I just googled “Conflicts Check” and discovered that Google still wants to take you to this blog. This is the old blog. Go to the new one here.
Conflicts Check
Being a Highly-Learned Treatise on the Law, Music, Suffering, Culture, Society, and Lap Dogs
Jan
14
Jun
24
Explications
In case you’re ever wondering why this thing is called “Conflicts Check,” I just caught myself reading about Jainism, thinking about what a great religion it is, and simultaneously shopping for BMW’s online.
Pretentious enlightened hippie, or pretentious yuppie douchebag? Hell, I don’t even know. I straddle multiple worlds, folks.
May
31
On Suffering and the Law: The First in an Infinite-Part Series
This is a subject (and a post) I’ve been thinking about for a long time. As I sit down to write, I still am unsure how to approach it.
There is a question that has kept me up more nights than I can count: How do you alleviate suffering as a plaintiffs’ lawyer?
I realize this is not important to everyone, and certainly not to every practicing attorney out there. But I have long been concerned with the problem of suffering. And I, like many people who become lawyers, was attracted to the idea of the law as a tool for helping people. I still am.
I am not a religious person. But with agnosticism comes, or should come in my opinion, a sense of duty to repair and improve what is known. We know, at least insofar as we know anything at all, that we exist right now. We don’t know for sure if we have anything beyond our current existence. We should therefore seek to improve our own lives, and the lives of other suffering creatures. Because…well, it’s the best we can do.
And we know, or at least we can safely estimate, that other creatures will be around after we’re gone. We should do what we can to improve upon the world, so that these other creatures do not suffer as badly as we have (even if we have not suffered badly at all).
The alleviation of suffering is a human duty, I think. And, in most cases, I would say that duty should precede one’s duties as an advocate. Hopefully, those two roles intersect more often than not.
But the question of a plaintiffs’ lawyer’s role in the universe is, I think, profoundly complicated. A criminal (or even a civil) defense lawyer must act as a shield and not a sword. Does that automatically give her the moral high ground? I don’t think so. A villain cowering behind a shield is still a villain. And of course, not every defense lawyer is Atticus Finch. But to strike at the villain lurking behind his shield necessarily increases his suffering. We pretty much know when we file a lawsuit that we are going to make someone else suffer, even if it’s just making an individual uncomfortable for a few hours in a deposition. And to what end? We don’t know for sure. We can’t know. What we hope is that by increasing the suffering of the defendant, we will lessen the suffering not only of the plaintiff, but of other people in her position as well. We cannot know for certain that either outcome will result.
As important as it is to stick it to the Man, it is at least as important to be kind and compassionate. Probably more. Definitely. After all, if the Man were kind and compassionate in the first place, you wouldn’t have to stick it to Him at all.
On the other hand, look at the arc of history. Hell, just the last 100 years. Is there any question the plaintiffs’ bar has made it a better, safer world in which to live? Because of better advocates than I, hospitals are safer, the workplace is safer, transportation is safer, food is safer, and even coal mines are safer than they were.
So the question, to which I have not been able to find a satisfactory answer, or even an answer that is really on point, is basically one of utilitarian calculus. Is it morally permissible to cause a little bit of suffering, when you know for sure that suffering will result, in hopes that your actions will alleviate suffering on a larger scale, in some ill-defined way? The future payoff to society (and possibly to the plaintiff), if it ever comes to pass, seems to greatly outweigh the suffering a defendant incurs by being subjected to the stress of a lawsuit. But that stress can sometimes be more substantial than we trial lawyers realize, and at any rate, it is almost certain to occur.
Conscientious prosecutors surely wrestle with this idea too. But while the suffering a prosecutor must cause is often greater, the suffering he helps to alleviate is more concrete. The bad guy goes to jail and doesn’t hurt anyone anymore. It is much easier to grasp, and to justify.
I think I am, for the most part, on the right side of this equation. But I am not always sure. I don’t know anything about philosophy, but I know some of you out there must. What do you think?
May
29
The Finest Friend to Man and Lawyer Alike
In my research for this case (which I expect to take to trial sometime this year), I came across this footnote in Miller v. Clark County, 340 F. 3d 959 (9th Cir. 2003). In addition to being one of the longest footnotes in modern jurisprudential history, and despite coming from a very pro-law-enforcement perspective, the opinion does a nice job of summarizing various opinions extolling the virtues of our little four-legged friends. Check it out:
The words of some of our predecessor judges bear repeating here, and there is no better place to start than with the Maine Supreme Court’s 1884 Maine v. Harriman decision, which lauded the noble hound:
He is the friend and companion of his master—accompanying him in his walks, his servant aiding him in his hunting, The playmate of his children—an inmate of his house, protecting it against all assailants.
75 Me. 562, 566, 1884 WL 2912 (1884).
Perhaps feeling that the Maine Supreme Court’s words, though eloquent, did not do the dog justice, the justices of the South Carolina Supreme Court in 1899 paid tribute
to the noble Newfoundland, that braves the water to rescue the drowning child; to the Esquimaux dog, the burden bearer of the arctic regions; the sheep dog, that guards the shepherd’s flocks and makes sheep raising possible in some countries; to the St. Bernard dog, trained to rescue travelers lost or buried in the snows of the Alps; to the swift and docile greyhound; to the package carrying spaniel; to the sagacious setters and pointers, through whose eager aid our tables are supplied with the game of the season; to the fleet fox hounds, whose music when opening on the fleeing fox is sweet to many ears; to the faithful watch dog, whose honest bark, as Byron says, bays “deep-mouthed welcome as we draw near home;” to the rat-exterminating terrier; to the wakeful fice, which the burglar dreads more than he does the sleeping master; to even the pug, whose very ugliness inspires the adoration of the mistress; to the brag possum and coon dog, for which the owner will fight if imposed upon; and lastly, to the pet dog, the playmate of the American boy, to say nothing of the “yaller dog,” that defies legislatures.
Of all animals the dog is most domestic. Its intelligence, docility and devotion make it the servant, the companion and the faithful friend of man.
State v. Langford, 55 S.C. 322, 33 S.E. 370, 371 (1899).
The California Court of Appeals weighed in in 1919, noting that “[f]rom the building of the pyramids to the present day, from the frozen poles to the torrid zone, wherever man has wandered there has been his dog.” Roos v. Loeser, 41 Cal.App. 782, 784, 183 P. 204 (1919). Soon thereafter, the Georgia Supreme Court made its contribution to the judicial literature about the dog:
In metal and in stone [the dog's] noble image has been perpetuated, but the dog’s chief monument is in the heart of his friend, “man.” As a house pet, a watchdog, a herder of sheep and cattle, in the field of sport, and as the motive power of transportation, especially in the ice fields of the far north as well as in the Antarctics, the dog has ever been a faithful companion and helper of man.
Montgomery, 169 Ga. at 748, 151 S.E. 363.
The United States Court of Claims judges’ 1950 paean to the dog is personal and heartfelt:
In our youth we always had dogs, mostly of the mongrel variety, but nevertheless dogs. We placed them just behind people, and when on rare occasions we fell out with any of our playmates, our hounds usually forged ahead.
We have very little respect and no affection for anyone who has not at some time in his life loved a dog. Throughout history the dog has been known for his loyalty and faithfulness. He has been celebrated in song and story. Even books have been written about the dog, his character, intelligence and attributes. The dog has been able to awaken affection in the hearts of every race of people. Wherever man has gone, on the frontier, in the great woods, in the frozen north, the faithful dog has been his constant companion, sharing his hardships and his poverty. When in trouble, humanity finds consolation in his company.
Alcibiades had a handsome dog.
Senator Vest described the dog as “man’s best friend.”
We meet him first in Homer’s verse:
“The dog by the Aegean seas.”
Scott referred to him as the “companion of our pleasures and our toils,” and Mark Twain said the difference between a dog and a man is that “if you pick up a starving dog and make him prosperous, he will not bite you.”
It was a dog that licked the wounds of Lazarus in his rags. Rin Tin Tin was a movie star. Neither poverty nor riches, success nor failure, affects his loyalty. It was the dog that served as a test for the army of Gideon. He also performed heroic services in the
most modern and greatest of all wars. The poet said that high in the courts of Heaven the one sure welcome that awaited was a little dog angel that “sits alone at the gates,” and would not play with the others until his master arrived.
Pedersen v. United States, 115 Ct.Cl. 335, 338 (1950).
Our judicial predecessors’ eloquent praise of the dog is matched in the annals of law by attorney (and, later, senator) George Graham Vest’s famous closing argument to a jury in an 1872 case involving the illegal shooting of a fabulous hunting dog named “Old Drum.” The argument, once memorized by American schoolchildren (a tradition worthy of revival), is known as “Vest’s Eulogy to the Dog”:
Gentlemen of the Jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has he may lose. It flies away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action.
The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog. Gentlemen of the jury, a man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fierce, if only he may be near his master’s side. He will kiss the hand that has no food to offer; he will lick the wounds and sores that come in encounter with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert he remains. When all riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in his embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even in death.
1943-44 Official Manual, State of Missouri 1129.
Truly, we have no finer friend than the dog.
This is the kind of flowery opinion that make me love what I do, even if the overall result is to condone a cop’s use of a dog as a weapon following a failed traffic stop. But it begs the question: when will plaintiffs be able to fully recover for the loss of a canine companion? Above we see more than 100 years of the nation’s best and brightest jurists putting the dog on a pedestal; a higher one than most humans deserve, to be sure. Yet in most jurisdictions, there is no such thing as a separate tort for malicious injury to a pet, nor is loss of consortium available to a pet owner whose dog or cat has been intentionally killed. You might be able to maintain an action for intentional infliction of emotional distress, but those hardly ever fly even in the worst of circumstances (see this infamous Kentucky case). In many places, you can only recover the fair market value of the dog. The death of a mutt, for example, might bring you $100, depending on the dog’s age, and its depreciation in value over time, etc. A Springer Spaniel might get you slightly more. Put simply, pets are basically treated like furniture or dishes, that kind of thing. It is mostly the fault of the legislature, but the judiciary is partly responsible. The failure by the courts to extend more relief to plaintiffs under gruesome facts involving family pets that I can’t even bear to think about or reproduce here…well, in light of the kind of language quoted above, it creates kind of a head-scratcher.
It is a widely-accepted truth that the wheels of legal progress turn slowly, too slowly to keep pace with the rest of society. But they do turn. After all, children were treated no better than inanimate objects until relatively recently in the United States. Lawyers, lawmakers, and judges, along with regular folks, must forge ahead and evolve. And compassion for the most helpless of creatures is a vital component of evolution. But don’t take my word for it.
For much more (and much better) analysis of this stuff, I highly recommend Amy Breyer’s excellent Animal Law Blog.
Feb
26
The Supremes
As hinted at in my last blog post, which was…oh, a couple of years ago, I argued before the Supremes last month.
Not these Supremes:
And not these:
But these ones here:
Yes friends, that’s the Supreme Court of Kentucky. This post contains a little background info, and a few words, about our Supreme Court (keeping in mind that they are basically the folks responsible for my licensure and livelihood).
First, unlike those snobs in Washington (and many other states, like Indiana*), our Justices are elected, not appointed. I have mixed feelings about this, but in the way that I have mixed feelings about democracy in general. And hell, anyone who lives in a democracy should probably have mixed feelings about it, but it’s what we’ve got and it mostly makes sense.
Anyway, they’re elected from each of seven districts in the Commonwealth, which means you get two justices from urbanish areas (Lexington and Louisville) and five from somewhat (if not extremely) rural areas. These folks are the final, final, final word on Kentucky law. Each year, they accept a very small number of cases for what is called “discretionary review.” It’s basically just like a petition for certiorari in the United States Supreme Court (they’re the group that looks like a retired Star Trek crew in the photo above). It means they take a case if the lower court really screwed things up, or if they need to resolve or clarify a point of law. The Kentucky Supreme Court also hears all the death penalty cases and stuff like that.
So the Supremes accepted one of our cases for discretionary review. In short, the case involved a public employee who went on medical leave, came back to work, and was demoted the same day. The original opinion is here. This opinion is “not-to-be-published,” meaning it doesn’t appear in the actual bound reporters that no one uses anymore. You can still find these “unpublished” opinions pretty easily online, which is where just about any lawyer under the age of 60 does virtually all of his/her legal research. Go on, Google the Plaintiff’s name. Sure, I’m generalizing, but cut me some slack. I’m trying to make a point here.
Anyway, we submitted our briefs to the Supreme Court. We filed a brief, they filed one, and we filed one again. Then the arguments. We thought (and still think) that the opinion is wrong, and if you’ve got 45 minutes or so to spare, I’ll tell you why:
Likins v. Oldham Co. Fiscal Court – Oral Argument
Now, the most puzzling part of all this was the end. Here’s the Court’s decision in its entirety:
[PDF Content]
You ask, “what does it mean, Mr. fancy-pants law-talking guy?” Well…I don’t know. Theoretically, it means that five out of seven justices changed their minds and thought they never should have taken the case in the first place. Practically, it means the end of the case, and the end of our client’s seven-year struggle for some sort of relief from the treatment to which she was subjected. The result: no opinion. No nothing. Resounding silence from the final, final, final arbiter of Kentucky justice. And an incorrect, unpublished, and easily findable opinion from the lower court. Why?
Arguing in front of the Supremes was a great experience. Perhaps not as great as singing with THE Supremes, but hell, you can’t have everything. And I still find representing people to be deeply fulfilling. But at times, it is frustrating and incomprehensible.
_____________________________________________________
* – A system of appointed justices has its pitfalls, too. Indiana is a pretty good example, as it currently has no female Justices at all. As you can imagine, they’ve been taking some heat for that.
Dec
3
Warning: Post Not Intended for the Law-Averse
Despite the extreme, unprecedented adversity of the last couple of weeks, some cool things have happened. I’m not inclined to blog about deeply personal adversity (and let’s face it, there’s still LiveJournal and, you know, real literature for that), so I’ll blog about the cool stuff.
First, The Godard Group has invited me to be interviewed (or “twitterviewed,” because god knows you can’t refer to Twitter at all without making some hideous portmanteau) for 22 Tweets. That is set to happen (tentatively) on December 17. I’ll link it here when it gets done. It is a pretty cool concept, but I’m afraid I am not as interesting as most of the rest of the folks on there. I have an edge in that I am probably more vulgar, so we’ll see how that plays out. Definitely take a look at some of the past ones if you’re into that kind of thing. And who wouldn’t be? You’re not lawyer-averse…are you?
Second, it looks like I’ll be taking my first crack at arguing before the Kentucky Supreme Court on January 14. I don’t want to talk too much about the case here, but suffice it to say that I hope it’s going to make some good civil rights law, and I’m definitely excited for the opportunity. The link to the opinion from which the SCOKY* accepted discretionary review is here. Please let me know your thoughts, and good vibes are appreciated, too.
__________________________________
* – “SCOKY” means “Supreme Court Of KentuckY,” and is not to be confused with Skokie, IL.
Nov
25
Keeping the Blame off the Victim: Civil Rights Protections for Domestic Violence Survivors
If you’re up for some light holiday reading, my article from this month’s The Advocate is available online here.
Be good to each other this Thanksgiving. And in general.
Nov
16
Bridging the Gap – This Year in Multiplicity
Hi there. Yes, I know…in my last post I promised to write more. That was in July. But look, I’ve been busy since then. Busy enough to rack up about 300 unread comments on 5 posts, mostly consisting of – you guessed it – Russian porn ads, Nigerian scams, and nondescript gibberish. Let me give you a rundown of what me and mine have been up to the last few months:
1. Acting: A lot of acting. I never really did it before this year, but I am kinda hooked. After Elevator Plays 3, I was cast as a cross-dressing Nazi-captain in Bent, and then as Riff-Raff in Pandora’s Rocky Horror Show. Wow. Fun. Had I known how much fun I had been missing out on all these years…well, I’d probably be dead now. I’m in a four-person show called Dinner With Friends in Oldham County through next weekend, and in January I’ll be playing bass for Pandora’s Oh My Godmother. If you get a chance, come say hi.
2. Music: Not as much as any other time in my adult life, probably, but still a decent amount. Shine-Ola is still playing semi-regular Thursday nights at Ray’s Monkey House. The guitar teaching biz has amped up a bit (get it?), but I’m still only doing one day a week. I started playing with an original rock band called Blood Turns Brown. We don’t have any recordings yet, but if you want to check out the page, some of the singer/songwriter’s (Jon Harrod’s) material is there. I’ve known Jon for a long time, and his songs keep getting better and better. I’ve also resolved to write a little more frequently, but I resolve to do a lot of things. If and when I get some new material together, I’ll post it here.
3. Lawyering: A lot of lawyering. While the website (and for the most part, this blog) may be frozen in time, business is vibrant. Still practicing in the same place with the same folks, at least until the end of the year. We’ve gotten some press on a couple of cases. Here’s one we won. Here’s one we lost (for now). Here’s one we’re still waiting on. We also went to trial on a really bizarre dogbite case. I’ll tell you all about it someday. Suffice it to say, it is almost never dull.
After about a year of having more irons in the fire than I can count, it is perhaps natural that I have been thinking a lot about multiplicity. You know, serving more than one master, that kind of thing. Is it possible to do so competently? I tend to think so. People have a lot of flexibility, a lot of adaptive strategies that are rarely employed, and a capacity for learning that probably doesn’t get used nearly as much as it should. I think it’s a real shame when people get boxed into a particular routine and refuse to deviate from it. I’m terrified of that kind of existence, or anything even remotely resembling it. I realize that not everyone has a choice in the matter, and I’m grateful for what I’ve got.
What I’m describing is part of what scared me away from doing the music thing full time. It’s strange that lawyering should be considered more mundane than music-teaching, or even being a professional musician. I always loved and will love teaching and playing, but I got to the point where I felt like 1) what I was doing didn’t make much difference in the grand scheme of things, and 2) I was basically doing the same thing over and over again, every day. Lawyering is not like that for me, at least not yet. You’re always doing different things all the time. And unlike the arts, which are almost necessarily self-serving and ego-inflating, being an attorney is necessarily focused on the needs of other people. What I have found to be interesting, though, is that on average, theater people and musicians are almost universally more accepting, more open, more empathetic, and more giving of themselves than the average attorney. I don’t get that. Not saying either way is wrong or right, I just don’t get it. It probably has something to do with wealth, privilege, the adversarial system, or something else that I’ll never fully understand.
But even if I don’t get it, it’s great to have a both a bird’s- and a snake’s-eye view of more than one piece of American culture. And not just culture, but subculture, and sub-subculture. It’s so easy to get comfortable in one little niche that you can easily forget what else is out there. And, especially in my 30′s, I’ve realized that there’s a lot out there. By being exceedingly capricious, I’ve had the good fortune to have a lot of experiences that I would never trade for anything.
On the other hand, it could be argued that the nigh-obsessive behaviors associated with multiplicity – for instance, never allowing yourself to do nothing – do more harm than good. There is little doubt that 80/90/100-hour weeks are not particularly healthy. And at a certain point, you have to question whether you will ever be satisfied with anything. For instance, I am a little bothered by the fact that I will likely never have firsthand knowledge of what it’s like to be a professional athlete, or an auto mechanic, or a chef (though one never knows).
I would like to hear from those of you that hang out in multiple spheres of existence. What are your coping strategies? I think most people have a primary “thing,” a character that they identify themselves as. For me it was a musician, now it’s an attorney. But the musician still nips at the attorney’s heels quite a bit. How do you reconcile your multiple selves? If you made a transition from one character to another, was it difficult for you to allow yourself to do that? And most importantly…
How in the hell did any of you have time to read this?
Jul
6
Why Not Me?
It has recently come to my attention that some people – and not just my wife and mom – are occasionally reading this thing. So, yeah, sorry about not posting since…uhm…March. If you posted a comment forever ago that wasn’t about Ambien or Russian porn, I probably didn’t approve it ’til just now. Sorry for that, too. I’ll try to make up for it over the next week or so with a few posts I’ve had brewing. At some point, I’ll work on the website too. Baby steps.
Part of the reason I can’t get into a groove with recreational writing is that I’ve been doing a lot of professional writing. I’m not complaining. I like research and writing better than any other aspect of lawyering. But after you crank out a couple of briefs right in a row, you don’t wanna write no mo’. It’s just like reading. After law school, recreational reading has basically become a thing of the past for me. It’s a shame; I still had a lot of books I wanted to read. But I digress.
Right now, employment discrimination cases are taking up the vast majority of my time. And a substantial percentage of the time I spend on those cases is occupied by telling people they don’t have a case. Most employment lawyers on the plaintiffs’ side will tell you: for every 20 people who want to sue their (former) employer, you might have one or two cases that will actually stand a chance at getting to a jury. That’s not to say those cases will get a lot of money, or even any money at all, for someone who’s been wronged. That’s just the nature of American employment law. Most people don’t understand it, and I can definitely see why. Turning someone away is the worst part of my job. After all, if someone does something wrong to you, you ought to have recourse, right? Not always.
So as a public service, both to you and to myself, I offer this tongue-in-cheek, (hopefully) plain-English FAQ to determine whether you have a case for employment discrimination. Take it for what it’s worth. I hope you find it edifying, enlightening, and entertaining.
Q: I was fired for being twenty minutes late. It’s the first time I’ve ever been late to work, and I told the manager I was sorry. Can I sue my employer for wrongful termination?
A: No. A maxim used by employment lawyers everywhere is: you can be fired for any reason, or no reason at all, but not for a wrong reason. So what’s a “wrong” reason? In a nutshell, your age, race, sex, religion, disability, or national origin. There are some exceptions to this, but not many. If you don’t think your termination was based on any of those factors, you probably don’t have a case.
Q: I was fired for being twenty minutes late. It’s the first time I’ve ever been late to work, and I told the manager I was sorry. I’m the only African-American at my workplace, and my White co-workers routinely show up twenty (or more) minutes late without any kind of punishment. Can I sue my employer for wrongful termination?
A: Getting closer. If workplace rules are applied to one race, sex, religion, etc. differently than another, it’s discrimination. It can be tough to prove, though. When you break an employer’s rules, the deck is stacked against you.
Q: I am a Mexican-American. I recently complained to my supervisor that the Mexican employees in the workplace were being being discriminated against. My supervisor told me that was none of my business and fired me on the spot. Can I sue my employer for wrongful termination?
A: BINGO. This is by far the most common scenario we see nowadays. If you make a good-faith complaint of discrimination, you can’t be sacked for that. In fact, you can’t be terminated for making such a complaint even if you belong to a different group than the one you’re complaining about. For example, if I complain about Company X discriminating against Black employees, and I’m White, I can’t be terminated for making that complaint.
Q: I have worked at Corporation X making clown shoes for 35 years. It’s a deeply unfulfilling job, but I was a loyal employee. Last month, a new supervisor was hired. This person made my life a living hell. She berated me in front of my co-workers every day, nitpicked my work, and called me horrible names. It was obvious that she was trying to make me quit, and eventually I did. Can I sue the company for creating a hostile work environment?
A: No. These are the worst cases to turn down. This kind of thing happens all the time, and it absolutely breaks my heart. But the law doesn’t prohibit your supervisor’s assholishness. A hostile work environment is only a “hostile work environment” in a legal sense if it is based on race, sex, etc. One of the unfortunate features of our ultra-capitalist system of employment is that you can put in 35 years making clown shoes, and then be fired just because some slick new supervisor doesn’t like the look on your face.
Q: I live and work in rural Kentucky. My boss fired me when he found out I’m a lesbian. He called me every name in the book, and he even admits that he hates homosexuals and doesn’t want them anywhere near his business. Can I sue the employer for wrongful termination?
A: No. There is no specific protection under the state or federal civil rights acts for sexual orientation. A lot of people are shocked to learn this, and rightly so. It is high time for Congress to get off its collective ass and extend some real protections to the LGBT community. Now, I hasten to add that there are some pretty big exceptions to this one. First, if you are in Louisville, or any of a growing number of cities in Kentucky, you’ve got the Fairness Ordinance. This gives you the right to sue for discrimination based on “sex, gender identity, or sexual orientation.” And fortunately, federal courts seem to be trending toward allowing protections for the LGBT community based on “sex” if a plaintiff can prove that s/he was discriminated against for not conforming to traditional gender roles.
Q: I am the only Jewish person out of a total of six employees in my workplace. My new supervisor told me I was fired because he didn’t like Jews. He used anti-semitic slurs against me and sent me home. Can I sue my employer for wrongful termination?
A: Believe it or not, no. At least not in Kentucky. I know, I know, this one’s crazy. The problem is that according to Kentucky’s civil rights laws, an employer with fewer than eight employees is not an “employer” at all. In the federal system, an “employer” has to have twelve employees or more. Thankfully, we don’t see this kind of thing happening too much in 2009. If it happens to you, you should talk to an attorney anyway, because there may be some other course of action you can take. For example, Louisville’s local anti-discrimination ordinance defines an “employer” as having only two or more employees.
Q: I work for a private corporation. I recently discovered that the owner murdered a whole troop of girl scouts and hid their bodies under Papa John’s Cardinal Stadium. I reported it to the police. As they dragged the guy away in chains, he yelled at me: “YOU’RE FIRED!” Surely I can sue the company for wrongful termination, right?
A: Wrong. The rule still applies: you can be fired for any reason except race, sex, etc. That includes reporting criminal activities of the employer under many circumstances. There are some big exceptions to this one, too. An employer can’t fire you because you refuse to commit a crime, for example. And if you work for the government, you might qualify as a whistleblower.
Q: Okay then, let’s say I work for local or state government. And let’s say I report that my supervisor is taking bribes, and HR fires me the next day. Game on?
A: You bet. You’re a whistleblower (at least in Kentucky). In fact, you don’t even have to be fired. If they diminish your job duties, suspend you, or discipline you in any way, you’ve got a potential cause of action.
Q: Good! But what if I’m a federal employee?
A: Oooh, that one’s tricky. It’s going to depend on the specific facts of your situation. Better talk to a lawyer. Before the Roberts-era Supreme Court, you would have had a pretty clear cause of action under the U.S. Constitution. Now, not so much.
Q: I was fired from my job for smoking half a pound of weed and driving the company dumptruck right into a giant trampoline full of nuns at a church picnic. I was high as a kite, but they can’t prove it. Also, uh…I think I was discriminated against. Yeah.
A: PLEASE STOP CALLING ME.
Let me be perfectly clear that THIS POST IS NOT LEGAL ADVICE. If you’re seriously thinking about taking legal action, you should definitely talk to a living, breathing attorney about the particulars of your situation. Do not, I repeat, DO NOT take the internet’s advice on legal matters. The internet is not a lawyer. This stuff is waaaaaay too nuanced to rely on some yahoo’s WordPress post. But hopefully this will give you an idea of how this stuff works.
And lawyers: please chime in with your thoughts in the comment section. I promise I’ll be a better moderator.
Mar
6
Damn, GINA!
For those of you that don’t know, I’m more than a little interested in legal issues facing cancer patients and survivors. In fact, you might say I have a vested interest in the subject. Last month, I gave an informal lecture (to a whopping three people) at Gilda’s Club on the Genetic Information Nondiscrimination Act (GINA).
The newly-enacted law makes it illegal for health insurers to raise your premiums based on genetic information, or to treat that info as a preexisting condition. It also makes people with less-than-desirable genes into a protected class. This means you can’t be discriminated against by your employer for having those genes, just like you can’t be discriminated against for being female, or African-American or Gay.
In terms of practical application, the law is intended to cover folks who test positive for genes associated with a particular disorder. For example, if my hypothetical sister gets a test that says she has the BRCA1 or BRCA2 gene, and therefore has “potential cancer” in her hypothetical breasts but is otherwise healthy, insurers and employers are prohibited from giving her the hypothetical boot. In fact, most employers are not allowed to ask for genetic info without jumping through a series of flaming legal hoops (although I predict that they’ll find ways around this pretty quickly – call me crazy).
It’s not really as impressive as it sounds, for several reasons. First and foremost, the law hasn’t taken effect quite yet. Insurers who know this is coming can jack up your rates based on your genetic info until May. Employers can still discriminate on the basis of genetic info until November. (So get that discrimination in while you still can, am I right?)
Second, for the people I am most concerned with – the already-diagnosed – the law basically does diddly/squat. If you have already been diagnosed with, say, breast cancer, insurance companies can (and will) still fuck with you. (You’re still protected from your employer because of the ADA and similar state statutes, but I digress.)
However, there’s some good stuff here, too. For example, if everyone in your immediate family is diagnosed with cancer, your insurer/employer can’t act against you. Believe it or not, that’s a new thing. As it stands now, if an employer perceives you as a risk to the company because of the potential that you’ll get cancer, they probably can fire you. (Unless the employer is self-insured, which might get you an ERISA claim. But I’m not touching that with a thousand-foot pole.)
The biggest nightmare I foresee with this thing is basically a technological one. As science starts to discover genes that, like BRCA1 and BRCA2 are more than just one-trick ponies, the line between genetic info and manifestation of a disease will likely become less clear. Scientists already know that the presence of BRCA1 & 2 both indicate a higher risk of ovarian and other cancers. So let’s say a woman is diagnosed with breast cancer, has a genetic test, and tests positive for BRCA1. Does she then have a cause of action against an insurer who might be inclined to charge her a higher rate? Couldn’t she argue that the insurer based the rate in part on her manifestation of breast cancer, but also in part on her increased risk for ovarian cancer? I think the answer is likely “yes.” It’s also likely that hapless insurance reps, when asked that very question in a deposition, would also answer “yes.” At least for the first year of two after GINA goes into effect.
That’s just the tip of the malignant mass, though. What if someone has a damaged TP53 gene? This basically makes the carrier into a cancer time-bomb by turning off the stuff that fixes your DNA and suppresses tumor growth. Is this going to be treated as a “manifestation” of Li-Fraumeni syndrome, or taken for what it is: a genetic disorder which manifests itself in various ways at various times?
I should confess that I have not read any of GINA’s proposed regulations and, of course, there is no case law yet. However, I don’t see how federal regs are going to be able to keep pace with genetics, or how judicial precedent is going to be meaningful at all in this context. It’s easier with sex, race, and religion; we know what those categories basically mean. But the law is notorious for its enormous following distance behind science.