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Washington Lawyer

Legends in the Law: Judith L. Lichtman

From Washington Lawyer, February 2012

Interview By Kathryn Alfisi

Judith L. Lichtman. Photo by Patrice Gilbert.Through her involvement with the National Partnership for Women & Families, Judith L. Lichtman has been a leader in the fight against gender discrimination for almost four decades. Lichtman joined the National Partnership (then called the Women’s Legal Defense Fund) as executive director in 1974. She stepped down in 2004 and continues to serve as senior advisor.

Before focusing her attention on gender discrimination, Lichtman used her law degree to fight for civil rights at the U.S. Department of Health, Education, and Welfare. She also was the first white instructor at Jackson State College in Mississippi, a historically black school. Washington Lawyer recently sat down with Lichtman to discuss her experiences at the front lines of the battle for civil rights and gender equality, including her role in the passage of the Pregnancy Discrimination Act and Family and Medical Leave Act.

Tell me a little about your childhood. Where were you born?
I was born in Brooklyn, New York, and was 20 years old before I left home to transfer from Hofstra College (now Hofstra University) to the University of Wisconsin when I was a junior.

I had a wonderful childhood, growing up in a large extended family, one block from the Atlantic Ocean in a little town in New York City called Far Rockaway. My sister and I were raised by extraordinary parents who made it very clear that we were put on this Earth to make it a better place. My parents and their family were labor union activists, who themselves embodied the search for social and economic justice. I believe their clarity about the abomination of race discrimination and their deep and broad commitment to justice and equality influenced me greatly. Examples of how terrible race and economic inequality were frequently discussed at our dinner table. Importantly, my parents were very clear that women needed to be economically independent, and, indeed, my mom worked outside our home, which I think, for her time, was quite unusual.

When did you decide to pursue a legal career?
While I was an undergraduate at the University of Wisconsin, I had an important mentor, an extraordinary woman who is now the chief judge of the Wisconsin Supreme Court, Chief Judge Shirley Abrahamson. I majored in American history and American political theory, taking an undergraduate course in constitutional law. Shirley Abrahamson taught that course. I had planned to go to graduate school in American political theory, but Judge Abrahamson strongly suggested that an academic degree just wasn’t an activist enough pursuit for me; she urged me to think about a law degree. I like to give the chief judge all the credit, but none of the blame for my career. She was absolutely right that getting a law degree allowed me to use the law to fight race discrimination whenever and wherever it raises its ugly head. Without her good advice and willingness to mentor me, it never would have occurred to me to go to law school.

What was your law school experience like?
There were two women in my University of Wisconsin Law School class of 150 students [Class of l965], so you get a sense of what an unusual decision it was in 1962 for a woman to decide to go to law school. While it was certainly a time when women in law schools experienced significant hazing, as did I, I also had some wonderful professors and mentors who treated me with the utmost respect. Ultimately, I had a very interesting law school experience.

Did you have a clear idea of what you wanted to do with your law degree?
It was very clear to me that I was getting my law degree so I could become a civil rights activist.

What was your first job out of law school?
In March 1966 I began working as an attorney for the U.S. Department of Health, Education, and Welfare, first working in the office that later became the Office of Civil Rights, and then at the Office of General Counsel. My job was to enforce Title VI of the new 1964 Civil Rights Act, which prohibited school districts receiving federal financial assistance from discriminating against black and Hispanic students. It was an important legal vehicle for achieving school desegregation. My job involved traveling to the southern states, cities, and towns that were still segregated; investigating race discrimination complaints; and bringing legal action when necessary. By and large, school districts remained segregated despite the fact that Brown v. Board of Education was decided by the U.S. Supreme Court in 1954. It was a dream job given my interests. I was thrilled that I would have the ability to help enforce laws that prohibited race discrimination.

Were you nervous at all about going into the segregated South as a civil rights activist?
I was nervous. We had to be very careful while traveling in the South. We rarely sent out integrated teams, and never in government–marked cars because we were worried that, that fact alone, might cause violence. We rented cars rather than use government–marked cars; we would eat our meals in black neighborhoods. Large national hotel chains were spreading across the South, and they were integrated and that’s where we would stay. Despite the requirements to integrate public accommodations in Title II of the Civil Rights Act of 1964, there remained many places where public accommodations were segregated. We definitely needed to be cautious during the spring and summer of 1966. One could see segregation all around. You still saw water fountains that said ‘white only’ and ‘black only.’ You saw restaurants that had separate back entrances for black people. You experienced many restaurants that refused to serve black and white people wishing to eat together.

I met my husband, Elliott Lichtman, and married in late 1967. Elliott, a civil rights lawyer, worked for the Lawyers’ Committee for Civil Rights Under Law. I moved to Jackson, Mississippi, where I taught at Jackson State College. I was the first white person hired to teach there. We lived in a predominantly black community. I was very mindful of the dangers for civil rights lawyers. Civil rights workers [Andrew] Goodman, [James] Chaney, and [Michael] Schwerner were killed not that long before we moved to Mississippi, and the Meridian, Mississippi, synagogue had been bombed just a year before we arrived.

Our time in Jackson was always limited. So, eventually we returned to resume our civil rights work back in our home city, Washington, D.C.

How did you go from working on civil rights issues in the South to then working on gender discrimination issues at the National Partnership?
I was convinced to take the job as executive director of the Women’s Legal Defense Fund [now the National Partnership for Women & Families] by a dear friend, District Court Judge Gladys Kessler. Judge Kessler was one of its founders. Initially, I was not interested the job because I wanted my work to focus on fighting race discrimination. Gladys Kessler made the intelligent argument that gender and race discrimination were not unrelated and easily convinced me to apply for the job.

I started working for the Women’s Legal Defense Fund in July 1974, barely 19 months after Roe v. Wade was decided. Title IX, which prohibits sex discrimination in education, became law in 1972, but no regulations had been promulgated. Without regulations, the law is just some piece of paper never having been implemented. One of my first responsibilities was to advocate for strong regulations; they finally took effect in 1975.

Could you describe the national atmosphere at that time regarding the women’s movement and gender discrimination issues?
The mid–1970s was a time of great activity to address gender bias in all walks of life—in education, employment, credit, family law, trusts, and estates. The courts, the Congress, and successive administrations were forced to confront and address centuries-old sex discrimination embedded in every facet of our lives, through the lens of constitutional and legal rights of women. The Women’s Legal Defense Fund and I, as its executive director, were at the center of all of that change. We have provided leadership for every civil rights administrative, legal, and constitutional battle since our founding in 1971.

What were some other issues you worked on early in your career at the National Partnership?
One of the issues I worked on in those early years was combatting pregnancy discrimination in employment. Title VII, another section of the 1964 Civil Rights Act, prohibits sex discrimination in employment. The courts had uniformly interpreted this statute to include discrimination based on pregnancy, until a case styled Gilbert v. General Electric got to the U.S. Supreme Court. The Court decided in favor of the employer. In his decision, Justice William Rehnquist decided that discrimination against pregnant women wasn’t sex discrimination because the analysis shouldn’t compare women and men, but rather compare pregnant and nonpregnant people.

The company’s health and disability plan covered everything—circumcisions, vasectomies, injuries resulting from felonies you committed. There was only one thing that it didn’t cover, and that was health and disability coverage for pregnancy. The National Partnership, Ruth Bader Ginsburg, Marcia Greenberger from the National Women’s Law Center, and several other important women’s rights leaders led the effort to overturn that decision. It took us two years, but we did so in 1978. The Pregnancy Discrimination Act basically said: We meant what we said and said what we meant … that pregnancy discrimination is sex discrimination and is against the law. Obviously, the act established that employers have to treat men and women the same based on their ability to do their job and not their child-bearing capacity.

Tell me about the National Partnership’s involvement with the Family and Medical Leave Act.
The Family and Medical Leave Act (FMLA) is a crowning achievement for the National Partnership and for me. Unfortunately, it took almost nine years to pass. President George H. W. Bush vetoed it twice and, importantly, President Clinton made it the first bill he signed into law, when he was barely weeks in office. We have the first pen he used to sign the bill and framed it right here in our office. President Clinton often tells people that the act was among the very best things he accomplished in office. Further, that he rarely goes anywhere without somebody thanking him for FMLA. That experience is certainly true for me. Nonprofits are always urged to have an “elevator speech,” where in the time it takes to have an elevator ride, one can describe the organization’s mission. My elevator speech is that we’re the group that wrote FMLA, we led the effort to pass it, and I was its chief lobbyist. Invariably, somebody will come up to me and tell me their wonderful and extraordinary, heartfelt family health needs story and how without FMLA they couldn’t have taken the necessary time off. It doesn’t get much better than that.

A few years after the Pregnancy Discrimination Act was enacted, we realized that while it provided an extraordinarily important legal protection for women, the law assumes that employers would provide some benefits to somebody. But in a circumstance when an employer chose to provide no health or disability benefits for anybody, there was nothing in the Pregnancy Discrimination Act that would require the employer to do so. We began to think about a public policy that would basically put our nation’s policies where our mouths are. We Americans always like to say that we’re a family–friendly nation, but for that to be true, people need to be able to take time off for medical needs without fear of losing their jobs. We were vilified at that time as really being social engineers, but today we estimate that FMLA has been used more than a 100 million times and is wildly popular.

Another issue that you and the National Partnership have worked on is wage discrimination.
When I first came to work at the Women’s Legal Defense Fund in the summer of 1974, everybody wore buttons that displayed ‘59 cents’ with a slash through it, symbolizing the fact that women earned only 59 cents for every dollar a man earned, and that the pay gap was unacceptable. Today, almost 40 years later, women earn on average only 77 cents for every dollar a man earns. The disparity is even worse if you look behind that statistic. African American women are earning about 62 cents and Hispanic women about 59 cents for every dollar. We should not have to wait another 40 years for pay equity. So we have very far to go.

The National Partnership is now working on the Paycheck Fairness Act, which is sponsored by Rep. Rosa DeLauro (D–Ct.) and Sen. Barbara Mikulski (D–Md.) and addresses that wage gap, that same pay inequity that I saw in 1974, albeit slightly smaller. I would have thought that the pace of change would have accelerated much, much faster.

Could you mention some other causes the National Partnership has championed?
The National Partnership has played an important role in many issues directly affecting the lives of women and our families. In addition to those already mentioned, our work, for instance, includes addressing the needs for access to quality coordinated health care, reproductive rights, and strong enforcement of equal employment opportunity laws.

How happy are you with the progress that has been made in the area of gender discrimination since you started working at the National Partnership?
There is a glass half–full, half-empty story to tell. I had great hopes when I started working for the Women’s Legal Defense Fund in 1974—and many of them have been realized. But I definitely think that the necessary social change should have happened much, much faster. We’re still fighting some battles we should have won long ago. For instance, about 40 percent of workers don’t have one day of paid sick leave and most don’t have paid family leave. That’s an incredibly high number. Therefore, one of the most important priorities for the National Partnership is to enact paid family leave policies for U.S. workers who do not have even one day of paid sick leave. Obtaining paid sick and paid family leave is an important priority for the National Partnership. Sending people to work sick can’t be a good idea. Two years ago when the fear of a viral pandemic with H1N1 was quite real, the government told parents to keep their kids home if they were sick. But, keep them home with whom? What kind of crazy advice is that? That’s all fine if we have guaranteed paid sick leave, but for the 40 percent of workers who don’t, it’s very bad and costly advice. We have come very far, but we have very far to go.

How do you feel about the state of gender inequality in the legal profession?
The National Partnership, and I personally have been very active in providing leadership to ensure that women have career opportunities, and that includes becoming judges. The need for diverse judicial nominations with a demonstrated commitment to equal justice is a perfect example of how very far we have to go. I don’t have the exact statistics about the percentage of women in the federal judiciary, but it’s nowhere near 40 percent or 50 percent. Further, while there are many women associates at law firms, the failure of our corporate and government legal leadership to reflect diversity is an ongoing problem. There are not many women in the legal profession in leadership positions. I think it’s a problem that requires a great deal more work. There is a crying need for both men and women in the bar to ensure that the pace of gender equality in the legal profession accelerates.

What are your thoughts on women balancing work and family?
There hasn’t been a revolution in caregiving in this country, in the way that there has been a revolution in women’s presence in the workplace since the 1960s. For most women working outside the home, that means that they have at least two jobs. Holding down two jobs is, itself, very hard work. I do think that more and more men are beginning to take on family caregiving responsibilities, and I’m hopeful that my children and their children’s generation will have a very different reality. But I don’t think anybody should be promised a rose garden. Balancing work and family is not easy for women or the men in their lives, and we, as a nation, desperately need to provide the public policies that will support our working families to be productive workers and responsible family members.

What was your own experience in trying to balance work and family?
As I said, being a responsible family member player is hard work. I was and am blessed with an extraordinary involved husband, Elliott, and family support. When there are two partners in a family relationship, both will have to assume family caregiving responsibilities. Addressing the needs of working families should be a priority for this nation so that we can be productive and responsible in every facet of our lives.

Why did you decide to step down as executive director?
I had been the leader [at the National Partnership] for 30 years, and I was approaching a milestone birthday. I thought that it was really important for the organization to continue with its next generation of leadership. I had accomplished a lot and had an awful lot of fun. I stepped aside for a brilliant woman, Debra Ness, to become my successor. I assumed the title of senior advisor and have the best of all possible worlds. I continue to work on issues I feel passionately about, with wonderful people, knowing that the organization is in extraordinarily, capable hands.

Now I have the ability to spend a little more quality time with my grandchildren. It was a total coincidence that I stepped down just as my oldest daughter was having her first child; we now have three grandchildren and one on the way. I also have served on a number of nonprofit boards, which I would not have been able to do. Staying on at the Partnership as a senior advisor, I’ve been able to retain some of my ongoing responsibilities, including fundraising, which I adore. I’ve also continued to work on reproductive rights and work–family issues.

While I have changed the nature of my work responsibilities, I plan to work forever. I love what I do and want to continue doing it. While I have many outside interests, I just plainly love my work.

Reach D.C. Bar staff writer Kathryn Alfisi at [email protected].

Periodically Washington Lawyer features a conversation with a senior member of the District of Columbia Bar reflecting on his or her career as a lawyer. The “Legends in the Law” are selected by the District of Columbia Bar’s Publications Committee on the basis of their prominence in their profession and their individual impact on the law and the legal profession in the District of Columbia. For past interviews, visit www.dcbar.org/legends.