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CAROLYN WHEELER: Good morning.
My name is Carolyn Wheeler. I'm a member of the committee that organized these events celebrating the 40th Anniversary of Title VII. What we conceived of is a series of panels on the history of Title VII, focusing in on three distinct periods; so last week, if you were with us, um, you know that we discussed on Tuesday the passage of the statute in 1964, and some of the early cases and theories, um, developed in the courts to prove discrimination.
On Wednesday, we had a panel that discussed kind of the expansion of some of the Title VII principles and its use by some specific protected groups to challenge pregnancy discrimination, harassment, and language discrimination.
Today's panel is going to be looking at the last phase of our history, the cases that led up to the passage of the 1991 Civil Rights Act, the process of passing those amendments in 1990 and '91, and then the aftermath in the years since then, and maybe a look ahead to what we might be doing in the future.
Um, I want to give you, before turning the program over to the panel, just a couple of little housekeeping details.
First, there will be a break for refreshments at whenever the moderator breaks, but sometime between 10:15 and 10:30, and you'll have about 20 minutes, and there will be coffee and pastries and fruit upstairs. And the bathrooms are also upstairs past the area where you came in and signed in, if you did that.
Ah, at the end of the program, there will be time for questions, and we'll have these microphones at the end of the two aisles, and ask that you come to that microphone to ask your questions.
If for some reason you can't get there, just raise your hand, and one of our ushers will bring the microphone to you.
Um, take a minute now to turn off any cell phones or pagers, or set them to vibrate so that doesn't distract anyone. And I think that is it for now.
I do want to acknowledge the presence of some distinguished guests our Vice-Chair, Naomi Earp is with us today, and Commissioners Miller and Silverman are also here. And if I'm not seeing someone else, I apologize. I'll catch you later.
Right now, I'm just going to introduce our moderator, Sam Marcosson, Associate Professor of Law at the University of Louisville, and a dear friend and former colleague in the Appellate Section of the Office of General Counsel, and I'll let him introduce each speaker as they join into the conversation.
Information about Sam and everyone else is in the back of the program, and the program, by the way, is something we hope you'll keep. Thanks.
SAMUEL MARCOSSON: Thank you, Carolyn. It is too rare for me, anyway, I think for most people that their professional lives afford opportunities to come back and see dear friends and colleagues from past years, and this is such an opportunity for me, as an alum of the EEOC, to get back to Washington, especially among old and dear friends, is quite a treat for me. And so with that sort of personal remark, um, let me give some introductory remarks, and then turn it over to the folks who are going to be talking about the events leading up to the Civil Rights Act of 1991, and some of the aftermath of the passage of that law.
And my first thought on this is that if there has been a guiding principle surrounding the idea of amending Title VII, it can be expressed in one word, and that word is "Don't." There has been a pretty widely shared reluctance over the years to open up Title VII to amendments, in large part because of the fear of what might emerge from the legislative process, and so it's been done rarely over the years. But it's not been an inviolable rule.
In 1972, as we know, the statute was amended to give the EEOC authority to file suit, and also to add state and local governments to the list of covered employers.
And of course in 1978, the Pregnancy Discrimination Act made clear what everyone, other than the Supreme Court, seemed to already know, which is that discrimination on the basis of pregnancy, is discrimination because of sex.
But I think it is fair to say that the most profound changes that have been worked in Title VII, since its passage 40 years ago, came in 1991, with passage of the Civil Rights Act of that year.
It was passed after what can fairly be characterized as a bruising, complex, and at least somewhat lengthy legislative process.
It really did transform Title VII in a number of ways. It changed the basis for employer liability in mixed motive cases.
It added a damages remedy, and in so doing, a jury trial right for Title VII cases for the first time.
It extended extraterritorial application of the statute. It refashioned the rules on disparate impact in a way that continues to this day perhaps to be somewhat uncertain, and it limited the ability of third parties to challenge judgments in civil rights cases.
It is no wonder that one observer of the time in a 1992 article, Richard Neumeier commented about the Act, "The only thing one can safely say is that although the law was well settled prior to the 1989 term, it will be some time before anyone can say with confidence that the law is well settled again."
If you don't believe him on that, consider the contrasting viewpoints of the Act offered on the one hand by Commentators David Cathcart and Mark Snyderman, who predicted in 1992 "The Civil Rights Act of 1991 promises to effect profound changes in employment discrimination jurisprudence."
Contrast that with the observation of Federal Appellate Judge Theodore McMillian, who said that what it really did is stop the erosion of federal civil rights law, and restore the law to what it was before.
Well, it has now been some time since the passage of the Act, and our purpose today is to look back at the Civil Rights Act of 1991, and see how, and whether, it filled the gaps, as the title of today's panel would suggest, left in the original design, or the interpretations of Title VII.
What goals did its sponsors have in mind? And which of those goals of the Act has been achieved?
Were some of the provisions less consequential than they seemed at the time? Were some more important?
Did it have unintended consequences for good or ill? Has it been interpreted in ways that fulfill or undermine its effectiveness?
Not too much of a mission for three hours. We're fortunate to have with us, I think, a panel of distinguished observers whose expertise owes to different and varied experiences related to Title VII before, during and after the Act's passage. We have with us the perspective of a litigant, a judge, and lawyers who argued the issues and worked on the legislation.
I'll introduce them to you in the order they'll be speaking. They'll each discuss their perspective on some aspect of our topic for about 15 to 20 minutes. I'll put them on the spot just a bit with questions at times, but for the most part, other than their prepared remarks, will be spent on a dialogue between you and our panelists.
So as you listen, I ask you to think about questions and comments you may have, and as Carolyn Wheeler suggested, use the mikes at the appropriate time when we open up the question -- open up the floor to questions from the audience.
Our first two speakers will lay the foundation by focusing our attention on the 1989 Supreme Court decisions that began the moves to implement Title VII. First up would be Professor Charles Shanor of Emory Law School. Professor Shanor was my boss as general counsel of the EEOC from 1987 to 1990, and so today may be the first time when I'm able to cut him off, if he goes too long.
CHARLES SHANOR: Out from under the heel.
SAMUEL MARCOSSON: Precisely.
During that time, he became the first EEOC general counsel to argue the Commission's case before the United States Supreme Court in the case of Lorrance versus AT&T Technologies.
In a 1990 law review article, he called the employment discrimination cases of 1989 "a battleground for a divided court," and today he will take us on a tour of that battleground. Although Professor Shanor left the Commission prior to the passage of the 1991 Act, he was there during the crucial 1989 cases that triggered the legislative effort, and provided technical assistance to Congress as it drafted what eventually became the 1991 Act.
He is a graduate of Rice University, a Rhodes Scholar, where he earned both a B.A. and an M.A. from Oxford University, and he earned his law degree from the University of Virginia. He teaches employment discrimination, labor law, and constitutional law.
Following Professor Shanor will be Ann Hopkins. Um, the term "landmark" can be thrown around too easily when discussing Supreme Court decisions, especially by those of us who teach constitutional law. We think everything is a landmark, but it easily, easily fits the case Price Waterhouse versus Hopkins, in which Miss Hopkins was the plaintiff. She proved that gender-based stereotypes played a substantial motivating role in her employer's refusal to admit her to a partnership she had earned by her work and efforts. She remains, to this day, the only person ever admitted to a partnership under Title VII by judicial order.
She retired from Price Waterhouse in 2002, and is the author of a 1996 book "So Ordered, Making Partner the Hard Way," which I can heartily recommend to any of you who have not read it. It is a fascinating portrait of the events that gave rise to her challenge to Price Waterhouse, and of the litigation and its aftermath.
For Miss Hopkins we will get a more detailed look at how at least one charging party experienced the administrative and legal process that existed on the eve of the 1991 Act.
Our next two speakers will turn our attention directly to the legislative campaign that began almost immediately after the court's 1989 term ended.
Jeffrey Blattner is a partner with the law firm Hogan and Hartson.
Of more direct relevance to us today, he was the Chief Judiciary Committee counsel for Senator Kennedy from 1987 to 1995.
The Lawyers Committee for Civil Rights Under Law honored his efforts towards passage for the 1991 Act with an award for diligence and commitment. He graduated with highest honors from the University of Pennsylvania and from Harvard Law School in 1980, after which he served as a clerk with Justice Potter Stewart. His remarks will give us a perspective from inside Congress as a companion to the interest group point of view offered by the following speaker, Barbara Arnwine.
Barbara Arnwine was a key player in the outside effort to enact the Civil Rights Act of 1991 She is the Executive Director of the Lawyers Committee for Civil Rights Under Law, and a recipient of the National Bar Association's highest recognition, the Equal Justice Award. She is a graduate of Scripps College and Duke University Law School and has been a frequent participant in national and international conferences addressing racism and the status of women.
Our final two speakers will then assess the Congress' handiwork, and the actual implementation of it.
Joseph Sellers led the Equal Employment Opportunity Project for the Washington Lawyers Committee for Civil Rights for more than 15 years. He litigated more than 100 civil rights cases, and was counsel of record in more than 25 civil rights class action cases.
He was counsel in the first cases in the country that adapted the use of civil rights testers to challenge discriminatory hiring and job referral decisions, a case on which the EEOC joined him as amicus, and on which I was privileged to write the brief and argue that case.
He is a graduate of Brown University and the Case Western University Law School. He is today a member of Cohen, Milstein, Hausfeld and Toll, where he continues to litigate Title VII class action cases, including one that may have caught your attention in recent days, the Wal-Mart case.
Our final speaker will address some of the impact of the Act from the judicial point of view. Mark Bennett is Chief Judge of the U.S. District Court for the Northern District of Iowa. He issued the important decision in Dunbar versus Pepsi-Cola General Bottlers of Iowa, in which he analyzed the continuing utility and viability of the McDonnell Douglas burden-shifting paradigm in circumstantial evidence cases. A graduate of Gustavus Adolphus College in 1972 and the Drake Law School in 1975, Judge Bennett was appointed to the bench by President Clinton in 1994.
Prior to his appointment, Chief Judge Bennett was in private practice, served as General Counsel to the Iowa Civil Liberties Union, and was a magistrate judge in the Northern District of Iowa.
And with those introductions, I'll turn the matters over to Professor Shanor.
CHARLES SHANOR: Thank you very much, Sam.
First of all, I cannot tell you what a pleasure it is to be here to see old friends, especially folks like Peggy Mastroianni and Carolyn Wheeler and Susan Adams. Fifteen years is far too long, folks, and I'm glad to see you all and to be here.
You know, I think our purpose here is to kind of refresh, reconstruct, and maybe even reunderstand some of the dramatic events that happened between 1988 and 1991, um, culminating in the Civil Rights Act of 1991.
Sam mentioned, and I guess by way of introduction, those of you who know me well, know that there is no such thing as prepared remarks from me. Um, I take a few notes, but I don't write them out, so I will be talking, not reading remarks.
Um, Congress didn't pick between the various goals when it passed the Civil Rights Act of 1991. In the "Purposes" section, it said it was trying to respond to recent decisions of the U.S. Supreme Court as one purpose, and another purpose, to provide appropriate remedies for discrimination cases, including harassment cases. So Congress doesn't really pick and choose, they do it all together, um, or at least they do in situations like the 1991 Act.
Um, my role in 1988 and '89 was as general counsel of EEOC. Um, the general counsel is charged with litigating on behalf of the agency. That means recommending positions in cases where we're amicus curiae, but being in charge of the litigation and litigation positions in district courts and courts of appeals.
When we get to the Supreme Court, however, things change a little bit at EEOC, because we kind of fold in with the rest of the Executive Branch of the government, or as an independent agency connected with the Executive Branch, where the Solicitor General has the ultimate say for what the government's position will be. And as it turns out, as I talk through these various cases, one of the things I want you to see and to understand a little is the tension between EEOC's positions institutionally, and some of the Department of Justice positions, where the Solicitor General was ultimately responsible for reconciling differences within the Executive Branch.
When I came to EEOC in 1987, um, you know, I was new to government, new to EEOC, but I had been teaching employment discrimination law for a number of years, and I had before that clerked for Elbert Tuttle on the old Fifth Circuit Court of Appeals, and worked on a number of cases in the employment discrimination area there; had done some class action work, particularly cases with Don Livingston, who came as my special assistant, and then became General Counsel himself in the Atlanta Police promotional case, and some other matters.
But anyway, right after I arrived, um, a case came to my desk called Watson versus Fort Worth Bank and Trust Company.
The question is whether disparate impact theory applies to subjective selection devices, and as Barry Goldstein well put it, he said the law was on one side, and practical considerations were on the other side in that case.
The law was on the side of, saying yes, disparate impact ought to apply. There had been no indication either in the language, the legislative history, or any of the case law that the dichotomy should be drawn between the two.
However, there was a serious practical problem. The practical problem was that when you apply disparate impact theory rigorously to subjective employment decisions utilizing, say, the Uniform Guidelines on Employment Selection Procedures, you find a situation in which it may be very difficult, if not impossible, for employers to validate, or show the job-relatedness of subjective employment decisions, and that eliminating subjectivity, particularly from jobs where -- that are upper level jobs in a sense, is going to be very, very difficult.
The Supreme Court has since recognized that dilemma, and a four-member plurality, not a majority in the Watson case, um, concluded that to accommodate these two things, we'll apply the disparate impact theory, but will loosen the reins a little bit, in terms of what it takes to show business necessity or job-relatedness, and you all know that that is kind of what happened by a majority of the court the next year in the Wards Cove versus Atonio case.
One of the big surprises to me at the agency at that time period, and what we're not really going to talk about much today, is the centrality of age discrimination cases at that point in the EEOC's history.
Um, and I would be remiss if I didn't say for a moment that that was a majority of the EEOC's monetary recovery at the time, a huge percentage of the cases filed, the source of many of the most difficult, um, and challenging questions dealing with early retirement incentive programs, dealing with waivers, dealing with whether or how class action theory would apply to age cases, and so on and so on forth.
But we're not really going to talk much about that today, except one way in passing.
Anyway, when Sam and I did the battleground piece for the "Labor Lawyer" written in '89, but not published until early in 1990, we kind of divided the world up of the Supreme Court cases into three pairs of cases. Um, but before I mention why we did that, and how that plays out, I thought I'd read a sentence from the article that I think is useful, because it shows kind of the bottom line of where we were at that point.
We conclude, "though any conclusions about cases so recently decided are necessarily tentative, that these decisions will shift enforcement of employment discrimination cases away from private litigation, toward governmental enforcement.
"That they will move the locus of policymaking in the civil rights field from the courts to the Congress, and that they will lead courts interpreting statutes to focus increasingly on the statutory text, rather than legislative history and administrative interpretations."
I think all those things really did come to pass. For a brief period of time, EEOC's litigation docket went way up, um, in '89, '90, '91, and then gradually after the '91 Civil Rights Act, which provided additional monetary incentives not only for plaintiffs, but also for plaintiffs' lawyers, the slack started being picked up by the private sector, not only by traditional civil rights lawyers, but by tort lawyers.
Um, and I think the Congress, of course, did fairly shortly after this article was published, step into the picture, and deal with the Supreme Court decisions, and deal with remedial shortcomings in the then existing legislation.
Well, what Sam and I did with this article was we said there are three areas in which the Supreme Court has really restrictively interpreted the, um, civil rights statutes, particularly Title VII, Section 1981, and the Age Discrimination and Employment Act.
Um, the first pair of cases were the Price Waterhouse/Wards Cove cases dealing with theory of discrimination. What does it take to make out a disparate treatment case? That is the Price Waterhouse case, Price Waterhouse versus Hopkins, the disparate impact, um, framework in Wards Cove versus Atonio, and then there was a pair of cases dealing with procedural issues, the Lorrance case, how the statutes of limitations apply, particularly with seniority systems, when must a person raise a claim when the seniority system was deliberately constructed to restrict the opportunities of women or minorities in the workplace.
In Martin versus Wilks, a case in which the Supreme Court dealt with subsequent collateral attack opportunities on consent decrees or settlements by individuals who were, say, white male competitors in the workforce.
And the third pair of cases, those that we at the time described, and I think rightly as the most restrictive of all these decisions, um, two of them narrowing the scope of the Civil Rights Statutes. The Patterson case narrowed Section 1981, basically saying that you cannot have racial harassment cases under that statute, because racial harassment has nothing to do with the, quote, making and enforcement of contracts, and then the Betts decision, which held under the ADEA that the Labor Department EEOC rules on cost -- equal cost or equal benefit analysis with respect to benefits, um, was invalid and, um, had to be thrown out with the resulting, um, consequence, that only employee benefit plans that are a -- an intentional, quote, subterfuge to evade the purposes of the Act, end quote, became unlawful.
Today, in talking about these cases, I am going to change the order a little bit so that we wind up with Price Waterhouse transitioning to Ann Hopkins, so I'm going to start backwards with Betts.
The restrictive interpretation of the ADEA in Betts, um, led to legislation that zipped through Congress even faster than the Civil Rights Act of 1991. It went through a different committee, the Senate Committee on Aging, had a different lead senator, Metzenbaum rather than Kennedy, and had a very energetic, able aide, Jim Brudney of later fame, in connection both with the Clarence Thomas/Anita Hill confirmation matters, and more recently as a very well-respected labor and employment law professor at Ohio State.
At any rate, um, the Older Workers Benefits Protection Act was passed by Congress to reverse the Betts case, and in Title II of that statute, to deal with waivers issues, and what it took for older workers to waive their ADEA rights. And so it is -- The way Congress handled Betts is very consistent with the way that Congress later handled Civil Rights Act of 1991 issues with one exception, and that is maybe if I can say so, the AARP perhaps wasn't ambitious enough, because they didn't go for any new remedies under the ADEA, as the civil rights groups that you're going to hear more about shortly did with the Civil Rights Act of 1991.
Well, the Patterson case, um, scared all of us at first, when the Court issued an order saying we're going to re-brief the issue of whether 1981 even applies to private discrimination. Should we overrule our decision in Runyon versus McCrary, asked the Supreme Court. Ultimately, they decided that making and enforcing contracts was a statute that did apply to private sector employment, and that part of it, I guess, pleased all of us; however, they said that racial harassment is a part of making and enforcing contracts.
I had a brand new law professor at the University of Virginia my first year of law school whose name was Antonin Scalia, and he taught me contracts. He didn't like then, and I'm sure he doesn't like now, such doctrines as unconscionability of contracts, when it came to interpreting the term "make and enforce contracts." I, for one, wasn't surprised that he saw making and enforcing in a narrower way than myself and a number of other folks did, so the Patterson case in fact played a very central role in this legislation, and was reversed in the first of the sections dealing with reversals of cases and adding new remedies, Section 101 of the Civil Rights Act of '91.
Um, the next case, Martin versus Wilks is really Sam's specialty, and I probably ought to defer to him, let him talk about it, but, um, the point of the Court's decision in Martin versus Wilks, which we at EEOC thought was correct, and indeed Sam wrote the brief, we had one commissioner dissenting, as I recall, maybe the only case in which there was a dissenting commissioner when I was general counsel, but we had one commissioner who dissented, but basically what we said is that those who are adversely affected in the future by an agreement between the employer and, say, minority employees, have to have an opportunity at some point to challenge things that affect their job opportunities in the future.
Of course that made it harder for minority groups and the Lawyers Committee and the Legal Defense Fund to litigate against employers, and to resolve that litigation, because prior to Martin versus Wilks, oftentimes when a company didn't want to pay money, the way that you resolved the matter was by giving away future job opportunities to group members who had been disadvantaged in the workplace, or discriminated against before.
And now this decision pushed the remediation towards a monetary relief, instead of future job relief, and required notice to many more people in the course of a class action, including, of course, incumbent white employees than was previously the case. And we'll talk about the statutory section that dealt with that Section 108 later on.
The fourth case was Lorrance. As Sam mentioned, I argued that case, though not solo. Barry Goldstein was there for the Legal Defense Fund. Barry and I have our own separate stories to tell about that argument, how Barry's story, I suppose, would start with how when he looked at the clock during his oral argument, Justice Rehnquist looked down his nose at him and said, "Mr. Goldstein, you don't need to look at the clock. We'll tell you when your argument is over." Not a terribly auspicious way to commence one's oral argument.
My story is that my former contracts teacher, Tony Scalia, asked me 19 questions in the course of my argument, it was like being back in his Socratic dialogue class, but at least the torture ended after a relatively quick-paced period of time.
Anyway, Lorrance was a case in which Patricia Lorrance and others had said: This seniority system keeps us away from the good jobs. It was adopted before we had any chance to challenge it, and when I argued this to my at the time eight-year-old daughter, who is now working here in D.C. as an adult, um, she said, "That is not fair. They ought to have some time at some point that they can challenge this discriminatory seniority system." That was my whole point to the court, and I lost five to three. Justice O'Connor stayed out because of stock ownership in AT&T Technologies. Um, but at any rate, it seemed pretty straightforward, and when the remedial legislation came through, there was absolutely no dissent, um, on what became Section 112 of the statute to reverse Lorrance and give people an opportunity to challenge seniority systems, either when the systems were adopted, or as they were implemented, or as they first came to affect the individual.
The Wards Cove case, I've talked a little bit about it, but another aspect of it that I haven't mentioned has to do with the internal aspects of how this case, um, was presented to the Court and decided by the Court.
It was not an EEOC case. We were in the position, if we were going to participate, of being amicus curiae, and our view very straightforwardly was that there was no prima facie case there because the plaintiffs had been comparing apples and oranges. They had been saying: We're not getting enough of these better jobs, bookkeepers and so on, but they weren't looking at any comparable labor pool, either internal or external, from which people ought to be moved into those jobs. And so we said: Frankly, that ought to be the end of the case. You don't need to go any further.
Well, our view did not prevail, um, as many of you know, the Solicitor General said: Yes, there wasn't a -- a prima facie case, but as long as you're going to decide there is not a prima facie case, you might as well get a majority of the Court to decide all the issues left hanging in the Watson case, and the most important of those, of course, was to water down business necessity or job relatedness in disparate impact cases. And that is precisely what the Court did.
Um, and Congress came back, um, and we'll talk about how it handled that later to try to undo the Wards Cove decision by looking at the law immediately prior to the date of that decision. Interesting way of doing it, um, and the fascinating story there that Joe and others will tell.
Um, finally, we get to the Price Waterhouse case. Um, and most of that I'm going to leave to Ann Hopkins. I'm sure we'll have plenty of discussion of Section 703(m) and of the Desert Palace case.
My recollection of Price Waterhouse in the Federal Government, including a trip over to the Department of Justice, um, was when Paul Bator argued on behalf of Ann's opposition that the U.S. Government ought to take the position of Price Waterhouse in the case. Um, and what happened was a little more complicated than that.
Charles Fried, the Solicitor General was kind of a common law lawyer in an age of statutes, and he took a common law approach, um, which I subsequently described to my law students dealing with Price Waterhouse versus Hopkins as a form of Chinese water torture, because one has to decide when evidence is direct, and when it is not, when there is a mixed motive, or when there is a single motive, all these kinds of things that a Socratic law professor could drive students crazy about for far more than an hour. I was never quite the torturing type, and so didn't do that, but at any rate, the Price Waterhouse case will spin out in more detail.
I did want to say one other thing about the Civil Rights Act of '90 and '91, and that is that I was there to help put the government's position early on, on several aspects of the bill, um, putting it into the hopper through appropriate governmental channels, and that a number of those things did become part of the final bill.
There was one provision that greatly troubled me, however, and that I wrote about separately in a piece in the "Harvard Journal of Law and Public Policy," and that is that there was a rule of construction proposed in the 1990 Civil Rights Act, and the rule of construction read this way: All federal laws protecting the civil rights of persons shall be broadly construed to effectuate the purposes of such laws to eliminate discrimination and provide effective remedies.
Now, um, my concerns were, one, what is a civil rights law? What does "broadly interpret" mean, when you have competing group interests in the interpretive framework? When it came to, um, George H.W. Bush's veto message on October 22nd, 1990, he actually picked up on the same theme, and said that one of the provisions he objected to was the rule of construction that will make it extremely difficult to know how courts can be expected to apply the law.
Well, what is interesting, I think, is that while the civil rights groups very adroitly moved to putting in statutory language that would provide textual support, understanding the Court's move of interpretive strategy, that textual support, then, could very clearly provide for things like overturning Lorrance, dealing with a bunch of issues, but the more complicated issues are still to be worked out, because there are limits to language, and the limits to language include the construction issues around 703(m), construction issues, most of which the courts haven't dealt with on the new disparate impact rules, and so on and so forth.
So every time the battleground shifts, in a sense, ah, it provides new opportunities for further battles and, um, you know, we lived in interesting times from '88 to '91. We live in interesting times now. The battlegrounds shift, but the war is never over. Thank you.
SAMUEL MARCOSSON: You know, it is interesting, in listening to the recitation and the history of those cases and reliving them one by one, it really was extraordinary at the time to have all of those cases decided in a single term in the area of employment discrimination. It was like this huge avalanche, or tidalwave that you -- that we haven't really experienced since in this single area, and probably hadn't experienced beforehand. It was really quite extraordinary.
And, um, with that, we'll turn to Price Waterhouse, more specifically, the one case, and Ann Hopkins' experience with the system as it affected her.
ANN HOPKINS: Thanks. I'd like to thank the EEOC for bringing me back again to this lovely campus. I always like working with Georgetown.
In my remarks, I was asked to discuss my experience with the administrative and legal system, and to answer three questions. And although the e-mail that I got didn't state them this way, this is how I think the questions were: What about the process was frustrating or inefficient? Why did the case succeed? And was going back to Price Waterhouse as a partner the right remedy?
And I was also asked to do this in 15 minutes -- well, maybe 20. Let me begin with a caveat. By profession, I am a management consultant. I have a Master's Degree in mathematics. I began my career as a theoretical physicist with IBM. By personality type, I'm a value-driven, big picture, people-watching problem solver. I love to solve problems, but I horrify auditors, attorneys and psychologists, because I have a hypothetical solution to most problems, and my hypothesis, opinion, if you will, is grounded not necessarily in data or evidence, but more likely in my core values, common sense, and experience.
Remember that when I comment on matters of law, or psychology, or when I talk about numbers, including dates.
That said, let me give you a short answer to each of the questions I was tasked to answer. That will take about a minute, then I'll spend the remaining time on my experience with the legal system, and I'll tell some stories.
Short answer to question one: What about the process was frustrating or inefficient? The waiting. I am impatient. This matter started in the summer of 1983, and finished in the spring of 1991. I waited, also waded through the EEOC process, the D.C. Circuit Court trial on liability, appeals to the -- appeals on liability to the Federal Court of Appeals and the U.S. Supreme Court, the Circuit Court trial on remedy and an appeal to the Federal Court of Appeals on remedy. All things considered, I guess it was pretty efficient. The EEOC, two trials, two appeals, and a trip to the Supreme Court took seven or eight years. I guess that is not bad.
The short answer to question two: Why did the case succeed? The people. Very simply, the people. Me, my family, my attorneys, my firm, the witnesses on both sides. The D.C. circuit judge, and the judges on the appeals panel, to name just a few.
Had I been less accomplished, my family less involved, my attorneys less brilliant, my firm less prominent, the judge less insightful, the appeals panels less liberal, in the Jeffersonian sense, the outcome could have been dramatically different. In fact, I might be a nut case. I might be one anyway.
The short answer to question three: Was going back to Price Waterhouse the right remedy? Absolutely. It is what I wanted, and although I had a few reservations during the first year or so, I had a ball as a partner in a remarkable firm with a remarkable culture.
So with that, let me tell you how I saw these cases that others have talked about, or will talk about, and I don't recognize them in their description.
Think back to August, 1978. It looks like there are some people here who were born before then. Betsy Hishon started what became a landmark litigation with King and Spalding, an Atlanta law firm. I joined Price Waterhouse in the Office of Government Services as a management consultant. I am not now, nor have I been an auditor.
In the four years between August '78 and August '82, the consulting teams I led did and sold a whole lot of work. The largest job sold was a 30 to 50 million dollar technology services project for the U.S. Department of State.
In August of '82, at the end of a nomination process that began in June, the partners in my office proposed me as a candidate for the partner class to be admitted in July of 1983. I was the only woman among 88 candidates, six of the 666 partners were women, and we're talking about what was then the United States firm Price Waterhouse.
I was later told I would not be among the 47 members of the partner class of 1983. When I failed to get a reasonable explanation for what appeared to be an irrational business decision, my husband suggested that I, quote, sue the bastards, end quote, which I did.
About the EEOC. In August 1983, I retained Doug Huron as my attorney. He remains my attorney and my friend. Before the month was out, he filed on my behalf a sex discrimination claim with the EEOC, alleging that the firm had violated Title VII of the Civil Rights Act of 1964, a federal law, that is how it is described.
In mid-September I left for Paris on State Department business. The EEOC was doing nothing. It was snarled up in jurisdictional disputes.
On Halloween 1983, the Supreme Court heard arguments on Hishon v. King and Spalding. Hishon was the reason the EEOC was crippled with inaction.
In dispute was whether or not federal law, specifically the Civil Rights Act, applied to partnerships. One point of view held that constitutional rights to free association were more important than rights granted under the Act, as if the form of organization could exempt you from the Civil Rights Act. I have a biased view.
I left the firm in January of '84, around February. Without making a determination, the EEOC granted a right to sue that could be exercised any time in the six-month period ending October '84.
On May 22nd, 1984, the Supreme Court ruled on Hishon v. King and Spalding. "Decisions governing advancement to partnership are governed by Title VII, 42 U.S.C. "blah, blah 2000(e), and must therefore be made without regard to race, sex, religion and national origin."
At that point, Doug Huron dusted off the interrogatories and the Request for Production of Documents and other materials we'd used in the administrative proceedings before the EEOC and he polished them up to make them appropriate for a federal case. They were filed with a complaint.
Doug told me that a complaint under Title VII, again, I'm not a lawyer, a complaint under Title VII must specify how the complainer, that is me, wants the situation remedied. I refused to name any numbers, and insisted that this thing was about being a partner in my chosen profession.
He was clear that I was unlikely to win that remedy. It had never been done.
However, in my complaint, I asked that the firm make me a partner retroactive to July 1,1983, compensate me for lost pay, and cover my attorney's fees and court costs.
As he prepared to file the lawsuit, his partner was deciding to retire from the practice of law, so he called me to explain that he was going to join another law firm, and I would probably pick up another attorney to work with Doug.
A federal complaint filed on September 28th, 1984, was signed by James A. Heller, Jim Heller. The court's docketing system entitled the case "Hopkins v. Price Waterhouse," and numbered it 84-3040. I never saw the federal lawsuit, or the accompanying papers. I was in Nepal on business.
Doug Huron and Jim Heller were very pleased to get Judge Gerhard A. Gesell as trial judge. By Doug and Jim's passionate description, the man was brilliant, thoughtful, loved the law, and managed his calendar, back to the efficiency point.
His parents founded the Gesell Human Development Institute. He graduated from Andover, where my nephew went to school, and my brother-in-law still teaches, and Yale. He was a partner at Covington and Burling, a Washington law firm. He was appointed on Pearl Harbor Day in 1967 as a judge by President Johnson.
I was told he could be impatient, especially with irrelevant questions, and usurpic when irritated, and those are understatements.
On the day before Halloween 1984, Judge Gesell scheduled the trial, which began on a Monday in March. Let me digress a little bit here.
Early in the planning process, my attorney, Doug Huron, told me that the legal outcome might depend on the defense that Price Waterhouse offered, and he explained to me if they argue that they just didn't like you, then -- and that is why they didn't make you a partner, they just might win. He said not liking a candidate was probably an acceptable basis for rejection, as long as it was used indiscriminately. I thought that was a little strange, but that's all right. His comment was that this was more subtle, and he made this comment based on the remarks in the voting documents and other materials that Price Waterhouse had submitted in the -- in the litigation process.
He didn't use the word "stereotyping" at the time, but he toyed with the idea that perhaps no one person or situation had been decisive in my being rejected, instead, he hypothesized, that the entire selection process had permitted me to be evaluated in terms of how I compared to the conventional image of a woman, rather than to how I met the requirements demanded of a manager.
He thought the process permitted, even fostered, a biased evaluation of women. He wondered if there had been any research done related to discriminatory effects of derogatory characterizations based on race, and if such research extended, he thought it might be applicable, or extendable, to women.
To make a long story a little shorter, Doug brought in Dr. Susan Fiske, a Harvard Ph.D. who was Associate Professor of Psychology at the Carnegie Mellon Institute. Dr. Fiske had never testified as an expert, and she was younger than I was, and this was a long time ago.
On Doug's decision to bring her in, and on her testimony turned the trial. In her testimony, Susan Fiske summed it up, "I am confident that stereotyping played a role in the decision about Ann Hopkins. In lay language, I would say it played a major determining role." It was a novel approach to proving discrimination, and Judge Gesell was real skeptical.
So where did it come out? On September 20th, 1985, Judge Gesell found that Price Waterhouse had discriminated. Specifically, he said the Court finds that the Policy Board's decision not to admit plaintiff to the partnership was tainted by discriminatory evaluations that were the direct result of its failure to address the evident problem of sexual stereotyping in partner evaluations.
But I lost on constructive discharge, and was therefore not entitled to reinstatement as a partner. Jim Heller was less happy than I. His comment to me was, "I guess you won, but I'm not happy with the opinion on constructive discharge." I didn't really understand constructive discharge.
Had no one appealed, the litigation would have been over, and the price of litigation was about $57,686.83.
We went to the Court of Appeals. The Court of Appeals included Judges Edwards, Williams and Green. Green was from the D.C. Superior Court on loan to the Federal Court of Appeals. I'm sure that is not the right legal term, but you get what I mean.
About two years after the first appeal ended, one of my attorneys put it, "We won, we are affirmed, reversed and remanded." I found that very informative.
On August 4th, 1987, the Court of Appeals affirmed Judge Gesell's decision on liability, reversed his position on constructive discharge, and remanded the whole mess back to Gesell to deal with the issue of remedy.
In a split opinion on liability, the Court of Appeals made clear that the key issue here was that it does not retry district court cases.
"In order to overturn a determination of liability, we must conclude that it is based on an utterly implausible account of the evidence," and I guess they didn't find that to be the case.
The opinion on constructive discharge, however, was unanimous. "The decision to deny Hopkins partnership status, coupled with failure to renominate her, would have been viewed by any reasonable senior manager in her position as a career-ending action. Accordingly, it amounted to constructive discharge."
I believe that Mr. Heller was prouder about that constructive discharge ruling than he was about any of his other accomplishments on my behalf. The constructive discharge ruling established a legal precedent in the District of Columbia circuit.
Halloween, again, was a Monday in 1988. It was also a Monday in 1983 when Betsy Hishon went before me, five years to the day separated our hikes up the steps to the Corinthian pillared portico that dwarfs the main entrance door to the Supreme Court building.
My brother, his wife and children, my sister, my sister-in-law, and my children, made the trip. It was a family affair.
Between the dreadful acoustics and the badgering marshal, who was unaccustomed to young children in court, I barely heard the arguments. The marshal kept saying, "You have got to keep the children awake and sitting up." When they were awake, they wanted to talk to each other. When they were asleep, they'd lean over, and that wasn't nice. It was terrible.
On May Day, 1989, the Supreme Court announced its judgment in Price Waterhouse v. Hopkins. Jim Heller called me, he advised me that the Clerk of the Supreme Court had called. The opinion had come down. Someone from his law firm was en route to the Supreme Court to pick up a copy, and he had no clue what the opinion held.
So I roared over to his offices. I tried to help Jim with the -- I found him Xeroxing. I tried to help him with the Xeroxing, and only succeeded in interfering with whatever organizational concept he had in mind. He told me he had been too busy copying to read the opinion. Furthermore, it was going to take some time to figure out what the Supreme Court had said.
What I thought was the opinion was actually four. The judgment of the Court by Justice Brennan, Justices Marshall and Stephens joined, a second opinion by Justice White, who concurred with the judgment of the Court, a third opinion by Justice O'Connor, who also concurred with the justice -- judgment of the Court, a fourth opinion dissenting, written by Justice Kennedy and joined by Chief Justice Rehnquist and Justice Scalia.
All I knew was that the vote was six to three. When Jim finished making copies, I took one, and left him to pour over the 60 or 70 pages of opinions. There were clearly three Justices who were of the opinion that Price Waterhouse had not discriminated. The problem was that I didn't know what the various opinions of the other six were, or more importantly, what it meant to me.
With this rather crummy copy of the opinion, plaintiffs' lawyers don't tend to have rather exotic equipment. With this rather crummy copy of the opinions of the Supreme Court on the car seat next to me, I headed for home. Halfway up the Rock Creek Park to my house, the local news radio station announced that Ann B. Hopkins had won a major victory over Price Waterhouse.
On one hand, I felt better, on the other, on the other one I was skeptical, and I wondered how the local news station had figured out the answer before my attorneys had.
The only thing I could conclude was they must have better Xeroxing facilities.
In the Supreme Court -- In the Supreme Court case, which is Price Waterhouse v. Hopkins, Price Waterhouse I guess was the complainer in that one, there was an issue of burden shifting, which I won. Price Waterhouse maintained that the court should never have shifted the burden to them to prove that interpersonal skills problems, I'm disagreeable, all by themselves, were the basis for denial of partnership. They maintained it should have been my burden to prove that discrimination, not interpersonal skills, was the real reason for denial. In short, the burden of proof should never have shifted from me to them to prove anything. It was kind of essential that I win this one. If I'd lost it, I'd have lost the case, and not just the legal point.
On the evidentiary standard issue, I lost. Price Waterhouse had maintained that even if the burden of proof -- even if the burden to do something had shifted to them, they'd been held to a standard of proof that was, um, more difficult, that was tougher to meet than I had. Judge Gesell had required the firm to prove its case by clear and convincing evidence. The appellate court had agreed with Judge Gesell. The Supreme Court disagreed with both of them. The firm should have been required to prove its point only by a preponderance of the evidence.
I don't know the difference. I've asked a lot of lawyers what the difference is, and if you want to see a bunch of attorneys get tongue-tied, just ask them to explain the difference between clear and convincing and preponderance of the evidence.
The evidentiary standard matter was the one that my attorneys had told me to expect, and also the one that was least likely to affect me adversely. In the final analysis, I was unaffected by that aspect of the Supreme Court's decision.
Then came the trial on remedy, but it took a long time. Why is it taking so long? I asked Jim Heller. He kept asking himself the same question. When the Supreme Court reversed the decision on liability, it remanded the case back to that court for further proceedings. By July, I mean remember this started in May. By July, the Supreme Court's order should have wended its way back through the Court of Appeals to Judge Gesell. Anyway, Jim's comment was, "I don't know. I don't guarantee anything.
"But I do guarantee that this time next year we won't be arguing before the World Court in The Hague."
People. The legal proceeding to arraign Marion Barry, then mayor of the District of Columbia, began the same time and on the same day as the trial on remedy. The army of police and media people, and the drastically increased security for the mayor's arraignment slowed efforts to get to Judge Gesell's courtroom. "Glad you were able to get in. I put a lot of police out there to protect you," was his opening comment.
Theodore Olson, Ted Olson, argued for Price Waterhouse. I should have been flattered at being cross-examined by President Reagan's personal attorney. Instead, I wondered what it cost the firm on a per question basis. It had to be expensive.
My -- My attorneys warned me that it would be a struggle to overcome Judge Gesell's concerns about forcing an unwanted partner on a prominent partnership. During the trial, Judge Gesell as much as said so.
And finally, in apparent frustration, Jim Heller took the judge on, and he gave what we called sort of a lawyers' Martin Luther King speech, when he commented that there isn't a Title VII defendant in the world that doesn't think they made a good judgment. A few get caught, maybe feel guilty about it, not very many of them don't believe that they honestly made that firing or promotion decision, which some court has now told them was not valid, and was illegal.
If every court sits and listens, and they say, "We just can't accept that what we did was wrong, and therefore it is going to be difficult to accept Your Honor's decree undoing the wrong, then I think Title VII is nullified by personal attitudes which just simply aren't unreconstructed as a result of this case, and I can't believe that that is where the law is."
He commented that he really shouldn't interrupt a judge on the bench, and continued. And after he sat down, Jim's comment to me was, "That speech either lost the case or made you a partner." It was awhile before we found out which.
On May 14th, 1990, Judge Gesell published his Findings of Fact and Conclusions of Law.
Another story about the lawyers, it is people.
Doug called me at the office to tell me that he and Jim were headed to the courthouse to pick it up. He glibly noted he asked the Clerk of the Court if she'd give him a clue as to what the judge had found, and she declined.
You got to picture this, I mean again these are plaintiffs' attorneys. They are not running around in Mercedes Benzes and working on airplanes. The two attorneys, Jim driving, roared from the parking lot in Jim's trusty yellow Volkswagen Rabbit. They raced down Pennsylvania Avenue. While Jim sat double-parked in front of the courthouse, Doug fumbled his way through security, he skipped the steps, up the escalator, went to the second floor where the clerk was located. He screeched to a halt outside the door of the Office of the Clerk of the Court, calmed himself down, trying to look professional as he walked in.
At a pace reaching an undignified run, he retraced his route back to Jim in the car, and he was madly flipping pages, because there was no answer on the last page, which is where he expected to find it, and he couldn't find it on the first page, which is where I think every answer should be, and in the middle of the 33-page document, he finally finds the answer. And when they called me, the comment Jim made was, "Well, it looks like you're going to be a partner." So I'm sure glad Betsy Hishon started in 1978.
The judge ruled that I be made a partner, more or less like the average partner in the class of July '83, and that backpay be computed and awarded. Now, he couldn't put that in the order, because it was all subject to interest, computed based on the year in which the individual amounts were lost. So Judge Gesell stated that he was going to rely on one of my expert witnesses to compute the backpay according to whatever the assumptions were at trial.
He scheduled a status conference for the end of May, 1990 to approve a final order, ordering that I be a partner.
At the status conference, it is about people. A problem arose over attorneys' fees. Both sides had agreed that my attorneys' fees were $426,407.93, except at that point Ted Olson popped up with the almost forgotten amount of $3,946.61 that I owed because I had lost the Supreme Court case, and I had to pay the printing fees for the little booklets. And I lost because it was reversed, and not remanded. It was reversed and remanded, or whatever it was, it went back to the courts, and I didn't win.
Jim acknowledged that the roughly 426 thousand dollar amount should be reduced by about $4,000, and when he made the calculation to the penny, he got the wrong number. So with a twinkle in his eye and a broad grin, Judge Gesell says, "I don't seem to agree with your number, Mr. Heller."
So Ted Olson suggested that the lawyers work out the detail and get back to the judge at a later date, but he wasn't going to have any of that. He made it perfectly clear he was going to sign that order this afternoon, even if he didn't get anything else done.
One of the other attorneys made the same calculation, still wrong.
Finally, Price Waterhouse's in-house attorney, in-house counsel, Rick Sullivan, who had never uttered a single word in all the years of the litigation, computed the right number, to which Judge Gesell says, "It always helps to have an accounting firm handle the numbers." He was in a really good mood. He was glad to get us out of there.
The attorneys retired to Judge Gesell's chambers, where the order was printed and signed on the spot.
Doug gave me a copy of -- of the document when we met in the hall afterwards, and as I walked away from the courtroom, I ran into a woman who worked for Judge Gesell, she smiled warmly and said, "I hope you enjoy your new job, Miss Hopkins."
When my court -- When my case reached the Court of Appeals for the second time, a rough translation, actually, this may be literal, of its legal name, was Hopkins v. Price Waterhouse, District Court for the District of Columbia, 1985, affirmed in part and reversed in part, Court of Appeals for the District of Columbia 1987, affirmed in part and reversed and remanded in part, Supreme Court 1989.
In the D.C. Circuit it is more generally known by its shorter name, "Hopkins."
On Tuesday, December 4th, the Court of Appeals unanimously affirmed Judge Gesell's order on all issues. The liability issue had been to the Supreme Court. It was dead. This court panel included Judges Mikva, Henderson and Edwards, and Edwards who had been on the panel for the first appeal, was the chief judge on the panel for the second appeal, and he was a little tired of this matter, because he began his comment by saying, "This case before this court for the second time, arises from a decision by appellant, Price Waterhouse, to deny partnership to one of its employees," that is me, Ann B. Hopkins.
Anyway, unlike Judge Gesell's memorandum, it wasn't particularly difficult to find the Court of Appeals opinion. Very early, Judge Mikva wrote the overall ruling of the court. "Having found appellant liable under Title VII, the District Court ordered Price Waterhouse to admit Hopkins and to pay her backpay. On this appeal, Price Waterhouse challenges both the District's Court finding of liability, and its remedial order that Miss Hopkins be made a partner. We can find no merit in either of these challenges."
Betsy Hishon, who has since died of cancer around -- on Thanksgiving, she was mentioned once again when Judge Edwards wrote that Judge Gesell had the authority to issue a partnership. "Price Waterhouse also asserts that the District Court had no authority to order admission to partnership to remedy a Title VII violation. Given the Court's judgment in Hishon, and after a careful review of Title VII, we find that the District Court clearly acted within its bounds, within the bounds of its remedial authority."
The final page of the 29-page opinion summed it up, "For all the foregoing reasons, the judgment of the District Court is affirmed, so ordered."
So what has happened since? A little bit about the people, because it is the people that made the difference.
Price Waterhouse no longer exists. It merged with Coopers & Lybrand in 1998 to become part of PricewaterhouseCoopers. The culture died on that day.
After I retired from Price Waterhouse Coopers, IBM acquired the consulting practice of PricewaterhouseCoopers. Today, PricewaterhouseCoopers is one of the largest, if not the largest, global accounting firm. The partners number in the thousands. My daughter, who joined Price Waterhouse Coopers, is now an employee of IBM.
After a rough start in the private sector consulting practice at Price Waterhouse in 1991, I had a desk, an office, and a secretary somewhere out in suburbs. They called it Bethesda, but I think it was Rockville, and nothing to do. I wrote a book.
After a rough start in the private sector consulting practice in Price Waterhouse, I went back to the government practice, where I was a pretty good partner.
I retired from PricewaterhouseCoopers a couple years ago. I hope the accounting firm stays in business, folks, because it is what is paying my retirement pay, which was negotiated in a lawsuit.
Doug Huron still practices law here in town. I had lunch with him last week. Jim Heller died of cancer. I spoke at his memorial service.
Judge Gesell died of cancer. Betsy Hishon died of cancer. Ted Olson became -- did I get the title right, Solicitor General?
Um, and in final analysis, it is all about the people. Thank you.
SAMUEL MARCOSSON: Too often I think in academia, and perhaps at the Commission as well, that you can lose sight of that reality, that it is the people, and that it is the charging parties and the people who have been discriminated against whose stories should drive perhaps more of the decisions than they do. With that in mind, um, let's see what did drive the decisions, and the priorities, and the strategies that led to the Civil Rights Act of 1991. How responsive were they to those sorts of concerns, the cases that Charlie described, and for that purpose, we're going to start with Jeffrey Blattner.
JEFFREY BLATTNER: Thanks very much.
I want to thank the EEOC for inviting me to be a part of this very special celebration. I also want to acknowledge my old friend Commissioner Ishimaru, someone who himself played an important role in securing passage of the Civil Rights Act of 1991, among several important civil rights laws, and my friend Barbara Arnwine, who is a terrific advocate, and who is an important player, both inside and outside in the effort to pass the Civil Rights Act of 1991.
Um, I have been asked to describe the legislative and political context in which the legislation was drafted, and some of the thinking behind the original drafting, and believe it or not, there was some thinking behind it.
And then discuss the contentious, and as has been said earlier, bruising process by which the bill ultimately became law.
Indeed, in preparing for today's presentation, some of those bruises somehow resurfaced.
Um, I will also offer a few thoughts on what we thought we achieved in enacting the statute.
As I think about it, I -- I have concluded that the story of the 1991 Act really began in some ways 10 years earlier, in 1981, when President Reagan nominated Justice O'Connor to fill the Supreme Court vacancy brought about by Justice Stewart's retirement. It is a little hard to believe now, with 20/20 hindsight, since Justice O'Connor sits at the very center of the Court, and indeed in many ways is the most powerful Justice, um, as a result. But at the time, her appointment deepened concern among civil rights advocates that the Court was shifting rightward, away from a more expansive interpretation of the civil rights laws.
Um, that concern was heightened by the Grove City decision of the Supreme Court in 1984, which held, of course, that Title IX applied only to the specific program or activity that received federal funds. The Grove City decision immediately sparked efforts in Congress to overrule it.
Um, it was not until 1988, however, after Democrats regained control of the Senate following the 1986 elections, that Congress eventually enacted the Civil Rights Restoration Act, overriding President Reagan's veto, so that statute was, in some ways, an exemplar, um, of the concept of restoration, and I recognize there is -- there was then, and is today, a certain amount of controversy about what exactly we thought we were restoring.
Um, the Grove City legislative victory, as we perceived it, occurred shortly after another very important event in the development of the Civil Rights Act, which was the Senate's rejection in 1987 of Judge Bork's nomination to succeed Judge Powell. Much of the debate over Judge Bork's nomination, was whether he would, in the words of his opponents, turn back the clock on civil rights.
Judge Bork took a narrow view of the legal provisions that protected the rights of women and racial and ethnic minorities, and the Senate's defeat of the nomination was viewed by many as a repudiation of this particular approach.
During his confirmation hearing, Anthony Kennedy had seemed to distance himself from Judge Bork's philosophy of constitutional and statutory interpretation. Nevertheless, civil rights supporters in Congress and elsewhere, wary, if not downright anxious, about the new Justice, when he was confirmed in January 1988.
Soon thereafter, we had our first clue, when the Justices, on their own initiative, as Professor Shanor said earlier, issued an order in the Patterson case, asking whether Runyon versus McCrary, in which the Court had adopted an expansive view, urged upon it ironically by then Solicitor General Bork that the Reconstruction Civil Rights Act should be construed to prohibit all race discrimination in private contracts.
At that time, when the -- when the order was issued setting the case for reargument, 66 senators, and more than 130 members of Congress joined with Senator Kennedy in an amicus brief that we worked on with the Lawyers Committee and others urging the court not to overrule Runyon.
In essence, Congress told the Court to heed the message of the Bork nomination in the Grove City legislation, and not to turn back the clock on civil rights.
In spring, 1989, we got a response from the court, and it was a slap in the face.
Um, they got the -- They read the brief, but they didn't get the message.
The Court announced a series of decisions that seemed to make clear that a new conservative majority had changed the Court's basic approach to interpreting civil rights laws. That was the mind set in Congress at the time.
From May 1st through the end of June, 1989, the Supreme Court issued nine decisions narrowing in some respect the scope of key civil rights laws. Patterson exemplified this shift. The courts reaffirmed Runyon, but in an opinion by Justice Kennedy, as we discussed, the Court ruled that Section 1981 does not prohibit on-the-job racial harassment, or other racial discrimination, following the formation of the contractual relationship.
Congress - Congressional reaction was swift. The day Patterson was handed down, Senator Kennedy took the Senate floor to announce that he would introduce comprehensive legislation. Today he said, and this was in the middle of this stream of decisions, in the fourth straight decision in 11 days, it eventually became nine, nine decisions, the Court has once again dealt a significant setback on civil rights.
In this atmosphere, the whole is worse than the sum of the parts. Taken separately, each of these retreats would be a source of genuine concern, he said. Together, they are a serious threat to the years of progress that we have achieved toward a better and fairer society.
It was 35 years since Brown. Congress must not let these decisions stand.
In the summer of 1989, when we began to draft what ultimately became the Civil Rights Act of 1991, we did so first with what Professor Marcosson said, which was the overall injunction that one -- we didn't amend Title VII lightly. There was -- um, there had been great trepidation about amending Title VII. There had been actually quite a bit of civil rights legislation at that time. Um, in addition to the Grove City bill, the Fair Housing bill, which Stewart and I worked on together, had just passed, but Title VII had been more or less sacrosanct, with the exception of the Pregnancy Discrimination Act, and a couple other relatively minor matters.
But when we began to draft the Civil Rights Act that summer, we -- our drafting was affected by I think a certain amount of distrust we had, occasioned by the fact that the very Court, the Supreme Court that had issued the decisions that we were seeking to overrule, would itself be left with the power to construe the statute that we hoped would result from our efforts.
That distrust gave rise to a greater emphasis on specificity and clarity in legislative drafting, something you may find ironic, given the final result; and a corresponding unwillingness to leave many questions to the discretion of the Court.
Ultimately, as a result, the bill became one that only a lawyer could understand, a fact that hampered us in the political debates that followed. There has been reference made to the statutory construction provision, um, and I'll digress for a quick moment just to say that there was a lot of internal debate about whether to include that in the 1990 bill. It is not in the 1991 bill. One concern we had is what effect will removing it have if it is ultimately removed, as it was.
But, again, that provision reflected the distrust I think that many civil rights supporters had for the Supreme Court. It was essentially, you know, fool us once, you know, shame on you. Please don't fool us again.
That was the thinking that was behind it.
The original Civil Rights Act of 1990 was, um, certainly ambitious. In addressing an unprecedented 10 Supreme Court decisions -- Incidentally, there was always a sort of a question about exactly how many decisions we were trying to overrule. At the press conference announcing the introduction of the bill in the labor committee room in the Dirksen Building, Senator Kennedy and many civil rights leaders were there, Gus Hawkins was there, Don Edwards was there from the House. I had not counted at that point, and Senator Kennedy, standing there, got asked a question, which was: How many decisions does this overrule? And I said kind of sotto voce from the side, "about a dozen," hedging. And he heard "a half a dozen." So there was always this uncertainty about exactly how many decisions we are trying to overrule. I went back and counted at one point, and it was 10 in the original bill.
Of these, I think the most politically significant was the Wards Cove decision. Wards Cove had, at least in our view, overruled key aspects of Griggs versus Duke Power, and significantly increased the difficulty of proving a disparate impact case.
I'm sure we'll get into a lot more of the details of Griggs and Wards Cove later on. It is striking, I think, how little judicial interpretation there has been in the ultimate outcome in the case. But in Wards Cove, a closely divided Court addressed several key features of Griggs. Rather than requiring employers to prove that exclusionary practices were required by business necessity, the new decision required -- said that once an employer had proposed a justification for use of the practice, the plaintiff must prove that the practice did not serve in a significant way the legitimate goals of the employer.
At the same time, the Court also tightened the rules for a prima facie case, pretty technical stuff. The original bill responded to each of the aspects of the case.
I think from the standpoint of the political debate, the lightning rod became what was the definition of business necessity? Incredibly arcane legal stuff. And we selected, fatefully, in the summer of 1989, when we were drafting this, a phrase from a case called Dothard versus Rawlinson, "Essential to Effective Job Performance." That is where we had set the hurdle.
From a political perspective, as I said, the Wards Cove provision was certainly one of the two most important politically in the legislation. The other was the damages provision. Um, the right to sue and obtain damages in cases of intentional discrimination, that of course was the only major provision that was not a direct response to a Supreme Court decision.
The decision to include a damages provision in the bill was based on straightforward equitable considerations, considerations that also had significant political component.
A central objective in the legislation was to overrule Patterson, as I indicated earlier, which had dramatically restricted the scope of Section 1981. That statute afforded victims of intentional race discrimination on the job the right to obtain compensatory and punitive damages. If racial minorities had that right, under Section 1981, we asked, why shouldn't women and religious minorities have it as well. That was the rationale for including the damages remedy in the bill.
The Bush Administration, of course now I'm going to be referring throughout to the 41 administration, as it were, not the current one, its initial reaction to the bill was muted, but within days an Op Ed essay in the "Washington Post" by former Solicitor General, Charles Fried, first raised the spectre that the bill would coerce employers to adopt quotas for hiring and promoting minorities and women.
At the beginning, that charge didn't affect the progress of the bill. Shortly after it was published, in fact, Senator Danforth was added as a co-sponsor, brought with him several moderate Republicans.
A brief digression there, um, when Chairman Clarence Thomas was nominated to the D.C. Circuit, um, this was -- His confirmation hearing, if I recall, was around February of 1990, as this bill was taking off -- And Senator Danforth sat with him in the hearing, as he would later, in another set of hearings. Um, and Senator Kennedy asked Clarence Thomas about a speech that now Justice Thomas had given in which he advocated compensatory and punitive damages for victims of intentional race discrimination.
And, sure enough, in the hearing, Clarence Thomas repeated his support for that view. Senator Danforth was there. It made an impression.
A few months later, through some very good behind-the-scenes work, um, by many of the advocates for the bill, Senator Danforth came on the bill. That was a very important development, as we will hear a little bit more about.
Um, the quota charge took off when President Bush issued a statement in the Rose Garden that he would not sign a quota bill. Most Americans are not in a position to weigh the accuracy of a charge of that kind. The quota charge appealed to deep-seated animosity among many white workers, rooted in concerns that their own work opportunities were being limited by affirmative action programs that resulted in, quote, reverse discrimination.
When leveled by the President of the United States, the quota charge proved almost impossible to shake.
It mattered little that the supporters of the bill sought merely to restore the law, in our view, to where it had been under Griggs.
At the end of the day, to most Americans, the debate was not one over substance. The question became who do you believe, a group of civil rights leaders and Ted Kennedy, or the President of the United States?
President Bush directed his administration to begin negotiations to determine whether an agreement could be reached on an acceptable bill. Negotiations took place in June and July, 1990, at the same time the Senate undertook consideration of the bill.
One of the most ridiculous memories I have of this time, was sitting in -- in Governor Sununu's office, when he was White House Chief of Staff, Senator Kennedy and Attorney General Thornburgh, and we basically had a chart of like demonstrable, substantial, significant, manifest, essential. And it said "amounts," and we were playing word games, basically, and one would have thought that these folks would have come to a resolution and gone on to address more significant matters, but we did not.
Every effort on our behalf to seek compromise was at that point revoked. In order to assure ourselves of the support necessity to forestall a filibuster in 1990 during Senate debate, the bill sponsors agreed with a group of southern and border state Democrats, led by Senator Boren, to accept an amendment limiting punitive damages to the greater of $150,000, or the amount of compensatory damages, the so-called Boren Damages Cap. Through procedural maneuverings, it wasn't included in the bill that actually passed the Senate that summer, but the Senate did pass the bill, albeit by less than a veto-proof minority, and the House soon followed suit, passing a nearly identical bill in early August, 1990.
A House-Senate committee was convened shortly thereafter, and quickly reported a bill pretty similar to the bill passed by both houses, with the addition of the Boren Amendment, capping punitive damages.
Um, several attempts were made to reopen negotiations with the Bush Administration during September and October of 1990. Each was rebuffed. Even following completion of action on the conference report, we continued to try to seek compromise with the administration. Draft resolutions were prepared. I never knew this until then. You can actually amend a bill after a conference report, after Congress has acted, and before the bill is actually delivered to the President. There is an arcane process by which the Executive Clerk, the guy in the White House, or woman, who actually gets the bill from the Senate or the House, can be directed to return the bill, and another clerk is directed to add language to it, and then resubmit it to the president.
Resolutions were drafted and sent to the White House, you know. It became almost like Maxwell Smart. Some of you may be old enough to remember Maxwell Smart, who, when he said something and it wasn't believable, would say, "Well, would you believe X?" We kept making offers and offers and offers and you know, and in essence sending these resolutions down the way to the White House. No go. These efforts failed. The bill was vetoed by President Bush, um, late in the afternoon -- late on a Saturday afternoon in October, 1990. I can tell you what kind of news coverage they wanted to get.
Two days later, the Senate sustained the veto by one vote, 66 to 34. Former Ku Klux Klan leader, David Duke, who had earlier carried a majority of the white vote in his unsuccessful bid to unseat Bennett Johnston, the senator from Louisiana, was in the Senate gallery, and smiled as the vote was announced. True fact. The quota issue persisted in the November 1990 general elections. The Louisiana election had been earlier.
Jesse Helms used a television advertisement depicting a white worker denied a job because of a racial quota in his unsuccessful re-election -- excuse me, his successful, that was a Freudian slip, re-election campaign against Harvey Gantt, the former mayor of Charlotte, and an African American.
The 19 -- In 1991, the House Democratic leadership made a commitment to make the civil rights bill the very first piece of legislation introduced, and the decision was made to introduce a bill without several of the compromises added in conference, including the Boren Cap on Punitive Damages.
Meanwhile, skittish southern Democrats in the Senate, who had seen the power of the quota issue in the Helms-Gantt campaign, sought to avoid another potentially harmful battle with President Bush, who was riding high, believe it or not, in the aftermath of the Persian Gulf War. He had a 91 percent approval rating.
They urged Senator Kennedy to delay introduction of a Senate bill until the House completed action on its measure.
Senator Kennedy agreed.
The Business Roundtable stepped in, and tried to foster negotiations, um, between the White House on the one hand and congressional supporters of the legislation on the other. After a somewhat menacing phone call, um, by a member of the administration, who will remain nameless, those negotiations collapsed. Um, and the House leadership turned its attention to trying to obtain a veto-proof majority in the house. They re-added a damage cap, and other provisions, um, but the House effort fell short, as we had in the Senate the previous year.
On final passage, the House bill obtained 273 votes, 17 short of the amount needed to override a veto.
The next thing that happened was that Senator Danforth, joined by nine other Republicans, introduced a package of bills that constituted a scaled back version of the legislation that passed the Senate. Ten Republicans represented the 57 votes that the -- there were then 57 Senate Democrats. Those were the good old days, that they needed to obtain a veto-proof majority in the Senate.
During the next three weeks, the moderate Republicans held extensive discussions with representatives of the Democrats.
Senator Kennedy, Senator Boren, Senator Bumpers from Arkansas, Senator Mikulski. At the conclusion -- and at the same time, Senator Danforth was shuttling to the administration. At the conclusion of those discussions, Senator Danforth introduced another set of bills, which reflected numerous changes to accommodate concerns of both sides.
Um, while those discussions were under way Thurgood Marshall announced his retirement from the Supreme Court, and on July 1st, President Bush nominated Clarence Thomas to replace him.
As we all know, Senator Danforth spent a great deal of time in July and thereafter guiding Judge Thomas through meetings with senators. But he persisted, Senator Danforth did, in his efforts to convince the Bush Administration to pass the civil rights bill -- to accept the civil rights bill.
Those efforts were rebuffed in late July, when President Bush rejected Senator Danforth's then latest proposal. That is where matters stood until mid-September, 1991, when Judge Thomas completed what turned out to be his first set of confirmation hearings.
Senator Danforth then introduced another version of the bill, which combined into one package these -- these bills that he had been discussing with Democrats in the White House.
Senator Mitchell announced his intention, he was then the majority leader, to move to the civil rights bill at the beginning of October. It was hoped that the Senate would complete action on the civil rights bill before considering the Thomas nomination.
You can see these two vehicles, if you will, the nomination and the legislation, and it was not a coincidence, not in Senator Danforth's mind, who very skillfully maneuvered, or in Senator Mitchell's mind. There was, I think, an effort on Senator Danforth's behalf, and he has written about this, um, himself, to capitalize among civil rights supporters on his -- on his -- from his work on behalf of the bill to advance the Thomas nomination, and conversely to obtain support from supporters of the Thomas nomination for the civil rights legislation as a result of his efforts on behalf of Judge Thomas.
The Judiciary Committee split seven to seven on the Thomas nomination in its committee vote.
Senator Danforth, sensing some problems with the nomination, asked that consideration of the civil rights bill be delayed until the Senate completed action on the Thomas nomination so that the Senator could devote his undivided time to securing Judge Thomas' confirmation.
Just before the Senate was scheduled to vote, as we all know, media outlets reported that Professor Anita Hill had charged Judge Thomas with sexually harassing her when she served as his special assistant at the EEOC.
Senate consideration of the nomination was postponed for a week while the Judiciary Committee conducted a televised three-day, seemed like three years at the time, set of hearings on the nomination.
Um, Professor Hill's charges in the committee's hearings provoked a fire storm of public outrage and debate about sexual harassment in the workplace. As a consequence, the political appeal of the civil rights bill improved considerably, since victims of alleged sexual harassment, who, like Professor Hill, had stayed on the job, then had no meaningful remedy under federal civil rights law.
They hadn't lost pay, because they hadn't left the job, and there were no damages available. When the Senate confirmed the Thomas nomination, many women voters were outraged; and opponents of the civil rights bill began to see the need for a compromise.
Senator Danforth's colossal efforts on behalf of Judge Thomas' nomination, obviously enhanced his standing among his Senate Republican colleagues.
When the President's staff stepped up their attacks on Senator Danforth's latest civil rights proposal, several Senate Republicans who had previously been opposed to the legislation, most prominently, as I understand it, Ted Stevens from Alaska, indicated they were reconsidering their positions. There was apparently kind of a pep rally, as it were, at the White House. It is a rally in opposition to the civil rights bill, this right after the Thomas nomination, and what I heard was that a couple of the Republican senators in the room said, "Jack Danforth just got this nominee confirmed. I'm not going to -- you know. I'm not with you. I'm not prepared to stick it to him on this piece of legislation that he spent over a year working on," in essence.
Well, it was time, the Bush Administration concluded, to cut a deal to avoid what then would have been a certain political defeat in the Senate.
Late October 1991 it became clear that the White House was prepared to reach a deal. Governor Sununu, Boyden Gray were dispatched to Capitol Hill. They were to camp in Senator Dole's office. Senator Danforth began shuttling proposals back and forth between Senator Kennedy and the administration representatives.
Late that day, the White House, for the first time, demonstrated a willingness to accept two provisions they had previously deemed unacceptable. The first was a Wards Cove provision that explicitly adopted the business necessity standard from the Americans with Disabilities Act that Congress passed in 1990.
The second was a provision allowing juries to award damages in all cases of intentional discrimination. That agreement was eventually incorporated in what became a Danforth/Kennedy/Dole substitute.
The main elements of the substitute were unchanged when the Senate passed the bill by a vote of 93 to 5. The House took up the final version of the bill, passing it by a vote of 381 to 38.
President Bush signed the bill at the White House shortly thereafter, on November 21st.
At the end of what had been a long, contentious, and ultimately, at least speaking for myself, exhausting process, the bill sponsors believed we accomplished several things: First, we thought, we had placed the Congress decisively on record against the kind of narrow interpretation of the civil rights laws manifested in the decisions of the October 1988 Supreme Court term.
Second, we had afforded victims of racial or sexual harassment and other forms of on-the-job discrimination more effective, though by no means perfect, remedy. As you all know, there are caps on the damages available in cases under the Civil Rights Act of '91, at least under the -- the section, except for the -- the Patterson part, as it were, except for race cases.
Third, our response to the Wards Cove decision, we thought, would make employers think twice before adopting unnecessary employment practices that had a disparate impact on racial minorities or women. And fourth, we thought we had taken several concrete steps to make it a little less difficult for victims of discrimination, like Ann Hopkins, to secure redress in the courts.
That concludes the story of how the bill came to be, and what we thought we were doing. I look forward to hearing what we actually did.
SAMUEL MARCOSSON: Before we -- Before we resume with Barbara Arnwine's remarks, let's take our break. If we could possibly try to limit it to 15 minutes. We started a little bit late. If we can get back here and get started again by 11 o'clock, we'll have time for some questions and discussion at the end. Thanks.
(Brief recess.)
SAMUEL MARCOSSON: Our next speaker was also involved in the legislative efforts that culminated in the 1991 Act, but not from the -- inside the corridors of power, but trying to influence them from outside, Barbara Arnwine.
BARBARA ARNWINE: Good morning, everyone.
My apologies for the hoarseness of my voice, but I have been traveling, and fighting the L.A. smog, and all those kinds of things which is guaranteed to take away your voice.
Um, I also want to join everyone in thanking the EEOC for putting together this panel, and this whole series of recognitions of the 40th Anniversary of the Civil Rights Act of 1964.
As we all know, just last month we celebrated the 50th anniversary of Brown versus Board of Education, and I think that it is quite remarkable to sit back and to note that, after Brown, that it took this country 10 additional years, and arguably the death of a president, as the impetus to pass new legislation prohibiting discrimination in the spectrum of employment.
Despite this achievement in 1964, by mid-summer 1988, the very premise of Title VII had been shaken to its very core, and as we have heard in a series of adverse decisions, the Supreme Court had dealt crippling blows to affirmative action, and contracting with the Croson decision, to Section 1981 with the Patterson decision, to disparate impact law with the Wards Cove decision, a mixed decision many of us had issues with, having to deal with the full interpretation of the Price Waterhouse decision.
The Lawyers' Committee's own case in Martin versus Wilks, and other case restrictions, a total of nine damaging decisions that were absolutely, to our view as civil rights advocates, evidence of a Court that was running amok in the area of narrowing and restricting the reach of Title VII. The effect on the enforcement of Title VII was immediate. As a conservative, and an increasingly conservative federal judiciary interpreted these decisions from the Supreme Court in even more expansive ways to block civil rights plaintiffs in their ability to challenge and remediate discrimination.
A lot of those subsequent decisions would become part of our advocacy agenda, and would be part of our notebook of evidence of how horrible these -- the reach of the Court's decisions overall were, and how necessary reversal legislation was.
Indeed, the effect of the decisions was so disastrous, that hundreds of plaintiffs' lawyers abandoned the practice of anti-discrimination law.
I have a particularly acute horrible memory of speaking at a summer conference to lawyers in Massachusetts, plaintiffs' lawyers, and people standing up and giving testimonies of why they were no longer going to practice anti-discrimination law, and why they were giving up civil rights practice, and going into other kinds of practice, and it was a very sad occasion, because it was all, once again, proof that we needed to do something drastically.
You have to understand that I arrived in Washington, D.C. in February of 1989, just in time to see Patterson issued, um, and right after Croson had been issued, and it was a horrible experience, because the Lawyers' Committee had in its ranks some outstanding attorneys, like Richard Seymour, and at that -- and we later would hire Tom Henderson, and other lawyers who were just outstanding in their knowledge and breadth of Title VII and its operations, but the Lawyers' Committee had always taken somewhat of a step behind other organizations when it came to recent fights around civil rights legislation; and it was -- To get us involved in a civil rights fight was almost, um, at that point, quite unusual, and -- but I felt there was no choice, that we obviously had to do something, we had to do something quickly, and we had to work hard to reverse this decision, or the people that we live to help, not just talking about the Ann Hopkins, who are extraordinary in their courage and their fortitude and their consistency and their stick-to-it-iveness and their tenaciousness, but talking also about those clients who never could put a dollar down to retain a lawyer, and who noted injustice was happening to them, and now to find the court doors barred by these horrible decisions.
So all of a sudden, women's groups, race groups, age groups, labor organizations, religious groups, national origin groups, found ourselves forced to combine and work together like we hadn't done in years to save Title VII from the ravaging effects of these decisions, and the reality was that among us, with all our staffs combined, it took every single soul that was available to do the advocacy work that was important to support the passage of new legislation.
The first question that we all had to grapple with was: What is the world of the possible?
We have all these adverse decisions, decisions in prior years that people were not happy with. But what is the world of the possible? What can you actually present and argue to Congress that it should enact? And that was not as easy as it may sound, because that took a lot of -- a lot of effort and intelligence gathering.
First of all, we have to have meetings with members of Congress, find out what they thought, and their staffers were very, very key, to find out what they thought was in the world of the possible.
We also had to have meetings among ourselves, a lot of back and forth about what we thought was in the world of possibles. Let's face it, there was no agreement as we started off. Staffers had some views that were more different than our views. Our views were different, even among ourselves, and we had tremendous differences as to what we should push for.
What could we actually fix? Croson? Out of the question, constitutional interpretation.
So what do we do about everything else, and how do we start, and what do we do that is going to be effective?
It was very early clear that Patterson was the engine that would drive the train of the Civil Rights Act. It was no doubt about it. Because of the fact that the Congress had -- so many had -- congressional members had participated in the Patterson brief, they were educated on the issue. It made it much easier, because every other fix in the legislation was highly technical, but Patterson, people got. It just was so egregious, so outrageous in the way in which the Court had gone about deciding the case, so horrible in its actual decision, that Congress got it. So we started off with a floor that you don't normally have in a lot of legislative drives, with a congressional understanding of the intricacies of a very horrible decision.
Another consideration we had to sit back and think about is what was the receptivity in Congress? Who would be the champions of this legislation? How do you get various senators and various House members to lead?
And then I want you to remember that this was 1989. We started off in '89, and we would go through a bruising battle that Jeff has really brought a little bit of pain back to me, um, in thinking about how all of those, you know, terrible, terrible months of battle.
I -- My recollection is that sometimes this battle was so intense, Jeff, that I know that I ended up occupying a leather sofa, sleeping at unusual hours of the night, and in my office instead of at home. It was just that intense to deal with this legislative drive.
My -- Also my other fond memory that Jeff brought back was the memory that -- of negotiating with DOJ. How did you forget that? See.
JEFFREY BLATTNER: Impressive.
BARBARA ARNWINE: And the incredible meetings in the Department of Justice underneath the picture of Frederick Douglass. While here you have a Justice Department that is standing there advocating for -- in fact, first of all trying to convince us that legislation wasn't necessary, and then trying to convince us that whatever we were going to seek would have to be extremely limited, and those meetings with Boyden Grey, Thornburgh, and others, were -- still rank, after Ashcroft, as some of the worst meetings I've ever had.
The -- All of the historic civil rights legislation up until that point had been bipartisan. Even the Grove City legislation had been bipartisan legislation. There was still liberal moderate Republicans like Hamilton Fish who still had an effective voice in the House. This fight preceded the Gingrich revolution by a number of years. The parties had not consolidated into their party line discipline, the way they have now, where it doesn't matter what the arguments are, it doesn't matter what the appeal is, it doesn't matter right or wrong, it is all about doing what the party says.
This is also in a period where the Democratic party was also changing. The Clintonistas were just evolving, and the Democratic Leadership Council was just beginning to really assert its influence within the party, and we also found, that in talking with some of the members from the Democrats and of course the same was true with the Republicans, that there was a lot of anger around what people thought had been their loss of the angry white man because of past support by the Democrats for civil rights legislation.
Indeed, one of the worst meetings that we had as civil rights groups among ourselves, was when we had sent out a contingent, all I'll say is it was a non-black, non-racial minority contingent, to meet with a senator who was quite influential in the party, in the Democratic party. And the people came back, and nobody would talk about the meeting, and we couldn't figure out what was wrong, because we tried to solicit something about what happened at the meeting, and nobody would say a word, and I was very, very stunned at this inability of our colleagues to share.
Finally -- Finally, out of great embarrassment, they shared, and what they told us was so -- was so chilling that we had to just end the meeting right there. And that was that this particular senator had told them that he was not going to support the bill because his constituencies -- his constituents "hated niggers," quote unquote.
This is the reality of what it takes to fight for appeal. These are all the kinds of considerations that you have to deal with, and it is just that stark, and that crude, and that real.
So one of our considerations then was how do you build popular support for this legislation? How do you portray it in a way that makes it clear that it is fulfilling the aspirations of our nation's highest principles?
How do you posit the bill in a way that it is clear that it is fulfilling the goals of equality and equal justice for all?
You also have to remember that this fight preceded the rise and establishment of anti-civil rights groups, like Ward Connelly's American Civil Rights Organization. The Center for Equal Opportunity, Landmark, Pacific Legal, the Center for Individual Rights. They were all young at that time, and most were unestablished; however, they still had started some influential messaging that would in fact -- would influence this debate, such as discrimination was a thing of the past, and people engaging in discrimination were just really a few bad actors. Didn't need comprehensive legislation. It would hurt the economy. That all you were doing really was creating a lawyers' bill. All of these arguments that were -- were perpetuated at that time. We also have to remember that this fight preceded the rise of the Internet, so you didn't have the kind of Internet advocacy that you have now. It was now -- It was still: Call your senator. It was still fax to your senator. It was antiquated advocacy, when you consider how advocacy is done today.
And the people literally still counted their letters, and still counted their faxes and the number of calls.
This fight also preceded, as Jeff has very well articulated, the fight over the confirmation of Clarence Thomas, and it would be influential in our consideration of the legislation.
Also very importantly, as Jeff has mentioned, was the business community. When the Business Roundtable came to the -- to sit down with the senators, with the administration, they also sat down with the civil rights organizations, and in fact, we had a series of very, very powerful meetings. And one thing that became clear then, shades of very, very early harbinger, or where the business community would be, with Grutter, was that they were very clear that one of their concerns in any legislation that was passed, was making sure that they still had the right to use affirmative action as a tool and a device within the workforce, within building their workforces. So they were very, very concerned about the charges of quota bill, and other things that were beginning to evolve.
They also -- I cannot begin to tell you what it means to have a champion, because Kennedy's role, which Jeff has been very nice to give Danforth a lot of the credit, which Danforth deserves, but also Kennedy's personal friendship and relationships with the White House was also very, very essential in these meetings; and Jeff has been very kind to leave out some of the stories, some of the personal beatings he went through as he advocated with the White House for -- with Senator Kennedy.
As has been clear from the previous presentations, our focus was, from the beginning, when we started this fight, not only on fixing the horrible cases of the '88, '89 term, but making sure that because of the distrust of the Court, that we could codify key judicial concepts that had interpreted Title VII in a way that was positive previously for civil rights plaintiffs, into statutory law.
That we did not want to just rely on judicial precedents, because the Court clearly was in an activistic mode. So that became a huge, huge driving force in all of our deliberations.
How do we expand the law? Here is where we had most of our major fights. What was the best way to expand the law, to make sure that not only did we have damages, but other kinds of protections in the law, and here help from staffers like Jeff and others was just absolutely key, and our advocacy before senators was key. One-on-one meetings with Congress people on both sides of the aisle and both houses were absolutely essential.
We spent more time talking, and knowing different senators and different staffers. One thing that I should say is that one reason why Danforth was so good on these issues is that he had some staffers who were good on these issues, including one who had previously worked for the Lawyers' Committee. Ah, it does not hurt to have these kinds of connections, because it made a big difference in how things were advocated in front of the senators.
Our major focus, as has been already enunciated, was on codifying Griggs versus Duke Power. We went through so many different drafts of language, I don't even want to begin to think about it, and so many different, you know, venting what different senators had come up with. One story Jeff did not tell was how much was left on the cutting floor of this bill, how many times we had to go and defeat bad amendments, bad language, bad, you know, procedures.
I started, you know, here I am new to this whole thing, and here we are talking about first degreeing and second degreeing, and all this other stuff, and learning the whole process of how legislation works, and looking at those arcane rules, and making them work for us.
The low point, of course, was the veto in 1990, Lawyers' Bill, Quota Bill, so said the President. But a couple other things happened that changed. Not only did we have Danforth, and his incredible leadership on the bill, but we also had another factor that I want to add into what also helped. Not only did David Duke's presence in the gallery stun people, but what really -- When I saw a couple of senators -- I saw a couple of people change, especially in the house, when I was meeting with Blue Dogs, and all these other kinds of congressional leaders, and I remember some Republicans coming up to me who had been really hostile in hearings, and later on a couple things happened that made them think. Desert Storm, seeing those black troops had a huge influence on a lot of people.
Rodney King in March of 1991 really stunned a lot of Congress people, and I remember one Republican member who had been hostile to me, really just cruel when we had appeared before the committee, telling me later on, "Barbara, I just can't be associated on the side of somebody opposing civil rights legislation, when those people beat black people." He says, "I just can't be part of that. I just think our party has got to do something different here." And his advocacy, and his change was very instrumental.
What did we accomplish in the legislation? We codified the Griggs standard. We provided damages for intentional discrimination for uncovered groups. We reversed the Patterson decision. We expanded Title VII to the House and the Senate employees, by the way. Very important provisions, the longest parts of the Act.
We restored the expert witness fee provisions that had been done in.
We -- It was the first, if you look at the 1991 Act, there is also a hidden message in there, because it is the first time in any federal legislation where the term "affirmative action" is actually acknowledged.
Thirteen years later, what has been the practical impact of this Act?
Clearly it has impacted the Supreme Court. Just as we hoped that Congress sending a strong message would in fact impact on the Court's future decisionmaking, it, I think, has absolutely had that effect. You read the Costa decision, which I know is going to be talked about at length, and once again you can see the Court's clear reference to how Congress enacted 1991, and how -- I mean the 1991 Act, and how they interpreted and re-set forth the new statutory framework, and their literal -- the Court really taking an attempt to do a literal construction of what the Congress intended.
The impact on the plaintiff's bar? Case filings increased. In fact, in a paper that the Lawyers' Committee has prepared, it is noted -- the following is noted: A recent study completed by the Administrative Office of the U.S. Courts shows that there has been an upward trend of employment discrimination cases filed since the passage of the Civil Rights Act of 1991, leveling off in 1996.
It did precisely what we wanted it to do. It gave a means for a plaintiff to prevail in court, to acquire the kinds of damages and other relief that they needed, and to have lawyers who were willing to advocate for them, because they saw the ability to be successful.
And what is this? A one minute, two minute? Three minute? Okay.
And, um, it also had the impact of making -- obviously the mixed motives. It improved, you know, on the Hopkins case. Ah, we, as we have discussed, and the Costa decision obviously did better.
Jury trials, however, are a problem. There are many gaps still in enforcement, and in the jury trial area I want to point out that this is one area where we are having a lot of problems. Here is one stat that I want you to consider: That in 18.17 percent of the employment discrimination cases tried before a judge, a plaintiff will succeed; however, in jury trials, a plaintiff succeeds in 39.9 percent of the cases.
What is also interesting is on appeal, that in employment cases on appeal, defendants will prevail at the rate of -- oh, I'm sorry, there is only a reversal rate of 5.8 percent of those judgments for defendants, whereas for plaintiffs, the reversal rate where there has been a favorable judgment for plaintiffs is 43.61 percent.
It is a shocking reminder of how conservative our courts are, and what -- how problematic it still is to enforce this law.
Lastly, in wrapping up, racial discrimination continues to be an issue as to Section 1981, and proper interpretations of public accommodations.
We still have serious disputes in the courts around class action litigation, and as the Ocheltree decision made clear, we have huge problems with damages, with how the cap on damages is still being interpreted as to when damages -- punitive damages will be available. The law is still evolving. The fight is certainly not over. Discrimination is unfortunately still pervasive and prevalent in our society, and it means that those of us who care about the rights of people to come forth and to be vindicated in court when they have been unlawfully denied their rights to equal justice, that that fight is far from over, and that we have a lot of work to do. Thank you so much.
(Applause.)
SAMUEL MARCOSSON: Barbara just made her case for what they accomplished, and maybe for what is left to be done. Let's see if our remaining two panelists agree on what they accomplished. Joe Sellers.
JOSEPH SELLERS: Thanks, Sam. I also want to thank the EEOC for convening this conference. And I'd like to thank those who are here who helped so greatly to get the enactment of the Civil Rights Law of 1991 achieved.
Um, from my vantage point, the promise of some of the provisions of the Civil Rights Act of 1991 have turned out to be considerably harder to fulfill than I think we expected, um, and likewise some of the fears that fueled the opposition to the Civil Rights Act of 1991, or its predecessors, turned out to be not nearly as substantial as they might have been.
Um, I could review with you each of the legal areas, all eight decisions in the other areas, and go on for the rest of the day, um, but I'd like to focus on three areas that I think are really very significant areas in which the statute has changed the law, and really has had an impact in -- in the enforcement scheme.
The first has to do with the permission to -- permitting the award of compensatory and punitive damages at trials before juries on litigation of individual equal employment claims and class actions.
The second I want to talk about is the frequency and application of these disparate impact claims, and the third is the -- what I will call the individual disparate treatment claim paradigm, the -- beginning with McDonnell Douglas against Green, the Hopkins case, thank you, and most recently the Desert Palace against Costa decision, and I'm going to try to leave you dangling as I turn it over to Judge Bennett, who I think has some very insightful comments about that.
Of course the Civil Rights Act of '91 permitted for the first time the award of both compensatory and punitive damages, but subject to caps, and where either the plaintiff -- where the plaintiff demanded compensatory and punitive damages, um, the plaintiff also could demand a jury trial. And if the plaintiff declined to do that, the employer could demand a jury trial where there was a demand for damages.
In the past, of course, we had no right to damages for claims tried under Title VII. The monetary relief was solely limited to backpay, frontpay, and other kinds of job benefits lost because of discrimination, and there was no right to a jury trial, because those kinds of remedies were viewed as equitable, not legal relief.
So what has happened as a result of the provision for damages and the right to try cases before juries?
In the past, the equal employment litigation focused mostly on the validity and the lawfulness of the employers' practices, and whether the challenged conduct was undertaken because of some impermissible motive. The remedies were very -- were really an afterthought. They tended to be very easily computed, often with a calculator, um, and although occasionally experts were needed, often they were not, and where they were even the slightest bit complex, because the court, not a jury, decided the matter, the judge could hand it off to a special master to deal with the dirty work.
The computation of lost wages was easy and predictable, and as a result, neither side bore an enormous risk, or at least the risks were easily measured when going to trial. And judges, of course, rendered the decisions, and because of that, the parties will often do -- had a feel for the judge, and one side or the other felt perhaps they had a -- would get a more receptive hearing before the judge, and be more inclined to try the case than the other. Certainly the cases change with juries who were not known to either parties beforehand.
Um, and significantly, conduct, which the plaintiff may have engaged in that was unrelated to his or her work performance, non-work-related conduct, and a plaintiff's personal life was totally irrelevant to the adjudication of Title VII claims before the advent of damage remedies.
What has happened since damage awards have been available? Well, first the issue of causation has become a huge question. That is, the question of whether the proven discrimination caused the harm that the plaintiff is claiming occurred. And this may sound familiar to those of you who practice in the tort area, because this is of course what tort lawyers have been doing for decades, but for the civil rights practitioners, um, this is a relatively new area of practice for us, um, and as I'll talk about a little later, we could learn a lot from our brethren who practice in the tort area.
Um, parties call experts to diagnose emotional symptoms and opine on their source. Plaintiffs' private lives, and especially some of the most intimate and emotionally sensitive incidents that an employer may later claim at trial were the real cause of the -- of the observed emotional symptoms are elicited during discovery, and sometimes the subject of debate before a jury in a public courtroom.
Indeed, um, the admissibility and discovery of these personal dimensions of plaintiffs' lives became so traumatic, that it gave rise to an amendment to the Federal Rules of Evidence to insure there was advance notice given to the plaintiffs, and an opportunity to object so they wouldn't be blindsided by these issues being raised at trial.
But I could tell you the plaintiffs' lawyers now routinely ask their clients about intimate details of their personal lives before filing complaints with damages demanded.
Some plaintiffs, including some of my former clients, current clients, abandon their claims altogether, or forego compensatory damages when they realize the consequences that may occur because they may have to reveal aspects of their private lives they would prefer not to.
A second feature of this, the advent of damage awards, is that, um, compensatory damage claims are expensive to -- in which to conduct discovery, for both sides, um, particularly if there is a need for mental health experts and testing; and also if there is a need to subpoena medical records of plaintiffs. Ah, this is all additional expense that has never been incurred before. And I don't know, at least from my perspective, had not been fully foreseen when we were working on the Civil Rights Act.
The adjudication of these claims can be more complex than -- certainly than the backpay and frontpay determinations, and can substantially lengthen trials, or even turn into second satellite -- pieces of satellite litigation that occur after the liability determination is made.
Um, the costs of discovery and trial, of course, are substantial, and with the caps on damages for claims brought under Title VII, it is not clear for some plaintiffs whether the potential recovery of damages is sufficient -- is a sufficient incentive for them to pursue compensatory damage claims, whether that really outweighs the burden of the expense, the burden of the trial, and the potential invasiveness of the -- of the discovery and trial proceedings.
Um, let me turn for a moment to the issue of the pursuit of damage claims in a jury trial in class actions, an area we haven't talked much about, but we should harken back for a moment that the -- When Rule 23(b)(2) was -- the Rules of Civil Procedure was enacted, the drafters of the rule cited civil rights cases as the quintessential form of class action that would be susceptible to certification under Rule 23(b)(2), I think when the Congress was debating the Civil Rights Act of 1991, it clearly had in mind class actions would be a significant vehicle for the enforcement of civil rights laws.
Notwithstanding that, we have run into what I view as unexpected difficulties, particularly in the courts of appeals, about the compatibility of class action treatment, and the pursuit of damage claims, particularly compensatory damage claims, which courts, beginning with the Fifth Circuit, have regarded as fundamentally incompatible with the pursuit of class actions.
Punitive damages have faired a little bit better, but as a result of the difficulties in the dim view that many courts have taken to the pursuit of compensatory damage claims in class actions, um, those claims are now typically abandoned by plaintiffs who seek to bring class actions, not entirely, but it is the rare class action that even demands compensatory damages these days, an even rarer one where the court actually permits it to go forward. And jury trials likewise have the right to present a claim to a jury if the plaintiffs seek either compensatory or punitive damages. Likewise has been cited by courts as a basis to deny class certification out of what I view as the mistaken perspective that the Seventh Amendment right not to have your claims tried twice may be violated, because a jury that determines liability may -- a second jury may be called upon, then, to re-examine liability in determining damages. Um, and while I don't think that is the correct view, it has persuaded some courts to deny class certification.
So this has vexed the class action practice considerably, and ironically has left practitioners and plaintiffs who pursue these cases, the class action cases, largely embracing the olden days fondly, when class actions were readily certified, and the remedies were limited to backpay and frontpay, um, and those days are, I think, still hard to return to today, even where cases are brought only seeking backpay and frontpay.
So, um, my observations about the provision for damages, while it is certainly a welcome development, because it provides a much needed parity for the victims of other kinds of discrimination than racial discrimination, um, I think that a provision for damages, and the right to bring cases to juries has been a mixed blessing. It is certainly not a promise that has been universally well-received, um, by the courts, um, and it is certainly a promise that many plaintiffs have yet to enjoy.
Discovery is substantially more protracted and expensive, as well as personally intrusive for the plaintiffs, trials are longer, plaintiffs risk public embarrassment when their private lives are debated. And class litigation largely avoids the pursuit of compensatory damages altogether, and ventures occasionally to seek punitive damages on behalf of a class, which has gained somewhat better response by the courts.
Um, and I also observe, although I think Judge Bennett, who undoubtedly has a better perspective than I on this, has seen many cases tried in his courtroom, but in my experience, the awards of damages are likewise not terribly large. The numbers of cases where courts have to reduce damage awards because they would otherwise exceed the caps set by the statute, I found, are not frequent, um, and the fears that I think fueled some of the opposition to the Civil Rights Act of 1991 that corporate America would be crippled because there would be these enormous damage awards made on a daily basis by juries around the country that would impose unexpected and unforeseeable expenses that they couldn't tolerate, I think have largely been unfounded.
Let me turn for a moment to disparate impact, and the -- I am, in the interest of time, not going to summarize Wards Cove or the amendments to the Civil Rights Act of 1991 in this area. I'm happy to discuss them, but that would take minutes by itself. Other than to comment that the fact that it would take me that long to explain it, is part of the difficulty, and with all due respect to those who worked very, very hard to get these provisions enacted, um, let me read one -- one sentence, and this is the simpler of the sentences explaining one part of the burden of the party. This is the employers' burden if the plaintiff -- if the plaintiffs meet their burden, and I won't go into what their burden is, it is too complicated. But the language, which is clearly compromise language, was adopted from the ADA, but it will appear even for the ADA to be compromise language, is that the employer has to show that the challenged practice is job related to the position in question, and consistent with business necessity.
Now I have to tell you I didn't know what that meant, and I still argue vigorously to judges that I do. And I try very hard to parse it, and explain what the different pieces mean, and we are starting to get slowly judicial guidance in this, but this is by no means a simple formulation, and it is the simplest of the disparate impact formulations. And I say that again not because I don't appreciate what was done, but because I think that the complexity of this area is in part what gave rise to the -- what appeared to be two different strains of decisions enacted -- issued by the Supreme Court leading up to the Wards Cove decision, and each side that favored its strain of decisions sought to have that side's -- its group of decisions enshrined by the Act. Because there was no agreement on what that was, we simply agreed that we would restore the case law to what it was before Wards Cove, whatever that was, and indeed there is no legislative history. Parties had to agree on what the legislative history was in one interpretive memo, because they couldn't agree on what the law had been previously. So this is an area that had been the subject of controversy for a long time, even before Wards Cove was decided, and certainly after the Civil Rights Act of 1991 attempted to fix it.
Um, let me observe, however, that there is little disparate impact litigation anymore. The disparate impact provision is not invoked very often. Perhaps, in part, because it is complex, um, courts don't understand it. It is, by the way for those of you who are not aware, it is triable to a court, fortunately not to a jury, unlike damage claims, so there is no question that a jury has to try to wade through these provisions in jury instructions.
Um, before the enactment of the Civil Rights Act of '91, plaintiffs often pled systemic disparate treatment, and disparate impact claims together. Disparate impact claims were viewed generally in my world to be the easier claims to prove than systemic disparate treatment. It is one of the reasons we were so troubled by the Wards Cove decision, because it appeared to remove the principal vehicle for enforcing the civil rights laws that seemed to have worked so well in the past.
But there are risks associated with making -- pleading systemic disparate treatment and disparate impact claims together today. Why? Well, the systemic disparate treatment claims are tried to a jury. Disparate impact claims are tried to a judge. That may look appealing, because you get to try your case to both fact finders, and hope you can do well with one of them, but we should not lose sight of the fact that the Beacon Theatres decision and the Lytle decisions of the Supreme Court make clear that the systemic disparate treatment claims, the claims tried to a jury, have to be tried first before the court considers its claims that -- disparate impact claims, and the jury's verdict, and any facts needed that the jury must have decided leading up to the verdict are binding on the court. So the court doesn't get a blank slate on which to decide the disparate impact claim, and if the case that the plaintiffs bring is one that may be hard for a jury to understand, it may involve very sophisticated statistical evidence, or appear to be particularly dry, and not terribly exciting to go to a jury, a trial to a jury of the same claim that the plaintiffs hope to try to a court, may ultimately leave the plaintiffs with no alternative -- effective alternative trial to the court, because most of the issues would have been decided by the jury's verdict, so this is hardly a risk-free choice, as it was when the cases were tried to the courts before. The only area where I see an increase in the use of disparate impact claims is in challenging employment tests, which I think are on the rise amongst employers around the country, pencil and paper tests, situational exercises, and interestingly personality tests are the rave, um, and whether they have a disparate impact is a constant question that people come to me about, and so I think there is going to be a continued market for disparate impact claims in the employment testing area, if nothing else.
Um, and for that reason, I am hoping that we will start to see some development in the jurisprudence here, because I think it is an important area that has lagged behind the disparate impact area. Finally -- disparate treatment area.
Let me turn, finally, to disparate treatment claims. I'll speak briefly about this. We obviously started with the McDonnell Douglas paradigm that seemed to be very straightforward. We lived with that for quite awhile. The proof was either was there a discriminatory motive, or was it pretextual? Then we realized that it could be proved by other means than pretext, and from the St. Mary's Honors Center against Hicks case, that pretext is not necessarily proof of discrimination, so we had to embellish on the proof there, and the jury instructions got a little more complicated.
Um, then we have the Price Waterhouse/Hopkins case, um, where the question of mixed motives became applicable to Title VII, and we started to develop three, not two, paradigms for proving discrimination. We had disparate impact, disparate treatment, and mixed motive, which was a -- sort of a hybrid that we -- that we had to deal with.
The Civil Rights Act, um, Section 107, again, I won't go into the details, but I think it substantially addressed the major concerns that the losing side of the Hopkins case left us with, although I'm pleased that you prevailed.
Um, but it left open a significant question from Justice O'Connor's concurring opinion as to what kind of evidence was needed to invoke a mixed motive case, and whether it required direct evidence, whatever that was. What we learned in the course of the successive decisions of the courts, was that direct evidence was pretty strong stuff, and it was rarely found. It tended to be evidence that, on its face, suggested an intent to discriminate. And in these days, it is the rare employer, and the really rare indiscreet manager who reveals an intention to discriminate, so those kinds of motives, that kind of evidence was hard to find, and the mixed motive, um, model was -- often eluded plaintiffs who sought to invoke it.
Um, and then came the Desert Palace against Costa decision last year from the Supreme Court, where the Court said: In light of the enactment of the Civil Rights Act of 1991, whatever might have been required before in the nature of direct evidence isn't required any longer. That the same kind of evidence that could be used to prove discrimination under the old McDonnell Douglas case model, um, also could be used to prove discrimination under mixed motive and the mixed motive model, leading to the question which I know Judge Bennett is going to address, which is what is left, and where does this all leave us?
I won't go into that, other than to say that I want to talk briefly about a few questions, issues of where we go from here.
Um, as employment lawyers, we are still getting our sea legs in the way we handle the discovery and proof of damage claims. We have a lot to learn from the lawyers who have been practicing tort law for decades, and I for one find I still learn a great deal from them. We should be free to borrow from the jurisprudence in that area, because it informs a lot of the factors that go into how to prove these damage claims, how to rebut the proof of damage claims, um, and how to manage the trials of those kinds of claims.
The additional costs and exposure to intrusive discovery when damage claims are brought is a huge problem, and it creates the need for some form of what I would call "damage light claims." Not full damage claims, but something slightly less than damage claims in the respect that they may not require the same level of proof, they may not result in the same substantial awards of damages, but still give effect to the damage rights that Congress created, and not impose some of the same costs and intrusive burdens that these claims seem to have, or permit or to require.
Um, I raised the question of whether, and while some state laws already permit this kind of trade-off, others don't. I raised the question whether federal courts can treat damage claims as the subject of federal law, and formulate new paradigms like the Supreme Court did in McDonnell Douglas to render these remedies more accessible to more victims of discrimination. The same need exists when plaintiffs join together to pursue class actions. It is a tragedy that class plaintiffs don't pursue, and courts are unreceptive to a fundamental right that Congress created, the right to pursue compensatory damages.
It is basically a right that is not sought in class actions today, and I again raised the question whether there are new strategies needed for the manageable adjudication of compensatory damages.
Some courts have already established precedents. The Ninth Circuit has the State v. Imelda Marcos case that had some very creative ways of dealing with the management of large numbers of compensatory damage claims in a constitutional tort case, not a Title VII case. Other courts dealt with this in other ways, but I think I would call upon the courts, I understand they may not be listening right now, but to, with Judge Bennett perhaps is an exception, I hope. But to -- to consider various ways to permit the pursuit of compensatory damages in class actions, rather than to write it out of a law, as I think some courts have been inclined to do.
With respect to disparate impact, um, I think it is -- Part of the problem here is that these cases involve heavy use of experts, they are enormously expensive, they tend to turn on very complex statistical models. In testing cases, for instance, employment testing cases, experts involving the validity of tests, who are also expensive, um, and so there are huge costs associated with these cases that I think help explain why they are the province of only a handful of lawyers and the government who bring these cases, because few others can afford to do so. And I -- And because these claims are tried to courts, and do not permit recovery of damages, other than only -- The remedies are limited to backpay and frontpay, it is not clear that the monetary relief that is available can justify the kind of substantial risk and cost associated with bringing these cases.
Um, I think there need to be shortcuts explored for the pursuit of these cases, ways that simplify their trial, the management, and whether there are proxies for the extensive use of experts that both sides typically use, because they feel each needs to prove their case to the Nth degree, and one starts it, the other continues it. And pretty soon we have what we have done is create a cottage industry for experts.
Finally, I'd say it is extraordinary, when you think about it, that 40 years after the enactment of Title VII, and more than 30 years after McDonnell Douglas was decided, where the principal paradigm for proving individual disparate treatment cases was established, um, that we are at the -- at the -- We are fundamentally questioning whether the McDonnell Douglas paradigm still works, in light of the Costa decision, and whether or not we have a whole new way of looking at what I would call the garden variety discrimination cases that tend to occupy most lawyers and most courts today. And yet I think it is part of what is so thrilling about this area of law, is that dynamic, sometimes a little scary for that reason as well for employer and employee alike.
But I think what I look forward to is joining you for the 50th anniversary of the enactment of the Civil Rights Act of 1964, when I think we'll have a lot more to talk about. Thank you.
SAMUEL MARCOSSON: Leaving us with the question, Judge Bennett, is McDonnell Douglas still around?
JUDGE BENNETT: I think so, but before I get to that, I wanted to say I feel a little bit like Mo Udall did at the 1988 National Convention when he said, "Everything has been said, but not everybody had a chance to say it yet," so let me put in my two cents worth.
And before I turn to Desert Palace, I just wanted to take the time to follow up on the theme that Ann Hopkins said, that it is all about the people. This is now my third trip inside the Beltway this month from Sioux City, Iowa, and while you can make a case that the epicenter of civil rights initiatives is in fact Washington, D.C., there is a lot that goes on in the rest of the country. I am going to digress for a moment because on the 50th anniversary, May 17th of the Brown case, and the 40th anniversary this Friday of President Johnson signing on July 2nd, 1964, the Civil Rights Act, Iowa has a great history. 166 years ago, on June 12th, 1838, not far from this piece of land, Congress created the territorial government of Iowa, carving it off from the Wisconsin territories, and in that legislation, Congress created the Iowa Supreme Court. And in that same year, 1838, President Martin Van Buren interestingly enough, appointed the first chief justice of the Iowa Supreme Court, and two associate justices. The very first case they decided the next year, 1839, was a case called "In Re: Ralph, a Negro Slave." The issue in In Re: Ralph was the identical issue that the United States Supreme Court would face 18 years later in the Dred Scott decision. The Iowa Supreme Court got it right. The U.S. Supreme Court did not.
Jumping ahead to 1868, a 12-year old African American girl, Susan Clark, in a small town in Southeast Iowa, Muscatine, Iowa wanted to go to her local public elementary school, she filed suit. It went to the Iowa Supreme Court, eighty-six years before the United States Supreme Court decided the Brown case, the Iowa Supreme Court decided that separate but equal was inherently unequal, and admitted Susan Clark to the public school.
Her older brother, Alexander Clark, became the first African American graduate of the University of Iowa College of Law, and her father, also named Alexander Clark, Sr., became the second graduate of the University of Iowa College of law.
In 1869, the Iowa Supreme Court ruled that women could not be denied the right to practice law, and Arabella Mansfield became the first woman in the United States to be admitted to practice law.
Let's jump ahead now 119 years to the Costa decision. In the interest of time, I'm not going to run through the Costa decision, but I want to talk about some big themes. It seems to me the big themes after Costa are whether McDonnell Douglas, on its 30th birthday last year, has in fact died at the hands of Desert Palace, and who is celebrating a birth, who is celebrating a death, and why I think they're both probably wrong, so let me turn to that.
The unanimous holding in, um, Desert Palace is really quite narrow, and I'll just go through it very quickly. "In order to obtain an instruction under Section 2000e-(m)," which was the '91 act, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that 'race, color, sex, national origin, religion were a motivating factor for any employment practice.'" Direct evidence is not required in the mixed motive case.
Now, what has been the responses of the lower courts? Costa was decided on June 9th of 2003. Four days later, on June 13th, the first reported decision was by a colleague and a good friend of mine, Senior Judge Paul Magnuson in the District of Minnesota, in a case called Dare versus Wal-Mart. And Judge Magnuson, in Dare, basically said that McDonnell Douglas is in fact absolutely dead. All the plaintiff has to do is make out a prima facie case. Summary judgment is defeated, and then there were articles written, particularly in the state bar magazines in Minnesota about the death of summary judgment in employment cases, um -- But it seems to me, if you look at the -- what the lower courts have done since Costa, here has been the reaction. Some courts say Desert Palace applies to single motive cases, as well as mixed motive cases. Some courts say Desert Palace spells the demise of McDonnell Douglas burden shifting paradigm a'la the Dare case. Some courts have said both. Others say Desert Palace only applies to mixed motive cases. Others say Desert Palace requires modification of McDonnell Douglas, but only in the summary judgment context, and only at the third stage.
I filed an opinion I believe in October of 2003 called Dunbar. It has probably been the most widely cited district court opinion. When I checked yesterday on Westlaw, there were 14 District Court and court of appeals decisions that had cited it. About 12 of them have followed it, or at least embraced it in some way. Um, two of them said I was crazy, or -- Their circuit hasn't ruled on it yet. Here is what I basically said in Dunbar. I said: You know, Desert Palace never mentions McDonnell Douglas, all due respect to Paul Magnuson, it would be odd if the Supreme Court intended to eliminate McDonnell Douglas without saying so. That just strikes me as a little bit odd. I think Desert Palace is fully consistent with McDonnell Douglas, except when you get to the third stage. And so -- All I simply said is McDonnell Douglas survives, except at the third stage the plaintiff has two alternatives. They can use the traditional pretext mode at summary judgment, or they can use the mixed motive alternative at summary judgment. The burden still remains on the plaintiff, and not a whole lot has changed. And I think some form of my Dunbar paradigm will ultimately prevail, but that is just a guess.
What I think is more significant, though, and what there has been very little written about, is how Costa affects the actual trial of Title VII cases. And like most Supreme Court decisions, while it answered a very narrow question, it raised a host of other questions that courts are just beginning to grapple with now.
Let me give you an example. I tried a Title VII case two weeks after my Dunbar decision, a very contentious case. The lawyers couldn't agree on anything. The only thing they could agree on was neither one wanted it submitted as a mixed motive case, notwithstanding my view in Dunbar, which I now think is wrong, that every Title VII case is a mixed motive case. I would change that to mean every Title VII case has the potential to be a mixed motive case, if a jury were to believe, in part, the legitimate non-discriminatory reason. So -- And part of the problem was, um, in Ann Hopkins' case, Justice O'Connor's concurring opinion that created this kind of crazy paradigm of direct evidence versus circumstantial evidence. We are the sixth busiest trial court in the nation, the Northern District of Iowa in criminal cases, and we've actually led the nation two of the last three years in the numbers of trials per judge. I tried 51 cases last year. The national average was 12. In the year that we didn't lead the nation, we were second. And I always chuckle when I read the jury instruction in a criminal case about the law makes no difference between direct and circumstantial evidence, which have been given for years and years, the only exception being Justice O'Connor's concurring opinion, which now fortunately Costa took care of that.
So, you know, is McDonnell Douglas dead? Let me tell you what a law review article said, the first law review article was entitled, after Costa, "An Essay on the Quiet Demise of McDonnell Douglas and the Transformation of Every Title VII Case after Desert Palace into a 'Mixed Motives' case." And here is what the author said, it was published in the "Drake Law Review." The author was a law professor, Jeffrey Van Detta and he said, "McDonnell Douglas versus Green is dead." That is the opening sentence of the law review article: "With apologies to Dickens, it is dead as a doornail, along with its traveling companion, Texas Department of Community Affairs versus Burdine. And this report of death is neither greatly exaggerated, nor a loss deserving of our mourning."
The next article that came out was in the University of Pennsylvania, and it was entitled "McDonnell Douglas, 1973-2003: May You Rest in Peace?" You can figure out what that meant. Then there are a number of other law review articles saying summary judgment is kind of gone now.
My most -- The most interesting law review article, though, was actually is this Van Detta one, because he actually talks about my Dunbar opinion, but I don't make it into the law review article until footnote 332. And then this is just great, here is what he says. "Several federal courts have applied -- who have applied Costa have not fully grasped or discussed its ultimate implication." Well, that would be nice if I was included in that group, but I'm not. I get a separate part of the footnote, and he says "Other courts have continued to desperately salvage something of McDonnell Douglas, adding complexity where Costa intends simplicity." And then here is what he says -- remember, this follows his phrase "adding complexity where Costa intends simplicity, much like Ptolemic astronomers, who increased the complexity of their astromechanics with more and more epicycles to preserve their geocentric view in the face of Copernicus's triumph in the heliocentric revelation. See, e.g., Dunbar." Okay, now who is mourning the death of McDonnell Douglas, and who is celebrating a new birth of lower standards for summary judgment?
If you look at the law review articles, um, Costa/Desert Palace is the greatest thing for plaintiffs probably since the passage of Title VII, and the defense lawyers are mourning the death. I think it is exactly opposite. I think it will ultimately be exactly opposite. I think Desert Palace is a legal trojan horse for plaintiffs, and here is why.
When you get to trial, if you go on a mixed motive theory, it allows the jury to kind of split the baby, giving the plaintiff a paper victory, but really giving the plaintiff absolutely nothing in the case except the tax bill for the plaintiff's attorney's fees. That is what the plaintiff would receive, a paper victory in a mixed motive case, a judgment saying there was discrimination, no money, and I think you would owe taxes on the plaintiff's civil rights fees.
Now this, I believe, will drive a huge wedge between plaintiffs and their client. Normally -- I was a Title VII lawyer for a lot of years before I became a federal judge. Normally -- Back then we didn't have them in jury trials, but we had them under our state law. Normally you wouldn't get your client heavily involved in the jury instructions in a case, and most lawyers don't. After Costa, that is going to change dramatically. The issue of whether to proceed on a mixed motive theory is probably the most important decision a plaintiff and plaintiff's lawyer will have to make in the case, and they could very well be at odds. The plaintiff's lawyer seeing the case not going very well, hoping to submit a mixed motive theory and get attorney's fees, where the plaintiff gets nothing. There is going to have to be some really heavy duty discussions with the plaintiff about the significance of going down a mixed motive theory, and the same on the defense side, if you are defending, because a lot of companies, while they would like to minimize their damages by seeking a mixed motive instruction, are not real thrilled with having a judgment entered against them, which theoretically could be used as defensive collateral estoppel in some other cases. So there are some very heavy duty implications for mixed motives.
Now I think that some of the major questions are is 2000e-(m) an actual claim that the plaintiff controls, and when you get to trial, see all the emphasis in the law review articles are on summary judgment. I don't think that is going to change much. The real change is going to be at trial.
Who controls whether a mixed motive theory gets submitted? Is it a claim that belongs to the plaintiff, and therefore the plaintiff can control it? Can the plaintiff pursue both a pretext theory and a mixed motive theory simultaneously in the jury instructions?
What if the plaintiff elects not to pursue a mixed motive theory, but the defense says, "Well, every case is really a potential mixed motive case, because if the jury believes in part our legitimate non-discriminatory reason, but also believes that race, or sex, or whatever was a motivating factor, then that becomes a mixed motive case in the context of jury deliberations, therefore we want our affirmative defense, whether the plaintiff wants to proceed under a mixed motive theory or not." That is a real tough nut.
It is easy if both sides don't want it, which is the case I had. They said we didn't want it. I had said, well, I just decided Dunbar. I said every case was a mixed motive case. I have to instruct on it. And they said neither one of us want it. And I kind of thought about it, and I said, you know what, it is your case, I think Dunbar is right, but we won't submit it. We made a great record. But neither side wanted it. I think that is going to happen fairly often. Then you are going to get into those situations where the plaintiff wants it and the defense doesn't. But I think more frequently you'll be in a situation where the plaintiff does not want it and the defense does, then should a judge instruct on it. And I think that is perhaps the most difficult question of all.
There are other questions. Does it apply to other civil rights laws not affected by the '91 Act, like the ADEA. Just last week the Fifth Circuit Rachid versus Jack-in-the-Box followed my Dunbar analysis and extended it to the ADEA. So it may, it may not. I think there is an equal compelling reason that it may not apply.
Turning to this attorney's fees question, I don't think most plaintiffs lawyers or plaintiffs fully understand that the attorney's fees provision under a mixed motive theory is not the general Title VII 2000e-(k) -- I may have that wrong, I think it is e-(k), attorney's fees to the prevailing party. There is a separate attorney's fees provision in the limited affirmative defense that was given to the defense, and that provision has been interpreted by a number of courts, the leading court is the Fourth Circuit, I think 1996 in the Sheppard decision where they came up with a number of factors, the bottom line is that the attorney fee awards where the plaintiff wins, but the defense prevails on the limited affirmative defense have been much, much, much smaller because of the application of these Sheppard factors.
Courts have much more discretion to crush those attorney's fees, and give fees based only on the limited recovery of this paper victory. So not only will plaintiffs have a paper victory, but the plaintiff's lawyers will not have the fees that they think they would normally get under the traditional Title VII standard, so where does that leave us?
SAMUEL MARCOSSON: Well, what is amazing to me, and maybe because I was in a shell that other people who were not trapped by at the time in 1991, it would have never occurred to me, not in my wildest dreams, that we would be asking the question as a result of the 1991 Act, whether McDonnell Douglas survived, speaking of unintended consequences.
I don't know. I'm going to take a cue from our organizers here whether we have time to at least have a handful of questions from the audience?
CAROLYN WHEELER: Well, why don't you --
(Discussion off the record.)
SAMUEL MARCOSSON: All right, picking up on that, if you need to leave, please feel free. Obviously you are not bound to stay, but if there are questions, we would love to have you have the opportunity to express those, and our panel to address them, so if you'd come up to the microphones and ask -- identify yourself, if you will, and ask your question, whether directed to a particular panelist, or to the panel in general, we'd like to try to at least get some of those in.
SAMUEL MARCOSSON: Anyone at all?
QUESTION: I wanted to ask a question of Miss Hopkins. You had talked about the people aspect, and that was really what kind of -- kind of drove you through this whole process, or what was most important, and I am just interested in finding out from you what it felt like, what it was like to return to work, um, after your -- your company was basically ordered to take you back as a partner, how it felt for you, how -- what kind of interactions were going on with the other partners? And then you'd mentioned that you were sent out to Bethesda with nothing to do, so you wrote a book. So did you feel that was retaliatory in any way?
ANN HOPKINS: Okay, I'm -- Let me write this down, so -- so I'd like to -- I'll answer that question, but in the meanwhile, I would like to suggest that two questions, that if the audience doesn't ask, I'd like to suggest two questions. Having never had a mixed motive case until I was one, I had found that very few people understand what one is, so it might be useful for those people here who don't know what one is to explain it. And then secondly, in terms of the demise of the McDonnell model, my -- I -- I use the term loosely, my attorney Doug Huron, wrote an amicus brief on Costa, and he offered some views that I thought were kind of compelling, but I'm not an attorney, on the subject of what the court really should have decided, which was not the narrow evidentiary type of evidence matter, but what really is a mixed model -- a mixed motive case, because in my case the reason it was a mixed motive case was because all the other models didn't fit very well, so we had to create a new one. It doesn't mean all the old ones don't fit anymore. I'm sorry, that is a personal thing on my part.
What was it like going back to Price Waterhouse? Well, first off you have to understand that I was immediately sent to Tampa, Florida, the place for the newlyweds and the nearly deads, for a six-week training program on technology. I was supposed to have gotten obsolete over these years -- for a six-week technology training course that had been specifically tailored to me and reduced to, I don't know, a week or ten days. One of the first things that happened when I got down there was I got a phone call from "What's My Line," asking if I would appear on the show. Fortunately it was conveyed to me as a message, and I suggested that they perhaps just get rid of it, whatever it was they did to do that.
The second thing that happened was there was a fella named Mike Boberschmidt, who was in the partner class of 1983, the class that I didn't make it for the first time. He came down to be the trainer. He was a partner, he came to be the trainer on this subject. We went out to dinner one night. I'd always liked Mike. He'd always liked me. We went out to dinner one night, and he explained to me that when he had heard about the Gesell's findings in the original opinion in 1985, when he heard about Gesell's findings, he asked -- He said to himself: I'm not sure which is worse, being found guilty of discrimination, or being found unconscious, because one of the statements that Gesell made was that this may not have been a conscious act of any particular individual, but the result of a tainted process.
Um, Boberschmidt concluded that he was either discriminatory or unconscious, and he wasn't sure which is worse. That is my way of getting into a statement called the people I didn't like or get along with either personally or professionally in 1983, I didn't get along with in 1991, and by and large I don't get along with them today.
The people I did get along with follow a similar course. So there were both -- There were both people who, you know, were enthusiastic on both ends of the spectrum. The difference was that the ones who were enthusiastic on one end said so, and the other was just all stay quiet, and hoped I'd disappear.
Um, second thing is that it takes more than a title to become a partner. The way a partnership gets things done, and those of you who are attorneys, or know anything about law firms, the way a partnership gets things done is because somebody knows somebody who knows something, who knows something, who knows somewhere else, who goes somewhere else to get something else; and you sort of bring together, you know, a team of people. You know, he can do that, she can do that, and they can do this, you bring together a team of people. Now when you've got a seven or eight-year disconnect in your career, and all of a sudden somebody says, "Okay, you're a partner, now go out, and get some clients and get some staff together, and do some -- " well, where do you go? So, needless to say it was -- it was hard. I don't think very many people went out of their way to help me. However, I also made a decision, because when I went -- I made an error, because when I went back to the firm, I decided that since I had come out of government, I'd go back to the private sector, so that some of the turkeys that I really couldn't stand wouldn't be around, because they were in government, and I'd be somewhere else. Well, the difference is, is that I'm not a private sector consultant, so I was playing to my weak strength, to my weakness. And when I figured this out, you know, I trounced right on up the chain of command and said, "Okay, guys, I made a mistake, I'm being managed as a liability, not as an asset, and I want to go back to government."
Now when I went back to government, it was a whole heck of a lot easier for me to succeed, because I did know people, and I did know a whole lot about how to deal with the government procurement practice, and I had a lot of friends and references in the government arena, so it was much easier to be -- to be successful.
Furthermore, I had -- whereas there were a couple of these turkeys that I couldn't stand in government -- in the government practice, ah, some of them had, you know, retired or been transferred to Cleveland. I -- No, I'm sorry, no, I really don't have anything against Cleveland, I just don't want to live there. Anyway, some of the turkeys had disappeared, and there was still a residue of people who remembered me back when, and we were on -- on good terms. So the first year or so was a -- a series of complicated interactions, one, my erroneous decision to go back to the private. Sector, two, the fact that partners are -- are developed, nurtured, managed, mentored, and grow into the job, not -- You don't just sort of get anointed and all of a sudden the world happens. I mean, you know, you have have to have some connect.
Three, likes and dislikes, and four, senior management was scared to death. I can remember one -- one, I think the number two person at Price Waterhouse, remember this was a national firm, it is not the same stuff that is going on out there today. The number two partner, when I went up to say that I wanted to go back to government, he said that, you know, it was really kind of funny, but people were sort of afraid to say, "Good day," to me for fear it might not be a good day, and I'd sue them again. And of course my position was, having come out of a seven or so year litigation was that, boy, I tell you what, suing somebody is the last thing I want to do. So you know, it was -- it was a period of adjustment.
Does that answer your question?
QUESTION: Yes, you did. Thank you.
SAMUEL MARCOSSON: I think I'll actually take a crack at Ann Hopkins' question on what is a mixed motive case, and my fellow panelists can correct what I'm about to say, as I'm sure it might deserve.
I think it emerges for me out of the McDonnell Douglas paradigm, which sort of suggests these two polar possibilities, either discrimination was the reason for the decision, or the employer's legitimate explanation that they offer is the reason for the decision, and it is a common sense proposition. Both of those may be true, because sometimes with multiple decisionmakers, or even with one decisionmaker with multiple motives for a decision that drive a decision, that it could be both potentially discrimination and some other legitimate reasons, or even perhaps illegitimate, but nondiscriminatory reasons, so what the mixed motive paradigm says is it is not these polar extremes that are the fact -- are the circumstances that really attend most employment decisions, but a lot of them are in fact more complicated than that, and less black and white, less extreme than that, and the paradigm, if it is shifting away from McDonnell Douglas towards mixed motives, to some extent, it is a function of a more -- of a more sophisticated recognition of the realities, and mixed motives may capture that reality more accurately.
ANN HOPKINS: Very well said. Very well done.
JUDGE BENNETT: Can I jump in on that, because I think it is a really important point. There has been massive confusion in the court cases about what mixed motive means. Now in Desert Palace, Justice Thomas defined it. He said, "In a mixed motive case, i.e., where both legitimate and illegitimate reasons motivated the decision," the problem is, unlike Justice O'Connor's concurrent opinion, you can't tell ahead of time whether it is a mixed motive case or not, because in every case, the trier of fact could find, he could completely reject the legitimate nondiscriminatory reason, or he could say it was part of the decisionmaking, along with alleged discrimination by the plaintiff, so you don't know if it is a mixed motive case until the trier of fact makes that finding. That is why I think every case has the potential to be a mixed motive case, and if you look at the facts of Costa, it was a garden variety sex discrimination case. The defense said she had a bad work record, and had various problems, and the plaintiff said it was based on sex. I mean that is what you see in your garden variety Title VII case, yet it became a mixed motive case. I think -- Joe, do you disagree? Every case has the potential to be a mixed motive case?
JOSEPH SELLERS: I think it does, and I think actually the cases that turn out to be mixed motive cases are the ones where the evidence against the employer is most incriminating, and where the employer at that point figures that it is, it is -- It is in its interest to try to be able to invoke mixed motive defense in order to at least limit its exposure, that it has a shot with a jury, perhaps not of heading off liability altogether, but at least of reducing its monetary exposure, and the alternative, which is simply either discrimination or not discrimination, might lead a jury to be inclined to find the entirety of everything is discriminatory and create greater exposure.
CAROLYN WHEELER: Desert Palace also illustrated the point you made that it was the defendant that objected to the mixed motive paradigm, and the mixed -- and the plaintiff, I'm sorry, yes, and the plaintiff that was seeking it, and, you know, that is just not what we normally expect, that the defendant didn't see any advantage to that affirmative defense.
I'm sorry to have to cut this off, I would, on behalf of all of you like to really thank our panel for an extraordinary discussion, and on behalf of the Commission thank all of you for attending, and also thanks to Georgetown Law Center for providing this space, to the American Bar Association and the D.C. Bar for supporting us financially, and in other ways with these programs, and hope that you've enjoyed our celebration of the Anniversary of Title VII.
I need to announce that there is a set of keys that was found, and it is being held at the desk upstairs, and also ask that you stay away, because we are going to take pictures of the panel who quickly need to go to lunch, so please don't rush up onto the stage right now, except for all committee members, please. Thank you.
(Whereupon, the proceedings concluded at 12:39 p.m.)
This page was last modified on September 14, 2004.