On August 17, 2004, a female employee filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, and the Fair Employment and Housing Act, California Government Code section 12940, against Costco Wholesale Corporation in United States District Court in the Northern District of California. The plaintiff, represented by private counsel, asked the Court for declaratory and injunctive relief, as well as damages, alleging that Costco discriminated against her and other similarly situated females. Specifically, the plaintiff contended that Costco's management discriminates against women in promotions and that the defendant retaliated against the plaintiff. Ellis v. Costco, 372 F.Supp.2d 533 (N.D.C.A. 2005).

The original plaintiff filed the suit by herself, but was soon allowed to add two more plaintiffs as the case progressed. These named plaintiffs, on behalf of themselves and others similarly situated, charged that Costco's managerial promotion methods had a pattern and practice of gender discrimination, and disparate impact on women. Ellis v. Costco, 240 F.R.D. 634 (N.D.C.A. 2007). Because the defendant's failure to post or by any alternative means notify employees of specific promotion opportunities, female employees were unable to apply for promotions. Ellis v. Costco, 372 F.Supp.2d 533 (N.D.C.A. 2005). This practice, in combination with a promotion methodology that was subjective, arbitrary, and gender-based decision making by a nearly all-male managerial force, lead the plaintiffs to file suit. Ellis v. Costco, 240 F.R.D. 235 (N.D.C.A. 2007). Furthermore, upon filing with the EEOC and in Court, some plaintiffs were allegedly retaliated against by the employer. Ellis v. Costco, 240 F.R.D. 632 (N.D.C.A. 2007).

On January 11, 2007, the Court (Judge Patel) ruled on several motions, the most important of which, granting class certification. The Court certified a class of all current and former female Costco employees nationwide who have been denied promotion to General Manager or Assistant General Manager or denied promotion to Senior Staff positions since January 3, 2002. Ellis v. Costco, 240 F.R.D. 652 (N.D.C.A. 2007). The Court did not certify the plaintiffs claims over FEHA, only those made under Title VII. Ellis v. Costco, 240 F.R.D. 633 (N.D.C.A. 2007). With the certification, the Court granted an opt out opportunity to be provided in the class notice. The Court granted the class certification for the claims of damages and injunctive relief. Ellis v. Costco, 240 F.R.D. 644 (N.D.C.A. 2007).

According to the docket, the defendants have appealed the Court's (Judge Patel) decision, and the case is currently being stayed until this appeal is heard by the United States Court of Appeals of the 7th Circuit. The case is being held in abeyance pending resolution of Dukes v. Walmart, which is currently awaiting a decision on defendant's petition for a writ of cert. to the Supreme Court.

Matthew Aibel - 05/04/2008


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