on CH THE U.S. DISTRICT COURT OF HISTORICAL SOCIETY NEWSLETTER

Setting the Standard Carol Hewitt in the U.S. District Court By TOM BALMER

arol Hewitt (1945-1993) was one of a hand- capsule history of the changes in law and society C ful of women who literally changed the face over the last thirty years. This is Part 1 of a two- of the Oregon legal community during the 1970s part article. and 1980s. Hewitt was the first woman in two de- cades to serve as a judicial law clerk with the U.S. Hewitt's 1969-70 clerkship with Judge Solomon District Court for the District of Oregon, the first had a lasting influence on her career as a lawyer. Oregon woman invited to join the American Col- But it almost didn't happen. Judge Solomon had lege of Trial Lawyers, the first woman to be a name been active in breaking down barriers that excluded partner in a large Portland firm. She played the same Jews and other minorities from full participation in pioneering role in private practice that Justice Betty Oregon's civic life, but he had never before hired a Roberts and Judge Helen Frye, respectively, played woman law clerk. In an oral history interview, fol- in the state appellate and federal courts. Invariably lowing a discussion of his earlier efforts to open up gracious in accepting public accolades and awards Portland law firms to Jewish lawyers, Judge for her "firsts," Hewitt privately downplayed be- Solomon described his decision to hire Hewitt: ing first as a reason for recognition. Her goal was ". 'f "'[AJn Oregon Supreme Court Justice called not be the first, but to be the best. And, often, she me and asked if I had an opening for a law was. From cutting-edge sex discrimination cases to clerk. When I told him that I did, he recom- the male-dominated world of high-stakes securi- mended a young lady who was graduating from ties and product liability litigation, Hewitt built a Willamette Law School. She was third [actu- national reputation as a creative, effective trial law- Continued on page 2 yer. With her untimely death at 47, the Oregon bar lost one of its most successful advocates. Born in Minnesota, Hewitt and her family moved to Salem when she was in elementary school, and she graduated from North Salem High School. She attended St. Olaf College in Minnesota but returned to Salem to graduate from Willamette. She moved on to Willamette Law School, where she served as an editor of the law review, interned with Justice Ted Goodwin of the Oregon Supreme Court, and- at the age of 23-graduated second in her class. After Hewitt's graduation in 1969, she was hired for a one-year clerkship with U.S. District Judge Gus Solomon, one of the most prestigious district court clerks hips in the country. The Solomon clerk- ship put Hewitt at the heart of federal court litiga- tion in Oregon, where for nearly the next quarter century she played a central, indeed defining, role. This article surveys Hewitt's work before the U.S. District Court for the District of Oregon, with brief detours into related topics. The many and varied cases she handled were significant not only for the During the 19705 and early 19805, attorney Carol Hewitt parties, but for the development of the law in a made her mark working on behalf of women who had suffered number of areas. They also provide a fascinating discrimination based on their gender.

SPRINC 2000 CAROL HEWITT CONTINUED ally, second] in her class. I had never hired a woman law clerk before, and I asked where she With the arrival of the year 2000, this organization's purpose is went to college. He mentioned a clearer than ever-to preserve the history of the college that I had never heard of District Court for Oregon. Years hence, people who view our pho- before. I told him to have her tographs and read or listen to our oral histories may find the way come in and see me. Before she we did things odd. I can just imagine their conversat!ons: "Can came, I struggled with myself you believe it? Judges wore those black r~bes. WI.tnesses~c- silly about her background and edu- tually had to come to the courthouse to testify. Until the mid- cation. Finally, I said to myself, 1970s there were hardly any women Iawyers. How strange. f" 'If you don't want to hire a Jew, Many of us, straddling both centuries, feel an aw~some se~se of one excuse is as good as another, history at this juncture. What better time than now to get involved l.n the and if you don't want to hire a efforts of this historical society, to ensure that those who follow us WIllget woman, one excuse is as good as an accurate and colorful picture of the remarkable people and places of another.' As a result of these dis- the District of Oregon in the twentieth century. . cussions with myself she had the Along those lines, by now you should have received your me.mbershlp job before she came in. mailing for this year. The next step-what can yo~ do to get. involved? Hewitt and Solomon hit it off, and Here is a quick list of contact people for you to get in touch WIth: she was hired. During her year with the famously opinionated judge, she 'i ORAL HISTORY PROJECT-Sarah Ryan, Chair, (503) 228-2525, Ext. watched some of the best litigators in 500. Receive free training for conducting an oral history. Conduct an the state and came to know key play- oral history for a lawyer (over age 60) who has had a federal court ers in the legal establishment. She practice. worked with the judge on a wide va- riety of criminal and civil matters, in- 'i NEWSLETTER-David Bledsoe, Chair, (503) 727-2033. Write an ar- cluding constitutional, fraud, ticle or conduct an interview for the newsletter on a subject of your choice contract, antitrust, labor, and insur- pertaining to a case or a judge or lawyer who handled interesting federal ance cases. Hewitt also absorbed at cases. (By the way, many thanks to Tom Balmer for the excellent article least some of Judge Solomon's well- about Carol Hewitt in this issue. She was a real mentor and role model to known views and habits-his distaste many lawyers, including me.) If an article isn't your cup of tea, you could for extended and marginally relevant prepare a puzzle, quiz, or book review. examination of witnesses; his clear, even pithy, writing style; and his 'i SPECIAL PROJECTS: FAMOUS FEDERAL CASES SERIES-Clarence strong support for civil liberties. And Belnavis, Chair, (503) 294-9648. Come to the first of our on March -r= the Solomon clerkship brought her 30 at 4:00 p.m. at the United States Courthouse. Hear the Judges and into the family of prior clerks, who lawyers who handled the cases surround.ing the commune at included prominent members and ris- Rajneeshpuram talk about their first-hand expe~/ences. If you baue a .rec- ing stars of the Oregon bar like Cliff ommendation for another program, we are hoping to bring back to ltfe a Alterman, Jonathan Ater, and Jerry series of famous cases from the last century. We'd love your help! Weigler and national figures like law professor and legal ethics expert .~ EVENTS-Nick Fish, Chair, (503) 222-3531. Call Nick if you have Stephen Gillers, future Federal Trade time to help out in this area-volunteers are always welcome. As always, Commission chair Mike Pertschuk, we will have a number of fun social occasions this year. So, even If y?u and attorney Jerry Kohlberg, who, can't get substantively involved, we hope you can get away from the office with his partners in Kohlberg, for our spring social on May 18 (details to follow) and, of course, our Kravitz and Roberts, Inc., virtually incomparable Panner Ranch picnic in September. remade the investment banking world in the 1980s. Thanks for your support of the U.S. District Court of Oregon Historical During Hewitt's one-year clerkship, Society! she looked for a job with a Portland law firm to begin when her clerkship ended in the fall of 1970. Although she was interviewed by some firms, her initial efforts produced no job offers despite her strong academic record, highly regarded clerkship, and engaging personality. Judge Solomon recalled how he intervened to help Hewitt get a job:

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About three months after call Lindsay, Solomon reportedly was Barbara Hutchison was a part-time [Hewitt] arrived, I went to the li- less than subtle in letting Lindsay social studies teacher employed by the brary where she and my other know that his firm would find it par- Lake Oswego School District in 1973 clerk were working. The male ticularly difficult to win in his court- when she took three weeks off to have clerk told me that he had been room if Hewitt were not hired. a baby. Although Hutchison had ac- hired by myoid law office-Kell Lindsay, always a quick study, took crued three weeks of sick leave, the & Alterman. I then asked this the hint. school district did not consider her lady clerk where she was going, The Lindsay Nahstoll firm was a absence for normal childbirth to be and she told me that she didn't good match for Hewitt. With 16 law- an "illness or injury," and she was not have a job. When I told her that yers, it was moderately large for the permitted to apply her sick leave to she ought to start looking, she time. Its practice ranged from labor the childbirth absence. The district told me that she had gone to all and admiralty to business litigation, deducted $339.59 from her wages of the large offices and many of corporate law, and energy matters. because of her absence, an action sup- the small ones without any suc- Compared to other firms of its size ported by the State Department of cess. I asked her if she wanted me and practice, it had a distinctly lib- Education. Hewitt, a law school class- to try, and she said, 'Yes.' eral cast. Partners included Bob mate of Hutchison's husband, took I called up a half a dozen of- Duncan, a former Congressman; Den- the case and filed a complaint in fed- fices, and they all had excuses. nis Lindsay, a well-known Demo- eral court, claiming that the district's One said, "It's just too bad you cratic party activist; and Allan Hart, policy violated Title VII of the Civil didn't call me last week." I told a close friend of Judge Solomon, Rights Act of 1964"'. She argued that him that she did call several weeks New Deal trust-buster, and promi- by distinguishing between child- ago. I didn't get an interview for nent civil liberties advocate. It was birth-related medical absences- her. Finally, I called two offices- also no coincidence that former taken only by women-and all other friends of mine. Both were will- Solomon law clerks Jerry Weigler medical absences, the policy dis- ing to see her. Then another friend and Jonathan Ater were already at criminated against Hutchison on the called me. He said, "Gus, do you the firm. At Lindsay Nahstoll, which basis of her sex. have anybody over there that I eventually became Lindsay, Hart, Neil Judge Otto Skopil agreed, finding could hire?" "Yes, you are in & Weigler in 1980, Hewitt was that the "denial of sick-leave benefits luck," I said, "I got someone thrown into civil and tax litigation, to women teachers suffering from good." I told him the name of this public power issues, and business law. childbirth-caused disabilities has no person, and he said, "A woman?" But she quickly made her own mark relation to the employer's interest," And I said, "Yes." He told me he at the firm and in the Oregon bar, and "penalizes the female school teacher couldn't use her. "Why not?" I developing an expertise in the emerg- "In this and other cases discussed, some of asked. He said, "We have a small ing law of sex discrimination. the factual and legal issues are omitted. office." I said, "She can work in ~:. ~:. ::. ::. Continued on page 6 a small office just as well as in a big office." He said, "You don't understand. The only time we get to talk is at lunch time." "Well," I said, "She eats just like every- body else. What do you talk Oregon Judges and Lawyers Revisit about at lunch that a married woman can't listen to?" He didn't THE BHAGWAN SHREE RA]NEESH ERA hire her or even interview her, but Thursday, March 30, 2000 he began hiring women and now has several of them. But she did Panelists include Judges Edward Leavy, get offers from the two other of- Malcolm Marsh, and John Jelderks; former fices, and she accepted one. She Assistant U.S. Attorney Robert Weaver, Jr.; is now a senior partner in that Defense Attorney John Ransom; and firm. That is how we broke the Author Marion Goldman bias against women in this area. Moderated by Judge Ellen Rosenblum The offer Hewitt accepted was with the firm of Lindsay, Nahstoll, Hart, First in a Series on Famous Federal Cases Duncan, Dafoe & Krause, where she Presented by the u.S. District Court of started in 1970. Dennis Lindsay re- Oregon Historical Society called that when Hewitt had first con- Mark O. Hatfield U.S. Courthouse tacted him-before Judge Solomon's 1000 SW Third Avenue intervention-he had told her that the Portland, Oregon firm's clients weren't ready for a Program 4:00-5:30 p.m. woman attorney and he wasn't sure Reception 5:30-6:00 p.m. how she'd fit in. When the judge did

3 That law partnership, created by his brother Joseph, continued until 1976, when the last surviving partner, Edgar Freed, passed away. part of Chapman's claim, an~ he sold Where in the federal The socio-economic character of the his last interest in the block III 1857. courthouse can you Hamilton Block changed substantially The block that lies to the west of find a porcelain baby during the last four decades of t~e the Hamilton Block, now known as doll and an assortment nineteenth century. In the 1860s Its Lownsdale Square, has been used for of buttons? Hint: it's residents were mostly professionals one purpose-a public square-for al- not the Lost and like Cyrus Dolph, who by 1870 had most 150 years. It and the adjacent Found. These items moved his residence from the block. block now known as Chapman used to lie in the During the 1870s, the occupants con- Squar~, were dedicated for public use ground beneath Block sisted of shopkeepers, artisans, and by their namesakes. As early as 185~, 24, now occupied by only a few professionals, l~ke J?seph these blocks which were not yet bi- the Hatfield Court- Simon. In 1875, when he lived III the sected by M~in Street, were identified house. Today they lie in a display case Hamilton Block, Simon was 20 years as a public square on survey maps. in the courthouse lobby, along with old and a clerk for the Mitchell & And so they remain. other artifacts unearthed during the Dolph firm. Two years later he was a The complexion of the Hamilton 1993 archaeological study that pre- partner. This ambitious young man Block on the other hand, has varied ceded excavation of the block and went on to become president of the subst~ntially over the same period of construction of the courthouse. Many state senate (1889 to 1891, 1895 to time. In 1847 forest still dominated people have already perused the ar- 1898), a U.S. senator (1898 to 1903), the area west of Second Avenue. By chaeological display (and know that and mayor of Portland (1909 to 1854 trees had been cleared between the buttons are from Chinese laun- 1911). , Second and Third for scattered resi- dries that occupied the block around The first Chinese presence III the dences but the forest still dominated the turn of the century). Hamilton Block also appears in the west of Third. One of the earliest resi- The archaeological study of Block 1875 city directory-the Is Sing cloth- dents of Block 24 appears to be Cyrus 24 also known as the Hamilton Block ing factory on the south SIde of , Dolph, identified as C. Dolph in th,e in reference to its long-time occupant, Salmon between Second and Third. 1865 city directory. The Dolph rest- the Hamilton Hotel, chronicles a pat- Despite racism and acts of violen~e dence occupied the northeast corner tern of development typical in down- against them (including an attempt III of the block which was still sparsely town Portland-from forest, to January 1886 to blow up a Chinese occupied at 'that time. Cyrus and his residential, to light industrial and Laundry), the number of Chinese resi- brother Joseph Dolph were the lea~- commercial use. A closer look at the dents in Portland grew at about the ing corporate lawyers in Portland III specific evolution of the Hamilton same rate as Portland's population the late nineteenth century. Cyrus Block illustrates vividly the extent to during the latter part of the nineteent~ served as the Portland city attorney which the law is interwoven into the century. In 1870 there were 487 ChI- from 1870 to 1871. He also served as fabric of our history. nese residents of Portland. By 1880 the first president of the Oregon Bar The land that was to become Block the number had grown to 1,668, Association in 1881. Cyrus was a 24 lay just west of the original s.ix- about 9.5 percent of the city's popu- partner in the Mitchell & Dolph firm. teen blocks platted out by lation. By 1890 Portland's 4,434 Chi- and in 1845. That nese residents constituted 9.8 percent initial plat consisted of two rows of of its population. By 1900 that ratio eight blocks between Front and Sec- had declined slightly to 8.7 percent, ond Avenues and and representing 6,943 Chinese residents Jefferson streets. After Lovejoy sold in Portland. his share to III late The first Chinese businesses sprang 1845, Pettygrove and Stark inclu~ed up in the heart of Portland's c?mmer- Block 24 in the amended plat, which cial district, on Front and First be- extended west to Third Avenue and tween Taylor and Stark. By t~e north to Ankeny. Without Stark's mid-1870s, the Chinese commercial knowledge, Pettygrove sold the claim center had shifted to Second between to Daniel Lownsdale for $6,000. Then Ash and Taylor, a stretch that became Lownsdale sold half the claim to known as Chinatown. The concent~a- Steven Coffin for $5,000, and they tion of Chinese in this area can be at- each sold a third to W. W. Chapman, tributed in part to the City of an Oregon City lawyer. Eventually, Portland's efforts to ghettoize them. Chapman, Lownsdale, and Coffin The city exerted control over the l~- agreed that Stark, who ~sserted a one- A member of the 1993 archaeological team cation of Chinese residences and bUSI- half interest in the claim, would re- examines one of the team'sfinds during nesses by requiring city council ceive 48 acres. Block 24 ended up as excavations of Block 24. approval before any Chinese person

4 could rent or lease premises. The city discriminated against the A WARM FAREWELL TO JUDGE BELLONI Chinese in other ways. Judge Deady granted at least three writs of habeas ne after another, seven scheduled speakers and numerous ~embers of corpus to Chinese men imprisoned for Othe audience paid warm tribute to Judge Robert C. Belloni at a Janu- violating city ordinances. Lee Tong ary 31, 2000 memorial service in the Mark O. had been imprisoned for playing Hatfield U.S. Courthouse in Portland. Judge Belloni Tantan, which the city council had was a person whom all agreed loomed much larger prohibited along with many other in this nation's legal history than he himself was games. Wan Yin had been imprisoned ever willing to acknowledge. A quiet, self-effacing for failing to pay a $5 quarterly laun- man with great human compassion and a sincere dry-licensing fee. Ah Lit had been dedication to the principles of law, he was a role imprisoned for smoking opium in his model to the many clerks who served under him private home, purportedly for violat- and a courageous judge who made some very diffi- ing an ordinance that prohibited cult landmark decisions. One of those decisions (in Friends from the Northwest smoking opium in a house or place Sohappy v. Smith) gave the Native Americans a fair tribes spoke about how "kept for that purpose." In each case, and equitable share of the fish in the Columbia much Judge Belloni and Judge Deady found that the city had River system and had an enormous impact on his judicial decisions meant exceeded its authority. In re Lee Tong, Northwest tribes. to them. 18 F. 253 (1883); In re Wan Yin, 22 F. At the memorial service, representatives and members of those tribes 701 (1885); Ex Parte Ah Lit, 26 F. turned out in large numbers to pay tribute to Judge Belloni, a man whom 512 (1886). Donald Sampson, executive director of the Intertribal Fish Commission said, Although the Hamilton Block was "helped carryon the sacred promise we made to the salmon." In one trib- at the southern end of Chinatown, in ute, Olney Pat, Jr., of the Warm Springs Tribe noted, "Most of our Tribal 1880 there were no Chinese resi- Council is here. When we heard about this memorial service, we moved our dents-there was only the Is Sing meeting to Portland so we could be here for it. We were so privileged to clothing factory. By 1884 the Sung Lee know Judge Belloni." "washing and ironing" company, the Robert Belloni was also a man who, attorney Norman Sepenuk noted, first of many Chinese laundries on the "radiated authority." Several speakers agreed he could strike terror into the block, had opened for business. The heart of anyone who appeared before him unprepared, but when an honest last Chinese laundry on the Hamilton mistake was made he would graciously put the miscreant at ease. Judge block, the On Sing laundry, closed its Belloni also was remarkably efficient and could handle a heavy load of doors in 1914. Many of the people complex cases with aplomb. He found a solution to trying a backlog of who worked in these laundries also asbestos cases in Hawaii that would have taken many years if tried one at a lived in the Hamilton Block. Data time. By obtaining the consent of all the lawyers in the cases, he was able to from the 1900 census discloses that institute a new approach, and within about two years he had eliminated there were 217 people living there, much of the backlog. Judge Belloni is also credited with "solely shaping" two-thirds of whom were Chinese the use of the magistrate system in this country and, thus, providing essen- men working as laborers, laundry tial relief to the country's district judges. workers, domestics, or vegetable ped- In his own home county (Coos County), the Bob Belloni Ranch, Inc. is a dlers. Many premises on the block fitting and lasting memorial to a giant of a judge who was also a remark- shared commercial and residential able humble man with a lifelong concern for the underdog. uses, reflected in the recovery of many household objects, such as the porce- lain baby doll, during the archaeologi- it remained until 1924. The Moy fam- despite its small confines, presents a cal excavation. ily also lived on the Hamilton Block, microcosm of the city's history, which Despite the presence of so many at 231 Second Avenue, next door to will continue to be played out in the Chinese residents and businesses, the the Twin Wo business. Hatfield Courthouse. first and only record of Chinese own- Twin Wo and Company was one of Kristin Hazard isan associate with Tonkon ership in the Hamilton Block is that the last Chinese businesses to occupy Torp liP and a member of the US District Court of Moy Back Hin, a prominent busi- the Hamilton Block. By the 1920s Historical Society board of directors. nessman, who purchased a large por- many of them had moved to the "new tion of the block in 1907. He had Chinatown" north of Burnside. Other Acknowledgement: Much of the information immigrated with his family in 1895 commercial enterprises subsequently contained in this article was gleaned from the after enactment of the federal exclu- occupied the Hamilton Block; but due report on Data Recovery at OR-MU-57, The U.S. Courthouse Site, Portland Oregon, No- sion acts, presumably under the ex- to excavation and paving after the vember 30, 1994, prepared by Archaeologi- ception for merchants. He soon 1920s, the archaeological study shed cal Investigations Northwest, Inc. for CRSS acquired a leading merchant house, little light on this part of the block's Constructors, Inc., and the General Services Twin Wo and Company. In 1907 he history. Administration. The author wishes to thank moved it to one of the commercial As home to forest, then founders, Gerry Takasumi, of the GSA, for assistance. spaces in the Hamilton Block, where then immigrants, the Hamilton Block,

5 Henderson v. State of Oregon, 405 CAROL HEWITT CONTINUED ESupp. 1271 (D. Or. 1975), Hewitt for being a woman ... " Hutchison v. filed suit on behalf of four female state Lake Oswego School Dist. No.7, 374 employees who claimed that the state ESupp. 1056, 1062, 1063 (D.Or. retirement system discriminated 1974). He added, "Sexual stereotypes against them because it made lower are no less invidious than racial or monthly annuity payments to women religious ones," and ordered the retirees than to men. The state based school district to grant Hutchison the annuity portion of its retirement sick-leave benefits and to pay her at- benefit on actuarial tables for men and torney fees. Id. at 1063. women. Because women-on aver- Perhaps reflecting the spirit of the age-live longer than men but pay times (or an earlier time), the school equal amounts into the retirement sys- district appealed, but the Ninth Cir- tem, the state considered it non-dis- cuit affirmed. 519 F.2d 961 (9th Cir. criminatory to make smaller monthly 1975). The school district then sought annuity payments to women. The review by the U.S. Supreme Court, state argued that women as a group conel usion reached by Judge which held Hutchison while it consid- would actually receive the same ben- Solomon-that making lower annu- ered a similar, although not identical, efit level (or more), over time, as men. ity payments to women on the basis issue in a different case. In General Hewitt mounted a sophisticated and of gender-based actuarial tables was Electric v. Gilbert, 429 U.S. 125 novel attack on the use of sex segre- unlawful sex discrimination in em- (1976), the court, in a 6-3 decision, gated life expectancy tables as a vio- ployment in violation of Title VII. Los held that the exclusion of pregnancy lation of Title VIr. She argued that Angeles Dept. of Water & Power v. from an employer's medical plan did discrimination in employment was not Manhart, 435 U.S. 702 (1978). not violate Title VII and instead to be evaluated by comparing women In the background of both merely removed one physical condi- as a group to men as a group, but Hutchison and Henderson lay a criti- tion from coverage. The court vacated rather an individual woman to a simi- cal issue in the developing law of sex and remanded Hutchison for further larly situated individual man. By that discrimination: the relationship be- proceedings in light of Gilbert. 429 standard, a female retiree received tween the Equal Pay Act, which made U.S. 1033 (1977). While this about 90 percent of the annual ben- it illegal to pay women less than men amounted to a rejection by the Court efit each month that a male retiree for substantially equal work, and Title of Hewitt's argument, Congress re- received. Judge Solomon ruled in fa- VII of the Civil Rights Act, which in acted to Gilbert by passing the Preg- vor of the plaintiffs, agreeing that Title more general terms prohibited dis- nancy Discrimination Act (1978), VII required evaluation of discrimina- crimination in employment. That is- which amended Title VII to prohibit tion claims based on their effect on sue was squarely presented in Gunther employers from treating pregnancy individuals, rather than on a sex de- v. Washington County, which Hewitt differently than other medical dis- fined group. He noted that despite the litigated through the district court, the abilities. greater average longevity of women, Ninth Circuit, and the Supreme Court. Another significant sex discrimina- most men and women (84 percent) Gunther was Hewitt's most important tion case brought Hewitt before her share common death ages. "The re- sex discrimination case and, indeed, former boss, Judge Gus Solomon, and maining 16 percent are women who is widely regarded as one of the land- again raised a critical issue ultimately live longer than the majority and men mark Title VII cases. decided by the Supreme Court. In who live shorter. As a result, each In Gunther, Hewitt's clients were woman is penalized because a few jail matrons who supervised Washing- women live longer and each man ben- ton County's female inmates and were efits because a few men die earlier." paid less than the male employees who Id. at 1275 n. 5. oversaw male inmates. They claimed SAVE THE DATES! Because of the important implica- that their lower compensation for tions of his ruling for the state retire- equal or substantially equal work vio- THURSDAY, MARCH 30 ment system, Judge Solomon stayed lated the standards of the Equal Pay 4 to 6 p.m. the effect of his ruling pending appeal. Act and therefore constituted unlaw- Leave work a few minutes early Meanwhile, the Ninth Circuit af- ful sex discrimination under Title VII. and attend our program on the firmed another district court decision (At the time, the Equal Pay Act did Bhagwan Shree Rajneesh Era, re- finding that the use of gender-based not apply to municipal employees, but called by a panel of judges and actuarial tables to determine public Title VII did.) They further claimed lawyers (see page 3). pension benefits violated Title VIr. that even if the work was not substan- Manhart v. City of Los Angeles Dept. tially equal and thus did not violate THURSDAY, MAY 18 of Water and Power, 553 E2d 581 the Equal Pay Act standards, at least After work (9th Cir. 1976). Manhart went to the some of the pay differential was the Ice Cream Social at the U.S. Supreme Court, which affirmed the result of intentional sex discrimination Courthouse. Details to follow. key Ninth Circuit holding-and the in violation of Title VII. Judge

6 Solomon found that the work done by the female and male guards was not sufficiently similar to sustain an Equal Pay Act-type claim. He also held, as a matter of law, that the Equal Go up against our legal trivia expert, David Bledsoe, and see if you can Pay Act standards applied to all claims match up the following events from Oregon's legal history with the dates of sex discrimination based on differ- when they occurred. David, who created the quiz, is a member of our ences in compensation; if a claim did executive committee and chair of the newsletter committee. not involve equal or substantially equal work and thus failed under the MATCH THE DATES TO THESE LANDMARK EVENTS: Equal Pay Act, the employee could not 1. The Oregon territorial court (sitting in Oregon City) invalidates a stat- bring an alternative Title VII claim ute mandating that Oregon government business, including court busi- alleging that the work was "compa- ness, be conducted exclusively in Salem. (Judge Pratt presumably wrote rable" and the pay differential the re- his dissent in Salem.) _ sult of unlawful discrimination. Gunther v. County of Washington, 20 2. The first territorial legislature of Oregon adopts wholesale the revised FEP 788 (D. Or. 1976). statutes of Iowa as the territorial law of Oregon. __ On appeal, the Ninth Circuit af- 3. Oregon Chief Justice Williams issues Holmes v. Ford. The case held firmed Judge Solomon's factual find- invalid a contract that purported to make the children of Mr. Holmes ing that the female and male prison the "wards" of Mr. Ford, who formerly held Mr. Holmes as a slave, and jobs were not substantially equal. But emphasized that Oregon law would not condone slavery directly or in- it reversed on the legal issue of the directly. __ relationship between the Equal Pay Act and Title VII, finding that Con- 4. The territorial government of Oregon is established, with the federal gress had intended to provide a rem- courts functioning as both the state and federal court. __ edy for sex-based differences in compensation, even when the jobs 5. The murder trial related to the killing of missionaries Marcus and were not substantially equal. If a near Walla Walla is conducted before a crowd of plaintiff could show that the jobs were 300 settlers in a Portland hotel saloon. comparable and that the employer in- 6. The number of attorneys in Oregon reaches 52. __ tentionally paid the women employ- ees less because they were women, 7. One hundred lawyers pledge $100 each to form the Multnomah Law they could make out a Title VII claim. Library. Gunther v. County of Washington, 623 F.2d 1303 (9th Cir. 1979). DATES: A.1850 C. 1890 E. 1859 G. 1848 The Supreme Court granted Wash- B. 1853 D.1851 F. 1849 ington County's cert. petition, and Hewitt briefed (assisted by now Judge Answers on page 8. Rick Haselton) and argued the case on behalf of Alberta Gunther and the three other former jail matrons. Her prove that some of the differential in By opening up a broad range of com- oral argument charmed the Supreme compensation compared to male em- pensation discrimination to potential Court reporter for the American Law- ployees was the result of intentional Title VII challenges, it allowed legiti- yer, who described her as a "pleasantly sex discrimination, even though the mate comparable pay claims to go youthful woman with an open face jobs were not substantially equal and forward; more significantly, it led [and] brightly visible braces on her thus might not justify equal compen- employers to scrutinize and change teeth," but also found her to be a sation. He rejected the county's claim compensation plans on their own ini- "poised and crafty adversary." Ac- that this interpretation would lead to tiative, rather than waiting for federal cording to this veteran court watcher, federal court scrutiny of the pay struc- lawsuits. Commentators saw Gunther Hewitt's argument was crisp and suc- ture of all employers, noting plaintiffs' as removing "a critical barrier" to cinct, conceding points where required allegation that the county had com- employee sex discrimination claims, and assuring the court that it could pared the "worth" of the jobs and as "pivotal in the comparable worth rule in favor of her clients without determined that the female jail ma- debate," and as "[o]ne of the most entirely embracing the controversial trons should be paid 95 percent as important cases in the development of notion of comparable worth. much as male corrections officers, but sex discrimination in compensation Her argument was effective, evi- had in fact paid them only 70 percent claims." dently, and in a 5-4 decision the Court as much. Hewitt helped other women em- agreed with Hewitt's position. Justice Although the precise holding in ployees in cases that were less widely Brennan found that the broad reme- Gunther involved a narrow question publicized. In 1979 she began rep- dial purposes of Title VII allowed a of statutory interpretation, it was resenting several women assistant claim if the women employees could hailed as a critical victory for women. Continued on page 8

7 During the 1970s and early 1980s, DIRECTORS OF THE SOCIETY Carol Hewitt CONTINUED Hewitt was the busiest and most ef- OFFICERS attorneys general who claimed years fective Oregon attorney working on Hon. Michael R. Hogan, Board Chairman; *Hon. Ellen F. Rosenblum, President; "Nancy J of unequal treatment in pay raises and behalf of women who had suffered Moriarty, Vice President/President Elect; ':'Rich- promotions at the Oregon Depart- discrimination based on their gender. ard B. Solomon, Treasurer; "Nicholas S. Fish, ment of Justice. Melinda Bruce, one She did not win every case, and the Corporate/Executive Secretary; *Jeffrey M. of the plaintiffs, recalled that a De- Oregon Supreme Court rejected her Batchelor, Immediate Past President ... partment official at the time justified efforts to use Oregon's anti-discrimi- BOARD MEMBERS lower pay raises for women by not- nation law to require the Boy Scouts ,.Mary Beth Allen; Dr. Donald G. ·Balmer; Alben J. Bannon; the Belloni family, Honorary; ing that their husbands worked, so the to admit girls, Schwenk v. Boy Scouts ':'Clarence M. Belnavis; "David A. Bledose; Ernest compensation received by the women of America, 275 Or. 327 (1976), and Bonyhadi, Honorary; "Stephen L. Brischetto, was "gravy." After obtaining the nec- to eliminate sex discrimination in the Hon. Anna J. Brown; Hon. James M. Burns, essary right to sue letters from the sale of insurance. Thompson v. IDS Honorary; Hon. Wallace P. Carson, Jr., Ex-Offi- cio; Robert L. Cowling; Antonia M. DeMeo; Dr government enforcement agencies, Life Insurance Co., 274 Or. 649 (1976). Gordon B. Dodds; ''Jeffrey J Druckman; Gilion Hewitt filed suit in 1980. Bruce v. But the cases she handled in U.S. Dis- Ellis; "Nicholas S. Fish; George H. Fraser, Hon- Dept. ofJustice, U.S. Dist. Ct. No. 80- trict Court, often based on novel theo- orary; Martin E. Hansen; "Kristin A. Hazard; "Mitchell E. Nornecker; Douglas G. Houser; Lisa 1169. ries and requiring years of litigation A. Kaner; "Dennis C. Karnopp; Randall B. Attorney General Jim Brown, who against tenacious defendants, were an Kester; Prof. R. James Mooney; Chet Orloff, Ex- served between Jim Redden's depar- important part of the seismic shift in Officio; "Hon. Owen M. Panner, Honorary; ture to become a federal judge in the role of women in the workplace- "Kathryn M. Pratt; Lawrence A. Rew, Ex-Offi- cio; "Sarah J. Ryan; ':'Norman Sepenuk; Eliza- March 1980 and the beginning of and in the legal profession. beth Solomon, Honorary; "Thomas W Sondag; Dave Frohnmayer's term in January Caroline P. Stoel; Prof. Mary C. Wood. Tom Balmer is a partner in Ater 1981, made significant changes in at- LIFETIME MEMBERS torney personnel policies and settled Wynne LLP. Jeffrey M. Batchelor, Owen D. Blank, Paul T. Fortino, George H. Fraser, Edwin A. Harnden, the case within weeks of filing. In a Author's Note: Thanks are due to the many consent decree, Brown agreed to con- Wayne Hilliard, Douglas G. Houser, Randall B. people who provided information about Carol Kester, Jeffrey S. Mutnick, Verne W. Newcomb, duct regular and non-discriminatory Hewitt's career. Special thanks to Sara Tait for Daniel O'Leary, Hon. Owen M. Panner, Dian S. salary reviews; hire, compensate, and her excellent research assistance and to Rick Rubanoff, Sarah J Ryan, Arlene Schnitzer, John promote employees without regard to L. Schwabe, Norman Sepenuk, Arden E. Shenker, Haselton, hli Wellman, and Steve Blackhurst Richard B. Solomon, Gayle L. Troutwine, William sex; and advertise promotional oppor- for reviewing a prior draft. F. White, Donald R. Wilson. tunities within the Department. The Part 2 of this article will appear in the Sum- IN MEMORIAM Department continued to operate un- Hon. Robert C. Belloni, Raymond Conboy, mer 2000 issue of this newsletter. der the terms of the consent decree Chester E. McCarty, and Frank Pozzi. until 1997, when a collective bargain- ':'Members of the Executive Committee ing agreement between the State and QUIZ ANSWERS: Newsletter Editor: Carolyn M. Buan a new attorney union was signed. 1. D, 2. F, 3. B, 4. G, 5. A, 6. E, 7. C (503) 224-8024; Design, Jeanne E. Galick

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