Sunday, July 27, 2014

What's It Like To Be Sued For Discrimination?

We are all human beings.  Well not really.  Technically, while corporations may be legally considered "people"with the benefit of first amendment rights, those of us not on the Supreme Court know that corporations are fictitious concoctions invented by people to avoid real people having personal liability.

But, corporations are formed by real people.  And when a corporation is sued by a current or former employee for discrimination, real people are affected by the lawsuit.  It is hard to be accused of discrimination.  It is hard to be accused of discrimination even when the allegations are true.  Most people do not want to believe that they sexually harass employees.  Most people nowadays claim they are not racist, even if they  tell racist jokes or believe that there are "some good ones" and some who "are not so good."  Even where a manager grabs an employee's rear, he thinks it's either just a joke, or she liked it.

But, we all know that many, if not most, of those accused of discrimination do not believe that he or she has discriminated against anyone.  Sometimes they have not.  Not all plaintiffs are truthful. Not all plaintiffs have the same sensibilities as the rest of us.  I remember the time a woman sought my representation, claiming that she had been sexually harassed because her boss told her she looked nice, and "they are not allowed to do that, are they?"  Discrimination may be subjective.  Growing up in the 1960's I remember what names African-Americans were called by some white people, who probably truly believe that they were not racist.

So what is a defendant to do?  I do not mean to make light of the dilemma of the defendant in a discrimination lawsuit.  Actually, my old law firm was sued for sexual harassment when I was a partner so I have been a defendant in a lawsuit.  It is hard to be a defendant.

Employment discrimination laws had little bite until 1991 when Congress first allowed plaintiffs to have jury trials and provide for the recovery of emotional distress damages and punitive damages.  Things were different in American workplaces before the 1990's.  This spate of discrimination cases in our country is relatively new, even though the Civil Rights Act was passed in 1964.  In the 1960's, some white people did not mind admitting they were racist, but now it is not popular to be racist, a good by-product of the Civil Rights Movement, even if there are more racists who deny being racist than before.

I guess my point, that I am stating inarticulately, is that it is hard to be sued.  Most people who are sued become angry, become defensive, and are truly hurt by being accused of discrimination.  CEO's, managers, HR professionals, and other human beings oftentimes do not like being accused of wrongdoing regardless of what might have happened.  When a company is accused of discrimination, managers can have a variety of reactions.  Some high level managers want to make their companies better and address problems, if there have been any.  Some employers are personally offended and will fight no matter what the facts show.  People are different and companies have different responses, just as people do.

I guess my point is that we are all humans.  We all have different experiences in life.  We all have learned different life lessons.  Some of us cannot tolerate being criticized, whether plaintiff or defendant.  Some of us want to learn from our experiences and become better people.  Some of us have self images that are fragile and cannot tolerate criticism, whether plaintiff or defendant.  We are all people.  Hopefully, thanks to the Civil Rights Movement and the rights and responsibilities that we have in this country, we can all learn and grow and become a better society.

Sunday, July 20, 2014

RANT - Worlds Gone Wild!

What is the problem with human beings?  A passenger plane is shot done over Ukraine, Israelis and Palestinians are working on a "fewer-human-beings-who make-up-a state" solution, and life is fleeting. The world  makes me sad, and I am not getting any younger.  I went to a funeral today and I realize humanity is so screwed up.  My son suggests to me that corruption may be a way that government becomes more efficient, I see first-hand how poorly local governments are run, and . . . then we die.

I am not a bastion of optimism tonight.  Life is an existential crisis.  We kill people, probably because we have no other natural predators besides ourselves.  We inflict pain, torture and atrocities against each other, we treat each other with disrespect, humiliation and/or violence, and then we die.

I just read the first two paragraphs to a family member who responded, "Do you need a hug?" YES!!!! I, and I suspect, the most of the world, needs to hug each other.  I know I sound like a crazy hippy, but I am so disgusted with humanity.  And, quite frankly, I am not really helping.  I do not know how to solve these issues.  I am as petty as the next human.  I haven't killed anyone nor have I committed a violent act against anyone since adolescent, when I bit the shit out of my sister in our last scratching, biting physical fight, except the swat I gave my daughter one morning when she refused to go to school while I was in the middle of trial.  She and I have since made up.

I try my best as a lawyer to help with my version of justice.  But, I am not feeding hungry children, administering to the sick, or negotiating peace settlements between warring factions besides plaintiffs and defendants in discrimination cases. At least I am not protesting needy, scared children seeking refuge in this country, but I haven't done anything to help them, either.

What can one person do?  I don't know.  I delude myself that working to alleviate racism, sexism and ageism makes a difference.  Sure, the cases I work on effect the people involved, but the world is so screwed up, what can really make a difference.

Genocide, atrocities, and rape and killing still happen.  These events will probably always happen.  It's overwhelming.  I still believe that most people want to do the fair, right and just things.  I believe in the goodness of people, but why is there so much destruction now?  What are we doing wrong?

Maybe the "arc of history is long, and it curves towards justice," but I want to see justice now!  I won't be alive in a hundred years.  It is so deflating to see so many people in so much pain caused by so many other people.  What are we doing wrong?  Why do we do these things to each other?  Are we really civilized?  How can we treat others the way we do?  Why is this world so dysfunctional?

I guess I just need to learn to deal with this somehow.  Tomorrow, I go back to work and work on my cases, hopefully helping my clients.  Maybe we all just need to sleep on it.  Right now, I feel like we are caught in a nightmare.  All I can say is, "World grow up!  This shit needs to stop!"

Monday, July 14, 2014

Mimi - The Rescue Dog With A Seizure Disorder

When we took Mimi to the emergency hospital, her seizure would not stop. I hold her like a baby. She would tighten, start to quiver, and then begin to convulse. This pattern repeated several times, so a grabbed her and whispered encouragement into her ear as I caressed her back and neck. I gently spoke in her ear, "Mimi, I love you.  We will take care of you.  This will stop.  You are my best girl."

It may be my imagination, but she seems to relax a little through the seizures when I speak softly and hold her this way. Mike took her into the hospital, where they aided in putting her unconscious for awhile, hopefully breaking the pattern of seizures. Just a few hours later, Mimi was back home.

She walked up to the chair in which I sat in the family room. It is a gigantic beige recliner. I moved my pink purse out of the way, and in a flash she jumped on top of me. She placed her head by mine, as I was reclined and leaning cross-way on the chair. Once little Mimi had her face by mine, she straddled her front paws across my shoulder and lay her belly flat on mine.

I circled my arms around the little dog, careful not to squeeze too tight. Again, I whispered in her ear, "I love you, I love you."  Once I called her Lisa, my daughter's name, which happens frequently.

The vets have told us that when Mimi has her seizures, it does not matter if we hold her because she doesn't have any idea of the outside world. I disagree. When Mimi seizes and I cradle her, she and I are connected. Mimi both feels love and is loving in return.  She feels like the embodiment of all my lost relatives, my connection with my past and my future. Just as when my children were infants, I received so much joy in holding and nurturing them. I have the same nurturing instincts for Mimi.

Mimi is my rescue Boston Terrier, in our lives for just one year so far. Yet, I cannot describe the love I feel for that little girl. Even with her seizures, and concomitant expense, she is perfect. My love for Mimi is a perfect love, and I am not even a perfectionist.

Sunday, July 13, 2014

What Will Happen To Me If I Report . . . Illegal Actions By Management

None of us wants to work for an employer where there is ongoing illegal misconduct.  The boss may be stealing computers from the company, the CEO may be "cooking the books," a supervisor nurse may be stealing drugs from the pharmacy, or a manufacturer may be cutting corners in making drugs.  When a company, through its managers, engages in illegal activity, it is serious.  Thankfully, most employees do not work at a place where illegal conduct is ongoing and unreported.

What happens when you are one of the unlucky employees, where misconduct occurs.  For example, what if you work at a business where products are mislabled as "Made in America" when they are really manufactured in China?  What do you do?

Well, oftentimes, it is very hard to report wrongdoing of a management employee to the authorities or even to other members of management.  The risk is real - job loss.  Of course, many people and many companies do not condone dishonesty or deceit by employees, and, after an investigation, the unlawful behavior is stopped, the employee committing the behavior is dealt with, and the reporting employee can be a hero, the person with the resolve and honor who stops the wrongdoing.  That is how it is supposed to work.

Unfortunately, companies do not always do the right thing.  Remember Enron, where the whistleblowers were pariahs and dismissed or discredited.  A true whistleblower is a rare and brave person, who risks not only losing his or her job, but potentially worse, bad rumors, no recommendations, blackballing, etc.

There are many different laws that apply to whistleblowers, even what is known as the "common law." for in most states when a company violates public policy by engaging in unlawful conduct and firing a whistleblower, even states that protect employers with "employment at will" laws, recognize the societal benefits of brave souls coming forward to do the right thing.  The purpose of this entry is not to provide legal advice.  There are many different laws and many different statutes of limitations.

Rather, this entry is part of my "what will happen to me if . . ." series.  Many whistleblowers, unfortunately are terminated from employment.  Although most people want to do the right thing, not all do.  Greed, power, hubris, all affect ordinary people.  While a whistleblower may be considered by an employer as merely a "snitch," a whistleblower is so much more.  A snitch rats out others to get a better deal in a criminal case.   Whistleblowers come forward even though their actions are against their own self-interest because it is the right thing to do.

Whistleblowers are courageous, but can be and are willing to endure unpopularity.  Whistleblowers suffer loss of income, reputation and security.  But whistleblowers are some of the bravest, most heroic members of society.  I have represented many whistleblowers, some cases have gone to trial.  I can tell you that my whistleblowing clients are some of the people who make me the proudest because what they do is the hardest.

In our society, it is hard to buck the status quo.  It is hard to separate from the crowd.  It is particularly hard to recognize wrongdoing and report it for the betterment of society.  When companies resist following the law, or their boards of directors are too lazy or unconcerned to take action, whistleblowers have the hardest roads to hoe.  But there are brace, concerned people out there who value justice, and they are the ones we are proud to represent.  There is no more honorable employee than one who is willing to risk all for the betterment or society.

Sunday, July 6, 2014

What Will Happen To Me If I Report . . . Sexual Harassment

I am starting a series of posts, the "What Will Happen To Me If I Report . . ." series, to talk about practical, rather than strictly legal, consequences of reporting illegal conduct.  I am not going to talk about statutes of limitations or filings requirements, or the like.  This is not legal advice to be used in lieu of contacting legal counsel.  I want to address a more elementary concern of many employees caught in a situation at his or her current job, and discuss the practicalities of the situation. The first issue I want to address is sexual harassment.

You are at work, and either a co-worker or boss, is giving you unwanted sexual attention.  Maybe he wants to tell you dirty jokes, he asks you out, he starts touching you.  You don't want to make waves. You need your job.  What do you do?

I believe sexual harassment is more about power than about sex.  When someone harasses another, for whatever reason, he or she is trying to assert some form of control.  Unfortunately, with a typical sexual harasser, who is most likely a man, he probably will not stop on his own.  If you ignore him, he will probably persist.  If you give him dirty looks, he will probably persist.  If you meekly tell him to stop it, he will probably persist.  It is understandable that most women who are harassed do not want to rock the boat and they certainly do not want to jeopardize their jobs.  But, if you want the conduct to stop, you are most likely going to make waves and the work environment will change.  Others might get upset with you because work isn't as "fun" anymore.  Others may tell you they don't trust you.  You might be ostracized.  It is especially hard if the harasser is a supervisor or even a top executive or the owner of the company.  If you report the harassment, the work environment will change.

So, what if you decide to just take it.  You're tough.  You think can handle the unwanted attention. Most likely, the harassment will get worse.  Remember, the harasser is not a suitor who will get the hint and move on.  The harasser is more likely someone who wants to control you and have power over you.  He wants power.  He will probably escalate his behavior.  And, true sexual harassers do not act in vacuums.  You are probably not the first woman he has harassed and, unless something is done, you won't be the last.  If you are a "pioneer," a woman working in a traditionally male occupation, such as construction, warehouses, etc., you may encounter more than one harasser.  The women brave enough to venture into non-traditional jobs, usually because the pay is higher than in the traditionally female jobs, sometimes are perceived as a threat to men who are insecure (most harassers, and abusers, are very insecure people).

In order to have a legal case, you must complain to management.  But, you are not thinking about lawsuits, you just want to be left alone and be able to perform your job.  Unfortunately, sometimes that will not happen.  Today, there are many employers savvy enough to recognize how detrimental sexual harassment is to the morale and production of employees and will either seriously discipline or terminate the harasser(s).  But, there are those situations where the bosses in charge may dig in their heels and either tell you that it's just a "he said/she said" situation and it cannot be resolved.  Or the employer might slap the harasser on the hand.  Or the employer may be the harasser.  You may not be free from the harasser, his harassment, his retaliation, or the retaliation from his friends or from management who are upset with you for coming forward.  The work environment could get worse.

What should you do?  I realize this is a very difficult situation for someone to find herself in.  You might be a single mom barely eking out a living.  You need your job.  Your kids needs braces, or school supplies, or you need to pay the rent.  Some women go along with their bosses.  Some even perform sex with the boss just hoping to get through the horrible situation.  It is not fair that you have to deal with this.  You cannot sleep, you are testy with your loved ones, you grow to hate yourself and feel worthless.  You blame yourself for being harassed.

First of all, IT'S NOT YOUR FAULT!!!!!!  And, you are stronger than you think.  You cannot let the harassers control you.  You must honestly report the harassment to management or human resources. You cannot pull punches.  Even if you request anonymity, ultimately you will not be anonymous.  You may get hassled, or threatened, by the harasser or others.  Ideally, you can find another job which is as good as the one you've got.  Even if you can't, I hope you can muster the courage to report the behavior.  Reporting sexual harassment is the only hope you have of stopping it.

Sexual harassment is not just about you.  If you come forward, you are helping others.  In recent years, many companies take sexual harassment complaints very seriously.  Part of the reason is because women in situations like yours came forward.  It is because of their courage, and the courage of jurors, who stopped the rampant harassment by taking on the difficult tasks of sexual harassment lawsuits. Smart management executives realize how devastating sexual harassment is in the workplace, to the morale and productions of the company's workers, and to their pocket books if they have been sued.

In the sexual harassment cases I have handled, I have seen my clients transform before my eyes.   They come in stressed and at their wits' end, with no sleep, nightmare, marital problems. And if they have the fortitude to go forward, I see them get stronger and stronger.  They should be proud.  Because women have stood up to harassers, sexual harassment happens only a fraction of what it was in the past.  These women have helped their daughters, their granddaughters, and countless women they never met.  The jurors who have heard the cases and are appalled have made such a societal difference.  It is not easy bucking the status quo.  Most people don't.  But, if women do not come forward, the abusers win.   You may need to contact a lawyer, or the situation may resolve on its own, but either way, there is no resolution unless you report the harassment.

We are heading to a day when sexual harassment will be rare.  I do not think harassment will be eliminated because it is human nature for insecure people to try to bully and harasser those they think are less powerful than themselves.  But, the workplace is considerably better for women than it was twenty years ago and it will be better still twenty years hence.  Just know that you are not alone and you can make a difference.

Friday, July 4, 2014

Is America Great?

I have always enjoyed the 4th of July, mainly because I like fireworks.  I like the pretty ones, not the ones that just blow up and are loud. However, this day is really not supposed to be just about explosives. This is not a religious holiday, it is a day for nationalism. We call it patriotism. What do we have to be patriotic about?  We should not just blindly glorify this country simply because we live here. We have many laudable "rights" in this country, but we have not solved all, or even most, of our ills.  We have rampant poverty in our midst, excessive violence and corruption, marginalization and intolerance of whole subsets of the population, and the rich and powerful oftentimes reap more than they sow.  Our country is flawed, just as people are flawed. But we must accept that humans are flawed while vigilantly fighting greed, inequality and power-mongering, flaws which are inevitable in ourselves and in this country collectively. 

This country saved my family's lives, by allowing us entry when our fate would have been annihilation at the hands of Hitler. Yet, not all of those needing asylum here were afforded it. Many of my family members were barred from America's shores, because they petitioned for entrance too late, could not find suitable sponsorship, or they failed to raise the necessary funds.  Those relatives, along with millions of others, perished, with no aid from America.  Now, many say, America cannot save everyone in the world from hunger, poverty and crime, and that's true. However, should we invade countries claiming either they pose a threat to our safety or we are bringing Democracy to the masses, when in truth we are protecting our oil or other business interests?  Should we have turned a blind eye to the genocide in Rwanda perhaps because their was no economic incentive for intervening?

This blog may seem unpatriotic on this very most "patriotic" day of the year. It is not. I am able to write my thoughts without fear of reprisal (or maybe just a little fear of the NSA, but not much) because of what America offers and provides - freedom of speech, freedom of thought, freedom to criticize. The first amendment's freedom of speech is one of the most basic tenets of this country, and what separates our nation from most other countries in the world. And we have the Rule of Law - which means that no one, no government official, no wealthy socialite, no powerful industrialist, is above the law. At times the rule of law works less well in practice than in theory, but the powerful and wealthy are generally made to abide by our laws, nonetheless. And we have protections for those accused of crimes, the right to a jury of one's peers, the right to an attorney, the right to be free of cruel and unusual punishment, and those rights make up the fabric of our justice system. 

America is flawed. Democracy is flawed.  But we know in this country that you don't throw out the baby with the bath water. We will never be perfect, far from it, but we do not give up. The Bill of Rights to our Constitution is the most powerful compact for justice in existence today. 

We are great because of all of the dissatisfied people who fight to keep our country on the right track. We are great because of all of the people such as Marian Wright Edelman, Dr. Martin Luther King, Jr., Rosa Parks, Woodward and Bernstein, and others who have insisted that we be great.  We are great because of our courts, our juries, our free elections, our free press and our Bill of Rights.  

This country saved my family's life.  I love this country, just as I love my family, flaws and all.