disparate treatment

Say It Again: No Common Question Binds a Class Subject to Thousands of Individualized Pay Decisions

Echoing an increasingly familiar refrain, another district court has declined to certify a class of women bringing pay equity claims on the basis that they did not present a common question capable of producing a common answer to “the crucial question why was I disfavored.” Relying largely upon Wal-Mart Stores, Inc. v. Dukes, the court found certification inappropriate because the putative class members were subject to countless independent decisions involving the judgment and discretion of individual managers. The case also serves as another reminder that courts (including California state courts) will not accept an overly simplistic analysis comparing broad job categories or titles, but will continue to look at actual business practices and job responsibilities to ensure comparators are “similarly situated” so a meaningful pay comparison can be made. READ MORE

Ninth Circuit Holds Statistical Evidence May Establish Prima Facie Claim of Disparate Treatment Without Accounting for Defendant’s Legitimate, Non-Discriminatory Reasons for Adverse Action

In Schechner v. KPIX-TV, No. 11–15294, 2012 WL 1922088 (9th Cir. May 29, 2012), the Ninth Circuit Court of Appeals held that a plaintiff may establish a prima facie case of disparate treatment age discrimination using statistical evidence, even where that evidence does not account for a defendant’s legitimate non-discriminatory reasons for the adverse employment action.  However, the court found the plaintiffs’ statistical evidence insufficient to demonstrate that the defendant’s proffered reasons for the adverse employment action were pretextual. READ MORE