appropriate equitable relief

Otto E. Passman represented Louisiana's Fifth Congressional District in the United States House of Representatives. On February 1, 1974, he hired Shirley Davis as a deputy administrative assistant at an annual salary of $18,000, with an expected promotion to administrative assistant at $32,000 upon the retirement of the current assistant. Davis was not hired through the competitive service. Passman was defeated in the 1976 primary election, and his tenure in office ended January 3, 1977. On or about July 31, 1974, Passman terminated Davis's employment by letter. Although he stated that she was able, energetic, and a very hard worker, he concluded that it was essential that the understudy to his administrative assistant be a man. The letter offered continued pay through July 31 plus an extra month of vacation and noted that secretaries of her ability were in demand in Monroe, Louisiana. Davis filed suit against Passman in the United States District Court for the Western District of Louisiana. She alleged that the termination discriminated against her on the basis of sex in violation of the United States Constitution and the Fifth Amendment. She sought damages in the form of backpay along with equitable relief including reinstatement, promotion, and salary increase. She invoked jurisdiction under 28 U.S.C. § 1331(a) on the ground that the matter in controversy exceeded $10,000 and arose under the Constitution. Passman moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), contending among other things that the law afforded no private right of action for the claim. The district court granted the motion and dismissed the complaint, ruling that Davis had no private right of action. A panel of the Court of Appeals for the Fifth Circuit reversed that dismissal. The Fifth Circuit sitting en banc then reversed the panel. It held that no right of action may be implied from the Due Process Clause of the Fifth Amendment. It also held that the proposed damage remedy was not constitutionally compelled. The Supreme Court granted certiorari. Since Passman was no longer a Member of Congress by the time the case reached the Supreme Court, equitable relief such as reinstatement was unavailable.

The Los Angeles Department of Water and Power administered retirement, disability, and death-benefit programs for its employees, with monthly retirement benefits computed as a fraction of salary multiplied by years of service. The Department required its 2,000 female employees to make monthly contributions to the pension fund that were 14.84% higher than those required of its 10,000 male employees, based on a study of mortality tables and its own experience showing that women on average live longer than men. This resulted in female employees taking home less pay than male employees earning the same salary, even though monthly benefits for men and women of the same age, seniority, and salary were equal and the plan was funded entirely by contributions from employees and the Department. In 1973, respondents brought this suit in the United States District Court for the Central District of California on behalf of a class of women employed or formerly employed by the Department. They prayed for an injunction and restitution of excess contributions. While the action was pending, the California Legislature enacted a law prohibiting municipal agencies from requiring female employees to make higher pension fund contributions than males, and the Department amended its plan effective January 1, 1975, to draw no distinction in contributions or benefits on the basis of sex. On a motion for summary judgment, the District Court held that the contribution differential violated federal law and ordered a refund of all excess contributions made before the amendment of the plan. The United States Court of Appeals for the Ninth Circuit affirmed that judgment. We granted certiorari to decide whether this practice discriminated against individual female employees because of their sex in violation of § 703 (a) (1) of the Civil Rights Act of 1964, as amended. The case was argued on January 18, 1978.

In 1978, Western Air Lines, Inc. operated commercial flights using aircraft such as the Boeing 727 and McDonnell-Douglas DC-10, each requiring a captain, first officer, and flight engineer in the cockpit. The Federal Aviation Administration prohibited pilots and first officers from serving after reaching age 60 but imposed no such mandatory retirement age on flight engineers. Western maintained a retirement plan requiring all cockpit crew members, including flight engineers, to retire at age 60. Respondents Criswell and Starley served as captains on DC-10s and turned 60 in July 1978. To avoid retirement, they bid for flight engineer positions based on seniority under the collective-bargaining agreement. Western denied their applications, citing the retirement plan provision. Respondent Ron, a career flight engineer, was also retired upon turning 60 that year. Criswell, Starley, and Ron filed suit in the District Court for the Central District of California alleging that Western's under-age-60 qualification for flight engineers violated the Age Discrimination in Employment Act of 1967. At trial, the parties presented evidence on the flight engineer's duties, which are less critical than a pilot's during normal operations but important in emergencies, along with conflicting medical testimony regarding age-related physiological changes and the feasibility of individualized medical examinations for persons over 60. Several airlines employed flight engineers over age 60 without safety issues. The jury received instructions defining the BFOQ defense and requiring Western to prove both the reasonable necessity of the age qualification to safe operations and the impracticality of individualized assessments. The jury returned a verdict for the plaintiffs and awarded damages. The District Court granted additional equitable relief. On appeal, the Court of Appeals for the Ninth Circuit affirmed the judgment in all respects. The Supreme Court granted certiorari to review the BFOQ instruction issue.

In 2001, three current or former female employees of Wal-Mart Stores, Inc.—Betty Dukes, Christine Kwapnoski, and Edith Arana—filed a lawsuit in the Northern District of California alleging that the company had discriminated against them and other women in pay and promotions. Wal-Mart, the nation’s largest private employer with approximately 3,400 stores across the country and more than one million employees, delegated pay and promotion decisions to local store managers who exercised broad discretion in a largely subjective manner. The plaintiffs claimed that this discretion was exercised disproportionately in favor of men, resulting in lower pay and fewer promotions for female employees. They sought to represent a class of approximately 1.5 million current and former female employees who had worked at any Wal-Mart domestic retail store since December 26, 1998. To support their motion for class certification, the plaintiffs presented statistical evidence from experts Dr. Richard Drogin and Dr. Marc Bendick showing pay and promotion disparities between men and women, anecdotal evidence consisting of about 120 affidavits from female employees describing discriminatory experiences at only 235 of the company's 3,400 stores, and the testimony of sociologist Dr. William Bielby who analyzed Wal-Mart’s corporate culture. Betty Dukes began working at a Pittsburg, California store in 1994 as a cashier and was later promoted to customer service manager before being demoted; she alleged retaliation and that male greeters were paid more. Christine Kwapnoski worked at Sam’s Club stores and claimed a male manager yelled at female employees and told her to “doll up.” Edith Arana worked at a Duarte, California store from 1995 to 2001. She was denied opportunities for management training despite repeated requests. The District Court certified the class under Federal Rule of Civil Procedure 23(b)(2), finding that the plaintiffs had presented significant evidence of a company-wide pattern of discrimination. The Court of Appeals for the Ninth Circuit, sitting en banc, substantially affirmed the certification order. The Supreme Court granted certiorari to review whether the class certification was consistent with Rule 23(a) and (b)(2).