District attorney’s record indicates no discrimination

Oakland Tribune / ANG Newspapers

MARCH 5, 2007


District attorney’s record indicates no discrimination


  Jay Gaskill

Angela Backers, an aggrieved senior attorney in the Alameda County District Attorney’s office, is suing Head DA Tom Orloff for failing to promote her. She is alleging invidious discrimination, claiming that she failed to win a particular promotion because she is a female.

Ms. Backers has earned a reputation as a hard driving, take-no-prisoners’ prosecutor with a bit of a messianic streak. This is what you want in a trial lawyer who prosecutes the heavy felonies, the murderers and other dangerous lawbreakers. Her boss, Tom Orloff, is a fair, no-nonsense prosecutor with strong ethics and a calm, tough-as-nails management style. These are the qualities you want in the county’s top prosecutor. Both lawyers are very good at what they do.

A disclaimer: While I have no special insider information about this dispute, I do know something about the parties. From my perspective, the Backers’ claim appears to have originated in a clash of personalities and styles; it is not a likely candidate for the epic gender discrimination scandal of the year.

We can assume that this claim was first brought to the attention of the Equal Employment Opportunity Commission (which is given jurisdiction in the first instance over discrimination claims made under “Title Seven” of the Civil Rights Act of 1964). We can conclude that after investigation the EEOC decided not to pursue Ms. Backers’ matter on its own. An issuance of a “permission to sue” letter is routine when this happens in our jurisdiction.

Because I’m not privy to the underlying legal merits, I’ll confine my comments to the public policy considerations.

Tom Orloff was elected and reelected by the people of this county by overwhelming majorities. He was invested by the people, the County Charter and the general law with a very wide discretion in how to run the DA’s office and how to prosecute the cases entrusted to that institution. There is a long and valuable tradition of prosecution independence.

If Ms. Backers’ case directly or indirectly concerns an internal dispute about how the head DA prosecutes or should prosecute criminal cases (and that scenario is all too easy for me to imagine), a lawsuit brought under the rubric of “gender discrimination” is not appropriate.

While Backers’ claim implies that other women have suffered similarly, there are no details to date and no other claimants in her lawsuit. This case is about one plaintiff and an alleged failure to promote her.

The DA in this county has regularly hired and promoted a large number of excellent women lawyers. It appears from the numbers released by the number two DA — Chief Assistant, Nancy O’Malley — that there is no pattern of systemic gender discrimination in Orloff’s office.

When can single case be properly presumed to be discriminatory based on a statistical pattern? I know of no appellate court that would be able to rationally conclude that gender discrimination took place in ACDA just because of these numbers.

A county prosecutor’s office should not have to defend marginal personnel claims.

Unless there is much more evidence than now appears from the pleadings and the press accounts, this is not a case that should have been permitted to go forward. In my opinion, the EEOC office with jurisdiction over this claim has been far too prone to issue “permission to sue” letters. The EEOC should have used much more restraint in this one.

  Jay Gaskill is Bar Area lawyer and consultant who served as the Alameda

  County Public Defender from 1989 though 1999.

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