On Tuesday, Magistrate Judge Francis issued a Report and Recommendation to Judge Torres in which he recommended denying class certification in a gender bias case against Goldman Sachs. The plaintiffs allege that Goldman’s practices of “360 Reviews” (employee reviews by peers, subordinates and superiors) and “quartiling” (requiring managers to rank their employees by placing them in groups, or “quartiles,” from best to worst performers) discriminate against women. Judge Francis found that individualized causation and damages issues were too predominate for classwide treatment:
While proof that the 360 review or quartiling processes have a disparate impact would create a presumptive causal link between those processes and an individual class member’s injury, Goldman Sachs would retain the right to demonstrate that there were other, legitimate explanations for any shortfall in compensation or failure to be promoted. See Chin, 685 F.3d at 151. At that point, evidence of the individualized factors that inform Goldman Sachs’ compensation and promotion decisions — the class member’s particular skills, the nature of the work in her business unit, the unit’s profitability relative to other units, and, indeed, the extent to which the employee’s manager considered 360 review and quartiling evaluations — would effectively swamp the common question of whether the evaluative policies have, on average a discriminatory impact. . . . . Take a hypothetical business unit with four Vice Presidents, all women, who, according to the plaintiffs’ statistical analysis, are each paid less than similarly situated male Vice Presidents. This could reflect their manager’s adherence to discriminatory performance measures. But quite plausibly, the budget for this business unit might simply be constrained as a result of the unit’s poor financial performance in the prior year; the women would appear to be victims of discrimination even in the absence of any biased decision making. Without specific information about the manager and the business unit, it could not be determined whether the apparent gender related disparity in compensation was caused by bias in the 360 review or quartiling processes or by some other factor . . . While the validity or bias of Goldman Sachs’ performance measures is a common issue, there are countless individualized factors that influence whether those performance measures cause legally cognizable injury. The common issues therefore are not predominant, as is required for certification under Rule 23(b)(3).