David Cashdan Speech, EEOC 40th Anniversary, Georgetown Law School, 2004
It is indeed an honor to stand in for Bob Belton. There was a time in my history at the EEOC when I almost felt, even though Bob was with the NAACP Legal Defense Fund and I was with the EEOC, that we were joined at the hip. We spent a lot of time together, and I plan to tell you about that.
I was at the EEOC in its first five years. I started there in November ’65, and I can truly say it was one of those instances where I was in the right place at the right time.
Trying to get a job in civil rights when I graduated from law school in 1964 was very difficult. Title VII had not been passed, but was about to be passed. The jobs were few and far between. There was the Civil Rights Division of the Department of Justice – that was basically it. Even Legal Services had not started yet.
The EEOC, in its first days, was an amazing place. Especially when you take into account that this was an agency that was to be toothless and had no enforcement power. The first thing you noticed was that everyone was dedicated – filled with the mission. The talent pool was beyond belief.
There was a Commissioner Sam Jackson: Sam was from Topeka, Kansas. He was the local lawyer in Brown v. Board of Education, and he was the fulcrum, the center point for practically every employee. He and they wanted to make the Commission an active hotbed of enforcement, furthering Title VII principles, making it work, ending discrimination in the work place.
There was Charlie Duncan, our first General Counsel, you may have seen his obituary and an editorial in the “Post” this past weekend. He too had a civil rights background. Charlie was a scholar and a superb lawyer. He later served as Corporate Counsel here in The District of Columbia.
There was Dick Berg from the Justice Department, Office of Legal Counsel. He was a Harvard law graduate who had been actively involved in the drafting of and enactment of Title VII. He wrote the first law review under Title VII.
There was Cliff Alexander, who later served as Secretary of the Army. He also ran for mayor.
There was William Brown who served as Chairman after Cliff Alexander.
There was Pat King, now one of the professors here at Georgetown Law Center. There was Fred Abramson, who later was president of the D.C. bar. There was Vincent Cohen, who had been I believe, an All American basketball player, and who later became one of the senior litigating partners of Hogan and Hartson. There was Gerald Frug, who is now a professor at Harvard; there was Cruz Reynoso, who is – I’m not sure of the title of the highest court in California – but he is one of their judges. There was the first female black attorney at the Justice Department, Julia Mack Cooper. Before she came to EEOC, she had argued before the Supreme Court. After the EEOC, she became a judge on the D.C. Court of Appeals. If you want to read some of the best employment law decisions applying to our local civil rights act, I urge you to read Judge Mack’s decisions.
And there was Chuck Reischel, another Harvard Law graduate, who became a legend at the EEOC. There was Beatrice Rosenberg. She came from the Justice Department and had argued more cases before the Supreme Court than any female at that point in time. There was Phillip Sklover, a law student at the time, and yes, still at the Commission. Good Morning, Phil. He was involved in some of the seminal opinions, such as Griggs v. Duke Power and Phillips v. Martin Marietta. There was Barbara Lindeman-Schlei, a Yale Law graduate and a former Assistant U.S. Attorney. Her name is legendary in the area of employment law. She is the Schlei in “Schlei and Grossman,” casebook. There was David Copus, also a Harvard Law graduate and fresh out of the Peace Corps; now a highly respected management lawyer. While at the EEOC, David launched a huge industry proceeding against AT&T in front of the Federal Communications Commission testing for the first time the use of the FCC?s licensing power to address EEO issues. I can go on and on. But what a talent pool, and we fed each other.
In those days, we also looked a little different — well before casual clothes were in style. Bill Brown can attest to the fact that he inherited an office where many of us had “fu manchu” beards, wore body shirts, love beads, and flare pants. To be sure, there were a few awkward moments. We had a General Counsel for a couple months from the Department of Navy, Stanley Hebert. A very nice man, who believed in a “shipshape” office. We just were not his thing.
So here was this contingent of folks that were in love with what they were doing. Since we did not have any enforcement power, nobody was paying any attention to us. Their disinterest was good, because we really were free to do what we wanted to do in terms of helping to develop the law.
We had two legal roles that I want to mention. First, the Commission could enforce subpoenas to get documents for the Commission’s investigations. With the help of the U.S. Courts of Appeals, we established early on that broad documentary discovery and statistics were needed in individual cases. That became very helpful later on in the private causes of action.
Second, we recognized that our role was to make the private cause of action work and to help it bring relief to victims of discrimination. So, we set out to participate as amicus curiae, in almost all of the first private causes of action filed under Title VII.
We wanted to eliminate delay. We had to deal with whether a plaintiff had to have an EEOC investigation before he/she could file a lawsuit? Did one have to have attempted conciliation before he/she could file a lawsuit? Did the charge have to be sworn during the 90 day time period for filing a charge before the charging party could file a lawsuit? Did there have to be a cause finding before one could have a lawsuit? If you had a no cause finding, did that keep you from filing a lawsuit? Every one of those silly little issues was being raised in every district court in this country; every circuit had to deal with each of them. We worked our darndest to try to help the private litigants obtain the right answer, which was: You don’t need any of those things. Let the individual put a charge in front of the EEOC, give the EEOC an opportunity to do what it could do, and if the EEOC didn’t resolve it within a certain period of time, the charging party had a right to go to court. So, I spent a lot of time on those procedural issues, and in the process spent a lot of time in the Fourth, Fifth, Seventh, and Ninth Circuits. Yes, the times change. Courts change. But at the time we received receptive rulings from the Circuit Courts that helped the private cause of action to get to and stay in court.
There were certain themes in our dialogue. We were enchanted with the phrase “highest priorities.” That came from a Supreme Court case, Newman v. Piggy Park Enterprises. There, the Supreme Court pointed out, although not in an employment case, that the vindication of civil rights under the Civil Rights Act of 1964 was to be accorded the highest priority. So in every brief we reminded the lower court that Bob Belton’s LDF clients should be accorded the highest priority, get the best of treatment. And often times they did.
Another theme that we wanted to address, besides delay, was the scope of the lawsuit.
We wanted to make sure that when a litigant made it to court, his/her lawsuit could be as broad as possible. We helped to develop the “like and related and growing out of the scope of the investigation” concept, so that the EEOC’s investigation and the plaintiff in court would not be tied to just an “eensy teensy weensy” bit of a case. And that principle continues to be fought and fought and fought. Since then, there has been some narrowing; but, in the early years it was ever so helpful to the private litigant to be able to litigate other terms and conditions of employment things that in a broad sense were “like and related” to a denial of a promotion or a bad evaluation, or a denial of a wage increase.
Another issue was — What did it mean to be an aggrieved party?
You had to be aggrieved in order to file a charge with the EEOC, but were you aggrieved enough to then come into the court and file a lawsuit? The first case, or one of the first cases in the Fifth Circuit, was Jenkins v. United Gas. The issue was whether or not the person who complained of a denied promotion and who was later promoted after he filed the charge, could continue to complain that he/she was aggrieved? The Fifth Circuit said yes. The fact of the later promotion did not address the underlying aggrievement, discrimination or practice. The Fifth Circuit also articulated in that case a theme that one sees constantly in the early cases; namely, that employment discrimination is “perforce” a class action. It is a class concept or phenomenon. It requires class proof, and just because someone has been promoted, doesn’t mean the system of discrimination that denied him/her the promotion originally doesn’t still exist. This theme led logically to another one that we wanted to establish: “make whole relief.” It is not enough just to give somebody their backpay; the employer needs to end all vestiges of the unlawful discrimination, making sure it will not happen again.
In the first five years, there were no jury trials under Title VII; the focus was not on punitive and compensatory damages. Monetary relief, in most cases, was relatively small. The primary thrust of the litigation that Julius Chambers, Bob Belton, and their colleagues in North Carolina and that other lawyers were filing in the early days was upon obtaining affirmative relief, ridding the system (for example the seniority system), if that is what was at issue, that was keeping people relegated to certain departments because of their race or gender. In the early days, almost all of the cases involved race discrimination.
Another problem we dealt with was how many people had to file a charge in order to be included in the lawsuit? We maintained that the one charging party should be able to represent everyone else in the class who was subjected to the same discrimination, without each of them having to file a charge with the EEOC. See Robinson v. Lorillard, in the Fourth Circuit, Bowe v. Colgate in the Seventh Circuit, and also a Fifth Circuit case involving Crown Zellerbach. All three of these cases held that only one charging party was sufficient.
These procedural victories helped to build a viable cause of action.
We also dealt with substantive issues. For example, we first dealt with seniority discrimination in Quarles v. Philip Morris in the Eastern District of Virginia. In Quarles, the EEOC filed a brief in its own name for the first time. Prior to that, we had to go to David Rose at DOJ, to get him to sign off on a brief, or to his predecessor. As for seniority, the Justice Department had not yet made up its mind as to what they wanted to do. There was a wonderful judge sitting on the District Court in Richmond, Virginia that was going to rule on this case, Judge Robert Merhige. I did something in Quarles that I can’t imagine that I would do today. I told the Commission’s then-Chairman, Clifford Alexander, I would quit if the EEOC did not file the brief I wrote. Cliff did agree to file the brief, but I am sure it was not due to my youthful brashness. Anyway, our amicus brief helped establish for the first time that a seniority system could perpetuate racial discrimination in violation of Title VII.
How did we get involved? We didn’t have computers. There was no mechanical way of knowing about when a lawsuit was being filed. The tracking job was not easy; but it was easier than it would be today, because today there are thousands and thousands of lawsuits. Back then, there weren’t that many cases being filed. Most of them were being filed by lawyers with NAACP Legal Defense Fund, with its cooperating lawyers down South and around the country, with Bob Carter and Herb Hill at the NAACP, or with the Lawyers Constitutional Defense Committee. (Richard Sobel with the LCDC in Louisiana handled the first seniority cases to reach the Circuit Court of Appeals.) We also worked with Lawyers Committee for Civil Rights and Law – with Rick Seymour and Bob Fitzpatrick who were in Mississippi. We kept in direct contact with each of these lawyers. We didn’t wait for them to ask for help. We called them up, and asked, “Hey, Bob, that case you have down in North Carolina, do you have any motions pending?”
We were being vigilant. Trying to assist these spirited Civil Rights attorneys, to assure that the body of employment discrimination law that was being developed was going to be expansive. We also tried to help get some consistency among the various circuits.
The bottom line was that working for the EEOC in its first five years, when it was without enforcement power, was an extremely exciting time for a young lawyer. I think in terms of the enforcement of the law, the EEOC, the lack of enforcement notwithstanding, made its mark. As a result of our efforts in the first five years, we helped to create robust enforcement by private attorney generals. The EEOC’s early involvement led to many landmark cases. To be sure, some of our success, and that of the private civil rights lawyers, has been eroded, but much has been preserved. It was a wonderful chapter in my life.
Thank you for letting me revisit the EEOC’s birth and early childhood. They mean so much to me. Thank you for inviting me.