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Fortune magazine didn’t include Costco, the national retailer, on the list of 100 best employers it released earlier this month. And U.S. District Judge Marilyn Hall Patel probably wouldn’t list the company, either, at least as far as women are concerned. In an order granting class certification to an estimated 600-700 current and former Costco employees, Patel agreed with plaintiff lawyers that there is “strong evidence of a common culture at Costco which disadvantages women.” The plaintiffs’ team, led by Brad Seligman of the Impact Fund in Berkeley, had argued that they had sufficient evidence of gender disparities in Costco’s promotion practices to have the court certify a plaintiff’s class. They sued Costco in August 2004, alleging violations of Title VII of the 1964 Civil Rights Act and the Fair Employment and Housing Act, among other statutes. One plaintiff’s expert showed that at competitors’ stores about 34 percent of store manager and assistant manager positions go to women, said Jocelyn Larkin, Seligman’s co-counsel at the Impact Fund. At Costco, she asserts, women get hired for only about 13 to 17 percent of those jobs. “In these cases, the fight always comes down to the question of, ‘Is there a common practice across the company?’ I think we were able to persuade [Patel] � that there was,” Larkin said. Neither a Costco spokesperson nor lead defense attorney David Kadue, a partner at Seyfarth Shaw, was immediately available for comment. According to Patel’s ruling, some of the damage Costco suffered in the class certification stage was self-inflicted. The retailer claimed that gender disparities, if they exist, are not related to Costco’s culture and promotion processes. Instead, the company suggested that women do not want to come in early in the morning to work management jobs. Patel clearly wasn’t swayed by this. “What defendant has presented is an argument that is common to the class, and, if anything, supports the commonality factor,” Patel wrote in her ruling. The judge also rejected a defense argument that two of the name plaintiffs who are former Costco employees, Shirley Rae Ellis and Leah Horstman, do not have standing to sue for injunctive relief that would only affect current employees. “To hold that employees must continue to work in jobs where they face discrimination in order to challenge the discrimination would pervert Article III’s injury-in-fact requirement,” Patel wrote. Larkin said she was pleasantly surprised by how quickly Patel issued her ruling, given that the case record was very complicated. The district judge heard arguments on the motion in November. The case is Ellis v. Costco, 04-03341.

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