By Sheri Qualters, From The National Law Journal

Wal-Mart Stores Inc. faces the first purported class action demanding equal employment benefits for married same-sex couples since the U.S. Supreme Court legalized those marriages across the country last month.

But it’s unclear whether Gibson, Dunn & Crutcher of Los Angeles—a firm closely associated with marriage-equality litigation but also Wal-Mart’s appellate partner in landmark workplace litigation—would help the company fight back.

The Supreme Court’s 5-4 ruling in Obergefell v. Hodges in June required states to license same-sex marriages and recognize such marriages performed in other states. On Tuesday, Gay & Lesbian Advocates & Defenders (GLAD) and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs filed Cote v. Wal-Mart Stores in Boston federal court, alleging the company violated Title VII of the federal Civil Rights Act by discriminating against employee Jacqueline Cote because of her sex.

The lawsuit also claims the company violated the Equal Pay Act and the Massachusetts Fair Employment Practices Law.

Gibson Dunn has long been leading counsel for Wal-Mart in significant litigation. The firm’s work for Wal-Mart has included Theodore Boutrous’ June 2011 U.S. Supreme Court win in Wal-Mart Stores v. Dukes. That 5-4 ruling decertified a gender discrimination class action for lack of sufficient common questions of law or fact. Subsequently, the firm has represented the company in related litigation in the Third and Sixth Circuits, including in Nashville federal district court.

Meanwhile, Washington partner Theodore Olson was co-counsel for plaintiffs’ team in Bostic v. Schaefer in the U.S. Court of the Appeals for the Fourth Circuit. That ruling, in 2014, declared Virginia’s same-sex marriage ban unconstitutional.

The firm filed an amicus brief in Obergefell on behalf of Kristin Perry, who challenged California’s prohibition against gay marriage.

Olson worked with litigator David Boies to take on California’s marriage ban, Proposition 8, which was the centerpiece of the 2013 Hollingsworth v. Perry ruling in the Supreme Court.

In an email, Wal-Mart spokesman Brian Nick said the company didn’t have a lawyer for the Massachusetts case at this time. Olson referred questions to Boutrous, who was traveling in Europe and could not be immediately reached for comment. The firm itself did not respond.

Cote, who works at the Wal-Mart store in Swansea, Massachusetts, alleges she was denied spousal health insurance for her wife, Diana “Dee” Smithson, during the company’s open enrollment periods for health insurance from 2008 through 2012.

Although Wal-Mart changed its policy in January 2014, Cote claimed the couple incurred more than $150,000 in medical bills for Smithson’s ovarian cancer treatments before that date. In a telephone press conference today, Cote said the figure has grown to more than $175,000.

The lawsuit seeks an injunction barring Wal-Mart from denying spousal health insurance to the plaintiff or others in a similar situation. It also seeks damages, including punitive damages, plus attorney fees and costs.

“This case is a perfect example of how [lesbian, gay, bisexual and transgendered people] are financially harmed by discriminatory policies,” said Allison Wright, a GLAD staff attorney.

Wal-Mart starting expanding its benefits starting in January 2014 and now covers same-sex spouses and domestic partners, Nick, the Wal-Mart spokesman, said.

“We have not yet seen the details of the lawsuit and, out of respect for Ms. Cote, we are not going to comment other than to say our benefits coverage previous to the 2014 update was consistent with the law,” Nick wrote.

The couple was married in May 2004, right after it became legal to do so in Massachusetts.

In September 2014, GLAD filed an Equal Opportunity Employment Commission complaint on Cote’s behalf. The EEOC issued a final determination in January, finding that Wal-Mart’s treatment of Cote was unlawful sex discrimination. The EEOC issued the plaintiff’s side a right-to-sue letter in May.

Christopher Kaczmarek, a Boston partner in San Francisco-based employment law firm Littler Mendelson and Wal-Mart’s counsel in the EEOC case, did not respond to requests for comment.

IMAGE:

Demonstrator outside the U.S. Supreme Court moments before the court announced its opinion in the same-sex marriage case Obergefell v Hodges. June 26, 2015.

Photo: Diego M. Radzinschi/NLJ