Of Cemeteries and Crosses.

What's Wrong With This Picture?

The following is an exerpt from oral argument before the United States Supreme Court on October 5, 2009 in the case of Salazar v. Buono:

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG: I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most
common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.
MR. ELIASBERG: Well, my -- the point of my -- point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

There has been ample online discussion of Justice Scalia's religious myopia here , here and here , but what has been noticeably lacking is outrage.

We are talking about the highest court in our great country. A court where every time a new nominee is sent to the senate the nutcakes come out of the closet to predict doom and gloom to their particular brand of polarized political justice.

Even more galling is that the justice involved wraps himself in the piety of the constitution under the term "original intent."

Let us start by pointing out that no matter how much the Radical and fundamentalist right doth protest, the United States was not born as a "Christian nation." The founding fathers were, for the most part, Deists. They repeatedly and expressly repudiated the notion that the nascent United States was a "Christian nation." It is impossible to adhere to "original intent" without acknowledging this fact.

You may have your religion, whatever that is. Christianity, Judaism, Islam, Buddhism, it does not matter to me --- it's your relationship with a divine being that matters to you.

But don't sit on the bench of the highest court in this land and impose your own myopic views on my justice system and wrap them in some warped sense of "original intent."

The argument of the fallacy of original intent is for another day; but this was an inglorious show of intellectual dishonesty. As it was, the Chief Justice rapidly cut off the discussion before his colleague could embarrass himself further. There should have been more outrage.

HR: Rumors of my death have been greatly exaggerated

Appearing on several blogs today are discussions of the "death of Human Resources." Examples are here, here and here. I think some of the posts miss the point.

Needless to say, a down economy with a surging unemployment rate is going to put enormous pressures on an employer's HR department, and its hard not to succumb to a 'seige mentality.'

The argument goes:

• Recruiters constantly undermine the human resources department;
• Job applicants avoid human resources; and
  
• Employees "dread their interactions with any member of a Human Resources team."

A better analysis is that in the current economic environment, it's a lot easier to be really bad at human resources. Employers are downsizing, applicants are increasingly desperate (and a lot less selective), and everybody wants to stay away from that part of the business where careers come home to die.

I like very much Mike Van Dervort's approach on his similarly named blog focusing on HR from a management perspective, The Human Race Horses. (Any similarity between our blogs is strictly coincidental....)

HR does needs to be more proactive in tough times. It also has to be better at what it does all around. I have recently been working with more than one employer who is forced to do a reduction in force. We have worked assiduously with the HR department to ensure that the process was above all else, humane, not destructive of the employer's corporate culture, and treated everyone with dignity and respect. More than anything else, that approach will reduce exposure to subsequent employment practices claims, and keep HR in the center of things when the time comes to staff up.

Recruiters have a mission which is not necessarily in concert with the HR department. Recruiters are selling (or buying, as the case may be) human capital. HR manages human capital. The value recruiters add to the equation is in effectively finding the best candidate for the position; the value HR adds is to keep that candidate effective in the context of the organization.

Just like a business may have a sales department and a customer service department; a car dealership has a sales department and a service department; law firms have their rainmakers and their scriveners; and a restaurant has its cooks and its servers, the occasional disjunction between the departments does not necessarily mean the entire industry is going south.

HR is hurting because the economy is hurting, and it has always been easy to be mediocre. Now is the chance to improve HR practices and procedures (and HR staff quality as well). Once the economy recovers and hiring starts up, it's going to be full steam ahead. If it doesn't, the inefficiencies which are appear now just on the surface will explode, and staffing up will be a nightmare.

YMMV, but that's the perspective from this independent professional.

What's Wrong with the Debate on Health Care? Everything.

Right now the mass media and even social media are ablaze with so-called "discussions" of health care and the Obama administration's initiative to tackle the social monster which has been looming for years. The problem is that nobody is really talking about the underlying issues. The debate is a shrill screaming match staged for the cameras, microphones, and pundits, each of whom are standing on the sidelines, well outside the ring, shouting on their fighters. There are so many things wrong with this very important public discussion that I feel it necessary to divert, even if slightly, from discussing purely employment related matters to this "greater good," and point out what I feel is fundamentally flawed in the health care debate.

1. It's not a debate. Nobody is addressing the real issues. They are talking about talking points and about buzz words and about sensationalist phrases like "death panels" and "forced abortions" and "socialism" and other labels without readily discernible meanings. I have not heard anyone discuss the important issues like:

• Cost of treatment versus likelihood of success;
• Various approaches to health care cost containment;
• Examination of the nature and extent of insurance company regulation;
• Addressing life style choices which make health care more necessary or expensive such as obesity and smoking.
• Underwriting approaches to "universal" healthcare; and
• Geographic variations in healthcare issues from west coast to east coast and south to north.

There, I just listed six fundamental issues which I have not heard discussed in any town hall or shouting match, and I am no insurance expert, nor a doctor, nor a policy wonk. Why aren't we hearing these things? Do you know of other issues which we need to raise? Tell me. Comment here. Let's start our own intelligent debate.

2. Positions are being staked out without defining those positions. Rush Limbaugh and Glenn Beck and pretty much all of Faux News have created a 'teabag' entity which stands for nothing except opposing the Obama Administrations efforts, regardless of what they are. It is almost as if Limbaugh willed Obama to fail and then recruited zombies to seek to ensure that he does. This is mindless pedagogy with no counterpoint. What is Rush Limbaugh's plan (other than free oxycontin upon demand?) what is Glenn Beck's plan? What has Bill O'Reilly offered? Has anyone heard a pundit on Faux News (or, frankly CNN for that matter) outline an "ideal health plan" and show how Obama's plan is different? Do you have a plan? Let's hear it.

3. Partisanship is more important than the product. The Republicans offered more than a hundred amendments to one Congressional Plan, and then threatened to vote against the plan anyway. What the hell is that all about? Who have they impressed? How can they in good conscience continue to accept a paycheck merely by being obstructionist?

4. Nobody is looking at the bigger picture. When Social Security was proposed by the Roosevelt Administration, there was a similar hue and outcry. "Socialism!" (Heck, they even called people communists back then, and there is not a lack of similarity between McCarthy and the right wing extreme now). And yet now we take Social Security, Medicare and many other government programs for granted and we can barely conceive of a time when they did not exist.

Mark my words, within ten or fifteen years people will say, "I can't believe there was a time when we did not have a National health care policy and system in this country. What the hell were those people thinking about?"

Well, we're not thinking about the issues. And until we do, we aren't going to get a whole heck of a lot done.

I'm tired of seeing angry citizens yelling at the President and at Senators. When did this become acceptable? When did this become appropriate? When did such a lack of civil debate and discussion become so commonplace that we have to watch it incessently blaring from our televisions and radios?

Where is the intelligent discourse where folks with differing points of views exchange those points of views articulately, intelligently, and with a nod, maybe even a respectful nod, to their opposition's valid counterpoints?

Yesterday morning Good Morning America put Anne Coulter opposite James Carville for a three minute "sound bite" on health care. Chris Cuomo tried to tee up the issues, but all I heard was shrill invective from Coulter and Carville could not outline the entire plan (or, for that matter any of it.) What was that for? Why did we need that? When did GMA become the substitute for the now-defunct Crossfire? That show was killed because John Stewart appropriately pointed out that it masqueraded as intelligent debate but was little more than a smack down.

We don't need a National Healthcare Smack Down. We need a National Healthcare Debate.

I can't wait do hear that. Neither should anyone else.

Hard-Wired? Are we programmed to treat everyone else like strangers?

By now, word of the Valley Swim Club’s massive ignorance has spread to national news outlets. It seems a small suburban Philadelphia swim club was only too happy to accept money for several ‘camps’ to have access to its facilities, until it learned that the campers were Black and Hispanic, whereupon the management whined that their actual presence at the club might ‘change the complexion’ of the club. The outraged response has even drawn the attention of Senator Specter, as he looks for new constituents from his new party.

There is a marked similarity between what happened at the Valley Swim Club and what is happening in Iraq, and, for that matter, the entire Middle East. The Suni’s don’t want Shiite’s in their pools; Suni’s don’t want Shiite’s in their pools. To the extent the Israeli’s and Palestinians can even determine which is whose pool, neither group wants the other in their pools.

Isn’t that what underlies Facebook? Who do you want to friend? Whom do you want to ‘Friend’ you? Are there people, types of people, who you wouldn’t friend? And how about your followers on Twitter (and whom you follow?) Is everyone you follow just like you? Do you avoid people who are substantially different than you?

Why limit the inquiry to the middle east? How about politics? Those on the right want to hear how their fellow right-wingers are noble, good people and those folks on the left fringe are reprehensible. Likewise the left demonizes the right. There are Twitter users in both extremes (heck, both Karl Rove and President Obama are there). There are fundamentalists of all religions who consider all other religions nothing short of pagan. There are extremes of all races and ethnicities who still endorse genocide as a solution to their problem. It comes up over and over again. Somalia. Rwanda. Bosnia. Kurdistan. Yet there are Holocaust deniers with a group on Facebook.

The vast overwhelming presence of this polarization and ‘us-ism’ leads me to ultimately ponder whether we’re simply hard-wired to keep to our own kind. Has natural selection left us in 2009 at a point where we are still genetically pre-programmed to keep to our own kind and avoid ‘strangers?’ As someone once asked, "Why can't we all just get along?"

When children are about 3 years old, have no fear of people. They find other people they meet fascinating, and they are intrigued by anything different and new. They are not intimidated by people they meet of different ethnicity, race or appearance, they are curious, inquisitive, and want to know why these people are ‘different,’ and how they are still the same as them. If we all stayed at that developmental state one wonders whether many of the world’s conflicts would vanish.

One wonders whether three year olds would have responded differently when the campers arrived at Valley Swim Club.

And one wonders whether the caseloads of lawyers like me who spend so much time solving employment disputes arising from these very prejudices and biases would be a lot lighter if people didn't act like they were hard-wired to treat everyone else like strangers.

Ricci v. New Haven: Supreme Court Puts the Rabbit Back in the Hat

The U.S. Supreme Court, in one of its final, eagerly awaited decisions of the term, issued its Opinion in Ricci v. New Haven today. The Court was faced with an in-your-face set of facts which can only lead to judicial gymnastics. The City of New Haven administered an examination for promotions among its firefighters, as required by a collective bargaining agreement, and test scores, if certified, would have resulted in all whites except for one Hispanic being promoted. Although a few black test-takers did qualify for promotion, because of the paucity of openings, none would have been promoted.

Apprehensive about being sued for race discrimination on the theory of ‘adverse impact,’ the City of New Haven refused to certify the test results, and the successful candidates then sued alleging discrimination under a theory of ‘disparate treatment.’ Thus, the decision offered a high noon showdown for ‘disparate impact’ versus ‘disparate treatment’ claims. (Parenthetically, the case was touted as a ‘test’ of the jurisprudence of Obama nominee Sonia Sotomayor to the high court, however this is more sizzle than steak. The second circuit decision below was essentially a one paragraph affirmance of the district court’s decision, and offers precious little genuine insight into the nominee’s thinking on the matter.)

The High Court appeared to reconcile the struggle between disparate treatment and disparate impact by instructing employers to avoid disparate treatment first, and recognize that if doing so may create a disparate impact, it may only face liability where there is a “strong basis in evidence of disparate-impact liability.”

Which leads inexorably to the question: what is a "strong basis in evidence of disparate-impact liability?”

The Court invokes the decision of Richmond v. J. A. Croson Co., another disparate impact case, which resulted in a sharply divided plurality opinion consisting of …well, rather than my trying to explain, let me quote from the syllabus:

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, and KENNEDY, JJ., joined, an opinion with respect to Part II, in which REHNQUIST, C. J., and WHITE, J., joined, and an opinion with respect to Parts III-A and V, in which REHNQUIST, C. J., and WHITE and KENNEDY, JJ., joined. STEVENS, J., post, p. 511, and KENNEDY, J., post, p. 518, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, post, p. 520. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 528. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 561.

Justice Blackmun’s dissent in Richmond summarized the various approaches of each opinion in Richmond, and points to the ‘strong basis’ analysis introduced in Wygant v. Jackson Bd. of Education. Wygant itself was itself a plurality opinion in which Justice Powell, speaking for four justices simply wrote, “[T]he trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.”

So what is a strong basis? Is it like the Supreme Court’s take on pornography, “I don’t know what it is but I’ll know it when I see it?” Have they really solved any problem here? Are employers’ consciences going to be eased by this decision now that the conflict has been resolved once and for all?

Doubtful. I would say the forecast is cloudy with a chance of lots more lawsuits. Justice Ginsburg’s fierce dissent, joined in by Breyer, Souter and Stevens, wryly observes, “The Court’s order and opinion, I anticipate, will not have staying power.” More importantly, this highly fact-specific case (the more salient facts being a function of which opinion you read) offers precious little to resolve any issues other than the very case before the Court.

Adieu ADEA - Supreme Court's 'but for' requirement will all but kill many age bias claims.

The United State Congress in passing Title VII of the Civil Rights Act (finally) acknowledged that the effects of employment discrimination can be subtle, long-lasting, and devastating, and that legislative action was appropriate to level the playing field.

The framework for analyzing employment discrimination claims has long been established by the case of McDonnell-Douglas v. Green which created a burden-shifting analysis to facilitate the handling of claims by the fact-finders, whether judges or juries. That framework creates a 'tennis match-like' approach to claims.

The employee gets first serve, and must prove a prima facie case, that is, he or she is in a protected classification (i.e. race, sex, national origin, etc.), that he or she suffered an adverse employment action (i.e. fired, demoted, not premoted, etc.) and that others not in that protected classification were not so treated (although some cases have held that this last requirement is not part of the prima facie case.) The burden for stating a prima facie case is supposed to be low so as to facilitate enabling the employee to proceed.

Once the employee states the prima facie case, the ball is effectively 'in the court' and the employer gets to return it by proving that there was a 'legitimate non-discriminatory reason' for the action taken against the employee. Once the employer hits the ball back, the burden shifts back to the employee to show that the stated reason was not the real reason, and that the primary motivating factor was discriminatory. The employee gets to hit it back one more time with a forehand shot (i.e. direct evidence of discrimination, which is very rare, such as a supervisor calling the employee 'boy' in Ash v. Tyson Foods), or a backhand (i.e. circumstantial evidence that the employer's stated reason is pretext, that is evidence subjecting the employer's rationale to unbelievability as in Reeves v. Sanderson Plumbing.)

If the employee hits the ball back, and the jury believes the employee, the employer generally loses. That's what happened in an age discrimination case in which an employee proved to a jury that his demotion and the sidelining of his career after many years with an employer was motivated in significant part by his age. The employee won a significant verdict which was ultimately appealed and to which the U.S. Supreme Court granted review.

But now all that's changed for age discrimination cases. The Supreme Court today in Gross v. Financial Services said that the Age Discrimination in Employment Act ("ADEA") claims were never meant to be subject to the McDonnell-Douglas analysis, and that the only way employees can prove discrimination is through proof that "but for the age of the employee, the adverse employment action would not have been taken." Basically, the employee gets one shot to prove that age was the determining, 'but for' factor in the action taken against them. Prove that you win, otherwise you lose.

This is massively wrongheaded and ignores decades of age discrimination jurisprudence. It renders 'mixed motive age discrimination cases' dead on arrival. It screams out for immediate Congressional action to patch up the ADEA so that it really protects older employees, the way Congress patched the Americans with Disabilities Act ("ADA") recently to really protect the disabled, and Title VII to really protect against gender-based discrimination in pay. However, and almost as importantly, the case stands as a monument to the proposition that activist judges don't always sit on the left side of the court.

As Justice Stevens, a Nixon appointee, by the way, said in his dissent in Gross:

I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. (Emphasis added.)

As the debate over Judge Sotomayor gets underway, let us keep in mind that who is the activist judge is largely a function of whose ox is being gored.

And for those employers getting ready to discharge workers who are over the age of 40, fire at will. In this economy, your 'mixed motive' defense to a charge of discrimination is going to be virtually bullet-proof until Congress does act.

P.S. One fellow employment lawyer for whom I have a great deal of respect suggests that my sentiments regarding McDonnell Douglas are misplaced. I have now reread the opinion at least twice. I must respectfully disagree with him. The majority in Gross specifically states "This Court has never held that this burden-shifting framework applies to ADA claims. And, we decline to do so now." This is reiterated in the second footnote of the opinion. That statement, coupled with the court's completely unnecessary holding that the ADEA does not authorize a mixed-motive age discrimination claim, leaves me feeling even more grim about the decision than I did when I first wrote this post.

P.P.S. Within 24 hours of the decision Senator Leahy, Chairman of the Senate Judiciary Committee decried the decision, and both the AARP and the National Employment Lawyers Association have announced initiatives to seek Congressional action overruling the decision. Once again, students of law and politics should be able to watch how our system of government works in updating the law.

Why I Won't Take Your Case

"Because you're an idiot," is probably a completely unacceptable reason for refusing to accept representation of a prospective client (even if it is the real reason.) For more than a decade of solo practice, and nearly thirty years of private practice altogether, I have noticed a few patterns, however, that I believe might just be worth sharing, especially for anyone in the human resources or employment law industry.

Here are the principal reasons I find people find themselves unemployed, regardless of the state of the economy.

1. Absenteeism: I wish I had a dollar for every prospective client who missed three or four days during their first weeks of employment, or during their probationary period, who protested, "but I had a doctor's note!" Doctors notes are for school, not the real world. As Woody Allen said, "80% of success is showing up." The only exception is where an employee has been working somewhere for more than a year, for more than 1250 hours in the year before, where the employer has more than fifty employees within a 75 mile radius, and where the 'absence' is attributable to a 'serious health condition' of the employee or an immediate family member, or due to childbirth or adoption. That is to say, if you don't qualify for FMLA, you better show up or you better get ready to file for unemployment.

2. Arguments with supervisors: We can include in this category "but he was wrong and I was right," or "I told them so," or any of a dozen other expressions of exasperation with mediocre management one level up from the fired prospective employee. It is said "if you shoot at the King, you better not miss." Too many people think that workplaces are staffed by referees in striped shirts that will throw a flag and assess a ten yard penalty when a supervisor does something that is unfair. Unfair? Unfair?? Are you kidding me? Who said life was fair?

I used to work for a lawyer who would tell clients, "You find me a book that says life is fair and I'll buy you two copies." No, I didn't understand what he meant either, but the bottom line is that lawyers cannot address situations that are unFAIR, only UNLAWFUL. A similar situation applies to where employees in highly stratified organizational structures go 'out of bounds' to tattle on supervisors. Going out of bounds is a good way to get a head start to the unemployment line.

3. Arguments with coworkers: These usually start with things like "but she started it...." I don't know why people don't remember those moments in elementary school when they stood up in the back of the class to report misbehaving Johnny only to find that they were the ones staying after class to clean the blackboards while Johnny was out at recess. This is a corollary of 'life is not fair," of course, but the bottom line is that where two coworkers argue, fight, or even (and I've seen this too) 'take it outside,' somebody is going to get fired. Ideally, both employees.

4. Discrimination: The law does not bar discrimination. You discriminate every day when you choose what clothes you are going to wear. You discriminate every day when you decide what to eat for breakfast. If you go into a Baskin & Robbins and buy a single scoop, you've just discriminated against dozens of other flavors. If you get two scoops, you're still discriminating. What is unlawful is discrimination based upon protected classifications: age (over 40); sex; race; national origin; disability (record, perceived or actual); and in some jurisdictions family status and gender affinity. But if the boss likes that guy down the hall whom you can't stand better than you then it's tough noogies, and you need to read Dale Carnegie or figure some other way out to deal with the situation. Yeah, it's discrimination, but it's not unlawful.

Don't get me wrong; there are legitimate whistleblowers, there is unlawful discrimination, there is retaliation on an ongoing basis, and there are employers who practice unenlightened human resources management (thankfully, or I wouldn't have any clients) . But there are a few folks out there, not too many thankfully, who simply don't get it. The lights are on but nobody's home. For them we can only hope for enlightenment before they try to hire me.