The EEOC has recently reversed course and decided to get involved in Dukes v. Wal-Mart Stores, Inc., currently set for oral argument before an en banc panel of the 9th Circuit on March 24. The district court and a divided panel of the Ninth Circuit have previously held that a class of 2 million potential plaintiffs in a gender discrmination lawsuit could be certified and that claims for punitive damages would not be tried on a case-by-case basis. The EEOC had decided not to get involved in this case as it worked its way up through the courts. According to the Recorder, Brad Seligman of the Impact Fund said that the recent amicus brief filing does not represent “a radical new EEOC making this decision.” Robin Conrad of the U.S. Chamber of Commerce disagrees, telling the Recorder, “It’s very troubling that the Obama administration thinks it might be appropriate to impose massive punitive damages on companies without ever giving them their day in court.”

In its amicus brief, the EEOC argues that “Punitive damages lend themselves to classwide determination in a Title VII pattern-or-practice case since neither the claim nor the damages focuses on individual victims of discrimination. The focus of a claim under a pattern-or-practice theory is not on individual employment decisions but rather on an overall ‘pattern of discriminatory decisionmaking.’”

Wal-Mart’s lawyer, Theodore Boutrous Jr. at Gibson, Dunn & Crutcher, called the EEOC’s position “fundamentally incorrect.”

The composition of the en banc panel suggests that this could be a closely divided opinion. The panel members include Chief Judge Kozinski, and Circuit Judges Reinhardt, Rymer, Hawkins, Silverman, Graber, Fisher, Paez, Berzon, Bea and Ikuta.