Chip and Charge
Chip Welch takes on Walmart and the Air Force
Published in 2009 Mid-South Super Lawyers magazine on November 9, 2009
When a federal judge granted class action status to a multimillion-dollar civil rights discrimination case against Walmart in 2007, he made Morgan “Chip” Welch a very happy man. Welch and his fellow plaintiffs’ attorneys had challenged Walmart’s hiring practices for truck drivers, which they argued were subjective and led to disproportionate numbers of black drivers being turned away––no small slight, considering Walmart operates one of the largest private transportation fleets in the country and employs more than 8,000 drivers.
Racism, Welch believes, operates quietly and often unconsciously. “I don’t think any Walmart employees get up in the morning having bad thoughts about their fellow man,” Welch says, “but subjective criteria by themselves can lead to discriminatory results. When you have standards such as the appearance of an applicant, how articulate he is, that kind of thing, it leads to a non-race-neutral result.”
According to Welch, the American Trucking Association found in a 2005 survey that African Americans made up 15 percent of the nation’s over the road truck drivers; Walmart’s fleet, by contrast, was allegedly only about 5 percent black. Welch worked alongside civil rights lawyer John Walker and class action specialist Hank Bates to present evidence that Walmart often hired based on word-of-mouth recommendations, which in effect meant that its corps of mostly white drivers tended to recommend other white drivers. The case was settled in July 2009 for $17.5 million. The agreement also included truck-driving positions reserved for African Americans and better training for employees who hire drivers. “I think it’s a good deal,” Welch says.
Welch is a founding partner of Welch and Kitchens, a North Little Rock firm specializing in civil rights, criminal defense, personal injury and medical malpractice cases. Welch’s partner, Lloyd “Tré” Kitchens, is the president-elect of the Arkansas Trial Lawyers Association, which awarded Welch its Outstanding Trial Lawyer Award in 1990 and the Roxanne Wilson Advocacy Award in 1997. “Chip combines incredible preparation and attention to detail with an ability to think on his feet like no one I’ve ever seen,” Kitchens says. “He has complete and utter dedication to his clients.”
Welch says you can trace the germ of his law career to two formative moments: one, when he discovered the truth about his childhood dream, private detective work—“those people didn’t make any money and got shot a lot”—and two, when he set foot on campus at Missouri’s Westminster College. Welch credits his professors there with getting him interested in race relations and other social issues. “It was the first time that I went to school out of Arkansas,” he says, “and my politics took a pretty hard left turn. I became more interested in civil rights. I pretty much changed my way of thinking.”
Despite his budding interest in civil liberties and the encouragement of his teachers, entering law school at the University of Arkansas was tough. In fact, he pulled an all-nighter before the very first day of class—reading The Exorcist cover to cover––and regretted it. “I showed up for my first law school class with my eyes propped open with toothpicks and learned that all of my preparation in college was no preparation at all,” he says. “I had concentrated on the broad sociology and political science aspects of the law without any nuts and bolts. It was a very sobering experience. The days of hanging out with the guys at the fraternity house were over, and it was study or you’re gonna be gone.”
But Welch found he had a knack for those nuts and bolts, and once he familiarized himself with the mechanics of the law, he saw it as an opportunity to help the disadvantaged. During his senior year, he took an internship with Legal Aid in Little Rock, where he was handed a sheaf of files and sent directly to court—instant trial experience. “It was a little scary,” he says, “but I did get to be a black belt on the Dictaphone.” It was also a crash course in protocol. “There are people who run the court system that they don’t teach you about in law school, and those people are called clerks,” he says. “You must always be gracious to them because they can make your life a living hell. I took the time to learn the hard way to be a little bit better person.”
He landed his first job as a staff attorney for the state Legislature “in the exuberance of youth,” buoyed by the desire to write good law. “It was the most schizophrenic experience I’ve ever had,” he says. “The Legislature had 135 members, and so it’s a client with 135 different opinions. One day you’d have somebody coming in wanting a gun law to ban handguns and wanting to define it as having a barrel length of less than 36 inches—which is kind of like a rocket launcher—and the next day you have somebody coming in wanting to ban cohabitation if you’re not married. And you have to treat all of those with equal dignity and you have to do your very best to write the best bill, even if it’s stupid. So I stayed for a session and then went into private practice.”
Welch has been in business for himself ever since, and says working solo or with a small group has given him the opportunity to do “pretty much everything” as an attorney, handling cases larger firms won’t touch. His first high-profile case, the court martial of Air Force 2nd Lt. Naomi Haye, was a prime example.
The case never promised a big payday, but it got plenty of attention. “She was charged with adultery and fraternization with a member of her missile crew,” Welch says. “She was a fast burner in the Air Force, which at that time caused some resentment among males anyway. She had become a standards evaluator in addition to her job as the deputy commander of the Titan II missile crew, and so she got to go around to different missile silos and evaluate the performance of higher-ranking officers, and that engendered some resentment. Then, she was married to an African-American who was a sergeant, so the race and the disparity in rank also caused an undercurrent. I’ll tell ya, at one point this radio interviewer that I know called me up and said, ‘Can I talk to you about this case? Because it has everything—it has race, it has rank, it has sex, it has privilege, it has nuclear weapons!’”
But what made Welch hot to pursue the case was the fact that Haye faced a court martial while her male partner in the affair did not. “The striking thing to me, because I had not given a whole lot of thought to sex in the Air Force,” Welch says, “was that she could go to Leavenworth for four years as a result, and the man was not being prosecuted. He was the star witness. He was the ‘victim.’”
Haye was convicted of adultery and fraternization in her first trial, but the Court of Appeals for the Armed Forces reversed part of the decision, so prosecutors retried her. In the second trial, Welch was given more latitude to “go hammer and tong” at the prosecutor’s witness. “We had this ridiculous testimony from the ‘victim,’” he says, “who said he had no idea he was having oral sex.” The jury acquitted Haye on all charges. She was also awarded back pay and reinstated, although she was later honorably discharged.
“She was being made an example of,” Welch says. “She was extremely good at her job, ramrod-straight, every bit the professional soldier. I had no doubt that if she was in the silo when the Russians attacked, she was going to carry out her mission if a missile was coming right down on top of her. After she was charged, she was assigned a temporary duty in an administrative position, working in an office where they were installing a new computer system. On her own initiative, she examines the computer system and finds an error that saves the government on the order of half a million dollars.
“Who cares who she slept with?”
Aside from the Haye and Walmart cases, Welch has taken on negligent doctors, abusive priests, profiteering drug companies and discriminatory corporations. Why does he choose those types of cases?
“When I explain to other people why I’m doing a case, I want them to understand it to be a case that has merit,” he says. “They understand it not as some frivolous lawsuit brought by a plaintiff’s attorney, but a case that the general public, when they hear about it, says, if that happened, thank God we have courts.”