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Racial and Ethnic Minorities and the LawThe newsletter of the ISBA’s Standing Committee on Racial and Ethnic Minorities and the Law

November 2009, vol. 20, no. 1

How far have we come in eradicating discrimination in our profession and what is the blueprint for the future?

Like any occupation, the legal profession has not been immune from workplace problems like discrimination, hostile environment, harassment and retaliation. Twenty years ago, one small firm associate found herself in the eye of a storm when she tried to stop the gender based harassment within her firm that was damaging her professional growth. When efforts to resolve the problem in-house failed, she took the matter to federal court. After a three week trial, the jury entered a $1.3 million verdict in her favor, the largest sexual harassment judgment for a single litigant in Illinois history. The case,RoxAnne L. Rochester v. Gerald L. Fishman and Fishman & Merrick, Case No. 3896, United States District Court for the Northern District of Illinois, marked the first time that an Illinois lawyer prevailed against other lawyers in a Title VII sexual harassment suit.

From the first offensive act to final judgment, the dispute took 10 years to resolve. Post- judgment efforts by defendants to avoid payment of the judgment consumed another five years. It was 12 years before the ARDC entered its own disciplinary orders against the offender.

Today, we catch up with plaintiff RoxAnne Rochester to gain insight into resolving such disputes and to reflect on what progress the legal profession has made to respond to discrimination in its own ranks.

Q: In 1990, when you were confronted with sexually harassing conduct by a name partner at your law firm, what options for action were available to you?

A: Like other newly licensed attorneys, I was committed to my career and dependent on my job and salary to meet my financial obligations. When this situation occurred, there was no guidance on what to do, and there were a number of relationships at stake, I struggled to find a resolution that would preserve my professional standing and my license; restore my perception of the profession; preserve my client relationships; and protect the individuals involved, while also protecting my safety and my integrity. No resolution existed that would accommodate all of those objectives.

In 1990, in-house remedies were rare, and so anyone in my position had three choices. First, one could ‘go along’ with the perpetrator and perhaps advance a career, but sacrifice self image and personal integrity. Second, one could quietly leave the firm, which would immediately resolve the safety issues but result in job loss and possible exclusion from the profession. Third, one could file a claim and seek redress through the governmental agencies and the court system, but the EEOC and Illinois Human Rights Commission were not apt to pursue a claim involving a small firm employer, which means personal litigation. This last option may preserve an individual’s self esteem and dignity, but it comes at a great price, made manifest in job loss, musings about one’s character and motives, and the ever present risk that the case might be lost. Taking such a case to trial requires courage and the ability to ‘go it alone’, because there were no profession-wide advocacy efforts in place, which is one reason why litigation of this type is so rare.

Q: You chose to bring suit – at what cost?

A: Within a day of filing, I was informed I could not expect to continue at the firm while suing it, yet I had no clients, no source of income, and little savings. I was publicly accused of wrongdoing such as extortion and bringing false claims that adversely affected my personal and professional reputation.

The actual monetary costs were exhausting. The defendants’ delays resulted in four years of pretrial discovery and motion practice; by the time we got to trial, I had paid fees in excess of $100,000. Even though I “won” at trial, post-trial federal court motions, bankruptcy actions and collection efforts added another four years and $100,000. Altogether, I spent $250,000 over the course of ten years to remedy the situation. The amount ultimately collected through bankruptcy basically reimbursed my legal fees. During that time, I grew my own firm into a successful practice largely through colleague and client referrals.

Q: How should someone prepare for the monetary and emotional costs associated with fighting discrimination?

A: As a litigator, I had some insight into what I should expect, but it’s much different being a plaintiff than an advocate. Many trial tactics took me by surprise. To those unfamiliar with the litigation process or unable or unwilling to make the financial commitment, seeking legal redress in court may not be a viable option.

Be prepared to endure the equally exhausting non-monetary costs. Such situations shake your trust in the profession and our justice system, and affect close relationships. Be realistic about your objective. The courthouse won’t undo the emotional ‘fallout’ from the misconduct, get your job back, or regain your professional status. The victor can get a judgment (not always collectible) and person and profession may be vindicated, but the process takes a toll.

Q: Have options changed for lawyers who might find themselves in similar situations today?

A: I believe our profession has become much more intolerant of this conduct which makes less onerous resolution possible. Twenty years ago, the organized bar presumed that such misconduct could not and did not exist in our profession. After all, we have rules prohibiting discrimination. The persons involved were expected to resolve the problem quietly. By its denial, the legal profession created a level of tolerance for such misconduct. Today, there is a heightened awareness, and the profession is more willing to acknowledge the existence of discrimination and pursue remedial action.

Since the Ellerth and Faragher decisions, more firms are formally committed to investigate and resolve misconduct complaints in their offices. That opens the door to an option not previously available – challenging the offender to end the mistreatment while simultaneously preserving the professional status of the complainant.

Similarly, the organized bar, especially bar associations reflective of ethnic and gender minorities, has a more firmly established base and can assist in championing the cause of individuals who choose to challenge discrimination and harassment. The “Call to Action” and similar initiatives require firms to take affirmative steps to diversify their ranks and set a no-discrimination tone within their offices and in their work ethic.

Q: Have we eradicated the problem?

A: No, nor do I expect to overnight. All professions include individuals whose conduct might deviate from what is ethical and respectful of others. The legal profession has made tremendous inroads although there is still progress to be made. For example, even today, the ARDC requires a final judgment in a legal proceeding before it will investigate a complaint of discrimination. In my case, that meant the perpetrator was not subject to professional discipline for more than ten years after the offending conduct, thus leaving others at risk –a response no more suitable to the self-regulating profession of law than it is for the Catholic Church.

Public sector offices and large law firms have probably made the most progress through adoption and enforcement of anti-discrimination policies. Why? First, large offices have more women at higher levels, and women leaders generally won’t stand for this type of conduct. Secondly, Farragher and Ellerth spell out what is required of employers to avail themselves of recognized defenses. Third, for technological reasons, firms don’t want the adverse publicity and negative marketing impact that blogs like Abovethelaw.com might bring. And lastly is the economic factor: a large firm can exact compliance with its policies even if the allegation is against a rainmaker, because its other rainmakers can help contain the income loss.

Q: What more needs to be done to educate lawyers to prevent discrimination?

A: Law schools must educate students to understand the problem and to be aware of resources and avenues available to remedy it should the need arise. The organized bar can continue its work to eradicate discrimination and harassment through concerted efforts to not only employ minorities and women, but to provide the same training and opportunity for advancement and professional growth to this population. Twenty years ago, women were more visible in public sector offices such as the U.S. Attorney’s Office, the State’s Attorney’s Office and various government agencies. Women litigators in the private sector, especially in the civil courthouse, were still a novelty. Consequently, the male leaders of the profession did not know how to receive them or their talents. Instead, women were often given ministerial or administrative tasks, or permitted to author briefs but not to argue the cases. Now, women and minorities are a proven and integral component in the private sector, looked to for our intellect, energy and litigation skills, and seen as assets in client development and firm growth.

We are on the right track. Consider that…

• Increased numbers of women and minorities in law school makes their presence a common phenomenon for male and non-minority students.

• As the men and non-minorities graduate, the seeds of their acceptance of equal skills of women and minority lawyers have already been planted.

• The sheer numbers, combined with the maturity of thought on topics of discrimination and harassment, moves us towards their eradication.

Q: What do you see as the ‘Blueprint’ for the future’?

A: For eradication to be possible, we must consider additional measures like the following:

• The practices adopted by public sector offices and large law firms must trickle down to the medium and smaller size firms.

• The ARDC needs to timely respond to complaints or have an “under investigation” status of licensure rather than having to wait for judgment. Perhaps by statute, rule or motions in limine, prejudicial evidence of an investigation in pending cases can be excluded.

• If litigation can keep the profession in check, then more attorneys should take these matters on a pro bono basis for the good of the profession and for plaintiffs unable to afford the process.

• Bar associations must take a more visible role in denouncing discrimination and in teaching the importance of refraining from prohibited misconduct. They should also establish mediation programs to assist individuals and firms in resolving the problems and, where appropriate, address emotional realities. If appropriate, bar associations should file amicus briefs on such issues.

• Groups like the ISBA Standing Committees on Ethnic and Racial Minorities and the Law and Women and the Law should aid the effort, provide legal research, serve as a source of collegial support, and assist courageous complainants to find re-employment.

Our work will not be complete until articles like this are unnecessary, and until it is no longer noteworthy to see a certain minority or gender rise to higher ranks. Twenty years ago, as Justice Mary Ann McMorrow contemplated a run for the Supreme Court, her presence in the race as a woman was remarkable. Today, women commonly seek and are often successful in achieving higher office. What remains to be done is true integration of all ethnic, religious, racial and gender groups into our profession. That is the true measure and strength of diversity, and it should be a goal to which we all aspire. ■

 

 

 


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