The Feminist Promise

by Christine Stansell

  Integration, it’s clear, made little headway in altering working relationships in male-dominated fields. Employers were unrepentant, ignorant, and indifferent when it came to the many obstacles that stood in women’s way; male co-workers were discouraging and, often enough, combative. Women were fired for being pregnant, sexually harassed, and discouraged from trying for promotions. The same law firms that seemed magically welcoming to young women in the mid-1970s proved, within a few years, to be arid and inhospitable: A chronicle of Harvard Law graduates shows that women started dropping out in short order—to have families or work in less high-pressure kinds of law.52

  Across the class spectrum, a few intrepid women sued employers for sex discrimination, in the process expanding the purview of legislation beyond its original intent. Often, it was female lawyers who represented these clients and in the process enlarged the powers of Title VII and the Equal Pay Act. They changed the atmosphere of courtrooms. The late Catherine Roraback, a New Haven, Connecticut, attorney, described the scene in court in the 1960s: “The judges were men, the bailiffs, the marshals, the sheriffs were men; they were all male. The court reporters were men; [the] clerks were men.” But with many more female attorneys appearing in court and serving as clerks for judges, it was more difficult to assume, as the liberal Warren Court did as late as 1961 in Hoyt v. Florida (which concerned sex discrimination in mandatory jury duty), that they were essentially creatures of the home: “The center of home and family life,” reasoned the Court then. Moreover, a boom in articles in legal journals about feminist issues, occasioned by litigation as well as the interest of law students, contributed to the readiness of appellate judges to see matters in a different light.53

  The changes were spotty, but overt forms of disdain and exclusion in legal culture began to buckle. The male counsel arguing for the state of Texas in Roe v. Wade got caught out, for example, when he began his argument in 1972 before the Supreme Court with a sexist pleasantry about the two female attorneys representing the plaintiff. “When a man argues against two beautiful ladies like this, they are going to have the last word.” No one laughed, and Chief Justice Warren Burger glared at him.54

  To grasp the dynamics of feminist litigation, however, we need to understand not only the lawyers and judges but also the plaintiffs who came forward in the 1970s. They represented a range of profiles, motives, and temperaments, from avowed feminists to people who simply wanted a square deal: parents whose daughters couldn’t play Little League baseball, women forced to take mandatory (unpaid) pregnancy leaves or were fired for being pregnant, a widower denied a Social Security benefit that routinely went to widows, and a mother whose daughter was barred from competing in the Soap Box Derby.55 Thousands of women, about whom next to nothing is known, took the first step by filing complaints with the EEOC. Even that minor action required breaking with potent habits of deference to employers.

  Taking the next step to go to court meant trouble, expense, public disapproval, and possibly loss of a job. Eileen Shanahan was one of seven named plaintiffs in a class-action suit filed against The New York Times in 1974 for sex discrimination. She summed up the warning her husband gave her when she told him what she was considering:

  Basically, he said, “Well, of course, it’s your decision to make. But you’ve got to think about what you’re getting into and the consequences because going public with complaints against your employer is something that they will be furious at, any employer will be. You will be exposing yourself to resentment that is reserved for people who criticize the boss or the company in public.”56

  As he calculated it, there were few gains and high costs. His most dire prediction, that she would never again work in newspapers, proved correct: Shanahan left journalism during the lawsuit and went to work for the federal government.

  Nonetheless, Shanahan pushed ahead on the sheer force of principle. She recalled her decision as not so much a choice made for herself but for her daughters. “I didn’t think I could ever look my daughters in the eye again if I ran away from this just because I was afraid of the consequences for myself.” A language of generational interconnectedness runs through her account of the lawsuit. “Well, I wasn’t young,” she stressed. She was forty-seven when the women filed suit, yet she remembered the moment as one of youthful exultation. “But to see the possibility of change at that time,” she reflected. “I guarantee you it was as blissful for me as for any twenty-five-year-old, maybe more so, because I knew what discriminations were out there.”57

  Workingwomen with much less money and much sparser resources stepped up in some very tough cases. Lorena Weeks, plaintiff in the first famous case against AT&T, was a telephone operator for the Southern Bell division in Wadley, Georgia. She was looking to move up to a much better paid switchman’s job—working on the phone lines—when she applied for a posted opening. In 1966, AT&T provided job security and good benefits, but promotions for women were nil, since managers always came from the ranks of linemen. Southern Bell turned her down, openly admitting she was rejected because she was a woman, even though she had more seniority and experience than the man who got the job. Stunned by the reactions of not only management but friends and family (why was she stirring up trouble and trying to take a good job away from a man?), she went to the EEOC, which assigned her a local lawyer. When she lost in court, he told her she would lose her job.58

  Weeks v. Southern Bell is a good example of the gains that could result from collaborations of feminist lawyers and otherwise luckless female clients. Marguerite Rawalt was by this time heading NOW’s legal task force. Rawalt believed that a favorable ruling in the case would close the huge BFOQ (“bona fide occupational qualification”) loophole in Title VII (Southern Bell argued only a man had the strength for a switchman’s position). Rawalt contacted Sylvia Roberts, a feminist attorney in Baton Rouge, Louisiana, NOW, who took on the appeal. In federal court, the tiny Roberts hoisted a forty-pound bench and walked around the room as she spoke: The point was that forty pounds was not much for any woman used to hauling around small children and groceries.59 In a landmark 1969 decision, the Fifth Circuit Court denied the validity of the BFOQ in Weeks’s case and set a higher bar for “bona fide” reasons to discriminate.60

  Regardless of their fate in court, individual lawsuits could do nothing to change mammoth structures of job discrimination. Sympathetic EEOC attorneys confronted the fact that the complaint-by-complaint approach was like draining a swamp with a teaspoon. The worst problems had to do with discrimination so sweeping that it stretched as far as the eye could see and thus looked normal. In feminized sectors of the labor force—offices, retail, and low-level service work—differences in compensation were harder to spot; where the sexes didn’t work together, there was no readily apparent comparison. Habitual structures of preference—unconscious, semiconscious, and explicit—favored men for promotion, divided jobs by sex, and valued men’s work more highly than women’s. These hierarchies overlapped with racial hierarchies. A prime offender was AT&T, which accounted for 7 percent of all the EEOC’s complaints by 1970. The Weeks case was not enough to make a dent. Seizing on a technicality, the EEOC brought a legal challenge to AT&T’s discriminatory practices, winning a 1973 settlement that required the company to pay millions of dollars in back wages to some 13,000 women and 2,000 minority men. Over the next year, the number of women in management increased by 25 percent, and the number in skilled jobs—the kind that had been denied Lorena Weeks—rose by 78 percent. It proved over time an empty victory, however, when deregulation effectively broke up AT&T and rearranged the corporate structure.61

  Gains were unsatisfactory and compromised, laced with employers’ and co-workers’ ill will even when plaintiffs prevailed. Many a woman who sued an employer left for another job, whatever the outcome. Plaintiffs retained the stigma for years; usually they ended up saddled with legal fees, however generous the attorneys; seldom were they hailed as heroines; often they were forgotten. “It takes enormous
courage,” observed Harriet Rabb, who specialized in some of the earliest and nastiest cases in New York. “It is a long, slow, painful, difficult, and ego-destroying process.” In large part, she found, the plaintiffs “do it for the women who come after them.” Sally Frank, an undergraduate at Princeton University, began her ten-year battle in 1979, when she was a sophomore, to desegregate the all-male undergraduate eating clubs. Although she opened the way for hundreds to dine and network in the posh clubs, in the collective Princeton female historical memory either she figured as an unpleasant troublemaker who had done something embarrassing but necessary, or she figured not at all.62

  The story of the class-action suit against The New York Times—Eileen Shanahan’s suit—is about a case that involved Herculean patience and courage. The gains benefited those who followed, but did little to help the plaintiffs themselves. It was a lawsuit so gargantuan in time, expense, and personalities that it came to be known as the “Title VII World Series.”63

  The New York Times saw itself as an enlightened institution. Publisher Arthur Ochs Sulzberger and the editors—almost all men—prided themselves on their relations with female employees and saw the Times offices as above the fray of feminist agitation that was overtaking other New York media outlets. Yet there were gross dissimilarities in pay and rank. “It was clearly masculine, all masculine,” said Betsy Wade.64 Practices such as lunching at all-men’s clubs melted into just-the-way-things-were, jolly sexist bonhomie: late hours, drinking, palling around. A few star female reporters and writers—Eileen Shanahan, architecture critic Ada Louise Huxtable, Vietnam reporter Gloria Emerson, and Charlotte Curtis, editor of the society/women’s page—stood at a pinnacle where it seemed any woman could climb by dint of hard work and talent. Thus was created a myth of meritocracy, imagined rewards beckoning to the best and the brightest who could muscle their way past the others on the trek to the top.

  In 1972, a group organized a women’s caucus and presented a list of grievances to the dumbfounded management. Women elsewhere in the New York media—at Time, Newsweek, Reader’s Digest, and NBC—had taken legal action earlier, but The New York Times, with its heavy traditions of loyalty to the paper, remained pleasantly unruffled. The caucus changed that. “We all began to poke around … three or four of us in unison, to lift up the corners and see what was under the rug,” recounted Betsy Wade. “And we found incredible situations.” A female sports reporter, for example, a champion golfer herself, earned a secretary’s salary covering women’s golf—because both she and the subject were deemed less valuable than the man who covered men’s golf.65

  The caucus learned that under Newspaper Guild rules, they could have access to payroll data so long as names were erased. The inequities turned out to be appalling, gaps of thousands of dollars. The data stunned even veterans: Shanahan had long been aware of discrimination as a blur in the background, but never had to face the exact figures. Women’s promotions to top jobs were virtually nonexistent: There were upward trajectories, but they were gradual and long, while men climbed straight up the ladder. Nan Robertson, a former Times reporter who wrote about the lawsuit, noted how the dynamic affected a brilliant woman like Betsy Wade. “It was obvious from the beginning how talented she was. She rose through the ranks, making good copy better and bad copy passable; she was known to be cool in a crisis and a superb judge of what news was important and what was not.” Many people at the paper believed she would make a superb managing editor. “But somewhere that upward trajectory flattened out.” Everyone had versions of this story: lower salaries than their peers or men who were far less experienced, few rewards and promotions. Eventually, economic statisticians discovered that men at the Times were paid an average of $5,000 more a year than women: in 1970s dollars, the equivalent of a year of a child’s college tuition at a private school, or more than $40,000 as of this writing. Jane Brody, who wrote a column on health and had a degree in biochemistry, found she was making one hundred dollars a week less than the lowest-paid man in the science department. Eighty-eight women signed a letter of complaint.66

  Tense negotiating sessions followed, sweetened by the management’s attempts at good-natured joshing and promises to address the problems with pay and promotions. “Confucius say, ‘When they’ve got you by the balls, don’t struggle,’ ” Sulzberger joked. At work, he genially announced that “we must have equal pay for equal work, full use of the talents and training of women employed at the Times, initiatives in hiring greater proportions of women.” A few women got raises and there were studies of the problem. Shanahan referred to this period as the “ ‘hey, these are decent folks, we can work this out’ phase.” She remembered assuring the others that now that the facts were known, management was sure to fix things. The comity of the workplace, in which they all had an investment, made it impossible to contemplate a bitter falling-out. But nothing really happened.67

  A year later, the women hired Harriet Rabb, head of a new employment discrimination project at Columbia. Rabb, a steely and determined litigator, had already taken on several class-action suits from women in the New York media and brought suit on behalf of women law students against ten Wall Street firms. In 1974 the Times women sued the newspaper under Title VII in federal court. Five hundred and sixty female workers joined the class, headed by the seven named plaintiffs representing a range of jobs.68 Eileen Shanahan and Betsy Wade were the most visible, both high up in the Times hierarchy. Wade reflected on their careers, satisfying yet short-circuited, and the mental journey that landed them in court:

  I think that if the Times could not take someone with the capacities and the record and the performance of Eileen Shanahan and give her everything that was required to run the Washington bureau if she wanted to do that, or be national news editor if she wanted to be that, then they weren’t able to do anything. In a lot of ways, I consider Eileen to be my cognate in her area of the paper. We both arrived with honed skills, we both demonstrated ourselves thereafter, we progressed and unfolded, we improved upon our performance, we kept going. And if they couldn’t give us the jobs that we wanted, then there had to be an explanation, and there was really only one explanation.69

  Andrea Skinner, an African-American, worked on the fashion page. Skinner was categorized as a wardrobe mistress, despite a college degree, years of experience, and her smashing redesign of the children’s fashion section. Louise Carini was in accounting; superb at her job, she had trained four men who worked under her to become her boss. Carini was the most surprising plaintiff, from a conservative, Catholic Italian-American family: antiunion, gripped by a deep fear of litigation, uncomfortable with the other women, and by no stretch of the imagination a feminist. Yet she signed on at the urging of her brother, who told her, as she remembered, “If your manager doesn’t think enough of you to appreciate what you’re doing, then he’s not a good manager and he doesn’t respect you. Go for it!”70

  Management struck back by assailing the women’s competence, character, and standing with their peers. Shanahan, who was held in high esteem by everyone at the paper including the publisher, found her work ethic and reputation smeared. Management’s deposition described her as argumentative, difficult to work with, and narrow. “They couldn’t just say I was lousy in my job,” she recalled. “They just couldn’t, given all my internal awards. So what they said was, well, yes, I did what I did very well but I was a narrow expert. I couldn’t do just everything the way a New York Times reporter should be able to do everything.”71 Rabb, who had heard scurrilous accusations against her clients when she went up against New York’s white-shoe law firms, was shocked by the charges that executive editor Abe Rosenthal hurled: “This one was a drunk, that one slept around, the other one couldn’t write, the other one couldn’t report.” The women stuck it out, and eventually the suit was settled out of court for a nominal sum, attached to a serious plan the plaintiffs secured to hire women.72

  A pattern developed that appeared in other litigation as well. The inst
igators received few rewards. The actions were emotionally exhausting and financially costly, “like wading through a huge vat of oatmeal mush,” as one woman described the process. At the Times, the lawsuit did lead to hiring more women. Yet newcomers came in featured as the freshly turned-out good girls in contrast to the sour old bad ones. Wade described the shift with mordant irony: “I do think that sometime thereafter, they began to look around and say, ‘Well, gosh, now we’re going to have to find some women who aren’t these women.’ ” Women who came into workplaces in the wake of discrimination battles were often indifferent or unaware of the history that had opened the way. “There is no sex discrimination at the Times,” a young reporter declared firmly in 1980. “I got here on my merits and I’m going to get ahead on my own merits.”73