July 17, 2023
NATIONAL LAW JOURNAL
LIFETIME ACHIEVEMENT AWARD CEREMONY
JULY 13, 2023
Thank you so much for this wonderful recognition. It’s a real honor to be among the distinguished company of those honored this evening and in years past.
Like most of us, I’m so preoccupied with upcoming deadlines, that I rarely reflect on how I’ve gotten to where I am today, following the twists and turns of my career and the occasions that have been most meaningful to me. I hope you’ll allow me to share some reflections.
My interest in civil rights was kindled early in life as I watched with terror the televised accounts of the beatings of African Americans peacefully demonstrating in the South in the 1960s. My interest grew to a passion in high school where, as a member of the mile relay track team, I was paired with three other runners, all of whom were African American. Our dependence on each other’s performance brought us together and I began to see the many slights and insults they faced daily that could only be attributed to their race. As this occurred in Philadelphia, Pennsylvania, I realized that the ugly bigotry I saw in parts of the South was also rampant more subtly in the North.
Early in my career, I joined the Washington Lawyers’ Committee for Civil Rights for Urban Affairs and in 1997 I started a national civil rights practice at what is now Cohen Milstein Sellers & Toll, where I happily remain a partner today. For the past 41 years, I have been engaged in the practice of civil rights law and the protection of workers and look forward to continuing to do so, as there’s much more important work to be done.
I have represented victims of discrimination on every ground prohibited by federal law and many state laws, some individually and many collectively in class actions. I also assisted in the drafting and enactment of significant civil rights legislation, such as the Americans with Disability Act, the Civil Rights Act of 1991 and the Lily Ledbetter Fair Pay Act.
Much of the litigation in which I have been engaged has challenged practices at industry leading businesses and governments. Recently, I concluded a class action alleging sex discrimination in pay and promotions on behalf of about 67,000 women at the largest chain of jewelry stores in the country. Unlike most class litigation, this case proceeded in arbitration. There were so many unsettled legal issues that the litigation required 15 years to conclude and eventually led to a payment of $175 Million and significant changes to the company’s pay and promotion practices.
Similarly, I served as lead counsel in representing thousands of chicken processing workers in three separate wage and hour collective actions, resulting in payments of back wages totaling more than $50 Million and changes to the companies’ pay practices.
I even count among my career milestones the Walmart v. Dukes case, in which I delivered the argument for the side that lost when the Supreme Court reversed the certification of a large class of women sales associates who alleged sex discrimination in compensation and promotions at Walmart. I jointly conceived of the theory of the case, which the Court rejected. On remand, I conceived of a way to pursue smaller, regional class cases which, notwithstanding its adoption by the Sixth Circuit, the Supreme Court again rejected, leaving me with the distinction of two losses before the Supreme Court in the same case!
Finally, I want to highlight a civil rights class action brought on behalf of thousands of Native American farmers and ranchers who claimed they were denied equal access to credit by the USDA, the lender of last resort to socially disadvantaged farmers and ranchers. After more than a decade of litigation, the parties reached a settlement providing for payment of $760 Million in damages, relief from outstanding debts to the USDA, and fundamental changes to the farm loan program. But, even more noteworthy than the terms of settlement was our ability to persuade our clients to set aside their distrust of the United States government, engendered by decades in which the government reneged on treaties and treated these first Americans as combatants, to trust a federal court to fairly adjudicate their claims and deliver a meaningful measure of justice.
Now I’d like to take a moment to look forward.
We face a number of challenges today to the private enforcement of the civil rights laws. One of the major impediments has been the increased use by employers of mandatory, binding arbitration. These agreements require that the claims be litigated in non-public proceedings, bar workers from bringing their claims together and often impose limitations considerably greater than the procedures established by Congress. Over time, these arbitration agreements will profoundly diminish the number of rulings that are public, steadily diminishing the common law that has been the centerpiece of our legal system since its inception.
In conclusion, I would be grossly remiss if I didn’t thank my colleagues at the Washington Lawyers’ Committee for Civil Rights and my colleagues at Cohen Milstein Sellers & Toll. None of us succeed alone. I have thrived because of the steadfast support, brilliant and indefatigable lawyering, good humor and wisdom of my professional colleagues. And, above all else, I have been sustained through this journey by the unqualified love, unflagging support and wisdom of my wife, Laurie Davis.