BERKELEY -- Brad Seligman is a determined civil rights lawyer with a small office and a powerful idea for turning a single lawsuit by an East Contra Costa Walmart worker into a nationwide class action claim against America's largest employer.
Armed with stories from several women -- including Betty Dukes, now a greeter at the Pittsburg store -- who said they were passed over for promotions at Walmart, Seligman is steering what could be the largest job-discrimination case in U.S. history, affecting as many as 2 million women and putting at risk tens of billions of dollars of the company's money.
The suit has historic implications if the high court accepts its reliance on statistics to make the case the Walmart favored men for management positions. A decision for Walmart could signal the end of such nationwide, class action lawsuits.
This U.S. Supreme Court case, a decade in the making, has been described as the battle of Berkeley vs. Bentonville, in which crusading liberal lawyers take on the conservative, male-dominated culture of the Arkansas-based retail giant.
The case of Walmart v. Dukes could be said to have begun in 1994 when Dukes began work as a cashier at a store in Pittsburg, where she clashed with a female supervisor. After several years, she complained she had been denied opportunities to advance, despite good performance reviews.
When Seligman launched his suit in 2001, he named Dukes as the lead plaintiff. As
The court's ruling could be the most far-reaching decision on job bias in more than a decade, according to experts on both sides. A win for Seligman's clients could open the door for the broader use of statistics to prove job discrimination -- and not just on behalf of women, but also for minorities or persons with disabilities.
A win for Walmart could deal a death blow to nationwide job-bias suits by ruling that employees who work in different stores and hold different jobs do not have enough in common to be a class.
U.S. 9th Circuit Court of Appeals Chief Judge Alex Kozinski, in a dissent to a ruling for the workers last year, said the million-plus women who have worked at Walmart "have little in common but their sex and this lawsuit."
But proving a single worker was a victim of illegal discrimination is slow, hard and costly. In its defense, the employer can often point to good reasons for promoting one person over another.
In a class action, by contrast, the numbers can speak for themselves -- and they do so loudly. Given a computer and a court order, a statistician can paint a damning portrait of a company.
A statistician hired by Seligman found that at Walmart, women make up about two-thirds of the hourly employees but less than 14 percent of store managers. And in nearly every job category, women earned less than men, even though they had, on average, more seniority.
"Women are treated as second-class employees at Walmarts from Florida to Alaska," Seligman said.
But Walmart's lawyers sharply dispute the statistics cited by Seligman.
They said there is no pay difference between men and women at 90 percent of stores. And decisions about who is hired or promoted are made locally, they said, not because of a companywide policy.
Los Angeles lawyer Theodore Boutrous, who represents Walmart, said Seligman is trying to create a new theory of class actions based on "structural discrimination."
Rather than rebut the statistics before a jury, the company has fought fiercely to defeat class action status for the suit before the case can go to trial. So far, Seligman has been winning -- but only before judges in San Francisco.
In 2004, a federal district judge there ruled the suit could proceed as a class action. The often liberal-leaning 9th Circuit agreed by a 2-1 vote in 2007 and again in a 6-5 decision in April.
But the more conservative U.S. Supreme Court, which has mostly frowned upon sprawling lawsuits against companies, will hear Walmart's appeal Tuesday. And legal experts said the advantage has shifted in the company's favor.