Return to Home PageGWENDOLYN REAMS: Okay, we're going to get started here.
Good morning, everyone.
My name is Gwendolyn Reams, here for the Committee, and I'd like to welcome you here to the first of a series of panel discussions in celebration of the 40th Anniversary of Title VII.
For these series of panels, um, we would like to review Title VII's impact on discrimination in the workplace by focusing on three phases: Adoption, expansion, and amendment.
The focus of the various panels is described in the program, and we hope you'll be able to attend all three.
Today's panel will discuss the passage of Title VII, and some of the most significant cases brought to the courtroom during the years.
You'll find that many of our panel members were involved one way or the other in many of these significant cases.
First, let me just mention a few housekeeping matters. There will be a 20-minute break, um, around 10:30, at which time you'll find coffee and refreshments up in the lobby by the registration desk.
There will be plenty of time for questions, which we want to have at the end of the day. To expedite this process, we have provided you with some cards so that you could take down questions during the discussion, and we'll have the ushers collect the cards before the break.
Um, we'll share these questions with the moderator, and hopefully we'll be able to get through the written questions, and we do still plan to have, um, oral questions at the end of the question and answer period, so if you prefer to wait and hold your question, you could ask it at that time.
We have the mikes in the aisles, and we'll also have ushers to bring you the mikes, if you find it difficult to get to them.
We ask that you please turn off all cell phones and pagers, or set them to vibrate, and also there are restrooms straight up across from the registration desk.
Now to the program. I'm happy to introduce Bill Robinson, who will moderate today's discussion. Ah, I will let Bill introduce the panelists. You'll find information about Bill and all the panelists in your program. I do want to point out that there is one change in the panel line-up because Robert Belton, Professor Belton from Vanderbilt, was taken ill and unable to make it.
Thankfully, David Cashdan has agreed to join the panel on actually very short notice, and we thank him for that.
You've received a copy, there is an insert in your program with a bio of David Cashdan, so without further adieu, I will turn it over to Bill.
WILLIAM ROBINSON: Thank you, Gwen. I just want to make a few brief opening remarks, and then I want to -- and then I will ask each of our panelists to make an opening presentation of no more than 15 minutes. After the opening presentations, um, then we want to try to mix it up a little bit between the panelists by giving them an opportunity to respond to things that they've heard, and after we mix things up with the panelists, then we'll open it up to the audience. Looking out at the audience, I see a number of people who've got a level of expertise and history with Title VII that suggests they would easily belong here at the front of the room as a member of the panel, so I anticipate that we are going to have a robust discussion this morning.
When Title VII was passed, many of us had extremely high hopes. We expected that this statute was literally going to transform America, and usher in a complete world of equal employment opportunity. And as we look at the achievements that have occurred under this title, there is a lot of reason to be awfully proud.
Title VII has indeed accomplished a sea change in the face of employment in America, and it's easy to take that for granted. It is easy to take for granted the fact that many, many thousands of individuals feel perfectly free to put their complaint in writing and submit it to the Equal Employment Opportunities Commission with an expectation that they are going to get some measure of justice.
Um -- But while we have all these good feelings, and some not so good feelings about Title VII, and what has been accomplished under it, at the beginning it didn't look so easy. Starting right off with the adoption of Title VII itself, as most of you I'm sure know, it was a question as to whether the historic 1964 Civil Rights Act was even going to include a provision concerning employment. Significant lobbying and pressure had to be applied to the Kennedy brothers before they agreed to incorporate a provision for Title VII into the statute.
Ironically just the preceding year, the first significant anti-discrimination in employment provision had been adopted to protect the rights of women, the Equal Pay Act. It is ironic, because that statute was carefully conceived, adopted by Congress after hearings, and Title VII the provision preventing sex discrimination was sort of slipped in at the end.
Um, the adoption of the Act was even more complicated. There was no committee -- There were no committee hearings in the Senate. The bill went directly to the floor, and that, of course, horribly complicates any attempt at reviewing and making use of the legislative history of the Act.
Um, turn your attention to the language of the statute itself.
The language of the statute itself has charitably been characterized a conundrum. If you look at the statute from the perspective of a charging party, in -- on July 2nd, 1965, you must feel sorry for that poor charging party. He was faced with tight deadlines for filing his charge. He was confronted with the -- the possibility that he must obtain a decision by the Equal Employment Opportunities Commission of cause, or perhaps wouldn't be allowed to go to court. The procedural requirements of the statute, in short, were problematic.
Furthermore, the Equal Employment Opportunities Commission, the agency entrusted with the responsibility -- the primary responsibility for enforcing the statute, didn't have any authority to bring suits, or cease and desist, or any other strictly speaking enforcement authority. Of course the statute was subsequently amended, and those amendments carry with them their own story.
So the government finally had authority to challenge invidious discrimination in employment, and that raised the question of how was the government going to use this authority. Who would be sued, raising what kinds of claims?
Once you decide who you are going to sue, then you have the substantial difficulty of coming up with a theory of discrimination.
What facts are sufficient to establish then a violation on behalf of an individual claiming that they were treated differently because of their race, sex, national origin, or religion?
Going beyond the individual, discrimination in employment was not just an individual matter in 1965, there were broad patterns of racial, gender, segregation, and hierarchy throughout many industries and throughout most regions of the country. One of the tasks, then, was to come up with viable theories that would allow that individual to seek relief, and that would allow relief against those broad patterns of discrimination.
Needless to say, lawyers and government agencies played a pivotal role, but perhaps the single most important role in the early enforcement efforts was the role of the courts themselves. Um, none of what we now take for granted would have been possible without the receptive, sympathetic, courageous, creative decisions rendered by the courts, particularly the courts of appeals.
I have just raised a lot of issues. We've got an all-star panel here this morning that includes the people who were directly involved in resolving all of those issues. Ah, you've got their background and bio in the program, and so I am not going to belabor you with repeating what you can read.
I do want to make great comments about each of these individuals. Mike Gottesman is going to lead us off. Mike was there, ah, for the lobbying to include Title VII. He was there representing major unions in the early enforcement efforts with the premier labor union law firm in the country, Bredhoff, as I knew it, Gottesman, and Kaiser.
Dave Rose led the Justice Department's Employment Law Section when the Department had to make those decisions. Who do you sue? What do you allege? What is your theory of discrimination?
David Cashdan was a senior lawyer -- He was a young man, but nonetheless a senior lawyer, at the Equal Employment Opportunities Commission during those early years when it had no court enforcement authority, and yet had the responsibility for making the Act work. He and his colleagues creatively joined hands with private lawyers filed amicus curiae briefs in literally hundreds of cases, and helped to form that statute.
Bill Brown was chairman of the EEOC at the time it acquired authority to go into court and bring suits. Bill led the effort to get the agency that authority, and thereafter mapped out the strategy that EEOC would follow in those early years effectively to enforce the statute.
Julius Chambers has worn many hats during the course of the development of Title VII.
In early 1965, he drafted the charge for a young man named Willie S. Griggs, and later, along with Bob Belton, tried Griggs against Duke Power. He also worked on a little case called Albemarle Paper against Moody, and argued that and other cases to the Supreme Court of the United States. Batting clean-up we have the honorable Judge Donald Lay. Judge Lay has sat on numerous path-breaking Title VII cases. The one that will most readily come to your mind is the decision by the panel of the Eighth Circuit Court of Appeals in a case styled Green versus McDonnell Douglas. Surely you will agree with me that we have got the A-team, and I want to call on Mike Gottesman to lead us off. Mike.
MICHAEL GOTTESMAN: Thank you, Bill. One of the many joys of getting old, I didn't know there were going to be joys, it turns out there are lots: Number one is probably the grandchildren, but number two is that you can attend 40th anniversary celebrations of events, and give eyewitness reports of what happened then.
I'm looking forward to the 50th anniversary. I hope they'll invite me back. I hope I'll be here to be invited back.
I was quite a young lawyer when Title -- when the Civil Rights Act of '64 was being considered in Congress, and it would be foolish to suggest I had any significant role in the legislative history, but my law firm was the, as Bill said, the law firm that represented a big chunk of the labor movement, and the labor movement was very actively involved, so I had a kind of window on the legislative history, ah, and Bill told me my task here was to review some of the events that led to the passage of Title VII, and some of the events that happened involved the labor movement immediately after its passage.
Bill has mentioned already one of the forgotten facts about the Civil Rights Act of 1964, and that is that when Kennedy Administration introduced this very ambitious bill, it didn't contain an employment title. Now, that wasn't because the Kennedys were unsympathetic to solving problems of employment discrimination. It was a raw political calculation. The Civil Rights Act bill involved many areas, public accommodations, voting, education, and the like. And most of those areas were perceived to be areas that -- where the problems existed predominantly in the south. Everybody understood that the southerners in the Senate were going to filibuster any civil rights legislation. To overcome that filibuster, it was going to require virtually unanimous support from northern senators. And the fear was that if you put an employment title into this bill, corporate America may start lobbying the northern Republican senators: You can't enact this legislation, and their votes wouldn't be there to secure a passage. And out of that fear, the Kennedy Administration made the judgment: We can't have an employment title.
Um, now this was a big disappointment to the labor movement, at least to the CIO half of the AFL-CIO, which had always been a vigorous proponent of fair employment legislation, from the time that Harry Truman had first introduced. These unions had very large minority populations. These minority populations were politically powerful within the union, held a lot of the union offices, and their number one priority was that there was going to be a civil rights bill that included what we now know as Title VII.
The House Judiciary Committee, which was the first to report out the Kennedy Administration's bill, reported it out as Kennedy introduced it, without a labor title.
Ah, and the labor movement went to the House Labor Committee, their friends, and said: We want you to report out a bill that would involve employment discrimination. And George Meaney, then the president of the AFL-CIO, went and testified in support of that before the House Labor Committee, and there is a little bit of a story here, that may bore most of you, but I've got to tell it, about the internal struggles within the labor movement that led to George Meaney, a former president of the Plumbers Union, one of those building trades unions that had no black members, um, that led to his appearing in congress and vigorously championing not only the enactment of an Employment Discrimination bill, but one that would include unions as potential defendants in that bill, because he was very clear that he was proposing a bill not just targeting employers, but targeting unions as well.
The AFL-CIO was then a very young institution. The merger of the AFL and the CIO had occurred only a few years before, and these were two remarkably different institutions. The CIO unions were the industrial unions. They were a -- They had large minority populations, they had always been battlers on civil rights on behalf of minorities. The AFL unions, who were predominantly the building trades unions were all white, tended to be politically conservative, disinterested. Meaney, to his credit, ah, took the side of the CIO in the decision to go and lobby for the enactment of Title VII. And as I've said, he testified that unions should be included as defendants in this bill. He said unions had been trying to clean up these problems at the national level, but our locals, many of them have resisted. We don't have the tools to do this. We need your help.
The House Labor Committee did report out the employment title, and on the floor of the House, it got merged into the bill that the Kennedy Administration had proposed.
Ah, the House Democrats, who were supporters of the legislation, they knew it could pass in the House. They weren't worried about whether it was going to be filibustered in the Senate, so they happily added the labor title to the bill the Kennedy Administration had proposed.
One other thing that was not in the Kennedy Administration's proposal was a ban on discrimination based on sex.
And you probably do know this piece of the history, how sex got into Title VII, an amendment adding sex to Title VII was proposed by southern Congressmen, who were vowed opponents of this legislation. They were troubled that employers, contrary to predictions, were not vigorously fighting the enactment of Title VII in the House, and as I'll explain in a minute, there is a reason for that. The employers had made a calculation why fight in the House. We can do business when the filibuster starts in the Senate.
But in any event, as an effort to try to derail this bill, the southern congressmen thought that if they added sex to the bill, now that was more than corporate America could possibly stomach, and they would come in, and they'd fight the bill.
Um, that -- The episode dealing with their proposal to add sex is not one of the happiest chapters for some of the liberals in Congress, who, fearing they were right, and that adding sex would defeat the bill, got up and made what to today's eyes seem remarkably sexist speeches about women belonging in the home, and et cetera. Included in the ranks of those who made these speeches was one Emanuel Celler, who was the chair of the House Judiciary Committee, a Congressman from New York, who lived to regret this, because within a decade he had been defeated when he was running for re-election, defeated in the primary by Elizabeth Holtzman, who wrapped his speech opposing adding sex to Title VII around him throughout the campaign.
But the southern congressmen did, of course, have allies. Some, of course, were champions of the feminist movement, and rallied to the idea of adding sex, and this combination of southern congressmen and feminists succeeded in adding sex to the bill.
And to the southerners' consternation, in fact it was no impediment to the ultimate passage of the bill, which is not to suggest that passage was easy. It was easy in the House. The House was overwhelmingly Democratic. There was no filibuster. The bill got through the House by a handy vote with, you know, with not much delay.
And then the big battle came in the Senate. As Bill said, they held no hearings in the Senate. Ah, the judgment was if we're going to get this thing through, we've got to take what the House has given us and run with it, and do it quickly, and so the Senate took up debate on the House bill, and then began what was, and I believe still remains, the longest filibuster in the history of the United States.
Um, now, those were the days where a filibuster was really a filibuster, where if you wanted to filibuster, you had to talk non-stop hours a day, day after day after day. It is not like today, where if you want to filibuster, you call the Senate majority leader and you say: Hey, we're filibustering, he says: Great, let's go out to dinner. Your filibuster is duly noted, and until we come up with the requisite 60 votes, we won't do anything with this bill.
In those days, you talked and you talked. I actually got to read, um, when we were representing the steel workers in the Weber case, the first case to question whether affirmative action is prohibited by Title VII, and we had negotiated affirmative action provisions in the steel and aluminum industries, and we made the judgment: We needed to read the entire legislative history of Title VII to find out what is in there that casts a light on affirmative action.
So I took a month, and it literally required a month, to read the entire legislative history of Title VII. I claimed, I don't know if this is true, that I am the only person that ever did. Ah, it is quite interesting to read the full text of a filibuster, you know, at 3 in the morning, you've got southern senators reading recipes, and poems, and old patriotic confederate songs, and the like, but every once in awhile they would try to slide in a little piece of legislative history that could later be used just in case in this bill got enacted, were happy to see that this law will not be enforceable in courts, and then the supporters, there was always a supporter or two who had to stay in the room at all times, so that when moments like that came up, they could ask to be recognized. Will the senator yield, and of course the filibustering senator would not yield, because if he yielded, the filibuster would be over. But the filibustering senator would say: But I will entertain questions. And so the Democrat, whoever, the supporter of the bill would then say: Of course it is not true that this bill would not allow enforcement in courts, et cetera.
So there was this endless filibuster, which finally got overridden by cloture, but by an incredibly small vote. We in the labor movement are quite proud because Hubert Humphrey, who was the floor manager of the overall civil rights bill, credited the labor movement with having twisted the two arms necessary to achieve the filibuster.
I hope that he is right. It is certainly true that the labor movement had hundreds of lobbyists here in Washington working around the clock trying to round up the -- the marginal senators.
Now here in the Senate is where the corporate America got its pound of flesh, if you will. The votes that were hardest to get were Republicans in the north led by Everett Dirksen of Illinois, who was the House minority leader, and in order to get their votes, it was necessary for the sponsors of the legislation to add a whole bunch of exceptions, limitations, et cetera, that appear in Section 703(e) and (h) and the like, but also it was necessary to agree that the EEOC would not have either decision-making power or enforcement power. It could issue probable cause rulings, but it couldn't decide cases and it couldn't go to court. That was a fundamental weakness of it, and it was only eight years later, with the amendments in 1972, that the EEOC got enforcement power.
Those are the prices that were paid in order to get the votes necessary for the enactment of the statute.
Um, one last thing, and I'll subside, and that is, um, the first few months after Title VII became effective, of course it was enacted in '64, it didn't become effective until a year later, July 2, 1965.
And I remember vividly, I was still even then quite a young lawyer. On Yom Kippur day 1965, Yom Kippur is the holiest day in Jewish religion. It is the day when you are supposed to spend the entire day in synagogue fasting. For whatever reason, FDR, Jr., the first chairman of the EEOC, decided that on Yom Kippur day, he wanted to meet with a lawyer for the steel workers about this very unusual phenomenon, which is that a huge percentage of the early charges under Title VII were being filed at steel plants, something that he found surprising, both because he knew the union had been very supportive, and that it had lots of black members, and in fact steel plants were probably the highest paying occupation for black workers around the country who were employed in huge numbers there.
He was insistent that the meeting be that day. All the lawyers in my firm were Jewish. We were the principal lawyers for the Steel Workers Union. I was the junior lawyer, so the senior lawyers all went to synagogue, and I went to the Office of the Chair of the EEOC.
Um, these are the circumstances that enabled junior associates to get into high places.
Um, and Roosevelt and some of the other principal officers of the EEOC were at this meeting, and there was me, and he said: We are a little surprised by this. We expected we were going to get lots of complaints about the building trades who have no black members, but no, instead what we are getting in volumes are complaints from steel plants. And I said: Well, why are you surprised? You've got this new law. People, employees don't know much about it at this point. They don't know how to go about filing charges. They are terrified of filing charges because they don't know there is an antiretaliation provision in the law, and are afraid their employers are going to fire them. It is not at all surprising that you would see complaints from a place where there are lots of highly skilled and highly knowledgeable black union officers and grievance committeemen in an industry where employees have, by virtue of the collective bargaining agreement, complete job protection. They don't have to worry about getting fired, and they have some real grievances, which is yes, blacks were employed in volume in steel plants, and yes, they were making lots of money, but weren't making as much money as the white employees, on average, and why was that? It is because when they applied for a job, the employers would decide what department they go into, and the employers had discriminated on the basis of race in making those initial assignments, and I said, "We're with you. We are prepared to fight with you to challenge these initial assignments." We had been trying for years to get the employers to agree with us, that the union would have some role in where people got initially assigned, but we had been unsuccessful. Our collective bargaining agreement kicked in after the employees were initially assigned.
And Roosevelt said: Well, not so fast. These complaints are not only complaining about discrimination in initial assignments, they are also complaining that your seniority systems are perpetuating these initial assignments. And I said, naively, "Well, but there is a provision in Title VII that says that nothing in this law will invalidate bonafide seniority systems." And he said, "Well, what does bonafide mean?" And I said, "Well, that means innocently motivated," and he said, "Well, you know, some of us think that maybe it means doesn't perpetuate past discrimination," and I said, "Well, what is the point of putting it in the law, if that is what it means"?
And he said, "Well, we're going to have to think about this real hard." And I said, and this framed an issue that was an issue for a short time after that, "You know, this is going to be very awkward for us. We are really, really anxious to be champions of the enforcement of Title VII. But if you go after the seniority systems, you are going to put us on the defensive, and do you really want to do that?"
Well, as David is going to describe, the answer was, "Yes, we really want to do that."
And they certainly beat the steel workers to a fairtheewell, to the point where in 1974 the steel workers negotiated an industry-wide agreement in both the steel and aluminum converting to plant-wide seniority, it would have been a fabulous thing, but for the fact that of course the steel industry tanked and never had anymore job opportunities, and didn't have much value.
But it did -- And the total irony is we agreed to that in 1974. And shortly after the Supreme Court decided in the Teamsters case that we had been right all along, and that Title VII did not invalidate innocently motivated seniority systems. But until the Supreme Court ruled that way, every lower court had said that indeed, no matter how innocently motivated, a seniority system that perpetuates discrimination violates Title VII. So, David.
DAVID ROSE: Woops, excuse me.
I was at the Justice Department for many years before I did civil rights work. Um, I think it was sometime in 1965 that the Civil Rights Division came to the Civil Division and asked us to try to do something about Judge Cox, who had ordered two black witnesses to be held in contempt of court, um, because they testified for the Civil Rights Division in a voting case. And the lawyers from the Civil Rights Division did not think they were committing perjury, and they wanted something done, and they wanted it so badly, they had a meeting -- they scheduled a meeting between the two Assistant Attorneys General, and I was asked to attend, and within a week or ten days, we had drafted a mandamus, which we filed in the Fifth Circuit. I had written most of the papers. John Douglas argued before, and we thought we were going to get a panel, but I think we ultimately got -- we did get a committee, excuse me, but he argued. I sat in the back and agonized somewhat, but his argument finally went pretty well, and we got a five to four ruling from the Fifth Circuit granting a mandamus petition.
That was important to my career, because I was working with a great young lawyer then, he was my age, named Bob Owen, who was -- who died at a very young age, um, but who had worked with me on the papers, and later, um, successfully lobbied John Dohr (phonetic) to give me a job in the Civil Rights Division, and that was '67, and I did that, but Ramsey Clark didn't think there was any role for employment cases by the Justice Department, but John Dohr did, and I reported to Mr. Clark through John Dohr, so I did, too, and we were sued -- The Labor Department was sued in December 67' by the Crown Zellerbach Company, who was -- who then -- I'm sorry, they weren't sued. They were -- The Labor Department had started an administrative proceeding against Crown Zellerbach under Executive Order 11246, which we shouldn't forget, because that was a powerful motivator for the big business outfits, many of whom I think really did want to make some change in the system that had been encrusted throughout the country, of job discrimination.
In any event, the upshot was that the paper makers threatened to strike on January -- in early January, and the only time in my life I got to draft a complaint, I got it signed by my then boss, Steve Pollack, he said, "Bring it down to -- Bring it up to the Attorney General's Office, and get it signed," and I walked in, and I saw the Attorney General, and he signed it. And we had filed for a temporary restraining order and injunction, and I notified the paper maker's lawyer that I was going to go down there, and we agreed to meet the judge that afternoon. We flew down, met the judge around Central Time, and presented the matter to him the next morning.
He allowed us how he'd never enjoined a strike before, and I think he never did again. That was Judge Heebe (phonetic). That was probably the most exciting day of my career at the Justice Department, and Heebe asked me a couple of times, I think it was in chambers, whether this was really the Attorney General, was there really -- was he really interested in that, and I said, "There is his signature, and I brought it down to him, and he signed it today." And that seemed to satisfy him.
In those days, the complaints were required to be signed by the Attorney General, pattern or practice complaints were, so that was the only way we could have gotten it, but he was a strong supporter. Anyhow, the -- the injunction got granted, it ultimately became United States versus Local 189. It is the earliest case that I had under Title VII.
I -- I had brought a case against Alabama in 1968, which was also, we brought it on the merit system, but it enjoined race discrimination, and it was no accident that we brought it before Judge Frank Johnson in the Middle District of Alabama, who was delighted to see the complaint, and granted relief about two weeks after we filed the lawsuit, I believe. It was the fastest case I'd ever had.
In any event, the Employment Section was started in 1969 under the Republican Administration and we targeted cases, as Mike was saying. The EEOC, we -- Steel was certainly one of the targets. I don't remember a meeting that Mike talked about, I think it was before I got there, but we sued -- My memory is we sued U.S. Steel sometime in 1970, but I'm not sure that is the right year.
In any event, that was Bob Moore and Mary Beth Martin is here nodding her head saying that sounds right. She was a paralegal then, an Assistant Section Chief now, I believe. In any event, we had a very exciting time with a band of very few lawyers. I was I think 30 - 1967 I was 36. By '69 I was 38. I was the old man in the office with one exception, but I was the old man for a different reason. I was like the captain, or the chief, but I was literally the old man for almost all of them because I was at least three or four years older than everybody except Bob Moore, and was several years older than him, too, so my great experience was brought to bear. And the courts were extremely receptive in the early days, and we brought a lot of lawsuits.
We did target buildings trades. We targeted the building trades before the steel workers, that is, the Justice Department did, and there were a series of cases in the 70 and 71 and 72 against local unions, and then we began to sue the four literally white unions, sheet metal workers, electricians, iron workers, and plumbers in community after community, because the pattern was the same. They were all white. They were in areas with a substantial black population, and the requirements to get in weren't major, other than being a son or a nephew or a son-in-law of one of the members. That requirement was hard to overcome. But that is why we brought the lawsuits. I don't think we made enormous changes.
I do regret the passage of the '72 Act, in the sense that I don't think the EEOC ever took on the task of monitoring the cases that had been brought, and bringing additional cases against building trades unions, because I don't know -- We lost our jurisdiction, so I don't know, but my sense is that those unions are still predominantly white, and that it is still harder, at least in most of them, in most of the locals, for African Americans to join than friends and relatives of the members. If somebody knows that is wrong, I'd be glad to learn of it, but that is my impression, with no research. The -- One of the things that happened in '72 is they stopped, EEOC stopped asking for reports of the membership unions, the old EEO -- I can't remember, the 2s and 3s.
WILLIAM ROBINSON: Union 3s.
DAVID ROSE: Union 3s, so we never get any reports, so we don't know. That is my impression, if it is different, somebody should tell me about it. But anyhow, we -- we did a lot of good work in the early days. The courts were more receptive. It was easier for the Republican administration to sue building trades lawyers than big companies, but we were still allowed to sue some of the big companies in the early '70s and mid-'70s, and we went out of the private sector business in '74 with the two decrees, the nationwide trucking decree, which I had worked on quite a bit, and the steel decree, that you heard about, that Bob, my partner and deputy and colleague, worked on in steel. Those were important cases. Um, the trucking companies, like the steel companies, they didn't tank, but the union companies didn't prosper either, so now you see truckers I think mostly driving their own rigs with some -- under some banner, the banner of a company, and probably with a loan, so I don't know how much we accomplished in the trucking industry, but I wouldn't mind finding out. In any event, we had good times, and there was a lot of very hard work and very long weeks, um, but on the whole, it was a great era from '67 to the mid-'70s, and I remember it fondly, and would be glad to answer any questions or hear any dissents when you get to ask us any questions. Thank you very much.
DAVID CASHDAN: It is indeed an honor to stand in for Bob Belton. There was a time in my history at the EEOC where I almost felt even though he was with the Legal Defense Fund, and I was with the EEOC, that we were joined at the hip. We spent a lot of time together, and I plan to tell you about that. But I was at the EEOC in its first five years. I started there in November '65, and I can truly say it was one of those settings where I was in the right place at the right time, and it was purely happenstance that I got there.
Trying to get a job in civil rights when we got out of law school was very difficult. First of all, there were very few jobs. I graduated in '64, Title VII had not been passed, was about to be passed. No Justice Department had a Civil Rights Division. Legal Services hadn't started yet, so those jobs were few and far between.
While I was hunting in this town for a job at the Labor Department, I interviewed in the Office of Federal Contract Compliance and the President's Committee for Equal Employment opportunity, the forerunner of the Commission, and they had no jobs for more lawyers than they already had, one of them was Tom Powers, who became a major partner at Steptoe and Johnson, and was very helpful, I think, even though he was defending management, in helping to resolve a lot of -- a lot of cases. But he didn't have a job for me, but I said, "Oh, by the way, do you have a job for a writer, or -- or for my wife?" And they said, "Why?" And I said, "Because my wife is a writer," and the next thing I know my wife is working at the President's Committee for Equal Employment Opportunity.
When they phased out, it seems the -- I think she helped me a little bit getting my job at the EEOC, which we sort of switched roles for the time. We were contrarians. Instead of being a good wife behind every husband, I was the good husband behind my wife. Anyway, I came to the EEOC, and it was an amazing place. When you think this was an agency that was to be toothless, had no power, and you looked around at who was there, the first thing, they were dedicated, and everyone was filled with mission. And the talent pool was beyond belief. The lawyers, whether they were in lawyers' jobs or not, included, and I am going to mention some names. Most of you won't know them, but I am going to tell you something about them, because it tells you something about the force and enthusiasm that was contagious in those times.
There was a Commissioner Sam Jackson. Sam Jackson was from Topeka, Kansas. He was the local lawyer in Brown versus Board of Education, and he was the fulcrum, the center point for practically every employee that wanted to do and make the Commission an active hotbed of enforcement, or furthering Title VII principles to make it work.
There was Charlie Duncan, you may have seen his obit or editorial in the "Post" the day before -- this past weekend. Mr. Duncan was a super lawyer. He had civil rights background. He later became, among other things, corporate counsel in Washington, D.C. There was Dick Berg from the Justice Department. He was a Harvard law graduate, he wrote the first law review under Title VII. There was Cliff Alexander, former Secretary of the Air Force, ran for mayor in this town, um, Ivy League lawyer.
Um, Cliff was very important in my life, ah, and a super lawyer. He had been at Arnold and Porter, or went to Arnold and Porter after us, I can't remember.
There was William Brown, one of the chairmen. There was Pat King, one of the professors here at Georgetown. There was Fred Abramson, a former president of the D.C. bar. There was Vincent Cohen, who had been I believe an All American basketball player, and who became one of the main litigating partners of Hogan and Hartson. There was Gerald Frug, who is now a professor at Harvard, there was Cruz Reynoso, who was, or is, I'm not sure of the title of the highest court in California, but he is one of their judges. There was the first female black attorney at the Justice Department. Before she came to EEOC, she had argued in the Supreme Court, and she had a most, most compelling and exciting career on our D.C. Court of Appeals here, and if you want to read some of the best employment law decisions applying to our local civil rights act, you read what Judge Mack has written in her day.
And there was Chuck Rishell (phonetic), who became a legend. There was Beatrice Rosenberg, who came from the Justice Department, had argued more cases in the Supreme Court than any female at that point in time. There was Phillip Sklover, who was a law student, but he is still at the Commission, and he was involved in some of the most major opinions that you are going to hear about, Griggs versus Duke Power, I believe Phillips versus Martin Marietta, Phil, correct me if I am wrong about that. There was Barbara Lindeman-Schlei, whose name is legendary. She is Schlei and Grossman, the textbook, and I want to tell you a little bit about what Barbara did in terms of when she was at the Commission. There was David Copus, a management lawyer now, but launched a huge industry proceeding in front of the Federal Communications Commission saying that they could use their licensing power to address EEO issues, and there was Lex Prager (phonetic), a former Foreign Service officer who came and worked with Chuck Rishell, and then worked in the appellate section here in the Corporation Counsel's Office, and I can go on and on. But that was the talent pool, and we fed each other.
We also looked a little different, a lot of us then, not only than we do now, but before casual clothes were in style. Bill Ed Brown (phonetic) inherited an office, some of us had fu manchu beards, some of us wore body shirts, love beads, flare pants, I mean it was something that we had a general counsel for a couple months from the Department of Labor, Stanley Heber (phonetic) a very nice man, but he believed in shipshape and order. He could not handle us. Just wasn't his thing. Um -- But -- So here was this contingent of folks that were in love with what they were doing, and because we didn't have any power, nobody was paying any attention to us. The hidden fact was that was good, because we really could do what we want in terms of helping to make the law.
We had two legal roles that I want to focus on, one, the Commission had subpoena power, although it was called demands. We could enforce subpoenas to get documents for our investigations, so we went into court, and enforced that all around the country, and with the help of the courts of appeals, we established that you can get rather broad documentary discovery and statistics in individual cases, and that became very helpful later on in the private -- at the same time in the private causes of action, when it came to what kind of discovery can you get in those cases. Bob Belton was involved in a lot of cases, and I want to talk a little bit about what we did with the private cause of action.
We couldn't file suit in our own name, but the private cause of action was out there to enforce Title VII. So what did we envision our role? We envisioned our role was to make the private cause of action work.
So we wanted to eliminate delay. How do you eliminate delay? We had to deal with, did have you to have an investigation before you could file a lawsuit, did you have to have conciliation before you could file a lawsuit, did the charge have to be sworn before you filed a lawsuit, did there have to be a cause finding before you had a lawsuit, if you had a no cause finding, did that keep you from filing a lawsuit? Every one of those silly little issues was raised in every district court in this country, and every circuit had to deal with it. We worked our darndest to try to help the private litigants to get the right answer, which was: You don't need any of those things. Put it in front of the EEOC, give it an opportunity to do what it can do, if it hasn't done it within a certain period of time, you have a right to go to court.
So I spent a lot of time on those procedural issues, and spent a lot of time in the Fourth Circuit and Fifth Circuit, the Seventh Circuit. Judge Lay, I don't think I ever argued in the Eighth Circuit, but I did argue in the Ninth Circuit for sure.
The times change. Courts change. But we got really responsible hearings from the circuit courts, in terms of helping the private cause of action to be there and stay there. One of the things that -- There were certain themes in our dialogue. We played on the fact, and we used it in all our briefs, the word "highest priorities," that was a Supreme Court case, Newman versus Piggy Park Enterprises, it was not an employment case, but it was a civil rights case where the Supreme Court pointed out that the vindication of civil rights under the Civil Rights Act in 1964 were to be accorded the highest priority. So of course anything that we argued, we told the court should be accorded the highest priority, and we should get best treatment, and we often did.
Another theme that we wanted to address, besides delay, was the scope of the lawsuit.
We wanted to make sure that when a litigant got to court, their lawsuit could be as broad as possible so we help develop the like and related and growing out of the scope of the investigation concept, so that we wouldn't be tied to just an eensy teensy weensy bit of a case. And that continues to be fought and fought and fought. In fact, but for the most part, there has been a little narrowing, but in the early years it was very helpful to the private litigant to be able to litigate things that were like and related to a denial of a promotion. That was one of the issues we had to deal with. Another issue that we tried to deal with were what was -- What did it mean to be an aggrieved party?
You had to be aggrieved in order to file a charge with the EEOC, and were you aggrieved enough to then come into the court and file a lawsuit. The first case, or one of the first cases in the Fifth Circuit, which we helped -- I believe we wrote an amicus brief in, it was called Jenkins versus United Gas, and the issue was whether or not if the person who complained of a promotion was promoted after he filed the charge, would that -- could he continue to complain that he was aggrieved? Fifth Circuit said yes, he could. The Fifth Circuit also articulated in that case a theme that you'll see constantly in the early cases, and that is that employment discrimination is perforce a class action. It is a class concept. It requires class proof, and just because someone has been promoted, that doesn't mean the system of discrimination that denied him the promotion originally doesn't still exist. And you have to be allowed to address that, which leads to another theme that he wanted to address, which is make whole relief. It is not enough just to give somebody their backpay, but you have to end the discrimination.
In the first five years, since we didn't have what later came, which were jury trials, and punitive damages, and compensatory damages, monetary relief was relatively small for someone who had been fired for -- who had a low-paying job for a couple of years. So the main thrust of the litigation that Julius Chambers and his colleagues and that other lawyers were filing was primarily for affirmative relief, get rid of the system, the seniority system, if that is what the issue was, that was keeping people relegated to certain departments because of their race.
Another problem we dealt with is how many people have to file a charge, um, to be included in the lawsuit? We maintained that the one charging party was able to represent everyone else in the class who was subjected to the same discrimination, without having -- each of them having to file a charge.
Bob Belton handled our case, I believe called Robinson versus Lorillard in the Fourth Circuit. There was a case before that, Bowe versus Colgate in the Seventh Circuit, and there was a Fifth Circuit case involving Crown Zellerbach, all of which said you only needed one charging party.
These procedural victories, if you want to call them that, are what made for a viable cause -- cause of action. I want to talk about few -- a few other little things that happened.
First of all, how did we get involved? We didn't have computers? Nobody was tracking -- Nobody -- There was no mechanical way of knowing about when a lawsuit was being filed. Well, the job was not easy, but it is easier than it would be today, because today there is thousands and thousands of lawsuits. There weren't that many being filed then, and they, almost all of them were being filed by lawyers who were with NAACP Legal Defense Fund, with their cooperating lawyers down south and around the country, the NAACP, although it had its Legal Defense Fund, Bob Carter and Herb Hill didn't want to give that action up completely, and they also were helping private lawyers to bring cases, and we dealt with them. There was a Lawyers Constitutional Committee in Louisiana, Richard Sobel handled the first seniority cases against Crown Zellerbach in Louisiana. And there was the Lawyers Committee for Civil Rights and Law, Richard Seymour and Bob Fitzpatrick were down in places like Mississippi. We kept in direct contact with all those lawyers. We didn't wait for them to ask for help. We called them up, and we said, "Hey, Bob, that case you have down in North Carolina, do you have any motions pending?"
We were being aggressive, and trying to see that the law was getting -- that we could help these attorneys, and that we could see that the body of law that was being developed was going to be expansive, and we were trying to help to get some consistency in the interpretations.
We dealt with seniority discrimination, and that became the first brief, where Quarles versus Philip Morris, where the EEOC filed a brief in its own name on a substantive issue. Prior to that, we had to go over to David Rose, get him to sign off on a brief, or his predecessor. After it was seniority, the Justice Department had not made -- it was a tough issue, had not made up their mind what they wanted to do. There was a wonderful judge in Richmond, Virginia that was going to rule on this case. I did something that I can't imagine that I would do today, I told the Commission, Chairman Alexander, I'd quit if they didn't file the brief. It wasn't because of that, but he did agree to file the brief, and we filed it, and that helped establish the first time that a seniority system was found violative of Title VII, in -- I think it was '. We then got into the disparate impact cases. We are going to talk a lot about Griggs versus Duke Power, how a neutral criteria can have a discriminatory impact.
We paid attention to statistics, trying to highlight the importance they would have, and why you needed to be able to gather them, and we had the power to get it, and private litigants had the power to do it.
The bottom line was that working for the EEOC in its first five years, without enforcement power, was an extremely exciting time for a young lawyer. I think in terms of the movement and the enforcement of the law, it had an extremely beneficial effect. I don't think the private cause of action would be as robust as it is today if we hadn't started without enforcement initially, although the motivation in Congress was that we would not -- that that structure was not going to prove to be very effective. It led to some of the landmark precedential cases for which -- with which the court is still struggling and sometimes -- sometimes they've changed their move, and sometimes they preserved some of the victories that we helped to win. Thank you very much for inviting me.
(Applause.)
WILLIAM BROWN: Good morning.
One of the things that David touched upon was the, when I came into the Commission, was what the Commission Legal Department looked like, and I think he may have understated it. My background was a Philadelphia lawyer, and you know Philadelphia lawyers are thought about as being very staid and old-fashioned. But I can tell you that when I first took a look at the people in the Legal Department, I thought I was in San Francisco at Haight-Ashbury. I always said they only had one suit that they shared among them whenever they had to go about going into the court on those very few occasions that they did go into court. But the thing they did say is that I was fortunate inheriting just an outstanding group of people. You know, sometimes government employees get a hard rap, and unfortunately it is just not true that they -- they are perceived by many in the general public as just putting in time, and not really earning their keep. But I can tell you during my days at the Commission, there was no harder working group of individuals than those individuals that I had the privilege of serving with at the Commission.
And it is interesting how I got to the Commission, and you know so many times in life, it is not whether you are bright, or whether you deserve to be there, it is just by a pure fluke.
David mentioned Sam Jackson, who was an outstanding commissioner. He was a Republican, and of course on the Commission, it is a bipartisan Commission, so no more than three from one party can serve, and for some reason he and Cliff Alexander, who was then the chair, could not get along, and it was clear he was not going to be reappointed by President Johnson at the time.
I just happened to be fortunate enough to be in a law firm prior to my becoming a Deputy District Attorney in Philadelphia, a very small firm in Philadelphia. We never had more than seven lawyers at any one time. But out of that very small law firm, we got seven judges, four federal judges and three state court judges.
And one of my law partners was A. Leon Higgenbotham, Jr. Many of you know that name. He was one of the youngest members to serve on the Federal Trade Commission, was nominated and confirmed as a district court judge, as one of the youngest federal district court judges in the Eastern District of Pennsylvania, and later went on to become both a judge of the Court of Appeals for the Third Circuit, and finally the Chief Judge for the Third Circuit, and his relationship with President Johnson was very, very close.
When they found out that Sam would not likely be reappointed, sometimes you just are very lucky. I happened to be black. I happened to be a Republican, although there are not many of those around even today, and I had had a legal background, and so it was that Leon mentioned to the President and his administration that perhaps they might want to look at me as a possibility of becoming a member of the Commission.
Hugh Scott, who was my senator, supported me in that effort, and it went on back and forth for just about a year, because as you might remember, it was at a time when President Johnson was trying to get Abe Fortas in as Chief Justice for the Supreme Court, and so when he originally had my nomination, he pulled it back, and was handing out these and other nominations as a means of trying to encourage some of the senators to vote for Abe Fortas. When that fell through, of course he pulled all of those back, and finally after a good deal of time had passed, had decided to give me an interim appointment as commissioner on the EEOC.
One day I got a call, I guess in about March or April of 1969, from the then Secretary of Labor, who I had not met, and who asked me to have lunch with him. And of course I was flattered and somewhat fearful of why I was going to have lunch with the Secretary of Labor. I knew he had been a Senior Vice President for Lockheed, and so I did all of my homework in trying to find out did Lockheed have any problems, and what kind of charges did we have against Lockheed? We had a very pleasant lunch. Nothing was said about Lockheed, or anything about the Commission. We just had a normal luncheon where we talked about everything but the thing that I thought I was there for.
And finally, just about the time when lunch was over, he said, "Bill, I guess you know that President Nixon," who had originally withdrawn my nomination, "is considering nominating you for a full term on the Commission. And when confirmed, will be making you, or naming you as the chair." Well, there was nothing further from my mind, but that was the beginning. And as I said, it is -- It is the things that you don't anticipate out of life that come up about. If I had planned it, I couldn't have planned it better.
When we got to the Commission, it was difficult because Cliff Alexander, as you might remember, continued to serve not as a chair, even after I was finally confirmed, but as a member of the Commission, and so you had this problem of the people in the agency not knowing what to call me, and what to call Cliff, because he was still, to most of them Mr. Chairman, and I was also the new Mr. Chairman, and so we had a lot of problems with that.
And we had problems with just identification of the agency. We were often confused with OEO, the Office of Economic Opportunity. We had a limited number of offices throughout the country, and so we went about putting together some public service announcements, and we had a number of individuals who agreed to make these public service announcements with the idea that EEOC would become better known, and those individuals who had charges of discrimination would know that there was an agency they could go to, to have those issues dealt with.
And in fact, one of the people who made one of our public service announcements, unfortunately he just passed, was Ray Charles, I don't know how many of you saw the ones he made.
And so we were very fortunate in that. And in the beginning, we had battles, things that we all take for granted today. One of the biggest battles was around the area of just the -- the ads that would appear in newspapers. Remember the old days you had male/female? You had white and colored, that is what we were called in those days, or colored or Negro. And we dealt with that issue, and finally got the newspapers and most of the major employers who were looking for individuals to finally change that. We take that as a granted these days.
We had the battles with the airlines, the -- what we call flight attendants today, they were call stewardesses in those days, and they had very strict regulations as far as the women who were concerned. There were no male flight attendants. The women, once they reached the age of 32or 35, depending on the airline, had to resign.
They had certain weight restrictions, um, and it was interesting. They could not be married.
And so we had a battle with them. You might remember, I guess it was -- I can't remember whether it was Pacific Southwest Airlines used to have the tag line, "Fly me, I'm Jane," or some such thing. Or, "We really shake our tails for you," and it shows a nice young flight attendant. And we had a battle with that, and they finally agreed to change it.
I think one of the, I guess, major accomplishments during the time that I was there, was the AT&T case. As you remember, we did not have enforcement powers in those days, and so we filed trying to piggyback on the FCC's hearings on AT&T, on their rate case, and while the hearing examiner refused to allow us to intervene in that case, he did agree that we would have a separate hearing on the question of whether or not there was discrimination going on at AT&T.
If I had known just how difficult it would have been, perhaps we would have not been, um, able or even inclined to take on the litigation against AT&T. I remember saying to those individuals who compose our AT&T Task Force, "If I were AT&T, I would just back up a truck and dump all of the hundreds of thousands of pages of documents and say here, 'Go at it.'" And I was concerned about that. It was one of those things I think at the time that I was at the Commission, I had more litigation experience than anybody in the Commission.
I had been in practice since 1955, and had tried literally hundreds and hundreds of cases, many of them -- most of them jury trials.
But when we had the AT&T case, they did in fact do that. And as it turned out, we had recruited a lot of law students from all over the country, we even brought in law students from Puerto Rico. And it is just amazing how dedicated these young individuals were. I would come into the office, and they would be there on Saturdays and Sundays and holidays working away through this enormous amount of paperwork; and some of the best testimony came out of the very documents that AT&T turned over to us.
The head of the AT&T Task Force was Charlie Wilson, who was I guess one of the few people who did have some litigation experience. David Copus was, of course, there, and others, but most of whom did not have any real litigation experience. But they put together just an unbelievable case, and we tried our portion of the case before the hearing examiner, and the most important individual was a fellow by the name of Bob Lilley, who was then the chairman of AT&T. Remember, AT&T in those days had separate operating companies, each with their own president. And every once in awhile, our two groups, the AT&T group and EEOC's group, would get at loggerheads, and he and I would have to meet to try to see if we couldn't push our various groups along towards a possible settlement. Well, obviously he didn't want to be seen coming to the Commission, and I didn't want to be seen going over to AT&T, and so AT&T had a suite of rooms at the Sheraton up on K Street, and I would sneak over there, and he would sneak over there. We would meet with our people and try to push them together to get this thing resolved.
And then it finally got down to, I guess it was in January of 1972, and at that point in time I got a call from Lee Satterfield, who is an attorney here, who was then one of the senior attorneys at AT&T here in Washington, and he said, "I had given the deadline as to when this agreement had to be signed." He said, "Bill, Bob has asked me to ask you whether there is any leeway whatsoever in the deadline that you've set." And I told him, I said, "Lee, there is no leeway whatsoever."
And he communicated this back to Bob Lilley, who then had to convince all of the presidents of each operating company that it was in their best interest to resolve this matter informally.
And so it was that on the very next day, I believe it may have been about the 18th of January, that people from AT&T flew down, and we signed off on that historic document.
And you remember the flak that AT&T took. They were the largest single employer in the country, other than the Federal Government.
And many of the major corporations had the feeling, or made the statement that they had been sold out. And as it turned out, that was one of the greatest achievements I think of the agency at the time.
And all of the credit really goes to the extraordinary work of our Legal Department, and all of those individuals who came in to help out in our prosecution of that particular case.
It was interesting that just about a year later we did get enforcement powers, in 1972, and what I had attempted to do was to set up AT&T type task forces. The idea was that we would have a group of individuals that would be able to handle major charges, and I filed, I think, five Commissioners' charges, I know one was against General Motors, one was Ford, one was IBEW, one was Sears, and I can't for the life of me remember what the fifth one was.
UNIDENTIFIED VOICE: General Electric.
WILLIAM BROWN: General Electric. You're right. Thank you.
It was my thought that what we would do was to handle each of those individual groups the same way as we had with AT&T. We would go after them, we would try to conciliate, we would try to work out a settle; but failing that, now that we had enforcement powers, we could go into court. So we set up five litigating centers throughout the country. I think it was Philadelphia, San Francisco, Atlanta, Chicago, and Denver.
And one of the ironic things is everybody said, "Why the hell in Denver?" Because the area they would have control over and responsibility for was pretty much the southwest, which included Texas, and Louisiana, and some of the other areas. The reason why I decided to put it in Denver was because of politics. I remember testifying before a committee on our budget, and I'll get into that a little bit later, and there was a document that the head of the committee kept showing to me, and asking me about, and I for the life of me couldn't remember ever having seen this particular document.
And I kept saying to him, I said, "Well, Mr. Chairman, if you show it to me, I might be able to recall this document." And after a battle back and forth about whether I was going to be shown the particular document, he finally just threw it at me, and said, "Here it is, read it."
And I read it, and I can tell you, nothing in that document looked familiar.
I learned about three days later that into the office came the original of that document. It was obvious that someone down in Texas had sent this document, without having sent it to me, to the committee.
And I decided that if I were to put one of the litigating centers in Dallas, that there would be so much political pressure brought to bear on our employees down there, that I didn't feel that would be fair to them, nor to the charging parties or to the Commission itself, so it was that we put it up into Denver.
We put together the resource allocation strategy whereby we allocated about 60 percent of our resources to handling these major cases.
Another 20 percent we thought should go towards looking at the major corporations in certain regions.
And then another 10 percent would be used for individual charges, and the final 10 percent would to be used to establish case law that we thought was required.
It was an interesting time. And during that time, that was my remaining time at the Commission, I left there in December of 1973, there were a number of things that did occur. Dave Rose has already mentioned the steel cases, but somewhere along about the middle of 1973, I learned that there had been a series of meetings between representatives from the steel industry and people from Justice, and from the Department of Labor, and oddly enough John Powell, who subsequently succeeded me as chairman of the Commission, John had not been nominated at that point in time, and it was absolutely inappropriate for him to be sitting in on these meetings because, of course, of the confidential requirements of Title VII. And I found out that my own general counsel at the time was participating in these meetings. And when I learned about it, I wrote one of my intemperate letters, as I often do, indicating that I could not imagine why the major unit for employment enforcement was not a part of this, and namely the chairman of that agency. And of course everybody was embarrassed.
I had got an invitation to the next meeting of the group, and the thing that disturbed me more than anything else is that there was no discussion at that time of any backpay, as far as the steel industry was concerned, and I remember saying to them that, "Like it or not, you all can sign off on this agreement, but I will not sign off on it. And I will go after you with the Commission's resources." Well, they were smart. They didn't have anymore meetings while I was still in the chair, and they subsequently had a meeting after John Powell was nominated and confirmed.
And I still to this day believe that that settlement was not an appropriate settlement of the problems that were in the steel industry.
During the years when we had no enforcement powers, one of the ways we went about trying to get the public to understand what the problems of discrimination were, was we held a series of hearings throughout the country. There was one in New York just prior to the time that I came to the Commission. When I was a commissioner, we had one in Los Angeles, and then subsequently we had one in Houston, Texas, and I had asked our research unit, which was just an outstanding group of people, I see Al Goleb (phonetic) here, who knows this quite well, and he did a fantastic job when he was here at the Commission. We decided on Houston based upon the research that was done by our Research Department, and I asked him look at every area. I asked him to look at the number of charges we had, and to give me the three or four cities they felt would be the best place to have a hearing, given the problems that would exist in that city, and they selected Houston. And the Commission approved our hearings in Houston, and just before going down to Houston, I received a call from Vice President Spiro Agnew, who said that the mayor of Houston, I believe whose name was Louie Welsh at the time was upset, that we were coming into his city, and that he wanted to speak with me.
And the Vice President asked if I would call him, and I assured him that I would. I did call him, and I said, "Mr. Mayor, I understand you have some concern as to why we are coming into Houston, and I would be more than pleased to give you all the background information that led us to conclude that Houston would be the appropriate city for us to bring our hearings into."
He said, "Well, Mr. Brown, I talked with a number of people, and they all tell me that if I were to ask you to not have the hearings in Houston, that there is no way in the world you are going to change your mind."
And I said, "Well, Mr. Mayor, if that is the reason for your call, you would be wasting your time and my time," and so that was pretty much the end of it. We did have those hearings, and it is amazing as I look back on it, we had major heads of large corporations coming in to tell us what great work they had done in advancing the cause of equal employment in the Houston area.
And as you listen to the testimony, you were just -- at least I was, appalled at the temerity for them to say there was no problems in the Houston area.
We had people who came in to testify about all the great things they had done within their own corporations, and yet when you began to question them, they admitted there were separate restroom facilities still, they admitted that they still had separate picnics for whites and for non-whites. They admitted that there were all sorts of things that normally you would have thought any reasonable person back in the '70s would have recognized as being blatantly discriminatory. They just didn't get it.
And we left there -- We, in fact, had a film made of the Houston hearings. We had asked of Anthony Quinn, who was a Tony award -- an Oscar Award winning actor, if he would moderate the film, and he saw some of the films that we had made of the hearings, and was so impressed with what he saw, that he said, "I will do that, but what I will do is I will come in with my own film crew, and we will interview these various individuals, and we will make a film of it." And out of that came the film "Voice [of La Raza]" and we filmed it, and had a premier viewing of it here in Washington, and Tony Quinn came in, and spoke eloquently about the problems of discrimination, and how we had an absolute need to eliminate discrimination in all of its forms.
I look at that during the period that I was at the Commission, and I can honestly say, and I don't think anyone can really disagree, that we have made indeed tremendous strides. Things that we just take for granted now. You walk into a bank, and you see minorities as tellers, and my own father, who worked two jobs his entire life, the only jobs that he could get would be one as a janitor in one of the banks. You look at the department stores, there were very few department stores that had anyone who was of color selling the major items.
In Sears' case, you had what they call big ticket items, and little ticket items. The big ticket items were the ones handled by the males, and they were selling things like sewing machines and refrigerators and washers. I would imagine very few of them knew very much about any of those things. But they carried the largest commissions.
And then on the other hand, you had the women who were selling the threads and the dresses, and the very small ticket items. And so it was that you look back at the changes that have been made, the police departments, the fire departments across the country, the airlines, you get on an airline today, and it is not surprising to see a woman as the captain, or a minority sitting in the first officer seat. But I could still say that given all the advances we've made, we can't be complacent. We still have a long way to go.
And for those individuals who think that affirmative action and discrimination are no longer an issue, I just say to them, "You are just living in a dream world." And when you look at the Ward Connellys out in California, and his positions, I don't know how people, particularly people of color, who have seen the ravages of discrimination, and who have seen, even up to this day, the fact that there are still significant areas of discrimination, can feel that the -- that the journey towards true equality in employment and in other areas has been achieved. Thank you very much.
(Applause.)
WILLIAM ROBINSON: We will now take a 17-minute break, and we will resume speaking precisely at 11 o'clock. Please enjoy your break.
(Brief recess.)
WILLIAM ROBINSON: If I could ask everybody to please take their seats. And for those of you who are still making your way to your seats, could you do so quietly?
I'd also like the person in charge of audio visual to please turn the mike up a little so that our transcriber can clearly hear all of the speakers and the comments and questions.
With those preparatory remarks, I'd now like to invite Julius Chambers to the mike.
JULIUS CHAMBERS: Thank you. It's a pleasure to be invited to participate in a gathering with a distinguished group of lawyers like this, lawyers I've always looked up to who have led the fight for implementation of Title VII. It's interesting, though, as time passes, how people age.
(Laughter.)
WILLIAM ROBINSON: Not you, Julius.
JULIUS CHAMBERS: I never would have thought that some of my friends would lose the top part of their hair, or that some of them would get gray, but they all have shown that passing time affects us.
You know, you step back, and I have been in a lot of these programs this year, particularly with the commemoration of Brown v. Board of Education, and I keep asking two things: One is, um, did these things really happen the way we said they did?
And second, what are we trying to get out of these gatherings? Why are we here?
Well, I remember back in 1964, when the Civil Rights Act was passed, and I remember the private community, the civil rights community, and I remember the enthusiasm that we had, because we thought that we finally had a bill that was going to really open up opportunities for minorities and women to get jobs from which they were excluded, and I also remember the experience I had when I heard the announcement of Brown v. Board of Education, and how I had hoped, at least, that we would suddenly see integration of the schools.
And I saw the passage of Title VII pretty much the same way as I saw Brown.
And I had, I think, pretty much the same experience. And as I look at Title VII in 2004, I wonder if we have really done what I said we had done in a program with Barry Goldstein, and now Justice Clarence Thomas, repealed Title VII, and stripped it of all its enforcement provisions.
When we started with Title VII, I remember efforts to try to submit as many charges to EEOC as we could pull together.
Jack Greenberg remembered that it was a thousand charges we were trying to file with EEOC on the first day of the effectiveness of Title VII. We ended up with 850. Some of those charges came back to haunt us, but we wanted the public to know that there were provisions that now provided protection for minorities against discrimination in employment.
And so we had a contingent of students and ministers and members of the NAACP and other groups to encourage people to file charges.
And as I listen today to discussions about EEOC, and the Department of Justice, and others, I have to worry about our appreciation of the plight, or problems, that the private claimant went through. And you have to look back at what you would have done as a black employee in the south or the north trying to file a lawsuit against your employer, and allege that your employer was denying you a job opportunity because of your race. Would you have a job the next day?
Another problem that we encountered was how do you pay for this litigation? We passed these statutes, and we say it is prohibited for an employer to discriminate against people based on their race or color, and then we provide that if you bring a lawsuit and win, you might be able to recover attorney's fees.
Who is going to pay for you to get to that point?
How much does one of these lawsuits cost?
My estimate back then was that it would cost us $25,000 to litigate an individual case. Today, with the hurdles the Supreme Court has established, it costs us about $100,000 to litigate an individual case. If we add a class action proceeding, the price goes out of the roof.
Where are you going to get this money to litigate? And how many people did we turn away who had legitimate claims of employment discrimination because they could not afford the cost for pursuing a claim?
Remember back, as has been made clear, EEOC did not have enforcement authority, and we had a number of people, 850, we had filed charges for, who were without an attorney, or funds, to prosecute a claim of employment discrimination.
We then faced the hurdle of what do you have to do to get in court? We have the statute that talks about filing a charge with EEOC. Must I file a charge with EEOC to get into court? How long do I wait for EEOC to process the claim? And suppose the EEOC doesn't process the claim?
I file a charge, nothing happens, do I then go to court, or have I exhausted the appropriate administrative procedures?
What happens to me after I file a charge while waiting for EEOC to process the charge?
Do I keep my job?
If I'm fired, what am I going to do then?
Well, they say 704(a) says you can't retaliate. Sure. Let's suppose I am fired. Is 704(a) self-executing, or must I wait and work or live without a job?
What happens to my family?
Let's suppose that I have exhausted all of the required procedures, what do I have to prove to establish a violation of the Act?
Do I have to establish that an employer sat down and decided to discriminate against me because I am black?
Or are there some means by which the court will infer discrimination from certain actions of the employer?
I remember a case we had involving teachers in our efforts to desegregate the public schools in Carolina. We lost all but three black high school principals in the state of North Carolina.
We went from 315 to 3. Is that enough to show some discrimination, or for a court to infer discrimination?
We had an earlier case, and I am mentioning this case because it is important to appreciate that in proving discrimination in employment, the private parties, at least, had to rely on a lot of precedents from other areas. And so in a case out of Denver, where the court inferred that Denver's schools were segregated because a significant portion of the schools were intentionally segregated, we could infer discrimination based on the demise of the number of black high school principals in North Carolina.
Would that same thing apply to other practices or other venues?
We then knew that if we could prove that an employer decided to exclude African Americans from various job positions, that that would be a disparate treatment that ought to establish a violation of Title VII, and so we were worried then how many different methods of proof do we have for establishing a violation of the Act?
We then worried about what happened once we prove a violation? What kind of relief? Could the court order that I be reinstated in my previous job? Could the court order that I be promoted? Would the court bump a white employee and put me in my, quote, rightful position?
Would I be entitled to backpay, or front pay, or damages? These were some trying issues that we faced at the beginning. And we tried, as private litigants, because we had concerns, quite honestly, about the extent to which EEOC would be able to process Title VII. We had concerns about how the Department of Justice, with the changing administrations, would be able to enforce Title VII.
And we felt, rightly or wrongly, that we were the only ones who were going to be able to enforce Title VII effectively, and we became extensively involved.
We also knew, though, that in getting involved, or becoming involved, we would have to find funds to help underwrite the cost for litigation.
Um, if my estimates for the cost of an individual case are correct, and I believe they are reasonably correct, it would be an expensive undertaking, and it was with the passage of Title VII that the foundations began to fund civil rights groups to help underwrite the cost for implementing Title VII. And that was a real great savior for victims of employment discrimination. We did have some great lawyers working with federal agencies who had real commitment. Some of them are sitting here on the panel; and they did what they could. But I remember, when we were litigating an issue about a class action, and I tell you, in order to process as many of these claims as we could, as efficiently as we could, every case we filed was almost a class action. We filed Griggs v. Duke Power. We had 14 employees working at Duke Power at the time at this particular plant. Thirteen of them became named plaintiffs, and we made it a class action, and it was certified as a class action. Fortunately, the judge didn't worry about numerosity.
We filed Albemarle Paper Company, and got many of the black employees to join in the litigation, and sought a class certification, and the judge worried not only about numerosity, but also about commonality, because the employees that we had were not operators of paper machines. They worked in the wood yard, and how could a wood yard employee represent an operator of a machine?
Well, that was one of the most interesting cases for me to get involved in with Bob Belton. We knew the judge didn't like us. And I said, "Bob, I will be the bad guy, you be the nice guy, you communicate with the judge, and I'll make him angry," and so I did, I thought, a pretty good job.
(Laughter.)
And sometimes when you are angry, you make errors in your rulings, and you overlook a lot of the issues.
Well, that was an instance, so we had a number of other class actions, and I will tell you that of those charges that we filed, I was litigating a case called Lee versus Coal Mills, and the judge asked my plaintiff, "Didn't you sign this charge?"
And the plaintiff said, "No, judge, I didn't sign the charge. Somebody brought that thing by the house and told me that I ought to get involved, and I wanted a better job." He said, "Well, you got a lawyer," and he said, "I never saw that lawyer before."
Well, fortunately this judge didn't cite me for barratry or champerty, we moved on with the case, and we got a favorable decision.
I assure you that there were a lot of other cases in that 650 or 950 - 850 that we had, who had similar experience.
The court, though, began to cut back on class certification, and why did it?
To me, it was part of an effort to strip Title VII of the provisions needed in order to ensure effective enforcement.
We litigated Griggs v. Duke Power. We thought that we ought to be able to show discrimination with a test. Why does everyone have to take a test? And there were a lot of issues that came out of that. And we got a favorable decision out of the U.S. Supreme Court.
And I think that case really helped not only in the employment area, but in many other areas as well. And we had disparate impact as a method of proving a violation of the Act. And what happens, the U.S. Supreme Court comes back a few terms later, and decides that we ought not to recover damages with disparate impact. Why? Well, we had a different set of judges. But we stripped Title VII of some meaningful provisions.
And then we had this fiasco of the Court in 1989. After years of litigating and precedents that we were able to established to make it possible for a private plaintiff to prove a violation, the Court decided that it ought to make it more difficult, and it reversed a number of the precedents that had been established between 1960 and 1989.
Why? Because we had a different court. In 2004, I am back in private practice, I see a number of claimants with employment discrimination cases, they are facing the same kind of problems, Dorothy Robinson, Joe Moody, and many others faced in 1965. They don't have the money to litigate. They don't have any lawyers to bring a lawsuit. They don't have precedents in the court that would make it easy for them to establish a violation.
It is good that we are celebrating or commemorating the early stages of Brown, or the stages of Title VII. Hopefully out of this conference, we will, through either charging everyone to become more involved with Title VII, or charging all of us to help Congress appreciate the need for more legislation, um, be able to renew what we had in 1964 and 65, and provide a real meaningful provision to help victims of discrimination establish their rights to equal employment. Thank you.
(Applause.)
JUDGE LAY: I'll try to be very brief, because I think you want to hear from the panel on a discussion basis, but a few things I wanted to remind you of. It took this country 175 years to pass legislation to say that racial discrimination was unlawful.
It took 64 weeks in the Congress of the United States, commenced by President Kennedy, and followed up by Senator Lyndon Johnson, or he was senator, President Lyndon Johnson, to effect passage of the Civil Rights Act.
The people that really deserve a great deal of credit for the passage of the Civil Rights Act were the Senator Everett Dirksen, Senator Mike Mansfield, and Hubert Humphrey. I believe it was stated that the only way that they got cloture was by a very close vote. But cloture actually was passed by the Senate 71 to 29, and it took weeks to obtain the votes to get it to that point.
One of the interesting things was, and this shows you some way how give and take happens in the Senate of the United States, they got Senator Carl Hayden in from Arizona to see the President, and the President said, "You know, Senator Hayden, I think you need a flood bill you are working for in Arizona." And he said, "Yes, yes." He said, "Well, I'll push legislation for that if you would vote for cloture." So that is the way that cloture came about, because it was a very -- at first they lacked the vote. Cloture means simply that they get a hundred hours to debate it, and that cuts off the filibuster. And before that, they had filibustered on the Act from May through June, and without cloture, I don't think the Civil Rights Act would ever have been passed.
There is a wonderful book called "The [Longest] Debate," it is written by Barbara and Charles Whalen. If you haven't obtained it, please do, because it is a fascinating book. It is about the passage of the Civil Rights Act. And it's really -- It really tells you all the details, and you'll get a vision of the Senate of the United States in a little different way than I do.
And in the court of appeals, we deal with each case on an adversarial basis. So we see different perceptions of how different people react, and judges have different perceptions of the evidence, of the Act itself. And it reminds me of a story that I've heard that there were three men that went out to visit the Grand Canyon, one was an artist, one was a minister, and one was a cowboy. The artist looked down on the Grand Canyon and said, "This would be the most beautiful picture to paint," and the minister looked down and said, "This is one of God's greatest creations."
And the cowboy looked down and said, "That would be a hell of a ditch for a cow to fall into."
So you see, you have different perception about these bills, and also about the evidence.
And I have been asked to mention McDonnell Douglas. We passed that, not knowing it was going to the Supreme Court. There was a period of dissent by my predecessor, Harvey Johnson. They, the primary holding of the Act is that he had filed, Percy Green, had filed, a charge with EEOC, on racial discrimination for a job, and EEOC did not find reasonable cause, and so the District Court, Judge Meredith, held that he couldn't raise that question. When it got before us, McDonnell Douglas argued that it had been tried by consent, and that was the farthest from the truth, we had no discovery on it. I think I quoted a passage from an old Hebrew statement that they tie our hands behind us and tried for not fighting back. And I think that was so true in that situation.
Well, the Supreme Court agreed with us, that it wasn't necessary to go ahead and have a reasonable cause finding, and that Green could raise this question. Of course Percy did a few other things. I was telling some of the panelists I was trying to run down what happened to the Green case after it got remanded, and I tried to get hold of Louis Gilden, who was the lawyer for Percy, and had tried many civil rights cases, and found out he passed away three years ago, so I called Percy Green, and I talked to Percy, and he told me that after the case was remanded by the Supreme Court, um, someone burned a cross on Judge Meredith's lawn, and so Lou Gilden felt under the circumstances he should recuse himself. I think the district judge should have recused himself, but he didn't. And they got another lawyer in to try the case, and Percy lost, and that was the end of it. They didn't try to go back up.
But Green versus McDonnell Douglas, I think, helped hundreds of thousands of people, the paradigm that has been used in that, is that all a black person has to show is that they are qualified for the job and they are black, and Percy did that. So we said that he made a prima facie case. The employer came in with a defense that he participated in stall-ins and lock-ins of McDonnell Douglas, and you've probably read it, and Judge Bright, who wrote the opinion, said that that was all subjective on the part of the employer, and that they couldn't raise it.
Well, the Supreme Court didn't like that language, said that they could. But they adopted the paradigm of setting up what the prima facie case was, the defense, and then the plaintiff has an opportunity to come back and show that the defense was pretextual, and I think that is a basic rule that governs most of these cases. Now one thing bothers me, and I think it bothers many people, and perhaps this shows you the change of perception.
I just came from San Francisco, where I sat a week with the Court of Appeals out there, and in the paper on Friday was a statement by Barry Bonds, a ballplayer, said he didn't like to play in Boston because of racists. There was a statement by an outstanding lawyer, and I wish I could remember his name, he is well known, who said that America is just as segregated as it ever has been, and that there has been no gain, despite the passage of the Civil Rights Act. Well, that is a perception. I -- I would disagree with that. I think we have made some tremendous strides, but I do feel there is still a good deal of segregation in the country, and it is -- it is a matter that perhaps, in light of what is going on in the country and the world today, it is kind of put in the background, but I'm concerned about what the courts are doing, and I did a little statistics on our court. We've had seven recent appointees, and most of the old court like mine, like me, have turned old, and we sit back, and we don't have a vote on many of these cases en banc. But I -- The statistics I'll give you, since April of 2003, we have heard 90 civil rights cases. Sixty-six cases were affirmed on summary judgment for the defendant; four cases were tried by a jury in favor of the plaintiff in our court, reversed. So out of the 70 cases heard, it seems to me that is a pretty startling statistic, and I think you might find that around the country. And maybe it is the wrong word to use, but I think that the courts of appeals have turned very conservative, and we see cases today that are not really in the spirit of what the Civil Rights Act intended to do.
There was a case just written by two of our judges where a burning cross was put on the wall of a place where a black man works, and his name is written on the wall, but some distance from the cross. Our court held that that was not proper evidence against the employer, because there was no direct connection between the black employee and the burning cross.
I -- I have -- I have no vote, but, um, I am trying to get those that do have a vote to change that case. There was a very, very strong dissent by Judge John R. Gibson, but I think that kind of sets the attitude of many judges that are on the courts of appeals, and I know that other circuits are having the same problem. So I think it -- I don't know what the answer is.
I think the answer lies in having stronger cases, plaintiffs doing more than just showing a prima facie case, and I -- I think the courts are very willing to go on with gender discrimination more. And the Supreme Court has written a great deal on that, we've written a great deal on that, and I've seen some reluctance by some judges about that, but I think they are much stronger on gender discrimination, which I think we are going to talk about tomorrow, than I do on racial discrimination, and I'm not sure why that is.
But I think it requires the spirit of people like yourself, being the hard workers in the field, better lawyers, to try to obtain a reversal of that trend. Thank you very much.
(Applause.)
WILLIAM ROBINSON: I want to thank the panelists for wonderful presentations, um, and I want to give the panel a total of five minutes to respond or react to any comments made by other members of the panel. Mike, you got a comment or reaction to anything you heard?
MICHAEL GOTTESMAN: Yeah, just a couple of very small things. Lest you think breaking the filibuster in the Senate wasn't a cliffhangar. Judge Lay accurately reported the vote 71to 29. Sounds like a rout, doesn't it? But in those days, in the Senate, to break a filibuster you needed two-thirds of all the members of the Senate, which means you needed 67 votes, So they got 71 finally to break the filibuster.
Think about the arithmetic. The senators from 13 states of the confederacy, if you will, were guaranteed votes against cloture, that is 26 votes, that left a margin of seven. If you had more than seven other people in the Senate who would not vote to break this filibuster, it couldn't be broken, and as he said, eventually there were only 29 votes, that means three senators aside from the southern senators voted for cloture.
The other thing I wanted to do is give credit where it is due our moderator, Bill Robinson. I think Bill Brown's account of how the resolution of the steel industry consent decree didn't take place until after his watch, when John Powell had succeeded him, in order, he suggested, to avoid the steel industry having to pay backpay, overlooks the fact that in fact the steel industry required some 36 million dollars or something in backpay, and the reason it did is because the EEOC's principal negotiator for the steel industry consent decree was Bill Robinson, who was, I have got to say relentless, he wasn't letting anybody leave that room until a big pot of backpay went on the table, and he got it. It doesn't sound like a lot of money by today's standards. It seemed like an awful lot back then.
WILLIAM ROBINSON: Thank you for those kind remarks, Mike.
And during the course of the negotiations, thank you for your help.
WILLIAM ROBINSON: Dave Rose, react to what you heard?
DAVID ROSE: I'm - I have some of the same feelings as Judge Lay about the appellate judges. I -- There is -- The only remedy for the problem -- There is no remedy for people who have already been appointed. They are going to stay, except possibly for one judge who was appointed in a 10-day recess, before whom I appeared recently, and who ruled against me in an age case.
But I think the -- If there is a remedy at all, it is a new president, and the president that will appoint judges who are open to what the facts of the case are, and what the statute is that they are construing, and that is something that used to be very common. It is not as common as it was, so I don't - Otherwise, I would tend to agree with his assessment, that most of the circuits are not open to ruling for plaintiffs in the greater majority of cases, even some of the cases being quite strong.
WILLIAM ROBINSON: Let me, as moderator, just comment that we are not becoming political here, we are, rather recounting statistics collected by noted scholars --
(Laughter.)
-- that chronicle the difference in frequency of ruling for plaintiffs in more recent years compared to the early years, and remember our focus here is on the early years of Title VII, um, and what was accomplished during that period of time.
David, you want to react to anything you heard?
DAVID CASHDAN: Yeah, I'd like to comment on a couple things. Julius talked about cost of litigation, and he talked about what kind of relief do people get when they get it?
Something that really changed, in terms of the enforcement of Title VII since the early days. When I started at the Commission, right after I left the Commission, there were no private lawyers doing any of these cases, except for those few civil rights groups, and wherever they could, they found some funds.
Today we now -- It doesn't include all of them, there are -- There is a group of plaintiff lawyers, 2000 strong, and they spend their whole practice is representing people under Title VII, and they are getting some relief, along with the Commission when it does its own cases, but the relief has changed, for the most part, in the individual case. In the early days, compliance, getting rid of discrimination, was really the heart and soul of the private litigation, whether it was articulated as an individual case, or as a class action.
With the enactment of the stronger remedies under the Civil Rights Act of 1991 amendments, with jury trials, compensatory damages, punitive damages, with local statutes that have those same remedies, um, cost isn't quite -- The cost is still the same, but, um, frequently, and partly it may be because getting summary judgment is often so difficult, cases turn very quickly into a mediation session or a settlement session talking about money, you know, how much is it going to cost us to get out of this case, how much money can we give to our charging party, and for some people who money is a great solvent, solution, but there is virtually you can count on your finger the number of settlements you get, or court orders you get with a relief that really involves something that goes towards the discrimination that caused the problem, and that is something that we all need to keep our eyes on.
There was a mention by Bill Brown of commissioner charges, and I am glad he mentioned it, because commissioner charges in the early days, particularly, were a way in which we could, even if we didn't have charges, or we had people who didn't want to come forward, that we could begin the ball rolling and begin to lay the predicate for some appropriate litigation by the civil rights group.
And finally I want to share a little anecdote involving my history in relationship to the AT&T case, because it is one I frequently tell.
I left the Commission just before those proceedings were filed to join a public interest law firm, and as a result of that, um, I had the good fortune of representing the amicus parties, the NAACP, the NAACP Legal Defense Fund, NOW, NOW DEF, there may have been a few other groups, and after the first day of the proceeding, my wife Linda was calling home to talk to her mother, and she recounted how exciting this FCC proceeding was, and that David was representing all of these civil rights groups, and there was a sigh at the other end of the phone, and my wife asked, "What's the matter?" And she said, "Oh, I was just wondering whose son-in-law is representing AT&T."
WILLIAM ROBINSON: Bill?
WILLIAM BROWN: I think that the one thing that strikes me, particularly with the 1970 -- I guess the 1972 amendments, but also the 1991 amendment, and Dave has already touched on it, and that is that there has been a tremendous change in the types of individuals who are representing plaintiffs in these cases. Ah, in the -- In the, what I would call the old days, I'm a dinosaur, so in the olden days, most of the attorneys representing the charging parties, the plaintiffs, were the traditional civil rights lawyers, and their major concern was not money, but rather changing the system, making sure that the systemic kinds of discrimination was corrected, eliminated.
Now, unfortunately, what you see is that it is the more traditional personal injury trial lawyers, and let me hasten to say that in my early days at the bar, I was a personal injury trial lawyer, and so it is not solely on knock on them, but you know lawyers who are much more inclined to worry about how much money can I get out of this case, rather than can I make some significant changes in the way that this particular employer does business? And I am not sure that is a good thing.
We read about these tremendous settlements in the hundreds of millions of dollars, but I'm not sure that that is reflected in the elimination of many of the areas still that I would view as being examples of systemic discrimination.
One of the major areas in the change that was brought about under the '72 amendment was for the first time we brought in, and had authority over universities and colleges, and I can remember calling together, oh, I guess about 15 or 20 college presidents, and explaining to them the new legislation, and how they would be now subject to it.
And you heard all this talk about academic freedom. And it was almost like I was committing heresy when I suggested to them that, one, they were going to have to disclose the salaries of all of their professors, and, two, we were going to take a very critical look at the tenure of professors.
We all know that historically women, particularly, have been far underpaid for doing the same kinds of work as the -- as their male counterparts in the colleges and universities, and they had a much more difficult time obtaining tenure, as indeed had many minorities, and it came to pass that I was right. But it is interesting that the attitude of some of those college professors, deans and presidents, that they felt that they were outside the parameters of the new regulations under Title VII. And now we have seen significant changes in the makeup of the colleges and universities on their faculty and in their tenure track.
WILLIAM ROBINSON: Julius, you want to say anything?
JULIUS CHAMBERS: Just quickly. I, in practicing every day, have become much more concerned that we are returning to that stage that we were in years ago. I have never seen people so intolerant and really so racist as what I have seen in the past few years.
Um, I watch schools resegregate, I watch employers much more reluctant to really provide opportunities for employees. We have had some progress, as Judge Lay has indicated, but we seem to be returning to where we were, and unless there is some renewed effort by all of us to make sure that we continue with what we were doing beforehand, I am afraid that we will have many more problems, and some of those that we described today will be repeated.
WILLIAM ROBINSON: My comments. Dave Rose speculated, or questioned how much good the trucking industry litigation had done. Well, um, back in 1970, Mike Baller (phonetic) and I brought an Atlanta class action lawsuit against Yellow Freight. Steve Murphy, the general counsel, called us up and said there is only one thing wrong with the complaint, it wasn't a nationwide class action, and if we would so amend the complaint, he would let us write the consent decree, which he did.
I didn't believe any of this till it happened. Twenty years later, in 1991, Steve came through Washington, and he took me out to lunch at the National Press Club. I asked him, "Steve, how are we doing under the consent decree?" He said, "Well, Bill, 1970, when you brought the lawsuit, we had at Yellow 1500 employees, and one black over-the-road driver who happened to be an over-the-road driver for a company we acquired in Chicago." And he said, "1991, the years have been good to Yellow. We've grown, we've acquired, um, we've got 7000 over-the-road drivers now, and 1500 of them are African Americans, and I would submit that that is really dramatic progress. Those are awfully high paying jobs, low entry level requirements, qualification requirements, and I -- I don't question the need for concern about re-trenchment, but that is dramatic progress.
Now, Dave, you also threw out a question about what happened in terms of the bringing of additional -- You commented you believe that racial segregation and hierarchy continues in the trade industry unions, and I think you are right about that. Um, you asked the question whether EEOC continued to bring additional litigation. I am -- I am not sure during my tenure after the hand-off we didn't bring additional litigation.
Um, but we did make an effort at monitoring those trade union cases, and it is my perception that that continues to be the case. Let me get Phil Sklover involved here.
Phil, what is the status on that?
PHIL SKLOVER: We are still monitoring cases. One case comes to mind is the case of MO Local 5880 of the Iron Workers, it was brought I think 1972, it is still pending, gone through several contempt actions. What has resulted is that in the last year, a 5 million dollar apprentice training center has opened in Long Island, which is a direct result of the decree in which many, many minorities will be trained in a structured way continuing the process of full integration of this formerly apartheid union.
Also, as a result of this decree, a software package to monitor the increase, the number of jobs, has been developed, and hopefully this software package will be distributed throughout the nation so it can be used to follow through on how well similar unions, similar locals, are being integrated to achieve the promise of Title VII.
Ah, it is like what Chairman Brown said, it is the tearing down of the structure, which has a lasting effect. I may personally wish that we could bring, or we brought more actions against construction trades, but we are, um, proceeding with what we have. Thank you.
WILLIAM ROBINSON: All right, Judge Lay.
JUDGE LAY: I just wanted to make one short comment. There is a procedural concern here that doesn't directly affect Title VII, but it certainly has an effect overall. I served on the Judicial Conference for 12 years under Chief Justice Burger and Chief Justice Rehnquist, when Burger stepped down. Both of them were concerned about the excess of litigation in the federal courts, and I think you'll find that Chief Justice Burger wanted to have all habeas cases, all civil rights cases tried in a state administrative agency first, and then before they come to federal court. We pointed out to him that he had sat on the Micro decision which said that that would be res judicata if they did so, so he kind of abandoned that, but it demonstrates how they want to cut down on the federal courts. And I think the most effective -- effective device that has come out of the Supreme Court is the Celotex [Corp. v. Catrett, 477 U.S. 317, 324 (1986)] case, which changed kind of the flavor of what litigation is in the federal courts. Justice Clark years ago wrote how summary judgment should be used very sparingly, because it deprived a person of their right of showing testimony, of bringing an adversary position before jurors, and so on.
Under Celotex, the Court now, and this was written by Chief Justice Rehnquist, urges defendants to file summary judgments in almost every case. And when I talk to you about the 66 summary judgments that have been affirmed in our court in the last year, those were all granted, the summary judgment was granted for defendants in the district courts. And the district courts are very concerned about their dockets. There isn't a federal judge in the country that serves on a district court that won't tell you he's too busy. And summary judgment is a quick way of getting rid of trials.
And so I -- I think this is a concern. I am not sure how you overcome that, other than having good lawyers who can adequately demonstrate that a case is not merited under summary judgment, and deserves a fair trial. There is all kinds of standards where a plaintiff, or the nonmoving party is entitled to all favorable inferences, and so on. But that still doesn't stop the overwhelming number of summary judgments that are going on in the courts, so this is something I think lawyers should be aware of, and that the courts are not anxious to hear your case, and that is too bad. Many district judges may sit here and deny that, but it is a fact, I think, that has to be dealt with.
WILLIAM ROBINSON: Um, thank you, Judge Lay. We have exhausted our time. I apologize to you members of the audience that we didn't keep our promise to give you an opportunity to mix it up with us up here. I hope that nonetheless, you have enjoyed the presentations from our panelists as have I. I thank the members of the panel, and I ask you to recognize them.
(Applause.)
GWENDOLYN REAMS: And I want to thank you all for coming out today. Um, to the beginning of our program. Don't forget that this program continues, um, tomorrow, if you are able to join us for the discussion on expansion of Title VII, with such issues as pregnancy, harassment and language discrimination, and perhaps you'll get an opportunity to hear what really went on, and how sex -- in terms of how sex got added into Title VII, which Professor Gottesman mentioned.
And that is more of the subject of that panel, and the panelists have started to talk about the 1991 Act, and damages, good or bad, and of course that is the subject of our panel next week.
I want to give special thanks to Barry Hartstein of the American Bar Association EEO Committee, which jointly sponsored this program, and offered significant support to us.
Our thanks -- special thanks to Georgetown, another co-sponsor, who has helped us to plan the program here, and all three programs being held here, as you know, and I also want to give thanks to co-sponsors D.C. Bar Employment Section, and also the Lawyers Committee for Civil Rights, another co-sponsor.
Um, I just want to remind you that the commemorative program, we hope you'll keep it, but if you decide that you don't want to, we have a box outside that you can place it in.
Thank you for coming, and we hope to see you at some of our other sessions.
(Applause.)
(Whereupon, at 12:15 p.m. the proceedings concluded.)
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