Mary L. Heen

As a student interning in the 1970s at Equal Rights Advocates, a women's public interest law firm in San Francisco, Mary Heen worked on Berg v. Richmond Unified School District. Sonja Berg was a pregnant teacher disputing the school district policy of forcing pregnant teachers onto unpaid maternity leave. The late Mary Dunlap argued the case that term before the Supreme Court. Heen recalls how "watching Mary, a superb lawyer then only 28 years old, prepare the case for argument and hearing her talk about it when she returned from Washington was inspiring.

According to Heen, Dunlap began her argument with the statement, "Sonja Berg was the sole support of her family," and Chief Justice Burger at once interrupted. "Does that make any difference in this case?" he demanded. Dunlap looked at him and said, "Mr. Chief Justice, it made a great difference to Mrs. Berg." Chief Justice Burger didn't ask her any questions after that. The case was on remand to the trial court when Congress amended Title VII to prohibit discrimination on the basis of pregnancy.

For Heen, her experience at Equal Rights Advocates was her first exposure to women's legal issues. While there she also saw women fighting for the right to do jobs traditionally done by men, from forest service to firefighting, and learned about pregnancy discrimination litigation. A course in sex discrimination taught by Professor Herma Hill Kay at Berkeley's Boalt Hall School of Law furthered Heen's interest in women's rights, as did her own previous experience as an undergraduate in the first class of women to be admitted to Yale.

Prior to law school, Heen had worked for a low-income public housing tenant group in the Boston area, as well as with Head Start parents and children in a five-county community action program in South Dakota. Her public service battles instilled a commitment to social justice, and "a law degree seemed like a tremendously useful tool to help create change," she decided. Her glimpse of women's rights litigation, coupled with this commitment, inspired her to work for gender equity.

Heen was awarded the ACLU Karpatkin Fellowship after completing law school, which allowed her to work in the ACLU national legal department. After her fellowship, a staff counsel position at the Women's Rights Project opened up in 1981. "It was basically my dream job," Heen recalls. Three years after witnessing Dunlap's performance as a law student, "I was working at the ACLU with a group of experienced and equally inspiring lawyers, and four years after that, I had my own opportunity to argue before the Court." Heen's appearance before the Supreme Court came in an immigration case from her fellowship year.

Heen considered herself "a relatively new lawyer" when she joined Isabelle Katz Pinzler and Joan Bertin, both of whom she calls "experienced Title VII litigators," at WRP. In the office, Heen describes a "very collegial atmosphere" during her tenure from 1981 to 1986. "There was constant discussion about the Project's emphasis and direction," she recalls. "I learned so much from Isabelle and Joan; they were incredibly generous, and we strategized together about cases."

When Heen arrived, she took on Title VII cases challenging sex discrimination in pension benefits. Heen considers these her most important cases. WRP represented women professors at Wayne State University and at Columbia University. At that time, two nonprofit corporations managed retirement plans that were exclusively available to and specially designed for faculty and staff members of more than three thousand institutions of higher education. These plans used sex-based actuarial tables to compute benefits, and based on the greater average life span of women, paid lower benefits to women than to men even when women and men had equal amounts in their retirement accounts.

After losing in the Court of Appeals, Heen sought Supreme Court review in WRP's case challenging this practice, Peters v. Wayne State University. Immediately thereafter, the Supreme Court decided Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris -- a case in which WRP had drafted a friend-of-the-court brief -- and held that this form of retirement benefit discriminated against women in violation of Title VII. The Supreme Court reversed the appeals court's decision in Peters in light of Norris, and the case was resolved favorably soon thereafter. Employers were, from then on, forbidden from discriminating on the basis of gender when it came to retirement or insurance benefits. But "we didn't win the public relations battle against sex-based rates used by insurers outside of the employment setting," Heen regrets.

The rulings only applied to employers, and while WRP was involved in an effort to enact federal legislation to extend the nondiscrimination principle to private insurers, these efforts failed in the face of well-organized opposition from the insurance industry. Heen identifies the issue as "one huge area still waiting for reform as a matter of principle."

Heen explains, "Ruth Bader Ginsburg was appointed to the U.S. Court of Appeals in 1980, before I began as a staff counsel at the ACLU -- so I never had the opportunity to work with her. However, she sent me a brief encouraging note after seeing a letter to the New York Times I had written arguing for the elimination of sex discrimination in insurance." Heen adds, "It meant a lot to me to receive it from her. But it may take another generation to completely eliminate sex classifications in insurance!"

Beyond WRP, in the early eighties the larger women's rights community often collaborated. Heen describes how women's rights groups would meet to discuss and divide area of focus among themselves. WRP took responsibility for pregnancy discrimination, wage discrimination, and women in non-traditional employment.

Feminists from disparate groups were not always in accord, however. An ongoing disagreement among women's rights groups was the divide between advocating equal treatment for women versus accommodations for women's particular needs. As Heen points out, the disagreement goes back to conflicts in the women's suffrage movement, when equal rights were pitted against protective labor legislation. "It's an issue that comes up periodically, depending on what values are colliding in a particular factual context," Heen explains. She sees the same tensions in the pornography debate, in which some feminists take a free speech position and others identify with an antisubordination analysis. In her own work, the debate tended to surface in pregnancy discrimination cases.

Overall, WRP was conceived by Ruth Bader Ginsburg to advocate equal treatment of both genders. "The intellectual underpinning of the Project's work was the equal treatment analysis." In the years after Ginsburg's departure, this analysis continued to guide WRP in a new context. "The emphasis shifted to implementation of protections under Title VII of the Civil Rights Act of 1964," Heen explains.

A primary focus for Heen was wage discrimination litigation. She drafted a brief in County of Washington v. Gunther, a case in which the Supreme Court held that a claim of unequal wages for "comparable" work could be brought under Title VII. Although Gunther opened the door to pay equity claims based on the theory of comparable worth, "the promise of those claims for addressing wage discrimination was significantly limited by lower court decisions," says Heen. The effort then shifted to negotiated change by public employee unions. Thus, in the area of equal pay for work of equal value, Heen acknowledges "some, but not full success."

Heen admits that she loved litigating, but found it to be an "all-consuming life," difficult to maintain. In addition, during the Reagan era, litigation gains were harder to sustain given an increasingly restrictive view of Title VII on the Supreme Court and the hostility of federal executive agencies towards civil rights. After leaving the ACLU in 1986, Heen went into private practice, doing tax work, had two children, and completed an L.L.M. at NYU Law.

Today she is a law professor at the University of Richmond, teaching Legislation, Corporate Taxation, Federal Income Taxation, Federal Tax Policy, and on occasion, Feminist Legal Theory. "I love it," Heen says of teaching. Her work at WRP has had an influence on her academic career: "My writings explore the connections between tax policy and social policy--including issues related to work-related child care,welfare-to-work programs implemented through the tax code, and budget policy issues."

Though no longer active in women's rights litigation, Heen has retained her sense of social responsibility and enjoys sharing this interdisciplinary vision in the classroom: "Feminist Legal Theory and Legislation draws most directly from my experience at the Project. However, even my tax classes benefit from that experience more generally. Students come to their first class burdened with a certain amount of tax dread, and some of them are surprised when they discover that tax law illuminates broader public policy issues."