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Volume XXIX Number 2
Spring 2007

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Julia Lamber
Julia Lamber
Photo © Tyagan Miller

Discriminating Cases

by Ryan Piurek

In today's office environment, even a walking discrimination case like Michael ("That's what she said") Scott of NBC's The Office would understand the legal recriminations for telling a subordinate, "If you don't sleep with me, I'll fire you."

But there was a time not so long ago, explains Julia Lamber, when lower court judges were apt to dismiss what today would be clearly termed sex discrimination. In the case of a boss threatening to fire someone for not sleeping with him or her, Lamber, professor of law at Indiana University Bloomington, says the lower courts' reaction often was, "Yeah, that's kind of unseemly behavior, but really it's none of our business."

In the early 1970s, when Lamber was a student at the IU School of Law--Bloomington, the words "sex"and "discrimination"had yet to be conjoined, and very little had been written about issues of employment discrimination, even though Congress had enacted the historic Title VII of the Civil Rights Act of 1964 that would eventually affect workplaces across the nation. What's more, the courts had heard very few sex discrimination cases, which Lamber quickly discovered when she set out to write a short article about the issue for the school's law journal.

Her interest in employment discrimination started out as curiosity more than anything else, although as one of only nine female students in her law school class, she had first-hand experience with the issue. Given an opportunity to discuss negative treatment she might have experienced as a student, Lamber hesitates, then says simply, "Interviewing for jobs during law school was . . . (long pause) . . . an adventure."

A Field Is Born

Today, Lamber is one of the nation's leading scholars in employment discrimination law and a top expert on Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education programs or activities that receive federal financial assistance. She currently teaches courses in civil rights and employment discrimination, in addition to supervising the IUB Law School's judicial externship program.

Thirty years ago, though, she was just another fresh-faced attorney seeking to understand a new legal theory and uncover the type of evidence needed to prove cases of employment discrimination.

"It was a real challenge to be involved in the development of a whole new field,"Lamber says. "But in some ways it was relatively easy because it was so new. You could keep track of everything. You could know almost all the cases that were brought before the courts."She points to a wall in her office devoted to books consisting solely of employment discrimination cases. "Today, those books are just most of the cases,"she says. "I wish I could say I've read every page. In the beginning, you really could."

In the beginning, teaching and writing about employment discrimination was fun, Lamber says, because it got people to think about workplace issues in a new way. She remembers some employers asking her questions that would seem almost comical in today's offices. "They'd say, 'You mean I can't really have whatever rules I want? O.K., I can't have any rule that I want to have, but why would this particular rule hurt women? Why would it hurt African Americans?'

"Getting people to think about what they were doing in a different way was and still is the most fun part," Lamber says.

Working It Out

Many of the early cases concerning discrimination claims would never make it to court today, evidence of the progress the nation has made in the area of employment discrimination. Lamber recalls an early Supreme Court case, decided by then-Chief Justice Warren E. Burger, that involved an employer that wouldn't hire women who had small children, but would hire men who had small children.

"Originally the reaction was, 'Well of course, women who have small children, (a) shouldn't be in the workforce, (b) are going to stay home at the drop of a hat, and (c) shouldn't be [working if they have small children] anyway,'"Lamber says.

"In this particular case,"she continues, "the employer tried to argue that this wasn't sex discrimination, because it wasn't a difference between men and women; it was a difference because the woman had three small children. But if you treat men with small children one way and women with small children another way, it's really not that hard to see that this is, in the end, sex discrimination."

Lamber points out that we've come a long way from the days of tolerating the boss hitting on the secretary and thinking that it was best to keep the employer's dirty secrets in house and out of the courts.

"Clearly, we don't think that way anymore--partly because we spend so much time at work. It's where we work out all sorts of complicated issues,"she says. "Not just what sexual harassment is, but what kind of behavior rises to the level of racial discrimination. The easy cases were 'I won't hire you because you're black.' But today there are lots of other more subtle, more complicated questions."

As employment discrimination cases have become more commonplace in the courts, judges have been faced with many more complex issues, Lamber says. She cites a recent Supreme Court case, centering on a woman who'd quit her job because she said she was sexually harassed. In the decision, the court had to determine whether the woman quit her job "voluntarily"or "involuntarily."

"The court had to grapple with exactly what kind of sexual harassment would be sufficient for a reasonable reaction to be, 'I'm quitting,' rather than trying to work out a solution or get the employer to change. And that's complicated," Lamber says.

She offers another example: say an employer has a rule of hiring only people who have military experience. That kind of rule, she says, "would have an adverse effect on women because women haven't been in the military in the same numbers as men and, for a long time, they were precluded from being in the military. That's probably sex discrimination." <

A Proven Effect

To help prove discrimination on the basis of sex, race, religion, age, or disability, Lamber has devoted much of her research to developing litigation strategy and statistical methods of proof. Statistics are one of the primary ways lawyers can prove discrimination, she says, and there are a variety of statistical techniques deployed in the courtroom.

To show how statistics can be used effectively, she uses the example of jury selection. "Juries are supposed to be randomly selected from a pool of people from the community,"she explains. "You would think that juries randomly selected would look like the community looks. If the community is 20 percent black, but you get a white jury--again and again--you'd think something is going on. Similarly, you can use statistics to look at employment decisions and say,'If this process was non-discriminatory, this is what it would look like … and it doesn't look like that.'"

Despite new litigation strategies and attorneys' embrace of statistics in the courtroom, it remains difficult for plaintiffs to win employment discrimination cases. The success rate for Title VII plaintiffs "isn't very good,"Lamber says. She attributes the lack of success to the fact that employment discrimination cases are relatively easy to file, "so lots of people bring them, and there is no good screening mechanism to eliminate bad cases. You have a job. You get fired. You're mad. You file suit. It can't be because you did anything wrong. It must be because your employer didn't like you. I think there's a lot of that."

But the lack of success in court doesn't mean the law hasn't had a huge effect on workplaces, she says. "I think part of the reason plaintiffs lose is because the law has had such an effect, not in the courts but in the workplace. Employers did change their behavior. Labor unions changed their behavior. Workplaces changed. And people have changed."

When the Rules Change

The arguments in the area of employment discrimination have changed, too. And this presents an entirely new set of challenges to experts such as Lamber and to her students, who will be asked to continue the progress that has been made since the passing of Title VII.

Lamber rattles off several examples to illustrate how intricate workplace issues have become: An office has a rule about a particular hairstyle, which turns out to be a predominantly African American hairstyle. An employer uses certain aptitude or ability tests to make hiring decisions. An employee chooses to observe his Sabbath on Saturday instead of Sunday, even though he is required to work on Saturday. A woman in her 50s is terminated from her employment because she refuses to use computers.

Lamber's research reflects this newfound complexity in the workplace. She has been studying the concept of reasonable accommodation in both disability and religion cases, as well as issues concerning affirmative action, age discrimination, "hostile"work environments, and the Family and Medical Leave Act (passed in 1993).

As the baby boomers approach their golden years, might the courts be overrun with employment discrimination cases?

Perhaps, Lamber says, explaining that boomers, in general, have money and are relatively sophisticated. But, she is quick to point out, that doesn't mean they'll be victorious.

Age discrimination "has always been more complicated than claims of race and sex discrimination,"Lamber says, "because we have always made certain distinctions on the basis of age: 16 to drive a car, 18 to vote, 21 to purchase alcohol. People say, 'Of course there are differences between toddlers and 22-year-olds and 55-year olds.' The question has always been how to translate those differences to the workplace. Which rules make sense? Which rules don't?"

Proving you work in a hostile environment is especially complicated--and still evolving, Lamber says. When it comes to what's hostile, "the court uses the term 'severe and pervasive',"she explains. "So it can't just be a single instance. It's not just a bad day. Not just 'I'd rather be someplace else, and my boss is a meanie' type of thing. It's difficult to win such cases because the worker needs to prove that the behavior reaches the level of severe and pervasive."

The passing of the Family and Medical Leave Act, which allows an employee to take unpaid leave due to illness or to care for a new baby or sick family member, has added yet another layer to employment discrimination. The late Chief Justice William Rehnquist--quite surprisingly for a conservative member of the court--wrote the opinion upholding the statute as a way of addressing discrimination against women in the workplace. And Lamber says that the act has had an "enormous effect,"especially for people coping with the illness of a child or parent, even though it turns out the primary reason that people use it is for their own illnesses.

But Lamber isn't all that excited about the act, because it deals with unpaid leave. "As soon as you're talking about unpaid leave, then you're talking about something a lot of people can't afford,"she says. "If we're really serious about families and medical leave, we'd be talking about paid leave."

Still Fighting

Many of the early issues concerning employment discrimination have been solved by legal pioneers such as Lamber, and progress has been made. For instance, when she graduated from law school, Lamber started one of the nation's first courses in employment discrimination at the School of Business in Bloomington. Today, such courses are standard at business schools.

But the challenges Lamber faced as a young attorney remain, albeit in new forms. There is still much work to be done, she says.

"It's not settled--but that's the fun part.".

Ryan Piurek is a media relations specialist for the Indiana University Office of Media Relations and a freelance writer living in Bloomington.