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Summer 2015

California Minority Counsel Program Diversity Matters eNewsletter Summer 2015 Issue

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CMCP Diversity Matters<br />

<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

MINORITY<br />

<strong>Summer</strong> <strong>2015</strong><br />

1


CMCP Diversity Matters<br />

<strong>2015</strong> eNewsletter Committee Members<br />

Tambry L. Bradford<br />

(Co-Chair)<br />

Special Counsel<br />

Pepper Hamilton LLP<br />

Cassandra Mougin<br />

(Co-Chair)<br />

Shareholder<br />

Pettit Kohn Ingrassia & Lutz, PC<br />

Michael Chung<br />

Of Counsel<br />

Willenken Wilson Loh &<br />

Delgado LLP<br />

Karen A. Henry<br />

Counsel<br />

Davis Wright Tremaine LLP<br />

Noah Perez-Silverman<br />

Associate<br />

Caldwell Leslie & Proctor, PC<br />

Kelly Perigoe<br />

Associate<br />

Caldwell Leslie & Proctor, PC<br />

David Shimkin<br />

Member<br />

Cozen O’Connor<br />

Jonathan M. Turner<br />

Partner<br />

Epstein Turner Weiss<br />

1


<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

Table of Contents<br />

page 3<br />

page 4<br />

page 7<br />

Meet Your New CMCP Board Members –<br />

Attorney Spotlights Series Spotlight:<br />

Camilo Echavarria<br />

A Tale Of Two Public Entities:<br />

What Employers Can Learn About<br />

The Feha Accommodation Process<br />

Business Development Series:<br />

Is it Time for a Mid-Year Correction?<br />

page 9<br />

page 11<br />

page 14<br />

page 15<br />

125 Years Later, CA Supreme Court Grants<br />

Membership Posthumously to First<br />

Chinese-American Lawyer<br />

Women@the Table Panel 1:<br />

“Hit or Miss? Women Lawyers’ Litigation and Trial<br />

Strategies”<br />

Trend to Limit ADA and FEHA Definitions of<br />

Disability Attributed to Behavioral Disorders<br />

Affecting Work Relations?<br />

Diversity Calendar<br />

Mark Your Calendars for Upcoming Diversity Events<br />

2


MEET YOUR NEW CMCP BOARD MEMBERS<br />

CMCP Diversity Matters<br />

ATTORNEY<br />

SPOTLIGHT ON<br />

CAMILO ECHAVARRIA – Partner, Davis Wright Tremaine LLP<br />

By: Karen A. Henry, Counsel, Davis Wright Tremaine LLP<br />

In this short interview, CMCP eNewsletter Committee Member Karen A. Henry of Davis Wright<br />

Tremaine, introduces the CMCP membership to one of the new members of CMCP’s Board of<br />

Directors: Camilo Echavarria, a partner at Davis Wright Tremaine LLP.<br />

This video will open a new webpage.<br />

Karen Henry is an attorney in Davis Wright Tremaine LLP’s Los Angeles office. She maintains a broad and diverse practice, focusing<br />

primarily on media, IP, and entertainment law. For more info about Karen, click here.<br />

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<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

A Tale Of Two Public Entities:<br />

What Employers Can Learn About<br />

The FEHA Accommodation Process<br />

By: Andrew I. Chung, Associate, Pettit Kohn Ingrassia & Lutz, PC<br />

Finding the right accommodation<br />

for a disabled employee can<br />

be a difficult task under the<br />

Fair Employment and Housing<br />

Act (“FEHA”). An employer’s<br />

accommodation obligations are<br />

broad, and litigation can ensue<br />

when there is a breakdown in the<br />

accommodation process. Two<br />

recent appellate decisions involving<br />

public entities, however, provide<br />

employers with guidance on how<br />

to better approach an employee’s<br />

request for accommodation.<br />

Where The Employer’s<br />

Accommodation Efforts<br />

Fall Short<br />

In Swanson v. Morongo Unified<br />

School District (2014) 232 Cal.<br />

App.4 th 954, as modified on<br />

denial of reh’g (Dec. 23, 2014),<br />

a teacher sued a public school<br />

district (“District”) alleging that<br />

her employment contract was<br />

not renewed because of her<br />

breast cancer and related medical<br />

leaves.<br />

After the Plaintiff-teacher was<br />

diagnosed with cancer, the<br />

District afforded her a prolonged<br />

leave of absence to care for her<br />

condition. Upon her return from<br />

leave, the District and Plaintiff<br />

discussed an appropriate<br />

classroom assignment. The<br />

District recommended an<br />

assignment to a 5 th grade class,<br />

while Plaintiff requested to teach<br />

the 2 nd grade because she had<br />

taught that level before and was<br />

familiar with the curriculum.<br />

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5<br />

CMCP Diversity Matters<br />

Plaintiff expressed that she<br />

was concerned that her cancer<br />

treatments would inhibit her<br />

ability to prepare and plan<br />

lessons for a new assignment.<br />

The District ultimately assigned<br />

Plaintiff to teach kindergarten.<br />

After another short medical leave<br />

and return to work, the District<br />

evaluated Plaintiff’s in-class<br />

instruction as part of its annual<br />

review of all teachers. Plaintiff’s<br />

performance was rated poor, and<br />

her contract was not renewed<br />

because of the unfavorable<br />

evaluation.<br />

Plaintiff sued the District under<br />

FEHA, alleging that the District<br />

discriminated against and failed<br />

to accommodate her. Relying on<br />

Raine v. City of Burbank (2006) 135<br />

Cal.App.4 th 1215, 1222–1223, the<br />

trial court held that the District’s<br />

accommodation efforts were<br />

sufficient because the District had<br />

no obligation to choose either the<br />

best accommodation for Plaintiff<br />

or the specific accommodation<br />

that she sought. The Fourth<br />

Appellate District disagreed,<br />

however, holding that the law<br />

imposes an affirmative duty on<br />

employers to reassign a disabled<br />

employee to an already funded,<br />

vacant position at the same<br />

level. Swanson, supra, 232 Cal.<br />

App.4th at p. 970 (citing Spitzer<br />

v. The Good Guys, Inc. (2000)<br />

80 Cal.App.4 th 1376, 1389). The<br />

Court found it significant that the<br />

2nd grade position that Plaintiff<br />

requested was vacant at the time<br />

of her request. Moreover, the<br />

Court held that the District should<br />

have afforded Plaintiff preferential<br />

consideration when considering<br />

her request to teach the 2nd<br />

grade. Swanson, supra, 232 Cal.<br />

App.4 th at p. 970 (citing Jensen v.<br />

Wells Fargo Bank (2000) 85 Cal.<br />

App.4th 245, 265).<br />

Where The Employer’s<br />

Accommodation Efforts<br />

Are Sufficient<br />

Contrary to the result in Swanson,<br />

the Second Appellate District<br />

affirmed summary judgment<br />

for an employer in Nealy v. City<br />

of Santa Monica (<strong>2015</strong>) 234 Cal.<br />

App.4 th 359. Similar to Swanson,<br />

Nealy involved a lawsuit where<br />

the plaintiff alleged disability<br />

discrimination and failure to<br />

accommodate.<br />

The employee in Nealy worked for<br />

the City of Santa Monica (“City”) as<br />

a solid waste equipment operator.<br />

After he endured an on-the-job<br />

knee injury, Plaintiff underwent<br />

multiple periods of disability<br />

and leaves of absence. Initially,<br />

the City reassigned Plaintiff to<br />

a groundskeeper position as an<br />

accommodation. After a second<br />

industrial injury, Plaintiff was<br />

returned to work on “light duty,”<br />

which restricted him from several<br />

physical activities, including<br />

kneeling and heavy lifting.<br />

Pursuant to his restrictions,<br />

Plaintiff requested that the City<br />

return him to the solid waste<br />

equipment operator position<br />

with modifications to the job.<br />

The City conducted several<br />

meetings with Plaintiff and hired<br />

a disability consulting firm to<br />

determine whether Plaintiff could<br />

perform the essential functions<br />

of that role. The City concluded<br />

that Plaintiff’s restrictions<br />

precluded him from performing<br />

that job without eliminating<br />

certain essential functions. After<br />

initially[?] declining to do so<br />

[slightly unclear as to what the<br />

City declined to do], the City<br />

considered reassigning Plaintiff to<br />

a lateral, vacant position. Plaintiff<br />

could not be reassigned, however,<br />

because he was not qualified<br />

for the lone lateral position that<br />

was available. Unable to find<br />

an accommodation for Plaintiff,<br />

the District effectively separated<br />

Plaintiff’s employment.<br />

The Second Appellate District<br />

concluded that the City’s actions<br />

were lawful. Notably, the Court<br />

rejected Plaintiff’s argument that<br />

the City could have restructured<br />

his former position so that he<br />

would not have to kneel or lift<br />

heavy objects. Because kneeling<br />

and lifting heavy objects were<br />

essential functions of the job,<br />

the City was not required to<br />

eliminate those functions as an<br />

accommodation. Id. at p. 359. As<br />

to reassignment, the Court held<br />

that the law does not require<br />

employers to provide an indefinite<br />

leave of absence to await possible<br />

future vacancies. Id.


<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

The Takeaway From<br />

Swanson And Nealy<br />

The employers in Swanson<br />

and Nealy both denied the<br />

accommodation sought by the<br />

employee, but the respective<br />

courts notably reached<br />

opposite conclusions on their<br />

accommodation efforts. Although<br />

the District’s accommodation<br />

efforts in Swanson were not<br />

necessarily poor, summary<br />

judgment could not be affirmed<br />

in that case because the District<br />

did not have a viable reason for<br />

denying the teacher’s request<br />

for a 2nd grade assignment.<br />

That assignment was vacant and<br />

available, and the District did not<br />

give sufficient consideration to the<br />

teacher’s medical concerns.<br />

By contrast, the City in Nealy had<br />

a well-reasoned basis to deny<br />

its employee’s reassignment<br />

request. The City hired a disability<br />

consulting firm to evaluate<br />

the employee’s essential job<br />

functions, communicated with the<br />

employee on multiple occasions<br />

to discuss the employee’s<br />

restrictions, and explored all<br />

lateral vacancies before deciding<br />

that the employee was not<br />

qualified for any vacant positions.<br />

Employers who are contemplating<br />

an accommodation request<br />

should be mindful of the results<br />

in Swanson and Nealy. At a<br />

minimum, employers should (1)<br />

carefully evaluate the employee’s<br />

essential job functions in view<br />

of any work restrictions, and (2)<br />

communicate with the employee<br />

about the accommodations<br />

that are being explored and the<br />

alternatives available to the<br />

employee. It is important that<br />

employers afford their employees<br />

an opportunity to actively<br />

participate in the accommodation<br />

process. Employers should<br />

also consult with a medical<br />

professional or a disability<br />

consultant where feasible to<br />

find accommodations that are<br />

compatible with an employee’s<br />

work restrictions and limitations.<br />

Although a perfect<br />

accommodation may not exist,<br />

closely mirroring the employer’s<br />

actions in Nealy will put<br />

employers in a better position to<br />

accommodate employees with<br />

disabilities and avoid litigation.<br />

Andrew I. Chung is an Associate at Pettit Kohn Ingrassia & Lutz PC in Los Angeles.<br />

He can be reached at achung@pettitkohn.com or (310)-417-1147. For more info about Andrew, click here.<br />

6


CMCP Diversity Matters<br />

Business Development Series:<br />

Is it Time for a<br />

Mid-Year Correction?<br />

By: Martha Sullivan, Principal, Thornton Marketing<br />

Somehow, the year is half over. Have you completed<br />

50% of the business development tasks you planned<br />

on for <strong>2015</strong>? Or have you been focused only on<br />

billable hours? If you are like most of my coaching<br />

clients, you probably have a long list of calls you<br />

meant to make, meetings you need to schedule and<br />

events you should attend. Some people might call<br />

this a “time management” issue, but more often, I find<br />

that my clients don’t take action because they don’t<br />

feel confident about the outcome. They compare<br />

themselves to the rainmakers they know and are sure<br />

that other lawyers have biz dev figured out, or that the<br />

process is simply easier for others. I can assure you<br />

that it’s not easier. The difference is that rainmakers<br />

have a biz dev plan in place, and they are committed<br />

to taking action. If you read my last CMCP blawg, you<br />

may remember that one of the most effective ways to<br />

increase your confidence is by taking action.<br />

In April, when I wrote about the book “The Confidence<br />

Code,” I didn’t realize that it would be an important<br />

part of the conversation at the third annual “From<br />

Having it All to Leaning In” event sponsored by the<br />

Santa Clara County Bar Association on June 10. The<br />

attendees were encouraged to read the book before<br />

the event. I was a co-presenter for the rainmaking<br />

session with Heidi Keefe, a partner at Cooley.<br />

Heidi and I discussed ways to engage in business<br />

development and she shared stories of her own<br />

success at landing clients because she maintained<br />

long-term relationships with a large network of<br />

contacts. She also talked about the importance of<br />

being herself and she encouraged the attendees to be<br />

authentic. In the words of Oscar Wilde, “Be yourself.<br />

Everyone else is already taken.”<br />

Taking Action<br />

As I said above, confidence is about taking action.<br />

By a fortuitous coincidence, biz dev is also about<br />

taking action. More accurately, it’s about taking many<br />

actions every year over the course of your career and<br />

being diligent about following up with your contacts.<br />

Perhaps you can keep these tasks in your head, but<br />

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<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

my coaching clients have found that it’s easier and<br />

more effective to capture them in a written marketing<br />

plan. (Yes, I know I keep saying that you have to have a<br />

plan. Trust me. I’m right about this).<br />

You might be thinking that the summer months are<br />

a bad time for biz dev because so many people are<br />

on vacation. Let’s be realistic. Not everyone will be<br />

taking vacation, and those that do will probably only<br />

be gone for two weeks. Even if you can’t schedule<br />

all the meetings you want to have right now, you<br />

can start setting up your September calendar, and<br />

start planning the rest of this year. It is not too soon<br />

to add the CMCP Annual Business Conference to<br />

your calendar (Oct. 22-23 in Los Angeles). If you have<br />

attended previous conferences, you already know that<br />

this is one of the best networking opportunities you<br />

will have all year.<br />

Committing to Your Plan<br />

If you are ready to get started and need a framework<br />

for your biz dev plans, email me (marthasullivan@<br />

earthlink.net) and I will send you the Personal<br />

Marketing Plan template that my coaching clients use.<br />

Some sections may not be relevant to your practice.<br />

Focus on the ones that make sense for you, and<br />

commit to completing at least one biz dev task every<br />

week. If you develop a weekly habit, you will quickly<br />

realize that every month of the year is a great time to<br />

be engaged in your biz dev practice. And a year from<br />

now, you will be far more confident about your ability<br />

to generate business.<br />

Martha Sullivan is Principal of Thornton Marketing in San Rafael, CA.<br />

marthasullivan@earthlink.net; 415.472.7126; www.thorntonmarketing.com<br />

8


CMCP Diversity Matters<br />

125 Years Later, CA Supreme Court<br />

Grants Membership Posthumously<br />

to First Chinese-American Lawyer<br />

By: Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP<br />

On March 16, <strong>2015</strong>, the California<br />

Supreme Court corrected an<br />

1890 decision that denied Hong<br />

Yen Chang admission to the<br />

California State Bar because<br />

of his Chinese heritage. It took<br />

a team composed of Chang’s<br />

descendants and law students<br />

from the University of California,<br />

Davis School of Law to finally get<br />

the Court to admit Chang to the<br />

Bar. In a nine-page opinion the<br />

Court noted: “Even if we cannot<br />

undo history, we can acknowledge<br />

it and, in so doing, accord a full<br />

measure of recognition to Chang’s<br />

pathbreaking efforts to become<br />

the first lawyer of Chinese descent<br />

in the United States.” In re Hong<br />

Yen Chang on Admission, California<br />

Supreme Court Case Number<br />

S223736 at 8.<br />

Chang was born in China and<br />

moved to the U.S. in 1872 as part of<br />

a Chinese government-sponsored<br />

program to teach Chinese youth<br />

about Western culture. He<br />

attended schools on the East<br />

Coast—graduating from Phillips<br />

Academy, Yale University and<br />

Columbia Law School.<br />

When Chang moved to California<br />

in 1890, he had already been<br />

admitted to the New York Bar<br />

two years earlier. In doing so, he<br />

became the country’s first<br />

Chinese-American attorney.<br />

Chang’s journey to gain admission<br />

in New York was not without<br />

difficulties, however. New York’s<br />

highest court first denied Chang<br />

admission because he was not a<br />

citizen, but later admitted him after<br />

a New York judge issued Chang a<br />

certificate of naturalization.<br />

Yet, in spite of this fact, the<br />

California Supreme Court rejected<br />

Chang’s application because it<br />

did not consider Chang a citizen.<br />

It held that the certificate of<br />

naturalization issued in New York<br />

was void because the federal<br />

Chinese Exclusion Act prohibited<br />

courts from issuing certificates<br />

of naturalization to any native of<br />

China and it being conceded that<br />

Chang was a “person of Mongolian<br />

nativity.”<br />

It would not be until March 26,<br />

1923, when You Chung Hong was<br />

admitted to the Bar, that California<br />

would allow Chinese-Americans to<br />

practice law in this state.<br />

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<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

Photo: Courtesy of Wikimedia<br />

“A candid reckoning<br />

with a sordid chapter<br />

of our state and<br />

national history.”<br />

In overturning the 1890 decision,<br />

the California Supreme Court<br />

recounted California’s sad but<br />

pivotal role in persuading Congress<br />

to pass the Chinese Exclusion Act<br />

and how racism against Chinese<br />

immigrants formed the foundation<br />

for the California Constitutional<br />

Convention of 1879. The 1879<br />

Constitution denied those with<br />

Chinese ancestry the right to<br />

vote along with any “idiot, insane<br />

person, or person convicted” of<br />

various crimes and directed the<br />

Legislature to discourage Chinese<br />

“immigration by all means within<br />

its power.”<br />

Given this historical background,<br />

the Court concluded that “the<br />

discriminatory exclusion of Chang<br />

from the State Bar of California<br />

was a grievous wrong” and that<br />

Chang had been denied the equal<br />

protection of the laws. Id. at 8.<br />

Although Chang was unable to<br />

practice law in California and<br />

serve the Chinese community<br />

in San Francisco as he originally<br />

planned, he had a successful<br />

career in banking, academics<br />

and diplomacy. Nonetheless,<br />

Chang’s posthumous admission<br />

is bittersweet when considering<br />

the contributions he could have<br />

made to the legal community in<br />

California had he been afforded<br />

the privileges he had duly earned.<br />

Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP.<br />

He can be reach at michaelchung@willenken.com or 213-694-3697.<br />

10


CMCP Diversity Matters<br />

Women@theTable Panel:<br />

“Hit or Miss? Women Lawyers’ Litigation<br />

and Trial Strategies”<br />

Featuring Hon. Holly Fujie, Hon. Rex Heeseman,<br />

and Hon. Teresa Sanchez-Gordon<br />

By: Jennifer Weidinger, Associate, Pettit Kohn Ingrassia & Lutz, PC<br />

On May 6, <strong>2015</strong>, CMCP member law firm Lim, Ruger<br />

& Kim LLP hosted the first of a three-panel seriesl<br />

intended to explore women in the law. The panel<br />

discussed effective advocacy and strategies to curtail<br />

bias in the courtroom. The moderators asked speakers<br />

to elaborate on personal experiences, provide<br />

insights, suggestions, and approaches for women<br />

lawyers, and address questions from the audience.<br />

The first panel featured Hon. Holly Fujie, Hon. Rex<br />

Heeseman (Ret.), and Hon. Teresa Sanchez-Gordon,<br />

and was moderated by Lisa Yang and George Busu of<br />

Lim, Ruger & Kim LLP.<br />

Women in litigation and trial.<br />

Hon. Heeseman noted that in 1971 the average law<br />

school classroom was comprised of approximately<br />

7% women. Now in <strong>2015</strong>, that number is almost up<br />

to 50%. What a difference 45 years makes and the<br />

judges acknowledged the accomplishments women<br />

have made in litigation and trial practice during that<br />

time, from increasing numbers of women partners<br />

and trial lawyers, to the number of women appointed<br />

to the bench. Women have successfully earned their<br />

positions at the “table,” yet biases, whether obvious or<br />

not, still exist in the profession.<br />

Have judges observed gender inequities in<br />

the courtroom?<br />

All three panelists concurred most lawyers (both<br />

male and female) attempt to present their most<br />

professional self to the judges in open court. However<br />

there are instances where tactics range from mere<br />

puffery to intimidation and even bullying. The best<br />

remedy in these situations is to rise above the fray,<br />

and regardless of experience, age, or gender, focus in<br />

on the potency of the factual or legal argument. Hon.<br />

Fujie emphasized the importance of using one’s own<br />

strengths to overcome intimidation tactics. A lawyer<br />

may be soft spoken, yet present a cogent analysis of<br />

a case that will leave her opponent without a counter<br />

argument. She need not even raise her voice to<br />

become the clear victor in the eyes of the court.<br />

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<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

would not let this intimidate them, it can derail even<br />

an experienced attorney. Intimidation tactics are<br />

best countered by attorneys who direct their energy<br />

to the legal arguments or cross examination, those<br />

who swiftly redirect attention to their own points, and<br />

seamlessly recapture the interest of the judge and jury.<br />

The judges remarked that some male attorneys tend<br />

to believe they are more prepared than they actually<br />

are at trial, while female attorneys will believe they<br />

are not prepared enough, thus downplaying their<br />

strengths. The judges have observed women defer<br />

to male attorneys without basis during argument,<br />

playing into that gender stereotype. This is ineffective<br />

argument and a result of lack of confidence rather<br />

than lack of skill. All three panelists encouraged<br />

women to thoroughly prepare and be confident in<br />

that preparation during any presentation, whether it<br />

be a motion or examination at trial.<br />

Hon. Heeseman recognized there is still evidence<br />

of the macho attitude exhibited by some male<br />

attorneys in the courtroom. It is often a cover for lack<br />

of preparedness, and though many women attorneys<br />

All three judges noted that their clerks often told them<br />

of comments made or looks exchanged, before the<br />

judge had taken the bench. A lack of respect between<br />

counsel (outside the judge’s presence) does not go<br />

unnoticed in the courtroom, and there is a clear line<br />

between advocacy and disrespectfulness. Credibility<br />

is a fundamental trait in any successful attorney, male<br />

or female, therefore the judges recommend selfawareness<br />

at all times during practice. Career goals are<br />

seldom enhanced by disrespect, and almost always<br />

propelled by a mutual respect between counsel.<br />

Have the judges themselves experienced<br />

gender bias in their own careers?<br />

Hon. Fujie recalled an incident as a presiding judge<br />

where a male attorney, amidst arguing a motion,<br />

referred to her as “honey.” The reference was quickly<br />

withdrawn by the attorney, but a germane example<br />

Continued on next page…<br />

12


CMCP Diversity Matters<br />

of gender bias towards even a presiding judge. Such<br />

a casual term would likely never be applied to a male<br />

judge. She noted that her career has been fueled by<br />

a passion to succeed and to encourage diversity in<br />

the legal profession, and she recalled clearly when<br />

one individual told her she would never become a<br />

judge. After her time as a partner of her law firm, then<br />

as the first Asian American to serve as the president<br />

of the State Bar of California, and now as a presiding<br />

judge, appointed in 2011, Hon. Fujie encouraged<br />

young women lawyers to continue to succeed, and<br />

to continue to broaden diversity as women and<br />

minorities in the profession. After all, Hon. Fujie noted,<br />

winning on your merit is the best revenge.<br />

What suggestions do the judges have for<br />

women in the courtroom?<br />

Be prepared. This was the prominent<br />

recommendation provided by all three panelists.<br />

Hon. Sanchez-Gordon noted that regardless of age,<br />

experience, gender, whether the lawyer was from<br />

a big firm or small firm, at the end of the day, the<br />

attorney most prepared wins the argument. This<br />

is the overriding principle and key for women and<br />

minority lawyers, who often feel disadvantaged from<br />

the start. True preparation includes a mastery of<br />

the facts of the case, any applicable case law, and<br />

a mastery of your opponents’ potential arguments.<br />

Even if an attorney appears on behalf of someone<br />

else from their firm, they should have taken the time<br />

to familiarize themselves with the case to be able to<br />

speak meaningfully and anticipate some questioning<br />

from the judge. She recommended women lawyers<br />

maintain their professionalism in the courtroom,<br />

from attire to demeanor, as it makes an impact on the<br />

judges, who may be meeting you for the first time.<br />

Hon. Reeseman suggested “practice makes perfect”<br />

and that lawyers can and should be practicing their<br />

oral arguments (for a motion or for trial) many times<br />

prior to the final hearing. Practice in front of other<br />

associates, in front of partners, and take criticisms with<br />

improvement in mind. Take positives and negatives<br />

and apply them to your own practice and behavior.<br />

Also, observing other lawyers is an excellent way to<br />

hone your own style, and to stay current.<br />

Maintain credibility. All agreed that establishing<br />

credibility in the courtroom is essential. For example<br />

Hon. Fujie recalled an attorney who claimed a specific<br />

case supported his argument, when in actuality it<br />

did not. This completely destroyed his credibility and<br />

created distrust. All lawyers, regardless of gender,<br />

should value their own credibility and aim to present<br />

a reasonable position to the court. The panel agreed<br />

that exaggerating the record occurs all too often in<br />

their courtrooms, and is not well taken. Exhibiting<br />

reasonableness in the face of disagreement allows<br />

the court to place trust in that attorney, and carries<br />

forward to future cases. Whether it means opening up<br />

the conversation to compromise, or standing firm in a<br />

position, a lawyer’s ability to gauge the argument and<br />

context, and adapt accordingly, flows to their ultimate<br />

credibility with the judges.<br />

Upcoming panels include: “The Woman Factor- How<br />

Women at the Top Impact Organizations” (June 25,<br />

<strong>2015</strong>); and “Gender Stereotypes at the Bargaining<br />

Table” (August 20, <strong>2015</strong>).<br />

Jennifer Weidinger is an Associate at Pettit Kohn Ingrassia & Lutz’s Los Angeles office. Ms. Weidinger’s practice focuses primarily on<br />

premises liability and employment litigation. For more info about Jennifer, click here.<br />

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<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

Trend to Limit ADA and FEHA Definitions of<br />

Disability Attributed to Behavioral Disorders<br />

Affecting Work Relations?<br />

By: Jonathan M. Turner, Partner, Epstein Turner Weiss<br />

Could there be a trend starting<br />

among the courts to put restraints<br />

on the reach of the disability<br />

discrimination laws when it comes<br />

to mental impairments affecting<br />

an employee’s ability to get along<br />

with others in the workplace?<br />

Maybe. In December of this past<br />

year, the Ninth Circuit put the<br />

brakes on its own precedent by<br />

reversing a jury finding that the<br />

employer violated the Americans<br />

with Disabilities Act (“ADA”) when it<br />

terminated an employee because<br />

of behavioral issues attributed to<br />

a mental disorder. In Weaving v.<br />

City of Hillsboro, 763 F.3d 1106 (9 th<br />

Cir. 2014), an employee diagnosed<br />

with attention deficit hyperactivity<br />

disorder (“ADHD”) was terminated<br />

because of “recurring interpersonal<br />

problems” that caused workplace<br />

conflicts with the employee’s<br />

supervisors, co-workers and<br />

subordinates. Although the<br />

employee’s disruptive behavior<br />

was allegedly attributable to his<br />

ADHD, the Ninth Circuit held that<br />

his termination did not violate<br />

the ADA because the employee’s<br />

mental disorder, while making it<br />

more difficult for him to “get along”<br />

with others, “d[id] not amount<br />

to a substantial impairment of<br />

his ability to interact with others<br />

within the meaning of the ADA.” Id.,<br />

at 1113.<br />

On May 26, <strong>2015</strong>, a California court<br />

addressed a similar issue arising<br />

out of an order granting summary<br />

judgment in favor an employer. In<br />

Higgins-Williams v. Sutter Medical<br />

Foundation, __ Cal. Rptr.3d __, No.<br />

C073677, <strong>2015</strong> WL 3451590 (Cal. Ct.<br />

App. May 26, <strong>2015</strong>), an employee<br />

who was diagnosed with a mental<br />

disorder (adjustment disorder<br />

with anxiety) alleged that because<br />

of his disorder he could not work<br />

for a particular supervisor who<br />

reportedly was abusive to the<br />

employee. Although the employee<br />

argued that under the California<br />

Fair Employment and Housing<br />

Act (“FEHA”) he was entitled to a<br />

reasonable accommodation for<br />

his disorder, the California Court<br />

of Appeal was not persuaded.<br />

The court held that the inability<br />

to work for a particular supervisor<br />

“because of anxiety and stress<br />

related to that supervisor’s<br />

standard oversight of the<br />

employee’s job performance d[id]<br />

not constitute a mental disability<br />

under FEHA.” Id., at *3.<br />

In both of these cases, the court<br />

concluded that the mental<br />

disorder in question did not satisfy<br />

the definition of a disability under<br />

the governing law because the<br />

disorder did not rise to a level so<br />

as to “limit a major life activity.”<br />

The major life activity at issue<br />

in Weaving was the ability to<br />

engage in social interaction, while<br />

the major life activity at issue in<br />

Higgins-Williams was the ability<br />

to work. Although a different<br />

legal analysis was applied in<br />

each case when denying relief to<br />

the employee, it would appear<br />

from these cases that the state<br />

and federal courts are starting to<br />

recognize limits to the protections<br />

afforded under the disability<br />

discrimination laws when the<br />

alleged disability amounts to a<br />

behavioral disorder that impairs<br />

the plaintiff’s ability to relate to<br />

others in the workplace.<br />

Jonathan M. Turner is founding partner at Epstein Turner Weiss in Los Angeles. Jonathan represents management in all aspects of<br />

labor and employment law. For more information about Jonathan, click here<br />

14


CMCP Diversity Matters<br />

Diversity Calendar<br />

July 10, <strong>2015</strong><br />

6:00pm - 2:00am (next day 7/11/<strong>2015</strong>)<br />

Professionals Mixer Benefiting Nepal<br />

Asian Pacific American Bar Association<br />

Los Angeles<br />

Mad Ave - LA<br />

Read more<br />

July 15, <strong>2015</strong><br />

6:00pm<br />

5th Anniversary Party<br />

Orange County Lavender Bar<br />

Association<br />

The Sky Garden at the Michelson Building<br />

- Irvine<br />

Read more<br />

July 18-23, <strong>2015</strong><br />

Saturday-Wednesday<br />

90th Annual Conventions and Exhibits<br />

California Association of Black Lawyers<br />

The Westin Bonaventure Hotel - LA<br />

Read more<br />

July 23, <strong>2015</strong><br />

5:30pm - 7:30pm<br />

ACBA <strong>Summer</strong> Reception <strong>2015</strong><br />

Alameda County Bar Association<br />

Bocanova - Oakland<br />

Read more<br />

July 23, <strong>2015</strong><br />

6:00pm - 8:00pm<br />

BHBA <strong>Summer</strong> Mixer at Trader Vic’s<br />

Lounge<br />

Beverly Hills Bar Association<br />

The Beverly Hilton - Beverly Hills<br />

Read more<br />

July 27, <strong>2015</strong><br />

10:00am - 5:00pm<br />

Annual SFLRLA <strong>Summer</strong> Picnic!<br />

San Francisco La Raza Lawyers<br />

Association<br />

Ceja Winery - Napa<br />

Read more<br />

July 29, <strong>2015</strong><br />

5:30pm - 7:30pm<br />

In-House Counsel Diversity Awards<br />

Reception<br />

Bar Association of San Francisco<br />

Schiff Hardin - SF<br />

Read more<br />

July 30, <strong>2015</strong><br />

5:30pm - 8:30pm<br />

Judges’ Dinner<br />

Queen’s Bench Bar Association<br />

Marines Memorials Club - SF<br />

Read more<br />

September 12, <strong>2015</strong><br />

6:00pm<br />

Hollywood Bowl - B-52s & Psych Furs<br />

Concert - Space is Limited<br />

Lesbian & Gay Lawyers Association of<br />

L.A.<br />

Hollywood Bowl - LA<br />

Read more<br />

September 15, <strong>2015</strong><br />

5:00pm - 9:00pm<br />

The <strong>2015</strong> OCWLA Gala<br />

Orange County Women Lawyers<br />

Association<br />

Irvine Marriott - Irvine<br />

Read more<br />

September 16-19, <strong>2015</strong><br />

Wednesday-Saturday<br />

NAMWOLF <strong>2015</strong> Annual Meeting<br />

The National Association of Minority &<br />

Women Owned Law Firms<br />

Loews Hollywood Hotel - LA<br />

Read more<br />

September 24, <strong>2015</strong><br />

4:30pm - 6:10pm<br />

Filipino Community Night at Petco<br />

Park (Filipino Inspired Pre-Game<br />

Entertainment)<br />

Filipino American Lawyers of San Diego<br />

Petco Park - San Diego<br />

Read more<br />

15


CMCP Diversity Matters<br />

<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

<strong>Summer</strong> <strong>2015</strong> Newsletter<br />

MINORITY<br />

<strong>Summer</strong> <strong>2015</strong><br />

© Copyright <strong>2015</strong><br />

California Minority Counsel Program<br />

465 California Street, Suite 635<br />

San Francisco, CA 94104<br />

Tel: 415-782-8990<br />

Email: newsletter@cmcp.org<br />

Web: http://www.cmcp.org<br />

16

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