GFIC: Substantive Law and Courtroom Environment Changes

To finish out November is the final recap of the Gender Fairness in the Courts CLE from earlier in the month. The last panel reviewed differences in substantive areas of law impacting women and changes in the court environment for women litigants, witnesses, attorneys, and judges in the last 20 years.

The panel consisted of:
Hon. Diana E. Murphy, Eighth Circuit Court of Appeals
Hon. Susan Richard Nelson, Magistrate judge for the U.S. District Court
Marianne D. Short, Dorsey & Whitney
Michelle Grant, Dorsey & Whitney (moderator)

Judge Nelson was asked about her thoughts on the new federal rules surrounding who will be lead counsel in a class action, and how judges have to look at the gender and minority make up of the firms. Judge Nelson thought these rules were important to follow because of the diverse group of plaintiffs present in some of the large class actions law suits. "All those people should be represented by a representative group." She noted that on the Guidant and Medtronic MDLs, the lead trial lawyers and the top in-house counsel where all women lawyers. "This is an extraordinary moment for us."

Marianne Short was asked about how law firms are working to continue to eliminate gender disparity. She said that while 10 years ago it was all about recruiting, "now it is all about retaining and engaging women in practice." She said that they really work to make sure women and minority associates have mentors and role models, and they continue to work on their work distribution, exposure to clients, and taking advantage of technology and the ability to work remotely. She also talked about how the changes law firms are making due to the recession, such as merit-based pay, have to be monitored carefully to make sure they are not having a disparate impact on women. "That concern does give me pause."

When asked what the Bar should focus on in the next 20 years, Murphy responded that there continues to be a need to focus on implementation. Everyone needs to recognize there is a problem, and recognize that each appointment matters. She talked about how studies like the Gender Fairness study from 1989 are a tremendous amount of work, and that there needs to be another generation of people to step up and think about initiating the next one.

'Equal' on violence against women

'EQUAL'
PART FIVE VIOLENCE (1990-2000)

21. A Challenge for a Young Lawyer

In 1990, Senator Joseph Biden asked a staffer, Victoria Nourse, to figure out what Congress should do to reduce violent crimes against women.
Judges historically had viewed rape cases skeptically, requiring proof of the utmost resistance to the point of enduring additional physical violence before finding that a woman or girl had not consented. The law frequently also required corroboration of the victim's testimony. The machinations of a vengeful, scheming woman were much feared.

But Nourse's reading eventually took her to the Fourteenth Amendment. Section five of the amendment granted Congress the right to pass legislation to achieve the amendment's equal protection goals. She discovered that Professor Robin West had proposed “A Married Woman's Privacy Act” that would guarantee protection against sexual assault to all women and prohibit discrimination against married women in applying rape laws. West's use of the right to privacy was somewhat problematic, since that right had been used against women, as for example, refusal to charge batterers for crimes committed in the home. But Nourse believed that a law could target violence against women as a civil rights violation by giving women a civil cause of action.

Laura's wedding bells

Our friend and fellow blogger Laura Hammargren got married Saturday night in a lovely ceremony at the Minnesota History Center. I've never seen a prettier or happier bride. Or one with better earrings (my gift!) Laura danced with her husband Cristof to "Brown-Eyed Girl" and her dad to "Isn't She Lovely." I wanted to cry, and I saw Laura's mom dab her eyes. I haven't written a wedding announcement since I first got out of J-school, but this one was worth it.

Conference call on Stupak-Pitts Amendment

Minnesota attorney Susan Burns and other lawyers will hold a conference call this Friday at noon for lawyers and legal professionals to learn what the Stupak-Pitts Amendment says about insurance coverage for abortion and how women will be impacted if the same provision makes its way into the final Senate bill.

Speaking will be attorney Bethany Sousa of the National Women’s Law Center in Washington, D.C.

Friday, November 20, 12:00 p.m. (CST)
Dial in: 1-888-870-8262
Participant Passcode: 202 956 3065


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Key Language of the Stupak-Pitts Amendment:
“No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act or rape or incest.”

GFIC: Domestic Violence

At the recent 20th Anniversary Commemoration Luncheon and CLE Seminar for the Gender Fairness in the Courts task force report, a third panel spoke on the topic of "Domestic Violence: How Practitioners Identify Violence in Today's Complex World."

The presenters, Loretta Frederick of the Battered Women's Justice Projcet and Professor Nancy VerSteegh of the William Mitchell College of Law, really centered their presentation on the practical. After showing a clip from the movie Waitress (a must-see, by the way), they had these tips for identifying domestic abuse in clients:

• Context is key: for example, think of the many meanings of a slap. Depending on the fear you may or may not have of the offender, it can be a much more, or less, threatening action.
• Differentiate between non-coercive and coercive violence. The difference between the two depends on the reoccurance and constancy of threats. The difference will also greatly impact your representation of a client.
• Think carefully about a common vocabulary. Make sure you are using terms that everyone can have a common understanding of.
• Talk in a safe setting, and remind your client of confidentiality.
• Be as comfortable as you can with the issues, because that will translate to your client.
• Help the client assess the risk, and help her realize the violent outcomes that domestic abuse can have.
  

MacKinnon's students say her class was emotional

Here's a link to a wonderful article about Catherine MacKinnons's Sex Equality class at Harvard.

The student writes: "Legal discourse is theoretically and intentionally rational, but Sex Equality was an emotional class. Contrary to the need to suppress emotion, it was invited into the classroom to inform processes of reason and applications and evaluations of law and legal opinion. Does the current state of rape law make you angry? Well, it should; and that anger is an indication that the law in both the black letter and in its implementation should be modified. Do the horrifying realities of prostitution and legal decisions that blame the victims of these horrors and not the perpetrators of them make you sick? They should."

"And instead of throwing your hands up and joining the ranks of the complacent, consider instead what your unique position as a person with elite legal training could contribute to eradicating horrors, and to eradicating all of the other forms of discrimination we face in our daily lives."

The posts on Equal show how important MacKinnon has been to all of us; and anyone who quotes Virginia Woolf to law students is a pal of mine.

16 Days Against Gender Violence Starts Nov. 25

The Center for Women's Global Leadership at Rutgers University's 16 Days of Activism Against Gender Violence starts Nov. 25. It is an international campaign originating from the first Women's Global Leadership Institute sponsored by the Center for Women's Global Leadership in 1991. Participants chose the dates, Nov. 25, International Day Against Violence Against Women and Dec. 10, International Human Rights Day, in order to symbolically link violence against women and human rights and to emphasize that such violence is a violation of human rights. This 16-day period also highlights other significant dates including Nov. 29, International Women Human Rights Defenders Day, Dec. 1, World AIDS Day, and Dec. 6, which marks the Anniversary of the Montreal Massacre, when a gunman who claimed to be "fighting feminism" murdered 14 women before killing himself.

In connection with the 16 days, The Advocates for Human Rights will hold "Legal Reform on Violence against Women in the Republic of Georgia: Recent Successes and Challenges," a brown bag lunch seminar on Tuesday, Nov. 24, from 12:00 - 1:00 p.m. at Fredrikson & Byron, P.A., Minnetonka/Tamarack Room (40th floor), 200 S. Sixth Street, Suite 4000, Minneapolis

Equal: Vinson at the Supreme Court

20. At the Supreme Court
Justice Sandra Day O'Connor thoroughly questioned the bank's attorney, Robert Troll, who was forced to concede that if Vinson had brought a case of racial harassment she would not have to lose her job to win her case, and that the same standards should apply to sexual harassment.

O'Connor also began the questioning of Barry. Barry, aided by MacKinnon, told the court that Vinson had pled a pattern of harassment and a hostile environment in the lower courts. Barry had assistance from O'Connor at another point in the argument when she interrupted an exchange with Justice William Rehnquist and gave her an opportunity to point out that she had been denied a free transcript. Rehnquist was committed to a discussion of the evidence of unwelcomeness and the clothes that Vinson wore to work.

Getting caught up in the questioning, Barry twice referred to the California Rules of Evidence. But the general consensus was that Barry had done a terrific job, even with Rehnquist's distractions and Chief Justice Warren Burger's concern that the bank shouldn't be held responsible for the act of the employees.

Despite the hostile environment created by Rehnquist's questioning, the court unanimously supported Vinson in an opinion he wrote. Two days earlier, Rehnquist had been appointed chief justice. Barry assumed that he ruled in her favor because he wanted his appointment confirmed by the Democratic Senate.

The early votes appeared to be in Vinson's favor but the first draft to the Rehnquist opinion surprised the justices. Rehnquist wanted to limit the bank's liability but other justices wanted to apply the same strict liability standard to hostile environment cases as was applied to quid pro quo cases. It didn't seem that Congress would have intended the two Title VII claims to have different standards, Stevens wrote in a memo.

Rehnquist replied that he would be Stevens' sixth vote but not the fifth one. Rehnquist was determined to be in the majority. O'Connor joined with Stevens and Rehnquist followed. But Justices Marshall, Blackmun, Brennan and Stevens concurred in the judgment only, distancing themselves from Rehnquist's refusal to apply strict liability or to define the limits of employer liability.

“We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.,” wrote Rehnquist.

Vinson eventually settled with the bank and used some of the money to go to nursing school. Her harasser went to jail for embezzlement. Barry went bankrupt but later revived her practice and MacKinnon became a tenured professor of law at the University of Michigan, and, eventually, Minnesota.

MWL Mentor Kick-off

Last Wednesday was MWL's Student-to-Attorney Mentor Program kick-off event, titled "Reflections on Becoming a Leader: Tips and Perspectives From Women Attorneys." Over 100 attorneys and students attended, reflecting the huge jump in participants this year: The program grew from 60 pairings last year to 120 pairings.

Andrea Pavelka, one of the co-chairs of the mentor program committee, wrote this recap of the event:

The event included a panel presentation moderated by MWL President Megan Hertzler of Trudy Halla, Liz Cutter and Justice Gildea. The panelists and moderator offered a spirited, candid discussion of their paths to leadership within the profession. The panelists reminded the audience to be involved, do what you love, and do it well. The panelists each got involved in their respective leadership positions by pursuing organizations in areas of interest and volunteering to be involved within these organizations. The evening was inspiring for all in attendance. Look for another Student-to-Attorney Mentor Program event in spring 2010.

As an attendee, I echo Andrea's praise that the moderator and the panelists did a great job of reminding everyone to keep developing your career, even in a down economy. The best way to do that: finding what you love and working hard. The leadership will develop naturally from those elements.

GFIC Recap: Family Law

The second panel during the Commemoration of the Gender Fairness in the Courts report last week focused on family law. The panelists were Susan Rhode of Moss & Barnett P.A., and Kay Nord Hunt of Lommon, Abdo, Cole, King, Stageberg P.A.

Both women talked about crucial changes to family law in the last 20 years, and also important changes that still need to be examined. Here are just a few:

• Early Neutral Evaluations: This was highlighted as incredible progress in family law, as these evaluations help parents by evaluating situations early in the process and leading to better parenting decisions over the long haul.
• Best interest of the child: Hunt noted that an important advance in family law was the presumption that joint custody was in the best interest of the child, getting away from notions that to be with one parent offered stability, which should be valued higher.
• Child support: Both women spoke positively about the changes in child support that revolve around assigning support based on parenting time, rather than custody. However, both women commented on how spousal support was still being counted as income in child support calculations, which reduced overall support for children.
• Spousal support in general was a big topic. For instance, spousal support ends upon remarriage of the recipient partner. But an interesting question is why should the need or fair share based on one partnership end if another is entered into?
  
• Another interesting topic was that of professional women getting divorced. Both panelists commented that the time frames for those women reentering the profession are too short--courts expect professional women to start earning a large salary right away, even if they have been gone from the profession for years.
  

Magistrate Judge Nelson Nominated

Yesterday, Federal Magistrate Susan Richard Nelson was announced to be Senator Amy Klobuchar's recommendation to the U.S. District Court. Minnesota Women Lawyers released this statement:

Minnesota Women Lawyers congratulates our member and past president, Magistrate Judge Susan Richard Nelson, on her nomination to the U.S. District Court. We anticipate and encourage an efficient confirmation process. Magistrate Judge Nelson has served as a magistrate judge for nearly 10 years, and before that had a very successful trial practice. Not only is Magistrate Judge Nelson a qualified candidate with demonstrated experience as a judge, she brings important additional gender diversity to the court. MWL believes that it is important for the judiciary to fairly reflect the composition of the legal profession and the public that they serve, and applauds the nomination of Magistrate Judge Susan Richard Nelson for the federal district court bench.

New judge to be named today

The word on the street is that an announcement about the new U.S. District Court judge will come at noon today.

GFIC Recap: Looking Back

Last week was the 20th Anniversary and Commemoration of the Minnesota Supreme Court Task Force For Gender Fairness in the Courts Report. Don't even attempt to say that five times fast.

In other words, last week a luncheon and an afternoon of discussions centered around a report released 20 years ago from a task force created by the Minnesota Supreme Court in the late eighties. The task force--Gender Fairness in the Courts--collected data on several areas of the law and courtroom environment to see if there were gender disparities in the court. Not surprisingly, there were.

The commemoration last week had too much good information and discussion points for one blog post. Thus, this week Woman, Esq. will recap and examine each different component of the program.

We start with the Keynote Address given by Minnesota Court of Appeals Judge Harriet Lansing. Judge Lansing played a key part in initiating the movement to make gender fairness on the bench and in the courts a priority in both the nation and Minnesota. Judge Lansing talked about (and even showed photos!) of the many conferences and meetings that she attended to initiate the examination of this issue, in the company of women such as former Justice Rosalie Wahl, former Justice Sandra Day O'Connor, and Sociology Professor Norma Wikler.

The issue was finally addressed in Minnesota in 1987 with the establishment of the Supreme Court's Gender Fairness in the Courts Task Force. This task force surveyed and reported on issues surrounding gender fairness in the courts, and still exists today to implement the recommended changes.

One statement in Judge Lansing's speech was especially relevent: she noted how the questions of gender fairness that existed in 1989--and, I argue, even today--are more comprehensive and subtle than law reform. Even directly addressing the issues through substantive law are not enough to change the disparities that exist in the legal process and the legal profession. For example, the small percentage of women who are law firm partners, or the many women who still suffer from the cycle of domestic abuse, despite being in the court system.

Of course, it is those comprehensive and subtle problems that are the hardest to solve. Judge Lansing also got it right when she said that interest and work on these problems need to be regenerated in the new generation of lawyers.