The Supreme Court will hear arguments Tuesday in a case that pits Walmart, the nation's largest private employer, against millions of former and current female employees who allege gender discrimination.
At issue before the court is whether the women can band together as a "class" and bring their case, or whether they must file on an individual basis.
If the court grants the women class certification, it most likely will become the largest employment class action suit in history, potentially involving every female worker employed at the company since 1998.
"The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines and Coast Guard combined -- making it the largest employment class action in history by several orders of magnitude," said Walmart attorney Theodore J. Boutrous.
The case is being carefully watched by the business community, which fears that it could lead to an increase of similar suits and force big business into premature settlements out of fear of exposure to gigantic monetary awards in the billions of dollars.
The Chamber of Commerce issued a brief on the side of Walmart arguing that the lower court ruling that allowed the case to go forward as a class action, "will likely encourage an avalanche of new class action litigation on a broad array of subject matters, beyond employment issues."
But lawyers for the women said that fears of an avalanche are absurd.
"The reality is that we haven't even had a few snowflakes," said Joseph Sellers, who will argue on behalf of the women on Tuesday.
The district court heard months of evidence in the case and properly found that the women had met the standards of class certification, Sellers added.
"The Supreme Court and the lower courts have set very demanding standards for class certification," he said.
Sellers and civil rights groups supporting the women said class action certification is essential to give anti-discrimination laws the force and intent they were meant to have. They argued that the women, forced to file individually, would have neither the means nor the incentive to bring their case against such a large company.
Even though the justices won't wade into the merits of the case regarding gender discrimination, Sellers said, the question of whether the women can proceed as a class action is of equal importance.
"Technically, this case is not a ruling on the merits," he said, "but the ability to pursue claims like this is vital to the private enforcement of civil rights laws."
The case stems from a sexual discrimination suit filed in 2001 by six female employees who alleged they were paid less than men in comparable positions in violation of Title VII, the federal law that prohibits sex discrimination.
As word spread, dozens more women joined the suit, and a district court ruled the court could go forward on behalf of all similarly situated women.
Christine Kwapnoski, one of the original plaintiffs, worked for almost 25 years at Sam's Club, owned by Walmart, without a promotion. At one point, she said, her general manager, who was male, told her to "blow the cobwebs off my makeup" and to "doll up" in order to advance. Two weeks after the suit was filed, Kwapnoski finally received a promotion.
She scoffed at Walmart's contention that there was no widespread discrimination at the company.