Journalnew YORK STATE BAR ASSOCIATION

MARCH/APRIL 2010 VOL. 82 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue The Opportunity to 2009 Trust and Estate Law Judge Manton’s Rise and Fall Be Part of the World ADR for Dental Claims Consumer Protection in 2009 Legal Cases for Gender Equality by Karen DeCrow

BESTSELLERS NEW YORK STATE BAR ASSOCIATION FROM THE NYSBA BOOKSTORE Journal February 2010 BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Debt Collection and the Enforcement of NEW! Tarrytown Money Judgments, Second Edition (2008) e-mail: [email protected] Attorney Escrow Accounts – Rules, Monetary awards determined in court cases involve an Mary Grace Conneely array of procedures that attorneys must know. The new Regulations and Related Topics, Monticello second edition, under the editorship of Paul A. Peters, 3rd Edition Philip H. Dixon This new edition provides useful guidance on Esq., not only updates case and statutory law but also Albany escrow funds and agreements, IOLA accounts addresses new issues within this field, providing in-depth Elissa D. Hecker and the Lawyers’ Fund for Client Protection. The Irvington topical analyses. greatly expanded appendix features statutes, Jonathan Lippman PN: 40308 / Member $125 / List $170 / 548 pages regulations and forms. New York City PN: 40269 / Member $45 / List $55 / 330 pages Eileen D. Millett Foundation Evidence, Questions and New York City Best Practices in Legal Courtroom Protocols, Second Edition Gary A. Munneke Management White Plains (2009) The most complete and exhaustive treatment of Thomas E. Myers The second edition, along with its collection of the business aspects of running a law firm avail- Syracuse forms and protocols, has four new chapters: Pro Se able anywhere. John B. Nesbitt Defendants, Courtroom Closure, Burdens of Proof and PN: 4131 / Member $139 / List $179 / 498 pages Lyons Summations. Gary D. Spivey Colorado Springs, Colorado PN: 41078 / Member $50 / List $60 / 172 pages Consumer Bankruptcy, 2nd Edition This new edition covers consumer bankruptcy Sharon L. Wick from both debtor and creditor perspectives. It Buffalo Medical Malpractice in New York, provides official and procedural forms, as well as MANAGING EDITOR Third Edition the local bankruptcy rules for New York’s federal Daniel J. McMahon This book provides advanced insight into many districts. Albany e-mail: [email protected] aspects of the trial of a medical malpractice case. PN: 40456 / Member $125 / List $170 / 770 PN: 41309 / Member $95 / List $125 / 654 pages pages ASSOCIATE EDITORS Bran Noonan New York Lawyer’s Deskbook New York City and Formbook (2009–2010) Model Partnership Agreements (2009) Philip C. Weis Award-winning and packed with new information Here is a guide for solo and small-firm practitioners Oceanside who wish to establish a partnership or other business and forms for use in over 25 practice areas. form, or to formalize relationships in a law practice Deskbook PN: 4150 / Member $295 / List $375 Formbook PN: 4155 / Member $295 / List $375 PUBLISHER that has no formal structure. Patricia K. Bucklin PN: 41358 / Member $50 / List $60 / 142 pages New York Practice Monograph Executive Director Series 2009–2010 New York Residential Landlord-Tenant This 16-book set comprises chapters excerpted NYSBA PRODUCTION STAFF from the 2009-2010 edition of the New York Law and Procedure (2009–2010) ASSISTANT EDITOR Covers the fundamentals of residential landlord-tenant law Lawyer’s Deskbook and Formbook. It is an invalu- Joan Fucillo and offers a guide to the procedural mechanics practitio- able reference for practitioners who work in or are new to these areas. DESIGN ners face in landlord-tenant disputes. Greatly expanded for Lori Herzing 2009–2010, with numerous samples of judicial forms. PN: 4009GP / Member $400 / List $500 Erin Corcoran PN: 41699 / Member $72 / List $80 / 366 pages NYSBA Practice Forms on EDITORIAL OFFICES CD-ROM 2009–2010 One Elk Street The Plaintiff’s Personal Injury Action in More than 600 of the forms from Deskbook and Albany, NY 12207 New York State Formbook used by experienced practitioners in (518) 463-3200 FAX (518) 463-8844 This treatise answers the tough questions faced by their daily practice. The advanced installation program allows forms to be used in Adobe Acrobat® www.nysba.org the plaintiff’s personal injury attorney every day – Reader,™ Microsoft Word® or WordPerfect.® liens, special needs trusts, structures, Medicare and PN: 615010/ 2009-2010 / Member $280 / ADVERTISING REPRESENTATIVE Medicaid, conflicts of interest, workers’ compensation, List $315 Network Media Partners no-fault, bankruptcy, representing a party in infancy, Bruce Tackett incompetency and wrongful death. Executive Plaza 1, Suite 900 PN: 4181 / Member $175 / List $225 / 1,734 pages 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected]

EUGENE C. GERHART (1912 – 2007) Expand your professional knowledge Editor-in-Chief, 1961–1998

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THE OPPORTUNITY TO BE PART OF THE WORLD Legal Cases for 10 Gender Equality BY KAREN DECROW

DEPARTMENTS 5 President’s Message 24 2009 New York State Legislative Session 8 CLE Seminar Schedule Changes Affecting Trust and Estate Law 20 Burden of Proof BY JOSHUA S. RUBENSTEIN BY DAVID PAUL HOROWITZ The Rise and Fall of 44 Metes & Bounds 28 BY MICHAEL RIKON Martin Thomas Manton 48 Attorney Professionalism Forum BY MARVIN V. A USUBEL 49 Presentation Skills for Lawyers Peer Review BY ELLIOTT WILCOX 34 An Alternative Dispute Resolution Process 50 Empire State Counsel to Dentistry Malpractice Claims 56 Language Tips BY JODY ERDFARB, JEFFREY GALLER AND JUDITH SHUB BY GERTRUDE BLOCK 58 Index to Advertisers 40 New York State Consumer Protection 58 Classified Notices Law and Class Actions in 2009: Part I 63 2009–2010 Officers BY THOMAS A. DICKERSON 64 The Legal Writer BY GERALD LEBOVITS New Members Welcomed – please visit www.nysba.org/welcomemembers CARTOONS © CARTOONRESOURCE.COM

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2010 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | March/April 2010 | 3

PRESIDENT’S MESSAGE MICHAEL E. GETNICK

Membership Challenge 2010: The Not-So-Impossible Dream

rom our bank accounts to our despite a historic downturn in the 401ks to our business ledgers, economy that has negatively impacted Fwe’ve all been watching the bot- the legal profession, speaks volumes tom line for quite some time now, out about the tremendous value that mem- of concern for what the numbers will bership in the State Bar provides. show. The situation is no different at the State Bar. We’ve been closely Annual Meeting Is a Success! watching our investments, tracking The challenges associated with mov- our expenses, and working hard to do ing Annual Meeting to a new location, more with less. When I took the oath of coupled with the down economy, were office last June, I pledged to maintain among our concerns as we planned There were so many phenomenal the first-class level of services that our the State Bar’s 133rd Annual Meeting. moments during Annual Meeting members have come to depend upon, Fortunately, I am pleased to report week, and it is impossible to share as well as focus on the relevant, practi- that our Annual Meeting, which was them all, but here are some highlights: cal programs and initiatives that our attended by about 5,000 people who We were honored that Court of members need during these difficult collectively registered for more than Appeals Chief Judge Jonathan Lippman economic times. I am proud to report 10,000 events, was a tremendous suc- joined us at many events, includ- that, due in large part to these efforts, cess. Nearly 1,100 attended the Tax ing our House of Delegates meeting, we are seeing evidence of sustained Section luncheon – what I am told where he spoke passionately about membership growth. is the largest gathering of tax attor- the Judiciary’s budget request, which In 2007, then-President Kate neys in the nation. Notably, the event includes a desperately needed $15 mil- Madigan issued an ambitious featured Internal Revenue Service lion appropriation for civil legal servic- Membership Challenge, with the goal Commissioner Douglas Shulman, who es and funds for the long-overdue judi- of increasing State Bar membership by chose our venue to make the signifi- cial pay increase. As President-elect 5% and section membership by 10% by cant announcement that the IRS would Steve Younger stated, our Executive 2010. It is Kate’s foresight and leader- begin requiring large corporations to Committee voted unanimously to ship that put us on track to achieve the disclose on their tax returns that they stand side by side with the Judiciary in sustained growth we are seeing today. are taking tax breaks that could be support of its budget request. We are Let’s look at the numbers. For a viewed as unacceptable to the IRS. issuing a call to arms, asking each and sixth year in a row, our membership Clearly, if you are a tax attorney, our every member to write their legisla- has increased. We now have more than Annual Meeting was the place to be. tors urging that the Judiciary’s budget 77,000 members, an increase of more Other successful section events request be approved. The Judiciary than 1.5% over the last year. Moreover, included the Trusts and Estates Law needs the support of the Bar. The since 2008, 18 sections have increased Section meeting, attended by nearly annual caseload of the courts is at an their ranks, and 14 of our sections 500 people, and the Real Property Law all-time high, exceeding 4.7 million have experienced growth ranging from Section meeting, attended by more than filings for the first time. Further, it is 2.7% to 18.5%. This increase is due to 300 people. And more than 550 attend- expected that the economic downturn a sustained commitment from State ed the Presidential Summit, which fea- will continue to bring additional cases Bar leaders and staff to membership tured expert panels on two important to the courts. If the Judiciary does not recruitment and retention, high-quali- and relevant topics – social media and receive the funding requested in its ty and relevant continuing legal educa- wrongful convictions. If you missed budget, it will be forced to reduce its tion programs, and new and expanded this standing-room-only program, you resources to assist lawyers during the can view the webcast at www.nysba. current fiscal crisis. The fact that our org/2010SummitWebcastArchive. MICHAEL E. GETNICK can be reached at membership has grown this past year, [email protected].

NYSBA Journal | March/April 2010 | 5 PRESIDENT’S MESSAGE workforce, potentially through layoffs, In 1935, on the advice of his soon- a person who throughout his life has at a time when the courts’ workload is to-be father-in-law, Mr. Gillespie gave moved forward. More important, he increasing. Undoubtedly, this would up a shot at being an Olympic skier has moved our profession forward. It jeopardize the fair and swift adminis- to attend Harvard Law School. His was my tremendous honor to recog- tration of justice. Again, I urge you to achievements as a lawyer are many, nize him with our Gold Medal. write your legislators in support of the but he is most well known for his role In introducing Mr. Gillespie, I stated Judiciary’s budget. in the United States Supreme Court that the best introduction I could give Another highlight of Annual landmark case of Erie v. Tompkins, and was to say that most achievements Meeting week was a luncheon honor- as the lawyer who backpacked into thought to be impossible are accom- ing our fourth Empire State Counsel the Grand Canyon’s Inner Gorge in plished by somebody who did not know class, consisting of more than 1,400 130-degree heat to collect a crucial they were impossible. This brings me attorneys who provided more than a piece of evidence from an airline crash. full circle, to where I began. When Kate quarter million hours of pro bono ser- As State Bar president, he brought 347 introduced the Membership Challenge, vices for the poor. All designees had to young lawyers to Washington D.C. there were many who thought it impos- provide at least 50 hours of pro bono to be admitted to the United States sible. And that was before the reces- service in 2009, but many went above Supreme Court, and he took time – sion led to significant layoffs within and beyond by donating anywhere from 8 a.m. to 3 a.m. the following day – the legal profession. But the impor- from 800 to 2,400 hours of free legal to personally meet each and every one tant thing is that, despite adversity, services to the poor. of them. And, he introduced the con- we have continued to move forward, For me, the most memorable cept of traveling across New York to listening and responding to our mem- moment was presenting Hazard foster relationships with local bar asso- bers’ needs, ensuring that we remain Gillespie, who served as president of ciations and to build the State Bar’s relevant to our profession, in both the the State Bar from 1958–1959, with the membership. As membership chair, he good and bad times. If you have not yet Association’s highest honor, the Gold helped raise membership from 11,000 renewed your membership for 2010, Medal. At 99, Mr. Gillespie has been to 15,000 – a 36% increase! I urge you to do so now. Lend your a member of the State Bar for nearly Many people judge someone’s voice to the largest voluntary state bar 60 years. He is senior counsel at Davis career or life’s work as to whether in the nation; lend your expertise to our Polk & Wardwell, where after more they were to the left or to the right. important work on behalf of the legal than 75 years he still comes to the office But, those people are looking in the profession. As a 40-year member of this every day, devoting his time to pro wrong direction. Instead, they should great Association, I can assure you that bono service. be looking forward like Mr. Gillespie, membership is a solid investment. ■

There are millions of reasons to do Pro Bono. (Here are some.)

Each year in communities across New York State, indigent people face literally millions of civil legal matters without assistance. Women seek protection from an abusive spouse. Children are denied public benefits. Families lose their homes. All without benefit of legal counsel. They need your help. If every attorney volunteered at least 20 hours a year and made a financial contribution to a legal aid or pro bono program, we could make a difference. Please give your time and share your talent. Call the New York State Bar Association today at 518-487-5640 or go to www.nysba.org/probono to learn about pro bono opportunities.

6 | March/April 2010 | NYSBA Journal

NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)

The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.

Bridging the Gap Spring 2010 Public Sector Law (two-day program) April 28 New York City March 24–25 New York City May 20 Albany The Examination Before Trial – Honing Your Women on the Move Deposition Skills in Tort and Personal Injury April 29 Albany Cases +Ethics and Professionalism (Video Replay) April 7 New York City April 30 Canton April 9 Latham April 23 Syracuse Immigration Law April 30 Buffalo; Long Island (two-day program) Health Law Fundamentals May 4–5 New York City April 9 New York City DWI on Trial April 16 Albany (one-and-a-half-day program) Introductory Lessons on Ethics and May 6–7 New York City Civility for 2010 (9:00 am – 1:00 pm) Practical Skills: Basic Torts April 9 Rochester May 6 Albany; Buffalo; Long Island; April 16 Buffalo; New York City Westchester April 23 Albany; Long Island May 7 New York City; Syracuse Practical Skills: Family Court Practice Estate Planning After Divorce April 13 Albany; May 6 Syracuse New York City; Rochester; May 7 Westchester Westchester May 26 Long Island April 14 Buffalo; Long Island; Syracuse June 2 Albany; Buffalo June 9 New York City; Rochester +The Nuts and Bolts of Arbitrating Individual Employment Claims (Webcast) Long Term Care April 16 Albany May 7 Buffalo May 14 New York City Practicing Matrimonial and Family Law in May 21 Albany Chaotic Times – Part Two (9:00 am – 1:00 pm) Tenant Screening and the Correction of Records April 16 Long Island (9:30 am – 11:30 am) April 23 Westchester May 11 New York City May 14 New York City Fraudulent Practices in Real Estate May 21 Rochester June 18 Albany May 13 New York City +14th Annual New York State and City Tax Fraudulent Practices in Real Estate Institute May 13 New York City April 22 New York City June 8 Albany Practical Skills: Mortgage Foreclosures and Workouts April 22 Albany; New York City; Rochester April 27 Buffalo; Long Island; Syracuse April 29 Westchester

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NYSBA’s CLE Online ONLINE | iPod | MP3 PLAYER

Bringing CLE to you... anywhere, anytime. Starting Your Own Practice May 21 New York City All online programs available in People’s Law School Tenant Screening and MP3 format to download to your the Correction of Records (6:00 pm – 8:00 pm) iPod or other MP3 player May 24 New York City NYSBA is proud to present the most flexible, Avoiding Ethical Pitfalls for Solo and Small Firm Practitioners “on demand” CLE solutions you could ask for. (5:30 pm – 8:30 pm) With CLE Online, you can now get the valuable May 25 New York City professional learning you’re after Advanced Document Drafting for the Elder ...at your convenience. Law Practitioner June 2 Westchester > Get the best NY-specific content from the June 3 New York City; Syracuse state’s #1 CLE provider. June 8 Long Island > Take “Cyber Portable” courses from your June 10 Buffalo June 11 Albany laptop, at home or at work, via the Internet. Ethics and Professionalism > Download CLE Online programs to your iPod or MP3 player. (9:00 am – 12:35 pm) June 4 Rochester > Everything you need to obtain full MCLE June 7 Westchester credit is included online! June 9 New York City June 10 Long Island; Syracuse June 17 Albany TBD Buffalo; Ithaca Representing a Political Candidate (9:00 am – 1:00 pm) June 18 Westchester June 22 Albany June 23 Buffalo; Long Island June 24 New York City; Syracuse 2010 Insurance Coverage Update Come click for CLE credit at: June 18 Albany; Long Island; www.nysbaCLEonline.com Syracuse June 25 Buffalo; New York City Features Electronic Notetaking allows you to take notes while listen- To register ing to your course, cut-and-paste from the texts and access notes later – (on any computer with Internet access). or for more information call toll free 1-800-582-2452 Audio Seminars complement the onscreen course texts. You control the pace, and you can “bookmark” the audio In Albany and surrounding areas dial (518) 463-3724 at any point. Or fax your request to (518) 487-5618 Bookmarking lets you stop your course at any point, then www.nysba.org/CLE pick up right where you left off – days, even weeks later. (Note: As a NYSBA member, you’ll receive MCLE Credit can be obtained easily once you’ve completed a substantial discount) the course – the form is part of the program! Just fill it out and mail it in for your MCLE certificate.

KAREN DECROW thanks her law clerk, Robert S. Webb III, a second- year student at the Syracuse University College of Law, for his editorial assistance in the prepara- tion of this article. She also thanks Robert Seidenberg, M.D., with whom she explored and shared the ideas included in this article, for his insights. Ms. DeCrow’s bio is on page 19.

The Opportunity to Be Part of the World Legal Cases for Gender Equality By Karen DeCrow

Introduction to and in the home. If feminism has accomplished one In recent decades sex discrimination has emerged as a goal, it is to liberate women from that stereotype. Or, prominent area of legal practice. Law schools teach cours- as the late Bella Abzug, member of Congress, put it, “a es on the subject, law firms have departments devoted to woman’s place is in the house, and in the senate.” the practice, and law journals publish articles that illumi- nate the topic. Marriage Gender roles are arbitrary and capricious. Sex role ste- For many of us, the stereotype is still too close. It is reotypes have no place in society and certainly no legiti- less than 40 years since the Supreme Judicial Court mate place in our laws. The goal should be the eventual of Massachusetts decided Green v. Commissioner of blurring of gender roles. Corporations and Taxation.1 In Green, the court held that As attorneys we must each take a deep breath and income received by Mrs. Green while she lived in New put aside what we were taught as children, that males Hampshire was subject to Massachusetts tax by virtue of and females are different and their roles cannot be inter- the established common law rule “that a wife’s domicile, changeable in work or in play. Humans do differ greatly, absent some marital wrong committed by her husband, one from the other, but not on the basis of sex. follows that of her husband.”2 For centuries the main stereotype has been that men A few years earlier, in Meeker v. Meeker,3 a wife was rule the world outside the home and that women belong forced to file for divorce in Pennsylvania, a state where

NYSBA Journal | March/April 2010 | 11 she did not live, because that is where her husband lived There were weight requirements. They had to be single. at the time. The Supreme Court of New Jersey held that Married women were excluded. And, they were sup- the Meekers could not file for divorce in New Jersey posed to be beautiful. because, although the wife lived there (and both had The job description sounded more like that of a film lived there at the time of their marriage), the husband star rather than a person in charge of the safety of pas- now lived in Pennsylvania. sengers. In Diaz v. Pan American World Airlines, Inc.,11 In 1964, in Schneider v. Rusk, the U.S. Supreme Court expert witnesses testified that the job was, of necessity, upheld a statute that provided that although an American held by women. male did not suffer loss of citizenship during his marriage Pam Am sought . . . to explain in psychological terms to a foreign citizen, an American woman did.4 . . . [why] most airline passengers of both sexes prefer These decisions reflected a centuries-old tradition to be served by female stewardesses. . . . Th[e] envi- that determined not only the legal, but the social and ronment, said Dr. Berne [their expert], creates three economic conditions of marriage. Women were gener- typical passenger emotional states with which the air ally considered the property of their husbands. And, of carrier must deal; first and most important, a sense of course, one can move property at will. apprehension; second, a sense of boredom; and third, a feeling of excitement. Dr. Berne expressed the opin- Jury Duty ion that female stewardesses, because of the nature of their psychological relationship as females to persons In 1961, in Hoyt v. Florida,5 the U.S. Supreme Court ruled: of both sexes, would be better able to deal with each of Despite the enlightened emancipation of women from these psychological states. . . . He explained that many the restrictions and protections of bygone years, and male passengers would subconsciously resent a male their entry into many parts of community life for- flight attendant perceived as more masculine than merly considered to be reserved to men, woman is they, but respond negatively to a male flight attendant still regarded as the center of home and family life. perceived as less masculine, whereas male passengers We cannot say that it is constitutionally impermissible would generally feel themselves more masculine and for a State, acting in pursuit of the general welfare, to thus more at ease in the presence of a young female conclude that a woman should be relieved from the flight attendant. He further explained that female pas- civil duty of jury service unless she herself determines sengers might consider personal overtures by male that such service is consistent with her own special attendants as intrusive and inappropriate, while at the responsibilities.6 same time welcoming the attentions and conversations of another woman. He concluded that there are sound 7 In 1970, in DeKosenko v. Brandt, the plaintiff attempted psychological reasons for the general preference of air- to overturn N.Y. Judiciary Law § 599(7), which permitted line passengers for female flight attendants.12 women to claim exemption from jury duty because of their gender. The judge held: Flight attendants had to be under the age of 32. This Her lament should be addressed to the “Nineteenth was supposedly because most airline passengers were Amendment State of Womanhood” which prefers clean- businessmen who presumably liked being waited on by ing and cooking, rearing of children and television soap young women. This requirement had no rationale – the operas, bridge and canasta, the beauty parlor and shop- flight attendant was not there to be a date, she was there ping, to becoming embroiled in plaintiff’s problems.8 to save your life, when necessary. Hoyt was overruled in 1975 by Taylor v. Louisiana,9 Eleven years after Diaz, Wilson v. Southwest Airlines13 when the Supreme Court held that the systematic exemp- established the job description for the job of flight atten- tion of women from juries constituted a violation of a dant. It is not to make male passengers feel more mascu- rape defendant’s Sixth Amendment right to a jury repre- line (whatever that might mean). It is to help ensure the sentative of the community. safety of passengers. In 1979, in Duren v. Missouri,10 the Court nullified the Wilson concerned a group of men who wanted to be option for women to decline jury duty because no such flight attendants for Southwest Airlines. They filed a class option was available to men. action suit against the company for hiring only women as flight attendants. Southwest defended its policy by stat- Employment: In the Sky ing that “female sex appeal” was a vital part of the cor- The occupation of flight attendant used to have glam- porate image. (Southwest’s brand was the “love” airline.) orous connotations. The “stewardess” got to travel the The court held that what is essential is whether men are world. For a young person brought up in a small town equally able to perform the tasks needed for the “essence” or on a farm this was a dream come true. There was no of the airline’s business – the safe transportation of pas- shortage of applicants for every opening. sengers. Thus, the finding was that Southwest’s policy The job was open to women only, and whites only. No was illegal. The men won their case. person of color need apply. Candidates had to be slim. CONTINUED ON PAGE 14

12 | March/April 2010 | NYSBA Journal

CONTINUED FROM PAGE 12 Ms. Weeks charged that the telephone company would not consider her for the job of switchman purely on the Other challenges involved pregnant flight attendants basis of her sex. The court found that the company vio- who did not choose to be grounded. Eventually, they were lated the Civil Rights Act when it refused to consider a allowed to decide when to stop flying, after consulting female employee’s application since the employer had their physicians; corporate headquarters could not make failed to meet the burden of proving that sex is a bona the determination. Another challenge was to the strict fide occupational qualification and that females would be weight requirements. When the job of flight attendant unable to be safe and efficient switchmen. In other words, was still equated with that of model or movie star, the Southern Bell could not prove that females would be women had to be stick thin. In Europe, however, I noted unable to work as safe and efficient switchmen. that the flight attendants were not Southern Bell’s contention that emergency necessarily thin, and not nec- work could require Lorena Weeks to use essarily glamorous. This gave heavy equipment or be subject to late- me the courage to attack the hour call-outs was a speculative smoke requirements as ridiculous. Another screen for discrimination. Decades later, I saw the news In 1969 the Equal Employment footage of the jet that had crash challenge was Opportunity Commission (EEOC) landed into the Hudson River (the federal administrative agen- after an unnerving encounter to the strict cy which is charged with enforc- with a flock of birds. The pilot, ing the Civil Rights law) held Capt. Chesley Sullenberger III, weight that state protective laws have was the hero, no doubt. But stand- ceased to be relevant to our ing with him were the flight atten- requirements. technology or to the expand- dants who had risked their lives to ing role of the female in our guide each passenger to safety. It economy. Because such laws was obvious that these were seasoned tend to discriminate rather employees who had taken advantage of than protect, the Commission seniority to work a desired flight. They were definitely will not regard them as a defense to a Title VII charge.15 middle-aged women. Their experience saved lives! Performing tough, even unpleasant, work is worth the candle if it pays enough. As the court wrote: “Title VII rejects Employment: Unromantic, but Well Paying just this type of romantic paternalism as unduly Victorian It’s a very hot summer day. I sit in my air-conditioned car, and instead vests individual women with the power to waiting at a road stop. Repair work is being done, and we decide whether or not to take on unromantic tasks.”16 are down to one lane. Finally a worker in the crew waves us along. I note that the person is female. She is sunburnt Motherhood: Women, Children – and Fathers and hot. This is hard work. Irony abounds on the subject of motherhood. On the one I watch her and think about several cases I have hand, a young girl is taught from the time she is a toddler, brought to admit women into various highway depart- and a baby doll is placed in her arms, that the highest call- ments. Should I feel guilty? I say to her, “You could be in ing is that of a “mother.” Young boys are not taught that a nice air-conditioned office.” their highest calling is that of father. If you doubt this, “Right,” she says. “Making one-quarter of what I am give a baby doll as a gift to a boy. Note the reaction of the earning now!” Res ipsa loquitur. parents. Perhaps panic. Men have always had the right to determine whether Once a woman has her first child, her situation as an the incremental increase in remuneration for strenu- employee changes dramatically. Employment handbooks ous, dangerous, obnoxious, boring or unromantic include the right to parental leave. (This is often called tasks is worth the candle. The promise of Title VII is maternity leave.) But the subtle impression of a woman that women are now to be on equal footing.14 who has a baby is that she will not be as devoted to the Lorena Weeks won the right to be a switchman at job. Her career path may be littered with road blocks. She Southern Bell Telephone Company. Her case used Title may be kept out of the loop or not given access to assign- VII of the Civil Rights Act of 1964 to overturn a “pro- ments with the prime clients or customers. tective” law that prohibited women from lifting more Here is what the U.S. Supreme Court held in 1908, in than 30 pounds on the job. Most cases designed to bring Muller v. Oregon.17 It was the law of the Court and the law women into the work force in jobs that require difficult of the land until 1971: physical labor are based on Weeks. It is the key case on That woman’s physical structure and the performance bona fide occupational qualification. of maternal functions place her at a disadvantage in

14 | March/April 2010 | NYSBA Journal the struggle for subsistence is obvious. This is espe- Case Files cially true when the burdens of motherhood are upon I have been involved in a large number of women’s rights her. Even when they are not by abundant testimony of cases. Here are two that are particularly close to me. the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to have injurious effects upon the body, and as healthy The Environment: Boys AND Girls Are Welcome mothers are essential to rigorous offspring, the physi- That the operation of Camp Rushford for boys only, cal well-being of woman becomes an object of public under the direction of the New York State Department interest and care in order to preserve the strength and of Environmental Conservation, be terminated as soon vigor of the race.18 as the funds are available to make it co-educational: for Thus, the Supreme Court classified women as moth- the 1981 camping season, if possible, and if not, for the ers – or potential mothers. What was at stake here was 1982 camping season.25 nothing less than the future of the human species. Muller and . . . continues: [t]hat the New York State Division of the Budget be Still again, history discloses the fact that woman have directed to provide sufficient funds to convert Camp always been dependent upon man. He established his Rushford from a boys only camp to one providing control at the outset by superior physical strength, facilities for both boys and girls. and this control in various forms, with diminishing Thus ordered the Hon. John O’C. Conway, Supreme intensity, has continued to the present. . . . Though Court of the State of New York, on March 9, 1981. limitations upon personal and contractual rights may This saga incorporated every sex role stereotype be removed by legislation, there is that in her disposi- imaginable and included not only much sound and tion and habits of life which will operate against a full fury, but also considerable humor. It started when I was assertion of those rights. She will still be where some approached by Lorca Sheppard, a 12-year-old student, and legislation to protect her seems necessary to secure a her father. Lorca, who was named after the Spanish poet, real equality of rights.19 Federico Garcia Lorca, had seen a brochure advertising Limitations on personal and contractual rights of the state-run Rushford Environmental Education Camp women are necessary. for Boys, in Allegany County. She wanted to attend, but Differentiated by these matters from the other sex, she was excluded because she was female. Advertisements is properly placed in a class by herself, and legislation described the camp as open to boys aged 12 to 14 years designed for her protection may be sustained, even old from Central and Western New York. when like legislation is not necessary for men and “I didn’t think it was fair,” she said. “It’s a state camp. could not be sustained. It is impossible to close one’s Everybody should be able to go to it.”26 eyes to the fact that she still looks to her brother and At the time Lorca was in seventh grade at the depends on him . . . that her physical structure and Jamesville-Dewitt Middle School. She told journalist proper discharge of her maternal functions – having Robert W. Andrews that her participation in the lawsuit in view not merely her own health, but the well-being grew out of a general conviction that women are too often of the race – justify legislation to protect her from the at an unnecessary disadvantage in American society. She greed as well as the passion of man.20 stated, “I think things should not lean so much towards The Muller language has been cited in excluding one portion of the population . . . , towards men.”27 women from juries,21 in allowing different treatment for She cited politics and the police force as examples. men and women in licensing occupations,22 and in keep- “I notice there aren’t many women in elected positions. ing women out of state-supported colleges.23 And there are not many women police on patrols. There Finally, in 1971, the U.S. Supreme Court untied the should be,” she said.28 Even at her own school, she noted, tight knot between women and children. In Phillips v. the boys soccer team gets to play more games with other Martin Marietta Corp.,24 the Court ruled that it is contrary schools than the girls do. Lorca also said that most of her to Title VII of the Civil Rights Act of 1964 for a company friends at school shared the same convictions she had to refuse to hire a woman because she has pre-school-aged about women’s rights. children when it does not refuse to hire men who have I’d known Lorca for some time. When she was six – pre-school-aged children. This is the first Title VII case and I was the National President of NOW – she par- to go to the Supreme Court. This is the beginning of the ticipated in a protest, sponsored by NOW, against the acknowledgment of fatherhood (men also are parents). Miss America Pageant in Atlantic City, New Jersey. We Unfortunately, it is still the case that until and unless were conducting a mock beauty pageant, and I dressed the care of children, and the housekeeping tasks, are as Wonder Woman and Lorca dressed as Little Wonder accepted as responsibilities for women and men – success Woman. A photograph of the two “Wonder Women” was on the job will be for unmarried women, superwomen, published in People magazine. and exhausted women only.

NYSBA Journal | March/April 2010 | 15 So, we began the legal fight. First, the argument was, Social Club, or a Part of Doing Business? where would the campers sleep? Girls can’t be sleeping For many decades women were excluded from service in the same bunk as the boys, we were told. We made clubs, a major part in the business life of any city, large or several suggestions: Since there were four sessions (each small. In Minnesota, the Minneapolis and St. Paul chap- two weeks long), they could alternate sessions for the ters of the Jaycees challenged the national organization’s boys and the girls. Or, they could divide the facilities into male-only policy by admitting women as full members. a boy’s section and a girl’s section, and they could go to The national organization penalized the chapters; the camp together. chapters filed discrimination claims. The national Jaycees The next major argument was over bathroom and claimed that as a private club it had a First Amendment shower facilities. Were we suggesting that boys and girls right to exclude women, and that the Minnesota law pro- shower together? We were not. We suggested they could hibiting discrimination in places of public accommoda- create single-sex bathrooms from the existing boy’s bath- tion did not apply. The U.S. Supreme Court disagreed.32 rooms. The Court held that the unselective membership policy Then it was argued that it was simply too dangerous and the large size of the Jaycees organization took it out for girls to go away from home. That argument was too of the category of a private group whose right to associa- silly even to address. tion is protected under the Constitution. Minnesota civil Because the camp’s name included the word “educa- rights law applied; the Jaycees were required to admit tion,” we argued that limiting participation to boys is a women.33 And in 1987 the U.S. Supreme Court applied the violation of Title IX of the federal education act, in addi- California law banning tion to being a violation of sex discrimination in New York State educa- any “business estab- tion law. lishment” to the Rotary On January 28, 1981, Clubs in the state.34 the New York Times ran Why so much fuss an article: “A 12-year Then it was argued over private clubs? What old girl has won her is so terrible if men want case against a state-oper- that it was simply too to gather, with no girls ated summer camp for allowed? What made the boys.”29 dangerous for girls to grown-up version of the On March 18, 1981, the tree house such a target of New York Times continued go away from home. lawsuits? its coverage: First of all, business is Wonder Woman and Little conducted in these clubs. Wonder Woman have Contacts are made. You need struck again, this time win- an accountant, a lawyer, a house ning a victory over New York State in their struggle painter? Find the right person at your Tuesday luncheon. against sexism: The dynamic duo are Karen DeCrow, But this issue goes beyond business and money, although a lawyer and well-known feminist, and her young that certainly is a motivation for going into court. What protegee, Lorca Sheppard, a 12-year-old Syracuse girl, women were asking for, were demanding, were taking to who, it may be recalled, appeared in Wonder Woman costumes in Atlantic City six years ago to protest the court, was the opportunity to be part of the world. They Miss America Pageant. wanted the opportunity to be central figures – outside of Now, as a result of a new effort, conducted in civil- the home. 35 ian clothes in State Supreme Court in Syracuse, New One such person is Bonnie Orendorff. Seventeen York State has been ordered to accept girls at Camp years after the U.S. Supreme Court required the Jaycees to Rushford, an all-boys environmental camp in Allegany admit women as members, she was denied membership County.30 by the Rome, New York, Elks Lodge on January 4, 2001. In addition to violating Title IX, the state was in vio- Although many local Elks groups were integrated by gen- lation of the provisions of § 40-c of the Civil Rights Act der, this was one of the groups which remained single sex. of the state of New York. Lorca Sheppard’s victory was On Friday nights, Bonnie Orendorff prepared fried noted nationwide. For example, Jane Pauley, then the fish dinners for the men of the Rome Elks Lodge. She co-host of the NBC Today show, wrote: “Congratulations! would then join her coworkers for a drink at the small Camps are for kids!”31 bar where the wives of Elks and female lodge employees Lorca made history but didn’t get to attend environ- could socialize.36 Down the hall at the lodge’s main bar, mental education camp: by the time New York State integrated the facility, she was too old for the program. CONTINUED ON PAGE 18

16 | March/April 2010 | NYSBA Journal

CONTINUED FROM PAGE 16 Bonnie Orendorff’s attorneys – I represented her, as a the Rome Elks’ exclusively male membership drank and cooperating attorney with the New York Civil Liberties talked; women were not allowed. Union, as did lawyers from the American Civil Liberties Orendorff knew that other Elks Lodges were moving Union Women’s Rights Project – sought to change the towards gender equality. In fact, in 1995, the National construction of the Benevolent Orders Law and to have Fraternal Organization had ordered its chapters to start the New York rule consistent with the U.S. Supreme admitting women.37 Court opinions in the Jaycees and Rotary cases. Hoping they could belong to the same club as their In his decision of January 9, 2003, Judge Robert F. husbands and fathers, Orendorff, Deborah Lince-Milotte, Julian enunciated what is the overall rule in New York Peggy Elia, and Laura Elia submitted their first applica- State: “The Human Rights Law is to be construed liber- tions to join the Rome Elks Lodge in 1999 and received ally to accomplish the purposes enumerated therein.”42 the first of three rejections. He concluded, “It was arbitrary, capricious and an Bonnie Orendorff’s husband, Roger, who had been an abuse of discretion” for the New York State Division of Elk for 20 years, supported his wife’s desire to join the Human Rights to have dismissed the complaint of Bonnie organization. He said of the Lodge’s assertion that it was Orendorff.43 selective in admitting members, “that he ha[d] never seen At first glance this case, like so many others, seems to a male’s application denied in his [20] years as a member have been merely a tangled web of procedural wrangling. of the Rome lodge.”38 But it has strong substantive importance in the history of Orendorff went on an Internet letter-writing campaign women’s efforts to be full participants in the outside world. and gained support from the New York Civil Liberties To my pleasure, Bonnie Orendorff kept in contact with Union. On April 19, 2001, she brought a complaint against me. Eventually she and her husband moved from Rome, New the Elks before the New York State Division of Human York, to Florida. She called to tell me the following: Shortly Rights. On June 19, 2001, the Division of Human Rights after they moved, she and her husband went to a fish fry dismissed the complaint.39 The determination had relied being hosted by the Elks in their Florida town. When Bonnie on an interpretation of New York law: “Respondent is introduced herself, many people in the room recognized her incorporated under the benevolent orders law and is name. That lodge, which had many members, greeted her therefore distinctly private and not a place of public like a celebrity, a hero. They gave her a standing ovation. accommodation.”40 Bonnie Orendorff brought an Article 78 proceeding that Conclusion August, seeking review of the determination by the New It may be a source of amusement, or it may be a source York State Division of Human Rights, a declaration that of horror, but as recently as 1872,44 the U.S. Supreme Executive Law § 292(9) is unconstitutional, and a review Court declared that it was God’s will that women not be of the Rome Elks decision to deny her membership.41 allowed to practice law: It is also to be remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons. . . . That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth. In view of these facts, we are certainly warranted in saying that when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women. This is no longer the law in the United States. But even laws which have changed are still in our consciousness. Both women and men have these stereotypes and pat- terns in their heads. Are changes in the law due to political modifications, or is it the converse? Does the law, in existential fashion, reverse our behavior?

18 | March/April 2010 | NYSBA Journal Karen DeCrow Women’s rights are part of the inexorable march of Karen DeCrow is a nationally recognized attor- human rights across the planet, toward equality and jus- ney, author, activist, and leader of the women’s tice. My goal in writing this article is to inspire readers to movement. S