In Parra v. Bashas', Inc., ___ F.3d ___ (July 29, 2008), the Ninth Circuit reversed an order denying class certification of plaintiffs' claim for pay discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 1981). The plaintiffs were Hispanic employees of a grocery store chain. The opinion focuses on the commonality element of class certification:
[T]he Plaintiffs here establish commonality even though their individual factual situations differ because they all seek a common legal remedy for a common wrong. Plaintiffs here not only presented evidence of discriminatory pay scales, but also provided statistical and anecdotal evidence of discrimination by Bashas’, Inc. These pay scales were common for all Bashas’, Inc. employees and provided for different pay for similar jobs based only on the store where the employee worked. The proposed class here shares the alleged discriminatory pay scales of Bashas’, Inc. The class definition seeks to reach those Hispanic employees who suffered past discrimination under these pay scales.
Finally, at oral argument, Bashas’, Inc. argued that the difficulty in redressing the harm and calculating the various pay disparities for the different employment positions precludes class certification. We disagree. We have previously held that classes with far more complex remedies can seek redress in the form of a class action. See, e.g., Staton [v. Boeing Co.], 327 F.3d [938,] 953-57 [(9th Cir. 2003)]. The claimed difficulties in the calculations of damages, as they affected the various class members, do not preclude class certification.
In this case, the Plaintiffs presented the district court with extensive evidence showing Bashas’, Inc.’s discriminatory pay practices commonly affected all members of the proposed class. We conclude the district court abused its discretion in failing to find commonality existed in the original class definition.
Slip op. at 9642 (emphasis and hyperlink added). Footnote 3 of the opinion is also quite interesting:
Although this circuit has, up to now, never reversed a district court finding that commonality was lacking in an employment suit, other circuits have. See, e.g., Forbush v. J.C. Penny Co., 994 F.2d 1101, 1106 (5th Cir. 1993); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986); Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir. 1982).
Id. at 9641 n.3. The Ninth Circuit has frequently affirmed commonality findings in employment cases, however. See, e.g., Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007).