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DIANNA JOHNSTON: Good morning. I am Dianna Johnston. I'm a member of the Organizing Committee. On behalf of the Organizing Committee, we'd like to welcome you all here. I think we've got a very exciting program ahead of us. I want to go over some housekeeping details and a few other things. I'd also like to recognize Commissioner Ishimaru, who is here today, and with us as this series of panels celebrates Title VII's Impact on the Realities of Workplace Discrimination by focusing on three distinct phases.
Yesterday, we focused on the adoption of Title VII and initial legal developments. Today's panel is going to focus on the expansion into areas, especially language discrimination, pregnancy discrimination, and harassment. Because we want to devote all of our available time to this program, and I don't want to repeat all of the information that is in your program, you will find a very detailed discussion of what the panels are about. And thanks to Carolyn Wheeler, it includes a wonderful historical overview of the developments in Title VII.
For housekeeping details, the first thing is please turn off your phones and pagers, or at least set them to vibrate. Restrooms are outside of the moot courtroom area upstairs. At around 9:30, there will be a 20-minute break, and there will be coffee and refreshments at that time.
There is going to be time for questions at the end of the program. Um, we -- You have been given cards when you came in. Please write your questions, and the ushers will collect them on the break, or perhaps even after the break. If you write something down, and hold your hand up, an usher will and come pick it up. Also, we're going to leave some time for oral questions at the end, if you haven't had time to write them down.
Ah, one thing I wanted to note is that Maria Blanco, who was on the program, had a last-minute conflict, and couldn't join us today. But without further ado, I would like to introduce Judge Lloyd Zimmerman, who will moderate today's discussion, and he will introduce the other panelists as they join the discussion.
Again, in the interests of time, I am not going to go over all of the accomplishments of our panel's members, because they, too, are in your program. Thank you for joining us.
JUDGE ZIMMERMAN: Good morning. We have a star-studded panel here, and I am going to leave it to you to read the booklet, which has everybody's biography. If I talked about just why I think the people here are star-studded, that would take us to about 4 o'clock, I think, so I'm going to start out right away. We're going to launch into the sexual harassment area first, and I'm going to start out talking -- throwing the first question over to Jean Boler over on my right, and your left, and, Jean, you spent 10 years of your life as lead counsel litigating the Eveleth Mines case, which was the first sexual harassment class action in the country I believe it was 4500 hours of your life, it was three trials, and most days of deposition, and it ended up in a nationally pathbreaking and seminal court of appeals decision, wisely written by Judge Lay on the other end of the table here, where the Court of Appeals from the Eighth Circuit, and I say wisely in your favor, and the book was nationally - the case was national news all over the country. It was in the "Washington Post," the "Wall Street Journal," there was a book, "Class Action," which I commend you, now out in paperback and a major Warner Brothers motion picture movie, now being made, directed by Niki Caro, who was the director of the movie "Whale Rider," so, Jean, I think it is fair to say you are one of the nation's most celebrated and leading experts on these issues. Jean, apart from the fact that you took a sabbatical from the practice of law when this case was concluded, a brief sabbatical to write fiction, what lessons can we learn from the Eveleth Mines case?
JEAN BOLER: Thank you, Lloyd, for the introduction to my question. Um, well, I think that the lesson that I take away from the Eveleth Mines case is in the many trials that we had in that case, is that great victories really come at great cost. Um, the great victories that we had in the Eveleth Mines case were three ground-breaking opinions, which followed each one of our three trials in the case. Um, for those of you who aren't familiar with the case, just briefly, it was a case brought by women miners in northern Minnesota, who claimed that the environment at the mines was a hostile environment that affected all the women that were working there. And this was the first time -- The case was filed in , and it was the first time that we approached, we being the plaintiffs' lawyers, approached a case as a hostile environment for all the women that worked at the workplace, that the case was followed then by the Mitsubishi cases and some other cases that followed that same theory; but this was the first one, and, um, we had a class certification trial that lasted a couple weeks, and we got an opinion from that trial that indeed hostile environment can be a class action claim.
JUDGE ZIMMERMAN: The first in the country, right, Jean?
JEAN BOLER: The first in the country where we got that decision from the district court.
Then we had a first phase liability trial a couple years later, which was also ground-breaking, in that again the court re-affirmed that this indeed was a hostile environment that affected -- could affect all the women that worked at the mines, and relied on some stereotyping expert evidence that helped to, through psychological and sociological theories, show how a culture could develop in a workplace that was hostile to women.
Then we went into the damages phase of the trial, and that was a very long, drawn-out phase in which the women were basically put on trial. Ah, we had a magistrate that was very liberal in his view about discovery in sexual harassment cases. We had women who had their psychological and medical histories discovered back to the day of their births. We had a six-week trial which focused mainly on the women and all the other problems and troubles they'd had in their lives, and at the end of that trial, we got very minor damages from the magistrate.
That report and recommendation of the magistrate was affirmed by the district court judge, and then we appealed to the Eighth Circuit, where we got a full reversal from a panel in which Judge Lay wrote the opinion, and again wrote some really significant law about burden shifting, and about who has the burden in a sexual harassment case, when there is psychological damages claimed, whether it should be -- the burden should be on the defendant to show that there were other causes of the harm, rather than the women to show that there weren't other causes to the harm.
That was the -- That was the great victories that we had. But on the other hand, there was the great cost, and that great cost actually was paid by the women, the plaintiffs, um, and as a lawyer in the case, the case took years, and I saw part of what the toll was on the women, but I could focus on the legal claims and the advances that we were making as lawyers, and, um, so I could tell myself that what the -- the price that these women were paying was something that was -- was worth it in the larger scheme of things.
Um, it wasn't until later that -- when I actually read the book, and found out some things about what had been going on with the women, in addition to what I knew, that I really appreciated how much a cost it was to the women, um, how the women, especially Lois Jensen went from somebody who when I met was a young woman with a lot of enthusiasm, a ready smile, somebody who thought she knew what was right, and wanted to pursue that, to a woman who was virtually disabled, um, on a lot of medications, Kathy Anderson, who was also a plaintiff in the case, similarly was broken down not only by the harassment in the mines, but also by what they went through in the litigation process.
So, um, again, the theme to me, the great theme to me out of the Eveleth Mines case in particular is that there are the plaintiffs, the people that are the ones who are the foot soldiers in our quest to make the work environment better for all women, and that those people oftentimes are the unsung heros, the ones that actually pay the price for the advances that everybody makes, and that that is something that as lawyers and people that work with women and try to advance their causes, that we should -- we should keep in mind, and we should be very thankful that there are people that are brave enough, and, um, principled enough that they continue to pursue what is right, despite incredible odds and numerous setbacks.
JUDGE ZIMMERMAN: On the topic of principle that is right, let me turn to Judge Lay, who has had a distinguished 38 years on the federal bench. I think he has been on the bench as long as -- just about as long as Title VII has been in effect, and yet such a young man.
Judge Lay, you wrote the seminal and wise Eighth Circuit decision in Eveleth Mines issued in December of 1997, and by my Westlaw check last Friday, I think it has been cited in over a hundred cases thus far around the country. You selected the case to be argued at the - at a law school packed with over 300 students, and when it came out, I remember the "Wall Street Journal" hailed this as a major -- a major wake-up call for employers around the country. And, judge, when you wrote this decision, you used some language that I think it might be fair to say was uncommonly strong. You wrote in Eveleth Mines, in your decision about, quote, a record of human indecency, you wrote that
the -- that the case was about a record of indecency that, quote, sought to destroy the human psyche, and sought to destroy the, quote, human spirit of each of the women, and you wrote that this case can help to serve as a precedent so that, um, in the environment of working women, this type of harassment will in the future not be tolerated.
Judge, this was stirring language, was it not? And what moved you about this case to use such stirring language?
JUDGE LAY: Well, I think once you get into the record of this case, um, it kind of gets under your skin to see what took place in the mines. It is interesting to - It is interesting to me that the magistrate who held this case, he held a seven-week trial, he wrote a 476-page opinion, there were over 7 thousand pages of transcript, and I believe took about four years to get it out.
But the magistrate used one phrase that I think is pervasive as to what took place in his opinion, and that was that the harassment was the culture of the mines, and that there was really nothing that could be done about it. And in -- I think that attitude, particularly today, in the timing of -- of the, um, passage of the Civil Rights Act in '64, would make anybody concerned about what was going on here, and how this was really affecting the whole country. And there is a phrase in the -- in our opinion that points out that much of this harassment was due to discrimination, discrimination by the men in the mines who felt that women, and this is in the transcript, that women were taking men's jobs away from them.
And so it was justified on the basis that they could harass these women, and try to get them out of the mines.
And so I think that that is the basis of the opinion. Now, you know, it is easy to say that this is a pearl of a plaintiff's case, and that I might, and the panel that was with me on a unanimous panel were maybe pro-plaintiff, but there is another phase to the opinion. In -- We followed that up in two other cases, one case I wrote called Eich, and that is that -- that women have as much right in the workplace as men, and that if employers want to have a decent environment within their workplace in order to achieve proficiency and effectiveness, ah, they must do everything to try to get rid of this kind of harassment.
And the Supreme Court has just recently written in a case called Pennsylvania State Police versus Suders, and I invite you to try to find that, I just gave Jean a copy of my opinion on that, and I don't have a cite on it, but it came down maybe two or three weeks ago, and in the Suders case, they repeat what employers have to do in an affirmative defense where there is harassment.
And of course there is a two-part phase to these cases, because most of them end up where there is a constructive discharge, where the harassment is so great that the women quit their jobs, and then they bring the suit. Pretty hard to sue them, I think somebody said yesterday, and still stay on the job.
But -- So most of these cases come up in a constructive discharge basis. But in that case, they sum up how employers must set up grievance procedures, and if there is harassment, women must go through these grievance procedures. And if they fail to do so, that can be an affirmative defense. But to me, you know, I said yesterday, "We're in an adversarial position." And different people come at us from both sides. And just as in the Eveleth Mines case, there is a strong defense raised.
But this -- In an adversarial position, or in an adversarial litigation, I should say, I think we have to be fair to both sides in what -- what happens in Jensen, what happened in the Eich case, is that we strongly point out to employers that they must do something if they want to have an environment where they hope to get the job proficiency, and get the job done on the workplace, and this kind of interruption in what we've in the mines, and if you ever have a chance to read what was taking place in the mines, touching, kissing, all kinds of propositions, um, harassment in the form of trying to have sexual contact in the mines itself, ah, this is kind of -- This kind of condition was going on for years, and as the magistrate said, this is -- this is the culture of the mines.
JUDGE ZIMMERMAN: Judge, you use that strong "human decency" language in Eveleth Mines, and you use it again in the Eich decision, which I think was in December of 2003when that came out. How are you with your compatriots on the federal bench? I read a dissent the other day where a dissenting court of appeals judge from another part of the country in a harassment case said: These cases are not about human decency at all. It was more of a technical analysis, and he was inclined toward the employer. Did you get any criticism from your fellow judges, either locally, or around the country for using such stirring language?
JUDGE LAY: Well, in the Eich case, and it may be somebody else has picked up the dissent, but the dissent starts off "This case is not about human decency, it is about discrimination." Well, that is ridiculous, and he berates me and our panel majority for holding that we divided, or decided this case on the basis of what I suppose morally is decency, and what is indecent. But as I say, the root of all these cases, lies in the area of discrimination.
Now, there is one thing, and this was in the Eich case, where there was an attempt to put this case en banc, and that is whether or not the facts themselves are pervasive enough, and that is the language the Supreme Court uses in the Meritor case, and the other cases that the court has had, whether it is pervasive enough to constitute harassment.
Well, Justice Scalia said, "Well, you know, these are kind of ambiguous terms, and it really is for a jury to determine that."
But the dissenting judge, Judge Smith, um, wrote his opinion, and said it wasn't pervasive enough as a matter of law.
And if you get a chance to read Eich, there was all kinds -- This young woman was a security guard for a state university down in Missouri, and there was all kinds of touching and rubbing and performing simulated sexual acts in front of her, and rubbing her knee, and running their hands, the supervisors, running their hands through her hair and down her body. And to say that wasn't pervasive enough, the jury thought so. They gave her $220,000
.
But the trial judge took it away and held as a matter of law it wasn't pervasive, and that was Judge Smith's analysis. We restored the verdict.
JUDGE ZIMMERMAN: Judge, I don't know if you can answer this question in public, or if you're comfortable, because I don't know if this is supposed to be a secret, but there was a motion by the company in Eveleth Mines for a rehearing en banc. How close did the company come to getting that rehearing? Can you tell us, or would you rather not answer that question?
JUDGE LAY: No, I think it is public information. It was close. I think we won by one vote. I don't think Jean knows that.
JEAN BOLER: And Judge Logan didn't vote, so we were even.
JUDGE LAY: I called him up the day before and reminded him his firm was in the suit.
(Laughter.)
JUDGE ZIMMERMAN: Let me turn to Jocelyn on my right. Jocelyn, you are the Director of Legal and Public Policy for the National Partnership for Women and Families, and you also are the co-chair for the National Employment Task Force of the Leadership Conference on Civil Rights, and I understand there are over 200 organizations, civil rights organizations, aligned in that task force, so I think it is fair to say you really have your finger on the pulse nationwide of what the civil rights movement is thinking and doing, and the direction that it is heading. Jocelyn, what can you say about the impact of cases like Eveleth Mines, and what difference would you say that it's made for working men and women in the workplace, and also the efforts that employers might make to try to prevent harassment. I know that is a compound question, but give it your best shot.
JOCELYN FRYE: Thank you, and thank you for the introduction. Good morning. Um, I think there are a couple things I would say. The first thing that I think is extremely important about the case, is that it really tackled head-on systemic practices in the workplace, and I think for purposes of thinking about discrimination, it is important to have that principle out there on the table that sometimes discrimination can be so bad, that it is not simply an individual matter, but it affects the entire workplace, and it was an important principle and important theme for both employees and employers to see that there was a strategy and a vehicle for actually getting at systemic practices. And I think in sort of thinking forward, ah, that is an area for, um, continued aggressive advocacy. It is a way -- a very effective way at remedying discrimination, so that is one important piece.
Um, the other important piece is that in some ways, the case sort of foreshadows where we are right now, when you think about Faragher and Ellerth, and the broader theme of putting some burden on the employers to really look closely at their workplace, and try to make sure that it operates free of discrimination.
Um, you know, the company in that case tried very hard to fight, obviously as you've heard, the basic principle that they had some obligation to really make sure that their workplace was one that was fair to everybody.
And ultimately we can't bring enough cases to remedy those problems, so we have to set a standard that gives employers some incentive to make sure that their workplace is free of discrimination, and I think that these types of, you know, big class action litigation cases are a very powerful message to employers, ah, that they need to pay attention to this issue.
The other important theme that I don't want to lose here is that the case was about getting women into non-traditional jobs, and these are jobs that often are higher paying, they provide some level of career advancement, and clearly part of what was going on here was a resistance to women getting into what was perceived to be men's jobs, and that is what the Civil Rights Act was all about. It was breaking down those barriers, and trying to expand job opportunities for everyone. And, um, that is an important ground-breaking principle that, you know,maybe not everybody wants to work in the mine, but there are women who do, and those women should have the same opportunity, not simply to get there, but to be treated fairly, and it sort of set the tone for many other types of cases where women were going into jobs that people perceived to be non-traditional, and that is important both for employees to know that they, you know, have that ability, and the law will back them up, but it also important for employers to recognize that maybe the way you have been thinking about your employees ought to change. That there are a lot of folks who are competent and capable of doing certain types of jobs, and gender ought not be the factor that you use to make that decision.
So I think all of those things are linked to Eveleth Mines and sort of the cases that came after that, that really tried to tackle some very fundamental problems of sex discrimination in the workplace.
JUDGE ZIMMERMAN: Melissa, let me turn to you. You've traveled here all the way from the great city of Chicago, where I was born, and that is not why I say it is great, but you are the Director of EEO Policy for Women Employed, and you do research, legislative assistance, um, legislative activity and counseling for women at Women Employed, and also you personally have also served either as the decree monitor, or worked on the monitoring of some of these huge consent decrees, the groundbreaking Mitsubishi case, too, Ford, Dial.
Now Eveleth took 10 years to litigate, and what would you say from your perspective, what is the lesson in the litigation wars in like Eveleth where the plaintiff ultimately prevails after the employer spends millions on defense? And do you need these scorched earth battles where the employer spends millions for defense, and then ultimately spends millions -- I think the employer spent multimillions ultimately, right, Jean for the women, too, what is the lesson in these scorched earth battles where the employer spends millions defending, and ultimately then pays millions in tribute. What is the lesson for other employers, from your perspective, in terms of encouraging voluntary resolution?
MELISSA JOSEPHS: Um, I think that the first statement I just want to make about, um, employers, and whether they comply right away, that they do the right thing, or whether it takes a long time, is that I think a smoking analogy is appropriate, which is I think there are some people who have just never smoked, and there are certain people who smoke, and then they realize either because they have cancer, or a family member has cancer, and that is enough for them, and they are fine, I'm going to give up, and then as we all unfortunately know, there are people who have cancer, are sick, and continue to smoke, and I think, without emphasizing it too much, that is the way a lot of employers are. Some just do the right thing right away, and others never do.
One example of this is that actually Women Employed was involved when we first started in a lot of organizing efforts to stop blatant discrimination in everything from banking, to corporations and insurance companies. And that is what we found, is sometimes we would organize an effort, and have an action, or meet with a company, and they would realize, oh, yeah, we have been doing this, and I don't know how it happened, we're going to stop, and then some people may be familiar with a very lengthy case, um, against Harris Bank, and it actually wasn't brought under Title VII, it was brought under the Executive Order 11246, but that case took 14 years before it finally settled, and it was multimillion dollars, and affected thousands of people, and was a sex and race case. And that case, I think it was a combination where the bank didn't want to do the right thing. The bank, I don't think, was getting very good advice from its attorneys because they, you know, they -- Well, you know, this is how long it took. And so, um, so I think, though, that now with so many of these cases, we do unfortunately still see a Mitsubishi 10 years or so, you know, after Eveleth Mines and you would think, you know, why -- How is that environment allowed to exist to affect probably as many people, it's just so pervasive, and it was the culture, as Jean pointed out, but I guess the positive side of that is that it didn't wind up in a 10-year lawsuit, it wound up in a consent decree, and the same thing with Ford Motor and with Dial Soap, because all those cases settled.
Um, so -- And I do think that a lot of employers are getting it before it even gets to a lawsuit stage, and I don't know if there are many management side lawyers here, but it is my understanding that one of the reasons that employment management side firms now are creating separate divisions of like technical assistance or consulting is because, you know, they need to bill, and they are not getting the billing, in terms of defending, because I think a lot of their employers are doing the right thing, and what they are doing is creating, like I said, separate divisions, where they do prevention training, or help write a policy, and really instill in them all of this prevention, and that to me is really the crucial thing that if it is not already obvious, um, and I know we are going to get into this a little bit later, we don't want this to happen in the first place, you know, as Jean so aptly pointed out the impact that it had on the women, not only the harassment, but then suing, no matter how much money you get out of it, it is not going to take it away, so prevention really is I think is the most important thing, and a lot of employers are getting it, at least if not right away, sooner than before.
JUDGE ZIMMERMAN: Is it fair to say that part of the prevention is knowing that the sword is hanging over the employer's head, and at Women Employed -- you, and Women Employed have served as a decree monitor, as I said, in these big class action cases, and at Women Employed, part of your job is to be an advocate for the development of the law, to speak for women, to talk about the effective enforcement of the law. What can you say from your perspective about the role of the United States Equal Employment Opportunity Commission in eliminating harassment in the workplace, and bringing these large class actions, and putting the weight of the Federal Government behind the law, and making it real? I'm a little biased here. But what do you say in your unbiased impartial position, about the role of the EEOC, in making the law real, and in having the courage and the will to bring these cases?
MELISSA JOSEPHS: Well, yeah, I do agree with you, and I do think it is so important that the government have the resources to identify and develop these class action cases for the obvious reasons that, um, it really supports the theory of, you know, there is strength in numbers, and that is both in just identifying and determining that there is discrimination, as well as in getting the employer to do the right thing, because the employer is going to listen more if it is a class case, or if, as you pointed out, that they realize the extent of damages that they are going to be responsible for.
So, you know, and particularly in a sexual harassment case where it isn't quite as black and white as an equal pay case, where targets do respond differently, and we did find that in these Mitsubishi cases when we talked to women, that there are a lot of women who to this day work at Mitsubishi and say, "Oh, yeah, I never saw harassment," and weren't particularly supportive. They wouldn't say that they thought there was a sexual harassment environment or culture, because, I don't know, they just, they didn't perceive this as problematic, and so because it is such a subjective thing, and it is defined by the target's perspective, something like this does need a lot of time, and does need to be developed, and so I think it is very important that EEOC continue to sort of have the resources, and continue to develop those kind of cases.
In terms of whether it makes a positive change in the work environment, I don't know if there is anybody here who has worked in that kind of non-traditional environment, particularly after a lawsuit, because, you know, you would say: Well, it was -- If you felt there was harassment before, it was obviously really bad before the lawsuit, and then let's say after a settlement, a lot of times people would also feel that it was really bad, because you have this pendulum shift from really horrible harassment to now a lot of these people aren't talking to one another at all now, they are so concerned, particularly the men of, oh, anything I say, any way I look at someone is going to be perceived of as harassment, and I'm going to be fired, and in fact to some extent that is true, because what we see is right after a settlement, employers are much stricter about the discipline that they invoke, and which they probably should have done all along, but now -- And so all it takes is one person being fired for everyone to say, oh, you know, I can't say good morning to anybody anymore, so the pendulum shift goes to the opposite, and then it is not an enjoyable workplace for anyone, but eventually it goes back to a good work environment, if there is this, not just a settlement, but as EEOC has been doing in a lot of these cases, really putting in place monitoring efforts, training requirements to make sure that this problem isn't just solved with a check, and then re-surfaces, but that for years, um, the company is really monitored in the kind of investigations that they do, to make sure that the policies are actually in place, um, and that particularly women are -- there is no retaliation, that, um, that that -- that is as important, prevention and avoiding retaliation either against the women who filed suits, or in the future against women who file, that the company really has a commitment to eliminating discrimination.
JUDGE ZIMMERMAN: So having the United States of America behind you can make it a less lonely fight, having the broad shoulders of the government supporting you can give you some additional strength?
MELISSA JOSEPHS: Yeah.
JUDGE ZIMMERMAN: Let me ask you, Judge Lay, you've sat on many panels in your distinguished 38 years, and have you had cases with the EEOC, either as plaintiffs, or amicus, where you have seen the EEOC attempting to develop the law around the country through the appellate court process, and do you have any comments about that?
JUDGE LAY: Well, I know I've had cases, and I can't recall -- Cases become like streetcars in the night to me, ah, but I know that we've had many cases where the EEOC has been a party amicus, and I think their briefs are very helpful, and they certainly have a great influence upon the panel.
Ah, this lies mostly in their interpretation of their regulations and of course under the Chevron cases, we must give great deference to the agency's own interpretation, and I think it is very helpful to have the EEOC come in where we have cases of import.
Now I was asking Jean my recollection was that they did not come in, in the Eveleth Mines case. Um, we did have amicus briefs from the NOW group, and amicus is helpful, but sometimes you can get too many. I think I just sat on the assisted suicide cases out in Oregon, and I think we had over 100 amicus briefs. I know the Supreme Court, in many cases, they get close to 100 amicus, you just can't read them all, and many of them simply are repetitive.
But I think the EEOC stands out, and so I -- I encourage the EEOC to take part. I know that we've had some cases where they've brought suit, and -- But I, again, can't name them, and those are in an adversarial context, and I can't really tell you; but I have always found whatever the agencies have filed, ah, have a tremendous influence upon the court, and so I encourage the EEOC to continue that kind of contribution.
JUDGE ZIMMERMAN: Jean, if we go back to how these cases get started with one or more people having the courage to step forward, say it ain't right, to have the courage to file a charge with the government, is it true, as I was reading in the book "Class Action," that what Lois Jenson wanted, and she was the lead plaintiff, what she wanted was a meaningful policy to make the harassment stop. Did she get it, and what did you have to do to finally get it?
JEAN BOLER: Well, it is one of the big ironies of this case, and I think maybe because it spanned so many years, we saw different changing attitudes as we went through the case. But originally, um, Lois Jenson wanted a policy against harassment with somebody to complain to, and some guidelines for the men to understand what sexual harassment was, and about $10,000. And years later, um, the company paid out over 15 million dollars to their own lawyers and to the litigants, and, um, ultimately, at the - in 1993, um, Judge Kyle, after he found that in fact there was a pattern of practice of discrimination, that there was a hostile environment that affected all the women, ordered that there would be a detailed injunction entered that would detail what the policy against sexual harassment would be, and in response to his order, we prepared, um, what we thought the policy should be, and then the Eveleth Mines' counsel came in and said, "No, they didn't think the judge should order an injunction. That they were now -- They had made -- voluntarily now had instituted a policy."
Which "voluntarily" used in that context was quite strange, but -- And the judge said, "Okay." He backed off at that point, and my suspicion has always been that Judge Kyle got some negative feedback based on the really strong and brave opinion that he had written condemning what was going on at Eveleth Mines, and so in the end he let the company come up with their own voluntary policy, which was, in fact, fairly extensive at that point in time, but I think what it became a symbol to Lois, that she really wanted the court to order something, and it was always a great disappointment to her that the court didn't finally give her the injunction. But it was -- I think that it does show, um, what the changes have been, based on what Jocelyn was talking about, that when the women went to the mines in 1975, which was when they first started hiring women, and they were never more than percent of the workforce in the mines, um, the attitude there was this is a man's world, um, and you have to -- You have to adjust. We don't have to adjust.
There was this constant refrain that women would be told: You know, if you want to work like a man, you have to learn to piss like a man, and that was in relationship to using the outdoors, rather than having facilities for the women.
But that was the deep resistance, was that these women were intruding on their environment, and they didn't have to change. You know, if the women want to be paid that much to work there, they were the ones that had to adapt. And I think that we did come a long way through the course of that litigation where companies now do realize that it is the law, that they not only hire the women, but then when the women get there, that they make the environment such that they aren't forcing the women out.
And so that policy, though, was a big symbol to both sides, and the management of the mines just wouldn't give in on that until ultimately they were ordered by the District Court judge to do it.
JUDGE ZIMMERMAN: Melissa, let me ask you, as we were saying, at Women Employed, you get thousands of calls every year. Do women just want a policy? Do they want the harassment to stop? Is it about money? Do they -- Do they pursue it after they talk to you? Have you done surveys to see what -- What do women do after they talk to you? Do they go the extra mile and fight the good fight, like Lois Jenson, or what is your experience with how much suffering and struggle women are willing to go through to make the harassment stop?
MELISSA JOSEPHS: We do find that, whenever we get a call, we always ask the person what it is that they want, and everyone to a person says: I just want it to stop. I want it to go away. I didn't ask for this. And in more and more now we are also getting, in addition to that, and I don't want to be punished again, I don't want to be transferred, I want to keep my job, because it does surprise me that we are still getting stories of harassment, and then the target of harassment is the one who is transferred, even during the investigation, before anything is resolved, so obviously that is wrong. But we did do a survey several years ago of people who called our office with sexual harassment complaints, and asked if we could follow up with them. And we did find that people -- This was probably about 10 years ago, so, um, it was before Faragher and Ellerth, and we did find that people who complained, whether it was internally, or to an agency, were met with resistance, or they were just ignored, um, and a lot of people who complained, about 50 percent were fired, or had quit as a result of the harassment.
So it was, um, you know, really a horrible experience for them, and though we certainly let people know about the enforcement agencies that are available in Chicago, besides the EEOC, there are other local enforcement agencies, and so with different jurisdictional requirements, so people have various options, and we have attorneys we can provide them, if that is what they want. I don't follow up to know how many take -- even the call, you know, the next call of calling a lawyer, or going to the EEOC, where we always explain: You don't need a lawyer, you know, the whole idea is to settle. Think about what it is that you want. But not everybody wants to go through it. We do warn them that it is time-consuming, and it can be expensive and more difficult, and so it is -- These are really tough calls, because here is someone who has already been punished for not doing anything, and now they might have to go through something else, and so, um -- And even -- There are very few people who are inspired by a damage award, because, you know, you do a cost-benefit analysis, even if you get $50,000, or $100,000, but it takes 10 years to get it, and everything you went through, um, you know, it is like the credit card commercial about here is what it cost to go to a baseball game with your dad, or something, and then, "Oh, but the time with your dad is invaluable."
But, you know, it is the same kind of thing. You can't really put a price on it, even if you get some money back, so we do think that the goal is obviously is in prevention, and stopping this in the first place, and so, um, but at the same time I think prevention is important, I hope more and more employers are doing it, um, I don't know if it is not too cynical to say this early on in the panel, I don't think we are ever going to eliminate harassment. I think there are things that people can do to nip it in the bud when it surfaces, but, you know, I don't know if other people may want to comment on that.
JUDGE ZIMMERMAN: Let me just ask Jocelyn, when I used to teach in this area, I sometimes say we had the -- This country has the best harassment law since the time of Rome, and because are we unique in the world, do you know, Jocelyn, I'm not trying to put you on the spot of being a worldly scholar, but from your perspective, with your finger on the pulse, does this law work, and is this country at the forefront in the world in trying to deal with these issues for working women?
JOCELYN FRYE: Well, I am not a scholar on all the world approaches to sexual harassment. I think that Title VII is an excellent tool for remedying discrimination, and I think it is the right tool, so I've never spent a lot of time trying to replicate other models out there, you know, some other country that has done it better.
You know, I certainly wouldn't put it past, you know, any other country to come up with innovative approaches to the issue, but I think that we have the right tool. I think it is really just a question of implementing it, um, vigorously, and I think that there is something in there for everybody. Basically what the law does, is it strikes a balance, and it says on the one hand we want employers to do the right thing. They have an obligation to make sure that their workplace is free of discrimination, and to ensure that everybody in the workplace has an equal opportunity to succeed. Um, it puts some burden on employees to take advantage of the options that are available, the mechanisms that are available to try to address discrimination, and also some burden on employees to try to make sure that they adhere to the law, and the law is ultimately grounded in some very fundamental principles that date back to our roots of equal opportunity, and equal treatment of people in the workplace. And so for all those reasons, I think that the law is sort of uniquely suited to us. Um, just as, you know, laws ought to be.
So I don't spend a lot of time sort of trying to figure out if, you know, some other country out there does it better. I spend more time trying to figure out, you know, is there a way for us to do it better, because while, you know, we have a good law, it is all in the implementation. And sometimes we do a good job, and sometimes we don't.
Um, we can do more vigorous enforcement, but employers can also spend a lot of time, you know, doing a better job of making sure that their workplaces are sound and effective and, um, free of discrimination, so I tend to focus on, you know, what can we do to make this law work the way that we want it to work. I think that the principles behind it are sound and solid, and that, you know, I don't have a problem with the words in it. And I, you know, am not sort of looking to replace it with something else. I think we just need to enforce it and try to make the promise of the law a reality for all folks in the workplace.
JUDGE ZIMMERMAN: My distinguished Congress person to my left, you were in Congress for four terms as part of your illustrious career, and you've written a book, which I've enjoyed reading, which is, "Who Said It Would Be Easy?" which I think is sort of an apt description of what we are talking about here today, and you were in Congress when the EEOC wrote its regulations in 1980 stating that sexual harassment was a violation of the law. And you were in Congress when Meritor Savings Bank came out, and you were an instrumental co-sponsor of the pregnancy discrimination law, which we'll talk about after the break. What if the Supreme Court had said in Meritor in 1986 that the EEOC got it wrong, instead of got it right, and what if the Supreme Court had said that sexual harassment was not sex discrimination?
If you look back at the legislative history, sex was added at the last minute. There wasn't a lot of discussion about it. Would Congress have had the will to do what it did with the pregnancy law, and say that sexual harassment is sex discrimination, if the question had come to the fore?
ELIZABETH HOLTZMAN: Well, of course it is not particularly easy to look into a crystal ball about the future. I don't know how easy it is to look at a crystal ball about the past. Um, I don't really know the answer to that. Ah, I think if we look back at Congress' efforts to, when I was there, to undo the -- how do we say, the extraordinary decision of the Supreme Court in Gilbert took almost two years to get that overturned, and that was on its face absurd, ludicrous, and we made fun of it at the time. So - And also there were a very small number of women in the Congress at that point, too, I should tell you, so it is very hard to say. I think one of the interesting things about your question is the extent to which it shows that sometimes you need leadership. I mean one of the -- One of the strengths of separation of powers, if you will, is that there can be leadership in different parts of our government, sometimes where you wouldn't expect it. I mean here we had the Supreme Court deciding about sexual harassment, and that it was sex discrimination under Title VII. Could the Congress have done that? Would it have done it? Who knows. And so, ah, in any case, it is fortunate that we have it, um, but I -- I just wanted to respond, since you asked me this, but I would just say to the last question that you asked about Title VII, ah, I am not -- I -- I'm glad it happened. I wasn't there. I might look like I was, but I wasn't there when it was -- when it was adopted. I don't know whether it was adopted -- The history we always have been told was that it had been the term "sex" had been added as an effort to scuttle the whole Civil Rights Act. Now we understand that that may -- that that learning may be untrue, but be it as it may, it is lucky that we have it. But I could just tell you my own experience when I was District Attorney, and we weren't covered by Title VII, not only did I find blatant discrimination, I had the right to hire and fire the 400 lawyers in my office. There was no Civil Service rules -- There were no Civil Service rule that applied. This is in 19 - 1980. There was total blatant discrimination on the basis of race, this is a government agency, and total blatant discrimination on the basis of gender. And in fact, there was sexual harassment going on. One good thing about being the boss is that you could make the difference immediately, which I did. But I would say with regard to the issue of sexual harassment, is that many women, when we investigated a serious case of sexual harassment, some -- a woman did complain about, ah, we found in the course of that investigation, that there were numerous other women who simply didn't have the confidence that anything would ever be done about it to come forward.
So we just see the tip of the iceberg, and it is very, very hard for women to come forward, and many, many don't for a whole variety of reasons, most of which are completely understandable. But that means that the burden on employers, and the burden on government is much, much greater, and we haven't won that fight, and we will, but we haven't won it yet.
JUDGE ZIMMERMAN: Elizabeth, I was reading this in your book, that when you ran for the District Attorney in 1980, is it true that your opponent actually ran a radio commercial featuring a woman with a distinctive Brooklyn accent, you ran in Brooklyn, and the voice was, "My name is Goldy Abramson, Liz Holtzman," I don't have the accent down, "Liz Holtzman is a very nice girl, I'd like her for my daughter, but not for D.A." Is that right? Is that what actually was part of the campaign?
ELIZABETH HOLTZMAN: Yeah, and I almost lost that race because I wasn't running against an opponent, I was running against the idea of what a District Attorney looked like, and looked like Perry Mason, didn't look like Liz Holtzman, so it was really changing people's concept, and turned out to be much tougher.
JUDGE ZIMMERMAN: Is it true, and I think I noticed this in your book, that when you ran for the United States Senate, there was a writer in a prominent magazine that said he could not imagine you in a low-cut evening gown, is that right?
ELIZABETH HOLTZMAN: It is true. It is the "New York Times," if you want to just make it clear. And he didn't lose his job either.
JUDGE ZIMMERMAN: Let me go back to our distinguished judge at the end of the table. I'd like to talk a little bit more about this theme of the cost.
I think, Jean, you were saying great victories come at great cost, and Eveleth Mines, we know, was a 10-year piece of litigation, and, Judge, there is a quote in a book, I wasn't going to say the title, but I think I will anyway, it is called, "Lawyers and Other Reptiles," and that is just the name of the book, Judge, not my statement.
And the quote in the book is "Every corporation is entitled to its decade in court." Your Honor, you comment about that in Eveleth Mines, about how nobody can expect justice will be done when a case takes 10 years. You say that directly, and I don't want to pry about what federal judges talk about in their private conversations, but let me pry a little anyway.
What do judges say about cases like Eveleth about discrimination cases? We see the Wal-Mart case in today's paper, the biggest nationwide class to be certified, yet what do judges in the federal bench say about the length of these cases, and are the judges willing to do what it takes to go the extra mile?
JUDGE LAY: Well, you know, there is the old phrase that justice delayed is justice denied, and I think it is the attitude of the judges themselves. Ah, I -- I was chief judge of our court for 12 years, and one of my goals was to have the best record in the nation, as far as hearing a case and getting it out. And that has varied from time to time, it depends upon the workload of the court. I -- I think that you'll find judges that have no care or concern about how much time it takes.
But it is a question of your own beliefs in that area. One young lady, I think she is in the audience, came up and told me that she had litigation here in the District that was taking over six years, and it still hadn't been decided, and I -- I just, you know, if I were chief judge of the District, I'd do something about that.
It is -- It is just ridiculous that you can't have expeditious trials. We set discovery orders, and so on, and then they ought to go to trial and be done with.
But that isn't -- That isn't the individuality of all judges, and it is a difficult issue, but somebody on the courts, and generally it is the chief judge, should set that as their goal.
Um, one of the -- I think I mentioned yesterday, one of the goals of Chief Justice Burger, as well as the goal of Chief Justice Rehnquist, is to expedite caseloads, and I think that is where the idea of the summary judgment comes in. I mentioned that yesterday. But there is a balance, you know, as to whether or not you can have a case that could go to trial, or whether it can be disposed of on summary motions. And I think a lot of times that we've -- we are going too fast, and the idea of getting rid of the case is not certainly fair to the litigants.
I know when I was trying cases, and I tried cases throughout the country, ah, but I'd go into a court, and on a diversity case, and the first thing the judge would say, "What is this case doing here?"
And, "This is a diversity case. Why isn't it in the state court?" Well, I knew from that point on I was going to have a tough time, and generally that was what happened.
I tried a case over in another state, which was in our circuit one time, and it had got so hostile between me and the judge that I had to finally step down and have my associate take over. Everything I did was criticized in front of the jury, and he directed a verdict in the case, and then he said, "It wouldn't be enough money if I recovered," and that was absurd. I had a person that had a leg off as a plaintiff, and had $4500 in expenses, and the jurisdictional limitation at that time was 10 thousand, well, absurd to say that we couldn't meet the jurisdictional amount. But anyway, about four months later I was appointed to the Circuit Court, and I'll never forget, the judge came up to my wife, who is in the audience here, and he said, "Don was the best trial lawyer that ever appeared before me."
(Laughter.)
So I don't know how to -- how you balance. A lot of it has to do with the judge's attitude, I guess, and -- But I still think chief judges have a responsibility to do everything they can to expedite these cases, and, you know, the immigration cases now, I mentioned I just came from the Ninth Circuit. A month before, I was in New York, and the immigration cases now are just inundating the courts. Two-thirds of the docket in the Ninth Circuit are immigration cases. And, you know, what -- They are trying to do something with that on a special basis, and I think it is -- It is a necessary thing.
JUDGE ZIMMERMAN: Judge, speaking of a necessary and maybe fair shake, which is what you were not so happy about, you didn't get a fair shake when you were a practicing lawyer. We expect that of our judges.
JUDGE LAY: Oh, I finally did.
JUDGE ZIMMERMAN: At least he acknowledged you were the best trial lawyer he'd ever seen, one of the best, but, Judge, in Eveleth Mines, you strongly stated in the opinion that you think the -- you thought the emotional distress part of the case had got much too far, and you talked about the decision about how the experiences of the plaintiffs where the discovery went into their detailed medical history, childhood incest, abuse, abortions, all kinds of things, you said that should have been barred by the lower court, and what went wrong here, do you think, and what should be done to curb it in the future?
JUDGE LAY: Well, I think Jean probably is in a better position to answer that, because what they did, they deposed all these women, and they'd go back in their childhood, and things that happened to them, if there was child abuse, or abortion, or rapes, and things like that, and it just -- They spent years pursuing many irrelevant topics. And this is all tied in with the causation.
And the magistrate found originally he allowed it on the basis that the defendant had the burden of proof to show that this was the cause of the mental disturbances. And then when he got to the trial, he said it was the burden of the plaintiff to prove that, and they didn't prove it. And the opinion, I won't go into basic tort causation principles, but he had it upside down as to who had the burden, and what -- how he was going to sort it out on apportionment, and so on. But as Jean can tell you, the amazing thing of the magistrate's opinion is that he barred all the expert testimony of the psychiatrists and the psychologists of the plaintiffs.
JUDGE ZIMMERMAN: Jean, what did you think about that?
JEAN BOLER: I thought it was unfair.
JUDGE ZIMMERMAN: There we go.
JUDGE LAY: Well, I just have one -- But he allowed all the defendants' psychiatrists and psychologists to testify. And that -- He did that under the Daubert Rule, and it was just upside down, and that was one of the bases of reversal.
JUDGE ZIMMERMAN: Jean, would you counsel the women to do that again, knowing what they went through with the damages phase of the trial, if you could, with the benefit of hindsight, which is always wonderful, would you do that again, would you counsel them, go forward with the struggle?
JEAN BOLER: Well, that portion of the case was always the most difficult for me, because, you know, what was happening at the mines, um, that was our job to ferret that out, show that it was harassment, establish the legal principles, but what I never expected as a lawyer going into the damages phase was how destructive that portion would be for the women, because although we sought protective orders, and tried to have the medical records not be discoverable, and tried to stop depositions from going forward, and made objections at the trial of damages, the focus all became on all of the bad, hard things that had happened to these women in their lives, other than what happened at Eveleth Mines. A very, very small portion of the time on cross examination was spent trying to dispute that they had been harassed. It was all based on other difficult things that they had gone through, and to sit on the stand and to have somebody hostile ask you about that for hours on end, it was devastating, and it is something that challenges your faith in the whole justice system to know that something like that can happen.
In terms of doing it again, what I would do is try to be more direct with my clients going into it, to try to warn them about what could happen. We did say that they would go into their medical histories, probably, and they would try to prove that there was other sources of causation, but we didn't dream what a nightmare that would turn into for them.
But I think -- But all along, the women kept saying, you can -- You can pull out. You know, if you decide that you don't want to go through with this, of course it is up to you. Um, and none of them -- Well, a couple of them actually did, but most of them didn't, and so I am their mouthpiece. I would do it again if they would do it again.
And I think that -- that Lois and Kathy and Pat, and the lead plaintiffs in that, they probably are brave enough to do it again.
JUDGE ZIMMERMAN: In terms of putting the brakes on duly intrusive discovery, Liz, let me ask you during your four terms in Congress, one of the things that you accomplished, one of the many things was you helped to pass the Rape Shield law, which I think also became known as Rule 412 of the Federal Rules of Evidence, which has to do with intrusive questioning in sexual assault cases.
And is the type of questioning of women that went on in Eveleth, in terms of damages where there was all this prying into their sexual history and their past, was Rule 412, or at least the spirit of it, something that you wanted to help address this sort of problem so that women didn't pay too heavy a price for coming forward to complain about different forms of sexual assault?
ELIZABETH HOLTZMAN: Well, um, there is a little bit of a difference, in terms of the Rape Shield law, um, and sexual harassment, in the sense that it was always the stereotype about, um, rape that it was the woman's fault. Perhaps that is also true about sexual harassment, although it is more recent as a phenomenon, so I don't know if that has the same ancient history. I mean this is in Wigmore, and all the great legal scholars of the past, and so, um, the questioning of a woman's background was intrinsic to the idea that if a woman had ever, and that underlaid the whole basis of rape prosecutions, if a woman had ever said yes, she could never say no. And so therefore defense counsel were fully authorized to go into a huge and wholesale probe of a woman's entire past sexual history on that theory.
Um, of course a number of states had already, by the time the Federal Government acted, Congress acted, a number of states had already passed the Rape Shield law to stop that. Um, but that was really the premise to prevent the wholesale assault on women, and to attack the stereotype that it was a woman's fault, and that a woman had no choice. A woman was not -- Could never say no. I mean a woman had no personal autonomy, I mean the idea that we were attacking there.
But, of course, the effort to destroy the plaintiff is nothing new. And we had -- I was in a -- I never represented anybody in a Title VII case, but I did represent -- on the basis of sex, but we did represent somebody on a sexual orientation case, where there was again a wholesale effort to destroy the person's reputation, psyche, and maybe there is -- and seemed to me totally, um, irrelevant questions, but designed basically to harass and humiliate, mostly humiliate and degrade and demean and grind the plaintiff into the ground.
Ah, there ought to be some way that we could figure out, and I'm sure the judge, having vast experience, and there may be other -- I'm not a legislator anymore, but there may be others who could figure out how to do it, but there has to be some better balance. Ultimately it took legislation to change that with regard to rape, because the courts weren't doing it, um, on their own, and maybe this is something for the Congress to examine. But surely someone should not have to pay the price of that kind of humiliation and degradation simply for seeking to assert their rights.
JUDGE ZIMMERMAN: Liz, I notice you didn't mention how that case turned out, that recent case where the plaintiff was subject to all of that degradation. That is your modesty, but how did that turn out?
ELIZABETH HOLTZMAN: Well, we brought this under a New York City equal employment policy law. New York City also provided for punitive damages, and so we had a very substantial jury verdict of $11,000,000, which was then reduced substantially by the trial judge.
JUDGE ZIMMERMAN: But it felt good at first.
ELIZABETH HOLTZMAN: Right, it felt very good. Still feels good.
JUDGE ZIMMERMAN: While we are talking about discovery and our -- the distinguished counsel on my right, Chris Ho, is from the Employment Law Center in San Francisco, will have a lot to say when we get into our English only litigation and national origin litigation, he is one of the leading experts in the country, but Chris, while we are talking about intrusive discovery, you recently won what I think has been called a landmark victory. It was on a discovery issue. It was on a national origin discrimination case, and you managed to get a protective order that stopped an employer from conducting certain questioning that probably would have deterred your workers from going on with the case. But why don't I let you, you are the expert. How did you manage to do that? What does your litigation say about how you can try to stop -- Maybe it is about getting the right judge, too, how do you try to stop intrusive questioning and discovery where you have discrimination claims?
CHRISTOPHER HO: Well, I -- As a threshold observation, I'd point out that the kind of immigration-related questioning that my clients were subjected to was, in many ways, very analogous to the kinds of intimidating discovery that was undertaken in Jean's case.
In my case -- In my client's case, it was discovery as to immigration status, which really had nothing to do with the underlying case. The underlying case was a Title VII language, national origin discrimination case brought on behalf of 25 Latina and Southeast Asian workers in Fresno, who after having held jobs in an irrigation manufacturing plant for many years, were suddenly told when the new owner came in, and decided that they were the source of the plant's losses, because obviously people who couldn't speak English, couldn't do their jobs right. They were given a test that was ostensibly about job-related skills, but the kicker was that the test was given only in English, and they had to respond in English. So predictably my clients failed the test, and they were told as a result of that they were being put into a separate category, and that that separate category was going to be the first laid off when RIFs came, which of course they did, and so our clients were fired before anybody else, regardless of their seniority, and work experience, which had all been very high, so we brought this as a national origin challenge under Title VII, under the adverse impact theory.
This issue, ah, came up fairly unexpectedly, although we did anticipate that they were going to make some use of the immigration status issue. In the first minutes of the first deposition of the plaintiffs in this case, the defense counsel wasn't interested in getting at any of the issues that were substantive to the case, such as how long did you do your job, did you make any mistakes, did you have a problem, did you have to use English, how much? The questions were: Where were you married? When did you come to the United States? Where were you born? And so we objected, because these had absolutely no relevance to the Title VII issue at hand.
Um, we -- The other side pressed these questions, and we refused her. We instructed our client not to answer, and so we got on the telephone with not our regular magistrate judge, but the one who was, I guess, available by phone, and he was theoretically the most progressive of the magistrate judges on the Fresno bench, and so I'm thinking, okay, this is good, he'll hopefully get this issue.
And so we're on the phone, and he says, "Well, of course they have to answer. Of course it is obviously relevant, their status, and their ability to bring charges, and their ability to recover damages here." So we kind of knew we had a problem here.
Luckily, our magistrate came back to town. We filed a formal written motion seeking a protective order based on the fact that under Rule 26 of the Federal Rules of Civil Procedure, a court has to balance the harms of requested discovery against what the benefits might be.
And it is very interesting in that during oral argument, she, the magistrate judge, specifically analogized our situation to the situation of the Rape Shield laws, in finding that there was a point at which discovery ostensibly having some ancillary relation to the case, really was not -- would not be justified because of the harm that this discovery would do in deterring plaintiffs from moving forward. And so we got the protective order that we wanted, which barred questions directly going to immigration status, and limited the disclosure of responses to questions that went only secondarily, or indirectly, to immigration status.
Ah, unfortunately our opposing counsel was quite litigious. They sought reconsideration for the district judge, not once, but twice, and unfortunately the second time they sought reconsideration after the U.S. Supreme Court's decision in the Hoffman Plastic versus NLRA case came down. And for those of you who aren't familiar with that, just very, very briefly, Hoffman Plastic stated for the first time that undocumented workers were subject to less protection under United States workplace laws than authorized workers, and they said that backpay awards were not allowable in actions under the National Labor Relations Act to undocumented workers. So our opposing counsel jumped all over this, and said, "Well, this obviously means these clients can't even bring suit. They are not, at the very least, since they are seeking backpay, that entitles us to seek discovery about their status." Luckily our district judge denied reconsideration again, saying quite properly, "Hoffman wasn't a discovery case. It didn't talk about how you would get this information in the first place, let alone, even assuming for the sake of argument that it was relevant."
So he did the right thing, but then he did the wrong thing, and he certified, the district judge certified the matter for interlocutory appeal, and stayed the entire case pending the appeal. So I wish I'd have had Judge Lay there to maybe counsel him otherwise, in terms of moving cases along expeditiously.
JUDGE ZIMMERMAN: You were just on the Ninth Circuit, right, Judge Lay?
CHRISTOPHER HO: We got a bad motions panel on the Ninth Circuit, and they granted the interlocutory appeal, but luckily the merits panel was somewhat better, and we got a good decision in April, which found that the magistrate judge had acted properly when she ruled that Rule 26 balancing disallowed the invasive discovery that the other side sought, and even if the information sought might be relevant to Title VII cases, ah, that it would be -- it was -- It just didn't meet the Rule 26 balancing test, and the cases is also noteworthy, in particular in context of today, in that there is a lengthy discussion by the Ninth Circuit about the reasons why Hoffman should not be found applicable to Title VII. If it was applicable, ah, it would be a disaster for immigrant workers who sought to bring actions under Title VII, so -- But I think that -- and that is a long-winded answer, for which I apologize, but I think that that is precisely the same dilemma as has been talked about before, this kind of discovery really served to deter plaintiffs. They were going, you know, they had a threat, in this case, of possible criminal deportation, of criminal proceedings or deportation if they are found to have worked here unlawfully, and which was, again, nothing having to do with our case. Our case is about the right of workers to be protected as long as they are working in the United States.
JUDGE ZIMMERMAN: Well, thank you, Chris. I have just a couple more questions I want to ask our panelists. It is the sacred duty of the moderator to protect the integrity of the break, and we are in the break zone, but we are not there yet. I want to just ask a couple of sort of cultural wars questions just to go right around the panel, sort of quick response, knowing that the break -- we are in the zone of the break, and let me just -- I want to ask each of our panelists, in the area of sexual mores and cultural attitudes, if we look at this big picture about what has the law done. Title VII has been in effect 40 years, that is what we are celebrating here today. In the area of harassment, or more broadly sex discrimination, do you think that Title VII has changed the hearts and minds of people, or is it only a kind of a weapon to regulate behavior in the workplace? Has it changed hearts and minds, or is it just a tool to in a narrow way limit behavior in the workplace? Liz, let me just ask you that first, if you are comfortable with the question, and I'll ask each of you to respond in any way you feel comfortable.
Liz, what do you think about that?
ELIZABETH HOLTZMAN: Well, what I'd say, first of all, is that it is fine with me if it stops the bad behavior, so having been in the civil rights movement in the early 60's, it was enough to get people to stop shooting at blacks, or killing them, if they wanted to exercise their right to vote. So it seems to me the first accomplishment is to change the behavior. Ultimately I do think it changes people's attitudes. If they can't do this, if it is not rampant, if it is not the exemplar, I think it does change, so I do think that it has changed behavior. I think it has brought a new phrase into the English vocabulary. I think employers and many employees are aware of it, so I think that it has made a difference.
JUDGE ZIMMERMAN: Jean?
JEAN BOLER: Yeah. I agree. I think it is both. I think the fact that you have a club that you can bring lawsuits not only causes change through litigation, but I think management lawyers are continually telling their clients about what their exposure is, and saying, you know, this type of behavior may lead to a big lawsuit, therefore not only is it the right thing, but it is the economically correct thing to do. And I think that they work hand in hand. There is a symbiotic relationship to the change that is going on.
JUDGE ZIMMERMAN: Melissa.
MELISSA JOSEPHS: Yeah, I would just build on what the two other panelists have said, because I agree, and just add that, um, I think everyone is seeing that having a goal of not offending and not just having a goal of avoiding the law, is really the broader and better way to do it, and employers are seeing that, like you said, talking with their attorneys, and I think we're also seeing that even though the law holds the employer ultimately responsible for preventing, keeping the workplace free from discrimination, and increasingly imposing an obligation on employees to participate, to target to do something, there is also the other co-workers, and everybody really has a role in this goal of trying to have a good work environment, where you strive not to offend. I guess I do agree with the behavior thing, that even if people don't necessarily get it in their heads and are walking around saying, "I can't say this because it is not politically correct." Even if they don't believe it, they are not saying it, because it is not politically correct. So that is a first step.
And finally, I just want to add that I think with sexual harassment anyway, that it is making people who work in these high paying, particularly factory environments, where the job could be monotonous, it is making them find another way to break up the monotony, instead of taking it out on their co-workers.
JUDGE ZIMMERMAN: Chris.
CHRISTOPHER HO: I would join in what everybody else said, though I'd add something that might be a little bit negative, which is I think that in some ways maybe hearts and minds have been changed for the worse. I remember some of the debates around the 1991 amendments to Title VII, and I think the effects of the Bush Administration's, you know, flaunting of the word "quota," has stuck with us to today, so that any thought of using numerically based goals and timetables is really still a bad word, and heavily freighted with all sorts of negative connotations. And I am no expert on this issue of sexual harassment, but on the flip side, I think there have been some notable ways in which public perceptions have been changed for the better, and I think that, you know, although that was obviously a horrible experience, the Anita Hill/Clarence Thomas issue that came up in the 90's served to greatly to educate the public in the area of sexual harassment.
JUDGE ZIMMERMAN: When you talk about President Bush, you are referring to the first President Bush with the Act?
CHRISTOPHER HO: Yes. Yeah.
JUDGE ZIMMERMAN: Jocelyn, hearts and minds.
JOCELYN FRYE: Well, I think I would build on what has been said. I mean clearly Title VII has made a difference in terms of helping employers and employees define the boundaries and the parameters of what should happen in the workplace, and it has helped to change attitudes, and perhaps the hearts and minds of folks in the workplace. I do think you can't overstate it. I mean I think one of the things that is, um, good about Title VII is that it sets up some basic principles that provide some flexibility to adjust as our societal norms adjust.
You know, Title VII didn't sort of change how we think about, you know, what is proper and improper, you know, that happened sort of beyond the bounds of Title VII. Um, and a lot of the change that we're talking about wasn't done in the confines of, you know, what Title VII is, and what has been written on the page, but you want the law to be able to adjust as those changes occur.
So, um, you know, I think, yes, on the one hand, it has helped to change some attitudes and help people think more vigorously about sort of how they conduct themselves in the workplace. Um, but it also has enough flexibility to adjust as changes happen externally, to respond, you know, as our country evolves, because the reality is that, you know, how we think about these issues, and what people say today, whether it is on TV or in the workplace, is very different than 40 years ago. And that is not necessarily because of Title VII, it is just sort of the way our country has evolved, so I think it has been an important tool, but it needs to be understood in sort of the broader context of how our society has evolved.
JUDGE ZIMMERMAN: Judge, what would you say? Has Title VII changed hearts and minds? What is the power of the law to do that?
JUDGE LAY: I think gender discrimination pervades society today. And I think wherever you go, you find that to be true. I think the cases that are coming down now, and the most recent case is Pennsylvania State Police versus Suders. And I recommend you read that. It came out of the Supreme Court. That is fine for the employers and the legal counsel to read, but very few people in society read those cases.
They read the headlines in the paper. Um, but I, you know, until I've had this back surgery, I have played a lot of golf around the country, and you go into the golf clubs, and wherever you go, and there is seldom an instance where I don't hear something about women being on the golf course, they have no business being there. And I say, "Look, my wife likes to play golf. What is wrong with it?"
"Well, they play slow, and they shouldn't be able to play, they should have their own courses." Well, that is male macho talk. And I think that is what you are seeing across the board in society. And they -- They don't know about these lawsuits. Employers are finding out about them by paying money judgments, and learning from cases like Suders and Eveleth, and so on, that they need to set up grievance procedures to protect themselves. But, you know, I -- I taught, when I took senior status, I taught school about 10 years. After about three years, a group of young women came forward to me and said, "You know, judge, we think you are very unfair. We think that you discriminate against women." And I said, "Why would you say that?"
And they said, "Well, every defendant that you talk about is a 'he.' Every plaintiff is a 'he,' and every judge is a 'he.' You never mention any women being involved in these cases."
And I said, "Well, I appreciate the critique." And now I am very careful when I talk before students. But they -- They still -- That little group, I remember they went to the dean and complained about me, and I felt very bad about that. Well, in any event, I think a lot of work has to be done.
I said yesterday it has been 175 years before we had a law that outlawed racial discrimination, outlawed sex discrimination. When we talk about sexual harassment, we are really talking about gender discrimination of women, the resentment of women in the workplace.
And so there is a lot of work to be done. I think the NOW organization is very effective, and I think it is a long road. It is 100 years since the Civil Rights Act was passed, more than that, in 1867, which is really the embodiment of 1983, under the Civil Acts; and yet we still have discrimination by the states. We have discrimination. It pervades society. And we have made gains. We have made tremendous gains. We have blacks in government. We have women in government. We have women that are very successful as CEOs of companies, and blacks as well, so we've made gains, and I think to that extent you can say there has been a change, but I think there is still a great deal of work to be done.
JUDGE ZIMMERMAN: Let me end with one final question, which I think is more of an opportunity for a comment. And I would just direct this to Jean.
Jean, you started off this discussion saying, "Great victories come at great costs." And Laura Cooper, a law professor, said about Eveleth Mines, and I quote, "The nature of social change is that we make martyrs out of pioneers. We have yet to figure out how to make social change without sacrificing people along the way."
Jean, is there anything you want to say about people like Pat Cosmo, who died before the case was over, or Lois Jensen? Anything you want to say about them, and then we'll take our break.
JEAN BOLER: Well, I remember when I read that quote in the paper, and I thought it was so true, and so good of Laura to come up with that. Um, and I hope that has been a theme of what I talked about, the Eveleth Mines' case is about. Pat and Lois and Kathy and the other women took on the men in their environment, they took on the judicial system. Um, they persevered, and they paid a price, and, um, I think that just everyone that works in the field, um, should be thankful that there are people like them that are brave and are -- and put their faith in a system that lets them down at certain points, but in the end comes through, so that is what I'd like to say.
JUDGE ZIMMERMAN: If you could dedicate this day on the 40th Anniversary of Title VII, and this discussion about sexual harassment with distinguished people around the country, if you could dedicate this day to their honor, would you?
JEAN BOLER: I sure would. Can I?
JUDGE ZIMMERMAN: As a moderator, go right ahead. Then we will take a break. We will take a 15-minute break. I have to tell you I am going to be militant about starting precisely in 15 minutes to take advantage of the speakers and the time that we have. I am advised it is unlikely my militancy will work, but I am going to use all my judicial powers to try to get you to be back in 15 minutes.
(Applause.)
(Brief recess.)
JUDGE ZIMMERMAN: Looks like it's 10 to, right on the nose, just like I said. The fun thing about being a judge is when you tell people it is 10 to, it is 10 to. But I know that all of you have a need for refreshments, so we're going to wait a couple more minutes for people to come back, and then we're just going to get started. I think I'm actually just going to -- We're all back together again. We are saving time for questions at the end, and we are going to cover in our next couple segments pregnancy, and also national origin discrimination, and we're going to start out with pregnancy for our post break session, and I am going to start out with the question to Jocelyn.
And, Jocelyn, here is my question, some scholars note that the efforts to outlaw discrimination at the federal level were stymied for about forty years prior to Title VII because of concerns that the so-called protective legislation from the 30's and 40's protecting women from things like night work, or heavy lifting, considered successes of the labor movement from an earlier era, there were concerns that those hard-fought successes might be lost through Title VII, and many of these restrictions were due to perceptions about a woman's child-rearing or child-bearing capability.
In the era of Title VII, courts have struck down many of these restrictions, and they've used the phrase "Romantic Paternalism," or some courts have said the notion that the pedestal can become a cage.Now, Jocelyn, you've recently, as I understand it, you have written a scholarly article about how sex came to be included in Title VII, and of course you have a national perspective on these issues, as we've discussed earlier this morning.
Jocelyn, do you see a tension in the way Title VII has developed, we're in the pregnancy now, do you see a tension between the pre-Title VII protection for pregnant woman, and the Title VII notion of equal treatment? And what is your vision of how Title VII protects women from discrimination based on pregnancy? Has it met its promise?
JOCELYN FRYE: Um, there are a number of questions there, I think. First, starting with perhaps a little bit of history. And you're right, there was philosophically a tension between, um, the protectionist policies of the past, the notion that people were protecting women by denying them certain job opportunities, maybe because they were of child bearing age, or they thought that the work was too difficult, and, you know, however well meaning that approach was, the end result was that women often were shut out of important job opportunities.
The other philosophical approach was the equal treatment approach, which was the -- the approach of Title VII, and grounded in our constitutional principles, and the notion that we wanted everybody to be treated fairly and equally in the workplace. And, you know, from an organizational perspective, obviously it would not be surprising to anybody to hear that we supported the equal treatment approach for a variety of reasons. Ultimately, we thought it better to create a legal construct, um, where the focus was on making sure that women and men had equal opportunities, rather than, ah, ah, a framework that was really defined by, um, in gender terms, you know, what is best for women, you know, is this the type of job that is best for women, um, given whether it is pregnancy or that they might become pregnant. The whole notion behind Title VII is that, you know, people ought not to be making those choices for women. Women can make those choices for themselves, just as men can. But you want to make sure that regardless of the choice they make, that they are treated fairly in the workplace. So around the time of the passage of the Civil Rights Act, there clearly were these two philosophical perspectives sort of coming up against each other. But with Title VII, you clearly have this, um, important principle of equal treatment, and leading up to the Pregnancy Discrimination Act, I think one important thing to remember is that up between the time, um, of the passage of the Civil Rights Act, up until the passage of the Pregnancy Discrimination Act in 1978, there were a lot of cases, and there was a lot of litigation, um, re-affirming the principle that discrimination based on pregnancy was sex discrimination, and that was an important principle. And as we will get into, there was some bad case law that turned that fundamental principle on its head, um, and led to the passage of the Pregnancy Discrimination Act. In terms of whether or not the law has met its promise, we'll talk a little bit more about that, but I think, um, what we have to remember is that the Pregnancy Discrimination Act was crafted to do one particular thing, which is to make it clear that Title VII's prohibition against sex discrimination also covered pregnancy and pregnancy status, that it was illegal discrimination based on sex to deny somebody a job because they were pregnant, or because they were -- they might become pregnant.
Um, that principle is important, and it was important in the context of the time. There were women who were not given jobs because people thought they might become pregnant, um, if somebody became pregnant, they could lose their job, and they often did. If you look statistically at the number of women, what women did when they became pregnant, if they were working, many -- the majority of the women left the workforce, and it wasn't clear they would get those jobs back. So you have to understand that context, and the Pregnancy Discrimination Act set an important floor beneath which we could not fall.
But we also have to understand that there are many things that it did not do. It did not sort of require employers to provide necessarily an affirmative set of benefits. Um, you know, the -- In terms of making sure that the workplace truly was a place that accommodated the needs of both men and women, and balancing their work and family obligations, the Pregnancy Discrimination Act standing alone didn't do all that it needed to do, and there have been subsequent laws like the Family Medical Leave Act to help make those principles more real.
So I think, you know, yes, the law met -- met its -- its purpose of eliminating sort of that basic, or at least addressing that very basic and fundamental notion that people could deny a job opportunity because somebody was pregnant.
Um, and that has been an important principle, and it remains an important principle. I think that is the other thing that people have to get in mind -- keep in mind as we talk about all of these laws, that we can't sort of talk about them in the past tense, even though all of the folks in this room may recognize that these principles are very important, and they may be sort of clear to us, you know, there is still a lot of pregnancy discrimination out there, and you would be surprised to see, if you look at the EEOC's caseload, some of those are really basic cases. They are not complicated. They are not sort of cutting edge issues. They are people get fired because they say they are pregnant, and the employer doesn't want them anymore. A lot of those cases still occur, and they are on the rise. Over the last decade, um, pregnancy discrimination claims received by the EEOC have risen 40 percent. So that basic law is an important tool, and it has been, and it remains one.
So in that sense, yes, it has served in a very important purpose, and it continues to. But it also has some limitations, and I think as we talk more about how can we make sure that the workplace accommodates sort of the full range of work/family needs that both women and men have when they go to work, um, there is more that is needed than the Pregnancy Discrimination Act, and that, standing alone, is probably not enough to really meet sort of the very complex set of needs that we need.
JUDGE ZIMMERMAN: Liz, if you can put your member of Congress hat back on, in General Electric versus Gilbert in 1976, the Supreme Court decided that excluding pregnancy benefits from a benefit package was not sex discrimination, because women included both pregnant and non-pregnant women, and there were other issues of statutory interpretation, but the ruling overturned decisions of six courts of appeals, overturned an EEOC regulation, now you were a member of Congress, and as I understand it, you were an instrumental person in ensuring that the Pregnancy Discrimination Act of 1978came into law.
Liz, how did you do it? And -
ELIZABETH HOLTZMAN: Well, first of all, I want to disclaim "instrumental," I think there were many, many people who played a very important role.
JUDGE ZIMMERMAN: Moderator's privilege.
ELIZABETH HOLTZMAN: Yeah, I guess. A little literary license. But in any case, um, let's just go back in time to what happened. The Supreme Court came out with this decision, I think it was sometime in December, actually, um, December7 th. Could that be correct? Yeah, December 7th. And that galvanized the very small number of women in Congress, women's groups, labor groups. I think some just normal Americans to say, "What is going on here?" I mean the reaction was: Wait a minute. We have a law that says there can't be discrimination on the basis of sex, and all of a sudden the Supreme Court says, "Oh, you can discriminate against pregnant women, because it is not discrimination on the basis of sex." I mean it was a lot of head scratching, and eye rubbing and, you know, like what is going on here?
I mean we thought it was absurd, ludicrous, ridiculous. Um, it's not at all what Title VII meant. I mean it didn't matter. It could have been -- There could have been no courts of appeal decisions the other way. The point is that this was not -- The Supreme Court's decision was an absurd, ludicrous interpretation of the law. In fact, I went back and read it, Gilbert again in preparation for this, and I don't think my reaction has changed one iota. And I mean, you know, the language is absurd, but, you know, you -- It bears reading again. It says, I'm quoting from the majority opinion, but "We have here no question of excluding a disease or disability comparable in all other respects to covered diseases or disabilities, and yet confined to the members of one race or sex. Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability. The District Court found that it is 'Not a disease at all' and is often voluntarily undertaken and a desired condition. We do not therefore infer that the exclusion of pregnancy disability benefits from petitioners' plan is simply a pretext for discriminating against women." I mean on and on nonsense upon nonsense, and immediately, in December, in response to this decision, and the indignation and outrage among these various groups, um, there was a big meeting convened and aides of staff of Congress people were there, and women's groups, and labor groups, and civil rights groups, and there was some debate about how to draft the response. But in the end, there was pretty much of a consensus that we would go and just overturn this opinion. And the reason for doing that was, I mean, it is a very legitimate question to be asked about, well, why not more, why not do more? And I think partly it was, this was so outrageous and absurd that we wanted to undo that. Partly it was we weren't sure, I think, how much more we could chew off and successfully win. We thought we had a very good argument against this opinion.
But I think also by kind of rapping the Supreme Court on the knuckle, so to speak, we might teach them a lesson with regard to how to interpret Title VII. And what we wanted to do was send a very clear message that you are not to interpret this statute in this fashion. That this statute means what it says; and we want to protect women in this country from discrimination, period.
And so I think that was really the genesis. I -- There was a press conference announcing the introduction of the bills. Congresswomen poked a lot of fun at the Supreme Court. And interestingly, you, if you go back and look at the bills that were introduced, the first bill in the House, HR 5055 , had 25 co-sponsors, 13 women. That is a lot.
And it was bipartisan, by the way, and it was almost all the Congresswomen at that time.
A few for reasons I don't know didn't sign up. But then, this is Congress at its best, I guess the guys decided they weren't going to pass a bill that had so many women on it, and they reintroduced something called 6075, which had 18 sponsors, and one woman, and that is the bill that ultimately passed.
Um, however, you know, in the end, it didn't matter all that much, in the sense that the Congresswomen were very, very eager for, um, righting the wrong that had been done. And one of the other benefits of this -- of the Supreme Court's ruling, I'm sure it wasn't intentional, was that it -- It proved again the need to the Congresswomen that it was really important for the Congresswomen to form an organization, a caucus to get together to be able to address issues like the Gilbert decision. And pretty soon after legislation was introduced to overturn Gilbert, The Congressional Women's Caucus was founded. The first time in the history of this country, the Congresswomen came together to address a whole host of issues, not just Gilbert, Gilbert preceded it, but it was the impetus for Congress women to get together to address a variety of issues in the legislative arena affecting women. So that is my recollection of what happened. The main sponsor of the Bill was Congressman Hawkins, Augustus Hawkins of California, and every Congress woman played an important role in this.
JUDGE ZIMMERMAN: Jocelyn, let me ask you, I understand that the National Partnership for Women and Families used to be called the Women's Legal Defense Fund. Am I right?
JOCELYN FRYE: That's right.
JUDGE ZIMMERMAN: And you were right there in the forefront of trying to have this change occur. You were there fighting for the amendment, too, am I right?
JOCELYN FRYE: Not me personally, but --
JUDGE ZIMMERMAN: You are too young for that.
JOCELYN FRYE: I wasn't going there.
JUDGE ZIMMERMAN: But what did the Legal -- What did the Women's Defense Fund do, the predecessor to your organization, in its struggle?
JOCELYN FRYE: Thank you. We've already heard a lot of the history, but I think the reaction from a lot of the advocacy groups was, um, you know, has already been described. People were incredulous about the opinion, and I asked Judy Lichtman, who is our president, about her recollection of that time period, and she remembered, as was already mentioned, that it was December, and immediately after the decision came down, um, many of the women's groups got together and immediately formed a coalition appropriately named The Coalition to End Discrimination Against Pregnant Workers. And it was maybe not the best acronym, but it sort of did the trick, and it sent the right message, and, ah, Justice Ginsburg, who at that time was not Justice Ginsburg, was the chair of the Coalition, and Sue Ross and Judy Lichtman were I believe the co-chairs, and they worked with some really terrific members of Congress to move legislation they thought would happen very quickly.
You know, I think that as we look back, and realize that it was done in two years, um, that is, you know, very fast by today's standards. But I think because many people thought that the decision was so absurd in its analysis, they thought it would be easy, um, and sort of a simple fix, and it took two years to do, um, which was extremely frustrating, I think, for a number of the advocates at the time. But nonetheless, I think it is an important model. They -- They, you know, looked at the decision, saw that it was really inconsistent with where the courts had been, and inconsistent with what I think were commonly held views of what it means to prohibit discrimination based on gender, and, you know, worked with the members to come up with some language that would fix that problem, and do it in a very definitive way. So I think it is, you know, it is a success story, um, you know, that took two years to do, but I think, um, you know, in hindsight, um, it was sort of a rapid correction to, um, a really misinterpretation of how the law is supposed to work.
JUDGE ZIMMERMAN: Let me ask a question of our distinguished judge. Your Honor, as these issues have moved into the courts, you have helped decide many of these important sex discrimination cases, and one interesting and important case was the Chambers case, which involved a female arts and crafts teacher who worked in a girls club who was fired because she was pregnant.
Now, as I recall, Your Honor, there was no claim that the pregnancy prevented her from doing the job, but rather she presented to the club the wrong image of a single pregnant woman. There was no policy against single fathers, as I recall, and you wound up writing a dissent in the case, saying it was a case of, quote, exceptional importance, and one of the most important issues the court had faced in recent years. And in your dissent, I had the privilege of getting from you, this is 40 years, so it is a very thin book of dissents, but in this book of dissents, which your law clerks, I think with a lot of love, put this together for you, in your dissent in the Chambers case, you called the action of the employer, quote, the most blatant form of sex discrimination that can exist.
Your Honor, doesn't this Chambers case make lawful the notion of romantic paternalism? Didn't this woman need the job, even though she was a single mother?
JUDGE LAY: Well, I thought it was very ironic that the girl's club was really organized to help young women that were in trouble, and then this young woman who taught art, I believe it was, this was in Omaha, she -- She was single, and became pregnant, and they said she presented a bad image for the club. And I commented something that I felt that this was indeed ironic, since they were to help young people, and yet they turned around and fired her.
I got a blasting editorial against me in the "World Herald" in Omaha for saying that. And I'm not close enough, okay. Okay. But in any event, um, I -- I, you know, this followed the paradigm of any discrimination case where you -- She was qualified to do the work. It didn't keep her from doing that, and the defense, however, was that it set a bad image for the club, and that is what the trial judge found. They tried it before a judge, and it came up on appeal, and two of my colleagues found affirmative. I wrote the dissent. But I think a situation like that is, you know, not -- not a frequent one, but it is a -- an exceptional case, in the sense that they could turn around and just say that that was a bad image, and that would be a sufficient defense for them.
I think it was a direct violation of the Pregnancy Act, and said so. Ah, but I haven't seen too much comment on that case, Lloyd. I know you were struck by it, but I doubt if it's been cited very often.
JUDGE ZIMMERMAN: I'm sure that the rest of the country has followed your dissent in shaping the direction of the law.
But, Jean, let me ask you a question, many of the women you represented at Eveleth Mines, whether you represented them, or they worked there, they were single moms with children. Did these women encounter stereotypes about pregnancy, about whether women with children should be working, or much less working in the mines? Why did they seek these jobs?
JEAN BOLER: Well, um, they sought the jobs for the obvious reason that they needed the money. The mines paid three times as much as any of the other jobs that the women had been working in before they got the mines jobs, and it started out -- Ironically, um, the fact that -- that the first women that applied there had children, and were the sole support of their family was actually a criteria for being a woman, and getting a job at Eveleth Mines, because in part they thought the men would accept more women whose husbands were disabled, or who had died, or women who were divorced, and actually had children to support. So all of the women were supporting children, and that was in fact a qualification for getting hired as a woman there at first.
Um, but then one of the women did get pregnant while she was working there, and was told by the Human Resources Director that they didn't cover -- Because they didn't cover it when -- She was actually not married, and she was told that because they didn't cover the men miners' girlfriends who got pregnant out of wedlock, they wouldn't cover for her pregnancy. Um, and ultimately on that, they went to the -- She went to the Union, and got that reversed, but it was sort of in keeping with their usual stereotypes about women, that she got that response to her own pregnancy.
JUDGE ZIMMERMAN: Now, Melissa, you live in the great city of Chicago, where, as we've established, I was born --
MELISSA JOSEPHS: I think that is the only reason why I was invited on this panel.
JUDGE ZIMMERMAN: I think that is why we're both here. But the Seventh Circuit Court of Appeals sits in Chicago, and like other courts around the country, the Seventh Circuit has interpreted Title VII as an equal treatment statute, so that if an employer gives no leave in the first year of an employment to men or women, then pregnant women, if need leave, they get no leave, too, and the Seventh Circuit has even held in a recent decision that if a woman needs sick leave directly attributable to her pregnancy, and that leave is more than the employer gives men and women, then the employer can fire that woman without violating Title VII, even though her leave was directly attributable to her pregnancy. So in other words, the law, in its majesty allows both men and women to suffer under miserably limited policies, in terms of the way it has been construed as an equal treatment statute. Is this the reality of the workplace that you see in 2004, forty years after the passage of Title VII? And what would you like to see the law look like?
MELISSA JOSEPHS: Um, well, I'll address the law and the statutes in a second, and the courts, and just the way pregnancy is determined, unfortunately, as a disability.
But first I do want to address the policy issue, the employer policy issue. And, um, you know, you had asked earlier before the break about whether we thought hearts and minds have been changed on certain things, and unfortunately one way I do not yet think that employers' hearts and minds have been changed is that, um, they don't realize that women having children actually benefits them by, well, not only because they have good workers and stuff, but I mean just the fact that women having children, um, creates more customers for the employer, so that they, you know, continue buying their goods and services. And, um, so it always -- It just amazes me why women are discouraged or, you know, punished for doing this, particularly by employers. I don't think they are forward thinking enough.
And I think slowly employers will, based on the law, cover maternity through a disability, and increasingly, though slight, are offering maternity and now paternity policies, so that when you actually want to stay home and bond with your child, even though you're not disabled, you can do that, but the problem with those policies in practice is that they are not enforced equally. A lot of people, you know, you had a corporation, a certain level of employees will get that benefit, and not others, or that kind of policy is determined on a department by department basis.
So at this point, I can't help but put in a plug, Jocelyn I'm sure would support me on this, on the need for some kind of paid family and medical leave program, which we are actually working on in Illinois, and I know is being talked about around the country. There needs to be some minimum for the people that don't get that leave, but back to the law and the courts.
And one of the things that Illinois has, and other states have, is an additional protected class besides sex or disability, which is based on parental status, or marital status. And for those states who don't have that, I understand that there is an increasing development in the law of trying to develop these cases, and where a woman was treated differently because she was pregnant, and didn't get, you know, become a partner, because of that, and using that, I think developing in the same way as sexual harassment and pregnancy develop by starting with sex discrimination, and then it evolved, and I don't know if other people are more familiar with, or even using that in your own law, but I think that is slowly evolving. But for now, yeah, we are limited with seeing pregnancy as a disability.
JUDGE ZIMMERMAN: That allows me to turn back to you, Jocelyn, with your finger on the pulse of the country.
The United States is the only westernized industrialized country not to have some form of paid pregnancy leave. And as you know, the United States Supreme Court held in California Savings Bank versus Guerra, that states can require employers to offer pregnancy-related leaves for women, and in that case I think it was a policy of four months of unpaid leave, but that states can require employers to do that for pregnant women without discriminating against men under Title VII.
Now, from your perspective, with your finger on the pulse, is this approach, and Melissa has alluded to this in Illinois, and we've seen it in California, but is this laboratory approach of trying to one state at a time provide some protection for pregnancy? Is this something that meets the national interest of working women? Will this be better in our lifetime at a national level? What do you think?
JOCELYN FRYE: Um, well, with my finger on the pulse, what is happening in the country, I think there are a couple of different questions woven in there, so I want to try to break them out a little bit. Um, I think, you know, stepping back for a minute, when you look at this issue from sort of the philosophical perspective, the notion of providing sort of special rights, or special protections, for pregnant women that aren't provided to other folks is, you know, inconsistent with the way we approach the law to begin with. We have always thought about pregnancy discrimination from an equal treatment perspective. We want to make sure that everybody gets treated fairly in the workplace, so the -- the notion of crafting a legal framework that would come up with some sort of analysis that gave pregnant women sort of rights that other folks don't have doesn't seem to gibe with that. We wouldn't move in that direction. But, that being said, the approach that we have taken, and you can see this in terms of how the law has evolved, is stepping back and thinking about the -- the range of protections that you want to make available for all workers. If you look almost 20 years after the -- not quite 20, but maybe 15 or so, after the passage of the Pregnancy Discrimination Act, what we had was the Family and Medical Leave Act, and the Family and Medical Leave Act provided 12 weeks of unpaid leave for both -- for either men or women to take to deal with a family or medical emergency. Again, it was a gender neutral way of making sure affirmatively that people had leave available to address family or medical needs that we know come up in the context of the workplace, and that is an approach obviously that we support since we helped to lead that coalition and fight for the law's passage, and that is the approach we think makes sense, and the next frontier is really making sure that that leave is paid. Um, and in terms of your question about whether or not the state by state approach is the better approach, you know, suffice to say it would be terrific to have a national law that provided some income to people when they took family or medical leave. That is, um, an important principle, and it is an important way of making sure that the law actually works for everybody. Um, there are simply a lot of folks who cannot afford to take unpaid leave, and, you know, for the obvious reasons, so making the leave paid would be an enormous step.
That being said, we are also cognizant of the fact that it takes -- There are a million steps along the way to get to that important principle, and right now, there are a number of state innovations that are happening where they are trying to figure out ways to make paid leave available to workers. And we have supported those many different efforts, um, and next week, I think, California will become the first state in the country to have a paid leave law that goes into effect. They use it through their temporary disability insurance system that they always -- they already had in place, and employees pay into it, so it is not employer funded, which is, as you can imagine, a big issue for many employers, but it is an important and really groundbreaking first step to establish the principle that it is important to allow people to be able to take off time to deal with family or medical emergencies, and get some income while they are doing it. That we have to be realistic about the workplace.
So I think that, um, there are a couple of different things going on. On the one hand we want to make sure that the workplace is accommodating to workers, you know, workers do not operate in a vacuum. They have families, and they have family and medical needs that come up, but at the same time, we want to make sure that the policies that we come up with are ones that work for both men and women, and don't buy into historical stereotypes about who is responsible for caring for families. And that is really the principle that undergirds the Family and Medical Leave Act, and it is the approach that we think makes sense.
There are some underlying assumptions about who historically takes care of families, and, you know, men also have needs, too. They want to take care of -- Sometimes they are the ones who need to take care of the kids, and maybe they make a decision that the father will stay at home, and not the mother, and the only way that you can allow for that type of flexibility, is to make sure that you have a law that applies to all workers. So that is the approach we think makes sense, and it is sort of the next stage of moving beyond the Pregnancy Discrimination Act, which deals with sort of the very specific issue of employers deciding not to hire somebody because they are pregnant, but, you know, the Family Medical Leave Act sort of takes us to the next level. The only other thing I would mention about that is that just last week, um, Senator Kennedy introduced legislation that would provide mandatory sick leave. Um, many people may not realize that there are an extraordinary number of workers who don't get sick leave, and even if they have sick leave, they may not be able to use it for multiple purposes. So, for example, if you have got sick leave, and you need to take off time to take your child to the doctor's office, there are lots of employees that don't have the ability to use it in that way. Again, that is another sort of national approach to giving people the leave that they need to take care of their families. It is not something that is driven by gender, but something that is driven by, you know, how is it that we want the workplace to function?
JUDGE ZIMMERMAN: We could have people bring their sick children to work, and everybody else can get sick.
JOCELYN FRYE: Well, that is not the approach that we want. So, you know, what we -- what we have decided instead is to really, you know, advocate for policies that work for everybody, and hopefully at the same time, you know, we think there are enormous benefits for employers to have employees who have the ability to care for their families, but also become productive workers.
If people have to drop out of the workforce because they have a baby, or because they have got a medical emergency that ultimately is harmful to productivity, in terms of, you know, having the employees who have the longevity, the tenure, the requisite skills and the knowledge base, and so in the long-run, I think a lot of employers are beginning to recognize that there is some enormous benefits in having policies like these in place that allow people to both be productive workers on the one hand, but not neglect their very important family responsibilities.
JUDGE ZIMMERMAN: Jean, if I can turn back to you with your finger on the pulse of class action litigation, and the FMLA I think has -- You have to have at least 50 employees, and you have to work at least a certain number of hours to be covered. Title VII is 15 employees, and there is no number of hours. Um, with your finger on the pulse of Title VII litigation, as our class action litigator, what about the disparate impact theory of law? The EEOC issued a guidance saying you can challenge these miserly leave policies, no leave, ten days' leave, one month leave, you can challenge these under disparate impact theory on the notion that you have a disparate impact on people who are pregnant -- tend to be women. And then the employer would have the burden of showing business necessity. Why hasn't there been more litigation under the disparate impact theory? I know the EEOC brought the Warshawsky case in Chicago and a few other cases, but why hasn't there been more?
JEAN BOLER: I don't know.
JUDGE ZIMMERMAN: Thank you.
JEAN BOLER: First of all, I think, you know, disparate impact litigation in general, um, it is expensive litigation because it is done mainly through statistical experts, and so it is usually done in big class cases. Um, and you may have a hard time getting to statistical reliability -- reliable statistics when you are looking at just the women who became pregnant during a certain period of time, you know, in an employer -- a certain employer. So there is those kinds of hurdles, and then you don't get damages either. You get changes in policy. So it is kind of -- It is the perfect kind of case for the EEOC to bring forward, rather than the private litigants, plaintiffs' bar, I think, so why don't you ask them to get working on that.
JUDGE ZIMMERMAN: All right, get working on that. So there are no emotional distress or punitive damages under the Civil Rights Act for disparate impact. It has to be intentional, right?
JEAN BOLER: Right.
JUDGE ZIMMERMAN: Let me conclude our pregnancy section with a final question for all of our panelists, but I'll start out with Chris. Chris, I've sometimes heard it said that fair treatment for women in the area of pregnancy will only happen when a uterus can be implanted in a man, and when men have equal responsibility for the raising of children. Chris, do you care to be the lead person to comment on this? Then I'll ask our other panelists, too.
CHRISTOPHER HO: I think it would do wonders, and I think that you wouldn't settle for the equal responsibility for the raising of kids. I think you really have to go with the next part, too.
JUDGE ZIMMERMAN: Can everybody hear that in the back, we are talking right into the mike. All right, let's see, Jean, how about you, any further comment?
JEAN BOLER: Um, well, I think that that is a truism that is probably true, but I guess we'll never really know.
JUDGE ZIMMERMAN: Judge, what do you think about that? Do you think we need to have a uterus implanted in men to have them fully realize equal rights in the area of pregnancy?
JUDGE LAY: I have no comment.
(Laughter.)
JUDGE ZIMMERMAN: Melissa.
JUDGE LAY: I do remind -- There is a Martin Marietta case, which is kind of adjunct to our pregnancy discussion, but that is where women with children that were pretrial -- are preschool age were not being hired, and they brought a class suit, and the Supreme Court held that there were men working there that had pre-school age children, and that it was a denial of equal protection not to hire women to engage in the employment process. So that is just, I think it is a good case, and can be used analogously in some of these discussions here. But beyond that, I -- I'd rather stay without the comment.
JUDGE ZIMMERMAN: Melissa, how about you? Can I put you on the spot?
MELISSA JOSEPHS: Yes, you may, and I'm going to just share some context about a paid leave law that would probably convey my answer to your question, which is, you know, as Jocelyn talked about California is adding family leave to their already existing disability leave, and I don't know if people know that when the disability leave was passed 50 years ago, it provided up to 50 weeks of leave, about a year's worth of leave, and who do you think those -- that law was intended to protect? Men who were working and got sick, but weren't covered by Worker's Comp, and so they needed some kind of partial wage replacement, and so for men who were sick and of course needed to support their family, a year of leave, no problem.
But now 50 years later, when we are trying to add family leave to care for an ill family member, or if you become a new parent yourself, they can only get six weeks of leave. That is my answer.
JUDGE ZIMMERMAN: Liz, any comment about the uterus question?
ELIZABETH HOLTZMAN: Well, I'd just refer you to Margaret Atwood's "Handmaiden's Tale" for one possible outcome, which may not be the one that you desire.
The point is here, too, is that even though we have Title VII and Family and Medical Leave Act, we still have huge hostility in this country, sort of a point in a way I am paraphrasing the judge, who talked about pervasiveness of sex discrimination, but there is enormous hostility still to the idea of women in the workplace. I mean we are not just the only country that doesn't have paid leave for pregnancy and proper disability and sick leave policies. But we don't even recognize that working women with children need daycare, I mean so let's just get real in a way about this. We do not, as a society, accept the full implications of having women in the workforce. And until we get presidents and elected officials who accept that, and recognize it, we are going to be battling, you know, brick by brick, to build an edifice of justice for women.
JUDGE ZIMMERMAN: Well, that is our segue into national origin. And, Chris, as the senior staff attorney with the Legal Aid Society Employment Law Center in San Francisco, and I was a Legal Aid lawyer, too, I think there is a halo I can see above your head, but you not only have had your finger on the pulse, but you have been at the cutting edge nationally in representing some of the most vulnerable of workers, undocumented workers, and you've brought some of the nation's leading cases relating to national origin, race, and immigrants and undocumented workers. When you combine, Chris, the problems of sexual harassment or other discrimination with the problems of women or men who are immigrants, undocumented, don't speak English, or are fighting other cultural barriers, what challenges do you face, and how do you deal with them?
CHRISTOPHER HO: Well, I guess the first thing I do is that I certainly can't pretend to have sufficiently dealt with those challenges myself, and I think that one thing to keep in mind when representing immigrant workers is that you should probably never assume you have done everything you could or should. Um, what -- But what is really humbling is how much that you don't know about working with communities that are immigrants, that are fundamentally different from your own.
Ah, several challenges in particular come to mind. One, in many cases, is the issue of the client's limited proficiency in English. Um, I could tell you many horror stories about bad interpreters. Um, I've heard about people signing documents that have never been translated, important documents like retainer agreements, and settlement agreements.
There is also, among many cultures, among many immigrant communities, deep-seated distrust of lawyers, the government, and the legal system and, you know, overcoming that is a long and ongoing and neverending process. There is often cultural issues that immigrant communities have with respect to challenges to authority, challenges to employers, um, that make people very, very uncomfortable with the notion of bringing suit.
And, finally, there is, and not least importantly, is the issue of immigration consequences for many immigrant workers, even those who are here with authorization. They have often had contact with INS, and they don't want to have it again, and they are fearful that bringing a lawsuit will result in them coming to the attention of, you know, of these agencies.
And I think that the most you can do as an advocate is just to be mindful of how much there is that you don't know, how much that trust-building is an ongoing neverending process in these cases.
JUDGE ZIMMERMAN: Melissa, Women Employed, 2000 calls a year over the phone and in person, too, I'm sure. What does Women Employed do to try to make its good services available to people who don't speak English, or are uncomfortable, or from a different national origin? What has been your experience?
MELISSA JOSEPHS: Well, I have to honestly say that we don't always have a counselor who speaks another language. Usually the request would be for a Spanish speaking, instead of, if somebody doesn't speak English, and so we'll either have a counselor who speaks English, or we have attorneys who we know speak Spanish, and so we can refer someone to them, and, um, we usually have at least a staff person at Women Employed who if they can't counsel, they can at least speak to the person and give them the name of an attorney; otherwise, we will refer them to other agencies, like we have a Legal Assistance Foundation in Chicago, or Immigrant and Refugee Coalition. And then our next step would be -- We have all these fact sheets that are available, that we -- Our next step would be to plan to write them in Spanish as well.
JUDGE ZIMMERMAN: Chris, the first step in the -- in the journey for most workers is filing a charge of discrimination with a government agency. Are undocumented workers afraid to go to the government? Are there special challenges in going to the government? And in your area, what would you say about what the EEOC has done in stepping up to these challenges to try to make Title VII a real law that is accessible to people of a different national origin?
CHRISTOPHER HO: Well, I think certainly the step of filing a legal claim is a big step for anybody, immigrant or non-immigrant, and I think it is especially so in the case of immigrant workers for the reasons I've mentioned. There are these tremendous barriers that have to be overcome, and ultimately an immigrant worker's decision to file a claim is a huge leap of faith in the system, in their attorneys, um, and so it is -- It is in some cases, it is insurmountable.
With respect to the San Francisco area, I think the San Francisco District Office is a model. It could be a model nationally for how the EEOC should go about doing outreach and ensuring that it has in fact equal access to its services for immigrant communities. That office has placed a huge premium on hiring multi-lingual staff, not only investigators, but attorneys. They've done unremitting outreach to the Asian and Latino communities. They've gone to great lengths to set up community-based task forces, so that the EEOC legal staff interfaces with them, and has, I hate to say it, a finger on the pulse of those communities.
JUDGE ZIMMERMAN: It is a contagious disease.
CHRISTOPHER HO: Yeah, I'm sitting too close to you, so --
JUDGE LAY: Chris, may I ask you, does the EEOC attorney staff help immigrants who are seeking asylum, or under the Immigration Act?
CHRISTOPHER HO: Well, they don't do any direct assistance in that regard, in that -- Quite the contrary. The case is usually that the immigration systems and the workplace enforcement systems are totally separate, if not at odds with each other. There is -- There is absolutely no coordination between somebody who is bringing a claim, and their right to stay in the country, and so the rug gets pulled out of many people who get deported in the midst of a case, as nearly happened with several of my clients.
I think, though, looking more generally at the EEOC nationally, I think much could be done along the lines of what the San Francisco office has done, in terms of language capability, in terms of trying to ground its work in what the community organizations are bringing up as issues.
Um, I did want to mention that I think that some of the recent regulatory changes that the EEOC has embarked on have not necessarily been for the greater good of immigrant workers, um, and in this respect, the 2002 Compliance Manual modifications to the national origin area, I think in some ways are actually an important step backward for the EEOC.
Um, I am most sensitive to language rights issues, and so I focused on what the Commission has done in the Compliance Manual revisions with respect to the speak English only rules. And, you know, I think it is noteworthy that in comparison to the '84 guidance, which came out under Clarence Thomas, the 2002 version makes no mention of its primary guideline on this issue, which is that adverse impact is to be presumed from the existence of an English only rule, and there are also certain conclusions that could be drawn from the national origin guidelines, in terms of possible indications that certain employer justifications are per se tantamount to business necessity.
One thing, another thing that is troubling is that the guidance -- The new Compliance Manual suggests that if co-workers have a problem with your speaking your own language, that may be -- That may be the basis for finding of a business necessity in favor of an English only rule, which I think is a quite controversial holding. It basically says that catering to your co-workers' prejudices is a legitimate reason for an English only rule, when such rules actually tend to divide and polarize a workforce.
Um, and in this regard, I don't think the EEOC needs to be a reflector of judicial decisions. Yes, it is true that some of this work cites case law since 1984 that has not always been -- gone the right direction on this issue, but I think, in contrast, again, the 1984 Compliance Manual, and the guidelines that preceded it, responded to some very early bad case law coming out of the Fifth Circuit on speak English only rules, and I think that EEOC, if we are talking about the evolution of the law, the EEOC could take leadership in this role, as it has before, in making the guidelines less helpful to defendants, and, you know, setting an overall tone of greater scrutiny of these things.
JUDGE ZIMMERMAN: All right. Jocelyn, with your finger still -- I guess I'll stop using that phrase.
Jocelyn, the EEOC's 2002 guidelines note that today one in ten Americans is foreign born. One in eight is Hispanic. That there is a significant increase in our country of people who are of different national origins.
As we become a nation of many tongues and many colors, does Title VII need fine-tuning in this area, as either at the regulatory or guidance level, or on the Hill, and what would you suggest?
JOCELYN FRYE: I'm not sure I know the exact answer to the -- to the question. Um, although my initial thought is that I'm not sure if Title VII needs fine tuning. Um, I think I would look hard at whether or not there does need to be some clarification about how the law is to be supposed to work, because clearly there is some basic expectations that we have about trying to make sure that Title VII's protections afford adequate protection to folks who are of different national origins, and -- And to the extent that that is not happening, um, we could look at, you know, whether or not there is some regulatory or clarification that is needed. But I tend to think, um, and maybe this is just, you know, my own conservatism, I tend to think that the problem is less about the law, and more about the implementation, and about making sure that the law is implemented and interpreted in the manner that it ought to be, to make sure that people are treated fairly in the workplace. I mean I think that you are right. One of the things that they probably didn't think about when the Civil Rights Act was passed, was the increasing diversity of our workforce, and the -- the many different racial and ethnic combinations that now make up, you know, the workforce. It is changing in an extraordinary way, and if you look at some of the data about where we will be 10 years from now, 15 and 20 years from now, it is very different from where we were 15 years ago and today.
That being said, I think that the law, Title VII, has the capacity to deal with that change, but I think perhaps what is needed is agencies like the EEOC looking very hard about what sort of guidance they might give to, as that change happens, you know, issues like compound discrimination, or what people often call double discrimination situations where people are discriminated against not because of one factor, but multiple factors, not simply because of a person's race, but perhaps because of their race and gender, or their ethnicity and gender. Those types of questions, the law still needs a lot of development.
And the case law is mixed out there, and, um, you know, maybe there is a role for agencies to play in trying to better frame how that law develops.
Um, I also think that it is valuable to look at the data that agencies like the EEOC have. There is a lot of good data out there already about what is happening in the workplace, and, you know, trends about, you know, whether or not there are different groups who experience certain types of harassment more than -- or discrimination more than others. Um, that type of information could be quite useful in figuring out where guidance needs to happen. So, you know, I tend to think that, um, you know, just because our country is changing, I mean, the great thing about our laws is that they are designed with some basic principles in mind, and hopefully have the flexibility that allows them to, um, still make sense in the context of our changing country.
And so I don't think that the changes always necessitate a new law, or tinkering with the old law, but perhaps just making sure that this law is sort of meeting the needs of folks as our country evolves. So I wouldn't rule out some sort of regulatory approach, or some combination of guidance by agencies as they anticipate and see problems that are out there.
The one thing I would say, and this goes to what I think Chris was talking about earlier, I do think there is an important role for agencies, in terms of being very clear about what their policies are in this area. I think particularly when you are talking about issues around national origin discrimination, when you are talking about people who may be immigrants coming to this country, their perceptions about the government, and how the government works, may be very different, and may be very much driven by their own personal experiences. And I think historically, um, you know, different communities, particularly language minority communities, haven't always looked to the EEOC for assistance in the same way that other communities have, and there may be a lot of reasons for that, that have nothing to do with the EEOC at all, that have to do with their own personal experiences, and maybe some of it is linked to sort of how effective they think those agencies are. But I think people have to be mindful of that context as well, that there is an important role for agencies to be very clear about what it is that they will do for, um, individual workers.
JUDGE ZIMMERMAN: Chris, in the area of language, the EEOC regulation had presumed that, um, something like an English only requirement would have a disparate impact on people who did not speak English, presumed it without requiring statistical proof. So the EEOC regulation was in a sense sort of at the -- where you probably think the law should be, and then the Ninth Circuit, in the Spun Steak case disagreed with the EEOC regulation, and said some proof of impact is required.
Is that circuit alone in the country now, or where do you think the courts are going with proof requirements with English only policies?
CHRISTOPHER HO: Oh, I think the story on that is still in the process of being written. The Ninth Circuit rationale, which is -- part of which is if you have the ability to comply with an English only rule, then you could be legitimately required to do so, um, because you can avoid any adverse impact of violating the rule.
Um, there are other certain -- This issue is currently before other circuits, and I am confident that the EEOC will act in those cases to defend its guideline. I think what is very pernicious about the Spun Steak decision is the ability to comply rationale. It presumes that if somebody is bilingual enough to be able to comply with an English only rule, they can be forced to do so, and can be fired if they refuse to do.
I think this rationale is really pernicious, particularly in the area of national origin discrimination, but more largely as well. It is as if you are telling Rosa Parks, "You can be legitimately required to sit at the back of the bus because you can physically do so." That rationale ignores a whole plethora of dignitary harms based on one's ethnicity. Language is very closely related to one's sense of self, and to one's national origin.
Professor Tribe had an example of suppose you could have African American job applicants take, as a condition of employment, a magic potion that would transform them into looking like Caucasian people. Would it be -- Would it be legal to require them to do that as a condition of taking the job? Now most people would say of course not, it wouldn't be legal, but that is precisely what is going on in the Garcia rationale, and again, in the national origin area, it is particularly problematic, because in national origin discrimination, it is typically not the fact of one's origin itself that is the target of discrimination, as much as it is the traits of the person which are linked to that origin, such as dress, grooming, language, observances, and if people are forced to change those aspects in order to look more American in the workplace, then I think that is a huge step backward. And I think that for that reason, this rationale articulated in the Spun Steak case is really pernicious, because it deems those traits not worthy of Title VII protection in that you implicitly have to surrender those very important aspects of yourself in order to keep and hold a job.
JUDGE ZIMMERMAN: I don't see how the majority could have ruled against you in Spun Steak with that kind of presentation, but I'm just a Minnesota judge, so --
JUDGE LAY: Let me just say that the Spun Steak case which you are talking about, there was a summary judgment for the employee on whether the lack of inability to use the English language affected the workplace. Um, on appeal, Judge O'Scannlain reversed that, but he did so on the basis that there was a substantial material fact involved, and so it was remanded for a determination of the fact. Judge Boochever dissented, feeling that the summary judgment was proper. But it was not a totally adverse opinion to the employee.
JUDGE ZIMMERMAN: Let me -- We have saved time for questions. We have a couple already. Let me conclude our morning's presentation with some philosophical -- room for philosophical thoughts from our panel.
Judge, and distinguished members of our panel, and members of our audience today, we're celebrating 40 years of Title VII. Judge, you've been there making the law real for 38 of those 40; and, Liz, you were a civil rights worker in Georgia while you were still in law school, you were there, Liz, when it was dangerous with your life on the line dangerous to be for civil rights.
Let me ask all of our panelists, beginning with the judge and Liz. Judge, you write of human decency in your opinions, has Title VII made civil rights real? Has it promoted human decency in the workplace? And are we approaching a day, years after the passage of Title VII, where people are judged on the content of their character, and not the color of their skin, or the accident of their sex? Judge?
JUDGE LAY: Well, there is no question that there has been a tremendous advancement since the passage of the Civil Rights Act. But as I've said before, I think we have a long way to go, but we're -- we're certainly changing the situation in the workplace. And I think more and more people, as the cases come down, are getting the information, and I think the Supreme Court, as it is presently constituted, has been very effective in that role, and I think it will continue to be so.
JUDGE ZIMMERMAN: Liz, you were there when you risked your life in Georgia. What would you say?
ELIZABETH HOLTZMAN: I have to agree with the judge. We've made, excuse me, a lot of progress, but we still have not eliminated the dreadful stereotypes, whether they are racial or gender-based, or national origin based, ah, that that haunt us as a society. Um, but as a lawyer, I guess we are grateful to have at least some tools to fight for justice, and Title VII has made that effort more possible, but that doesn't mean that any one of us can just sit on our laurels, we are far from that ideal day.
JUDGE ZIMMERMAN: Chris?
CHRISTOPHER HO: Um, I mean since we're celebrating the 40th Anniversary of Title VII's enactment, you know, one thing that gives me pause, is that I'm not sure Title VII could be enacted if it were up before the Congress today, let alone would we be able to get such great decisions such as Griggs versus Duke Power and Albemarle Paper. That is totally not clear to me, so if that is one measure of progress, I'm not sure if we have made any. Having said that, I think obviously Title VII has made a big difference to many of our clients. I think there is, again, much more to be done as well, but without it, we'd be a lot -- we'd be a lot worse off.
JUDGE ZIMMERMAN: Jocelyn?
JOCELYN FRYE: Well, I agree with what others have already said, I mean it goes without saying that, um, the Civil Rights Act and Title VII have been enormously helpful. We couldn't have made all the progress we have without it. But I agree with Chris. I think it's instructive that, you know, we can't say confidently that if it was before this Congress today, that we would pass it, and I think that speaks to a number of issues, and one of the things it speaks to is perhaps our tendency to sort of be -- to have a short attention span, you know, to sort of think we passed a law, we fixed the problem, let's move on. And while we did pass a law, and we addressed part of the problem, there is a continuing sort of need to be vigilant about making sure that the law works for everybody. Um, you know, we have done enormous and wonderful things, but today we still see some of the same discrimination that was there in 1964, and that speaks to not so much that we haven't made progress, but that despite that progress, some of those problems persist.
So I think that if anything, um, even with the 40th Anniversary, what we should take away is a renewed vigor to talk about the discriminatory practices and the problems that laid the foundation for the law in the first place. Those things are still out there. We still need to be vigilant against them, and we still need to be receptive to talking about them in a productive way to make sure that we are doing all we can to make, not only the workplace, but our society one that operates under sort of basic equal opportunity principles.
JUDGE ZIMMERMAN: Melissa?
MELISSA JOSEPHS: Um, I guess I would just say that it is, as Jean said, a tool, and a tool that has been used, and should continue to be used, both by attorneys, by EEOC, and then also, um, more as a threat by individuals who don't necessarily want to file a lawsuit, just want to make the discrimination go away, and use it as a threat. But I can't help but add that, you know, in thinking of it as a tool, it reminds me sometimes of, you know, a knife that I'm using, and I always think I'm using this knife, but I really should sharpen this knife, but I never go out and get a knife sharpener, but I know that is what I should do. And that is how I think of EEOC (sic) -- Title VII -- oops, and this is on tape --
(Laughter.)
JUDGE ZIMMERMAN: We just turned it off.
MELISSA JOSEPHS: -- that the Title VII should be sharpened.
JUDGE ZIMMERMAN: Jean.
JEAN BOLER: I'll just use my last minute to put in one more plug for making the implementation of the law more humane for the litigants. I think that there should be more focus on expanding Rule 412 , and educating judges, and really focusing some of our efforts on making sure that once people take that step of trying to bring about change in their workplace, that they aren't penalized for that.
JUDGE LAY: May I just say in closing that I think the audience should be greatly indebted to our moderator. Um, Lloyd Zimmerman is a trial judge in Hennepin County, which is Minneapolis, adjacent to St. Paul, my little village where I live, and he's had a very distinguished career, both with the EEOC and in his representation in Legal Aid cases, and so on, but I think he's done a marvelous job of research and stimulating the panel, and I hope it's been a great aid to all of you.
JUDGE ZIMMERMAN: I would like to thank our distinguished panel, and I'd also like to thank the United States Equal Employment Opportunity Commission for helping this happen today, the American Bar Association, and the Equal Employment Opportunity Committee of the ABA, the District of Columbia Bar, and the Labor and Employment Law Section, Georgetown University Law School, which has allowed us to use its magnificent facilities, and last but not least, the Lawyers Committee for Civil Rights Under Law.
We do have time for questions. I know none of you are hungry, despite the fact it is 10 after 12. We do have an opportunity for questions. I do have a few questions written on a card, um, so we could take a few more minutes. For those of you who want to leave, um, we'll miss you, but for those of you who want to stay, we have a few questions.
Um, the first one is directed to Melissa and myself, which is: What was it like being born in the Chicago area? That is the moderator's privilege. Um, there is a question about whether there are management lawyers on this panel, and if we made an effort to have management lawyers. Um, I think it's fair to say we do have people who represent management, but why don't I let the panel speak for itself. Do we have people here who worked in firms and represented management from a management perspective?
JEAN BOLER: I'm currently the Director of the Employment Section for the City of Seattle, so we do counseling for City Departments, and we do some litigation from the management perspective, and I can say it is a lot easier doing this job than it was litigating as a plaintiff's attorney, and I do see that there still are constantly questions from our departments, even in an extremely liberal city like Seattle, with extremely liberal politicians in charge of the city. There is still that tension that comes up with, maybe more in the disability discrimination area than some of these other areas, but I think that that is where I get a lot of my perspective, that there are people that really do want to do the right thing, and get challenged on it, even today, so --
JUDGE ZIMMERMAN: I have a question that goes beyond the scope of my knowledge, but I'll just read it. It is: The EU, which I think stands for European Union, has adopted an anti-bullying standard. Some feminists argued against its adoption in the U.S., as it would de-sex the workplace. What are your thoughts about that policy, and the arguments for and against its adoption? I'm glad I'm a moderator, because I don't know the answer, and it may be that this is out of the realm of our conversation today, but does anybody have any comment about that from our panel?
MELISSA JOSEPHS: You say anti-bullying?
JUDGE ZIMMERMAN: Bullying.
All right, let's see, does anybody else have any questions? You are welcome to come up to the --
SPEAKER: Hi, first of all, I just want to say I'm so excited by this particular panel that I only hesitated to speak because I was afraid I'd talk too long. Please shut me up. I won't be offended.
I just want to say thank you to all of you. You really have been marvelous. And, Judge Lay, I just, if I can go to the people I want to highlight. Judge Lay I never met before yesterday, and I have been so impressed, because you are a model as a person, as a judge, and as a man who will, though he does not have a uterus, has shown incredible sensitivity to the needs of women, and it is wonderful to see people who can think and feel outside of themselves and reach out. Those are the kind of judges that we need, and I want to thank you personally for remembering our conversation yesterday, and raising it actually with the group, because I am the person who has the personal litigation pending six years before the Chief Judge of the U.S. District Court, and I thank you for mentioning that and feeling for me.
Congresswoman, I am a native New Yorker, and I have to tell you, you have been an inspiration to me for a very long time, and I can't remember what year it was, but I remember so distinctly how they just didn't know what to do with you. There was an anchor with a major network in New York, you probably remember this, but they referred to you as Congressman Elizabeth Holtzwoman. And I still laugh when I think about that. And I think they got a lot to get used to, and people like you make them turn around, and I really have to thank you for your contribution.
Chris Ho, I never met you or heard of you before, but I actually have -- sorry, but I am going to, because I actually have a groundbreaking national origin case which has to do with the extraterritorial application of Title VII, but not for U.S. citizens, which is covered by the '91 Act, but for permanent legal residents who are waiting for their citizenship, and I have a wonderful test case, perfect. I'm going to give you a copy of before I leave.
And Jocelyn Frye, please don't leave before I catch you, because I also have got a -- a sex discrimination case and tort case involving a -- it is actually before the Supreme Court, petition for cert, and I really want to get several of you actually a copy of this petition for cert, because it involves really important questions with respect to workplace violence, and employers' responsibility for workplace violence, and domestic violence against women in the workplace, so you have just all been tremendous, and an inspiration, and I'll sit down now. Thank you.
JUDGE ZIMMERMAN: Oh, don't stop. Any other questions? How about the distinguished gentleman at the mike?
PROFESSOR ODUNATARIK: Good morning, and afternoon, at least. And to the gracious panel, my question, or statement, it is kind of like the cart before the horse, but I hope you bear with us. Will the legal community benefit from a Truth Commission enacted every 10 years, modeled on the South African Model? My name is Professor Odunatarik (phonetic) from the George Washington Carver Institute.
JUDGE ZIMMERMAN: Thank you, Professor. Distinguished members of our panel, can any of you respond to the professor's thought?
JOCELYN FRYE: Well, I'll try to get at it a little, though I'm not sure if I am going to address all of it. But, um, the question of sort of a Truth Commission, or I mean maybe what I'd take away from it is some sort of consistent effort to consistently sort of evaluate how the -- the profession operates, and how our legal system operates, and judicial system operates, you know. Would there be some value in all of that? Certainly. I mean I think we could spend a whole panel -- We could spend a couple weeks talking about how the legal profession operates, and to the extent it operates fairly for all people, and, um, both in terms of lawyers and access to legal opportunities, as well as, um, looking at it from the perspective of the administration of justice. Does everybody who walks into the court, do they get treated in the same way? If you look at just the statistics, for example, around employment discrimination, there is a huge disparity between how successful folks are who bring employment discrimination cases, as opposed to folks who bring other types of cases. So, you know, for a variety of reasons, um, there might be some value in that.
I think we would have to talk more about exactly what you would want to get out of it. My experience, generally speaking, with commissions, or perhaps it is just commissions that -- I don't mean like the EEOC, but sort of commissioned entities to look at a particular problem, you know, those sort of have mixed success, and my experience is that sometimes people don't always use those commissions to get at the issues we really want to get at. But, um, you know, I certainly don't think there is any harm in exploring a lot of ways to make sure our system functions properly, because, you know, we can't assume we always know we're always doing the right thing.
JUDGE ZIMMERMAN: Thank you for that question, Professor. Would you speak as loudly as you can so everybody can hear you?
SPEAKER: When do you think Title VII would be amended to include sexual orientation as a protected basis?
JUDGE ZIMMERMAN: The question is when do you think Title VII would be amended to include sexual orientation as a protected bases?
Members of our panel, how would you care to respond?
ELIZABETH HOLTZMAN: Well, I could say that I was one of the sponsors of the original legislation. I think there were only 12 of us at that time. I think it was introduced in 1976. I think that there are more sponsors today. New York City has, um, an Employment Discrimination Ordinance that includes gender -- I mean sexual orientation discrimination. We won an important case under that statute, but, you know, the -- the dogs of prejudice are still yapping here in Washington, as well as elsewhere, and I don't think it is going to be any time soon, since we are now talking about a constitutional amendment on marriage. I remember the very first case I actually wrote a brief on, I guess I wasn't supposed to, was the very first case that the Supreme Court decided saying that anti-miscegenation laws weren't constitutional, so it seems the more you go forward, the more you go backwards. But sooner or later, I hope sooner, but sooner or later this will happen, because the struggles we've seen in this country over a long period of time, it took us from we had slavery, we enacted slavery in our Constitution, and then it took a civil war, you know, another half a century before we did away with slavery, and then it took another hundred years to get the Civil Rights Act of 1964, and we've made some progress since then. Um, I hope it's not a hundred years, but, you know, slowly but surely we have the -- we have been forced to realize that a lot of these prejudices are unfair and inappropriate. Um, but I wish I could say tomorrow, but I, you know, we know that that is not true. And maybe it is going to happen more on a state basis, or local ordinance basis around the country, and that will help to show people that, you know, somehow the country is not going to fall apart. Life isn't going to end. We can't discriminate against gay people.
Um, and by the way, I'm just going to, since our moderator did mention my book, I do want to mention if anybody is interested in getting a copy, I did bring a few, and would be happy to autograph them for you after the panel.
JUDGE ZIMMERMAN: Other questions? Yes.
SPEAKER: Melissa, you said that Title VII could be sharpened. Jocelyn, you think it just needs to be implemented better. Could you both please join and explain that issue?
MELISSA JOSEPHS: Well, I think what Liz just said, I was literally just thinking this, that is one exact way it could be sharpened, is that, and then of course used. That is what I was thinking, is adding perhaps that protected class, and others.
JOCELYN FRYE: Well, I mean I don't think that what we said was actually inconsistent. Um, I agree that there are certainly ways to expand the law to make sure that it covers, um, all people effectively in the workplace, but I don't think we ought to lose the point. It is not enough to pass it. We pass a lot of good laws, but if they are not implemented, they are not of much use, and I think that we spend a lot of time sort of arguing about, you know, the specific words here and there, and, you know, members of Congress spend a ton of time coming up with the perfect language, so that the law is perfectly crafted, and then it passes, and not enough happens. And I just don't want to lose that piece. It needs to be implemented better. There is enforcement that we can do. There is a lot of work that we can do around educating employers and employees alike about what the law is, and what -- how it is supposed to operate, and we can't forget that fundamental responsibility, because we see today, as I said earlier, some of the same problems that were true, you know, 40 years ago. Um, so I -- I think that, you know, that basic role of making sure that the law is effectively enforced is sort of our responsibility of making sure that -- that the law sort of lives up to the potential and the promise that we think it has when we first passed it.
SPEAKER: Um, several of you talked about how there is a lot left to go to kind of have true equality in the workplace. I'm wondering where you think, um, reverse discrimination fits in, you know, regarding people who are not part of the protected class, how big of an issue is that, and where does that fit in, having equality?
JUDGE ZIMMERMAN: The question, so you can all hear it, is that some of us have said that the law still has a ways to go, and the question is how does reverse discrimination fit into it? Did I paraphrase that all right? Members of our panel, can you respond? A thought-provoking question.
JOCELYN FRYE: I mean I'll jump in. I mean I - I think, you know, the wonderful thing about our laws is that they work for everybody, um, and I think that is what people forget, even though there was clearly a very important movement that led to the passage of the Civil Rights Act of 1974-- '64, it was a law that was for everybody. It wasn't just about African Americans. It wasn't just about women. It was about, you know, everybody, and how we function as a society.
So, you know, I'm not a fan of the term "reverse discrimination," because I think it carries a lot of implications, and many times, although clearly not all the time, those cases are posed as a way to undo important benefits and gains that have been made that relate more to the politics of the issue, and we can't sort of get away from how those cases sometimes are used, and I certainly wouldn't suggest that that is always the case, but I think that, um, there is certainly an important role to make sure, and it is part of the principles of how we move forward, particularly in the context of Title VII, we have an obligation to make sure, while at the same time we are making the workplace equal, and making adjustments to accommodate a variety of different folks in the workplace, we are not unfairly penalizing people in the workplace as well. I mean that is the principle that undergirds things like affirmative action, and a lot of policies that are in place. It is not always a perfect science, and so I think there is nothing wrong with people bringing cases to make sure that we operate in a way that treats everybody fairly in the workplace. So, in that sense, I -- I don't think there is any problem with it, and it is entirely appropriate to make sure that the law is truly working for everybody in the same way. And so in that sense, it is, you know, it is entirely appropriate. I think there is a broader, sort of unspoken political question about, you know, how reverse discrimination cases are used, and sort of in what context those types of cases are being brought. And I suspect that we would have very lively conversation about, you know, what we think about those cases, depending on the set of circumstances.
JUDGE ZIMMERMAN: Other questions? Yes, sir.
SPEAKER: We were talking about Title VII working for everybody, and we talk about it as though it -- and it is federal legislation, so theoretically it applies to everyone in the country, but since we have a judicial system that is carved up into different circuits, it appears that a plaintiff's experience in one circuit is going to be markedly different to a plaintiff's experience in another circuit.
JUDGE ZIMMERMAN: Would you hold the mike up a little bit more, sir? Thank you.
SPEAKER: A plaintiff, for example, who has been discriminated against in Virginia, in my limited experience, suggests would have a markedly different experience litigating under Title VII than that same plaintiff would have who crossed the river into Washington, D.C. I guess what I'm asking the panel is if you have any comments on how these different circuits, some of these circuits appear to be very hostile to cases brought under Title VII, and what implications that has, if any, for the effectiveness of Title VII, and the way we're talking about it as legislation that applies to everybody equally?
JUDGE ZIMMERMAN: How can the law be for everyone, if the result might depend on the circuit, an accident of where you live, where you bring the case? Members of our panel.
JUDGE LAY: That is what we have a Supreme Court of the United States for. Ah, if there are conflicts among circuits, as there are, important questions, the Supreme Court will take those cases, and they have recently done that on several cases. Um, and I think the -- I mentioned the Pennsylvania police state, the state police case Suders. That was a Seventh Circuit or a Third Circuit case that they reversed, and I think the Supreme Court, you know, is very hard for them, that back when Frankfurter was there, and retired in '38, well, he didn't retire in '38, but he said that we have 732 petitions for cert. If we get one more, we can't possibly handle it.
Today they have over 6000, and they still have the same nine people on the court, and they've developed and divided their workload, and I think they do a tremendous job, and I'm generally familiar with each of the justices, and I think they really work hard at it. They are overworked, to tell the truth, but they're - I think they can't take every case, but I think they do a great job, and we -- I can say as a circuit judge, we have to follow what they say, and I think -- I think it is good for the country that we get divided opinions by circuits, and at least, you know, we test an idea, and one idea may be better than the other, and that is the whole concept of why we have circuit splits. But there is still one body under the constitution that is supposed to resolve this.
JUDGE ZIMMERMAN: People from Chicago don't like to yield to anybody, but I am going to yield to Dianna Johnston, who is our overseer from the EEOC, and we have something -- you have something important to tell us.
DIANNA JOHNSTON: Just mostly to thank all of you. This was just a fabulous panel, and we are so thrilled with what you've done today, so we just want to thank you. Um, and also --
(Applause.)
DIANNA JOHNSTON: I also want to remind you that next week there will be another panel, um, focusing on the amendments, the '91 amendments to Title VII, and the developments -- the developments after that, that I'm sure it can't measure up to this panel, but we think it will. There has been a lot of hard work going into all of these. I also wanted to recognize, um, Commissioner Miller, who is here somewhere, and I -- Oh, there. I saw him this morning. So that is all for today.
Again, thank you all. Just for a wonderful, exciting morning.
(Whereupon, the proceedings concluded at 12:37 p.m.)
This page was last modified on July 28, 2004.