Thursday, April 19, 2018

“We’re not in Kansas anymore”: Remembering the Oklahoma City Bombing, April 19th


It started in Grand Junction, Kansas. A white man, seething with hate and addicted to gun shows, blended in when he rented a Ryder truck. He packed the large van with 4,000 pounds of explosives, drove a short distance to Oklahoma City, and blew the Alfred P. Murrah federal building to smithereens. That was April 19th. The year was 1995.


Timothy McVeigh is the deadliest American terrorist, having killed 168 people.
In an interview conducted by an SMU journalism student, Michelle Rausch, outside the Waco Compound in 1993, McVeigh said a crazy thing that could pass for a Breitbart editorial today: “The government is afraid of the guns people have because they have to have control of the people at all times. Once you take away the guns, you can do anything to the people. You give them an inch and they take a mile. I believe we are slowly turning into a socialist government. The government is continually growing bigger and more powerful, and the people need to prepare to defend themselves against government control.”
Fast forward to Kansas on April 18, 2018.
Three white men from Dodge City were convicted in federal court of trying to blow up a local apartment building where Somali immigrants lived. The leader called himself the Orkin man, and referred to Muslims as cockroaches.
Later yesterday, another federal court held in contempt Kansas Secretary of State Kris Kobach— the person whom Donald Trump named to lead the so-called national voter fraud commission. Kobach imposed unconstitutional requirements that Kansas voters appear with a passport or birth certificate to prove that they are American citizens. He’s refusing to back down. Will the president pardon him?
Maybe Dorothy from the Wizard of Oz was right. We're not in Kansas anymore. We’re in a strange land where a small man blusters behind a Praetorian guard and a curtain to stir fear throughout the land.

Wednesday, April 18, 2018

White Terrorism, or “We All Have the Right to Hate”?


The term white terrorism is mentioned too little, probably because few whites are Muslims— and that form of terrorism is heavily distorted as a threat to public safety in America. In reality, white terrorism is the far greater threat.
A month ago, four men in Ford County Illinois were arrested on terror-related charges in connection with bombing the Dar Al-Farooq Islamic Center outside Minneapolis. They await trial. (Photo below of white terror group leader.)
Today, a federal jury in Wichita, Kansas convicted three men (pictured above) of plotting to bomb an apartment complex where Somali immigrants lived and worshiped in Garden City, Kan., giving prosecutors a victory at a time when threats against religious and racial minorities are rising nationally.
“These defendants conspired to build a bomb, blow up a building and murder every single man, woman and child inside,” Tony Mattivi, a federal prosecutor, told jurors during closing statements.
The defense team—playing to political themes that resonate in America’s heartland— made the following non-legal, highly political arguments. Quoting now from the New York Times reporter at the trial:
“Defense lawyers tried to convince jurors that their clients were manipulated by the F.B.I., and had been unfairly targeted for exercising their rights to own guns and speak freely. “He was a member of a militia. He loved his guns. This was a lifestyle,” Melody Brannon, a lawyer for Mr. Allen, told the mostly white jurors….
“It is not morally right to hold such hate, but it is not legally wrong,” said James Pratt, a lawyer for Mr. Stein, who acknowledged that his client referred to Muslims as ‘cockroaches.’ Mr. Stein referred to himself, the recordings showed, as an ‘Orkin man,’ referencing the pest extermination company. “We all have the right to hate,” Mr. Pratt added."
****
Note to Mr. Pratt: There is no right to act on hate-- and you know that. What an appalling defense.

Female Pilot Heroically Lands with Full Engine Failure: Vindication of Diversity




Meet Tammie Jo Shults, shown here with a passenger yesterday in Philadelphia. No, she is not a flight attendant. She is the Southwest pilot who was the captain during yesterday’s tragic and deadly flight. A veteran Navy jet pilot, she is described by passengers as having “nerves of steel.”
What does research say about gender differences among experienced pilots? Susan Baker et al., "Characteristics of General Aviation Crashes Involving Mature Male and Female Pilots," Aviation, Space, and Environmental Medicine (2001) reports this summary:
 Methods: 144 female pilots were compared to 287 male pilots, all of whom were pilots during an aviation crash.
Results: Male Pilots: Mechanical failure, gear up landings, improper IFR approaches, and collisions with wires or poles were more common for men than women.
Female Pilots: Loss of control on landing/takeoff was more common in crashes of female pilots. Mishandling aircraft kinetics was the most common error of pilots of both genders and was noted more often in female pilots’ crashes (81% vs. 48%).
Males’ crashes were more likely to involve flawed decisions (29% vs. 19% of females' crashes) or inattention (32% vs. 19%).
Older pilots made fewer errors: among males age 55-63, 26% of crashes has no pilot error compared with only 7% at age 40-49.
 Editorial Comment: When FDR integrated blacks into the military, there was fierce pushback by people who believed that these service members would be inferior to whites.
When West Point admitted its first female class in 1976, there was strong pushback. Women were stereotyped in several denigrating ways—too weak, too timid, too interested in finding a husband, and so on.
When President Clinton initiated the “Don’t Ask, Don’t Tell” directive to prohibit military discharges on grounds of homosexuality, some people pushed back with the stereotype that these service members would be blackmailed or engage in predatory behaviors in private quarters.
And just recently—not once, but twice— President Trump has pandered to the same ugly stereotypes about transgender service people, depriving the U.S. of a fully representative population in our nation’s military.
Thankfully, an experienced female pilot with nerves of steel was at the controls yesterday. Thankfully, too, diversity was vindicated over stereotypes.

Tuesday, April 17, 2018

Gorsuch’s Swing Vote— A Stunner— Blocks Hasty Deportations


Justice Neil Gorsuch broke a 4-4 tie between liberal and conservative justices today in a major immigration ruling.
Any alien who is convicted of a violent felony is automatically removable.
But suppose someone is convicted of a “crime of violence,” where no violence actually occurs. 
As Republicans have pushed sensible law-and-order laws to extreme reaches, they have passed laws such the Armed Career Criminal Act. The law has a long list of potentially violent crimes.
Take the case of James Garcia Dimaya, from the Philippines. He was admitted to the United States in 1992 as a lawful permanent resident. In 2007 and 2009, he was convicted twice of breaking and entering a residence. He served two years for each crime for a total of four years.
Under a section of the Immigration and Nationality Act, Republicans had successfully incorporated the language from the Armed Career Criminal Act to widen the sweep of aliens who could be automatically deported.
In 2015, the Supreme Court struck down the Armed Career Criminal Act because it was unconstitutionally vague. Its list of crimes did not enumerate actual violence, nor use of a weapon in commission of a non-violent crime. It simply said that crimes, such as breaking and entering, had so much potential for armed violence that the law would categorically treat simple breaking and entering as a violent crime.
Today, the same question was presented, only with this difference: Was the same language unconstitutionally vague when it is embedded in the nation’s immigration law?
 Four conservatives said there’s no constitutional problem here; four liberal justices said the law should be struck down under the Johnson precedent. 
Justice Gorsuch agreed with the liberal justices.
What does this mean?
First, it will slow down a large tributary of deportation cases that the Trump administration has been rushing to use.
Does this mean Justice Gorsuch will be a moderate? No one knows, but here is some research for perspective. Prof. Andrew D. Martin (University of Michigan) and Kevin Quinn (Cal-Berkeley) have tracked voting patterns among justices.
They find that—contrary to public perception and conservative lore— Justice Antonin Scalia peaked as a conservative vote in 2000; thereafter, he became noticeably more moderate. See this chart:
By the time he died, Justice Scalia was a solid conservative but his overall voting pattern put him in range to side with liberals on a fair number of cases. The most conservative justice is Thomas, followed by Alito.
I think that describes Justice Gorsuch’s probable trajectory—a solid conservative vote who will occasionally cross over to vote with liberals.
It is a good day for America’s constitutional system.

Saturday, April 14, 2018

Does a Monkey Have a Right to Sue Over His Selfie?



The macaque in this photo grabbed David Slater’s camera and snapped some selfies (see photo). Slater saw an opportunity to peddle the picture for money. As the “monkey selfie” grew in popularity, and was part of a book, PETA (People for the Ethical Treatment of Animals) sued. They claimed that the macaque, named Naruto, had the same authorship rights to the photo as any human would, meaning Slater infringed those copyrights by republishing it in a book about the infamous photo.

So, PETA sued Slater and Slater’s book company for Naruto’s share of the proceeds. PETA intended for the money to benefit the preserve where Naruto lives, so there was a real economic objective behind the lawsuit.
Seven months later, PETA and Slater settled: Slater agreed to pay 25% of the proceeds to the Indonesian preserve that Naruto calls home.
Next, PETA and Slater moved to dismiss the lawsuit—and here’s where the case takes a legal twist.
This week, the court refused to dismiss the matter. The Ninth Circuit said, “this case has been fully briefed and argued by both sides, and the court has expended considerable resources. ... Denying the motion to dismiss ensures that ‘the investment of public resources already devoted to this litigation will have some return.’”
What the court meant was that dismissing the lawsuit would deprive courts the opportunity to develop precedent over the basic issue of whether an animal has standing to sue in federal court.
What makes this case interesting from a legal standpoint is that Naruto created this picture-- not the human being named david Slater-- and Naruto smiled in an especially appealing manner, as if this macaque were human. 
Where the animal creates value independent and apart from human intervention, should the animal share in the rights
Silly though the case seems, it also has real ramifications for animals whose very existence is threatened by reckless human beings. Courts are struggling to figure out how to draw the line—or even if they should draw a line—where an animal sues for a specific court remedy (this is not the first animal standing case). 
Naruto’s selfie may, over time, evolve into a “groupie” for other animals.  
The other possible implication involves Bill O'Reilly and other MeToo lawsuits. If a wealthy party offers enough money to "kill" a lawsuit, the public interest in policing misconduct is lost in the process.
For the past 30 years, this has been a growing problem in sexual harassment and assault cases. Perhaps these settlements have lulled bad actors into a sense of being above the law. 
****
Photo Credit: David J. Slater and Naruto (this blog site does not charge, advertise, or otherwise exploit images for compensation of any kind. Slater's book, available for purchase, is Wildlife Personalities on Amazon, https://www.amazon.com/WILDLIFE-PERSONALITIES-David-J-Slater/dp/1320262961).  




Friday, April 13, 2018

I Beg Your Pardon, Could Trump Be “President for Life”?


President Trump has raised the specter of two dangerous warps to the U.S. Constitution: abuse of the pardon power, and the suggestion that he could be president for life.
The first problem looks more serious for now. There is no limit on the president’s pardon powers. Under Article II, Section 2 of the United States Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States.” President Trump has turned this power into a political device. He pardoned Sheriff Joe Arpaio and now has pardoned Scooter Libby. He has also hinted at pardoning anyone convicted by the Mueller investigation. (The president cannot be indicted or convicted of a crime while in office, so he cannot pardon himself.)
What does this mean for the future? Possibly, an amendment to limit this power (other constitutions require a recommendation for pardon from government ministers). English monarchs were prone to abuse this power, as noted by Prof. David Gray Adler: “the pardon was not so much an act of grace as it was a tool of pecuniary and political aggrandizement. From the outset, the pardon was abused for personal gain.” Parliament has, from time to time, limited the pardon power.
But lest you dismiss the president-for-life line from President Trump, it probably wasn’t a joke. In early March, upon hearing that China’s President Xi engineered a constitutional coup that made him “president for life,” President Trump "joked", “I think it’s great.” (See picture.)
But wait, you say—he can’t do that because the 22nd Amendment limits a president to two terms or ten years.
True, but this does not unambiguously block his path to a longer reign in office. 
In 1804, the 12th Amendment was enacted to provide the current form of electing a president and vice president. The 22nd Amendment (ratified in 1951) would bar President Trump from running for a third term or serving more than 10 years.

That limit does not apply to a vice president. Now suppose after two terms President Trump runs for vice president behind a pliable puppet presidential nominee. After the election, if the puppet president resigned, Trump would become president.
The point is that these two amendments, enacted about 150 years apart, allow this significant loophole. Only a despotic president could contemplate being president for life. But in this bizarre scenario, Trump would be serving the term of the elected president-- someone other than him.
Anyway, you say, such a thing would never happen! 
A version of it did take place-- in Russia. Reaching his two-term limit in 2007, President Putin announced that Dmitri Medvedev was his preferred successor. Medvedev served out his term, and supported Putin for president—and Putin thereby circumvented the two term ban (there is no ten year limit in Russia). 

With some adaptations here and there, Trump could run the table on the 22nd Amendment and serve beyond the constitutional limit.

Thursday, April 12, 2018

Surprises in My Meeting with NFL Union Leader


Yesterday, I sat in on a conversation with the Executive Director of the NFL players union, DeMaurice Smith.
Here are some brief impressions and surprises.
He acknowledged it’s very hard to get players even to contemplate a strike. That likely means that Roger Goodell, the NFL Commissioner, has the same sense. That puts the union at a significant disadvantage in bargaining its next labor agreement. The surprise is that he openly acknowledged this reality.
Smith also said that NFL locker rooms are filled with players who are more interested in lowering their taxes than thinking like a union brother. That’s not too surprising since most of these players don’t come from union households where they might develop working class values. The surprise is Smith’s characterization of many of his members as tax-conscious Republicans.
Smith said that because of this mindset, the union is somewhat limited in taking on broad social justice causes. The kneeling protest is an exception, along with its embedded message of racial injustice. But this is not a union geared to supporting Fight for $15 for low-wage workers, and Smith implied as much. The surprise is that Smith said that his union has formally rejoined the AFL-CIO, and he on the AFL-CIO executive board. This means that Smith is trying to broaden the support for his union within the ranks of labor.
The biggest surprise was Smith’s extended discussion about the possibility of removing all player agents from the apparatus of player-team dealings. Instead, he’d like to hire a cadre of agents and subsume all player bargaining within the union. Smith makes two points here: first, players would save lots of money that they now spend on agents, and second, if the union had control over negotiations, no one would sign a contract that isn’t 100% guaranteed. That would be a very big deal because most players, even stars, rarely receive fully guaranteed contracts. By the way, there is ample Supreme Court authority to allow the union to take agents entirely out of the picture.
Smith didn’t comment at all on Colin Kaepernick. Perhaps he did at another point in the meeting after I stepped out. His union is not representing Kaepernick. The quarterback has hired outside counsel. But all of this is a tell-tale sign that there is some friction within player ranks and the players union about Kaepernick.
Smith added this mildly surprising analysis about Donald Trump’s insertion into the kneeling protest, stating that Trump’s use of the term son-of-bitches inflamed many players because they heard it in such deeply personal ways. Many players were raised in a single parent home. They heard Trump calling their moms “bitches.” Those are fighting words.
And in the final surprise of the meeting, Smith said that NFL locker rooms and practice fields are largely devoid of cursing. Few, if any coaches, swear at players. Times have changed. The players and the coaches co-manage an environment that is very public, where egos and reputations are very important. Cursing doesn’t fit anymore. In contrast, the current president finds occasions to curse in public (e.g., “sons of bitches” and “shithole” nations).

Tuesday, April 10, 2018

Two Girls: The Holocaust



I’ve handed you the front- and back-cover of a “book” (they are actually slides from a presentation I do for elementary students). I’m not writing this book to tell you how think about this. I invite you to think for yourself.

The Nazi girl is the creation of Hitler’s propaganda apparatus. She is collecting money for a youth hostel.

The other girl is Gabriella Lefkovits. She is my aunt, my father’s little sister in Nyermada, Hungary. She is shown as an 8 year old in a family portrait taken within a year of her death at Auschwitz.
Today, I asked 4th grade students to compare similarities and differences between these girls. They had a lot to say.

The more you notice similarities and differences, the more you understand the Holocaust. (Click on each photo for more detail.)

Feel free to share your thoughts on FB, or privately with me at mhl@illinois.edu.

Monday, April 9, 2018

Grant’s Expulsion of Jews: What Does It Mean Today?


On December 17, 1862, during the Civil War, Ulysses S. Grant issued General Order No. 11. The order threw out all Jews in his western division of the Union Army. Grant gave Jews 24 hours notice to pack up and leave.  
A month before, Grant sent an order to Major-General Stephen A. Hurlbut: “Refuse all permits to come south of Jackson for the present. The Israelites especially should be kept out.” A day later, he instructed General Joseph Dana Webster: “Give orders to all the conductors on the [rail]road that no Jews are to be permitted to travel on the railroad southward from any point. They may go north and be encouraged in it; but they are such an intolerable nuisance that the department must be purged of them.” 
How was the order enforced? Clearly, some degree of physical stereotyping would be required to effectuate it. 
Later, Grant wrote to General Sherman that he needed to issue the expulsion order because “of the total disregard and evasion of orders by Jews.”
What set Grant off? The immediate cause was a Union embargo on the cotton trade. In his words, the underground market for cotton was run “mostly by Jews and other unprincipled traders.” 
This religious libel trafficked in the long-running stereotype of Jews as greedy, selfish actors. William Shakespeare's The Merchant of Venice and Charles Dickens's Oliver Twist reinforced the stereotype of the crooked Jew. 
Essentially, Gen. Grant charged all Jews as being corrupt.
Jewish community leaders spoke out. By January 4, 1863—a year after the expulsion took effect— President Abraham Lincoln revoked the General Order on January 4, 1863.
Reading the text of the order is also instructive:
“The Jews, as a class violating every regulation of trade established by the Treasury Department and also department orders, are hereby expelled from the Department [of the Tennessee] within twenty-four hours from the receipt of this order.”
This week, Jews and all people of conscience commemorate the Holocaust.
Grant’s bigotry against Jews offers some timely comparisons.

Candidate Donald Trump promised voters a “total and complete shutdown of Muslims entering the United States.” See this news story from December 7, 2015—11 months before the election (https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?utm_term=.8efa85df421b). This amounted to a total exclusion based on Grant’s similar thinking about Jews.

On July 26, 2017, President Trump announced that transgender people would no longer be allowed to serve in the U.S. military—a total exclusion based on Grant’s similar thinking about Jews (as of October 2017, 20 countries allow transgender service members, as varied as France and Germany to Cuba and Thailand).

On August 31, 2016, candidate Trump specifically libeled Mexicans as a categorical group, saying:  “They're bringing drugs. They’re bringing crime. They’re rapists.”

The destruction of most of European Jewry was built on the type of despicable group libel communicated by Gen. Grant and Donald Trump. 
***
There is a noteworthy postscript to Grant. He changed. After the Civil War, he was the primary commander for leading troops into Southern states to root out the Ku Klux Klan. 
By 1875, the Klan was crushed due in no small part to Grant’s relentless military and political efforts (by supporting law-abiding sheriffs and elected politicians, and working for elections free of Klan intimidation). 
Later, as president he appointed more Jews to office than any previous president. He condemned atrocities against Jews in Europe, putting human rights on the American diplomatic agenda. Grant was also the first president to attend a dedication of Jewish synagogue.
I welcome FB post, and your privately communicated thoughts to mhl@illinois.edu. Surely, I have only scratched the surface. Thanks to a wise friend who alerted me to Grant’s order.

Sunday, April 8, 2018

How Red and Blue States Hold Employers Hostage for Immigration Problems



Suppose you work for a company that does business in Arizona and California. For simplicity, let’s say your company is the large grocery chain, Albertson’s.
In Arizona, your entire company is subject to a “death penalty” law if you knowingly hire unauthorized aliens on two different occasions. The law in question is called the Lawful Arizona Workers Act. A sharply divided Supreme Court, split in a 5-4 vote, ruled that the state law did not interfere with federal immigration law. 
Liberal dissenters argued that the ruling undermined one, uniform set of immigration laws as they relate to employment. Federal law fines employers who violate the law by hiring undocumented workers; only if there is a pattern of violations does the law allow for criminal fines and up to six months in jail. The dissenters’ point: It’s overkill to put an entire company out of business in a state for two violations of immigration law.
Other liberals were upset by the ruling. 
But now they have turned the tables in California.
California recently enacted Assembly Bill 405. AB 405 applies to private employers—in my example, Albertson’s. 
The law bars employers from admitting ICE inspectors to “nonpublic” areas of a jobsite unless the inspectors have “a subpoena or court order,” thus impeding ICE’s surprise workplace raids. 
It also requires employers to notify their workers when ICE asks to inspect a company’s employment records—records that may reveal that some employees are in the U.S. without permission. Finally, it provides that employers (who must by federal law verify a worker’s eligibility to work at the beginning of employment) may not re-verify the same worker later. 
Violators are subject to a $5,000 fine for the first offense, and $10,000 for each subsequent offense. It’s not the death penalty, as in Arizona, but it, too, has a degree of overkill. For more, click here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB450
Whatever is an optimal immigration policy, holding private employers hostage to severe consequences for hiring undocumented workers (Arizona) or allowing ICE on the their property (California) is blaming the wrong person—the employer—for a much bigger problem created by forces far beyond their control. Sad to say, other red states are copying Arizona, and blue states are copying California.
PHOTO CREDIT: PAUL FELL, ARTIZAN SYNDICATE

Saturday, April 7, 2018

Thank God for Chinese Americans and Mormons


My wife sent me this photo today from Kentucky. It's a stunning reminder that America has turned its clock back about 150 years. 
In 1875, under the pretext that we “exist in a free, enlightened, and Christian country,” President Ulysses S. Grant urged Congress to root out polygamy, a practice embraced by Mormons in Utah. In the next paragraph, he had the same type of Christian logic-leap as President Trump: “While this is being done [outlawing polygamy], I invite the attention of Congress to another, though perhaps no less an evil— the importation of Chinese women, but few of whom are brought to our shores to pursue honorable or useful occupations.” Translation: Women from China are innate prostitutes —but in reality, many women from China came to America to find a Chinese husband and raise a family.
Thus, in 1875 Congress enacted a law that devastated the Chinese American community for nearly a century. 
The Page Act required any “Asiatic woman” to travel to the Consul Office in Hong Kong for an interview and visa to enter the U.S. A few women—136—were able to prove to the Consul in 1882 that they were married to a Chinese man who was in the U.S. All other women were turned back.
The Page Act had severe consequences for suppressing Chinese American families. George Anthony Peffer, in a 1986 study, concluded that “although the Exclusion Act transformed Chinese Americans into a declining immigrant group, it was the Page Law that exacerbated the problem of life without families in America’s Chinatowns.” Stanford Lyman, in his book Chinese Americans (1974) concluded that the Page Act meant that for nearly 100 years, American Chinatowns contained very few families—and it was not until the 1970s that a gender balance began to emerge between Chinese American men and women.
It’s hard to see how Christian values could lead to a legal attack on a peaceful religious minority, and also cause family suppression on grounds of race. Today, these two groups achieve well above the norm for Americans in academic and professional success. It's no thanks, however, to the Christian values that were funneled through politics.



Hairy Discrimination


Hair can be evidence of employment discrimination. Seriously. Here are two brief examples.
Take IBM. They have a long track record of laying off older workers.
How do they get away with what appears to be age discrimination? The answer is that the Age Discrimination in Employment Act (ADEA)—which prohibits any adverse employment decision based on age for employees 40 years and older— has a large exception for “reasonable factors other than age.” A corporate reorganization based on cost is a reasonable factor other than age. It also clears out older workers who tend to have higher pay, and advances a younger generation of managers who are cheaper to employ.

Enter hair. An IBM document referred to such a strategy. Older executives were praised for their  experience but described Baby Boomers as “gray hairs” and “old heads.” The memo added, “successor generations … are generally much more innovative and receptive to technology than baby boomers.” [Note aside: The people in my life who are bailing out of Facebook and ditching social media are millennials, while my over-40 friends are holding fast, saying that the way to adapt to Facebook is to limit or change interactions, not delete your account. So much for ageist assumptions about technology.]
This document was cited in an age discrimination lawsuit that the company eventually settled. I was an expert witness in an age discrimination lawsuit a few years ago. Company documents revealed the same type of ageist assumptions. The $2.1 million lawsuit settled for $933,000 on the strength of this evidence.
Here is the other hairy problem: Dreadlocks.
This week, the NAACP asked the U.S. Supreme Court to consider whether denying a black woman a job because she had dreadlocks is a form of unlawful race bias. We read this case from a lower court in one of my classes. Chastity Jones [photo above] was offered a job at a call center only to have it rescinded when she refused to cut her hair in order to comply with the company's grooming policy. It's not clear what hair has to do with answering client phone calls, and Ms. Jones seems to project a business-like appearance above.
The 11th U.S. Circuit Court of Appeals in 2016 dismissed Jones' case, which was brought by the Equal Employment Opportunity Commission, saying it was bound by existing precedent that held Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on traits that can be changed. Although dreadlocks are culturally associated with race, the circuit said, the EEOC did not claim they are an “immutable characteristic” of black people.
My thought? Rarely does anything good come out of discussing, assuming, or making an employment decision based on someone’s hair. And for good reason: Hair is rarely related to performance. But comments about hair frequently reveal bias. (Thanks to a FB friend for the tip.)

Friday, April 6, 2018

Chicago Tribune Continues Unfair Press About UIUC, State of Illinois



The Chicago Tribune is running a chart-article showing that admission of Illinois residents at the University of Alabama is growing at a very rapid pace. As of 2107, 4.1% of Alabama students come from Illinois.
The implication of the article is that the University of Illinois is not doing enough to be competitive in keeping students.
Here’s what the Chicago Tribune isn’t telling its readers:
At UIUC, 74 percent of undergrads are from Illinois. That’s the highest in-state percentage of any Big Ten school except Rutgers (NJ). Wisconsin's in-state level is 57 percent, Michigan's is 51 percent and the Big Ten average is 62 percent.
Here’s another important statistic that the Chicago Tribune is not reporting.
The graduation rate at UIUC is 85%. The graduation rate at the University of Alabama is 67%. 
That’s a big difference. 
Is it because UA students aren’t prepared for the rigors of college? Is that where students and parents believe a promising student can thrive?

Is it because non-residents are dropping out, perhaps for cultural or other reasons?
Here is another big difference: the student loan default rate at the University of Alabama is 5.7%; the default rate at UIUC is 1.7% (U.S. Department of Education statistics for most recent reporting, 2014).
How does Alabama explain to parents and students-- who maybe chose the school because it's cheaper than UIUC-- that their ungraduated students are saddled with student loan debt but have no degree to show for their Alabama tuition, housing and fees?
Come on, Trib. Sure, there are things to criticize at UIUC. But your writers pretend that the alternatives to the University of Illinois—and to the State of Illinois— are clearly superior.
If that’s true, why don’t you change your name to the Birmingham Tribune and see how many papers you can sell with that fancy title.

Fired for Butt-Dial Call to Boss: Can Employee Win Lawsuit?


James Stephens put his cellphone in his pocket after hanging up with his boss one evening in January 2016. A few minutes later, he realized that he’d accidentally butt-dialed his boss, a Georgia official. The problem is that his boss overheard his conversation with his wife, where Stephens was critical about his boss’s job performance.
Stephens is suing. His lawyer’s legal theory is that the boss was eavesdropping on a private conversation. That is illegal. Therefore, a termination based on illegal behavior is itself unlawful.
I offer a different perspective.
First, Georgia’s constitution protects speech.  It states: “Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.” 
Stephens appears to have a constitutional claim: he was fired for speaking. 
To the counter-point that he abused this right, Stephens did not publicize his views, nor did he even intend for anyone else to hear this. 
Reinforcing the point, communications between married people enjoy a legal privilege.
There is a second basis for a claim: unjust dismissal. In many states—not all— courts have implied a right that an employee cannot be fired where the termination itself violates a public policy.
Now consider Virginia. It’s a conservative state like Georgia, and therefore recognizes employment-at-will. This means an employer—including public employers— can fire people anytime, for any reason, or no reason at all (see Donald Trump’s penchant for firing, the epitome of employment-at-will behavior).
In Virginia, the boss fired a female subordinate after she refused to have an affair with him. She sued, claiming unjust dismissal. The employer argued employment-at-will applies even to bad or stupid terminations (it does).
But here’s the twist: the woman’s lawyer pointed to Virginia law, which places special significance on the marital relationship between husband and wife (not same sex couples, but that’s a different story). She won the case on grounds that she was fired for refusing to violate the sanctity of her marriage.
In Georgia—where marriage enjoys that type of special legal status— it would seem that Stephens for fired for communicating private information meant only for his wife. Granted, it’s not the same case as adultery-or-else.
But if a husband and wife, or same-sex married couples, can be fired because their boss eavesdrops on their intimately private communications, how does the law protect the special nature of the marital relationship, where trust and privacy are paramount?
Thanks to my wife, Janet, for the tip on this story!

Thursday, April 5, 2018

Woman Forced to Resign for Giving the Finger to President Trump: Why She’ll Win

Juli Briskman sued her former employer, Akima, today. She alleges that Akima forced her to resign last November after she was identified as the woman—and Akima employee— who gave the President’s motorcade the middle finger. Akima’s story? They’re a government contractor. Their website says: “With thousands of active contracts in the federal, military and civilian markets, Akima companies are proving to be a critical part of successfully meeting the toughest challenges for their customers.” They didn’t want to be identified with Briskman’s political opinions and lose contracts.
But Akima is not as neutral as you might think. Earlier in 2017, a Senior Director of Operations at Akima called Briskman “a fucking Libtard asshole” in a Facebook discussion. He identified himself in a way that made clear to Facebook readers that he worked for Akima. The Company allowed this nice man to keep his job after he deleted his offensive comment.
So, why will Briskman win?
While her complaint is not online (yet), news reports say that when she was forced to resign she negotiated a four week severance package—a pittance for a single mother of teenage kids. Akima paid two of the four weeks. So she is suing for about $2,500 to recover on her contract claim. If she has a piece of paper that is signed by a company representative, she’ll be a hands-down winner in court. She’ll get her small sum of money and attorney’s fees.
Her attorneys also are quoted as saying that she has a First Amendment claim. Their point is that a government contractor cannot fire an employee out of fear of political reprisal.
That’s going to be an uphill climb for Ms. Briskman. Akima is a private employer, and Virginia is an employment-at-will state. That means Akima could fire (or force her to quit) any time, for any reason, or no reason at all.
But Ms. Briskman has already won. This morning, news accounts report that her GoFundMe site has raised $100,000.
When I donated $18 at around 11:00 a.m., the fund had more than 5,000 donors and raised more than $134,000.
A concluding thought: While this appears to be a legal battle, the larger story here is empowerment of another woman, and affirmation of her courage by thousands of strangers who feel a connection to her. If the nation’s democratic values are going to survive in the coming years, the main force will be women—women like Ms. Briskman.

Wednesday, April 4, 2018

Illinois Student, “Why I Won't Go to College in Illinois”: My Reply


The Chicago Tribune is featuring this letter-to-the-editor from a Mundelein High School student.
First, here is her letter (I've removed her last name because I am not personalizing my differences). I’ll reply below.
I couldn’t agree more with your editorial “Illinois Exodus: Flight of the expats.” As an 18-year-old who is about to embark on my endeavors as an adult, I too am fleeing Illinois for many of the same reasons as the families you interviewed.
The first is college tuition, cited by the Carpenter family. I am one of the only people I know who did not apply to University of Illinois or any Illinois school for that matter. The Illinois school system is broke and gives very little merit aid to in-state residents.
Second, after graduating college, I do not want to pay the expensive property taxes in Illinois. I will not want to pay those outrageous rates with a relatively small income after college, especially when I’ll also have to purchase a car, a home, and pay back student loans. How is a young professional ever supposed to buy a home and settle down in Illinois with these taxes?
Lastly, state politics is a deal breaker for me. The Heard family touched on this a little too. I cannot stand to sit back and be swindled by House Speaker Michael Madigan. I do not want to spend the rest of my life where power-hungry politicians are hurting honest politicians and hardworking citizens. It is not right, and I will not fall victim to it.
I really appreciate this editorial. I think it sheds light on many issues that should be addressed in the upcoming election. I hope that this exodus will send a message to politicians of Illinois that from young (like me) to old (like the people you interviewed), we are unhappy with our state.
— Abbie ____, Mundelein
***
Dear Abbie,
Your letter is clearly written and states several rationales for not applying to the University of Illinois, and also for deciding to leave Illinois.
Respectfully, I offer a counter-perspective.
I am a parent of a current UIUC student who has received more than $10,000 over the past four years in merit aid. 
I’d simply say this: If you don’t apply, you’ll surely get zero financial aid. Why not at least try?
You’re right about property taxes. That said, if you move to a low- or no-property tax state such as Oklahoma, Arizona, Kentucky, or West Virginia, the family you might raise will have teachers who walk out in the middle of the school year because they haven’t had a raise in 10 years, or their pensions are being cut without even holding a single legislative hearing, or their classrooms are terribly under-provisioned with supplies and books. 
What you’ll probably do, Abbie, is enroll your child or children in a private school and pay $10,000 or more a year—and you’ll still be paying taxes in some way for public schools. Yes, your tax bill will be lower but the cost of educating your children won't necessarily be less. 
You are right about Mike Madigan. He has had a terrible stranglehold on Illinois politics and many residents have been hurt in one fashion or another by this lack of political competition. It’s a sad state of affairs. 
But speaking of affairs, none of our elected leaders has had a sexting-laced affair that has crippled state politics, as is occurring just across our border with Missouri and its disgusting governor. 
We haven’t had a state supreme court chief justice elected twice after being thrown out of office due to ethics violations—and that was before Roy Moore was exposed as a sexual predator who violated a 14 year-old girl. 
If you plan to attend Michigan State, I hope you’ll think twice about a school culture that permitted a team doctor to sexually molest more than 200 young women your age on that campus, and retained a dean who stored pictures of these naked victims on his office computer. 
If you enroll at Penn State, you might say a prayer for the 10 year-old boy who was raped in the football stadium locker room by the second-in-command coach. You might also say a prayer for the Penn State freshman who recently died in a senseless binge-drinking hazing accident.
The truth is that Illinois has many serious problems and you are wise to consider other schools for your education and states for your long term future. 
But you appear to believe that the grass is greener on the other side of the Illinois border. In fact, Abbie, the grass has lots of weeds and dirt patches wherever you go.

More Work, Less Overtime: 5-4 Supreme Court Vote Hurts Middle Class


You may soon lose your overtime pay if you are a nurse, office manager, salesperson, construction supervisor, health care office worker, and similar. That is the upshot of the Supreme Court’s ruling this week in a case involving “service advisors” at auto dealers (the people who check your car in). These workers argued that they were legally entitled to overtime pay under the Fair Labor Standards Act (the nation’s wage and hour law). In its 5-4 ruling in Encino Motorcars v. Navarro, the high court ruled that these employees are “exempt” from overtime laws.

So what, you say? The problem is how the majority wrote its opinion. They swept away 60 years of precedent stating that “exemptions” are to be narrowly interpreted. 
So now employers may broadly interpret “exempt” employees.
Let’s break this down with two illustrations. 
Nurses usually are classified as hourly employees. Now, however, if a nurse supervises several others, she or he may classified as an “executive” because this element must “have a primary duty of managing the enterprise or a department or subdivision of the enterprise; must customarily and regularly direct the work of at least two employees. Before this court ruling, that was laughable—but the Court has now said that these terms can be interpreted broadly.
So, broadly speaking, some nurses are “executives” because they “supervise at least two employees.”
That nurse might be paid $20, with ten hours of overtime most weeks. The nurse would earn an additional 150% of $20 per hour, or $30/hour (increasing her weekly pay by $300).
Now, her employer can reclassify job as “exempt” from overtime, assign the extra hours, and not pay anything extra in overtime.
Let’s do the same math but now use an office manager. She doesn’t supervise anyone, but she might be reclassified under the “administrative” exemption. Here’s the test for her: “employees must have a primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and their primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.” I have italicized “discretion and independent judgment” because most office managers are given fairly concrete guidelines for managing work flow. But, if the test is now to be broadly construed, she is much more likely to be reclassified as an employee who is exempt from overtime.
Let’s close with some numbers: According to Department of Labor statistics for 2017, 80.4 million workers age 16 and older in the United States were paid at hourly rates, representing 58.3 percent of all wage and salary workers. Among those paid by the hour, 542,000 workers earned exactly the prevailing federal minimum wage of $7.25 per hour. About 1.3 million had wages below the federal minimum.
How many of these people will now lose overtime? It’s anyone’s guess—but given the novel, biased, and ideologically-driven way that Justice Clarence Thomas wrote the opinion, the number will probably be substantial. Justice Gorsuch joined the majority, adding to more "winning" as America becomes "great again."
The less that people are paid overtime, the more America’s vanishing middle class will shrink. 

Tuesday, April 3, 2018

Meet Hatreon: Was Charlottesville Violence a Crowd-Funded Hate Conspiracy?

Can someone seek funding to hold a white supremacist rally? Apparently, yes. Hatreon is a crowdfunding website without hate speech restrictions. 
It’s an invite-only website. The picture below shows its members, most if not all associated with hardcore hate groups (click to enlarge).

Did Hatreon crowd-fund a conspiracy to commit violence at Charlottesville?
That’s one of the questions put forth in a lawsuit, Sines v. Kessler. Recently, Hatreon was reportedly put under a court order of discovery—legalese for sworn-testimony connected to a lawsuit.
The plaintiffs are 19 people who claim physical and emotional injuries arising out of white supremacist violence.
One plaintiff survived the speeding and swerving car that killed Heather Heyer.
Another plaintiff suffered a stress-induced stroke.
These plaintiffs allege that the Unite the Right rally wasn’t an expression of free speech that got out of hand, but instead, as lead attorney Roberta Kaplan told a reporter, “a direct conspiracy to commit violence.”
Kaplan’s legal team reportedly has collected thousands of hours of chats and videos created by the defendants and leaked online — including white nationalist pundit Richard Spencer, rally organizer Jason Kessler, and Andrew Anglin, founder of the neo-Nazi Daily Stormer website — that urged participants to prepare for and commit violence in Charlottesville.
Meanwhile a Cincinnati-area lawyer is representing the defendants, who are white supremacists and neo-Nazis. According to the Cincinnati Enquirer, James E. Kolenich, got involved because “white people must save and preserve their civilization.” He added: “My willingness to get involved is to oppose Jewish influence in society. It’s plain that white people are the chosen people in the New Testament. It’s the job that we were given, to spread Christianity around the world. That doesn’t involve hatred of other races, not even of ethnic Jews. But it does involve opposing their un-Christian influence in society.”

Sunday, April 1, 2018

Today’s DACA Tweets Recall a Racist U.S. Senator, James D. Phelan


Fox News has an article today that explains Easter: “We Christians believe that Jesus Christ was sent by God the father to live among us, to show us perfect love. Jesus loved outcasts and sinners.”
So why did President Trump choose today, of all days, to tweet his disdain for DACA recipients and to imply that there is no place for them in our nation?
That question is for you to decide. This president’s views on immigrants compare to those published in a shocking article in 1919 by Sen. Phelan, “The Japanese Evil in California.”
Part of Sen. Phelan’s concerns focus on the “breeding” habits of Japanese. In the following passage, he expressed concerns that Japanese will outbreed the whites and push whites out of California.
Speaking of “picture” brides—women who were brought to the U.S. to marry Japanese men— Phelan said:
"I have recently witnessed as many as one hundred and fifty arriving on one ship in San Francisco harbor, and these unfortunate chattels, I am told, recoil in many instances from the ordeal when, through the bars of the immigration station, they see for the first time the images of their " husbands." There is no ceremony. Japan has simply given the women passports as wives, under the "Gentleman's Agreement," and they come in.
They are led away by their masters and serve a twofold purpose, both in violation of the spirit of the Agreement, which was to restrict the increase of Japanese laborers. They are laborers. They work in the fields as laborers, side by side with the men; and, being remarkably prolific, they bear many children to them to swell the increasing Japanese tide.
The California State Board of Health, in its twenty-fifth biennial report, gives the following vital statistics of births for 1917: White 47,3I3; Japanese 4,108; Chinese, 419; Negro, 328, Indian, 52. The report makes this comment: " The per cent, white decreased steadily through the last twelve years; thus, 98.04 (1906), … (to) 91.9.
The decrease in the proportion of white babies is due to marked increases in Japanese birth registration, as follows: 134 (1906), 221, 455, 682, 719, 995, 1,467, 2,215, 2,874, 3,342, 3,721, and 4,108 (1917).
This is three thousand per cent, increase!
The unavoidable conclusion to be drawn from these figures is that, where the Japanese come, the whites go. It is easy to calculate how, by geometric progression, the Japanese in a very few decades will have supplanted the men and women of California who have pioneered, developed, and occupied the land."
***
It is hard to reconcile the core beliefs of Easter with these harshly anti-immigrant views.