Standing Up to the Waltons 

Christine Kwapnoski toiled for Wal-Mart for two decades with little advancement. Now she faces the world's top company in an unprecedented class action.

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The class action has its roots in Santa Fe law firm Tinkler & Bennett, which had been among the first to litigate sexual-abuse claims against the Catholic Church. In 1996, it won a $2 million verdict in a sex-harassment suit against Wal-Mart, and once that news got out, the complaints just kept coming. "In doing the cases it was apparent to us that the whole workplace was fairly hostile to women," recalls attorney Stephen Tinkler. "We had a feeling that, generally, where there's harassment there's discrimination underneath it."

To prove discrimination, the lawyers needed more than individual complaints: They needed numbers. Tinkler got a lucky break in 1998 when a federal judge ordered Wal-Mart to produce stats showing the gender breakdown between its hourly workers and its management staff. "We were shocked by how bad they were," he remembers. The situation seemed ripe for a class action, and the firm began looking for the right plaintiff.

Tinkler & Bennett found her in January 2000: a Sam's Club employee named Stephanie Odle. She believed she'd been fired because of her gender after a difficult eight years in which she had been repeatedly denied advancement, accused of violating company policies, and forced to move all over the Southwest to keep her job. The suit gained its East Bay connection that March, when Tinkler, recognizing that the case was too big for his small firm to handle, approached the Impact Fund for advice. The Berkeley firm, which provides money and research assistance to lawyers that litigate civil rights and antidiscrimination cases, agreed to team up with Tinkler. Together, they assembled a team that includes lawyers from four additional law firms, which Tinkler calls "kind of unheard of." But the six smaller firms knew they were taking on a true Goliath: Wal-Mart is represented by Paul, Hastings, Janofsky & Walker, an international firm with more than 950 lawyers that grossed $537 million last year. What's more, the case promises to involve more than a million documents, and perhaps thousands of depositions.

Finding willing plaintiffs proved tough at first. Like Kwapnoski, some were reluctant to contact or use the 800 number the attorneys had set up. It turned out Wal-Mart had its own 800 number for workers with job concerns, but using it, rumor had it, would earn you a pink slip -- some employees even referred to the hotline as 1-800-GET-FIRED. "Wal-Mart is rabidly anti-union," Larkin says. "They tried to ferret out people who are dissatisfied or complaining, and the number was a great way for people to self-identify."

But as employees began to come forward, it became clear to the lawyers that Wal-Mart had a systemic problem. "It was the same pattern in every store -- it wasn't one or two bad apples," Larkin says. "The culture of Wal-Mart lent itself to discrimination."

Until last year, she notes, Wal-Mart lacked a formal application process for management positions, or one to notify employees when such positions were available. Instead, outgoing managers would choose their own successors, who tended to be male. Another barrier was the belief among employees that managers had to be willing to relocate their families within 24 hours should the job require it. True, the chain once had such a policy, Larkin says, but it was dropped after founder Sam Walton criticized it in his 1992 autobiography as an impediment to women's advancement in the company. Nevertheless, the change may not have been clearly communicated to Wal-Mart employees, Larkin says, and to this day the misperception inhibits many women from applying for managerial jobs.

Then there was the company's reportedly hostile work environment, everything from top executives referring to women employees as "little Janie Qs" to its annual quail-hunting retreat, which female higher-ups found objectionable. "There is a mood that is set at the top that some traditions are never going to change at Wal-Mart, and those traditions can be very antifemale," Larkin says.

Wal-Mart's attorneys did not respond to interview requests. Likewise, the retailer won't answer questions about the suit, and instead directs reporters to press releases on its Web site. In the appeal filed last week, the company contends that the suit was unfairly granted class-action status. Wal-Mart's attorneys say the discriminatory practices alleged in the suit have not been proven to exist at every store, so some women who did not encounter discrimination could unfairly still be eligible for back pay and other punitive damages. Furthermore, the company insists that it has the right to handle litigation from disgruntled employees on an individual basis, rather than as part of a group it deems "elephantine."

The retail giant's press releases, meanwhile, say the company will "continue to evaluate" its employment practices. Indeed, in June it announced two new policies to "ensure internal equity and external competitiveness." One is intended to alert employees who seek promotions and transfers when new positions open up; the other promises to restructure the pay system for hourly workers to make it more merit- and tenure-based. The plaintiffs' lawyers view these last-minute modifications with dry humor. "They'll say it's a coincidence, but the timing is impeccable," Tinkler says with a chuckle.

There have been other "coincidences," too: Just as the discovery period was ending in January 2003, Wal-Mart implemented a formal procedure for applying for management jobs. Also last year, the company established an "Office of Diversity" to ensure that women and minorities are promoted in proportion to the number of them who apply for higher-ranking jobs. Larkin, however, believes the new application process may actually discourage women from applying. "It advertised the manager job as this painful drudgery you had to go through, that you had to work weekends and nights," she says. "They tried to make it as bad as it could be, to make it look like women weren't interested."

So far it's been a battle of wills between the class-action team and Wal-Mart, which unsuccessfully lobbied to have the suit moved to Arkansas. The Impact Fund fought to keep it in California. Of the six lead plaintiffs, only Kwapnoski and fellow Contra Costa County plaintiff Betty Dukes, who works in a Pittsburg store, are still employees of Wal-Mart, and all the attention hasn't made their work lives too comfy. "Chris and Betty are total heroes," Larkin says. "Wal-Mart would have been extremely happy to have both of them quit. They certainly have not made their lives easy."

For her part, Kwapnoski plans to just keep getting up and going to work every day. Her feelings about being at the forefront of a high-profile lawsuit are mixed. "I just can't believe that it's gone on for so long and we're just now getting to the point of saying something about it," she says. But she also feels hopeful that she's finally speaking out for others who have been too frightened to complain. She looks forward to a future in which Wal-Mart's employees are promoted simply because they deserve the job. But most important to her, she says, is what her fourteen-year-old daughter has learned from watching her mom battle the world's biggest corporation. "She sees now," Kwapnoski says, "that she doesn't have to get that mind-set of 'It's okay because a male tells me it's okay.'"

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