Sue Ellen Eisenberg: Writing History

She helped level the playing field for women and minorities

Published in 2010 Michigan Super Lawyers — September 2010

When the Detroit race riots broke out in 1967, Sue Ellen Eisenberg was about to start her senior year at Mumford High School. The violence, which lasted five days and left 43 dead, sparked an activist spirit that helped shape her life.

“It brought home to me,” she says, “the frustration and anger that was associated with the disenfranchisement of African-Americans.”

Following those events, as well as a college experience at the University of Michigan (the “Berkeley of the Midwest”) during its political heyday, Eisenberg asked herself, “How best does one become a change agent?” She decided law school was the answer, believing a career in law would be based on advocacy for social change.

After finishing her J.D., she landed a job at the Equal Employment Opportunity Commission in the litigation services branch in D.C. “And the rest is history,” she says.

In fact, she had a hand in writing history. Eisenberg became instrumental in a number of groundbreaking civil rights cases and played a major role in drafting the first federal guidelines on sexual harassment.

During her tenure at the EEOC, the landmark case Regents of the University of California v. Bakke—in which a white applicant to UC Davis had been rejected by the medical school in order to fill slots with minority students who had lower test scores—ended with a 5-4 U.S. Supreme Court decision that quota systems based on race were unconstitutional and led to reverse discrimination.

President  Jimmy Carter gave the case to the EEOC to draft the position of the U.S. government, which was: “that there’s a difference between goals and quotas, and that affirmative action could be a legitimate method to remediate past discrimination,” Eisenberg says. She was part of the team that crafted the statement. “It was very exciting. It really felt as though you were at the apex of change,” she says. Though the Supreme Court deemed rigid affirmative-action quota systems illegal, it upheld the legality of affirmative action per se.

“[The] Bakke decision ultimately came to stand for the proposition that race could be a factor among many factors in an admissions program,” Eisenberg explains.

The commission was the perfect place for a young women’s-rights advocate like Eisenberg. “There were great women leaders, and they were in positions of power,” she says. “You looked up the ladder and they were at the top.” But beyond the corridors of government, Eisenberg saw that the same progress was not being made. “Friends of mine who were trying to advance in law firms were being asked questions about having babies, or being told that they couldn’t wear pants to work because it made them look too masculine.” Her EEOC cases also opened her eyes. “The commission showed me that discrimination is not indigenous to just one industry, it’s epidemic.”

Her chance to be an architect of change came when the EEOC, with Eleanor Holmes Norton at the helm, decided to construct uniform guidelines on sexual harassment. The policies, although not law, have been looked to by courts handling sexual-harassment cases in various circuits.

Eisenberg left the EEOC after 3½ years, returning to Detroit, she says, to “reaffirm a commitment to my hometown and family.” In 1989, she opened her own practice, now called Sue Ellen Eisenberg & Associates, where she relies on skills she learned at the EEOC. The majority of her clients are individuals, but she represents employers, too. “It keeps my skills razor-sharp,” she notes. “The good guys are not only on the left side of the ‘versus,’ and the bad guys aren’t always in the employer role.”

Many of Eisenberg’s cases are glass-ceiling and sexual-harassment suits. She also deals with cases involving age discrimination and the Uniform Services Employment and Reemployment Rights Act, which guarantees those serving in the military the right to return to their previous jobs.

The Michigan State Bar honored Eisenberg with a Champion of Justice Award in 2007 for her commitment to civil rights. That commitment includes the 200-plus hours she carves out of her schedule each year for public service, such as pro bono work for nonprofits that share her values.

“My father always taught us: ‘You don’t take out of the community without putting something back.’”

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