Gallagher, John, Moss, J. Jennings, The Advocate (The national gay & lesbian newsmagazine)
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. …