Wal-Mart Asks Supreme Court to Hear Bias Suitc

Wal-Mart Stores asked the Supreme Court on Wednesday to review the largest employment discrimination lawsuit in American history, involving more than a million female workers, current and former, at Wal-Mart and Sam’s Club stores.

Nine years after the suit was filed, the central issue before the Supreme Court will not be whether any discrimination occurred, but whether more than a million people can even make this joint claim through a class-action lawsuit, as opposed to filing claims individually or in smaller groups.

In April, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled 6-5 that the lawsuit could proceed as a jumbo class action — the fourth judicial decision upholding a class action.

The stakes are huge. If the Supreme Court allows the suit to proceed as a class action, that could easily cost Wal-Mart $1 billion or more in damages, legal experts say.

More significant, the court’s ruling could set guidelines for other types of class-action suits. “This is the big one that will set the standards for all other class actions,” said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, an arm of the United States Chamber of Commerce, which has filed several amicus briefs backing Wal-Mart.

Meanwhile, the women at the core of the original lawsuit, known as Dukes v. Wal-Mart, have tried to move on with their lives. Some still work at Wal-Mart and have been promoted or received raises. One still works as a greeter there. Others have left Wal-Mart.

The case began nearly a decade ago with one woman, Stephanie Odle, who was upset to discover that the top manager at the Sam’s Club where she worked as an assistant store manager had been administering a promotion test to the three male assistant store managers but not to her.

That came after Ms. Odle discovered that a male assistant manager at a previous Sam’s Club where she worked had been earning $23,000 more a year than she was. When she complained, she said, the district manager responded, “Stephanie, that assistant manager has a family and two children to support.”

“I told him, ‘I’m a single mother, and I have a 6-month-old child to support,’ ” she recalled in an interview.

Lawyers representing the plaintiffs recruited Ms. Odle after obtaining a data showing that just a third of Wal-Mart’s managers were women even though two-thirds of its employees were. The lawyers wanted to enlist a Wal-Mart employee whose complaints about pay and promotions would be a base from which to build a broader sex discrimination case.

Ms. Odle’s story, along with those of six other women, became the seed of the 2001 lawsuit that accused Wal-Mart of systematic discrimination against women in pay and promotions. No one expected it to become such a drawn-out battle.

In its appeal, Wal-Mart said the Ninth Circuit’s decision had contradicted earlier decisions of the Supreme Court and other appeals courts and had wrongly relieved the plaintiffs of the burden of proving individual injury.

“This conflict and confusion in class-action law is harmful for everyone — employers, employees, businesses of all types and sizes, and the civil justice system,” said Theodore Boutrous, a lawyer for Wal-Mart.

In its filing, Wal-Mart argued that while a class action might be appropriate for plaintiffs seeking changes to the retailer’s behavior, the status was improper for seeking monetary damages.

The company said the complaints of the seven women were not typical of the more than one million women who have worked at Wal-Mart in the last decade. In a statement Wednesday, Wal-Mart said that it “has been recognized as a leader in fostering the advancement and success of women in the workplace.”

Brad Seligman, a lawyer for the women, disputed Wal-Mart’s legal analysis. “The ruling upholding the class in this case is well within the mainstream that courts at all levels have recognized for decades,” he said in an e-mail Wednesday. “Only the size of the case is unusual, and that is a product of Wal-Mart’s size and the breadth of the discrimination we documented. There is no ‘too big to be liable’ exception in civil rights laws.”

The slow grind of the legal process has taken its toll on the plaintiffs.