An Endangered Species : Discrimination Law a Losing Proposition, Says Attorney Pat Barry
California lawyer Patricia Barry gained national fame in 1986 when she argued the landmark case Meritor Savings Bank vs. Vinson all the way to the U.S. Supreme Court, the only sexual harassment case ever heard by the nation’s highest judiciary.
And although her name is far from becoming a household word, in her specialized field of law Barry has an impressive track record: of 70 often long-odds cases, she has won or reached a settlement in more than half of them.
But, after 13 years of arguing discrimination and civil rights cases, Barry is, in fact, broke and taking on no more such litigation.
Her situation is indicative, she says, of what happens to civil rights attorneys--the lawsuits last for years and you can’t make a living wage from them. In February, she filed for Chapter 7 bankruptcy.
“Civil rights has destroyed me,” said Barry, 45, who operates out of a cramped one-woman law office in Arroyo Grande, a small coastal town about three hours north of Los Angeles.
As she sees it, the Vinson case perfectly demonstrates the time and financial pressures that are driving sex discrimination lawyers such as herself out of the field.
Ligitation Started in 1979
Barry, who grew up in the Pico Rivera area, began litigating the Vinson suit in the summer of 1979 while working as a lawyer in Washington. She returned to California in September, 1982, and continued to represent her client, Mechelle Vinson, a bank teller who charged that her supervisor had made “unwanted sexual advances at work and unwanted sexual activity as a requisite” of her job.
Vinson was the original plaintiff, but by the time the case got to the Supreme Court, the bank had become the petitioner.
In its unanimous 1986 Meritor vs. Vinson decision, the Supreme Court ruled in favor of Barry’s client that sexual harassment in the workplace constitutes sex discrimination under Title VII of the Civil Rights Act of 1964, and remanded the case to Judge John Garrett Penn of the U.S. District Court, District of Columbia, to resolve it and determine the employer liability. To date, Penn has not issued a ruling.
“It’s very hard to defend these civil rights lawsuits because they go on for an interminable amount of time and they’re very costly,” she said. “Most of the people you represent are working people and they don’t have the kind of money lawsuits like these cost.”
All in all, Barry said, she has worked on the Vinson case for eight years without fees. Since it is still unresolved, Barry is still unpaid. (Despite repeated attempts, The Times was unable to reach Judge Penn or his staff for a comment on the pending ruling.)
For her part, Barry thinks Penn’s failure to rule yet on the case is a form of “gender discrimination that spills over into the courtroom” when women seek judgments and damages in civil rights cases.
Judith Vladeck, a New York lawyer who has been arguing discrimination cases for nearly 20 of her 40 years as an attorney, is in agreement with Barry about women’s discrimination cases.
“Either from ignorance or fear of losing their toehold in the middle class, people are afraid to fight, afraid to protest,” Vladeck said during a telephone interview.
“Women aren’t fighting anymore. They think it’s over. The courts are rotten now. They think it’s over, too. The judges, especially in the federal courts, don’t like to hear these women’s cases. They’re back to ‘what do the women want.’ They think it’s beneath the dignity of these very important judges to hear these cases. I am not overstating. It’s a sad report.”
Such sexual harassment cases also cause hardships to those who sue. Vinson, for instance, says she has been “blackballed” in the banking industry since her case began. She filed for bankruptcy in 1980 and in 1982 returned to live with her parents in Washington.
“I know what Pat is going through, because I’ve been there,” Vinson said in a telephone interview from Washington. “Pat was a very gutsy woman to stand up with me and believe in me. But it takes a lot out of you to do this.”
With the help of a student loan, Vinson enrolled in nursing school at Marymount University in Arlington, Va., but recently had to drop out because of finances.
“Going through a case of sexual harassment and trying to rebuild your life after that is very very diffi-cult,” she continued. “Once corporations know you’ve charged sexual harassment, they don’t want to touch you. They look at you as a black dot.”
In November, 1987, nearly a year and a half after the Supreme Court’s unanimous decision in her client’s favor, Barry “filed a complaint with the Court of Appeals for the District of Columbia Circuit charging that Judge Penn was taking reprisal against Ms. Vinson and me by refusing to rule on these motions.” However, the Court of Appeals dismissed her complaint, saying that Judge Penn’s failure to rule “was insufficient proof of reprisal against me or my client,” Barry said.
Upon hearing of Barry’s financial woes, Vladeck expressed her sympathy, adding: “If that were my position, as a sole practitioner, I couldn’t do it either. Generally speaking, the people claiming discrimination don’t have any funds. . . . Then you’re up against major corporations and white-shoe law firms who are smart enough to know they can litigate these plaintiffs to death. A lawyer doing these cases either has to be committed or crazy. The ones who do this as sole practitioners get driven out by starvation.”
“I never dreamed judges would be as hostile as they are toward civil rights cases,” Barry said recently, sitting behind a well-worn wooden desk given to her by a client.
Suits Drag On
“I was very naive,” she continued. “These cases are so complex and they drag on forever. There are excessive delays, and the judges seem ready to penalize civil rights attorneys at the drop of a hat.”
Vladeck, whose firm has 30 attorneys on staff, said that discrimination lawyers are becoming “an endangered species” in light of the length of the cases and the low pay. She said that she is able to take on such cases herself because of a continuing base of union and commercial clients.
“In the early days, the courts were recognizing that lawyers taking these cases were making sacrifices and taking risks,” said Vladeck. “They gave add-ons to the fees. But not any more. Then, if you are this type of lawyer, you scale down your fees because your clients can’t afford it and you get classified as a low-income lawyer. A judge will type you as a $100-an-hour lawyer, while the other side gets $250 (per hour).”
Dan Stormer of Litt & Stormer, a Los Angeles public-interest law firm where 11 attorneys handle 60%-70% of cases in the public-interest field, said: “Nobody here is going to get rich quick, but we’re doing reasonably well. But it’s very hard for sole practitioners to be able to bear the cost of these cases between paydays. I definitely wouldn’t want to try that on my own.
“With these types of cases you have to figure you’re going to survive on what you win for the defendants, not on what the clients can pay,” Stormer added. “Most of them have lost their jobs or been kept in a lower position because of race, sex or handicap. A complex case can cost from $10,000 to hundreds of thousands of dollars.”
Cases More Difficult
“These cases have become much more difficult over the years,” said Los Angeles attorney Gloria Allred, whose firm has 15 lawyers. “And there are relatively few attorneys handling them compared to the demand.”
Most discrimination cases, said Allred, are taken by lawyers on a contingency basis or on a limited contingency with some retainer. “These cases take an enormous commitment of time and the recoveries are risky,” she said. “I don’t know how anybody can do it alone. I know I couldn’t do it by myself. I admire anybody who does. But you are going against government--city, county, state or federal-- against major employers, Fortune 500 companies and banks. Many get hard-nosed and will fight until the end, so the cases go on year after year.”
For Barry to have to give up taking civil rights cases, Allred said, is intolerable. “For Pat not to be able to help people anymore is an outrage. She is a real asset to the women’s movement. So few women lawyers are in this area, because they’re afraid of starving to death.”
Because of her notoriety in the Vinson case, Barry has had calls from women across the country asking her to represent them in their sexual harassment suits, but she has turned them down, citing her financial problems.
Last year, before filing bankruptcy, Barry moved to her parents’ home in Shell Beach, a few miles from her office, saying she couldn’t afford both her apartment and her office.
No Financial Rewards
The few California sexual harassment and/or discrimination cases Barry has taken have done little to improve her monetary status.
Barry said she has devoted more than 965 hours to the Hollywood vs. City of Santa Maria case and “there is no end in sight.” Representing Marian Hollywood, secretary to a department head in the Santa Maria Department of Recreation and Parks, in a discrimination suit, Barry won a jury verdict of $112,000 in July, 1986. Hollywood claimed that she was receiving lower pay as a female than a male doing a similar job, and was retaliated against after she filed suit. But a district judge did not enter the verdict on record and insisted on a second trial, which Barry lost. The case is now on appeal before the Ninth Circuit Court of Appeals.
Meanwhile, Hollywood has spent $25,000 on her case in the last five years and is having financial problems continuing it. A grandmother who lives alone in Santa Maria, Hollywood said she wants to continue the lawsuit out of principle. “It’s a women’s pay equity issue and that’s why I did it,” she said. “Because I felt women should be paid as much as men. But the things both Pat and I have had to endure in court have just made me so upset. We’ve been through hell. How did I win and end up like this?”
Many Hours Invested
Barry has committed countless hours on other current cases involving sexual harassment: one representing four women correctional officers against the California Department of Mental Health and Atascadero State Hospital; another, a female bank manager and vice president in Pomona; a third, a South Bay nurse who charged a surgeon with sexual harassment at the hospital.
Barry, who was married in the mid-1960s and divorced in 1973, began her law career late in life, graduating from UCLA law school in 1973.
“I didn’t pass the bar the first time,” she said. “But I was trying to do too much at once. I was going to law school and teaching and trying to raise my son alone.” (Her son, Frank Batchkoff, was graduated from UCLA in 1986.)
The oldest of seven children of Peggy and Frank Miklas, Barry adopted her maternal grandmother’s maiden name when she became a lawyer. “I wanted to take the name of a woman who was important to me,” Barry said. “It was a feminist gesture too.”
Barry considers herself a strong attorney and has gotten in trouble in court because, she says, “I was scrappy.” During one case, she was cited for contempt, convicted and fined $3,500. “It is now impossible for me to pay that, so I may go to jail,” she said.
Public Defenders Needed
Allred believes that there should be government lawyers appointed to defend women or men in sex discrimination cases, just as public defenders are appointed to defend criminals who cannot afford legal counsel. “The government should appoint a lawyer to defend a women if there is probable cause of sexual discrimination,” she said. “If a woman does not have access to her rights, then she will have no rights.”
Now that she’s giving up civil rights law, Barry plans to see her current cases through and then wants to start a legal clinic for people who can’t afford lawyers.
“Most of the work would be given to paralegals to pound out and then I would serve as the legal consultant,” Barry said. “Some friends are going to help me get it started, since I don’t have the money to do it. I really want this to work. It’s a reasonable alternative to the legal system as it is now.”