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Penalty phase.

Hefty cash awards in recent bias cases could be a sign that juries are looking beyond a plaintiff's sexual orientation

For a few hours this spring, Pinkerton Security and Investigation Services was effectively closed for business in Detroit. The company wasn't having a corporate retreat, nor Were its workers on strike. Instead, on April 11 the firm had its assets attached as part of a $10-million jury verdict in favor of Sean McBride, a gay man who was paralyzed when three people shouting antigay slurs shot him in 1994 while a Pinkerton guard stood by and watched.

Shutting Pinkerton down "was just wonderful," says Carol McNeilage, McBride's attorney. "We garnished their biggest accounts and starting padlocking their offices." The action ended the same afternoon, however, when a judge granted Pinkerton a stay.

The jury verdict awarded McBride last November is one in a series of sizable awards made in gay-related cases over the past year. In the same Wayne County, Mich., courthouse 1&72 where McBride's case was heard, just one week later a jury ordered St. John's Hospital to pay $14 million to the estate of a gay man who died of a ruptured colon after the hospital delayed treating him and a resident called the man a "scumbag" because of his homosexuality.

In other cases:

* On On November 19 a federal court jury found that school administrators in Ashland, Wis., violated the rights of former student Jamie Nabozny when they failed to protect him from antigay harassment and violence at his high school. A day after the jury ruled, the defendants settled with Nabozny for $900,000. Gay legal experts believe the Nabozny case will have a significant ripple effect around the country. Nabozny puts it simply: "It represented the end of schools' being able to ignore the cries of help from gay and lesbian youth."

* Iowa State University English professor Roy Higginson, who claimed the university denied him tenure because he is gay, won $325,000 in a jury decision November 5. What's significant about the case is that his attorney argued.. that the school had violated the Constitution's guarantee of equal protection under the law and the 14th Amendment.

* A jury in Buffalo, N.Y., on October 18 awarded Danny Greenway $1.4 million--$1 million of which was in punitive damages--because it found that the Buffalo Hilton fired the bartender because he had AIDS.

While such cases point to an increasing willingness on the part of juries to look beyond the sexual orientation of plaintiffs, the verdicts seemed far from certain when the cases were brought to trial. When John Walsh was fired in 1991 as director of housekeeping at a Boston-area Catholic hospital because he was perceived to be gay, the lawsuit he subsequently filed was hardly a slam dunk.

"The perception was that juror homophobia was alive and well," says Daniel J. Driscoll, a Boston lawyer and lead counsel on Walsh's legal team. Prior to the Walsh case, no jury had found in favor of the plaintiff in a job-discrimination case based on sexual orientation in Massachusetts, one of 11 states that protect gays and lesbians from employment discrimination. On December 30 a jury awarded Walsh $1.25 million, half of the money in punitive damages.

Walsh, 41, a lifelong Catholic, says his intention was never to soak the church. "This wasn't the burden I chose to carry," Walsh says, adding that the message he saw in the jury's decision was that "you don't beat up on people who are down."

McNeilage admits that she was unsure McBride's jury would see it that way in the Pinkerton case. "Sean had not been called back by several law firms he contacted," she says. "When I heard the circumstances from him, I knew it was going to be a totally uphill fight. I was very, very concerned about whether a jury in a Midwest town would be able to look beyond Sean's sexual orientation."

The rash of six- and seven-figure judgments buoys legal activists. "It's very heartening," says Patricia Logue, managing attorney for the Midwest area office of Lambda Legal Defense and Education Fund, a national gay and lesbian civil rights group. "If you can get a gay case before a jury in a courtroom where--in theory, at least--jurors look at truth instead of distortion, then you have a chance to see real equality."

With each jury verdict or judicial ruling in a gay person's favor, that helps other plaintiffs who are seeking damages, says Arthur Leonard. a professor at New York Law School and editor of the newsletter "Lesbian/Gay Law Notes." Leonard adds that it's easier to win cases in the 11 states and more than 100 localities that protect gays and lesbians from discrimination. "There are certain cities where most of the judiciary has become gay-friendly, but there are vast sections of the country where the courts are stacked against you, especially in family law," Leonard says, noting cases in which lesbians have lost custody of their biological children.

Lawyers also report seeing greater settlements out of court. "The trend is to treat gay discrimination more seriously in that companies can suffer serious financial consequences in court if they don't make a reasonable settlement offer and if they don't treat the issue more seriously," says Paul Wotman, a San Francisco lawyer who became nationally known in 1991 for winning an antigay-discrimination case against Shell Oil to the tune of $5.3 minion. As a result of that decision, Wotman says, none of his cases since then have ended up before a jury because companies have been willing to settle, often for bigger amounts.

One area gay and lesbian legal experts are watching closely is same-sex sexual harassment. In January a Jury in Kentucky awarded $75,000 to a man after he charged his boss with grabbing him and making sexual remarks. While gay lawyers are a little leery of these cases--they could be used against gay.,men and lesbians--several also believe alleging harassment may be the best way for a gay person who lives in an area without an anti-gay discrimination law to fight for his or her rights.

If there's a common thread that links many of these cases, it's the profile of the people who are winning. "Juries are more sympathetic to us when we've been beaten or are sick or have died," says Mary Bonauto, civil rights project director for the Boston-based Gay and Lesbian Advocates and Defenders. "It's harder for them when we're not obvious victims. The more `aggressive' they think we are, the more skeptical they will be."

Driscoll, who represented a man who never classified his own sexual orientation, agrees: "There's no doubt that an ACT UP type or an in-your-face type of person will have a significantly more difficult time prevailing than will a person who just wants to mind his own business."

Yet even if the plaintiff wins, he doesn't always collect, as evinced by Pinkerton's appeal in the McBride case. "It's not as if he won't be paid in the end," says McNeilage, "but if they push this to the court of appeals and then the Supreme Court, it will probably take three or four years." The only bright side to the delay is that, if McBride prevails, he will accrue interest on the verdict. "It will be worth $16 million or $17 million by then," says McNeilage. "I hope to live to see Sean collect every cent."

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Title Annotation:cash settlements in gay discrimination cases
Author:Moss, J. Jennings
Publication:The Advocate (The national gay & lesbian newsmagazine)
Date:Jun 24, 1997
Previous Article:Enter the red dragon.
Next Article:The happy couple.

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