Litigating Sex Discrimination Cases in the 1970s

Article excerpt

Title VII of the Civil Rights Act of 1964 (1) made it unlawful for an employer to hire or fire an employee or to discriminate by classifying, compensating, or denying opportunity to an employee on the basis of race, color, religion, sex, or national origin. Sex as a protected category was an afterthought. The bill was opposed by many in Congress, among them a Virginia representative who caused the bill to be amended to add sex--perhaps expecting that the protection of women-workers would result in killing the bill. Another Congressman proposed that a woman should not be permitted to claim sex discrimination unless she filed a sworn statement that her spouse was unemployed. Those maneuvers failed, and the Act passed. It went into effect on July 1, 1965.

Though Title VII promised women equality of employment opportunity, even many supporters of women's rights were committed to protecting women as workers while preserving their traditional roles as wives and mothers. I recommend to you the scholarship of Cary Franklin for a wonderful and illuminating look back at these times. (2)

At the initiative of Columbia Law Professor George Cooper, in the fall of 1971, Columbia opened the Employment Rights Project, a clinical course offering, "staffed," as it were, by our students, with George and me, newly hired, as its instructors. One of the students in our early semesters--Howard Rubin--after graduation, joined me as an instructor, and George returned to classroom teaching.

In those early days, cases were made largely by looking at the defendant employer's job structure and finding blatant segregation and resulting salary discrimination. Two of the Clinic's earliest cases--against Newsweek magazine and the New York Telephone Company--succeeded largely on that foundation. The Newsweek women were pioneers who filed their first complaint with the Equal Employment Opportunity Commission in 1970. Those working on Newsweek's editorial side were all too personally familiar with the widely-known truth that, at a national news magazine, a man behind a typewriter was a "Writer," while a woman behind a typewriter was a "Researcher." Though Newsweek signed a Memorandum of Understanding with its women employees, little in the workplace changed. Disappointed by management's broken promises to desegregate the magazine's jobs, in May-June 1972, fifty Newsweek women filed charges at the Equal Employment Opportunity Commission and the New York State Division of Human Rights. The settlement, one year later, provided many positive management commitments, among them hiring and assignment goals--including the appointment of a woman in editorial management. Lynn Povich, lead Newsweek plaintiff, tells the whole story in her book to be published in the fall of this year. (3)

The plaintiff class at the New York Telephone Company (4) was composed of 2200 management level women in the Traffic Department of the Company where, for example, women held 98% of the lowest management jobs earning half the salary of men who held 80% of the top management jobs. Useful testimony supplemented our statistical case. The company's General Personnel Supervisor, for example, testified that military experience--but not teaching experience--showed "supervisory skill," and when asked how the company had validated that measure, he replied, "I guess I'm paid to make this type of judgment." The case settled before trial with goals and timetables and salary increases for women in the class.

Somewhat closer to home, in 1971 and 1972, at the close of late summer interviewing season, women at NYU School of Law and Columbia Law School were filing administrative employment discrimination complaints against major New York City law firms. The Clinic represented them. What those women were up against was captured at the end of a negotiation session just prior to our filing two of the cases in federal court. The Royall Koegel & Wells attorney representing his own firm closed the meeting by saying, "I do see what you're saying. …