9

A Problem in the Profession

In 1968, Diane Blank wanted to be a lawyer, and her road ahead seemed clear. She had won admission to New York University School of Law.

Blank arrived at NYU and in Bride’s magazine at the same moment. In the fall 1968 issue of Bride’s, there she was, a recent graduate of Barnard College. While her new husband-the-law-student beamed, she hugged him, with both their wedding bands prominent in the foreground. While he sat at the kitchen table, in what a caption called their tiny apartment “furnished with castoffs,” she stood at a stove. While he showed her a typed page, she smiled with appreciation. While he strode with briefcase and tweed jacket down the front steps of their apartment building, apparently off to a day at Fordham Law School, she reached to hold his hand; she stepped gingerly and looked—as shot from below by the Bride’s photographer—like a very leggy blonde.

“SUCCESS AS A STUDENT’S WIFE” proclaimed the Bride’s headline, larger than any of the article’s photos. Beneath it, Blank and a few other brides told stories of working so a husband could get a college degree, study full-time, or become the lawyer that he had dreamed of being “since he was a little boy.” But small print in one caption revealed a challenging story not told by the headline: Diane Blank told Bride’s that she would “never be satisfied just being a housewife.” She wanted success as a lawyer. She was starting on a path that would change the behavior of some of America’s most powerful law firms.

While still in college at Barnard, Blank began taking courses in business and constitutional law at Columbia Law School. She liked law. She did well. Grading at Columbia Law, she thought, was easier than at Barnard College. And compared to the infinite vagaries posed by art and literature, law seemed knowable, she thought, “finite.”

At NYU, she went right to work, making dean’s list in her first year. She planned a series of second-year courses that would be heavy with business law: accounting, corporations, taxation, securities. For the summer before that second year, she won a job at a prestigious New York law firm. It had both a venerable name—Cadwalader, Wickersham & Taft—and a premiere address, One Wall Street. It called her a “law clerk”—a fancy name, she knew, for work in the steno pool. But it was the first step toward getting hired for a second internship as a “summer associate” and then after graduation as a full-time “associate”—the title that most law firms give a young lawyer who has not ascended to the exalted position of “partner” in the firm.

Diane Blank’s route via Barnard and NYU to Wall Street was carrying her far from her hometown, on the “wrong side of the tracks,” as she said, in Pawtucket, Rhode Island, and at East Providence Senior High School. Her father had died when she was young. Her mother, who had just a high school education, got work as a bookkeeper at a dairy. At home, money was scarce.

Cadwalader occupied a richer realm. The firm worked its law clerks hard but also introduced them to the social life ahead. Some gatherings took place at private country clubs, where Blank started learning games like tennis. At one of these social events another Cadwalader summer clerk took her aside to ask, How could women ever expect to be equal? Weren’t women out of commission five days a month?

But he was just a young clerk talking. What surprised her came from the firm’s partners. Because she had secretarial skills and could do legal citation, she began to get pulled from the steno pool to substitute for the secretaries who worked directly with the partners. The first partner Blank worked with sat her down to talk. Did her husband, he wondered, want her to be a lawyer? And who would cook her husband’s dinner?

She had answers: Her husband’s father had urged her toward law. Her husband ate late at night. But her answers felt glancing. The partner had doubts that a wife should be a lawyer.

WORKING WITH DIANE BLANK that summer at Cadwalader was a classmate, Mary F. Kelly, who, a few months later, would help introduce courses on women in the law to Rutgers and to Ruth Bader Ginsburg. Like Blank, Kelly began encountering odd reactions at Cadwalader, particularly from the one partner with whom she worked most often.

Kelly had gone to law school to escape being a secretary. She had graduated with honors in 1965 from the College of New Rochelle, whose self-proclaimed mission was to produce “valiant Christian women.” She quickly won jobs that created an impressive resume: executive director of the New Jersey Americans for Democratic Action and caseworker and later fiscal auditor for welfare departments in New York. But in all these jobs, she mostly typed. Kelly was a great typist, and employers wanted her to be their great secretary.

Law, she thought, offered the chance to do serious work in areas she cared about: politics generally and, perhaps, even the legal and political struggle to stop the Vietnam War. With backing from an attorney with whom she had worked at Americans for Democratic Action, Kelly won admission to his alma mater, the NYU School of Law.

Arriving in the fall of 1968 with Blank, Kelly joined the first large class of NYU law women—accounting for 20 percent of the entering students. She quickly grasped that NYU had admitted women because men were bound for Vietnam. Faculty members sent clues, Kelly sensed, that women didn’t belong. One well-known NYU professor of civil procedure had his “ladies day” when he grilled only women students. Other professors used sexually charged legal cases, full of abortion and rape and sexual imagery, to pique the interest of male students.

Crucial to Mary Kelly, who was struggling to put herself through law school, NYU had long excluded women from its richest scholarship. The battle in the fall of 1968 to open the prestigious Root-Tilden Scholarship to women, against resistance by some law professors, became the hook that pulled Kelly into the newly formed Women’s Rights Committee. But most professors responded well, she thought. Quickly the faculty voted to open the scholarship to women. Law schools seemed ready to change.

But were law firms ready? At Cadwalader with Blank in their first summer after law school, Kelly found herself working mostly again as a secretary. She was amused, thinking, This is exactly what I went to law school not to do. Late that summer, as Kelly was preparing to return to NYU, the law partner she had worked with most took her aside. He made her an offer. Would she stay at Cadwalader, Wickersham & Taft? Would she continue with him? He said she would be a wonderful secretary. The partner meant well. So did Diane Blank’s partner, who thought a wife should cook for her husband.

EARLY IN THEIR SECOND YEARS, most law students began interviewing for the next summer’s job. In late September, Blank requested an interview with the firm Shearman & Sterling, of 53 Wall Street. A few days later, a list posted at NYU’s placement office told her the firm had chosen not to interview her. She walked off feeling personal rejection but, she later insisted, nothing more. After running into a few of her female classmates who had also missed the cut for an interview, she began to wonder if their rejection was merely personal. The women got together in their usual place: the women’s lounge at the ladies’ bathroom at the law school. For months it had been the unofficial meeting place of the Women’s Rights Committee—a place where notices could be posted, where young mothers could nurse babies, and where everyone could talk.

She and four classmates decided to return to the placement office to look closely at the list. From sixty-seven students who applied for interviews, Shearman & Sterling had selected forty. Three were women, all in Diane Blank’s class. Looking closely at her class, she saw that forty-four men and nine women had applied; for interviews, the firm chose half the men but a third of the women. The three chosen women shared a single qualification: all had been elected to the same honor, membership in the NYU Law Review. A closer look showed that if Shearman & Sterling had asked to interview only men who were on the Law Review, it would be interviewing almost exactly the same proportion of men as women: a third of those who applied. But to that list of Law Review students, the firm added seven more men and no more women. Blank noticed that three of those seven additional men worked for another legal review, the Annual Survey of American Law. But so did she, as an articles editor, and those three men worked as writers under her. Blank and her fellow students started to wonder if Shearman & Sterling was discriminating in favor of men.

By now it was October 2—the day before the firm’s interviewers would arrive on campus. Blank and four of her classmates asked for a meeting with C. Delos Putz, an assistant dean who was in charge of placement. Meeting at four o’clock in his office, the five women described to Dean Putz what they thought was sex-based discrimination and told him they expected something to be done. Putz immediately phoned Shearman & Sterling. He described the accusations and asked one of their attorneys to stay at the offices until he could check the accusations more fully. He then gave the five students the resumes of all NYU students who had applied to Shearman & Sterling. For an hour, the women scoured the data. Finally, they decided, the evidence was “equivocal.” The resumes showed too many variables to make a strong case of discrimination.

Dean Putz phoned Shearman & Sterling, relayed the students’ opinion, and explained that the women applicants nonetheless would appreciate the chance to confer with members of the Shearman & Sterling hiring committee. It agreed. The firm would give a courtesy interview the next day to Diane Blank, as a representative of the five women. Four days later, the chairs of the hiring committee would meet with concerned NYU law students in the office of Dean Putz.

The night after that first meeting with Dean Putz, Blank stayed up late looking again through all the resumes. She drew up pages of charts to compare credentials. In column after column with neatly printed headings such as Law Review and Dean’s List and Moot Court, she checked off obvious credentials for all fifty-three of her classmates, whether granted or denied interviews. In further columns called Work Experience, College & Major, and Other, she looked for further strengths such as “criminal law intern,” “Harvard,” or “fluent in French.”

When she tallied her results, the “whole situation looked equivocal.” Given the “small numbers involved,” as she recalled a few months later, “it seemed difficult to prove any clear-cut discrimination in the interview selection process.” But the key disparity remained: after deciding to interview all the women and men who had made law review, Shearman & Sterling found reasons to interview extra men but no more women. Why?

The next day, before the interviews of the job candidates from NYU law, Blank was ushered in to meet a Shearman & Sterling interviewer, R. Bruce MacWhorter. This was not a job interview. Although Blank did not pretend she hoped for a job with Shearman & Sterling, she did ask the question that had dominated her late-night chart-making: what did Shearman & Sterling look for in a resume? MacWhorter, according to Blank’s memo notes taken at the meeting, said that Shearman & Sterling “looked first for Law Review experience.”

Blank knew that. But what else did the firm look for? Next, said MacWhorter, came evidence of maturity and responsibility. What sort of evidence? “A position of command in the military,” he suggested. Blank, in all her charts, had not made a column for military—a bastion of discrimination in favor of males and utterly legal.

Four days later, Blank was able to continue the conversation in Dean Putz’s office with MacWhorter and two chairmen of the hiring committee. One of the chairs added yet another column that Blank had not created on her chart: emissary. In selecting second-year students to work for the summer, he said, they sought students who would act as emissaries by praising Shearman & Sterling to other students at NYU. The hiring committee chair then explained, as Blank recalled later, that “this emissary role could best be filled by a single (not married) male who lived in the school dormitories and who participated in extracurricular activities so that he had a great deal of contact with his fellow students.” Blank countered that women were outnumbered by men at NYU law by about four to one. Surrounded by NYU men hungry for the company of women, Blank explained, NYU women had lots of contact with fellow students.

That day’s conversations revealed still more about Shearman & Sterling. An NYU student asked why seven of the firm’s nine women attorneys worked in a single part of the firm’s practice—Trusts and Estates. One of the hiring-committee chairs explained that women are specially suited for such work because they work well with widows and orphans. Also, whereas no corporate client ever requested a woman attorney, some women were requested by clients in Trusts and Estates.

Earlier, MacWhorter had told Blank that an opening might be found for a woman in litigation, the high-profile work that usually culminated in oral arguments before judges and sometimes juries. Shearman & Sterling would welcome a woman in this mostly male specialty because, according to Blank’s record of their conversation, a woman could be hired with the confidence that “a woman would never have to appear in court”; she could write briefs and stay unseen.

Another NYU student asked why no woman attorney at Shearman & Sterling, even those employed for more than two decades, had ever become a partner. An attorney explained that these women had special technical drafting abilities, but did not say why such special abilities did not lead to partnership. Another NYU student asked whether the firm let a woman do work that required travel. One of the chairs said no. The concern, Blank gathered, was adultery. Lawyers’ wives might object if husbands traveled for work with female attorneys. When asked whether women attorneys were invited to join men at the firm’s summer outing to a Long Island country club, a chair said they were not. “But,” a chair added, “the ladies have their own little luncheon party on that day, have a few drinks, and enjoy themselves thoroughly.”

SUCH PREJUDICE WAS NOT NEWS, of course, to women who had struggled to enter the law in years gone by. Ruth Bader Ginsburg could not, when she graduated from law school in 1959, get an interview for a Supreme Court clerkship. Sandra Day O’Connor, in her only law firm interview after she graduated in 1952 near the top of her class at Stanford Law, was told that good typing might win her a job as a legal secretary—an offer she did not receive. And Ruth Weyand, after graduating from the University of Chicago Law School in 1932, was forced to sign her work “R. Weyand” and prohibited from showing herself in court.

To the administration of NYU law school in the late 1960s, discrimination against women remained familiar. A year earlier, in the student newspaper, one of Dean Putz’s colleagues in the placement office had discussed what he called “the prejudice encountered by girl students seeking employment.” Fortunately, this dean thought he saw an answer, for at least a year or two. With the Vietnam War growing worse, men were being drafted. With men unavailable, the dean predicted, “more female students will be hired.” But law (unlike war) seemed to offer no answer to discrimination against women by lawyers. Law firms discriminated legally.

But what about the Civil Rights Act of 1964? Its pivotal section, Title VII, declared illegal an employer’s refusal to hire any individual because of her sex. (Employers also could not refuse because of race, color, religion, or national origin.) Did Title VII make a difference in the battle against law firm discrimination? Was law firm discrimination illegal? Did firms’ treatment of women amount, as Shearman & Sterling apparently supposed, to the way of the world? Or could that treatment generate, as NYU’s young law women wondered, a federal case? In the fall of 1969, five years after the passage of the Civil Rights Act, no one knew.

In late October, a Shearman & Sterling interviewer at the University of Chicago collided with another law student, Nancy Grossman. Giving her only a brief interview (according to a memo she typed that afternoon), he expressed doubt whether his firm that year would “have an opening for a woman.” Such openings depended, she gathered, on the needs of Trusts and Estates, where he said the firm’s few women “are traditionally placed.” Grossman’s experience led the university’s director of placement, Nicholas J. Bosen, to write (in a letter that he circulated to the placement offices of Yale, Harvard, and Columbia) to Shearman & Sterling asking if her account was correct and, if so, “when do you plan to change the terms of hiring and conditions of employment for women?”

One of the hiring-committee chairs from Shearman & Sterling who had appeared at NYU now had another fire to put out. Replying to the Chicago dean, he denied discrimination but not the claims about where his firm had placed women attorneys, except to add that one now worked on taxes. His strongest defense came via his portrayal of the NYU incident: At a law school (which he left unnamed), he said, allegations against a number of New York firms (unnamed) had led three Shearman & Sterling partners (unnamed) to appear before a group of “female activists.” As a result, he concluded, “the charge of discrimination against this firm was found” (by someone unnamed) “to be unsubstantiated.”

Chicago’s placement dean quickly backed down, sending out letters saying that the “allegations in this case are unwarranted.” To the interviewer from Shearman & Sterling, the dean wrote a lengthy apology. He referred to his law school’s “most vocal” women and to the “enormous pressures from students.” He hoped his school’s dealings with Shearman & Sterling had “not suffered irreparable damage.”

Unsatisfied, Chicago students sent Nancy Grossman’s memo to placement offices at other law schools, including NYU, and filed a charge of discrimination with the EEOC. They charged their law school with operating “a patently discriminatory hiring service.” It had “actively supported the discriminatory practice of law firms” by inviting them to use law school placement facilities. When the women of NYU started receiving copies of the Chicago Law correspondence, they were surprised to read that Shearman & Sterling was offering its meeting at NYU as evidence that a charge of discrimination had been “found” unsubstantiated.

WOMEN FROM DIFFERENT LAW SCHOOLS needed to exchange their stories and their findings. One fall day in 1969 in Diane Blank’s kitchen, Blank and Jan Goodman (who had played a key role in opening the Root-Tilden Scholarship to women) had an idea: Let’s get women together. Let’s gather stories. Let’s hold a national conference of women law students. They set the date: April 1970. Place: NYU School of Law.

Just as the idea for an NYU-hosted conference of women law students was forming, another legal conference came to New York: the annual conference of the Association of American Law Schools. Each December the association gathered hundreds of law school teachers and administrators from around the nation to discuss issues in legal education. At this year’s conference, Dean Robert McKay of NYU urged the association to create a committee on women and the law in order to investigate, as his students wished, sex-based discrimination in the legal profession. The Association of American Law Schools refused.

Spurred by this refusal, the NYU Women’s Rights Committee decided to conduct its own study. Using addresses it could gather from sources including women’s organizations and the New York City phone book, it mailed 700 questionnaires to women practicing law in New York. By February, it had 77 answers. The responses were skewed in predictable ways: More than 50 percent (39) of the respondents had graduated from NYU or Columbia law school, and almost 50 percent (38) had received law degrees in the past decade. But they were skewed in at least one surprising way, toward academic excellence: almost a third (24) reported graduating in the top tenth of their law school classes or making law review (or both).

From a mix of experience and lore, the Women’s Rights Committee had offered a series of questions about what women might have heard when interviewing for work as lawyers. Of the seventy-seven women who answered the questionnaire, nine reported being told in law firm interviews that women do not become partners at the firm. Thirteen heard a version of “we just hired a woman and couldn’t hire another.” Fifteen heard that “we hire some women, but not many.” Twenty-two recalled being asked, “Are you planning to have children?” Twenty-six women—more than a third of those responding—heard “we don’t like to hire women” (or at least not “many” women).

The overall data aligned with anecdotes offered by the respondents. A woman who graduated magna cum laude from her law school in 1969 was turned down for jobs by two federal judges because “they or their male law clerks did not wish to work for extended periods with a woman.” A woman who graduated in 1967 recalled being turned away by several law firms because she would “distract men from their jobs.” Other reasons for job refusals included:

Clients wouldn’t like it.

Partners’ wives wouldn’t like it.

Secretaries won’t take orders from a woman.

You won’t have anyone to eat lunch with—the only other women we have are secretaries.

If the study had a bright side, it revealed that women who obtained legal work found that on-the-job discrimination seemed less formidable than job-hunting discrimination.

Still, a number said they had encountered daunting law firm policies. Of the seventy-seven respondents, seven had been excluded from professional meetings because they were women. Ten had been excluded from their employer’s social events because they were women. Eight had been urged away from specific work, and nine had been urged toward such specialties as trusts and estates. Fourteen understood that their firms had lower salary scales for women than for men. Sixteen—more than 20 percent of the respondents—understood that their employers would not promote women to partnerships or top administrative posts.

Many anecdotes, which the Women’s Rights Committee grouped under “humiliation on the job,” described collisions of the social with the professional. A woman attorney who attended a meeting at the “men-only” dining room of the Harvard Club was asked—“since you’re here”—to switch to an inconspicuous seat at the table. A woman going to a meeting at another university club was stopped by a guard, who separated her from her male colleagues. He insisted that she use the “women’s staircase” instead of the men’s. She invited her colleagues to continue their conversation by joining her on the women’s staircase, as permitted by club rules. They blushed but would not walk with her. A number of stories surfaced about exclusion of women from social events, such as Shearman & Sterling’s country club outings. One respondent told a story about being excluded from the firm’s annual affair, a gambling evening. Instead of inviting her to join her law partners, her firm gave her a free night on the town with her husband. Other anecdotes narrated head-on, professional collisions. At a bar association meeting, a male judge told a woman lawyer that “women don’t belong at bar association meetings.” A judge who wanted to exclude women attorneys from the professional meetings of their field seemed to judge women unready to join the ranks of lawyers.

At about the time in early 1970 that the Women’s Rights Committee was compiling its “Pilot Study of Sex Based Discrimination in the Legal Profession,” it hosted two prominent women attorneys for speeches to the law school. Doris Sassower, former president of the New York Women’s Bar Association, offered comparative statistics concerning women’s work as attorneys. In a 1968 issue of the journal TRIAL, she had compared professional representation among women and minority groups: “One out of every 7300 Negroes has managed to become a lawyer,” she reported, “but only one of out every 12,500 women has been able to achieve this status. On the statistics, it could be argued that it is even harder for a woman to become a lawyer than for a Negro.” For the NYU law women, she added some international comparisons. In Russia, for example, women accounted for 36 percent of all lawyers—compared with America’s 3 percent.

The second speaker was Eleanor Holmes Norton, assistant legal director of the ACLU, who would soon play a crucial role in the drive to open New York firms to women. Norton reported that she got fewer cases brought by women than by members of any other group. The barriers that kept women from organizing, she said, seemed to be cultural in nature. A few days later at the ACLU, Norton announced that she was beginning a sex discrimination lawsuit on behalf of forty-six women employees at Newsweek—with whom, as she later put it, she had “needed to do group therapy” to convince a significant number of them to bring a case.

For the Women’s Rights Committee of NYU law school, a mix of personal experience, data from their study, and the counsel of experienced attorneys made bringing a case seem far from unimaginable.