Taking Action
In early April of 1970, women from seventeen different law schools, as far west as Berkeley and as far south as Duke, gathered at NYU. For two days they discussed issues affecting women law students, particularly hiring discrimination. The discussion led to a series of resolutions, which Diane Blank and Jan Goodman typed up. Most ranged from tame to mildly bold: Law students would visit colleges near their campuses to urge women to apply to law schools. Students from New York law schools would pressure the New York Bar Association to add an antidiscrimination statement to the interview guidelines provided to New York law firms. During the next year’s interview season, law students would report incidents of discrimination by law firms to a πdesignated student at each school. Because stories from multiple law schools had already led students to view Shearman & Sterling as one of the “worst offenders” among New York firms, students agreed to demand that law school placement offices prohibit that firm from using school facilities to conduct interviews in the coming academic year.
Buried in the middle of these resolutions was the major one. Women’s groups at all the law schools agreed they would “join a Title VII action to be initiated through the Equal Employment Opportunity Commission (EEOC) against five to ten large New York firms.” These aspiring lawyers planned to charge a handful of the nation’s most powerful law firms with sex discrimination. In the coming interview season, women would interview as much as possible. They would inquire about areas of employment, such as litigation, from which firms seemed to exclude women. They would listen for evidence of what Title VII called a pattern or practice of discrimination in law firm hiring.
During the summer after the first national conference of law women, most of the NYU students continued to add distinction. Blank and Kelly both won promotions at their Wall Street firm, Cadwalader, from summer secretary to summer associate, the first rung up the ladder to real lawyering. Kelly, after she and her teammate Edie Barnett won NYU’s “moot court” contest, what amounted to the law school’s competition for top litigators and speakers, began preparing to represent NYU in the nationals. Susan Deller Ross, just graduated from NYU, got her first full-time legal job, as an attorney at the EEOC. In late June, Congress invited Blank and Ross to give testimony at hearings on discrimination against women, where they retold part of the difficulties at NYU, including the origins of the Women’s Rights Committee in the battle to open scholarships to women. (Less visibly, but partly as a result of the NYU activism, in July Professor Ruth Bader Ginsburg began work on her first sex discrimination case, on behalf of an Army nurse named Nora Simon, whom no one else seemed willing to assist.)
WHEN INTERVIEW SEASON BEGAN in the fall of 1970, stories began filtering back from women law students. Jane Dolkart, a Columbia student with a young child who hoped to become a litigator, was appalled by her interview with Cravath, Swaine & Moore. A hiring partner sat her down, looked at her resume, and then asked, Isn’t motherhood the greatest goal for a woman? He spent the rest of the interview, as she recalled, telling her why she should not pursue litigation. Litigation involved travel, and she would not want to travel with a young child. He asked, Had she considered trusts and estates? Dolkart was shocked. She was not what she would later call “politically educated.” She wasn’t much of a feminist, and she had not gone to the interview to collect information for a lawsuit, so she just sat through the interview feeling horrible. (Soon afterward, she found a firm that seemed to take women seriously, which hired her and where she worked happily.)
Another Columbia student, Margaret Kohn, interviewed at Royall, Koegel & Wells. After discussing her resume, the firm’s recruiter surprised Kohn by introducing the topic of women lawyers. His firm, he said, had only one—in trusts and estates. “For some reason women are really good at trusts and estates; they love the detail work and they’re competent at it,” he continued (at least according to her memory, which he would later partly dispute). Kohn tried to turn the conversation toward work she wanted. “Your firm does a lot of litigation work,” she recalled asking, “doesn’t it?” Litigation also, she suggested, required mastering detail. But he countered, she recalled, by explaining that litigation sometimes involved “bigger issues”—away from which, she inferred, he hoped that she could be steered. Late in the interview he returned to possibilities for women working with trusts and estates. Kohn eventually took a job with another firm.
One of the strongest stories of alleged discrimination came from Diane Blank. In mid-October, she had interviewed with Sullivan & Cromwell. In a firm of more than 130 attorneys, she learned that three were women. All worked in female ghettoes: one with trusts and estates and the other two doing repetitive paperwork mandated by securities laws. Blank’s suspicion that Sullivan & Cromwell did not wish to hire many women sharpened when the firm decided not to interview five women whose grades had won them places on either a law review or the Annual Survey of American Law, while interviewing a number of men whose qualifications seemed lower. Perhaps most simply, according to Blank, the Sullivan & Cromwell partner who interviewed her said, in words she jotted down immediately after on a note card, “some of the partners have prejudices against women.”
When Mary Kelly interviewed with the firm of Carter, Ledyard, she encountered mildly dismissive comments, which carried a tone, as she later recalled, of wondering why a nice lady like you would want to do this job. She was urged not to do litigation—remarkable in Kelly’s case because she had won her law school’s moot court contest. Kelly wound up choosing between offers from Cadwalader (the firm where she had worked as law clerk and associate) and another Wall Street firm, Willkie Farr & Gallagher, which hired her as a litigator.
Kelly, meanwhile, had teamed up with Professor Daniel Collins of NYU to create a summary of discrimination experienced by law students. Partly in response to NYU’s urging, the Association of American Law Schools in mid-1969 agreed to create the Special Committee on Women in Legal Education, with Professor Collins as chair. The committee sent a questionnaire to major American law schools. Of the seventy-six schools that replied, more than one-third reported complaints of discriminatory incidents linked to students’ interviewing for jobs. Taken together, they showed discrimination by law firms nationwide—in Maine, Massachusetts, New York, Pennsylvania, Georgia, Kentucky, Texas, Minnesota, Colorado, and California.
To turn the stories of discrimination into a lawsuit, the women of NYU and Columbia needed an attorney. At this point two brilliant women attorneys, who would become mentors to the New York law women, joined their circle: Eleanor Holmes Norton and Harriet Rabb.
MANY NYU WOMEN HAD FIRST HEARD Eleanor Holmes Norton, a 1964 graduate of Yale Law School, when she addressed them in March of 1970 about the paucity of cases brought by women to the ACLU. Within weeks, at age thirty-two and pregnant with her first child, Norton became chair of the city’s Commission on Human Rights. Before Mayor John Lindsay swore her in, she told reporters that she planned to do all she could to fight discrimination against women. When NYU soon afterward asked her to take over as teacher for the course on women and the law, she accepted because, as she later recalled, she was excited that students wanted to engage in rigorous study of sex discrimination.
She was also aware of an irony. Years earlier when NYU turned her down for its Root-Tilden Scholarship, she presumed it was reserved for men by a bequest and made no protest. She had begun law school, she later reflected, with “almost no feminist consciousness.”
One collaboration between Norton and her students in the spring term of 1971 began as a symposium on the equal rights amendment, scheduled for the meeting hall of the Association of the Bar of the City of New York—an organization that had recently issued a report opposing the ERA. The association invited an impressive panel of participants, including Norton, Betty Friedan, and Gloria Steinem—all of whom had spoken a few months earlier during a week of public hearings, initiated by Norton at her commission, that she believed were the first such hearings on women’s rights in America. But when the NYU women received the association’s invitation, they were shocked. In its largest type, the invitation wondered, “Has ‘Women’s Liberation’ Liberated Anyone?” It went on to describe the event as a symposium not on the equal rights amendment but on “the ‘Women’s Rights Amendment’ and Kindred Matters.”
The NYU women deduced that the bar association planned “to make feminists look like idiots,” as Blank put it. They called one of their many meetings, with invitations put up in the women’s bathroom stalls. At a meeting that Blank recalls as filled with women hanging “from the rafters,” they told Ellie Norton, as they had come to call her, that they were furious. At another meeting soon after, which included both Norton and Steinem, the law women hatched a plan to surprise the association.
Soon after the symposium began on the evening of March 25 in the filled-to-capacity hall of the mostly male Association of the Bar, Gloria Steinem rose to address an audience of some fifteen hundred—at least half of them women. Speaking briefly, Steinem advised the august association that it needed a new kind of lawyer. To assist, she announced, she had entered its walls as a “Trojan horse”—making it sound as if these new women lawyers were waiting, within her, to be released onto the world. She then let loose the young law women of NYU, who had been documenting discrimination by New York lawyers and their firms.
First, accepting the floor from Steinem, came Mary Kelly. Speaking from scrawled notes, she accused the bar of issuing—and then refusing to change—a trivializing invitation. She suggested that the association would never have dared distribute invitations asking, for example, “Has the anti-defamation league liberated any Jews?” or “The NAACP—has it liberated any blacks?” A discussion of women’s liberation, she continued, might well begin with an examination of the bar. To this end, she and her NYU colleagues had examined the association’s record and found it “seriously lacking.” She noted that “the association has no women lawyers among its present officers and has 46 committees without a single woman lawyer.” Since this “unbroken history of male domination and male orientation” has led the association to ignore discrimination against women, Kelly introduced a series of colleagues—none of them the invited speakers—to illustrate “some of the areas where the association had done nothing.”
Jan Goodman stepped to the microphone to denounce the bar for opposing the ERA based on the deliberations of its “Federal Legislation Committee,” which did not contain women or invite testimony from women. Diane Blank described patterns of discrimination in hiring, including shuttling women to work on trusts and estates or simply refusing to hire them. Emily Goodman, a young practicing attorney, told stories of a committee within the New York bar association designated to screen applicants for the bar that had, she said, treated women “obscenely.” One divorced woman lawyer who sought admission to the bar was asked, said Goodman, “What kind of lawyer would you make if you would breach a sacred contract,” her marriage contract?
At this point the chairman of the symposium had heard enough. Cutting off the uninvited speakers, he turned to his invited ones. With only a slight change in tone, Betty Friedan called for “a whole new body of law” that would be “written by and for women.” The evening’s most detailed legal critique came from Eleanor Holmes Norton. She attacked the association for advocating that Congress create an anemic substitute for the ERA: a new antidiscrimination statute. “The virtually impossible technical difficulties of drafting such a statute would relegate women’s rights to future centuries,” she said. “Fast and effective remedies to inequality are the only ones worth offering.”
Norton’s call for fast and effective remedies to sex discrimination came at a crucial juncture in the development of discrimination law. Just three weeks earlier, the Supreme Court had announced a major decision in a race discrimination case, Griggs v. Duke Power. The court ruled that, in the words of Columbia law professor George Cooper, who had contributed to the brief, “the effects of employment practices rather than their intent” would determine whether an employer was practicing illegal discrimination. Put another way, the Griggs case made clear that no employer could say he intended to help blacks but refused to hire them.
PROFESSOR GEORGE COOPER OF COLUMBIA LAW rightly saw Griggs as a “startling breakthrough” for the law. To push the law further, Cooper had another idea: get the EEOC to fund a clinic to train law students to bring lawsuits against employers who discriminated. The need for a clinic arose from the compromised genesis of the EEOC. Because the EEOC had received no power to initiate litigation, the work of enforcing Title VII’s ban on workplace discrimination often fell to idealistic attorneys: George Cooper of Columbia Law volunteering with the NAACP in the case of Willie Griggs, Ruth Bader Ginsburg of Rutgers volunteering with the ACLU in the case of Sally Reed, and so on. To assist with these time-consuming cases, Cooper proposed that the EEOC give Columbia Law School a few thousand dollars, what he called a “peanuts grant,” to train young law students as discrimination fighters. Thus EEOC money could teach law students to bring the suits that the EEOC could not bring.
Cooper got his grant and, with the support of the dean of Columbia Law School, Michael Sovern, went looking for a lawyer whom Columbia could hire to run its new Employment Rights Project. Though Cooper did lots of interviewing, he found his attorney by relying—ironically, as he saw it—on what he called “the old-boy network.” The perfect attorney in Cooper’s view turned out to be Harriet Rabb, a Columbia Law grad of 1966 and a family friend of the dean. Rabb was someone, Cooper thought, with “the balls for the job”—someone whose legal career had started with the activist lawyers Arthur Kinoy and William Kunstler, and who had assisted Kinoy in his teaching of constitutional litigation at Rutgers School of Law, where Kinoy was a professor. As Cooper later reflected, “I had enough awareness of categories of Title VII to realize” that this attorney was “a member of a protected class”—protected against discrimination by Title VII.
HARRIET RABB’S ROUTE TO HER JOB at Columbia included intersections of the personal with the political. Growing up the daughter of two Jewish physicians in Houston, Harriet Rachel Schaffer encountered discrimination early. Her high-school hopes to become a cheerleader, for example, went nowhere. “The idea of having a Jewish cheerleader” at her school, she later explained, “wouldn’t have passed the laugh test down there.” Once when she phoned the house of a boy named Harry whom she was dating, his father called him to the phone by yelling loud enough for Harriet to get the message: “Harry, it’s that nigger girl calling.”
Heading north for college, she enrolled in Barnard and then in Columbia Law, where she experienced minor variations on the familiar challenges to women. One Columbia law professor’s hazing took the form of a “Valentine’s Day massacre.” On that day, he insisted that all women stand up as the class began and remain standing throughout. He would then call only on women, asking what Rabb recalled as “all the embarrassing and difficult-to-discuss problems.”
Embarrassing questions continued as she began to seek work as an attorney. Interviewers asked her how she would practice law if she had children, and what she would do if, in some legal negotiation, her adversary got nasty. What if he swore? What if he took a punch at her? (She heard of similar questions aimed at her friends: What were their husband’s jobs? What method did they use for birth control?)
Rabb found work with a law firm that did not ask such questions: the pioneering civil rights firm headed by William Kunstler and Arthur Kinoy, where she had interned. Within two weeks of her arrival in 1965 for a summer job at Kunstler, Kunstler & Kinoy, three young civil rights workers disappeared in Mississippi, killed by the Ku Klux Klan. The family lawyer for one of the dead activists was Arthur Kinoy. Rabb, who would later say that her only political act during her Texas childhood was drinking from black water fountains—and whose physician father in Houston had maintained segregated waiting areas for blacks and for whites—suddenly found herself working with litigators at the cutting edge of civil rights law.
After graduating from Columbia Law in 1966, she stayed on that edge, working with her mentor Kinoy. At his newly formed public-interest law firm, the Center for Constitutional Rights, she worked with him through 1969, facing the ongoing challenge of what she later called “saving the world from reactionaries.” During her years lawyering with Kunstler and Kinoy, she represented many of the antireactionary icons of the day: H. Rap Brown of the Black Panther Party; Jerry Rubin, who was arrested for leading a march on the Pentagon; and the Students for a Democratic Society (SDS), the organization that symbolized campus resistance to the Vietnam War. All were radical, like Rabb, and not outspokenly feminist, like the center itself.
At the moment when feminists were first proclaiming that the personal was political, Rabb was heading toward a perverse encounter with that dictum. After law school, she began dating—in a Manhattan-to-Washington romance—one of her Columbia Law classmates, Bruce Rabb. Like Harriet, Bruce had also moved quickly to a position in the great civil rights battles of the era: he worked on civil rights with the Domestic Council of the White House staff of President Richard Nixon, a position to which Bruce had risen partly on the basis of a tradition of family service. His father had held the staff position of secretary to the cabinet under President Eisenhower (and would later be appointed an ambassador by President Reagan).
Their jobs seemed headed for a collision. Harriet’s work attracted the attention of the FBI. On one occasion, when the SDS lost a conference venue on short notice, she phoned Bruce to discuss SDS’s difficulty. As Harriet’s FBI file grew, her legal mentors, Kunstler and Kinoy, presented her with a problem. Given the political sensitivity of what she and Bruce worked on, their romance was creating the risk that neither of their employers would totally trust them. Harriet quit her job, married Bruce, and moved to Washington.
In Washington, the collision of personal and political turned professional: Republicans in the capital do not hire Democrats; Democrats do not hire wives of prominently placed Republicans. At this low point, however, Harriet Rabb received an offer from on high. It came from Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who knew her as an impressive litigator before his court and knew her husband’s family. He offered her a job as clerk for the court.
The offer stood for only a week. Bazelon called her to his office and told her that her FBI file had reached him and his colleagues. “My dear,” he said, “I propose you withdraw your application for this job. You have been to some very strange meetings.” Two of his colleagues had resisted her appointment—one saying he would lock his chambers to prevent her entry and both threatening to “contact the White House.” Rabb recalled that Bazelon had tears in his eyes.
Bruce kept his job, and Judge Bazelon helped Harriet find work with a newly formed community law firm, where she specialized in consumer safety litigation under, for example, the Child Protection and Toy Safety Act. It was a far cry from battling for civil rights with Kunstler and Kinoy.
MEANWHILE, EARLY IN 1971 at Columbia Law School, legal alma mater to both Bruce and Harriet Rabb, Professor George Cooper needed an attorney to take on his new challenge: to create an employment rights clinic, using the grant from the EEOC. Not only did Harriet Rabb already have many valuable contacts in New York, including Kunstler, Kinoy, Norton, and Michael Sovern, the Columbia dean whose wife had been a classmate of the Rabbs at Columbia Law; she also had extensive experience with one of the country’s leading civil rights firms, the Center for Constitutional Rights. What happened next caught George Cooper by surprise.
Even before Harriet Rabb began working for Columbia, the New York law women felt sure she would be an ally. Rabb “was like a gift,” one of her first students recalled—even if “to the faculty, she was just a salaried employee.” Since Rabb was appointed only as director of the project, she was not a tenured professor with job security. In 1971 Columbia Law still had no women professors, and as fast as Rabb had been hired, she could be fired. Nonetheless, women law students began consulting with her about the cases they hoped to bring against major New York law firms.
While Columbia was appointing Rabb, the New York law women were looking for an attorney who could eventually represent them. They conferred with Eleanor Holmes Norton, law teacher for some of them, including Diane Blank, in their women-in-the-law course at NYU. Though Norton had done much litigating in her many years at the ACLU, she could not bring a case from her new position as chair of the NYC Commission on Human Rights, so she introduced Blank to Rabb.
Blank and her fellow students had already done much of the legal work. Under the complicated procedural rules of Title VII of the Civil Rights Act, they needed to file complaints before they could bring lawsuits in federal court. Ironically, because they were bringing cases within the jurisdiction of New York City, which had its own laws forbidding discrimination, they needed to file charges, in advance of EEOC consideration, with the Commission on Human Rights, run by Norton.
Complaints flowed to the commission. For Norton, the students’ suits fit the sort of cases she wanted her commission to support. Margaret Kohn’s, which arrived in May of 1971, described the interview during which a partner in Royall, Koegel & Wells seemed to steer her away from litigation and toward trusts and estates, which he said “women are really good at.”
Another complaint arrived in late June from Diane Blank, against Sullivan & Cromwell, detailing a dearth of women attorneys at the firm. Among more than 140 attorneys, the firm had only three women. Among approximately fifty partners, the firm had no women. The complaint alleged that “anti-female bias” showed in the firm’s refusal to interview NYU women with strong credentials. It quoted a comment by Diane Blank’s interviewer that some of his partners were “prejudiced against women.”
Although the complaints by Kohn and Blank would eventually emerge as the most significant, they were far from alone in alleging discrimination. The large number of charges by young women attorneys made their experiences hard to ignore. In a press release they included a count of partners in New York City’s largest firms: 9 women among 1,409 partners, a ratio of 1 to 156. The release also alleged that interviewers had said, “We would give you an offer on the spot if it weren’t for your sex” or “Your problem is that you’re wearing a skirt.”
The women’s complaints broke into the open on July 1, 1971—just as Harriet Rabb took up her position at Columbia Law. The headline atop a page in the New York Times read, “13 Women Law Students Here Accuse 10 Large Firms of Bias.” The list of firms in the Times was a who’s who of powerful New York firms: Aranow, Brodsky, Bohlinger, Einhorn & Dann; Carter, Ledyard & Milburn; Cravath, Swaine & Moore; Gilbert, Segall & Young; Roth, Carlson, Kwit, Spengler, Mallin & Goodell; Royall, Koegel & Wells; Shea, Gallop, Climenko & Gould; Shearman & Sterling; Sullivan & Cromwell; and Winthrop, Stimson, Putnam & Roberts.
A partner in one, Charles Goodell, a former U.S. Senator, said that his firm would investigate the charges and added that he was a “strong advocate of women’s lib.” The Times then noted that his firm employed no women as attorneys and that one of its interviewers had been accused of saying that it “did not like to hire women lawyers because they would go off and get married especially if they were pretty.”
WHILE HARRIET RABB WAS SETTING UP her office at Columbia Law School, and before she could begin litigating in women’s lawsuits against New York firms, the young law women suddenly brought her another battle—an urgent one. In mid-July of 1971, those women who had just graduated from NYU, Columbia, and other law schools were studying for the most important test of their legal careers, the New York State Bar Exam, which, if they passed, would give them the right to practice law. As they received letters assigning them a location to take the test, they realized they had all been sent to a single test location: the Commodore Hotel. In contrast, most of their male classmates had been assigned not to a hotel but to rooms at local law schools: NYU, Fordham, and Columbia.
Soon they received more surprises. First, because all women’s tests would carry numbers in a narrow range, #1200 to #1600, graders might be able to identify tests taken by women. Second, being tested with these women at the Commodore were a large proportion of the male test-takers whom the bar association termed “repeaters,” typically men who had flunked the test before. While their male classmates would be tested at local law schools, the women would be sent to a hotel for flunkies and women—two groups that, the women feared, exam graders might conflate.
On July 16, 1971, Mary Kelly phoned the office of the State Board of Law Examiners in Albany to inquire about the test locations. A clerk explained that the board had employed only “one female matron” who could escort women to restrooms and that she would be working at the Commodore. That same day, sixty law women met to discuss what to do.
They saw at least two problems if they proceeded to take the tests: (1) Given the numbering of examination books, graders might, even unintentionally, expect below-average work from the Commodore group. (2) If groups that tested together were graded together (as Kelly had been led to believe by an instructor at a bar review course), then women faced another sort of problem. “We want to be sure we’re not being graded against each other,” one woman explained, “because even male chauvinists in law school will admit that women on the whole do statistically better than men.”
Their fears may have been ungrounded, but what should they do to find out? The sixty women faced a related problem. How could a would-be lawyer dare to challenge the State Board of Law Examiners? What if the challenge itself brought reprisals—perhaps in the committees that consider the “character and fitness” of a would-be lawyer? Given the risks, Mary Kelly was among a handful of women who decided to protest the sex-segregated bar exams. Kelly called Rabb and said, It sounds like the old story with blacks and “administrative convenience.” Rabb decided to take the case.
Operating not through her program at Columbia but through the New York Civil Liberties Union as a “cooperating attorney,” a volunteer position, Rabb initiated a federal suit on behalf of eight women against the New York State Board of Law Examiners. Again headlines sprouted. The New York Daily News article of July 20, 1971, carried the headline “Fem Students Sue the Bar Examiners.”
The battle was short and sweet. The next day’s headline in the New York Post read, “Testing Board Invites Gals: Join Men at Bar (Exams).” In less than an hour in a U.S. district court before Judge Marvin E. Frankel, Rabb and her students had won. The chairman of the State Board of Law Examiners agreed to end sex segregation in bar examinations. That segregation had been caused, he explained, only by “administrative convenience” and efforts to avoid hiring female restroom proctors. He agreed to go to the Commodore Hotel to tell the law women not that their exams would be desegregated but that they would be the last to take segregated bar exams in New York. The board, he insisted, had not intended “to discriminate.” Then he explained safeguards to ensure that the women’s tests this year would be assessed equally with the men’s.
In response to his capitulation, Rabb and the law students agreed to withdraw their lawsuits. But as newspaper accounts made clear, the law women had sued a powerhouse in the legal establishment and had emerged victorious.
Other discrimination cases began flowing to Harriet Rabb. In early 1970, women employees at Newsweek, represented by Eleanor Holmes Norton while still an attorney for the ACLU, had filed a class-action lawsuit that led to a nondiscrimination agreement with management. When the women found the agreement produced unsatisfactory results, they returned to Norton, who could no longer represent them because of her appointment as chair of New York’s Commission on Human Rights. Rabb took Norton’s place, becoming the attorney for the Newsweek women, whose legal case became the first for Rabb and the Employment Rights Project that Cooper had hired her to run. Eventually, Rabb and the project worked out a new settlement with Newsweek. Success in those negotiations led, in turn, to Rabb and her project team representing aggrieved women employees of Reader’s Digest and then of the New York Times. Meanwhile, Rabb was preparing the law women’s cases against such firms as Sullivan & Cromwell. Rabb and her team, which still included George Cooper, were becoming, at least for litigation under Title VII, the most visible gender-discrimination lawyers in America.
George Cooper had never dreamed this would happen. He had not hired Rabb to work on sex. His own work had attacked race discrimination, and he came out of a milieu that accepted sex discrimination as normal. When he graduated from Harvard Law School in 1961, he went to a big Washington law firm that every year, as he recalled, would hire a dozen or more associates and “always one woman—no more, no less.” She was hired, he understood, not on the partner track but on the “associate track.” Women were hired for their competence but, unlike men, were not expected to stay—although, Cooper observed, “a few quirky women would stay,” would never marry, and would remain forever associates but not partners. His first legal experience taught Cooper this arrangement was “the way things were.”
Now, using a program that Cooper had masterminded, Rabb and her students were aiming to change the way things were, partly by litigating against firms that gave money to Columbia or were led by Columbia Law graduates. Although Cooper stood behind them, he needed to talk to his dean, Michael Sovern. The dean told him to go for it. Cooper warned, “Shit may hit the fan.” The dean said he would handle it. Rabb found that Dean Sovern backed her whenever she needed him.
THE NEW YORK CITY COMMISSION ON HUMAN RIGHTS, under Norton, eventually reviewed ten different complaints produced by the Columbia and NYU law women. It winnowed away the weaker ones, tossing out five for lacking “probable cause.” Among those that won support from the commission were the cases of Margaret Kohn and Diane Blank.
Reporting in April of 1972, the Commission on Human Rights related a series of thirteen results from its investigation of possible discrimination by Royall, Koegel & Wells, the firm about which Kohn had complained. Of the firm’s eighty-six permanent attorneys, for example, only one was a woman. In the preceding decade, however, women had represented 5 percent of its “applicant flow” but only 2 percent of its job offers (and less than 1 percent of its offers for permanent jobs). Even rejected applicants were treated differently. Unlike rejected female applicants, rejected males sometimes received letters inviting them to continue to seek work at the firm. After employment, different treatment continued. The firm paid the initiation fees of several partners in a club that excluded women from membership. Perhaps most surprising was a finding based on a commission conversation with the partner who had interviewed Kohn for a job. According to the commission’s report, although Kohn was not hired, the partner admitted that she “was the second best applicant he interviewed at Columbia for 1971 summer employment.” The investigation led the commission to find “probable cause” that the firm had discriminated against both Kohn and other women attorneys because of their sex. Soon afterward, the EEOC issued Kohn a letter that gave her “permission to sue” the law firm of Royall, Koegel & Wells.
Reporting in January of 1974, on the complaint of Diane Blank against Sullivan & Cromwell, the Commission on Human Rights related brief but similar results. It found that though she was not hired, her curriculum vitae indicated “performance equal to if not better than that of males hired” by the firm. It found that the firm showed a “tendency toward sex-segregated job classifications,” indicated by an absence until 1971 of women in its tax and litigation groups. It reported that the firm used social clubs that excluded women from membership, “thereby depriving women associates of equal conditions of employment.” It found that the firm had never had a woman partner. In Blank’s case, as well as in Kohn’s, the Commission on Human Rights made a finding of “probable cause” that Sullivan & Cromwell had engaged in sex discrimination.
As a next step, Blank took the commission’s findings to the New York office of the EEOC. There Blank’s case hit difficulties. The EEOC’s district director ruled, for example, that Blank’s credentials were below that of the man whom Sullivan & Cromwell hired from her NYU class after its interviews in the fall of 1970. The director also made note of new statistics provided by Sullivan & Cromwell: from 1970 to 1974, Sullivan & Cromwell’s percentage of women among its associates had risen dramatically, from about 1.4 to 12.5 percent of all associates. The director concluded that the EEOC did not see “probable cause” to believe that Sullivan & Cromwell had illegally discriminated against Blank. However, following standard procedure, the EEOC informed Blank that she still had the “right to sue” Sullivan & Cromwell, if she wished, in a U.S. district court.