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There are 40 federal judicial vacancies and 16 nominations before the Senate right now—as our civil rights hang in the balance, take action now!
NWLC signed an amicus brief submitted by the Impact Fund and 32 other organizations to the Ninth Circuit. In the brief, we argued that the district court used an improper legal standard to evaluate the anecdotal evidence offered to demonstrate the existence of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). In conjunction with statistical analyses and a substantial body of evidence petitioners submitted eleven declarations from female employees explaining how the policies worked in practice, as well as evidence of hundreds of internal complaints of gender bias.
The district court ignored the purpose for which the anecdotal evidence was offered and instead treated it as a species of statistical evidence, counting the declarations rather than analyzing whether they tended to corroborate the existence of “common” questions in light of the totality of the evidence. It faulted plaintiffs for failing to submit a sufficient number of declarations, proportionate to the size of the class, corresponding to specific job categories and representative of every state in which the employer operated. The lower court, in effect, erected an arbitrary numerical threshold for anecdotal evidence in Title VII class actions supported by neither the language of Rule 23(a) nor case law. This is particularly pernicious in the context of systemic gender discrimination litigation. Mandating a minimum number of litigation declarations with specific geographic and departmental distribution to demonstrate commonality, while at the same time ignoring hundreds of formal complaints of gender bias, will frustrate the vindication of anti-discrimination laws and permit barriers to women’s advancement to remain firmly in place.
Update: NWLC signed a second amicus brief to the Ninth Circuit in the case Moussouris v. Microsoft. The court is now hearing the merits of the appeal after granting the previous petition. The brief submitted by the Impact Fund and 33 other organizations continues to argue that the district court used an improper legal standard to evaluate the anecdotal evidence offered to demonstrate the existence of “questions of law or fact common to the class”.
