Susan Deller Ross has been a teacher of law, a scholar, a litigator, and a leader in the field of women's rights for several decades. "I was aware of these issues very early on," she says. During a year abroad in France as an undergraduate, she read Simone de Beauvoir's The
Second Sex. Betty Friedan's The Feminine Mystique hit the United States when she returned that fall, and during a stint in the Peace Corps in West Africa after graduation, she saw the severe oppression of women in local villages. By the time she enrolled at NYU Law School in 1967, Ross knew she was a feminist.
NYU, women made up only about 10% of Ross's class. The prestigious Root-Tilden
Scholarship Program, providing tuition and living expenses to "future leaders
of the nation" was open to men only, as was the school's steam room, and, effectively,
all positions on the faculty. During Ross' three years in law school, her
lobbying helped change all of this, as NYU opened the scholarship program
to women (as well as the steam room!) and hired its first female professor.
Ross received the Arthur Garfield Hays Civil Liberties Fellowship at NYU, and in 1969 penned the ACLU's friend-of-the-court brief for the first women's rights Title VII case in the Supreme Court, Phillips
v. Martin Marietta. In 1971, the Court ruled in Phillips that refusing to hire women with young children while hiring similarly situated men violated the law.
When Ross was in law school, even the ACLU had an old-fashioned approach to women's rights. At best, it was "lukewarm towards women's rights issues," Ross says. In 1969, for example, the ACLU actually opposed the Equal Rights Amendment. Dorothy Kenyon and Pauli Murray, feminist attorneys and longtime members of the ACLU Board of Directors, worked extensively behind the scenes to convince the Board to reconsider this regressive stance. To support that work, Ross had taken on another Hays Civil Liberties assignment in law school: writing a memorandum pointing out that the restrictive "protective" labor laws that, for instance, prohibited women from holding certain jobs, working overtime, or lifting over twenty-five pounds on the job, which the ACLU relied on to justify its anti-ERA position, were actually being invalidated under Title VII. Blue-collar working women saw these state laws as barriers to better jobs and pay, not as protection. Armed with the memo, Ross's supervisor, Eleanor Holmes Norton, finally persuaded the ACLU to reverse its position in 1970.
Out of law school, Ross began working on early gender discrimination cases at the U.S. Equal Employment Opportunity Commission. There she challenged the same paternalistic laws "protecting" women in certain industries that she had described in her memorandum. Protection from higher pay seemed the real rationale, Ross notes, given the strenuous housework women were expected to perform as mothers on a daily basis. "How much do they think two- and three-year-olds weigh?" Ross asks.
During her tenure at the EEOC, Ross was instrumental in enacting new policies prohibiting sex and pregnancy discrimination. The need for such policies was clear given employers' prevailing attitudes. In one Supreme Court case she briefed, Cleveland Board of Education v. LaFleur, Ross recalls the justification a school district offered for requiring pregnant teachers to take leave without pay beginning in their third month. "We can't have pregnant women who are showing in the classroom," claimed a school board official in a deposition. "The kids will think they've swallowed watermelons."
Up until 1971, the EEOC was, Ross explains, "the only legal avenue at that point for the women's equal rights movement." It wasn't until Ruth Bader Ginsburg founded the ACLU Women's Rights Project that there was active litigation to ensure equal rights for women under the Constitution. "It took someone of her vision and leadership to establish the Women's Rights Project," Ross maintains. She describes Ginsburg as "a really impressive and brilliant woman," who acted as editor when Ross wrote the ACLU's first handbook on women's rights, published in 1973. "Her suggestions were always right on," Ross recalls, describing WRP's founder as consistently "thoughtful, with great attention to detail."
Before joining Ginsburg's WRP, Ross herself had become an expert on gender equality by the mid-seventies. She taught the first George Washington University law school course on "Women and the Law" in 1970 with Gladys Kessler (now a federal judge), and her work at the EEOC was widely known. Ross co-authored a 1975 law-school casebook, SEX
DISCRIMINATION AND THE LAW: CAUSES AND REMEDIES. In 1971, she co-founded the Women's Legal Defense Fund (today the National Partnership for Women and Families), in Washington, D.C., and in 1973 was a founding partner of Bellamy, Blank, Goodman, Kelly, Ross and Stanley, an all-female law firm dedicated to advancing women's rights.
However, a year's stint in private practice was enough to convince her that it wasn't for her. When there was an opening for a staff attorney at the WRP, Kathleen Peratis called and asked her to apply. She was hired in August 1975.
In November, Ross gave birth to her first baby, and she describes the maternity leave at the ACLU as relatively progressive. She was given full pay for six weeks, consistent with the EEOC guidelines she had helped establish. There was no national law mandating paid leave, nor is there one today. However, around Christmas, Peratis called and asked her to edit a Supreme Court brief, and Ross rushed back. "We established a little day-care in the office for Kathleen, who also had a new baby, and me," Ross recalls. They hired college students to look after the infants, and she could breastfeed her new son during the work day.
Through these and other efforts, Ross helped changed the culture of the ACLU as well. Ross recalls that the women of the Project were underpaid compared to their male counterparts. Although the female lawyers understood that pay scales were based on years out of law school, they discovered that a more recent male graduate was making more money than they. After confronting the ACLU administration, they did receive equal wages and even back pay for the time they had worked under the discrepancy. The explanation given was that the announced pay policy was just the first step in salary negotiations, and the women hadn't received more because they had not negotiated for more.
Even with this bump in the road, the greatest part of working at WRP, Ross says, was "the chance to work on leading women's rights issues of the day," within "a very supportive environment with Ginsburg and the staff." Among these women's rights campaigns, one of the most successful began with a setback. In 1976, in General
Electric Co. v. Gilbert, the Supreme Court rejected the reasoning of WRP's friend-of-the-court brief that pregnancy discrimination in the workplace was tantamount to sex discrimination and thus illegal.
In the face of that loss, Ross and
Ginsburg pulled their supporters together to protest. The two activists co-authored
an article for The New York Times, calling for Congress to amend the law
post-Gilbert. Ross and Peratis called a meeting of women activists together
to work to overturn the decision, and Ross was named co-chair of the new
Coalition to End Discrimination Against Pregnant Workers. She continued drafting,
lobbying, reporting, and testifying in Congress until the Pregnancy Discrimination
Act was passed in 1978, making clear that pregnancy discrimination in employment
is unlawful sex discrimination and overriding the Court's ruling.
Sex discrimination in employment was an important battleground for Ross during her tenure at WRP. In Peters
v. Wayne-State University, a case she tried, women and men paid equal sums into the retirement plan, but women received lower monthly benefits than their male counterparts upon retirement.
These disparities were purportedly justified
by women's longer projected life spans; individual women's contributions
or benefits were calculated based on conclusions about how women on average
would fare under such plans. This case was mirrored in the Supreme Court
case Manhart v. Los Angeles Dept. of Water & Power: the retirement plan at issue there required women to contribute more than men to obtain the same benefit and thus violated Title VII. The friend-of-the-court brief that Ross penned on behalf of WRP helped procure a Supreme Court victory in Manhart, and the Peters case went on to victory as well. The principles established in these cases required all employer-sponsored insurance and pension plans to treat men and women equally.
Ross also worked to champion the rights of women in the workplace in Christensen
v. Iowa, where she fought for the rights of women in traditionally female jobs. The University of Northern Iowa's own job evaluation showed that the all-female secretarial workforce's wages should be the same as those of the all-male groundskeepers because the jobs were of equal value to the University. The University nevertheless paid the men more than the women, claiming that the market required them to do so.
Ross and Peratis represented the female
clerical employees in their sex discrimination lawsuit. Ross's appellate
brief to the Eighth Circuit advanced the idea of comparable worth in the
workplace, using the employer's own evaluation to argue that the secretaries
were in fact entitled to the same pay as the groundskeepers, despite the
fact that they performed different tasks. Although WRP lost this case, the
influential comparable worth theory was first formulated here.
While experienced and successful as a litigator, Ross remained a teacher at heart. As Director of WRP's clinical program, Ross worked one year with Nadine Taub at Rutgers Law School, and co-taught a clinic with Ginsburg at Columbia Law School the next year, putting law students to work on ACLU women's rights litigation. "I loved involving students in women's rights," Ross says.
Since leaving WRP in the summer of 1978, Ross considers her work as "going forward in the spirit of the ACLU Women's Rights Project." She taught women's rights, civil liberties, and civil rights at George Washington Law School for two years. In 1980, she became Special Litigation Counsel on sex discrimination issues to the U.S. Justice Department's Civil Rights Division.
Her work followed naturally from her
previous women's rights litigation experience. She litigated in federal court
on behalf of women prisoners in Kentucky and established that they had the
right to the same vocational training received by male prisoners. A case
on behalf of Rhode Island women led to millions of dollars in back pay for
women denied their rights under the Pregnancy Discrimination Act. She contributed
to Supreme Court victories under Title VII and the Pregnancy Discrimination
Ross has continued to work as an educator, scholar, and lawyer, and currently is Director of the International Women's Human Rights Clinic at the Georgetown University Law Center, where she has been a professor since leaving the Justice Department in 1983. She has recently written a casebook entitled Women's Human Rights: International and Comparative Law. Her clinical work, she explains, is very similar to her former pursuits at WRP.
Under her guidance, students have challenged
laws that keep women socially and economically oppressed in Africa, the Middle
East, and Latin America. They are taking on cases of domestic violence, trafficking
in women and girls, domestic servitude, sex-based divorce laws, female genital
mutilation, polygamy, discrimination in employment and land ownership, sexual
harassment and pregnancy discrimination, women's participation in legislatures,
capital punishment for having children out of wedlock, and many other issues
of institutionalized male supremacy.
Ross describes this activism as "just like early sex discrimination cases under our Constitution." Ross herself continues to be an exemplary teacher, litigator, scholar, and leader in the field of women's rights.