The woman justice who never made partner—or even associate in 1983—found herself facing this reality from behind the bench. The powerhouse Atlanta law firm King & Spalding, home to Jimmy Carter’s former attorney general, Griffin Bell, had turned down a young female Columbia graduate, Elizabeth Anderson Hishon, for partner. King & Spalding had never had a female partner. They had just made their first Jewish partner a few years earlier. To their astonishment, Betsy Hishon, a stereotypically good girl, who had never made waves, filed suit. The firm, she charged, had discriminated against her in employment, in violation of the Civil Rights Act. Unlike Sullivan and Cromwell and the rest, King & Spalding did not deny that they discriminated against women, and they would not settle. Instead they stood on principle: law firms are partnerships, not employers, under the Civil Rights Act, and so in deciding who to take as their partner, they’re not hiring, they’re choosing partners. They can discriminate as much as they want. Indeed, King & Spalding told the courts, the most powerful engine of freedom in the American political universe, the First Amendment to the Constitution, protects their right to associate—or not to associate—as partners with anyone they choose. If they decide that No Girlz are Allowed in their club, it’s their constitutional right.
Actually, King & Spalding had a few females at the firm when they rejected Betsy Hishon. According to The Wall Street Journal, right before Hishon’s case got to the Supreme Court, one of the Girls of King & Spalding was the prize-winning summer intern “with the body we’d like to see more of.” The others participated in a bathing suit contest (they had planned a wet T-shirt contest, but someone must have told them it wasn’t a great idea in light of the pending litigation). Bathing suits, wet T-shirts: the media covering the case were over the moon.
No one on the Supreme Court wanted to rule in favor of King & Spalding. O’Connor’s law clerk Stewart Schwab, who wrote the pool memo about whether to take the case, thought the firm was wrong about partnerships being exempt from the Civil Rights Act and protected by the First Amendment. He recommended waiting until the lower courts had ruled a bunch of different ways on the matter, what is called in Supreme Court language a “split in the Circuits.” All those rejected female lawyers could wait until the lower courts had disagreed among themselves. Not surprisingly, Justice O’Connor, rejected three decades before by every firm she solicited, did not think the young women should wait. She thought the Court should grant review. And so it did, by the minimum requirement of four votes. The legal issue in the case is a technical one. Partners are equals in risk and control, unlike employers and employees, and the legislative history of the Civil Rights Act is unclear about whether the prohibition against race and sex discrimination in employment applies to that more informal and egalitarian relationship. Firms couldn’t refuse to hire female associates, but maybe they could refuse to become partners with the women.
Were law partnerships exempt from the Civil Rights Act? At oral argument, O’Connor was unusually aggressive with the lawyer for King & Spalding: “Congress knew full well how to write in exemptions to the Civil Rights Act,” she said, “and they put in three (small businesses, religious organizations, state and local government) and you’re asking us to create one out of some abstract notion of lawyers. If Congress had intended to have this exemption, wouldn’t it have said so?” Answering her, King & Spalding’s lawyer, the legendary champion of the racial civil rights movement Charles Morgan, sounded downright testy. Maybe, despite the First Amendment argument, he was embarrassed to be arguing that a law firm could legally say it just would not hire women—or black people. It was certainly the first time Morgan had to answer to a powerful woman lawyer as to why the club said no girls allowed.
The Court ultimately got around the problem of how the act applied to partnerships by focusing on Hishon’s situation. She was hired as an associate with the assumption that the firm would consider her fairly for partnership at the end of her probationary period as an associate. Unlike a partner, an associate is unambiguously an employee of the law firm. With the help of the Justice Department’s supporting briefs and argument, the Court ruled that the decision about whether to promote an associate, who is clearly an employee, to partner, was an employment decision covered by the Civil Rights Act (and not, they easily concluded, protected by the First Amendment).
The case is interesting to Court buffs, because the archives show Warren Burger overtly engaging in the behavior that drove his colleagues nuts, but which was often hidden from view. He would vote with the majority at the conference when the cases were tentatively decided. Then, as a member of the majority, he could claim his privilege as the chief to assign who would write the opinion. He would then assign it to himself and undermine the decision he did not really support as much as he could get away with without driving his colleagues to produce a competing opinion and steal his majority. So in Hishon, which was unanimous, he circulated a draft opinion suggesting that her case against the firm was based on their contractual commitment to treat her fairly rather than the Civil Rights Act requirement that law partnerships as employers treat all employees fairly. Had he succeeded in holding a majority for his opinion, the ruling would have been fine for Betsy Hishon, but so narrow as to be meaningless for the cause of women’s equality. Law firms would just start inserting a clause in their hiring contracts that hiring as an associate meant nothing about consideration for partnership.
In a heartbeat, the liberal Justice Brennan jumped all over Burger. The result is right, he says, but that’s not the law. I guess I’ll have to start a competing opinion. Justice Stevens jumped in with a memo adding a snarky but entirely accurate comment that Burger’s theory would not even justify putting the case in federal court. (Ordinary contract disputes go to the state courts. Only the federal Civil Rights Act claim put the case in federal court.)
Even with the other justices piling on, Justice O’Connor felt constrained to add her voice, warning the chief that she would not join the opinion as he suggested it. “I still think the opinion should recognize a recovery under Title VII rather than on simply the contract theory.” Burger, realizing he’d gone too far, backed off and wrote an opinion applying the Civil Rights Act to law firms’ promotion decisions.
Justice Powell was the only jurist who thought the chief was right the first time. He had aggressively questioned Hishon’s lawyer about how law firms could function if their every partnership decision was subject to the Civil Rights Act. Powell didn’t think law firms had a sex problem in the enlightened year of 1984: “Discrimination is unlikely to occur certainly at this late date—because it is contrary to a firm’s best interest,” he wrote in his usual memo to self. “The future of a law firm, like that of a football team, depends on the wisdom and care with which partners are chosen. Neither sex nor race is a negative factor in a modern law firm.” He filed a separate concurring opinion to emphasize the limits on the decision. Okay, law firms couldn’t discriminate against their associate/employees. But once a person became a partner her civil rights evaporated, he reiterated. Good thing women law partners didn’t need the help.
Or maybe they did. Four years after the decision in Hishon, the newly formed American Bar Association Commission on Women in the Profession decided to hold hearings on the issue. The first chairwoman, one Hillary Rodham Clinton, was skeptical that the hearings would be productive. Only the losers would show up, she predicted. Instead, leading lights of the bar—Pat Wald, the only woman on the D.C. Circuit, and Brooksley Born, first female president of the Stanford Law Review and partner at the powerful Washington law firm of Arnold and Porter—showed up to tell stories of the “problem” women faced trying to succeed in law firms. They got case assignments steering them away from the lucrative big cases and stripping them of the ability to strut their stuff; they were confined to obscure jobs, reviewing documents. The law firms acquiesce in clients’ requests not to have women on their matters, and don’t invite them to the critical off-premises social network
ing. Then they are characterized as unable to get new business. Their work, the report concluded, is treated with “a presumption of incompetence.”
Hishon v. King & Spalding appears nowhere in the voluminous literature about the Burger Court. The Supreme Court biographies—of Burger, Blackmun, Powell, Brennan, Stevens, even O’Connor—include analyses of hundreds of cases about everything from exhaustion of remedies in habeas petitions to federal power over strip mining. Yet they are silent about the battle for inclusion of this otherwise conventional young woman attorney. The case must have seemed utterly trivial to the historians of the Court. But for the young women struggling to make their way in firms like King & Spalding, with not enough female partners and too many wet T-shirt contests, Betsy Hishon’s victory felt like a life preserver.
It wasn’t just the young women lawyers who benefited from Hishon’s victory over King & Spalding. When the sociologist Barbara Harris studied nineteenth-century professional women, comparing the difficulties they had in entering the legal and medical professions, she found that women faced greatest opposition from the bar … the law clearly was an all-male domain, closest to the center of power, that was not to be invaded or changed by females. So the progress of women in legal institutions affected women everywhere.
Justice O’Connor knew exactly how important the decision was. The following year, when the New York State Bar Association asked her to write the foreword to its series on the achievement of women in the legal profession, she opened her piece with the decision in Hishon: “Of special interest to women lawyers was Hishon v. King & Spaulding [sic] decided during the 1983 Term, which confirms that Title VII applies to the partnership decisions of law firms as well as to the hiring and promotion policies of corporations.”
As the article reflects, Justice O’Connor had learned a lot about framing “the woman thing” in the three years since her misstep at the 1982 judges’ conference. Bemoaning the underrepresentation of women in the judiciary and the partnerships of law firms, she quickly recognized that “tenacious social and cultural barriers” made women’s advancement harder, and recognized the benefit from women attorneys’ groups acting together to remove the “artificial barriers” that thwart them. Instead of advising her audience to always put their families first, she acknowledged that expecting women to bear the lion’s share of domestic responsibilities is an important part of what holds them back at work. She even gave a shout-out to New York State’s pioneering females, including one “Ruth Bader Ginsberg [sic]” now of the “United States Court of Appeals for the District of Columbia Circuit.”
THE WET T-SHIRT CONTEST
Planning a wet T-shirt contest and defending discrimination in law-firm hiring in the same year, King & Spalding hit a rare double. It presented the Court with a classic example of sex discrimination pure and simple and gave the nation a glimpse into the devilish connection between sex as in sex and sex as in inequality, a much fuzzier concept.
The sex thing had been bubbling up for a while. Stories of male supervisors demanding sex and threatening retaliation were the staples of ’70s consciousness-raising. The stories were unattractive. But were they illegal? At first judges and cultural authorities of all stripes were skeptical that sexual behavior in the workplace was a proper subject for the law. They thought sexual desire was just a law of nature, that the women workers were targeted because they were so luscious, not a protected category under the Civil Rights Act. After all, the bosses didn’t solicit all the women in their office, just the desirable ones.
The resistance is understandable. Redefining even some workplace sex as illegal harassment was one of the most powerful social changes in the history of legal feminism. Foundational concepts of human identity—women as sexual temptresses, men as hardwired sexual predators, sexuality as incompatible with social equality—were at issue when the first administrative assistant sued her boss.
Hearing the stories, a student at Yale Law School, Catharine MacKinnon, began to develop a theory to address the emerging issue. As she saw it, the courts missed the civil rights implications of sexual harassment because there were no comparable male targets of the (straight) male bosses’ desires. So the employers weren’t discriminating on the grounds of gender, the judges said. What the judges missed, she thought, was that sexual harassment discriminated against working women regardless of the existence of comparable male victims, because it disparaged them. Just as racially segregated schools could never be equal because their goal was always to keep members of the subordinate group down.
Finally, in 1976, the D.C. Circuit issued the first ruling in favor of a female employee. Judge Spottswood Robinson, a legend of the racial civil rights movement, thought it was an easy case. The supervisor had solicited the plaintiff, Paulette Barnes, to have sex with him. So what if he didn’t hit on all women? “But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.” When she refused, she was driven out of her job. Accordingly, it was sex discrimination under the Civil Rights Act. Deliciously, Catharine MacKinnon’s father, the conservative Nixon appointee Judge George MacKinnon, was on the panel in that first case.
In hindsight, the Barnes case was an easy call. The court did not have to understand Catharine MacKinnon’s theory of disparagement to find a simple case of disparate treatment. All it had to do was let go of the nonsensical notion that discrimination is only what is done to every woman in the picture (and no men). Being a woman was necessary to being treated badly, in the sex-harassment cases, even if it was not sufficient. Put another way, every woman was vulnerable to such treatment, even if they were not all “attractive” enough to be so lucky. Accordingly, the behavior qualifies as sex discrimination.
But even as the D.C. Circuit was deciding the first, easy case, the harder case was ineluctably making its way to the Court. Does sexed treatment of women in the workplace without any other harmful job action still violate the Civil Rights Act? For that case, MacKinnon’s insight into the disparagement and subordination of women was essential.
HE’S GLAD TO SEE YOU AND IT’S A GUN IN HIS POCKET
When Mechelle Vinson, an aspiring young woman in the Baltimore ghetto, saw the little local bank in her neighborhood, it looked to her like a beacon of opportunity, a way out of her impoverished, dead-end life. As Vinson would later tell a court, during her probationary period as a trainee teller with the bank, her supervisor, the manager Sidney Taylor, “invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but her boss had a gun in his pocket: her job. Fearing losing her job, she eventually agreed.
“Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” When Taylor fired Vinson, allegedly for unrelated reasons, she sued.
In February 1980 Vinson lost her case at trial. But then she got a huge break. Two weeks after the trial court decision, the EEOC recognized that sexual harassment of this sort was not just good fun: it was illegal job discrimination. Here’s where MacKinnon’s insight came in. Taylor’s behavior wasn’t just flattering or natural, it was discriminatory subordination and disparagement of his employee. The court of appeals sent the case back for a new trial under this new interpretation of the Civil Rights Act. The bank appealed the order, called a “remand,” to the Supreme Court. Caught in the changing law, the bank was arguing that even if Vinson’s version was true, she hadn’t suffered in her work—by being fired or demoted—so she had no claim. In the alternative, the bank argued, she should not be suing the bank. Her real gripe was with Taylor. How was the bank to know about his alleg
ed little sexual fiefdom in an obscure branch?
At oral argument, Justice O’Connor took the bank’s lawyer, F. Robert Troll, Jr., in her jaws and shook him like a terrier shakes a rat:
SOC: “The trial court simply didn’t handle the case as a … a sexual harassment … claim?”
Troll admitted the trial court had embraced a now-outdated understanding of the Civil Rights Act, which would not have recognized the wrong done to Vinson.
“Do you agree then,” O’Connor pursued, “that today that could be a valid claim under Title VII?”
Troll asserted that the federal law protected people only against loss of tangible job benefits. Vinson’s firing was unrelated to the abuse, he argued.
“I notice,” she replied, that “the solicitor general suggests that there is a claim” for “the suffering that occurs in the hostile environment itself.”
Troll begged to differ with the lawyer for the United States. He was on thin ice here, because it was settled law that racial harassment—Klan signs on peoples’ lockers, the N word, et cetera—was actionable regardless of whether the black person got fired. The experience of harassment was enough.
This fact informed O’Connor’s next question. Knowing the answer in advance, she asked, “Would you say that if it were a racially harmful environment claim that a tangible effect on employment is a necessary element?”
Troll admitted that “reasonable people could differ” about his position that Vinson had to suffer actual job penalties to have a claim. Congress had said nothing about people’s psychological suffering, he ventured.
O’Connor did not blink: “Do you think the principles are similar in sex harassment as racial harassment?”
“Yes,” Troll conceded, “we do.”
Having basically admitted that Vinson had a claim, he argued that she had the wrong defendant. The bank still was not liable, because it had no idea what was going on.
Sisters in Law Page 19
