Washington Lawyer

Legends in the Law: Marcia D. Greenberger

From Washington Lawyer, November 2015

By David O'Boyle

Photo by Patrice GilbertMarcia D. Greenberger is the founder and co-president of the National Women's Law Center (NWLC). In 1972 Greenberger became the first full-time legal advocate for women's rights in the District of Columbia when she launched the Women's Rights Project at the Center for Law and Social Policy (CLASP).

A graduate of the University of Pennsylvania Law School, Greenberger has worked for more than 40 years to advance women's rights through research, litigation, and legislation. She served as counsel in landmark litigation concerning Title IX of the Education Amendments of 1972, ultimately strengthening the legal protections for students and teachers against sex discrimination. She has been instrumental in developing strategies to ensure the successful passage of the Lilly Ledbetter Fair Pay Act, the Pregnancy Discrimination Act, and the Civil Rights Act of 1991. Greenberger recently sat down with Washington Lawyer to discuss her life and career in the law.

Tell me about your background. Who were your role models growing up?

I grew up the middle child of three in Philadelphia. My father taught math and science;my mother was a homemaker. My parents were encouraging, engaged, and informed role models. They had high expectations for their three daughters and thought we should live up to our potential.

I was in college during the height of the Vietnam War and the civil rights movement, and there was a sense that the younger generation could assert itself and make a difference. Those timeswere incredibly formative for me, as well as the people I observed who were creating enormous change.

Also, I lived through the assassinations of Martin Luther King Jr., John F. Kennedy, and Robert Kennedy, shocking events that underscored how important leadership is to the everyday lives of everyone in our country. I firmly believed that individuals had a responsibility to work to improve the world and not allow those kinds of horrible acts to prevail.

Did those events help to develop your interest in the law as a vehicle for change?

Very much so. Given the Vietnam War and the dramatic events and injustices protested by the civil rights movement, getting involved with public policy and the law could literally be a matter of life and death. Students were losing their lives or putting themselves in terrible danger for these causes. The issues were passionately felt, and the role lawyers played was front and center.

Do you think that spirit lives on today?

In some respects, yes. We've recently seen it through the Black Lives Matter movement, the LGBT movement, and in combatting the assault on reproductive rights, including the threats to reproductive health care providers. But I'm not sure that there is the same sustained public attention and intensity as when I was in school. But, of course, social media provides a whole new way of expressing and mobilizing that spirit that makes the comparison far more difficult.

Tell me about your college days.

I went to the College for Women at the University of Pennsylvania. In those days, Penn had a separate undergraduate liberal arts college for women with different admissions standards and a smaller class size than the College, which only accepted men. As a result, it was harder for women to get the basic liberal arts degree, but we accepted that as a fact of life.

Did you wear that as a badge of pride?

We did, in a way. But there were also many different and more stringent rules applied to female students after we were accepted. We had curfews that the male students didn't have. We had a dress code, which meant wearing skirts to class and to the library, except on Sunday afternoons. Men, including fathers, were not allowed in the women's dorm rooms except for one Sunday afternoon per semester. The men's dorm had no such restrictions. Many of us deeply resented those more stringent rules for female students.

Did you experience any discrimination during your undergraduate years?

When I think back on it, I have to say, yes, even beyond the different admissions standards and rules. I was a history major, and you would think there would be a lot of women faculty members in the history department, but in fact, there weren't. 

When Ruth Bader Ginsburg was nominated to the U.S. Supreme Court, a lawyer who had her as a law professor commented that Justice Ginsburg was the only female professor she had all the way through undergraduate and law school.

It was then that I realized that I also had never had a female professor through college and law school. There were some women faculty members, but they were so few that I never had one. I had a female teaching assistant or two, but never a female tenured faculty member through the seven years of college and law school. That lack of role models had an impact.

I had a history professor, also my adviser, who was very prominent in his field. At one point, I considered pursuing a Ph.D. in history, and he strongly discouraged me from doing so. While I did apply and was accepted to a number of programs—and he wrote a good recommendation for me—he told me it wasn't a good idea because it would be too long of a haul. He counseled that I'd end up getting married, having children, and never finishing the Ph.D. program.I would get a master's degree and be qualified to teach in high school, which I could do without going to graduate school to begin with. He was very discouraging, all in the name of acting in my best interest.

His advice was not dispositive, but it played some role in my decision to go to law school, which turned out to be the best decision I could have made. I have often thought if I ever run into that man, I would thank him a million times over for his sexist advice.

Once you decided to attend law school, did you ever face any similar attempts to dissuade you?

One incident stands out. I went to take the LSAT with my two female friends. At that point, despite the escalating Vietnam War, going to graduate school, including law school, qualified as a deferment from the draft. The end of that deferment hadn't yet happened.

The three of us were accosted by young guys taking the LSATs. They were literally screaming at us, "Why are you here? You're taking the seats of guys who are going to be drafted and who are going to die because you're going to law school. Why would you do such a terrible thing?"

How did you respond to that?

We just didn't engage with them then. We were extremely focused on the LSAT, and we didn't want to get into an argument and be distracted just as we were going into the test. We didn't have time anyway—the exam was about to begin. 

So we just brushed them off and had each other for moral support. We were being confronted just because we were female, and having those friends with me made it so much easier to take. It also crystalized for me other experiences I had ignored or accepted throughout my life that were discriminatory, and I determined then that those things shouldn't be accepted just because that's the way it has always been.

Photo by Patrice GilbertTell me more about why you chose to go to law school.

I wanted to have a career that would be engaging, and because of my family and the great issues of the day, I saw public policy as enormously important and law as a way to affect its development. 

Also, law had a lot of appeal, because I thought it could lead to many options in government service but in the private sector or academia as well. And finally, two of my best friends in college were urging me to consider law school and thought we three young women could succeed in a law career.

What led you to attend the University of Pennsylvania Law School?

At the time, Penn Law School was a small, progressive, student-oriented law school. It was an exciting place to be with an impressive young faculty on the cutting edge of many public policy issues. The dean at the time, Jefferson Fordham, was on the vanguard of civil rights law. It not only made practical sense since I had family support in Philadelphia, but it appealed to me given the kind of public policy career I was most interested in. I must add that I think it remains a superb law school today.

What career path or practice area did you have in mind?

Although I expected to be most interested in noncommercial areas of the law, I was open to changing my mind. I took a tax law course, which turned out to be one of my favorites, partly because the professor was fabulous. As everybody knows, it's often not the subject area that's determinative of a good course, but rather the person who is teaching that makes all the difference. But to me, tax law was also fascinating in and of itself. This particular professor, Bernard Wolfman, who ultimately became dean of Penn Law School, emphasized the public policy aspects of the tax code and how it reflects the bottom-line values of the country, whether, for example, in home ownership and mortgage deductions, allowable business expense deductions, or tax brackets that benefit married people. 

Examining all of those public policy decisions and the extraordinary sums of money expended through the tax code led me to become quite interested in tax law, and in my second summer, I worked at the Internal Revenue Service (IRS).

I also was open to private practice, although at that point a number of firms had explicit biases against women lawyers. There were some firms that thought women shouldn't be litigators because they weren't tough enough, weren't good negotiators, or wouldn't stick it out long enough to be worth the investment in training them. Some also thought that clients wouldn't want to be represented by women lawyers. These views were expressed openly by some recruiters at the law school and by lawyers at the firms themselves.

Did you experience any discrimination while interviewing for jobs in private practice?

I did. For example, during an interview with a Washington, D.C., law firm, a partner told me they had never hired a woman lawyer and never would because they believed that there was too much crime in Washington. In response to my expression of total confusion, he explained that associates worked late at night and it was just too dangerous for a young woman to work those hours. Of course, in those days, there were largely female secretaries working in 24-hour typing pools, and just as I was ushered out of his office, I thought of them and about marching back and offering to use whatever security arrangements were provided for the secretaries. I didn't, and I regret it to this day.

What drew you to Caplin & Drysdale?

During my third year of law school, I worked part-time at the law firm Ballard Spahr Andrews & Ingersoll LLP. Originally, the plan was that I would work in each of the divisions of the law firm for a number of months. I started in the tax department, and I was so engaged with tax law that I never rotated on to the other parts of the firm.

A mentor at that firm told me about a small tax firm in Washington, D.C., filled with talented, public-spirited lawyers called Caplin & Drysdale, and that I should consider working there. Knowing my husband, Michael, and I wanted to come to Washington, I interviewed for a job at Caplin. I chose to work there because it was such a high-quality, exciting, and interesting firm.

I stayed there for two years, representing clients seeking favorable tax treatment for one reason or another. As to be expected, it was a highly specialized tax firm. It handled very complex tax matters, and lawyers needed to develop deep expertise in specific aspects of tax law. I was also able to do significant pro bono work, including for the Washington Lawyers' Committee for Civil Rights Under Law, but the kind of tax specialization required did not fit my interests. But, as a result of working at the firm, I met one of the great mentors of my life, Justice Arthur Goldberg.

Justice Goldberg had been a prominent labor lawyer in Chicago. He became the secretary of labor in the Kennedy administration and worked with Mortimer Caplin, who was the commissioner of the IRS under Kennedy. Justice Goldberg was appointed to the Supreme Court, and then left to become the United States ambassador to the United Nations.

Justice Goldberg eventually returned to Washington, intending to start his own practice. He decided to locate that practice in the Caplin & Drysdale offices, working with Caplin lawyers on his cases. As a result, I worked for Goldberg as a young associate, which was very cool indeed. He was an important influence on my life, from improving my legal writing to offering life-changing career and personal advice.

Tell me about CLASP and how you came to practice there.

While practicing in Washington, Justice Goldberg agreed to help establish and chair the board of one of the first public interest law firms in the country, the Center for Law and Social Policy. As the chair of CLASP, he helped launch the field of public interest law in this country.

At the same time, my husband Michael went to a firm called Wald, Harkrader & Ross LLP, where he worked with Robert Wald, who also was a superb, public-spirited lawyer. His wife, Patricia Wald, ultimately became the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, among many other accomplishments, but in those days she was at CLASP.

Pat Wald told me about several job openings at CLASP, including an opportunity to start a women's rights project. After talking to Justice Goldberg about CLASP, I followed up immediately. CLASP's decision to start a women's rights project came about in a wonderful way. The women law students and support staff then at CLASP had what they called a revolt. They had a list of demands. First, hire more women lawyers. Second, work on women's rights issues. Third, pay the support staff more—these young women documented that their salaries were lower because the work was traditionally done by women. And fourth, no more serving coffee.

While there were several positions available, I was especially drawn to the opportunity to start a women's rights project to tackle a broad array of injustices, some of which I experienced firsthand. My first assignment was to prepare a paper setting out what a women's rights legal practice would entail, and whether there was enough work to keep one lawyer busy full-time.

This was in the fall of 1972, when there were no lawyers working fulltime on women's rights in Washington, period. The Women's Legal Defense Fund had just started for lawyer volunteers, but it had no full-time staff person at that point. And, of course, at that time, there was very little constitutional or statutory law protecting women's rights to work with. Justice Ginsburg was just beginning to see the fruits of her groundbreaking work at the ACLU in New York.

When I look back on that first assignment, I realize that it wasn't all that remarkable since the law was just starting to develop. It wasn't until years later that protections under privacy and equal protection for women were explicitly found in the Constitution itself. I've had the extraordinary good fortune to be able to work on these issues as they have evolved.

What was the impetus to split from CLASP and create the NWLC?

By 1981, the Women's Rights Project had grown, our mission evolved, and it no longer made sense to be a CLASP project. With enormous support from our CLASP colleagues and the CLASP board, including Justice Goldberg, Nancy Duff Campbell, Margaret Kohn, and I started the National Women's Law Center. Duff Campbell and I have been co-presidents to this day.

We had become a legal arm of the women's movement. We worked very closely on a wide range of women's issues with organizations of all sorts, from the American Association of University Women and the National Organization for Women to Planned Parenthood and welfare rights organizations around the country. Our practice evolved and broadened as had many law firms in Washington. We engaged, as we do today, in litigation, legislative efforts, and administrative advocacy, both on the federal level and in the states. We believed that we could better fulfill this mission, and secure support, as a freestanding organization.

What were some of the changes that followed the launch of the NWLC?

One early task was to create a freestanding board of directors. When we started as the Women's Rights Project of CLASP, with the blessing and encouragement of the CLASP board, we created an advisory board. Two of the most prominent women lawyers in Washington, and, in fact, in the country, joined this advisory board. Brooksley Born became its chair, and Marna Tucker (D.C. Bar president, 1984–85) was a founding member. While remaining on the CLASP board, Brooksley also became the chair of the new NWLC board, and Marna was a member of both boards as well. Even to this day, although it has been many years since we were sharing a townhouse and are now separate organizations, we still feel a particular affinity for CLASP.

Our program has also expanded with the times. Now with a staff of almost 70, we have added staff with quantitative, analytic, and research skills to prepare reports and assess data on the progress of women and girls. We also have a robust social media and outreach effort with staff experts to reach broad audiences using tools unimagined in those early years.

Photo by Patrice GilbertWhat were some of your first women's rights cases?

From the early days, we selected precedent-setting cases with the potential to affect a large number of people around the country.

Women's Equity Action League (WEAL) et al. v. Weinberger, which we brought in 1974, is a good example. It was a suit against what was then the Department of Health, Education, and Welfare and challenged the department's failure to enforce Title IX since its enactment in 1972. The landmark law prohibiting sex discrimination in federally funded education, Title IX was intended to be a major force to open doors for girls and women. But the department took the position that until it issued regulations setting out what unlawful sex discrimination in education consisted of, there would be little enforcement since schools had not yet been advised of what they needed to do to comply.

Title IX was modeled after Title VI of the 1964 Civil Rights Act, which included prohibitions against race and national origin discrimination in federally funded schools. It took six months to issue those Title VI regulations after the law was passed; but in the case of Title IX, after two years there were still no regulations.

We filed this case on behalf of a number of national organizations and individuals in November 1974, based on a D.C. Circuit Title VI precedent, that while the government has broad discretion in how it enforces the law, it does not have the discretion to refuse to enforce the law altogether.

We knew it was a huge case, but we had no idea it would last for 16 years. The case provided the needed prod to the government to finally promulgate those Title IX regulations, which it did in 1975. And we secured a consent decree requiring the government to engage in timely enforcement of the law thereafter. The regulations changed the landscape for educational opportunity for women and girls across the board, opening up vocational education programs previously closed to girls, ending university nepotism rules that hurt women, and removing explicit barriers in programs, from apprenticeships to the sciences. But nothing was more controversial than [regulations'] application to athletics.

The resistance to those athletic regulations was fierce, especially by those claiming that expanding athletic programs and creating scholarships for women would mean the end of football as we know it. The regulations gave schools three years to come into compliance with the athletics requirements, and many schools saw that as a three-year reprieve, hoping that Congress would have weakened the regulations by then, or court challenges would have succeeded in setting aside the regulations altogether. While we worked on those legislative and legal challenges in other cases around the country, we also went back to our WEAL case, filing a contempt of court motion on the grounds that the government was improperly delaying Title IX enforcement in intercollegiate athletics past the three-year grace period and that enforcement had to begin.

At the hearing on our motion for contempt of court, the government agreed to issue further clarification on the athletics regulations and begin enforcement promptly. And so it did. These regulations, and the clarification, remain in force today and have truly opened the doors for young women and girls to pursue their athletics dreams. We went back to enforce our court order at other times when there were various bottlenecks, and after 16 years, the court finally ended the case. To this day, the NWLC is still working to ensure Title IX's promise is met in the classrooms and on playing fields around the country, from elementary and secondary schools on up.

Another early case, Gilbert v. General Electric, is also carried forward in the center's work today. It was originally brought by wonderful lawyers, Ruth Weyand and Winn Newman, at the International Union of Electrical Workers. At the time, it was common practice for even the largest companies with the best employee fringe benefits to exclude pregnancy from health insurance coverage and disability plans.

The union brought the case under Title VII, which prohibits sex discrimination in employment, against General Electric because it provided 60 percent of salary lost for employees when they were disabled for virtually any reason, except if they were disabled due to pregnancy. Employees were covered if injured from a skiing accident or in a fight on a Saturday night at a bar—it didn't matter what the reasons were—but women disabled because of pregnancy got no coverage at a time when they needed it most. 

We thought this was a critically important case, and that our best role was to represent a range of women's organizations as active amici curiae. We actually filed the first pretrial brief in the case before either party did, setting out the legal theories in comparing pregnancy-related disabilities to other conditions and why it was sex discrimination to single out pregnancy disabilities from all other disabilities.

That case ultimately went to the Supreme Court, and by a divided opinion the Supreme Court held that pregnancy was sui generis. It couldn't be compared to any other condition and, therefore, it wasn't sex discrimination to single out pregnancy-related disabilities and exclude them from what was otherwise comprehensive coverage. Since it wasn't sex discrimination, the Court held, it wasn't prohibited by any laws that prohibited sex discrimination in employment and, therefore, GE's practices could continue. 

An uproar ensued, and because the case interpreted a statute, it was possible to go back to Congress and have Congress clarify exactly what it intended Title VII's prohibition against sex discrimination to prohibit. So we began to work on what became the Pregnancy Discrimination Act, passed in 1978. I had the great privilege to work on this legislation with Justice Ginsburg—who was at the American Civil Liberties Union Women's Rights Project at the time—along with a broad coalition of organizations.

We have been working on pregnancy discrimination issues ever since, including in a recent Supreme Court case holding that a company could be held to violate the Pregnancy Discrimination Act if it refused to provide workplace accommodations needed by pregnant women when it did so for other conditions. The center is also pressing to enact the Pregnant Workers Fairness Act to provide clear and strong protections for pregnant women in the workplace in such circumstances.

And, I must add, for many years the center has worked on tax policy, recognizing its importance to women and families in specific provisions such as the treatment of expenses like child care, and in the overall fairness in the structure and revenues available to address urgent needs in our country.

When you look at gender equality issues then and now, how would you reflect on the progress that's been made?

There are certainly huge advances in some areas. Women lawyers are hardly oddities. With three women on the Supreme Court and women holding the highest positions at the U.S. Justice Department, progress on that front is undeniable. But so, too, are the remaining barriers that keep many women from reaching their full potential, even in the law, in many legal institutions, and in society as a whole. Too many women struggle to make ends meet to support themselves and their families. Women comprise the bulk of minimum-wage workers in this country, and the pay gap for women has been stuck for years. Child care, retirement security, and true comprehensive health care are out of reach for too many women.

The income divide is of great concern. More and more people are expected to work more hours, and often multiple jobs. Jobs that last for a career are harder and harder to come by. These stresses and uncertainties make life very difficult for all, but especially for women who hold the bulk of low-wage jobs. And the double or triple discrimination some women face on the basis of race, national origin, and LGBTQ status makes the urgency of fighting all forms of discrimination all the more stark.

How far do you think we have come as a society in terms of women's rights?

I'm an optimist. I think we have come a long distance, despite the great challenges remaining, and we will continue to make progress. But without vigilance, there will not only be a lack of progress but backsliding as well.

Today, there is an expectation that people must work more hours, squeezing out the ability of women and men to meet their family and community responsibilities. The income divide has gotten worse, with women, and particularly women of color, especially vulnerable. The lack of investment in public institutions, including schools, has also created a great threat to future progress. And I think the rollback of rights, including reproductive rights, is a huge concern. Roe v. Wade was decided in 1973 in a 7–2 decision. Today, even a weakened Roe v. Wade is under constant assault. There are efforts to make it harder to bring equal pay cases in court, and to bring cases on behalf of large numbers of people through class action suits, a critical legal tool in securing fairness for women and girls in many spheres. Limits on voting rights protections, which hit women of color particularly hard, are devastating and must be corrected.

Because the rights we have secured and are fighting for challenge the status quo, it is inevitable that the effort to reach full equality is difficult. Women, and men, will have to continue to fight to preserve those hard-won gains, to strengthen them, and to shape them in ways that meet current needs. I'm so proud of the changes the women's movement, and my colleagues at the National Women's Law Center, have secured. They have strengthened our country, but there is far more work to be done.

Reach D.C. Bar staff writer David O'Boyle at doboyle@dcbar.org or follow him on Twitter at @d_oboyle.