On September 16, 2011, the Ninth Circuit handed down one of the first decisions to interpret and apply the game-changing decision in Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. ___ (2011) (“Dukes”). Although Ellis v. Costco Wholesale Corp. (“Ellis”) is not as ground-breaking as the Dukes decision, it does provide some insight as to how the courts will apply the arguably employer friendly precedent established by Dukes.

In facts similar to Dukes, the case alleged a nationwide pattern and practice gender discrimination by Costco whereby Costco allegedly discriminated against women by refusing to promote them to the highest level management positions. Costco, which operates over 350 warehouse-style retail establishments nationwide, employs a management structure consisting of a General Manager (“GM”), two to three Assistant General Managers (“AGM”) and three to four Senior Staff Managers. GMs are responsible for the entire operations of their respective stores with AGMs as their second in command. Costco promotes almost exclusively from within its organization, with only current AGMs eligible for promotion to GM. Costco has no written policies or procedures for the selection and promotion process and does not retain records for the same.