ATTORNEYS ALSO STOOD GUARD
I want to commend LSC for the wonderful cover story, “Equality Undercover,” in the Fall 2002 issue of Equal Justice Magazine. This article highlights the innovative program established by the Legal Assistance Foundation of Metropolitan Chicago (LAF) to use employment testers as a means of uncovering evidence of discrimination in hiring. The program compares the experiences of ‘matched-pair’ testers—one black and one white, or one woman and one man—who apply for the same job and details the disparate treatment they uncovered. 

The article, however, fails to mention any of the lawyers who worked on the landmark tester litigation. LAF filed a race discrimination suit in federal court in Chicago in 1997 on behalf of two of its African-American testers after obtaining a favorable finding from the Equal Employment Opportunity Commission. The plaintiffs, the African-American testers, alleged that Guardian Security Services, a Chicago-based security guard company, had discriminated against them by treating them differently from their white counterparts when all four testers applied for a receptionist job at Guardian. 

Guardian moved for summary judgment on the ground that the testers lacked standing to sue. The U.S. District Court agreed, so we filed an appeal on behalf of the testers. In July 2000, the Court of Appeals for the Seventh Circuit, in a landmark decision, held that employment testers do have standing to sue under Title VII of the Civil Rights Act of 1964. 

The lead attorney at the trial and appellate level was Timothy Huizenga, LAF’s Supervisory Attorney for Employment Law. LAF attorneys Heather Ross and Maureen Terjak and LAF Deputy Director for Special Projects Diana White spent hundreds of hours working on this case in both the U.S. District Court and the Seventh Circuit. All of these LAF attorneys did outstanding legal work.

LAF had always known that establishing standing for employment testers would be a hard-fought battle—and it was. Guardian was represented by one of Chicago’s largest law firms, which enjoys a national reputation for aggressive litigation on behalf of employers. Guardian also drew support from the Equal Employment Advisory Council, a national association of 300 of the largest employers in America. 

But LAF never anticipated that refusing to drop the federal appeal would lead Guardian to sue LAF in state court for ‘fraud’ and ‘maintenance’ or that Guardian would sue the two African-American testers personally for fraud as well. Guardian sought hundreds of thousands of dollars in compensatory and punitive damages, launching a massive discovery effort seeking information about LAF’s public and private funders. 

We were concerned that Guardian’s state-court litigation would deter any organization from adopting testing as a tool of civil rights enforcement and would intimidate any individual from working as a tester. Thanks to the pro bono work of Sidley Austin Brown & Wood (Kathleen Roach, in particular), that did not happen. Sidley attorneys defended LAF and the individual testers in state court. They won motions to dismiss the fraud claim three times. They succeeded in narrowing the Guardian’s broad discovery requests to the ‘maintenance’ claim against LAF and then prevailed on a motion for summary judgment. Ms. Roach took the lead in conducting the long, but ultimately successful negotiations that favorably resolved all the Guardian litigation. 

In the course of nearly four years, Ms. Roach and her Sidley colleagues devoted 1,360 hours to representation of LAF and the testers—an extraordinary commitment for any private firm to make. More importantly, Sidley and Ms. Roach stood behind LAF at a critical time in its history, and their considerable reputation enhanced our credibility. 

Thanks to the many dedicated advocates who worked on this case, employment testing can now take its rightful place as a valuable tool of civil rights enforcement, especially against the most clandestine and insidious forms of discrimination.

Sheldon Roodman
Executive Director
Legal Assistance Foundation of Metropolitan Chicago

PRO SE IS NO SUBSTITUTE

An article in the Fall 2002 issue of EJM, “Self Representation, Self Empowerment,” describes the outcome of pro se representation when supported by high-quality brief service from a legal services hotline. The Northwest Justice Project, based in Seattle, is proud of the work performed by the lawyers and paralegals on its statewide telephonic delivery system: CLEAR. 

Yet that work must be viewed as one element in a continuum of services provided by an equal justice community that includes a significant amount of representation in addition to pro se assistance. The client described in the article had favorable outcomes in the hearings she handled pro se and an unfavorable outcome in the hearing handled by a lawyer who, according to the article, did not provide adequately zealous representation. The conclusion the author seems to reach—that a client fares better appearing pro se—is a dangerous one because it provides fodder for those who generally oppose public funding of legal representation for low-income people. 

CLEAR does have many success stories in which the clients it helps go on to represent themselves both in and out of court and obtain favorable outcomes. Unfortunately, there are many more stories of people with limited literacy, language barriers, mental illness, and a range of other disabilities who stand virtually no chance of achieving a favorable outcome pro se. The Hotline Outcomes Study recently published by the Project for the Future of Equal Justice found that people who had limited educational attainment, problems reading or speaking English, or who experienced stress, depression, or fear of a current or ex-partner had significantly less favorable outcomes than people without those characteristics.

Many people need representation to assert and protect their rights in our complex justice system that is based on myriad rules and written documents. Efforts to support pro se advocacy as a triaging measure are needed and laudable, and they understandably attract a lot of attention from LSC and others. But that attention needs to be kept in perspective. 

The fundamental question to be addressed is well expressed by Bonnie Sudderth, writing in Court Review Magazine, when she asks, ‘…instead of figuring out how to make it easier to self-represent, why don’t we spend some time discussing the more difficult issue of how to make attorneys accessible and affordable to all persons who seek justice?’ 

Joan Kleinberg
Director of CLEAR and Private Bar Development
Northwest Justice Project

KUDOS ON DEFIANCE ARTICLE
Great job on the Summer 2002 edition of Equal Justice Magazine, “Defiance! A small Ohio town stands up against domestic violence.” It’s well done and very impressive. In northwest Ohio, it’s getting great reviews. 

We greatly appreciate your article on Legal Services of Northwest Ohio’s work in Defiance. You did a great job of capturing the spirit of the Defiance community and Pam Weaner’s work there.

Joseph Tafelski
Executive Director
Advocates for Basic Legal Equality