Pro Bono Heroes: Cravath’s 38-year fight for justice in Alabama
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(Reuters) – There are big pro bono cases. There are huge ones. But the work by lawyers from Cravath, Swaine & Moore in an employment discrimination fight on behalf of Black and female plaintiffs in Jefferson County, Alabama, is in a league of its own.
We’re talking 38 years of litigation, a seminal U.S. Supreme Court decision and more than 100,000 hours of donated time by Cravath lawyers and staff, including the firm’s legendary (late) presiding partner Robert Joffe as well as Rowan Wilson, now an associate judge of the New York Court of Appeals.
If Charles Dickens’ Jarndyce v. Jarndyce was an uplifting case where the good guys won, this would be it.
The litigation drew to a final close in June, when the firm donated its $6 million fee award to five national and local Alabama institutions working to promote civil rights and social justice.
For their extraordinary efforts, the Cravath team members, now led by partner Damaris Hernandez, are Legal Action’s Pro Bono Heroes for the month of June.
“Pro bono is a fundamental part of who we are,” Hernandez told me. Cases like this, that aren’t easy or fast and require a major outlay of resources, are a central part of Cravath’s commitment, she said.
Still, she acknowledged that when the firm first signed on for the work in 1983, “I don’t think anyone ever envisioned it would take nearly 40 years.”
Astoundingly, the litigation actually dates back even further. It began in 1974 when the NAACP and several individual Black plaintiffs sued assorted local government entities in the Birmingham metropolitan area.
They alleged that the government defendants engaged in discriminatory hiring and promotion practices that denied opportunities to Black and female applicants. For example, of the roughly 1,000 employees in the local police and fire departments at the time, only one was Black and none were women.
A year later, the U.S. Department of Justice brought a similar suit and the cases were consolidated.
In 1976, U.S. District Judge Sam Pointer Jr of the Northern District of Alabama held a bench trial on a narrow issue: Did the entry-level tests used to screen and rank applicants for local firefighting and police officer positions violate the rights of Black applicants?
His answer was yes. The parties went on to hammer out consent decrees that were supposed to provide “an extensive regime of affirmative action” for Black and female applicants.
But things got complicated when seven white male firefighters who were not involved in negotiating the consent decrees filed a complaint in 1983. Claiming reverse discrimination, they sought to scuttle the decrees.
Enter Cravath, which was recruited by the Lawyers’ Committee for Civil Rights Under Law to oppose the firefighters’ bid after the DOJ under then-President Ronald Reagan switched sides.
The case, Martin v. Wilks, wound up before the U.S. Supreme Court in 1989. Cravath’s Joffe argued that the firefighters were collaterally estopped from challenging employment decisions that were made based on the terms of the consent decrees.
But in a 5-4 decision, the high court sided with the firefighters, ruling that since they had not been parties to the original proceedings, their challenge could proceed.
“The decision on its face was not favorable,” Hernandez said. “But the ruling in part led to the Civil Rights Act of 1991, which reversed much of the holding.”
The landmark law limited the ability of nonparties to challenge employment practices mandated by consent decrees.
Still, the underlying litigation was far from over. Joffe and Wilson led Cravath lawyers in fighting the reverse discrimination challenge on remand — a process which involved several trips to the 11th U.S. Circuit Court of Appeals.
The Cravath lawyers also sought to make sure the government defendants including Jefferson County, the Jefferson County personnel board and the City of Birmingham actually followed the consent decrees and reformed their job selection procedures.
That didn’t happen. “It took at least a decade before any of them actually started to comply,” said Hernandez. “We had to bring motions to hold the parties in contempt.”
After the court appointed monitors to oversee the personnel board and the city of Birmingham, they were released from their decrees in 2008 and 2011 respectively.
But Jefferson County proved to be more intransigent.
The county’s decree required it to “seek in good faith to achieve the employment of qualified blacks and females in job vacancies,” and to ensure that they were “considered for employment by the county on an equal basis with whites and males.”
Most of this didn’t happen. The county “has admitted that it willfully disobeyed significant requirements of its consent decree,” wrote U.S. District Judge C. Lynwood Smith Jr in a 147-page opinion in 2013 that held the county in contempt. “If thirty years of failing to comply does not constitute ‘repeated failures,’ nothing does.”
The judge, who took over the case after Pointer retired in 2000, appointed a receiver to oversee all of the county’s hiring and employment activities, and to be responsible for developing long-overdue selection procedures.
Meanwhile at Cravath, Hernandez began leading the case in 2017 after Wilson was appointed to the bench. “Standing on the shoulders of giants,” is how she put it.
And at long last, the litigation drew to a close after the parties in September 2020 agreed that the county had sufficiently reformed its hiring practices.
The judge concurred. “The county is not the place or the employer that it once was. Jefferson County has come a long way since 1982,” wrote Smith in approving their joint motion to terminate the consent decree.
Jefferson County Attorney Theodore Lawson in an email said that the country “will continue on its new path forward both as an equal opportunity employer as well as an employer of choice in Jefferson County.”
Remaining, however, was the matter of attorneys’ fees, to which Cravath was entitled by law (though suffice to say it did not seek full reimbursement for all 100,000 hours).
As a pro bono matter, Cravath had no intention of pocketing the money, Hernandez said. Instead, the firm in June donated $6 million, to be split among the Birmingham Civil Rights Institute, the Equal Justice Initiative, EJI’s Legacy Museum, Fisk University and the Lawyers’ Committee for Civil Rights Under Law.
“This has been the most rewarding case of my career,” Hernandez said. “Is the work done? No, there’s always room for improvement.” But she added, “There’s no question the work we did made an impact.”
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