Wal-Mart Stores last week asked the U.S. Supreme Court to reverse an appeals court decision that a massive sex-discrimination case against the company can proceed as a class action.

The case involves more than a million current and former female employees of Wal-Mart and its warehouse membership arm, Sam's Club. For the company, one of the world's biggest, a billion dollars or more might be at stake.

And Dukes v Wal-Mart Stores, Inc., the largest employment discrimination case in U.S. history, was started by two lawyers right here in Santa Fe nearly a decade ago.

Former law partners Stephen Tinkler and Merit Bennett are still key members of an elite legal team representing six named plaintiffs, all of whom are California residents, in the high-profile case.

Seven law firms are working on their response to the writ of certiorari submitted by Wal-Mart requesting a review of the decision last April by the U.S. Court of Appeals for the 9th Circuit.

The Wal-Mart petition is a couple of hundred pages ("It's a book; I'm not kidding," Tinkler said) and the plaintiffs' response, due Oct. 25, is likely to be as long. The high court will decide whether to grant cert during the term that begins next month. Four votes are needed.

Bennett said last week that he didn't think the justices would take the case and reverse the lower court.

But predicting what this court will do is chancy. When the case was filed in 2001, there probably was not a prayer of having cert granted, the lawyers say. But the court has changed dramatically since then.

"Do I think there are four guys (on the court) who might want to hear it; and can I think of three women who might not want to?" Tinkler said. He added that he thought the 9th Circuit opinion was "strong, not lightweight."

If the case gets sent back to the federal district court in San Francisco for trial on the merits, the legal team is confident of winning.

"We've taken a hundred depositions and (have accumulated) a couple million documents," showing sex discrimination in compensation and promotions by Wal-Mart, Tinkler said. "We have proof of all this. This is not fluff."

A treasure trove of information

After winning a major sexual harassment case against Sam's Club in 1996, Bennett and Tinkler filed two more cases on behalf of other female employees of the store. The second of those cases yielded a treasure trove of information including a breakdown of Wal-Mart's entire work force, including management, by gender. The statistics showed that the hourly employees were between 65 and 70 percent female and the management was almost exactly the reverse.

The Santa Fe lawyers realized they had the makings of a class-action suit and began looking for a plaintiff who had suffered the harm they found in the documents from among the many individual clients who contacted them.

In January 2000, Stephanie Odle called from Lubbock, Texas, saying she had been denied the opportunity for promotion at a Sam's Club and had been wrongly terminated. They realized that she typified what they believed had been happening at Wal-Mart since the 1970s and posed the idea to her of turning her case into a class action. "She was game," Tinkler said.

But realizing that they would need more firepower to bring a class-action suit against the retail giant, Tinkler said they contacted a sexual harassment expert in Berkeley, Calif. who put the Santa Fe attorneys in touch with Brad Seligman, an employment lawyer who had retired from private practice to create The Impact Fund, a nonprofit legal firm that advises other lawyers on class actions.

In March 2000, the Santa Fe lawyers met with Seligman, who immediately concluded, "We got something here," and over the following months they began assembling the legal team. In addition to Tinkler and Bennett (who now have their own practices) and The Impact Fund, the team includes lawyers from Davis, Cowell & Bowe, a San Francisco firm representing workers and labor organizations; attorneys from Cohen Milstein, a plaintiffs' class-action law firm in Washington, D.C.; a Baltimore nonprofit called Public Justice; and Equal Rights Advocates, a nonprofit legal organization based in San Francisco.

The team created one website where current and former employees of the company could contact them and another website just for storing documents.

The lawyers also realized that from a legal point of view, their best shot at a class action would be in the 9th Circuit based in San Francisco, rather than the 5th, which is in Texas, where Odle had been employed.

In June 2001 they filed the lawsuit, with Seligman as lead attorney and the Cohen Milstein firm administering the case.

Odle was replaced by Betty Dukes of California as lead plaintiff when the district court in California said only California residents could be named plaintiffs.

Tinkler and Bennett, along with the other lawyers, traveled around the country taking, and defending, depositions, helping formulate the legal strategy and appearing in court for various hearings.

For more than a decade the Santa Fe lawyers have worked the case without any compensation ("only a smile on my face," Bennett said) — although the reward in the end could be handsome.

Actually, "The way Merit and I look at it, it's been more than 14 years because we had the idea in 1997 and started actively pursing it in 1998," Tinkler said.

'The short end of the stick'

Wal-Mart has repeatedly denied the underlying charges, claiming that if there are problems of discrimination against women, they only apply to specific stores and do not result from company policy. In a news release earlier this year the company said that the claims are not "representative of the experiences of our female associates."

But Bennett, who has taken depositions from women in Montana, Missouri, Alabama, Texas and other places, said that Wal-Mart is a top-down, penny-pinching company that even controls the temperature in all its stores from its headquarters in Bentonville, Ark.

"Wal-Mart is trying to say that this is a parochial thing, but that simply wasn't true," he said.

He said the way promotions usually happened began with a "shoulder tap." A manager would alert a male buddy to an opening. There was no policy allowing women a fair chance to move up the ladder, he said.

"And when it's all men at the top and the good old boys rule, that means women get the short end of the stick."

If Wal-Mart loses the discrimination case, every woman who was employed by the company since Dec. 1, 1998 might be eligible for compensation.

At the moment, any woman who worked for the discount store from June 21, 2001, to the present is automatically included in the suit. The class also includes any woman who worked there prior to that date going back to December 1998, so long as she was still employed on June 21, 2001.

A woman who worked for the company from December 1998 through June 20, 2001, is still part of the suit, but whether she is a member of this class will be determined when the case gets back to district court.

Bennett said the number might reach 2 million.

The lawyers are continuing to take information from female employees while the case has been on appeal and, "We still to this day hear stories of discrimination," Tinkler said.

Some things have indeed changed at the company as a result of the lawsuit, he acknowledged. For example, the company now has a management training application process. And about five years ago it did a "huge pay adjustment for women" that brought them closer to parity with men, he said.

Absent a decision on the merits of the case, that "feels good," he said, but the intake rate suggests that "gender discrimination is alive and well at Wal-Mart" and, "they have not eradicated the deeply rooted problem of gender discrimination which has been present in the company since its inception."

Just being a player in such a massive case has been rewarding, according to Bennett. "To be part of (something ) on this scale, the average lawyer doesn't get to do it."

Contact Anne Constable at 986-3022 or aconstable@sfnewmexican.com.

On the Web
To report gender discrimination at Wal-Mart: www.walmartclass.com.