Last week, the Ninth Circuit Court of Appeals affirmed certification of the largest class action employment discrimination case in U.S. history.  The plaintiffs allege that Wal-Mart pays its female associates less than men, and discriminates with regard to promotion opportunities.  The plaintiffs introduced evidence that Wal-Mart’s hiring and promotion practices are centralized, creating common issues of gender discrimination across the entire company.  The class certified is estimated to include up to 1.5 million current and former female Wal-Mart employees, as well as rejected applicants.

While the Ninth Circuit made no decision on the merits of the case, the size of the certified class alone demonstrates an increasing willingness of some federal courts to recognize class actions as the appropriate mechanism to address allegations of discriminatory employment policies.  In this case, Wal-Mart contended that the alleged class was too large and diverse to have the commonality of interests, facts, and potential claims required for class action certification.  The Ninth Circuit concluded that the size of the proposed class alone is not a defense to a certification motion.  In this case, the plaintiffs were able to show company-wide policies and statistical information that met the requirements of the commonality standard.  Wal-Mart may appeal this certification to the U.S. Supreme Court.  If this appeal is unsuccessful, the suit will move to the discovery and trial phases.