For those who can’t get enough of the Ricci v. DeStefano matter — you know, the Supreme Court case involving a group of 20 firefighters from New Haven — the Connecticut Law Tribune this week offers up a profile of the attorney for the plaintiffs, Karen Lee Torre. 

But those hoping for a second act from her may have to wait a little longer as she has cut back on her legal work:

Following the Ricci decision, Torre says she has received numerous job offers asking her to become a lobbyist or a spokesperson for special interest groups. While she has turned down those offers, she has agreed to be a consultant on about a half-dozen cases around the country involving claims of reverse discrimination.

At the same time, litigating Ricci has worn down Torre to the point that she is going into semi-retirement for the time being.

“Ricci was a fabulous experience and my most personally rewarding experience,” she said. “But it made me want to leave the practice of law, and I don’t know what’s next.”

Those who know Torre either love or hate her. There is no in-between. An exchange last year between Torre and the CHRO led to heated exchange of words and is certainly an example of the love/hate relationship she has with some. (And heaven knows that her views on the ABA are far from enlightened). 

But she has done what many attorneys dream of doing: Winning a case before the U.S. Supreme Court on behalf of clients that she believes in.

And even she realizes that nothing else she does in the legal profession may match that. 

“This year has been the most incredible year of my career,” Torre said last week. “Nothing in the past compares to it and nothing in the future will compare to it.”

 

CORRECTED LINK

Over 100 people packed the Grand Courtroom of the Quinnipiac University School of Law last night to hear a panel presentation and discussion on the Ricci v. DeStefano case decided earlier this year by the United States Supreme Court.

The event, sponsored, in part by the Young Lawyers Section of the Connecticut Bar Association, provided some useful nuggets for practitioners and employers on the significance of the decision.

Attorney Karen Lee Torre (who represents the group of firefighters challenging the city’s decision) and New Haven Corporation Counsel Victor Bolden (who represents the City of New Haven — though he has only been in that position for seven months) both talked about what they thought the Ricci case would mean going forward and some of the history leading up to the decision as well. 

The discussion was taped for the CT-N network, which will replay it at times to be announced. 

I used Twitter last night to update people on the event and hit the highlights. Here are some of the tweets to give you a flavor:

  • At the Ricci v DeStefano seminar, with counsel for parties. Real good crowd–over 100. Getting set for CT-N taping
  • At seminar, Ricci atty says Alito’s opinion meant most to her. Lots behind the scenes ‘I can tell you it was dirty’
  • Ricci atty: This was really about ‘crude race mongering’
  • Ricci atty: There wasn’t a single precedent for the lower court’s decision or supporting New Haven’s rationale. SCOTUS was just applying law
  • Ricci atty: My prediction is private e’ers will use test results without much problem; public e’ers still subject to political pressures
  • New Haven Corp Counsel now speaking; emphasizes history of past discrimination & context of city’s decision in Ricci
  • New Haven atty: Court took disparate impact and treatment & pitted against each other; treatment trumps impact
  • New Haven atty: What does Ricci mean for e’ers? Fuzzier answer figuring out the ‘strong basis in evidence’ standard – what’s enough
  • New Haven atty: Ricci decision gives a way to think about the right way for promotions
  • Ricci atty: Court has told us what isn’t ‘strong basis in evidence’ (stray remarks, experts)–but still some murkiness on what is
  • Ricci atty predicts that the case will never be overturned and the Constitutional question (equal protection) will be decided in 5 yrs

Recent published reports stated that the parties are now working on a settlement to this matter.  But regardless, expect to hear more about this case for years to come as attorneys try to decipher the court’s latest pronouncements on race discrimination..

(My thanks to Attorney Mark Dumas who also used Twitter from the event. You can find Mark’s blog here.)

Credit the Connecticut Bar Association Young Lawyers Section with landing all the major players in the Ricci v. DeStefano case for a panel discussion on August 18, 2009 at Quinnipiac University School of Lawl

Full program details are available at the CBA’s website, including registration. 

The panel brings together both the attorney representing the firefighters (Karen Lee Torre) and the corporation counsel for the City of New Haven (Victor Bolden).  It starts at 5:30 p.m. and is open to the public.

The program is co-sponsored by several other bar associations, including the George Crawford Black Bar Association, Connecticut Hispanic Bar Association, Connecticut Asian Pacific American Bar Association and the South Asian Bar Association of Connecticut.

Sounds like an exciting free program. I hope to be able to make it and report back on it.

Sometime last summer, Connecticut attorney Karen Lee Torre sparked a few fires with her suggestion to eliminate the Connecticut Commission on Human Rights and Opportunities — the organization charged with, among other duties, investigating and remedying discrimination in the workplace.  (You can find my prior posts on the exchange here, here and here.

The crux of Attorney Torre’s arguments at the time was as follows:

CHRO was and remains crippled by internal race politics with staffers suing each other and maintaining demographic battle lines. It is Afro-centric, politically correct to a grievous fault and brazenly hostile to the civil rights of white males. It is time to dissolve it or at least gut it with a budget that reflects its worth.

This month, the Connecticut Lawyer published an opinion piece written by my colleague, Joshua Hawks-Ladds, in which he suggests another radical change in the CHRO but for different reasons. You can download the article here

First, he highlights what he believes needs fixing at the CHRO:

Unfortunately, the Commission has become an underfunded, understaffed and perpetually backlogged bureaucracy. Along with many valid discrimination complaints, the Commission’s offices are clogged with specious claims that the Commission is required to investigate. This means that the bona fide discrimination claims against landlords and employers get lost in the morass. Some of the valid claims are removed from the CHRO and litigated in the state and federal courts. However, the many of the claims (over 2,000 are filed each year) languish for years in the agency’s offices. The system is unfair to claimants with bona fide claims, as well as employers and landlords with bona fide defenses.

As a result, he proposes a fix:

a complete overhaul of the Commission’s procedures to mirror the state Department of Labor’s Unemployment Compensation system, with one exception: if either party does not agree with an appeal referee’s decision relating to a charge of discrimination, then that party may appeal that decision, de novo, to the superior court.

It’s a new approach to an old problem.  He acknowledges up front that his proposal is likely to be met with opposition from some. But with many people (on both sides of cases) unhappy with the status quo, the time may be right to at least consider something new. 

An advisory committee charged with making recommendations about changes to the CHRO has been in the works for many many months now.  It’ll be interesting to see what changes they propose to an agency that continues to draw criticism. 

With the Super Bowl over, there are many in Connecticut who would love to start paying attention to baseball (after all, pitchers and catchers report to spring training in about two weeks).

Fortunately, there’s been plenty of drama for New York Yankees fans this week with the release of former manager Joe Torre’s new book, The Yankees Years.  It has been marketed as being somewhat controversial, though the reviews of the book have indicated that it is fairly tame as memoirs go.

Nevertheless, the kerfuffle regarding the book has led to the Yankees mulling some type of confidentiality or non-disparagement clause in future contracts of managers and coaches (see reports here, here and here.) Such restrictions would probably not be applied to players because the union would likely object to such clauses. 

This, of course, raises several questions, including: What does such a clause look like? The clauses are not uncommon in severance or separation agreements (though not necessarily routine), but less so with employment agreements.  The Footnoted blog reprints contracts that have been filed with the SEC as does a website called OneCLE. You can use these site to get ideas of clauses or language that can be used for various employment or separation agreements. 

As for the non-disparagement clauses, there are a few examples you can find on these sites.  One such agreement states:

Employee agrees (whether during or after Employee’s employment with the Company) not to issue, circulate, publish or utter any false or disparaging statements, remarks or rumors about the Released Parties.

Another agreement, is a bit more thorough and states: 

Non-Disparagement. (a) You agree not to disparage or denigrate the Company or, subject to paragraph 10(b) below, its directors or executive officers orally or in writing. The Company agrees not to disparage or denigrate you or your agents, assignees, attorneys, family members, heirs, executors or administrators orally or in writing, and agrees to use its reasonable best efforts to cause its directors and executive officers not to disparage or denigrate you or your agents, assignees, attorneys, heirs, executors or administrators.

(b) Notwithstanding the foregoing provisions of this paragraph, it shall not be a violation of this paragraph 10: (i) for any person to make truthful statements when required by order of a court or other body having jurisdiction, or as otherwise may be required by law or under an agreement entered into in connection with pending or threatened litigation pursuant to which the party receiving such information agrees to keep such information confidential or (ii) for you to respond to any disparaging or denigrating comment made by any director or executive officer.

Are these types of provisions something that companies can consider? Sure, but as with all types of provisions, employers should understand more about the clauses, about the enforceability of such clauses and about why they might need or not need such clauses.  And certainly the language should be tailored to the particular company’s situation.  (As always, seeking some type of legal guidance is recommended before implementing changes to any agreements that a company may use.)

The sword fight (rather, word fight) between a Connecticut Law Tribune columnist and the CHRO shows no signs of abating (for the previous rounds see my earlier post here). 

Round Three comes in today’s paper with a further response from Karen Lee Torre to the letter posted by CHRO Acting Executive Director Robert Brothers.  Let’s just say that she shows no sign of backing down from her earlier criticisms:

…I irked an agency over-populated by people invested in imaginary discrimination and stirred an agency stakeholder to employ an overused smear tactic against critics of his taxpayer-funded widget factory — the canard of bigotry. Brothers asserts that I made “generalizations about persons of a different race or ethnicity.” Rubbish. I did no such thing. I cited the numerous frivolous complaints filed with CHRO, an agency that wastefully duplicates the federal Equal Employment Opportunity Commission. Brothers further interpolates into my column an attack on the “intellectual” gifts of his staff. More garbage. I said many were unproductive, not stupid.

Brothers insists my comments had “ugly overtones” that show his agency is still needed. Having already dispensed with Brothers’ bigot-baiting and redirected it to the trash heap where it belongs, let us consider what is truly ugly — judicial records and CHRO’s annual report.

Then, Attorney Torre cites to this blog for support referring to a prior post where I note that the CHRO’s human rights referees issued just six decisions over the last year.  While I’m flattered for the reference, the point I was making was not to show that the hearing officers were unproductive or incompetent — only that it did not seem like an effective use of taxpower dollars to have so many.  

How can the back and forth stop?

Here’s an novel idea: Attorney Torre and like-minded individuals should be appointed immediately to a task force or working group helping to improve the CHRO.

Will this ever happen? Probably not.  The CHRO and Ms. Torre will probably scoff and laugh at the idea for one reason or another.

But, if both could move beyond the rhetoric, they would realize that Connecticut’s too small to have experienced practitioners like Ms. Torre stand on the sidelines, when a state agency can use help and advice on how to improve.  

Earlier this month, the Connecticut Law Tribune published a column by attorney Karen Lee Torre that was — how do I put this gently — stinging in its criticism of the CHRO and called for its elimination (you can find a link to it in an earlier post .)

Acting CHRO Executive Director Robert J. Brothers Jr. has responded forcefully to the column in a letter published in the Tribune this week:

…[C]olumnist Karen Lee Torre’s suggestion of eliminating or eviscerating the agency is far from constructive. Other agencies with significant responsibilities, such as the Department of Correction, Department of Public Safety, Department of Children and Families, and Department of Motor Vehicles, also suffer from criticism; similarly, it is not in our interest to eliminate any of them.

Unfortunately, whatever points Ms. Torre makes are covered by the mud she slings. What is unnecessary is not the CHRO, as she writes, but unfounded and malicious ill will, which can only hurt, not help. Her generalizations about persons of a different race or ethnicity drive home the reason this agency was created and support the need for our continued existence.

The point Mr. Brothers makes is an eminently reasonable one; there are certainly a number of quite capable people at the CHRO and it is unfair to paint the agency with a single brush.  However, the problem for the CHRO is that the perception remains among some that the agency is either incompetent or incapable of fixing its affairs.  Mr. Brothers seems to recognize this.  Whether the agency is actually incompetent isn’t the issue; it’s fixing the perception that is.

Because eliminating the agency is not, in my view, a productive way to handle the issue, what else can be done?

Well, nearly a year ago, there were reports on a working group that was devised to propose fixes and strategies to the CHRO. But that group has worked out of sight.  Thus, in the short term, the CHRO should consider publicizing that group and letting the public know that it is working on solutions.  Solicit input from the public and post the results on its website.

Ultimately, regardless of the working group’s findings or proposals, the CHRO has to address the perceptions that people have — rightly or wrongly — head on and prove those perceptions wrong with real and verifiable results.  Consider a strategic plan of action with defined goals and results — much like the judicial branch proposed earlier this year.  Better yet, publicize the plan and get input from groups that have a stake in the future of the CHRO. 

In a post tomorrow, I’ll discuss one example of how the CHRO has failed to comply with its own rules; it’s an issue that even Mr. Brothers’ called "embarassing".  If the CHRO is ever going to clean up its’ image, it’s going to need to make sure that issues like that one don’t repeat themselves.