From Trial Magazine, August 1999
Because I am a woman lawyer, I am, more often than not, a woman's lawyer. I have represented both women and men in a variety of civil cases, but it's true that the majority of my clients are women. I remember them all.
I remember the 40-year-old woman whose breast cancer was not diagnosed in time to save her life and who sued the negligent doctor to confront him directly and beg him to biopsy every lump from that point forward. I remember a woman who became convinced that her hysterectomy was unnecessary and that her doctor had performed this mutilating surgery to increase his income. She demanded that his conduct be exposed.
I remember a woman who was the sole support of four children and a disabled husband. She came to me when she could not abide the abusive conduct of her coworkers in a group home for children. All efforts to correct the situation internally had failed, and she went public in a desperate- and ultimately successful-attempt to stop the abuse. In the end, she was fired for her trouble.
I remember a beautiful woman whose only physical function was the blinking of her eyes. She was unable to move, speak, or hear as a result of a car crash. Nonetheless, she was cheerful and intent on making a difference in the world. We were able to help her get the equipment necessary to do so. She went to graduate school through a computer she operated by blinking. She outlined a book about her condition, which she called Caught Off-Guard. She wrote me jokes. It was hard to get upset about everyday annoyances with someone like Judy in my life. She died recently, but I think of her often.
I remember clients who were abused sexually by family members when they were children and who, as adults, demanded vindication. I remember clients by the scores who were victims of sex discrimination and sexual harassment and domestic violence.
All these clients have compelling stories. These four are among my heroes.
In 1972, Iowa police departments required patrol officers to be at least 5 feet 9 inches tall and weigh at least 150 pounds. Iowa had never had a woman patrol officer. Phylliss Henry, at nearly 6 feet, met the height and weight requirements. She had an associate's degree in criminal justice, the first woman ever to receive one in Iowa, and had been first in her class and a straight-A student.
Phylliss was the divorced mother of two little girls, ages 8 and 10. She had been an insurance clerk but realized that to provide for her children she needed a career. She had always wanted to be a police officer, so that was the career she selected.
Phylliss tried to apply to be a "patrolman." First, the city refused to give her an application. She was shuffled back and forth between the Civil Service Commission and the police department until they ran out of excuses and gave her the application. She scored first on the civil service test. In response, the police chief announced publicly that no woman officer would be accepted in the Des Moines Police Department as long as he drew breath.
It was at that point that she called me. I was an assistant attorney general for the state of Iowa in charge of the civil rights division. I will never forget my first phone conversation with her. She began by saying, "I am not a women's libber, but... I want to be a cop. I have children to support. I need a man's job, and I can do it." Federal equal employment law had changed to cover municipalities in 1972, and, together, Phylliss and I determined to take on the city of Des Moines and its scofflaw chief. She worked out every day in order to pass the physical agility test, which was at that time designed only for men. She was not notified of the time and place of the examination. A fair-minded city employee came to her rescue, and Phylliss passed- not first, but not last, either.
The city was then faced with a problem. It had a fully qualified female in first place on the civil service test. It had a chief determined to prevent her from serving. It also had a city attorney who could and did read the law. He ordered the chief to accept Phylliss as a rookie cop. Like most women in nontraditional occupations, Phylliss thought that if she did what the job required and did it well, she would be accepted. However, nothing that she did was acceptable to this chief.
She was issued a uniform designed for a man and was required to cut her hair like a man. She did. Her physical training instructor permitted a colleague to choke her to unconsciousness. She was the subject of gross sexual harassment, which continued for several years.
Periodically, the chief would comment publicly about her "unfitness" for duty. He frequently made statements to her and to her colleagues about "women's place" and changed rules on a whim to prevent her from advancing. It was a lonely, difficult time for her, but Phylliss Henry was a determined, competent woman.
Every day presented new challenges, and some were more difficult than others. About three years after she began as an officer, she arrived unannounced at my office in a state of high anxiety and in full uniform, an impressive sight.
Phylliss paced back and forth in my office and explained to me that the night before she had been called to a bar fight at a notorious local saloon. When she got there, chairs and fists were flying. She did not call for backup, as any other officer would have done. If she had, the chief would have pointed to that as an example of her inadequacy as a police officer. Sometimes when she called for backup, no one came anyway.
After she quelled the disturbance alone, she realized that she had endangered her life. We spent hours discussing the situation, and I extracted from her a promise that she would never do that again.
Eventually, the chief was replaced by more enlightened people who recognized that Phylliss was an excellent police officer and an asset to the community. She was promoted to sergeant, permitted to speak to community groups, and put in charge of the night squad of the newly developed foot patrol, which she made into a model for the nation. There was still plenty of resentment by her colleagues, but Phylliss helped lay the groundwork for the acceptance of women in policing in all of Iowa and the nation.
In 1982, after nine years, she left the police force to become the office manager and coordinator of my campaign for governor of Iowa. After we lost, she went back to school and got her Ph.D. in communications and continued to work principally in law enforcement. Iowa's first woman police officer is now the nation's first female U.S. marshal for the Southern District of Iowa.
Phylliss is not only my hero, but a hero to any number of other people whose lives she has saved, whose lives she has touched, and whose lives she has improved.
When the phone rings at 3:30 a.m., you know it's not good news. The Des Moines police were calling to tell me that my dear friend Paulee Lipsman had been raped.
I went immediately to the apartment building where Paulee lived. I learned that her assailant had come through a horizontal sliding glass window in her ground-floor apartment and attacked her in her own bed. She had escaped after the rape by entangling him in the blankets and running to a neighbor's apartment.
The rape happened on September 1, 1984. Paulee was in the middle of a political campaign as finance director for Tom Harkin's first run for the U.S. Senate. She went back to work immediately.
Paulee was a strong woman. She had been a TV reporter working a police beat in the middle of the night, a highly successful radio executive, and now an integral part of an important and ultimately successful political effort. She was incapable of anything but her best continued effort.
But a few days after the campaign was over, all Paulee's armor dropped away, and she entered along, debilitating depression.
Even during that time, she wanted to try to make her apartment building and others safer for women who live alone. The window through which her assailant had entered was clearly defective. Three times in writing and several times by phone, she had complained to her landlord that the window would not lock. No repair was effected.
In 1984, only a few civil cases had been brought nationwide against negligent third parties for intentional criminal acts. We had a slim chance to prevail. We filed the lawsuit against Paulee's landlord, called a press conference, and Paulee-in her own name and with her own voice- called on landlords to take steps to protect women from rapists.
In 1984 in Des Moines, as in so many other places, rape victims were stigmatized and silenced. Paulee refused to be either. At a time when her own life was disrupted, she was determined to try to help others.
Ultimately, Paulee's case was settled for a satisfactory amount. Her attacker was never caught.
Because she was my friend and was intent on doing something about what happened to her, I was thrust into a new area of the law, which has since developed remarkably. The first speech lever gave at an ATLA event, the Mid-Winter Convention in 1985, was about third-party criminal liability. I talked about Paulee's case. I gave that speech-about a topic that was little known and infrequently considered-hundreds of times. I became an evangelist, even writing an article on the subject for Am Jur Trials. (Roxanne Barton Conlin, Landlord Liability for Criminal Attack on Tenant, 35 Am Jur Trials 1(1987).)
Paulee Lipsman was a driving force behind ATLA's focus on third-party criminal liability. Indirectly, she inspired the formation of the Inadequate Security Litigation Group, which has been so successful in bringing together lawyers working in this difficult arena.
The Paulee I knew before September 1, 1984, is gone forever, but the Paulee I know now is a courageous, outspoken advocate for the survivors of crime, and her legacy is a part of my own.
Linda Channon went to work as a part-time "preloader" in the Des Moines office of the United Parcel Service (UPS) in October 1974. She was not welcome in this male-dominated work environment, but her will to survive and her devotion to her three children were stronger than the sexual taunts and cruelty of her coworkers.
Linda was repeatedly passed over for promotion until she finally came to the attention of a fair-minded man who encouraged her to become a driver as a step on the way to management. Under his wing in 1985, she became a full-time supervisor, and before long the preload operation she ran was ranked first in the nation.
Her promotion to supervisor did not shield Linda from continued sexual harassment. In one instance during an official training session, one of her managers literally kidnapped her and tried to force her to have sex with him. She talked her way out of numerous threatening sexual situations and continued to work hard and well. By 1988, she had worked her way up to a position only two levels below the top position in the state.
On November 12, 1993, one of the men who had harassed Linda over the course of her career became verbally abusive to a supervisor under Linda's management. When Linda tried to cairn the situation, the worker backed her up into a dangerous piece of moving machinery, bumped his chest against hers while screaming at her, and poked her twice in the breast. Linda's division manager witnessed this conduct. When the incident ended, the worker was simply sent on his route.
Linda was terrified and demanded that this time action be taken and that she be protected. The worker was fired, but she was criticized for her "weakness."
Her assailant challenged his termination, and a panel of three workers and three managers put him back to work with no instruction to stay away from Linda. He apparently took that as an open invitation to stalk her, which he did on a nearly daily basis. He and his friends would surround her, follow her to isolated areas of the plant, make threatening gestures, and generally terrorize her.
Despite the abuse, Linda continued to perform well. However, management rotation resulted in her coming into the ambit of another man who had hostility toward women in general and her in particular.
Linda was one of the most reluctant clients I have ever had. She did not even contact me until three days before the statute of limitations would have run on her assault claim. We filed that complaint in May 1994. After the case was filed, she was removed from her usual assignment on the basis of false accusations of poor performance. She was shuffled from position to position, including one requiring her to work nights, and ultimately was as-signed to manage a department she did not know, with no training and with a group of subordinates who undermined and sabotaged her work.
Finally, 2 years after she was assaulted, she could no longer go on. She was diagnosed as suffering from post-traumatic stress disorder and went on medical disability. By the time we reached court, Linda Channon had, like many victims of discrimination and harassment, internalized the terrible things said and done to her by her superiors. She was both physically and mentally frail.
During the five-week trial, something miraculous happened. She saw her tormentors repeatedly impeached, saw them crumble on the stand, and occasionally saw a jury of her peers laugh out loud at their made-up excuses and transparent "mistakes." She got to tell her full story for the first time, and the jury was obviously moved.
Only four women had ever reached Linda's level with UPS in Iowa. The other three women provided testimony about the discrimination and harassment they faced. These women were also driven out of the company. Finally, we proved that UPS violated the most basic of all employment laws: Women, including Linda, were paid less for exactly the same work.
The jurors deliberated for four days. They spent most of the time trying to ascertain the appropriate amount of punitive damages. In my closing argument, I told the jury that UPS had net sales in 1996 of more than $12 billion. I told them I did not know what an appropriate amount would be to punish UPS for what it had done to Linda and to many other women employees, but I urged them "not to get carried away."
I learned after the trial that jurors considered awarding 10 percent of the net sales figure because they truly wanted UPS to understand how outrageous the conduct of these managers was. They wanted to send a ringing message and somehow break through the arrogance and ignorance UPS officials displayed throughout the trial. But they remembered that I had cautioned them not to get carried away.
The jury came back with a verdict of $527,872 in compensatory damages and more than $80 million in punitive damages-less than the 10 percent figure, but still a strong message to the company. Since then, the court has drastically reduced the verdict because of the damages cap under Title VII and left only a small fraction of the total amount the jury awarded, to the total disgust of the jurors. They told the press that they felt they had been lied to and betrayed by the law.
They did accomplish at least one significant deed. Linda's self-esteem was restored. She decided to pursue a college education. On May 3, 1998, she entered her freshman year, and through a combination of testing, credit for life experience, and a remarkable number of class hours, she graduated with a four-year degree and nearly straight A's on May 22, 1999.
In the fall, Linda will enter law school. After spending so much time pursuing justice for herself, she has decided it is her calling to help other women do the same. Certainly, she knows whereof she speaks.
Sheri Sawyer Madison
A meat-packing plant is a bloody, noisy, smelly place that is always too hot or too cold. Some people might say it's no place for a woman; indeed, it's no place for a man. However, in small-town Iowa, any jobs that pay more than the minimum wage are very attractive.
Sheri Sawyer was only 20 years old in 1989 when she went to work at IBP, Inc., in Perry, the world's largest meat-packing company. She learned fast-so fast that she became a threat to her male coworkers. With a combination of wit and wisdom far beyond her age, she disarmed them with her humor and her work ethic.
When she started working at IBP, coworkers were unaware that she was living with a long-term employee, an African American man named James Madison, whom she would marry a few years later. When her coworkers learned of the relationship, the racial harassment started. Her complaints to management were unheeded. She told James. He confronted the harassers directly, and for a time, the racial harassment stopped.
Sexual harassment, however, was a constant. The few women who worked on the floor were subjected to a continuous barrage of language of the grossest kind, as well as physical assault, including grabbing, touching, and fondling, much of which occurred in the presence of management-level employees.
Sheri's complaints on her own behalf and on behalf of other women were either ignored or became the subject of great hilarity among the managers. She moved from job to job and shift to shift to try to find a place for herself where she could work in peace and where her significant accomplishments would be recognized.
Sheri applied for virtually every available promotion in the plant from 1991 until June 1997. In 1993, when she was denied a promotion to utility person, a job for which she was well qualified, she filed a union grievance. The matter was resolved when she was promoted to trainer, a higher ranked job and the most responsible position available to hourly workers. She was thrilled with the opportunity.
As the first and only woman ever to hold a trainer position at IBP, Sheri was instantly the subject of daily disparagement. She was touched inappropriately, chased, cursed at, and generally prevented from doing her job. Once again, she tried to endure by changing positions and shifts. Ultimately, she was forced to demote herself to a utility position to try to escape the worst of the continuing racial and sexual harassment.
At that time, November 1994, she and James were the parents of two children. A coworker-who happened to be the brother of Sheri's supervisor-conducted a campaign of racial harassment so vicious that it is almost unbelievable at the end of the 20th century. He referred to her children nearly every day with a stream of obscenities and racial slurs and suggested that she should be embarrassed to take them out in public. She reported his conduct repeatedly but to no avail.
After Sheri demoted herself, she filed a complaint with the Iowa Civil Rights Commission. In August 1995, the commission held a mediation. Sheri's only request was that she be restored to her trainer position and fairly considered for the managerial positions for which she was then applying. The company declined her request. Shortly after the mediation, a trainer position opened and was given to a much less qualified man.
Finally, in March 1996, Sheri arrived in my office. I was amazed that this young woman all alone, had taken on the world's largest meat packer and that she was unwilling to let go despite constant racial and sexual harassment and retaliation for her complaints.
It took another three years to get the matter to court. During that time, the harassment continued unabated. There were many witnesses to the conduct, and some of the harassers admitted their behavior. At trial last February, one high-level manager acknowledged that it was still his view that there were meat-packing jobs that women simply could never do. This, despite the fact that Sheri could do and did do each of those jobs.
The arrogance of the company is best illustrated by the fact that only days before the trial was to begin, IBP security personnel tried to implicate Sheri in drug dealing at the plant. A coworker was caught with cocaine. He and Sheri were friends and had been together that day. This blatant attempt to intimidate Sheri was frightening to her and to me. When the trial ended and the jury returned a verdict in Sheri's favor, I begged her not to return to work. In the spirit of continuing retaliation, IBP took the unusual step of reading every single worker a statement claiming that Sheri's suit was frivolous and that IBP had done nothing wrong. They might as well have painted a target on her back.
Despite their efforts and mine, however, Sheri returned to work. She insisted that she had the right to do so because she had done nothing wrong. Of course, she was absolutely right.
I have marveled at this 29-year-old mother of two and the depths of her courage. I have wondered what has motivated her to live her life in such a principled and compassionate way. Nothing in her background accounts for her heartfelt and overwhelming need to seek and do justice, no matter what. She never counted the cost, she never hesitated, and she was never afraid.
IBP may be the largest meat packer in the world, but it was no match for Sheri Sawyer Madison. One determined woman who cannot be intimidated can bring even the largest corporation to its monetary knees.
These four women inspire me. They and my other clients are my heroes. My life has been enriched by every one of them. I thank them from the bottom of my heart for the opportunity to participate in their lives and to help them to seek justice for themselves and other women.
Click to read " The Real Hero", a response to the article you just read, as published in the "Letters" section of Trial magazine, September 1999 (one month later).