Monthly Archives: November 2019

The Fourth Panel: How Many Sexes can Stand Under Title VII’s Umbrella

by Chris Fortier

Diversity Conference Chair Chidi James provides remarks to end the Forum. James Hammerschmidt, Carla Brown, Joseph Martins, and Judge Joanne Alper look on. (Eva Juncker).

“Now that it’s raining more than ever, Know that we still have each other, You can stand under my umbrella” The United States Supreme Court just heard arguments in three employment cases next session: Bostock v. Clayton County, Zarda v. Altitude Express Inc., and EEOC v. R.G. & G.R. The cases range from a civil suit brought by an employee against a governmental body, an employee suing a private company employer, and a regulatory body bringing an action against a closely held business.  The Court will determine the extent to which Title VII’s protections against sexual discrimination extend to protect against sexual orientation discrimination, associational discrimination, and gender stereotyping.  

This panel was moderated by the Honorable Joanne F. Alper, Retired Judge, Circuit Court of Arlington County, and featured  Carla D. Brown, Esq. of Charlson Bredehoft Cohen & Brown, Prof. Joseph J. Martins, Esq. of Liberty University Law School, and James Hammerschmidt, Esq. of Paley Rothman.

Each panelist provided factual background on each of the cases. When asked what case each would advocate, each chose their own. Mr. Hammerschmidt chose the Zarda case as the question is what does sex mean under Title VII? Ms. Bowen chose the Bostock case as Mr. Bostock was doing a great job locally, regionally, and nationally, and that the action of County embarrassed him with the audit and the news coverage of his firing. Professor Martins chose the EEOC case as the questions arose in the case were better suited for Congress to solve that the Courts.  They speculated to the reason of the Supreme Court hearing all the cases together, thinking that they make an aggressive move on the issue. 

Mr. Hammerschmidt pointed to the PriceWaterhouse decision of 1989, where sex discrimination was found when the only woman in the company who was up for partnership was denied.  In the decision, the Court created an analysis to review these decisions. After the plaintiff shows that discrimination took place, a defendant would have to show that if the same decision would have been made if discrimination was not part of the process.  The decision also added “stereotypes based on sex” to the definition of sex in the statute.

The theme that emerged from audience questions was that to only ask questions of applicants that are directly relevant to the job advertised. For example, questions about sexual orientation, though not illegal in Virginia, are highly discouraged, as they do not have a direct nexus to the job advertised. Questions that invite answers on personal lives, such as “tell me about your family (or upbringing),” are risky as it could be seen as inviting an answer that could lead to discrimination.

 ____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

The Third Panel: Keeping the Pipeline Flowing and Employment Best Practices

by Chris Fortier

Attendees gather before the program begins.

Both attorneys and employers need to actively participate in improving diversity in the legal profession.  A panel discussed how minority attorneys can advance personal success, positively impact law, and improve the administration of justice.  How can recruitment and hiring improve diverse representation across the legal profession and improve suffering retention rates.  Moderated by Zaida C. Thompson, Loudoun County Attorney’s Office, the panel included Toby J. Heytens, Solicitor General of Virginia,  Michelle B. Craddock, Craddock Law PLLC, and Christina T. Parrish, Assistant Attorney General, Virginia Office of the Attorney General.

The panel opened asking why it is essential for employers and attorneys to improve diversity?  Mr. Heytens stated that diversity and inclusion “makes the work and the world you own better.” Ms. Craddock noted the workforce feels negative effects when management does not have diverse voices at the table. At her old firm, her coworkers noticed pay gaps and being overlooked for growth opportunities. This caused diverse individuals to “fly out the door.”

When the question turned towards diversity’s importance in Government, Ms. Parrish stated that diverse opinions bring more perspectives to the table, creating better decisions. “How do you balance both sides when you are looking things through one set of lenses?” She noted that diversity is not just skin color but in the experiences we have.  

What are challenges and myths of diversity?  

  • “There are no qualified diverse candidates,” Ms. Parrish noted as a quote she hears all the time.  “Search harder. There are qualified diverse candidates.”  
  • ”All You Have to Do Is Stop Discriminating,” was Mr. Heytens’s quote. “A lot of jobs are network or relationship created. People who know people talk to one another.” He urged attorneys to keep expanding networks and meeting new people. 
  • “Discrimination in pay is legal, ‘it’s the law!’” quoted Ms. Craddock. “Lawyers are complying with professional duties. If you pay fairly, you will attract women and minorities.”  She also noted that women who have children get paid less, especially with bonuses, and have lessened prospects.

Mr. Heytens noted that inclusion must be a personal and a management commitment.  Ms. Parrish noted that as a new lawyer, she was not prepared to practice from the unspoken rules standpoint.  “I needed to be at happy hour talking to colleagues, making the relationships.” She urged attorneys to teach to speak the language and navigate the landscape, educating on the norms.” 

Mr. Heytens noted that networking and supporting one another can be very difficult to do. “ This must be a conscious priority to do as he is working on this himself. You have to consciously tell people where you are going and invite others along but do not pressure people.  Walk the line to make people feel welcome. Do not pressure people to do stuff not in the job description.” Ms. Parrish added that diversity is asking to the party but inclusion is asking to dance. “Interaction is important as that is how relationships form.” Everyone must be able to get into the conversation.  She urged new attorneys not to allow others to “box you out” of conversations. These events are networking events where new people meet, not where old friends catch up. “It’s about the mindset. Don’t let them box you out.” 

____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

The Second Panel: Understanding Diversity: The Changing Realities and Considerations in the Practice of Law in the Commonwealth of Virginia

by Chris Fortier

How can a practitioner recognize and address the needs of our diverse community?  Changing demographics of our Commonwealth brings changing legal needs of our clients. How can we, as attorneys, serve as counsel?  The differing abilities and needs of our citizenry now significantly affect a lawyer’s professional and ethical obligations in communicating with and representing clients, interactions with the court and juries, litigation, and public service.

The panel was moderated by Hon. Manuel A. Capsalis, Judge, Fairfax General District Court and featured Carteia V. Basnight from the Law Office of Carteia V. Basnight, Martha JP McQuade from McQuade Byrum PLLC and Kimberly M. Turner, Law Offices of Kimberly Martin Turner, PLLC 

The discussion began by acknowledging duties and ethical responsibilities to clients and how the client base and their legal needs has evolved through the years and how have they adapted?  From a criminal law perspective, Ms. Basnight noted that clients may feel that the Criminal Justice system will not treat them fairly. Lawyers need to start with basics and explain the criminal justice system and what it does to try to make things fair.  “While older clients do not expect much, younger clients expect a lot. Younger clients expect to be treated fairly in criminal justice system.

Ms Turner provided observations from a transactional practice perspective. Clients have wanted to address own levels of diversity on their own.  They want to protect loved ones and assets, and make their legacy. Various factors such as religion, orientation, socio-economic background all come into play when deciding who they give agency to assets, craft a will, make funeral arrangements.  Lawyers have to provide clients more customized services. 

Ms McQuade stated that she has advised diverse clientele throughout her career and that each client presents challenges that she must research into crafting her representation.  She urged attendees to help the judge understand what is going on with the facts. “You need to understand what the judge does not understand meaning not only cultural practices but legal issues and the implications of actions.

The discussion turned to cultural norms and how clients raised in different countries interact with the legal system. For example, some cultures emphasize telling the authorities all the facts, including the ones that implicate them in crimes. Other cultures have a fear of the police, and will pay the police to not arrest them.  These are examples of mitigating factors that attorneys must point out and provide context to the court.

The panel ended with a discussion on preparing clients for court.  Audience members shared their tips, urging one another to be direct with clients and seeking testimony from families and communities to explain why your client made the decisions he or she made. Using skills to tease out client information that they make think is irrelevant or embarrassing guides representation of the case.  

____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

The First Panel: Implicit Bias and Its Effect on Lawyers

by Chris Fortier

The opening panel, Implicit Bias, at the Forum (Dee Norman – VSB). Marni Byrum, Dean Spanos, Maura Weiner, and Tammy Currie open the Forum. https://www.facebook.com/virginiastatebar/photos/a.2474654669296422/2474656022629620/?type=3&theater 

As sworn guardians of the rule of law, lawyers have a special duty to conduct themselves in an honorable manner, free of bias against individuals based on the color of their skin or other similar personal characteristics.  As human beings, on the other hand, we are all vulnerable to ingrained stereotypes that can affect how we think about and act toward others who are different than ourselves. While often completely unintentional, this implicit bias can seriously affect the quality of justice.  A panel at the Forum explored the concept of implicit bias and its impact on the legal profession. The panel used examples such as jury selection and employment litigation in addition to interactive case studies to demonstrate contexts in which implicit bias may arise and the way the law can address such situations.  

Tammy H. Currie, a professor at Northern Virginia Community College, Maura Burke Weiner, of JuryMatters, Inc., and Dean Sparlin, Esq., of the Sparlin Law Office, led the panel, and the lively discussion from the conference attendees.   

The program Opened with a video from P&G with an African American man wandering the street and in various locales. Each time, they showed people staring at him, implying that he should not be there. The video ended with him opening court on the bench.  The crowd discussed the video and their reactions. Attendees reported multiple instances of stares and comment from (not improved from years ago) people thinking they were not attorneys. Personal appearance and appearance of clients became a topic of discussion.  Attendees then discussed whether judges and mentors create outcomes based on personal appearance.

In the video, a girl looks out to the man’s son, and instantaneously her mother rolls up the window. One attendee observed that this incident shows that this behavior is trained. The attendee urged others to break the cycle.  Others noted how the video highlighted the isolating experience of man throughout his daily activities. One attendee asked, “can you just do the right thing just because it is the right thing to do?”

Attendees communicated their thoughts and feelings stemming from the video.  One attendee observed that the internet makes things worse with people broadcasting more views and more bias. Another noted that people of color are subject to the same biases that classify people incorrectly.  “Once you open your mouth, people adjust their thinking. Fear is a major driver of behavior.” One attendee communicated concern about the appearance of impact outcomes of cases, sometimes with judges rejecting deals as they refuse to deal with attorneys.

Other attendees reminded the Forum that “we will not always see forward progress in a straight line.  But we are seeing forward progress.” Others disagreed noting that fashion choices (such as piercings) are still under scrutiny.  

Ms. Weiner concluded the program by noting that we all have implicit bias and it consists of four aspects: 1) it is pervasive, 2) many of us are unaware of it, 3) implicit bias predicts our behavior, and 4) people who have diverse experiences and are exposed to variances are more tolerant and understanding.

____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

Second Annual Forum on Diversity Builds on Success to Engage the Bar

    by Chris Fortier

One successful event may be attributed as a flash in the pan.  However, two successful years means you are on to something. The Annual Forum sold out three weeks before the event. Over 120 people attended the event at William and Mary Law School.  They were eager, engaged, and made the Forum an event where everyone challenged one another to think in new ways. Months of planning and putting together arrangements made a difference in advancing the dialogue.

The widely anticipated event opened with remarks from Diversity Conference Chair Chidi James. He noted that the Diversity Conference serves as part of the cure to divisiveness in today’s society.  For example, the Forum was a chance for people to get to know others who are different. “Once you talk to someone you will start to realize you have more in common than you originally thought.” He urged attendees to continue the conversation.

Marni Byrum provided the Virginia State Bar President’s welcome.  She noted that her initiative is inclusion and engagement as she wants to engage more people in the mission of the VSB. “Inclusion of diversity makes us stronger profession a stronger society, and a stronger bar.”

The Forum Keynote from Justice Bernard Goodwyn opened the Forum with thoughtful remarks.  He emphasized the importance of the rule of law and noted that diversity and inclusion have a critical role in ensuring that the rule of law is available to all. 

“The Rule of Law is cornerstone of democracy. In order for it to happen, we need an independent and impartial judiciary.  Our job is to consider laws are applied equally to everyone. The Rule of Law is to determine what is just from legal perspective.”

He noted that diversity and inclusion strengthen the operation of rule of law in this country. He observed that judges bring training, talent, and life experiences to the bench. Individuals from different backgrounds, life experiences, and talents bring a lot to the table. A diverse bench and bar is essential to justice and preservation of confidence in courts and the legal system as citizens need to know they will have fairness and justice in the courtroom.

Justice Goodwin pointed to the late Justice Leroy Hassell, Sr as an example of Diversity and Inclusion (D&I) as he improved the system and made unopposed items of D&I his priorities during his time on the bench. Justice Hassell grew up in Norfolk in the period of the segregated south.  When Justice Hassell became Chief Justice, he made inclusion a priority. “He understood that you get a better product when you get a better input, meaning more points of view at the table. Justice Hassell would state “I made it my business to lobby the General Assembly for more money for interpreters, for legal services for the poor, court personnel training to be helpful, VSB include CLE programming for smalls and solos around the state and indigent training.” Justice Goodwin reminded the audience that Justice Hassell wanted a legal research tool as benefit of the state bar membership.  

He made it happen when he had a seat at the table. Diversity and Inclusion, he stated, improves proper application of law and makes rule of law operate better as it provides all a stake in a better society.

Luis Perez (Forum Chair), Marni Byrum (President of the VSB), Justice Bernard Goodwin, and Chidi James (Chair, Diversity Conference) (Dee Norman – VSB). https://www.facebook.com/virginiastatebar/photos/a.2474654669296422/2474656002629622/?type=3&theater 

____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.