I took an oath in 1981 to become a lawyer. I’ve been practicing labor and employment law in Texas ever since. Back then, the Civil Rights Act of 1964 was a teenager, and I was, in lawyer years, a child. We are now both middle-aged. What’s changed? What hasn’t? What’s the future?
In 1981, it took guts to practice employment law on the plaintiff’s side. There were a few brave souls trying to make a living, but the odds were tough: no jury trials, limited damages, hostile case law.
Now, there are boutique plaintiffs firms across Texas. The climate has changed: jury trials, enhanced damages, and organizations of plaintiffs lawyers providing mutual aid and support. But, you know what? Being a plaintiffs lawyer in employment cases is still a risky business proposition.
So, let’s drink a toast to those who did it in 1981 and to those who take that risk today. All the rights in the word mean zip without an advocate for those rights.
Also, back in 1981 there were a handful of minority and female lawyers practicing employment law. Into the 1990s this group was still so small that people still bandied about the terms “women lawyer,” “black lawyer” and “Hispanic lawyer.” Ask a lawyer of a certain vintage and you’ll hear at least one story about someone at a deposition confusing a female lawyer with the court reporter.
The legal profession has dropped these phrases from the lexicon, as the number of women and minorities has increased markedly. This is good.
Yet there is a “but.” Consider an April 21 posting on the ABA Journal blog, “Partners in study gave legal memo a lower rating when told author wasn’t white.” The authors of the study found that partners who received the same legal memo containing the same errors gave the memo lower grades when told that a person of color wrote the memo. That’s an example of implicit bias; becoming conscious of it is the first step in ridding ourselves of it.
The Texas legal profession is making progress in regard to gender. In the late 1970s, there was a federal court lawsuit in Dallas involving Dallas firms allegedly refusing to hire female law school graduates—not in the misty past but in our lifetimes. It’s not the case anymore, but check out the Dallas Morning News from April 12, 2014, “Gender gap seen in promotions at most law firms in Texas,” discussing a gender gap among Texas firms in promotion to partnership.
Let’s shift from changes among lawyers to changes in the law. I proudly represent companies in employment cases—or, more specifically, the women and men who make up an organization. The days (and there were such days) when a company would not hire women because of their gender or African-American applicants because of their race are gone, for the most part.
But as most gardeners know, when you pull out one weed, a new and different one grows. Now, discrimination is more under the radar: stereotype discrimination, cliques of the powerful, or something people think they know but don’t (“How can sacrificing a goat to ward off evil spirits possibly be a protected religion?”).
Bad optics cause the bad decisions that lead to many of today’s court and jury findings of discrimination. These include things like an imprecisely written email, reasons for employment decisions that shift or failure to perform a risk assessment—bad optics all, not conscious discrimination.
One thing that has not changed in all these years is courts’ continuing struggle with how to determine if unlawful discrimination is at work. Figuring out what hides in a person’s heart is a rough art, not a precise science. Parsing motivations is not landing a 777.
Texas was one of the last states to enact its own prohibitions against discrimination. Well, sometimes wisdom never comes, so we shouldn’t reject it merely because it comes late. Since then, cities across Texas have either adopted ordinances against discrimination or, like Houston, are considering one.
As it turns out, sometimes the majority will push through laws protecting the rights of a minority. A singular genius of America is that the system includes enough flex to do so. The recent push for gay rights is the most recent example.
There’s more. At their essence anti-discrimination laws embody a very Texas spirit: the desire to judge a person as an individual on his or her merits—sometimes with a hand up, as with the Americans with Disabilities Act. I sometimes ask clients, “What would you do it there were no laws?” Their answers continue to hearten me.
What this country started in 1964 will never be finished. But take heart. At the end of his great American novel, “You Can’t Go Home Again,” Thomas Wolfe writes about an America in trouble. But he quotes Johann Wolfgang von Goethe, who remarked that progress is like the reeling of a drunken beggar on horseback, who moves from side to side of the road but nonetheless is always moving forward. As with the beggar, so, too, with Title VII.
Michael P. Maslanka is the managing partner of the Dallas office of Constangy, Brooks & Smith. He is board certified in labor and employment law by the Texas Board of Legal Specialization. His “Work Matters” blog can be found at www.texaslawyer.com. His email address is firstname.lastname@example.org.