SAN FRANCISCO — The Ninth Circuit Court of Appeals here has asked both sides in a gender-discrimination suit against Costco Wholesale Corp. to refine their arguments in the wake of last month's Supreme Court decision in a Wal-Mart Stores discrimination case.
Attorneys for Issaquah, Wash.-based Costco and for the plaintiffs in the lawsuit have been asked to file simultaneous briefs by late July.
“We've been asked to tell the court what the decision in the Dukes case against Wal-Mart means to our case,” said Brad Seligman, the Berkeley, Calif.-based attorney from The Impact Fund who represents the female employees alleging discrimination.
In the Wal-Mart suit, the U.S. Supreme Court ruled against the plaintiffs, saying they had failed to point to a common corporate policy that resulted in gender discrimination at the stores.
The Costco suit, filed in 2004, alleges the company limited promotions of female employees to general manager and assistant general manager positions by failing to post such job openings.
The Costco case had been put on hold in 2007 by the appeals court pending a decision in the Wal-Mart suit, Seligman said.
After both sides file their refined arguments, the Ninth Circuit Court will decide whether to set a hearing on the matter; to send it back to the U.S. District Court, which originally certified the plaintiffs as a class; or to dismiss the case outright.
Seligman said he could not predict when the appeals court would make a decision. Joel Benoliel, senior vice president and chief legal officer for Costco, told SN he expects a decision by the end of the summer.
Benoliel said he believes the appeals court will dismiss the case because it involves “the same lawyers using the same theories … [and] the same experts [as in the Wal-Mart case] to conjure up this guilt-by-statistical-evidence.
“I think our case will be dismissed for exactly the same reasons — the case is fatally flawed and has been from the beginning.”
Seligman told SN he believes the Costco suit will not be affected by the Wal-Mart decision, based on the differences between the cases that he intends to point out in his filing. “In our view, there are three fundamental differences,” he told SN.
“First, unlike Wal-Mart, which challenged decisions on promotion across a wide variety of job positions, the Costco suit involves only the positions of general manager and assistant general manager, which is a much narrower range.
“Second, the Wal-Mart challenge involved decentralized decision-making at thousands of stores, which the Supreme Court said implied there was not a corporate policy on promotions. In the Costco case we've argued that the decisions on promotions were made at corporate headquarters because top management signs off on all general manager and assistant manager promotions.
“Third, the Wal-Mart case involved more than 1 million employees, which the Supreme Court said made it impossible to calculate damages on an individual basis, whereas our case involves only about 1,000 women, which means it would be feasible to determine individual damages.”
