THAT SUMMER of 2005, right before the court of appeals ruling, Charles and I had gone on a trip with Vickie and her family to our favorite beach on the Gulf Coast, pristine and as yet untouched by the ravages of Hurricane Katrina that would soon devastate the city of New Orleans and the communities of the nearby Gulf Coast. The entire drive to the beach, Charles was agitated by the strong sun bearing down on one side of his face through the driver’s side window—as painful as shards of glass pricking his skin, he insisted. Once we arrived at the condominium we were renting, he stayed in bed most of the time, only mustering enough energy to watch our favorite new show, Dancing with the Stars. Back home, the ENT doctor discovered a few blisters in his mouth but nothing else out of the ordinary.
That trip to the doctor was the starting point of a long, difficult health ordeal for Charles. He was already combating back issues and high blood pressure. Still lethargic after the beach trip, he underwent more extensive testing, and the doctors found a cyst in his lower back. He had a second back surgery—the first had been about a year earlier, after the epidurals that had given him relief stopped working—to alleviate the chronic pain he’d been experiencing.
While Charles recovered from the back surgery, which, all told, took another year, I tried to carry on as usual. One morning, after I’d collected my mail as I did every morning, I stood at the counter in the small post office just down the street from my house and sifted through the bills and junk mail. I opened an envelope from Jon’s law firm and found a letter from Goodyear. What in heaven’s name would they be sending me? I bristled when I read the demand letter for over three thousand dollars to pay their court-related fees. I wanted to tear the bill to pieces, but I restrained myself.
I didn’t have time to dwell on Goodyear when, the next summer after Charles’s back surgery, the doctor found skin cancer on his ear on the same side of his face that had been so sensitive on the way to the beach. In the heart of a July heat wave the cancer was removed, the surgery more difficult and more extensive than the doctor first anticipated due to the malignancy having spread much deeper than we’d thought.
A couple of months later, a strange growth popped out of nowhere on the damaged side of Charles’s face. The doctor took one look at this bony mass jutting out of his cheek and refused to let him leave until he performed a biopsy. A few days later, as we waited at the office to hear the results, the nurse came in. She couldn’t contain herself. “I have good news,” she whispered before the doctor made it official. “It’s benign.”
Now Charles only had to have the bizarre protrusion removed. Around Halloween the doctor performed the face surgery and another biopsy. I was sickened by how butchered Charles looked. His face might as well have been a side of roast beef someone had sliced open. When the doctor called with the results, he had devastating news: “The growth was malignant. I’ve already scheduled him for surgery on Monday. He’s got the worst possible cancer in the worst possible location.”
My heart froze. No, not Charles. Please, not Charles.
The doctor continued. Charles had a deadly type of cancer known as squamous cell carcinoma. The procedure would require a skin graft from his leg, and he’d remove any lymph nodes or glands infected by the cancer. In disbelief, I mashed the phone harder into my ear. The doctor rattled off what else needed to be done, how to prep for surgery, the type of treatment he recommended following recovery from the operation.
After I hung up, I sat with the phone still in my hand. We were fighters. We could beat this. But the day of Edna’s last diagnosis came back to me, how she had only heard that the doctor could cure her. I couldn’t ignore the reality of this situation: We were facing a battle for Charles’s life. The sound of the operator broke through my reverie as her disembodied voice repeated for me to please hang up the phone; then the incessant buzzing of the dead connection really jerked me to attention. I hung up. Now I had to tell Charles the news, both of us acknowledging the fact that there was a good chance he was dying while dancing around those exact words.
EARLIER THAT summer, the Supreme Court had agreed to hear my appeal, setting the date for November 27, 2006.
After a subdued Thanksgiving dinner with just Charles and me—he just wasn’t up to a big family gathering—I boarded the plane for Washington on a gray November Saturday to attend the Supreme Court hearing on Monday, only a year after Goodyear won its appeal in the Eleventh Circuit Court. I was concerned about the final outcome of my legal journey, which had started almost ten years before. Vickie sat next to me on the plane, while Charles stayed home with the help of home health care to recover from his latest radical face surgery and the wound on his leg where the top layer of his skin had been shaved off. He would begin chemotherapy and radiation treatment after the Christmas holidays. Seeing my reflection in the window of the plane, I thought that I didn’t even look like myself anymore. Vickie had taken me to a new hairdresser, who’d given me a coiffed blond bob, and I wore a navy skirt and a silk blouse I’d scouted at the discount outlet.
In Washington that evening, I met Kevin Russell, whom I’d talked to numerous times over the phone, for the first time. He’d worked on my case for over a year, with the help of a group of Stanford Law students associated with the Stanford Supreme Court Litigation Clinic, which helps prepare pro bono cases. Kevin had also been aided by the National Women’s Law Center and the National Employment Lawyers Association, both of which had written amicus briefs for the court.
On the third-floor mezzanine of the posh hotel, Kevin appeared in jeans and a sweatshirt, sporting a red beard. I was expecting an older man, and for a minute I thought he was one of the college students. The moment he started talking, I got excited listening to him articulate the ins and outs of the legal proceedings with such expertise. This would be his first time before the Supreme Court. He explained the situation: There were four conservative justices and four who would probably lean in our favor. Justice Anthony Kennedy was somewhere in the middle, but not necessarily when it concerned employment cases, so Kevin thought we had to focus on convincing another justice. Based on past rulings, Kevin thought Justice Antonin Scalia or Justice Clarence Thomas were good possibilities.
Since I’d filed the lawsuit in 1998, there had been many baffling twists and turns, so much out of my control. Then President Bill Clinton had been in office. By the time my case had made it to the highest court in the land, I’d seen firsthand how the fickle nature of politics impacted the delivery of justice. Now that President George W. Bush was in office, the Justice Department, as an agency of the federal government, leaned toward Goodyear’s defense. This incredible development upset me, but I’d seen how people will turn away from the truth to keep their boss (or the person who hired them) happy, as payment for giving them the job opportunity, or to maintain stability and a steady paycheck.
ON THAT brisk Monday morning, men and women bustled down the sidewalk, large lattes in one hand and black briefcases in the other, all headed to the Capitol to conduct their business on the Hill. I hurried past them up the steep white steps of the Supreme Court Building, flanked on one side by Contemplation of Justice, a statue of a woman holding in one hand a book of law and in the other a figure of the guardian of justice, which holds a set of balanced scales; and on the other side by Guardian of Law, a male figure. Jon, Vickie, and I walked under the solemn Corinthian columns that seemed to reach to the sky and entered the building, constructed of white marble—some of it mined from Alabama. Passing through the Great Hall to the hushed courtroom, Vickie and I sat two rows from the front, facing the elevated mahogany bench where the justices presided. In the cavernous room with its forty-four-foot-high ceilings, invulnerable marble columns (I counted twenty-four), and plush red carpet, the podium stood only a few feet from the justices. The hearing had the feel of an intimate conversation. But there was nothing cozy about the occasion in the mausoleum-like atmosphere where we waited to hear the two competing narratives presented to the most powerful justices
in the land.
Kevin presented our side in the initial twenty minutes allotted to him, answering the justice’s questions in a respectful, precise manner. One of the young Stanford students sitting beside me kept whispering before the case started, “It’s only right; the law is on our side. This has to go forward.” I sure hoped he was right.
In twenty short minutes, Goodyear followed and argued its side, with ten minutes allotted to the attorney from the solicitor general’s office—Jon and Kevin had met with the Justice Department before the hearing to see if it would take my side, but it took Goodyear’s side instead. Kevin then gave his ten-minute summation. After all that preparation, the hearing lasted only an hour.
As I watched Justice Ruth Bader Ginsburg, perched in her black robe, the lone woman among the nine justices, pose questions to both sides, I thought about how her mother had gone to work in a garment factory so her brother could go to college. Only a generation later Ginsburg was one of the first eight female law students out of a class of five hundred to graduate from Harvard Law School; many years later she became that institution’s second female professor.
We were around the same age, and she too had been one of the first women to break into her profession. I might have been on the factory floor as she walked the hallowed halls of the American justice system, but I imagined that men in ties and men in jeans can act just the same.
A FULL six months after the hearing, in May 2007, I heard the Supreme Court verdict. By then Charles had started treatment for his cancer. He insisted on driving himself to Gadsden every weekday, shooing me away when I tried to accompany him for his chemotherapy shot followed by radiation half an hour later. I would act nonchalant, telling him that I really needed to get out of the house. Only then did he let me go with him. After all these years, he was still trying to protect me.
That day Charles and I were on our way to Fort McClellan to eat lunch with the senior group at our church. Even though he’d lost his sense of taste, he felt better that morning and wanted to get out and about on the invigorating spring day. There were only a couple of weeks of cool weather left before the relentless summer sun would make us want to stay indoors for good.
We had just pulled out of the driveway when my cell phone rang. I retrieved it from among the scattered contents in my purse. Mike Quinn was on the other end; Jon was out of town, and he had some news to tell me. I motioned for Charles to pull back into the driveway.
My connection was bad, and I strained to hear Mike. “Let me call you right back,” I said. I told Charles to wait and ran inside to the den to use the landline.
“Lilly, I have to let you know the verdict,” Mike said in an awful rush of words once we’d reconnected. “We lost. The Supreme Court ruled against us. I’m sorry.”
I was quiet for a moment, letting the disheartening news seep into my bones. I had really held out hope that justice would prevail. “I’m sorry, too,” I finally said.
I thanked him for all he and Jon and everyone else had done. He told me I might get a few media calls. “Don’t get too caught up in the temporary frenzy. It will die out soon enough,” he assured me.
I set the phone on the table. I noticed the spot where the charred wood paneling had been replaced from a fire long ago, and I remembered the blizzard of 1993, when we’d experienced a freak snowstorm in March. Several feet of snow had blanketed the area, and the power had gone out. I’d fallen asleep on the sofa with a candle burning on the table close to my head. The flame had licked the top of my bleached-blond head lacquered with hairspray resting on the arm of the sofa. I woke up with my hair on fire. Later, I was convinced I’d been spared for a special reason, but I had yet to figure out why; and for a selfish, childish moment after hearing the verdict, I’m ashamed to say this, especially when Charles was suffering so, I wished I hadn’t been spared in that fire.
I looked up. Charles had followed me inside and caught the end of the conversation.
“We lost,” I told him, watching him take the news, stabbed for a frozen moment like he’d swallowed a cold drink too fast and was overtaken by an ice headache.
“I’m so sorry,” he said.
But I was the one who was sorry, sorry I’d put him through so much. Vickie and Phillip’s school pictures still hung on our den wall. I looked at a picture of Vickie in college, her long, light-brown hair parted in the middle, the style in the late seventies, around the time I started at Goodyear. The first thing the secretary had told me when I started working was that if I wanted to succeed at Goodyear, I’d do two things: I’d contribute to United Way every year, and I wouldn’t discuss my paycheck. The way she said it made me feel like I’d disappear into the night if I didn’t do exactly what she said.
Charles, who’d lost so much weight that his shirt fell slack from his once-broad shoulders, sat down on the sofa. “What are you going to do now?” he asked, the side of his face marbled with the dark purple scar, zigzagging like the jagged edge of a lightning strike down the side of a pine tree.
“It’s not what I wanted to hear, but we can’t stop living. We had the best attorney, and we did the best we could. There’s nothing to be ashamed of. There’s nothing else left to do but go to lunch.”
I couldn’t hide now that it was over; I had more important things to tend to for the time being. And for the moment, that was enough. Despite the deep disappointment, I needed to focus on Charles and my own life now. I’d done what I could. Goodyear was simply a greater force than I could overcome. That was clear as day.
CHARLES AND I never finished our meal the day of the verdict. At lunch we had kept the news to ourselves, not wanting to dampen anyone else’s spirits. But in the middle of my moving my chicken salad from one side of my plate to the other, my cell phone rang again. I reached for my purse, almost knocking the arm of the waitress who was refilling my glass of tea.
It was NBC. Could they send a film crew to my house to do an interview for the nightly news with Brian Williams? I agreed, and when I finished talking to the producer, we had to tell our group of friends, since we had to leave quickly—my house was a mess and we needed to clean up a little.
The film crew arrived and rearranged all my furniture. That night I answered the phone and a man’s voice said, “This is Norman Lear. Do you know who I am?” Of course I knew who he was; I watched All in the Family and The Jeffersons. How did he know who I was? He wanted to film a video to run on YouTube.
Then CNN called. The next day the CNN film crew came and rearranged the house again. I kept expecting my phone to stop ringing, but the public outcry was deafening and media from around the world appeared on my doorstep. One of the first newspaper reporters to contact me was Linda Greenhouse from the New York Times. She wanted to know whether I had heard Justice Ginsburg’s dissent. No, actually, I hadn’t.
In a rare moment, Justice Ginsburg had voiced her dissent, joined by three other justices—John Paul Stevens, David Souter, and Stephen Breyer—from the bench, addressing their dissatisfaction with the outcome of the case and the effects on employment laws. Only six times before, in thirteen terms on the Court, had Justice Ginsburg found it appropriate to underscore her dissent by reading a summary of it aloud in the courtroom.
“The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination,” Justice Ginsburg declared. “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. … Small initial discrepancies may not be seen as meat for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.” She went on to challenge what was the current law:
Ledbetter’s petition presents a question important to the sound application of Title VII: What activity qualifies as an unlawful employment practice in cases of discrimination with respect to compensation? One answer identifies the pay-setting decision, and that decision alone, as the unlawfu
l practice. Under this view, each particular salary-setting decision is discrete from prior and subsequent decisions, and must be challenged within 180 days on pain of forfeiture. Another response counts both the pay-setting decision and the actual payment of a discriminatory wage as unlawful practices. Under this approach, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180-day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of conduct within the period. The Court adopts the first view, but the second is more faithful to precedent, more in tune with the realities of the workplace, and more respectful of Title VII’s remedial purpose.
Justice Ginsburg hit the nail on the head when she said that the majority’s decision didn’t make sense in the real world. People don’t go around asking their colleagues how much money they make; in most workplaces, you get fired for discussing one another’s salaries. Anyway, even if you know that some people are being paid more than you, that’s not necessarily a good reason to immediately suspect discrimination. Most people assume they work for an employer who does the right thing.
UNBELIEVABLY, JUSTICE Samuel Alito’s written opinion implied that I should have complained every time I received a smaller raise than the men, even if I didn’t know what the men were making and even if I had no way to prove that these pay decisions were discrimination. The Court ruled that once 180 days have passed from the initial pay decision, the worker is stuck with unequal pay for equal work for the rest of her career and there is nothing illegal about it. Basically, the Supreme Court had ruled that if you don’t clue in right away, the company can treat you like a second-class citizen for your entire career. And now, with the reversal in precedent, I wasn’t the only one who had to swallow the consequences of pay discrimination—every other working woman in America was being forced into the same corner. But the majority didn’t understand that, or didn’t care. How they could have thought Congress would have intended the law to be so unfair, I’ll never know.
Grace and Grit Page 21