Chapter 11 of 'Equal'

11.A Young Woman Takes an Old Wall Street Firm to Court

Harriet Rabb represented Diane Blank and other women against Sullivan & Cromwell. By chance, the case was assigned to Constance Baker Motley, a civil rights lawyer and the only woman judge in the Southern District of New York, and a descendant of slaves. The defense pressured Motley to recuse.

Blank's deposition revealed a weakness in her case: She could not identify a male law student hired at Sullivan & Cromwell whose qualifications she could match. She did not seem to recognize the problem.

The next issue was class certification. Motley called a conference at which she decided to reverse her earlier decision giving the defense five more weeks to argue against class certification. She certified the class, which then required the defendants to respond to discovery. The defendants wanted to avoid class certification by arguing that the law firm's discrimination, if any, was not ongoing and that Blank's EEOC action was untimely.

The defense, whose litigation tactics struck Motley as unseemly, responded by not only asking Motley to remove herself but also going directly to the Court of Appeals asking for a reversal on the class certification. Motley did not hide from her background as a lawyer for the NAACP but refused to recuse, and was upheld by the appellate court.

Blank ultimately was unable to persuade Motley to order the defense to disclose data about its partnership practices. The firm argued that the constitutional guarantees of freedom of association and due process trumped Title VII and protected partnerships. Upon rehearing, the EEOC stepped in on Blank's side. Motley then decided that she did not have to decide whether the firm had a constitutional right to discriminate in its partnership practices, but could be required to provide information tending to show an illegal pattern in the hiring of associates. “Here was precisely the ruling that Sullivan & Cromwell had been dreading.” Settlement talks ensued.