Grace and Grit (28 page)

Goodyear’s appeal put me in a holding pattern, a place the company left me often over the years. I resumed my daily life. Charles and I were happier than we’d ever been, spending time with Vickie’s three boys and Phillip’s new baby from his second marriage, Grace. Charles was also helping Phillip run his businesses.

M
ORE THAN
two years after the trial, I stayed home for the appeal hearing in Atlanta, since protocol dictated that only the lawyers appear before the judge to argue the briefs they’d already filed—Jon had another lawyer argue the case, since the date of the oral argument fell on a Jewish holiday. By the fall of 2005, the Eleventh Circuit Court of Appeals, one of the most conservative courts in the country, reversed the jury verdict, stating that my case was filed too late—even though I continued to receive discriminatory pay throughout my career—because Goodyear’s original decision to pay me discriminatorily had been made years earlier, in the 1980s.

I was speechless. It wasn’t the fact that I lost the money. For some reason it had never felt real to me in the first place—it might as well have been Monopoly money. What felt real, what disturbed me deeply, was the fact that Goodyear was exonerated for its wrongdoing, simply because Goodyear had been doing me wrong long enough to make it legal, like certain African traditions mutilating young women. If it’s part of the company culture to discriminate in pay, then that company is free to continue business as usual.

And all the good people who’d worked so hard to do the right thing had been mistreated as well. Worse, women in workplaces
everywhere remained vulnerable to pay inequity. An employee still had 180 days from the discriminatory act, such as a firing or demotion, to file a discrimination claim, but with this decision the Eleventh Circuit Court had reversed what the EEOC and nine of the ten courts of appeals had applied in pay-discrimination cases under Title VII. Known as the paycheck accrual rule, this longstanding precedent ruled that repeated payments of discriminatory paychecks can be challenged as long as one paycheck occurred within the charge-filing period. In other words, each new paycheck was treated as a separate discriminatory act that started a new 180-day clock. By holding instead that all charges of pay discrimination must be filed within 180 days of the employer’s
original discriminatory decision
, the Eleventh Circuit Court reversed this accepted practice and left victims of pay discrimination with no recourse against pay discrimination they don’t immediately challenge. Under this new rule, employers are immunized from accountability for their discrimination once 180 days have passed.

This decision also ignored prior court precedents such as the
Bazemore
ruling, which upheld the “continuing violation” doctrine of my unequal pay claim. Simply put, each time I received a lower paycheck based on discriminatory reasons, the law under Title VII was violated. But this ruling had now reversed that precedent.

I assumed that my fight with Goodyear was over. There was nothing left to do. But I was wrong. In one way or another the fight is never over, at least when it comes to women’s rights, which are human rights. Before I knew it, Jon and his partner Bob Wiggins filed a cert petition, a request to review the Eleventh Circuit Court of Appeals’ decision to the Supreme Court. Another attorney, Kevin Russell, based in Washington, D.C., was called in to help with the petition.

My case was a long shot. The Supreme Court declines review in about 99 percent of the cases presented to it—only about seventy are granted from around eight thousand submitted annually.
While this appeal worked its way through the passages of the justice system at a glacial pace, I was focused on what was happening at home with Charles.

T
HAT SUMMER
of 2005, right before the court of appeals ruling, Charles and I had gone on a trip with Vickie and her family to our favorite beach on the Gulf Coast, pristine and as yet untouched by the ravages of Hurricane Katrina that would soon devastate the city of New Orleans and the communities of the nearby Gulf Coast. The entire drive to the beach, Charles was agitated by the strong sun bearing down on one side of his face through the driver’s side window—as painful as shards of glass pricking his skin, he insisted. Once we arrived at the condominium we were renting, he stayed in bed most of the time, only mustering enough energy to watch our favorite new show,
Dancing with the Stars
. Back home, the ENT doctor discovered a few blisters in his mouth but nothing else out of the ordinary.

That trip to the doctor was the starting point of a long, difficult health ordeal for Charles. He was already combating back issues and high blood pressure. Still lethargic after the beach trip, he underwent more extensive testing, and the doctors found a cyst in his lower back. He had a second back surgery—the first had been about a year earlier, after the epidurals that had given him relief stopped working—to alleviate the chronic pain he’d been experiencing.

While Charles recovered from the back surgery, which, all told, took another year, I tried to carry on as usual. One morning, after I’d collected my mail as I did every morning, I stood at the counter in the small post office just down the street from my house and sifted through the bills and junk mail. I opened an envelope from Jon’s law firm and found a letter from Goodyear. What in heaven’s name would they be sending me? I bristled when I read the demand
letter for over three thousand dollars to pay their court-related fees. I wanted to tear the bill to pieces, but I restrained myself.

I didn’t have time to dwell on Goodyear when, the next summer after Charles’s back surgery, the doctor found skin cancer on his ear on the same side of his face that had been so sensitive on the way to the beach. In the heart of a July heat wave the cancer was removed, the surgery more difficult and more extensive than the doctor first anticipated due to the malignancy having spread much deeper than we’d thought.

A couple of months later, a strange growth popped out of nowhere on the damaged side of Charles’s face. The doctor took one look at this bony mass jutting out of his cheek and refused to let him leave until he performed a biopsy. A few days later, as we waited at the office to hear the results, the nurse came in. She couldn’t contain herself. “I have good news,” she whispered before the doctor made it official. “It’s benign.”

Now Charles only had to have the bizarre protrusion removed. Around Halloween the doctor performed the face surgery and another biopsy. I was sickened by how butchered Charles looked. His face might as well have been a side of roast beef someone had sliced open. When the doctor called with the results, he had devastating news: “The growth was malignant. I’ve already scheduled him for surgery on Monday. He’s got the worst possible cancer in the worst possible location.”

My heart froze.
No, not Charles. Please, not Charles
.

The doctor continued. Charles had a deadly type of cancer known as squamous cell carcinoma. The procedure would require a skin graft from his leg, and he’d remove any lymph nodes or glands infected by the cancer. In disbelief, I mashed the phone harder into my ear. The doctor rattled off what else needed to be done, how to prep for surgery, the type of treatment he recommended following recovery from the operation.

After I hung up, I sat with the phone still in my hand. We were fighters. We could beat this. But the day of Edna’s last diagnosis came back to me, how she had only heard that the doctor could cure her. I couldn’t ignore the reality of this situation: We were facing a battle for Charles’s life. The sound of the operator broke through my reverie as her disembodied voice repeated for me to please hang up the phone; then the incessant buzzing of the dead connection really jerked me to attention. I hung up. Now I had to tell Charles the news, both of us acknowledging the fact that there was a good chance he was dying while dancing around those exact words.

E
ARLIER THAT
summer, the Supreme Court had agreed to hear my appeal, setting the date for November 27, 2006.

After a subdued Thanksgiving dinner with just Charles and me—he just wasn’t up to a big family gathering—I boarded the plane for Washington on a gray November Saturday to attend the Supreme Court hearing on Monday, only a year after Goodyear won its appeal in the Eleventh Circuit Court. I was concerned about the final outcome of my legal journey, which had started almost ten years before. Vickie sat next to me on the plane, while Charles stayed home with the help of home health care to recover from his latest radical face surgery and the wound on his leg where the top layer of his skin had been shaved off. He would begin chemotherapy and radiation treatment after the Christmas holidays. Seeing my reflection in the window of the plane, I thought that I didn’t even look like myself anymore. Vickie had taken me to a new hairdresser, who’d given me a coiffed blond bob, and I wore a navy skirt and a silk blouse I’d scouted at the discount outlet.

In Washington that evening, I met Kevin Russell, whom I’d talked to numerous times over the phone, for the first time. He’d worked on my case for over a year, with the help of a group of Stanford Law students associated with the Stanford Supreme Court
Litigation Clinic, which helps prepare pro bono cases. Kevin had also been aided by the National Women’s Law Center and the National Employment Lawyers Association, both of which had written amicus briefs for the court.

On the third-floor mezzanine of the posh hotel, Kevin appeared in jeans and a sweatshirt, sporting a red beard. I was expecting an older man, and for a minute I thought he was one of the college students. The moment he started talking, I got excited listening to him articulate the ins and outs of the legal proceedings with such expertise. This would be his first time before the Supreme Court. He explained the situation: There were four conservative justices and four who would probably lean in our favor. Justice Anthony Kennedy was somewhere in the middle, but not necessarily when it concerned employment cases, so Kevin thought we had to focus on convincing another justice. Based on past rulings, Kevin thought Justice Antonin Scalia or Justice Clarence Thomas were good possibilities.

Since I’d filed the lawsuit in 1998, there had been many baffling twists and turns, so much out of my control. Then President Bill Clinton had been in office. By the time my case had made it to the highest court in the land, I’d seen firsthand how the fickle nature of politics impacted the delivery of justice. Now that President George W. Bush was in office, the Justice Department, as an agency of the federal government, leaned toward Goodyear’s defense. This incredible development upset me, but I’d seen how people will turn away from the truth to keep their boss (or the person who hired them) happy, as payment for giving them the job opportunity, or to maintain stability and a steady paycheck.

O
N THAT
brisk Monday morning, men and women bustled down the sidewalk, large lattes in one hand and black briefcases in the other, all headed to the Capitol to conduct their business on the Hill. I hurried past them up the steep white steps of the Supreme
Court Building, flanked on one side by
Contemplation of Justice
, a statue of a woman holding in one hand a book of law and in the other a figure of the guardian of justice, which holds a set of balanced scales; and on the other side by
Guardian of Law
, a male figure. Jon, Vickie, and I walked under the solemn Corinthian columns that seemed to reach to the sky and entered the building, constructed of white marble—some of it mined from Alabama. Passing through the Great Hall to the hushed courtroom, Vickie and I sat two rows from the front, facing the elevated mahogany bench where the justices presided. In the cavernous room with its forty-four-foot-high ceilings, invulnerable marble columns (I counted twenty-four), and plush red carpet, the podium stood only a few feet from the justices. The hearing had the feel of an intimate conversation. But there was nothing cozy about the occasion in the mausoleum-like atmosphere where we waited to hear the two competing narratives presented to the most powerful justices in the land.

Kevin presented our side in the initial twenty minutes allotted to him, answering the justice’s questions in a respectful, precise manner. One of the young Stanford students sitting beside me kept whispering before the case started, “It’s only right; the law is on our side. This has to go forward.” I sure hoped he was right.

In twenty short minutes, Goodyear followed and argued its side, with ten minutes allotted to the attorney from the solicitor general’s office—Jon and Kevin had met with the Justice Department before the hearing to see if it would take my side, but it took Goodyear’s side instead. Kevin then gave his ten-minute summation. After all that preparation, the hearing lasted only an hour.

As I watched Justice Ruth Bader Ginsburg, perched in her black robe, the lone woman among the nine justices, pose questions to both sides, I thought about how her mother had gone to work in a garment factory so her brother could go to college. Only
a generation later Ginsburg was one of the first eight female law students out of a class of five hundred to graduate from Harvard Law School; many years later she became that institution’s second female professor.

We were around the same age, and she too had been one of the first women to break into her profession. I might have been on the factory floor as she walked the hallowed halls of the American justice system, but I imagined that men in ties and men in jeans can act just the same.

A
FULL
six months after the hearing, in May 2007, I heard the Supreme Court verdict. By then Charles had started treatment for his cancer. He insisted on driving himself to Gadsden every weekday, shooing me away when I tried to accompany him for his chemotherapy shot followed by radiation half an hour later. I would act nonchalant, telling him that I really needed to get out of the house. Only then did he let me go with him. After all these years, he was still trying to protect me.

That day Charles and I were on our way to Fort McClellan to eat lunch with the senior group at our church. Even though he’d lost his sense of taste, he felt better that morning and wanted to get out and about on the invigorating spring day. There were only a couple of weeks of cool weather left before the relentless summer sun would make us want to stay indoors for good.