1 Trial Lawyer • Spring 2024 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Diversity, Equity, Inclusion Spring 2024
2 Trial Lawyer • Spring 2024
1 Trial Lawyer • Spring 2024 Board of Governors Spring 2024 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-804-0668, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@morselawllc.com, 541-362-4725 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable and promoting a fair and equitable justice system through advocacy and education. Articles Oregon’s Long and Winding Road Lisa T. Hunt .................................................................................................11 A Transformative Journey: OTLA & DEI Hala Gores, Nathan Sosa...............................................................................18 Accept Your Racism: So we can do something about it Emery Wang.................................................................................................21 Inspiring Confidence: In the justice system Hon. Melvin Oden-Orr ...............................................................................26 Reflection: On your clients’ challenges Rakeem Washington.....................................................................................28 Through A Lens of Empathy: The Roosevelt Robinson Scholarship Victor Mercado Negro..................................................................................32 Oye Como Va?: Hey, what’s up? Hon. Angel Lopez.........................................................................................35 The Problem with “Privacy” Jennifer Middleton........................................................................................37 Building Tomorrow: Decoding diversity, equity and inclusion Dr. Tiffany Brandreth....................................................................................40 Departments President’s Message: Shaping our policies Rob Kline........................................................................................................2 Annual Partners. ................................................................................................... 5 View from the Bench: Heard and understood Hon. Rima Ghandour.....................................................................................6 In Our Voices: Stepping out Hon. Robert Johnson......................................................................................8 OTLA Guardians of Civil Justice........................................................................ 24 Comp Corner: Welcomed relief Julene Quinn................................................................................................44 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 45 Officers President Rob Kline President-elect Melissa Bobadilla Secretary-Treasurer Brent Barton Parliamentarian Rob Beatty-Walters Immediate Past President Blair Townsend District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Tim Williams — District 2 Rhett Fraser — District 3 Jovita Wang — District 3 Derek Johnson — District 4 Lara Johnson — District 4 Erin Christison — District 5 Sonya Fischer — District 5 Governors-at-Large Steve Berman Keith Dozier Ronn Elzinga Mark Ginsberg Chris Hill Neil Jackson Quinn Kuranz Mona Moghimian Jeremiah Ross Jovita Wang New Lawyer Governors Ashley Rosenbaum-DePalo Emily Johnson AAJ Governors Tom D’Amore Nadia Dahab Shenoa Payne AAJ State Delegates Ron Cheng Ryan Jennings Michael Wise OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Amy Anderson, 503-223-5587 x100 Annual Partner & Development Director, Deputy Political Director Arthur Towers, 503-345-0045 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Education and Communications Director Mac Hubbard, 503-223-5587 Education and Project Assistant
2 Trial Lawyer • Spring 2024 By Rob Kline OTLA Guardian This special edition of Trial Lawyer magazine is a result of the work of OTLA’s Diversity, Equity and Inclusion (DEI) Committee. We thank the committee members for their monumental effort. In particular, thanks are due to our past co-chairs Hala Gores, Nathan Sosa, now Clackamas County Judge Thanh Tran and current chair Talia Guerriero. OTLA created our Minority Caucus almost a decade ago at the urging of then board member Diego Conde. The main objectives of the Caucus were to create a community within OTLA for our members who self-identify with an underrepresented community and to encourage more minority law students and lawyers to represent injured Oregonians in civil litigation. The Caucus meets quarterly for social events, charity work and continuing legal education. There are 75 members of the Caucus. The DEI Committee began as a task force helmed by Gores and Sosa in the eventful autumn of 2020 against the backdrop of the George Floyd protests across the nation. OTLA leadership pledged to take a hard look at our longrange plan and mission with a focus on what we needed to do as an organization to promote diversity, equity and inclusion. Shaping our policies Plans and goals Supported by a task force of dedicated members and an outside consultant, OTLA’s goal was to integrate DEI across our policies and organizational governance, and to foster a diverse, equitable environment within our member firms. We actively sought input from our members through surveys, focus groups and one-on-one interviews by the consultant, recognizing members’ essential role in shaping our policies. The team set clear goals: enhance diversity within OTLA, raise awareness about social justice, and develop policies to advance diversity and inclusion. We committed to having representation from a wide range of backgrounds and experiences within our membership and board. The committee completed 13 of the 16 initiatives set by the committee (see page 3). The remaining three are ongoing. The to-do list Of course, the pursuit of true diversity, equity and inclusion for any organization doesn’t stop at the completion of a list of goals. The Committee has put together a fresh list of goals for the next couple of years, with a primary goal of recruiting a more diverse membership in addition to maintaining the progress made in shaping OTLA’s policies and leadership. The new list of objectives can be found on page 4. A righteous cause As your president, I am proud to see the hard work OTLA has done to date on DEI and the commitments we have made in the future on all the facets of DEI discussed above, including diversifying our membership. In many ways, embracing DEI, and putting words into tangible actions is a natural exercise for OTLA and its members. After all, we are an organization of advocates. In our practices and in the courts, we fight every day to obtain justice for people who have been injured, discriminated against or had their rights violated by institutions of power. Implementing the precepts and tenets of DEI is not just the right thing to do. It enables us to make better decisions as an organization, become more effective advocates for all the communities our members serve and strengthen trust in our civil justice system. Rob Kline specializes in cases involving motor vehicle collisions, workplace injuries and sexual abuse. Kline practices as senior counsel at the Johnston Law Firm, 200 SW Market St., Ste. 1900, Portland, OR 97201. He contributes to OTLA Guardians at the Guardians Club level. He can be reached at rob@johnston-lawfirm.com or 503-546-3167. President’s Message Rob Kline
3 Trial Lawyer • Spring 2024 1. Integrate new mission statement and vision statement. • Create policy on OTLA purchasing/vendors/membership expectations consistent with OTLA’s new mission/vision statements. • Update policies, job descriptions and application processes for staff, board, committee and section chairs, and leadership academy to think about how other underrepresented groups are affected. Build DEI skills/efforts into the actual job description/responsibility of various positions. Create job descriptions for board membership that include DEI service. 2. Create a media campaign to promote the new mission/ vision statements to membership and make the strategic plan. 3. Create a glossary of terms as a resource for members. • Create a work group to discuss, research options with other bar organizations and then propose adopting them by the DEI Task Force and then OTLA. • Include glossary in handbook and in a “resources” tab on OTLA website for practitioners/members. 4. Update the website to add FAQ re DEI; how to get involved and then letting people know it is there. 5. Create budget line item for DEI. 6. Create a policy regarding pronouns and/or invite staff/ leadership to model pronoun usage and link to FAQ on website re: why this is important. Have pronoun labels available to be added to nametags. 7. Collect members’ stories that are 1-3 minutes long about their experience with the ABA challenge and/or other areas that can give a personal way for other members to expand their perspective and create more empathy. 8. Make the DEI Task Force a permanent committee instead of a task force. This elevates its status and makes it more visible on the website. Update mission statement for the committee in transition from task force. 9. Annual survey of members regarding what services/opportunities could be expanded to be more inclusive. 10. Create new member handbook of resources like what is available to board members. Have it in digital form when someone becomes a member and send to all members annually. 11. Ensure easy access to information website; create FAQ; handbook; how to get involved. 12. Mentorship opportunities within OTLA. • Suggested by consultant to be a pilot program specifically for underrepresented members. • Put together a subcommittee in the DEI Task Force to assess what we’ve tried but hasn’t worked, explore new approaches. • Another suggestion would be for a Board member to be paired with BIPOC or other underrepresented group to ensure this is targeted at greater equity and inclusivity in a formal program that expands a board member’s role/ duties as well as broadcasts to membership the dedication to creating a more equitable and inclusive community at OTLA. 13. Consider committing particular positions on the board for Minority and Women’s Caucuses and/or something that gives specific targeted funds/power to underserved groups; expanding definitions of diversity beyond gender, race. Currently, over 33% of the OTLA Board identify from an underrepresented community and more than 40% of the Board are women. We have had 13 Women Presidents of OTLA. There is always more work to be done but we are proud of the progress we have made. 14. Create certificates/more awards for people related to DEI efforts to encourage participation. E.g., Allyship award, awards for Minority Caucus members or awards highlighting the efforts of the individuals who are underrepresented. 15. Have leadership participate in formal training on how to have difficult conversations about race and DEI, including: • Trainings on power/privilege • Microaggressions • Disability/neurodivergence • Pronouns/gender 16. Conduct an annual CLE for membership, including: • Trainings on power/privilege • Microaggressions • Disability/neurodivergence • Pronouns/gender Initiatives from DEI Report (numbered for reference, not in order of importance)
4 Trial Lawyer • Spring 2024 A. Annual CLE on Power, Privilege, and Microaggressions: Exploring partnerships with other bar organizations to enhance the impact of our Continuing Legal Education (CLE) sessions. B. Representing Diverse Clients: Developing strategies and best practices for representing diverse clients, including guidance for legal professionals when appearing before a jury with an interpreter. C. 21-Day Challenge Initiatives: a. Native American/First Nations Issues (Wrapped February 2024) b. Disability Rights Issues (Starting Winter 2025) These 21-Day Challenges will serve to promote awareness and understanding of crucial DEI topics. D. Trial Lawyer Magazine: a. DEI Edition Spring 2024: This special edition of Trial Lawyer magazine dedicated to DEI issues. Future Directions b. "In Our Voices" Inspired Column: A recurring column featuring contributions from attorneys representing underrepresented communities. Inspired by similar initiative from AAJ. E. Engaging Law Students: Collaborating with the Minority Caucus to establish connections with minority law student associations and promote member involvement in presentations to law schools and other bar organizations. The goal is for two events per year at each Oregon law school and continued partnership with OLIO. F. Member Recruitment Video: In progress, a high-quality production highlighting eligibility criteria for membership and the associated benefits, managed under the purview of the Membership Committee. G. Additional Initiatives: • CLE with Happy Hour on Introduction to All Practice Areas: Revitalized “How to Law” CLE open to nonOTLA new lawyers with quick introductions to the practice of multiple types of OTLA Law. Scheduled for June 13. • Badge for Websites: Explore the introduction of badges that members can put on their websites, linking to OTLA. See you at Salishan Lodge OTLA 2024 Convention Aug. 8-10
5 Trial Lawyer • Spring 2024 DIAMOND PARTNERS PLATINUM PARTNERS GOLD PARTNERS Barrister Support Service CC Reporting Columbia/Umpqua Bank Expert Institute Heritage Bank Integrity Legal Nurse Consulting LEX Reception Medical Vocational Planning Paulson Coletti Stoll Berne Trial Guides Vision Office Solutions
6 Trial Lawyer • Spring 2024 By Judge Rima Ghandour Multnomah County Circuit Court My first trip to the United States was when I was 5 years old. My mother and I traveled to Michigan from Beirut, Lebanon, so I could have surgery on my eye. I knew a few words of English — yes, no, water, please. My mother’s English was slightly better than mine but was also limited. The day of surgery, I was terrified. I did not understand what was happening and could not understand what people were saying. When they were ready to roll me into the operating room, I had a meltdown. I physically fought the staff until they had to restrain me. When I made it to the operating room, my doctor noticed the restraints and noticed my doll that made it with me on the stretcher. He calmed me down View From The Bench Hon. Rima Ghandour Heard and understood by using the doll to gesture and explain what he was doing. He took the time to show me he understood my fear. When I woke up from surgery, I had a patch on my eye and so did my doll. I was able to play doctor to my injured doll. I was no longer terrified. I was heard and understood. A lot of my terror could have been alleviated if there had been an interpreter who could explain what they were doing to me in that moment when they tried to wheel me into the OR. Like my experience with eye surgery as a child, trips to the courthouse and dealing with the legal system is a source of stress and confusion for many people. Adding language barriers and unfamiliarity with system processes can amplify all the negative feelings. There are several ways to reduce those negative feelings, and yes, many of them stem from making sure the person is heard and understood. One way to do that: use interpreters. Use of interpreters It is obvious to most attorneys that if a client does not speak English, counsel should engage an interpreter when speaking with them or when they are in any formal proceedings including depositions and court appearances. When a client speaks some English, some attorneys do not engage interpreters and others believe interpreters should not be used. The question often heard in depositions is, “You seem to speak English and understand me, why do you need an interpreter?” Be cautious: this type of question may be a violation of Oregon Rules of Professional Conduct, Rule 8.4, as it could be harassment or intimidation due to a person’s national origin. In addition, even if it is not a violation of ORPC 8.4, a person’s ability to speak and understand a language for everyday use is not the same as understanding and speaking the language for formal and technical issues. It is important for all that the person being questioned, whether in court, a deposition or in an informal interview, be able to fully understand all the technical, precise and nuanced inquiries being made of them. It is also important to remember that
7 Trial Lawyer • Spring 2024 a language may have different dialects that differ greatly. It is important that the dialect used is one the person is comfortable with and can understand. It is also important to not use colloquialisms or pop culture references when asking questions or otherwise speaking because those may not translate properly. Such references may mean different things to different people. One of my favorite deposition memories is when a client answered in Arabic that when they were hit by the car, their “soul left their body.” The defense counsel was very confused and kept asking if they lost consciousness or believed they died. That expression has several meanings in colloquial Arabic, including simply that the speaker was describing a state of being terrified. It took several minutes to sort this out. A final reminder about accents. Do not assume that a person with an accent is not fluent in English. Do not assume. Ask. If a prospective juror has an accent, it does not mean they do not understand what is going on in the courtroom. They may be a great juror pick for you. Do not assume the judge will dismiss for cause simply because you think the person does not understand what is going on. If you are using interpreters, allow for natural breaks for the interpreter to be able to interpret. Also check with the interpreter if they are using continuous or consecutive interpreting and adjust your method of asking questions to the method used by the interpreter. When in court, pay attention to where the interpreter and your client are sitting to minimize distraction for the jury. And, when calculating trial dates or hearing times, make sure you account for the additional time it will take when interpretation services are needed. Practical points If you have a hearing, trial or an arbitration you can request an interpreter from the court. It is your responsibility to request an interpreter from the court. All of the courts in Oregon use this form for interpreter requests — https://orjudicial.workflowcloud.com/forms/f8eb1f8bcfeb-45ae-8218-c59045031a29. You will get a receipt for your request when you use this form. Parties should familiarize themselves with UTCP 7.070. It requires notice to the court as soon as possible but not later than four judicial days in advance of the hearing, trial or arbitration. As a practical matter, the earlier you make the request the better. For trial, you should submit the request before the call for trial. Do not wait till the end of call as it will be hard to find interpreters even for the most commonly spoken languages in Oregon. Many interpreters need to be brought in from out of state. Also, if your hearing or trial is more than two hours, the court endeavors to bring in two interpreters. This requires more time and coordination from the court. You should also be familiar with the Supplemental Local Rules regarding interpreters. For Multnomah County, you should look at SLR 7.071. The court has to pay for these services out of their budget, so if your hearing or trial is cancelled or moved, please let the court know as soon as possible. Fees incur two days before the scheduled event. Also, if the language your client speaks is an indigenous language or a specific dialect, please include that in the form submitted to the court and include where your client is from so the correct interpreter can be found. If you have questions about interpreter services in Multnomah County, you may call 503-986-5688. Hon. Rima Ghandour is a judge at the Multnomah County Circuit Court located at 1200 SW 1st Ave., Portland, OR 97204. Ghandour is the first Arab and Muslim woman judge in Oregon. She can be reached at 971-274-0674 or rima.i.ghandour@ojd.state.or.us.
8 Trial Lawyer • Spring 2024 By Judge Robert Johnson Douglas County Circuit Court Back in law school, I was walking with my good friend Eric Harris from the rec center at U of O, back to his apartment when he asked me, “What are your plans for after you pass the bar exam?” I stumbled through some sort of incoherent rant about having time to figure things out. The truth was that I was in law school and, to that point, really hadn’t considered a career in the law. All I knew was that I had been given an opportunity and considering where I had come from, I wanted to run with that opportunity as far as I could. I recognize that my journey to that point wasn’t entirely well thought through, however, it wasn’t exactly aimless either. The one thing I knew was that I had the chance to change the narrative about what was possible for people who experienced challenging circumstances. From the street I grew up on Portland’s Northeast Alberta Street during the 80s and 90s. During that time, my neighborhood suffered from all the ills of poverty, drugs and gang violence. My parents were both addicted to heroin for much of my life growing up. When my dad left, my mom, brother and I moved across the river into low-income housing in Northwest Portland. I graduated from Lincoln High School with a 1.7 GPA, ranked 321 out of 325 students in my class. Shortly after high school, both my parents died, and I became homeless. I slept in the back of a 1973 Buick Royale that I bought for $100. My only escape from this miserable existence was playing basketball in the parks around Portland. One day, while I was playing ball at Wallace Park, a guy came up to me and asked if I had ever considered playing basketball in college. As you might imagine, college was the furthest thing from my mind. So, I mostly ignored the guy and went on about my business. A few days later my phone rang, and it was one of my childhood mentors who told me that the same guy at the park was a friend of his and they wanted me to take a trip to Roseburg and visit Umpqua Community College (UCC). I wasn’t interested but something told me to take a chance. When we got to the campus, I met the head coach and before I left, he offered me a scholarship to play basketball at UCC. I was still reluctant, but, on the ride back to Portland, I just couldn’t stop thinking about why all of this was happening. After a couple of days, I decided to give it a try. During my first term at UCC, I started to gain some confidence on the court and in the classroom. I met an unbelievable network of people who encouraged me to think about transferring to a university to get a bachelor’s degree. So, I did. After I graduated from UCC, I attended and graduated from Portland State University before being accepted into law school at the University of Oregon where I graduated with my JD in 2014. Following law school, I clerked for the Douglas County Circuit Court for a year and then began my career as a civil litigator in Roseburg. In early 2022, I decided to enter the race for circuit court judge, and on May 17, 2022, I was elected to the bench. A walk with Judge Acosta During my final semester in law school, I had the privilege of externing for the Honorable John Acosta at the U.S. District Court in Portland. As he did with all his externs, Judge Acosta took me to Nordstrom’s to get my shoes shined. On our walk back to the office, I had a profound realization. Nobody who we passed on the street knew who he was. In my eyes then and still today, the man I was walking back from Nordstrom's with was a giant. He’s not just a federal judge, he’s the first Hispanic federal judge in the history of our state. He’s not just a lawyer, he is the standard for professionalism in our state’s bar. He’s not just a mentor, he’s a man who is willing to sacrifice and invest a tremendous amount of himself into those who are coming up behind him to better their lives and our sacred profession. Nobody we passed on the street understood any In Our Voices Hon. Robert Johnson Stepping out
9 Trial Lawyer • Spring 2024 See In Our Voices 10 of that and it had a profound effect on me because up and until that point, I had spent my entire life thinking of lawyers, judges, professors, surgeons as people who I logically knew existed but had no real conceptual idea of who they were or what they looked like outside of how they were depicted on television. They felt inaccessible, blending into the backdrop of the bustling city. The only “professionals” I recognized growing up were gang members, drug dealers, and basketball players. Those were the only folks accessible to me who provided a sense of what success looked like. The Notorious B.I.G. famously rapped about the dearth of options growing up black and in the ghetto on his 1994 hit song “Things Done Changed,” when he professed, “Either you slang crack rock, or you got a wicked jump shot.” Those words sum up the narrow lens that I and scores of my family and friends held for what was possible. And why did we feel that way? Access or, rather, lack thereof. Audacity of hope In 2008, my life changed forever. I was in my second year at Umpqua Community College and trying to figure out what I wanted to do with this opportunity. That is when I was introduced to someone with whom I shared some key attributes and characteristics. Barack Obama’s campaign for President is perhaps the single most important event in my life for breaking down the barriers for what I believed attainable. For a long time, I knew I was relatively intelligent. Even that 1.7 GPA in high school didn’t fool me in to thinking I was inept. However, the single most prohibitive barrier in my life was not believing I had a place in the legitimate landscape of America. Barack Obama changed all of that for me. I followed the primary campaign every night on TV, enthralled with watching a man who I believed could understand me and the things I had gone through. When I looked at him, I saw myself and I saw my friends and family. Even during his presidency, President Obama remained a symbol of access for blacks in this country. You might recall a photo from early in his presidency where he bent down and allowed a fiveyear-old boy named Jacob to touch his hair. Just before that photo was taken, Jacob asked President Obama, “Is your hair like mine?” I believe that the simple act of connecting with Jacob on that level had an impact much more farreaching than simply satisfying Jacob’s curiosity. That act showed that a person’s potential is not limited by the color of their skin or the texture of their hair. That, for me, is what it is all about. Access. And it gave me hope. Access to justice All of that somehow led me to where I am today: a Circuit Court Judge in Oregon’s 16th Judicial District (Douglas County). I am the first Black judge in the history of Douglas County and while I recognize how special that honor is, for me, it more importantly represents a step toward access. That isn’t exclusive to one demographic, either. One of the amazing things I have learned living in rural Oregon for the better part of 20 years is that people, regardless of their cultural identifiers, have a shared desire for connection. Because of this understanding, I have made it a point in my career to prioritize access. So, what is access? In the context for which I’m using the term it means leaving people with the belief and confidence that regardless of the outcome,
10 Trial Lawyer • Spring 2024 they’ve been seen, heard and understood. Those things should not be reserved for any class of person. Instead, those of us entrusted with the privilege of serving in the legal field must ensure that everyone regardless of gender, race, wealth or education, receives this experience in the law. I believe we do that in Oregon. One of the things I love most about being a member of the legal community in Oregon is that access is a priority. From the state bar to the Supreme Court to the law schools and local bars around the state, we have incredible people who share a desire to make the legal system more accessible. I have personally benefitted from programs like Opportunities for Law in Oregon (OLIO) and the OTLA Leadership Academy. These programs take law students and young lawyers and introduce them to a network of people and professionals who are willing mentors. I often describe the Oregon Bar as a gigantic law firm in that when you need guidance on an issue, you can often pick up the phone and call a colleague who is 400 miles away just as easily as you can walk 40 feet down the hall to one of the partners in your firm. I haven’t practiced in any other states, but I imagine the connectivity of our bar is rare and I hope we protect it with all that we have. See themselves If you were to walk into my chambers, you’d see a wall filled with things I love and care about. You’d see my family, artifacts from Disneyland, pictures of me with friends, a map of the state of Oregon, pictures of my dogs, and a section reserved for Kobe Bryant memorabilia. Just a few days ago, my judicial assistant asked me why I hadn’t hung up any of my accomplishments on my wall. I told her that people already know that I’m a judge and have accomplished things. What they don’t necessarily know is that I, like them, have heroes, love my dachshunds, and enjoy riding rollercoasters. I don’t want them to see me, I want them to see themselves. After all, access is one of the cornerstone concepts of our profession and while we continue to make efforts to increase access to justice, it remains a challenge. However, understanding this is half the battle because as long as we recognize that there is more work to do, we can continue to scrutinize our contributions to this incredible profession in an effort to make sure that everyone has access to justice. Hon. Robert Johnson is a Circuit Court Judge in Douglas County located at 1036 SE Douglas, Roseburg OR 97470 He is a former member of OTLA Guardians and graduated from the OTLA Leadership Academy. Before taking the bench, Judge Johnson was a partner at Dole Coalwell in Roseburg. He can be reached at 541-9572419, ext. 70973 or robert.b.johnson@ojd. state.or.us. In Our Voices Continued from p 9
11 Trial Lawyer • Spring 2024 By Lisa T. Hunt Diversity, equity and inclusion. The individual words are not new. Their existence together as a phrase representing a societal and political aspiration, a corporate concern in human resources departments and job training, or a course or degree offering in higher education, is related to 2020s BLM, MeToo and Stop Asian Hate movements, among others.1 Historically, however, their origins and concerns for social justice and equality are most closely attributed to the early 60s and 70s civil rights movement.2 Federal civil rights In 1963, various civil rights and labor organizations participated in the March on Washington for Jobs and Freedom to “spotlight economic inequalities and press for a new federal jobs program and a higher minimum wage,” and to ensure “passage of the Civil Rights Act, full integration of public schools, and enactment of a bill prohibiting job discrimination.”3 Its chief organizer was a gay African-American man, Bayard Rustin,4 who, in a short time, drew the participation of over 250,000 people to gather at the Lincoln Memorial on August 28, 1963 where they were inspired by the words of Dr. Martin Luther King and the voice of Mahalia Jackson, among others.5 The march concluded with a personal pledge to “join and support all actions undertaken in good faith in accord with the time-honored democratic tradition of non-violent protest, of peaceful assembly and petition, and of redress through the courts and the legislative process * * * [for] the achievement of social peace through social justice.”6 The following year, Congress passed the Civil Rights Act, Public Law 88-352, prohibiting discrimination on the basis of race, color, religion, sex or national origin in employment as well as public accommodations and federally funded programs.7 It further sought to strengthen and enforce voting rights and the desegregation of schools.8 The Voting Rights Act passed in 1965, prohibiting discrimination in voting on the basis of race, color or language minority status. The Fair Housing Act passed in 1968, prohibiting discrimination in housing on the basis of race, color, religion, sex or national origin. Title IX was codified in 1972 to prohibit discrimination on the basis of sex in education. And in 1973, the Supreme Court decided Roe v. Wade, acknowledging the rights of women to have access to safe and legal abortions. In contrast, the 1923 Equal Rights Amendment languished in every session of (a male-dominated) Congress until March 1972 when it passed both chambers and was sent to the states for ratification by the requisite three fourths (38) of the (50) states.9 It set forth a seemingly simple requirement: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.10 The ERA sought primarily to prohibit discrimination by ensuring that gender would be a suspect classification requiring a “strict scrutiny” standard of review.11 Only 35 of the requisite 38 states voted for ratification in the early 70s; the final three votes were issued by Nevada in 2017, Illinois in 2018, and Virginia in 2020.12 Enactment into law continues to face legal challenges.13 Some argue that the requisite majority was untimely reached, some states now wish to rescind their earlier ratification vote, and some argue for an alternative ratification and codification process.14 Lisa T. Hunt OREGON’S Long and Winding Road See Winding Road p 12
12 Trial Lawyer • Spring 2024 Winding Road Continued from p 11 Similarly stalled at the federal level were the rights and freedoms of people on the basis of sexual orientation. In 1996, Congress passed The Defense of Marriage Act (DOMA), defining marriage as only between a man and a woman.15 The so-called “morality” laws of the states, essentially used to criminalize homosexuality, weren’t struck down until 2003 when the Supreme Court decided Lawrence v. Texas.16 In 2013, the Supreme Court struck down DOMA.17 While directing the dismantling of the Act and related laws, President Obama declared: This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal — and the love we commit to one another must be equal as well. That same year, President Obama posthumously awarded Bayard Rustin the Presidential Medal of Freedom for fighting “tirelessly for marginalized communities” and for standing “at the intersection of several of the fights for equal rights * * * as an openly gay African American.”18 Soon thereafter, the governor of California posthumously pardoned Bayard Rustin’s 1953 conviction for violating that state’s morality law, noting that “California, like much of the nation, ha[d] a disgraceful legacy of systematically discriminating against the LGBTQ community.”19 Still, it wasn’t until 2015 that the Supreme Court decided Obergefell v. Hodges, making marriage equality the law of the land.20 Conversely, on April 27, 2023, Senate Republicans voted to block a measure that would have allowed the ERA to be added to the Constitution.21 Oregon’s disgraceful legacy Long before Oregon became a state, it enacted laws to ensure it would be a “white racist utopia.”22 Indeed, Portland is still known as the “whitest big city” in the country.23 From 1844 through statehood, Oregon had laws prohibiting African Americans from being in the state longer than three years, or newly entering or residing in the state.24 The Oregon Constitution was drafted expressly to prohibit African Americans from owning property and making contracts.25 Although Oregon had the nation’s 2nd largest Chinese population from 1880 to 1910, and the 3rd largest Japanese population from 1900 to 1940,26 Asians did not fare much better. During the Exclusion Era from 1882-1943, Chinese people were precluded from legally entering the U.S. and Chinese women were particularly excluded as being “immoral.”27 Those already settled in Oregon were exploited for labor, but denied citizenship, “discriminated against in housing, banned from attending public schools, entering professions, and serving on juries, and not allowed to vote or hold office.”28 Similarly, Japanese immigrants were not allowed to become citizens, however those born in the U.S. were.29 In 1940, when Oregon’s population was still 98.7% white,30 there were 4,701 Issei (first generation Japanese American) and Nisei (second generation Japanese American) residing in the state, with Portland being home to the largest concentration of 1,680 Japanese Americans.31 What is now Portland’s “Old Town” was Japantown, as were areas along the southwest waterfront.32 During WWII and before Roosevelt issued Executive Order No. 9066, the “enemy aliens” immediately faced restrictions on their travel, engagement in business and conduct. Portland became the “national leader” in restricting Japanese American activities with 80% of Portlanders “favor[ing] the immediate removal of ‘all enemy aliens.’”33 Oregon uprooted and
13 Trial Lawyer • Spring 2024 transferred Japanese Americans to three different “camps,” only one of which was located in Oregon.34 Oregon’s Hispanic populations in the early Oregon territory were naturally comprised of early Spanish settlers and Mexican immigrants.35 Oregon has had a somewhat bipolar relationship with Mexicans in particular.36 In the early 1900s, Oregon needed and welcomed the inexpensive labor of Latinos to build its railroads and work its farms.37 By the 1930s, however, Mexican Americans, Mexican nationals and Latinos were blamed for the economic fallout from the Great Depression, leading to massive deportation efforts.38 During WWII, Oregon had another mood swing and actively recruited Mexican men to alleviate the farm labor shortage and to work the railroads.39 When the war ended, Oregon returned to its massive deportation efforts under the Eisenhower-era militaristic campaign called “Operation Wetback.”40 As the Oregonian explained on May 15, 1953, “Oregon gets its share of the illegal hordes of wetbacks who sneak across the border to collect the American dollars U.S. farmers are glad to pay them.” White Oregon grows a conscience Oregon enacted its Public Accommodations Bill/Civil Rights Bill in 1953,41 which mirrors the federal civil rights law and ensures that “[a]ll persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement, without any distinction, discrimination or restriction on account of race, religion, color or national origin.”42 Half a century later, the white population had only decreased to 89.3% in the year 2000, and 87.1% in 2010.43 The legislature expanded the protections of the law to include sexual orientation in 2007, age in 2013 and gender identity in 2021.44 However, in 2022 Oregon is holding steady at 87.42% white and is the eighth whitest state in the U.S.45 Nationally, the push-back to the civil rights era manifested in extremist groups such as the Moral Majority, a farright religious group,46 and the neo-nazi group led by Tom Metzger, White Aryan Resistance (WAR).47 Oregon saw its share of that extremism. In November 1988, Lon Mabon’s anti-gay group, the Oregon Citizen’s Alliance (OCA), managed to sway a majority of Oregon voters to pass Measure 8 and revoke the Governor’s executive order banning discrimination on the basis of sexual orientation by state employers.48 On November 13, 1988, three skinhead members of East Side White Pride Gang, an affiliate of WAR, attacked three Ethiopian men in southeast Portland. One of those men, Mulugeta Seraw, was killed after being repeatedly beaten with a baseball bat and kicked with steel-toed boots.49 In the 1992 decision in Merrick v. Board of Higher Education, the Oregon Court of Appeals struck down OCA’s Measure 8, then codified at ORS 236.380, as unconstitutional.50 The following year, in 1993, the Oregon Court of Appeals affirmed the jury’s $12.5 million damages award in the wrongful death action brought by Mulugeta Seraw’s estate against Tom Metzger.51 The right to marry In early 2004, Multnomah County determined that Oregon’s marriage statutes do not expressly prohibit same-sex marriage, but if they did, the statutes violate Article 1, section 20 of the Oregon Constitution, guaranteeing equal privileges and immunities for all citizens or class of citizens.52 Thereafter, the county issued approximately 3,000 marriage licenses to same-sex couples and the governor thereafter intervened.53 Following a lawsuit and appeal, the Oregon Supreme Court concluded that Oregon’s statutes limit marriage to a male husband and female wife and that Multnomah County’s marriage licenses to same-sex couples were void.54 In 2013, after the U.S. Supreme See Winding Road p 14 Oregon has a long history of being unfriendly to non-whites.
14 Trial Lawyer • Spring 2024 Winding Road Continued from p 13 Court struck down DOMA, the Oregon District Court issued its decision in Geiger v. Kitzhaber.55 The Geiger court declared that “there is no legitimate state interest that would justify the denial of the full and equal recognition, attendant rights, benefits, protections, privileges, obligations, responsibilities, and immunities of marriage to same-gender couples solely on the basis that those couples are of the same gender.”56 The final death knell for the homophobic siege on same sex marriage came the following year when the U.S. Supreme Court concluded (1) the right to marry is a fundamental right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, (2) same-sex couples had a right to marry and (3) states must recognize lawful same sex marriages performed in other states.57 The tides have turned It’s not news that recent times have demonstrated sharp downturns in the area of social justice and equality. AntiMuslim and Arab hate crimes spiked after 9/11, spiked again in 2016 when Trump became president, and have never fallen below pre-2011 numbers since.58 On May 25, 2020, George Floyd was killed by Minneapolis police and protests erupted across the country followed by solidarity protests around the world.59 Trump, the self-proclaimed president of “law and order,”60 used Portland as a testing ground for his authoritarian rule and deployed federal troops to tamp down, nay, smother, the crazy liberal protestors in Portland.61 Since 2020, bias-motivated and hate crimes have been on the rise.62 From 2020 to 2021, African Americans were still being targeted in numbers far greater than other underrepresented populations; however, the steepest percentage increase in hate crimes befell Asian and LGBTQ communities, which
15 Trial Lawyer • Spring 2024 respectively suffered a 167% and 70% increase over that single year.63 By 2022, the U.S. DOJ showed hate crimes aimed at sexual orientation and gender identity continuing to disproportionately rise.64 Oregon’s DOJ cites the “mainstreaming of extremist rhetoric [a]s a leading factor in the recent rise of bias and hate in Oregon.”65 Accordingly, and because many incidents go unreported to law enforcement, the Bias Response Hotline was created in 2020.66 Since that time, hotline reports of bias-motivated incidents, inclusive of hate crimes, increased 178% by 2022.67 Here, too, a recent Oregon DOJ report showed: Anti-Black/African American bias remains the largest category of biasmotivated reports in 2022, making up nearly 1 in 4 reports submitted to the Hotline. Religious-motivated bias reports also increased year over year, from 66 in 2020 to 251 in 2022, with antisemitic/anti-Jewish bias the leading contributor in that category (75% of all religious-motivated bias reported). In addition, anti-LGBTQIA2S+ bias reporting is also up, with an increase in reported gender identity-based bias of 639% since 2020 and an increase in reported anti-sexual orientation bias up 430% since 2020.68 On June 24, 2022 the U.S. Supreme Court overturned Roe v. Wade;69 in that attack on a woman’s constitutional right to privacy, the decisions in Lawrence v. Texas (laws criminalizing sex by same-sex couples unconstitutional) and Obergefell v. Hodges (same sex marriage as a fundamental right) also became vulnerable.70 While that Court has resisted prior challenges to The Voting Rights Act, that law continues to be under attack, most recently by a Trump-appointed federal appellate judge in the Eighth Circuit.71 The enforcers Now, more than ever, Oregon must rely on our champions of social justice to protect the interests and rights of our underrepresented populations as mandated by state and federal law. Those champions include organizations like the ACLU, Basic Rights Oregon and BOLI, and include OTLA’s civil rights and employment law practitioners. For example: • The ACLU has regularly supported LGBTQ rights in multiple cases,72 including the defeat of the OCA’s Measure 8 in Merrick v. Bd. of Higher Educ. (2022) and in the same sex marriage cases. (Charles Hinkle briefed and argued Merrick; practitioners on the same sex marriage cases included, among others, Justice Lynn Nakamoto, Lake Perriguey, Misha Isaak and Jennifer Middleton.) • BOLI has instituted its actions against discriminatory owners of public accommodations and employers. Klein v. Oregon Bureau of Lab. & Indus., 317 Or App. 138 (2022) (Sweet Cakes owners may not refuse service to same sex couple by asserting religious beliefs) (this decision has been vacated a second time by the U.S. Supreme Court on 6/30/2023); Frehoo, Inc. v. Bureau of Labor and Industries, 319 Or App 548 (2022) (strip club subjected underage girls to hostile work environment and sexual harassment) (related civil case for sex trafficking initiated by Joel Shapiro). In 2018, the Labor Commissioner filed suit against the Legislature for sexual harassment of nine women working at the Capitol.73 The case settled the following year for $1.3 million.74 • The Kafoury McDougal firm regularly brings unlawful discrimination cases, often under ORS 659A.403, among other claims. Wakefield v. Jackson Food Stores (2023) (jury awarded $450,000 in damages and $550,000 when gas station refused to “serve Black people”);75 Mangum v. Walmart Inc. (2022) (jury awarded $400,000 in damages and $4,000,000 in punitive damages for Walmart employee’s unlawful racial discrimination and profiling of African American man); Massey v. DW Portland, LLC (2019) ($3,000,000 in noneconomic damages alleged for false arrest and race discrimination in action against Doubletree Hotel for engaging police to escort an African American guest from the property for “loitering” in the hotel lobby while on a call with his family.) • The Albies Stark and Guerriero firm actively pursues discrimination cases often addressed to issues of equity. Ramos Gonzalez v. Gerstenfeld is a currently pending action against the Oregon Employment Department brought by its former lead policy analyst in the paid leave program, attorney Isela Ramos Gonzalez; the claims include allegations of a hostile work environment and discrimination based on race, ethnicity and gender.76 Equivel-Figueroa v. Benton County, is a 2022 action alleging that a non-binary person was discouraged in seeking further employment with employers calling their employment “disastrous” due to gender issue “hypersensitivity.” Foster v. OHSU, filed in 2020, alleged that OHSU discriminated against then unlawfully fired its Chief Nursing Officer for being such an “angry black woman.”77 The next year the firm, together with the Sugerman Dahab law firm, among others, filed the 2021 Richards v. OHSU class action, alleging that minority employees were fired and disciplined at a disproportionately higher rate than their white counterparts.78 • Caitlin Mitchell and Jennifer Middleton at the Eugene firm, Johnson Johnson Lucas & Middleton, actively protect issues of gender identity and equity. For example, in the case of Kelsy v. Greater Albany School Dist. 8J, a nonbinary child was severely bullied in the third and fourth grade when they began to identify as genderfluid. See Winding Road p 16
16 Trial Lawyer • Spring 2024 Winding Road Continued from p 15 The school took no corrective actions other than to isolate the child further at the expense of their mental health. Under claims filed under the federal equal protection clause, 42 USC §1983, Title IX, and ORS 659.850 (differential treatment on the basis of sex and sexual orientation), the school district avoided a claim for punitive damages and settled the case. • Discrimination on the basis of gender and gender identity have also been addressed in various other cases. In the Matter of Blachana, LLC, Opinion and Order Case No. 25-13 (2013) (Club owner fined for unlawfully discriminating against and seeking to exclude the Rose City T-Girls, a social club of persons who identify as “transfeminine individuals” including crossdressers and “pre-op, post-op and non-op transgender women”79); Pelusi v. Oregon Dept. of Human Svcs. (Julie D. Reading and Richard Myers filed this 2023 complaint alleging claims of hostile work environment and discrimination responsive to plaintiff transitioning to female);80 Jansen v. Deschutes County (2020) (Attorneys Christina Stephenson and Whitney Stark settled claims of gender discrimination and retaliation against the Deschutes County sheriff on behalf of a female deputy);81 and Montgomery v. State (2019) (Charese Rohny filed this action on behalf of interns working with the Legislature at the time it was under fire for sexual harassment).82 Conclusion While the battle for a truly diverse, equitable and inclusive society rages on, the DEI concept will continue to be aspirational. True inclusion, for example, requires not only giving people from diverse backgrounds a seat at the table, but embracing their identity however it authentically presents as they sit there. Until that happens, diversity and equitable treatment is merely tokenism or something obtained through the force of law or policy. A truly diverse, equitable and inclusive society simply cannot happen when we continue to dole out rewards primarily to those who look and sound more white, more male, more straight, less ethnic, less poor or less outside of the dominant paradigm. No amount of DEI workplace trainings, CLEs or mission statements will alter that. But, we can keep trying. We can aspire. Lisa T. Hunt is a diversity and inclusion certified practitioner specializing in appeals and briefing support for trial attorneys. Recent practice areas include remedy clause challenges, UM/UIM coverage, personal and business injury, dram shop statutes, discovery disputes and privilege, Oregon’s wage and hour law, and product and premises liability. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503515-8501 or lthunt@lthuntlaw.com. 1 https://insights.grcglobalgroup.com/the-historyand-growth-of-the-diversity-equity-and-inclusion-profession/ https://sites.lsa.umich.edu/leadership-institute/2021/06/25/the-history-of-diversity-inhigher-education-ali-series-part-i/ 2 Id.; https://academyhealth.org/sites/default/files/ publication/%5Bfield_ date%3Acustom%3AY%5D-%5Bfield_ date%3Acustom%3Am%5D/deiglossary_ nov_2021_1.pdf 3 https://www.si.edu/spotlight/1963-march-onwashington 4 https://nmaahc.si.edu/bayard-rustin 5 https://www.si.edu/spotlight/1963-march-onwashington 6 Id. 7 https://www.dol.gov/agencies/oasam/civil-rightscenter/statutes/civil-rights-act-of1964#:~:text=The%20Civil%20Rights%20 Act%20of%201964%20prohibits%20discrimination%20on%20the,hiring%2C%20 promoting%2C%20and%20firing 8 Id. 9 https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained 10 Id. 11 https://www.equalrightsamendment.org/why 12 https://www.equalrightsamendment.org/era-ratification-map 13 https://womenshistory.si.edu/spotlight/era
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