Ninth Circuit granted permission to appeal the district court’s June 25, 2018 order denying class action certification.   

Now that the appeal has been granted, the most recent amicus brief focuses in more depth on the rationale and proper standard for certifying the class, such that the Ninth Circuit will find it was improper for the lower court to deny class certification. The amicus brief we joined clarified the legal standards for bringing class actions set out in Wal-Mart v. Dukes, a previous LAF-supported case.

AAUW joined amicus briefs in this case because we advocate for equitable access and advancement in employment, including vigorous enforcement of employment discrimination statutes and the right to challenge discriminatory employment practices through class actions. This case muddied the evidentiary standards for establishing systemic disparate treatment and disparate impact discrimination, and made numerous errors in its interpretation of the class action rules. This case would make it much more difficult to get employment discrimination classes certified. 

All Eyes on the Supreme Court

As we reported in earlier editions of LAF Express, the Supreme Court is now deciding what cases it will hear. We will continue to monitor the LAF supported Rizo v. Fresno County Office of Education case, to update you when the Supreme Court makes a determination.

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