Answer to Who Is This Person? “He is Humorless to the Point of Being Inhumane”

The author of this sentence is Clayton Kirkpatrick, the Chicago Tribune editor who died in 2004. His obituary in the Washington Post— an ideological rival— states that he transformed the newspaper from “its legacy as a nasty, partisan broadsheet to a professional, centrist publication.”

Kirkpatrick was the first editor in the nation to publish the full transcripts of President Richard M. Nixon's Watergate tapes in a 44-page special edition May 1, 1974. 

A week later, Kirkpatrick called for the president’s resignation under the heading, “Listen, Mr. Nixon.”

The editorial said, in part:

"It is a lack of concern for morality, a lack of concern for high principles, a lack of commitment to the high ideals of public office that make the transcripts a sickening exposure of the man and his advisers. . . . He is humorless to the point of being inhumane. He is devious. He is vacillating. He is profane. He is willing to be led. He displays dismaying gaps in knowledge. He is suspicious of his staff. His loyalty is minimal."

As the Washington Post obit reported in 2004, “For a paper that for a half-century was considered the bible of Republicanism, the turnabout was shocking.”

We live in interesting times, once again.

Who Is This Person? “He is Humorless to the Point of Being Inhumane”

The following is a quote from a prominent, conservative newspaper. The question is: Who is the subject of this quote?

Feel free to post answers on FB or email me at mhl@illinois.edu.

The quote: “He is humorless to the point of being inhumane. He is devious. He is vacillating. He is profane. He is willing to be led. He displays dismaying gaps in knowledge. He is suspicious of his staff. His loyalty is minimal.”

I’ll post the answer later today or tomorrow.

Bewitched: Reinterpreting Witch Hunt as a Wizard!

To my students and friends, thank you for playing along—and also keeping an open mind.

One Lesson: In a large cafeteria, people approached me and said they like the wizard outfit. I get it—but I never thought that my consciously female outfit would be reinterpreted. Indeed, I would likely see myself as a wizard. So, not to make too much of this, but a lesson for me is that sex-role conformity is so strong that we reinterpret gender cues and signals to fit our preconceptions.

Another Lesson: No one is hassling me in the men’s room (maybe because they see a wizard), but it is an uncomfortable experience. That’s on me. Wearing a female outfit to a men’s room feels different. My simple point is that UIUC has gender-neutral bathrooms. I like privacy in the first place; but today, dressed with fingernail polish, lipstick and a confirmed witch (not wizard) outfit, I was grateful for the privacy.

Last Lesson for Now: The prompt for today’s dress-up—apart from Halloween— are two employment discrimination cases. A fire fighter was disciplined for dressing like a woman (he was undergoing gender reassignment), and a woman who looked like a “tomboy” was fired from her hotel clerk position because she did not have a gender-conforming appearance.

Both employees had excellent work records—they simply didn’t conform.

My challenge to us: Spend a day (or even a couple of hours) dressing like someone from the other sex. It isn’t easy. And for me, I have to say, whether we look one way or another, it doesn’t matter. Who we are matters, not how much we conform in appearance.

Final note to friends who do not like this: I hear you, but supposing you are a grandma or a grandpa, your granddaughter might want to be an NFL referee (barely a female occupation today), your grandson might want to be a nurse (slowly become more gender-mixed)-- and think back on how surprised you were when you saw your first male flight attendant (speaking for myself, I was surprised). Why should gender appearance matter for most jobs? Let your kids and grandkids pursue their dreams without the unnecessary baggage of gender conformity. Your acceptance is the greatest love you can give.

Sleazy Low for College Football

The University of Florida has all but fired its head football coach, Jim McElwain. But here’s the catch: They’d owe him $12.76 million in buyout money. The only way they can avoid the payout is to fire him “for just cause.”

So, now they think they’ve got cause to terminate the contract and walk from the buyout. 

The coach stated publicly last week that his family and some players received death threats as a result of this miserable season.

Florida officials can’t find any evidence to support the coach’s concerns. So that's their $12.76 million developing-excuse to fire him (they're reportedly negotiating a lower buyout using this as leverage.)

Maybe they should check Twitter, some Gator fan boards, post-game talk shows, neighborhood conversations … and allow for the fact that death threats come in different flavors.

After my brief experience of having a Chicago Tribune interview reproduced—and rewritten by Breitbart, with a splashy and highly misleading headline, I received really creepy and personal emails, voicemails, and calls to my unpublished cell phone. Death threats? Not close, but I felt unsafe enough to alert campus police. My point: If some creep says watch your backside, you might take that as a death threat.

And my work isn’t one-one millionth as consequential as the job of this head coach.

Back to sleazy: Pay up, UF, if you want to fire the coach who was probably a hiring mistake on your part. 

And if you don’t? 

Ohio State did a similar thing to its head basketball coach, Jim O’Brien. They were losing and wanted a new coach without paying the buyout. They found a pretext “for just cause” dismissal: the coach had loaned a player $6,000. Sure enough, this was true; and it violated NCAA rules. The loan was payment for airfare back to the player’s war-torn country of Serbia to spend time with the player’s terminally ill father-- and to provide cash for the dying father to get pain relief, and for the destitute family to pay for burial expenses.  O’Brien won $2.4 million from an Ohio court.

Soccer Team Mocks Anne Frank; Houston Astro Mocks Asian LA Dodger

This week, racism reached new lows in two professional sports.

In Italy, fans of the Lazio soccer team used large Anne Frank pictures as part of a slur against a rival, Team Roma. 

The idea they were conveying? You are sub-human; you are dead; you are weak; you deserve to be demeaned. 

To demonstrate contrition, the team wore shirts of Anne Franke, with the statement, “No Anti-Semitism.”

That’s a start—but the Lazio fans have an ingrained culture of anti-Semitism. In 2001, the fans displayed a large banner, aimed at Team Roma: “Auschwitz is Your Home Land: The Ovens Are Your Homes.”

***

In last night’s World Series game, major league baseball reached a new low as Yuli Gurriel made a slant-eyed gesture and shouted a racial slur at Yu Darvish, son of a Japanese mother.

Racism in America has returned; it has also returned globally. The first step to address it is to call it out.

Sex Stereotyping: Hotel Clerk Fired for “Ellen DeGeneres Kind of Look”

Meet Brenna Lewis (photo). Working the night shift in a smaller town, she was rated an excellent front desk clerk for Heartland Inns. Then she moved to an upscale Des Moines suburb and was promoted to the day shift. She continued to perform well.

But the Director of Operations—a woman named Barbara Cullinan—visited Lewis’ hotel one day. She was upset because this front desk clerk did not have “the Midwest girl look,” but rather, the “Ellen DeGeneres kind of look.” A short time later, Lewis was fired.

As an occasional business traveler, I don’t think of myself as a “male customer,” and the only service I am looking for from the front desk is to check me in promptly and bill me correctly. 

A federal appeals court ruled that Heartland engaged in unlawful sex discrimination. 

Some employers may impose sexual attractiveness standards if sex appeal is reasonably related to the operation of the business. 

Here, we are talking about pro sports cheerleaders, certain types of actresses, models—you get the idea. Not hotel clerks in Iowa, where making fresh coffee rates far above providing men sexual stimulation at the check-in desk.

A nice feature of this court’s ruling was a long list of other court decisions reaching a similar result. You might find this interesting.

EEOC v. Sage Realty Corp. (1981), unlawful to require only female “doormen” to wear uniforms; Laffey v. Northwest Airlines, Inc., (D.D.C.1973), male employees allowed to wear glasses; females required to wear contact lenses; Frank v. United Airlines, Inc., (2000), female flight attendants required to meet lower gender-adjusted weight standard than male counterparts; Price Waterhouse (1991), female business consultant required to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry”; Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2004), female teacher expected to delay having more children to establish better continuity of relationships with students and parents; Smith v. City of Salem, Ohio (2004), male firefighter undergoing transition in gender transition unlawfully ordered to take psychological tests to establish fitness for duty; Oncale v. Sundowner (1999), effeminate male subjected to severe harassment by male co-workers, including anal penetration with a bar of soap, unlawful sexual harassment … and others.

This isn’t hard to figure out. Unless an employer’s work requires certain sex-linked characteristics, it’s unlawful to discriminate (or allow co-workers to discriminate) on the basis of gender stereotypes. 

Why Did Chinese Immigrants Work in Laundries and Restaurants?

If you are older-- whatever that means-- you may remember that Chinese immigrants often were clustered in two businesses-- restaurants and laundries.

Hold that memory for a second.

Many people have commented on my imminent class appearance as a feminized witch for Halloween.

On Monday, we will discuss sexualized occupations in employment law (e.g., Southwest Airline's initial use of young female flight attendants wearing "hot pants"); but in our afternoon class, we will also examine this interesting passage in my course on immigration and employment (below).

But first, a brief background. The picture above? That’s “Hop Sing,” a Chinese cook and man-lady of the house on a huge TV hit in the 1960s, Bonanza. I never gave this strange work-connection much thought until I started to read about Caucasian gold and silver miners (1860s-1880s) who used violence and intimidation to drive Chinese immigrant workers from mining (and other male-only) jobs.

A sociologist, Terry Boswell, explains:

"Where the Chinese had been pushed into non-mining wage labor, they were tolerated by the white independent miners. White migrants from the East had made the trek to the West Coast to seek their fortune, not to work as laborers or servants. The Chinese were particularly welcomed in positions that the white miners (who were almost all male) considered female work, such as cooking, housekeeping, or laundry. Chinese immigrants were accepted in domestic service even though only a handful were women. What was a gender-based division of labor in the East was reproduced as a racial division on the West Coast where women were disproportionately rare."

***

Hop Sing’s first job in America was probably in a mine. He was probably driven from that work by angry white men. He probably could have returned to China; but he probably chose to stay in America because, even with rampant discrimination, life was much better. As a maid and a cook, he probably was not a threat to any man on the Ponderosa Ranch. 

“Dagnabit,” as Hoss would say, “now, why’d you have to go bring that up?”
PHOTO CREDIT: Hallmark

Will You Need a License to Be a Liberal?

An Indiana lawmaker has drafted a bill that would require professional journalists to be licensed by state police.

His reasoning: “If you’re OK licensing my Second Amendment right, what’s wrong with licensing your First Amendment right?” 

Well. Speech is not deadly. Guns are.

But this is the false equivalence of Trumpism that is catching fire in the Republican Party. There were some good neo-Nazis, just like there were some good counter-protesters, at Charlottesville.

Back to Rep. Jim Lucas’s proposal: He would require professional journalists to submit an application to the Indiana State Police. Journalists would be fingerprinted as part of the process and would have to pay a $75 fee for a lifetime license. Those with felony or domestic battery convictions would be prohibited from getting a license.

The bill is modeled after a gun registration law he doesn’t like.

So, this begs the question: Will you need a license to be a liberal? 

(To confirm the accuracy of this story, visit the IndyStar at  https://www.indystar.com/story/news/politics/2017/10/12/trump-slams-media-indiana-lawmaker-jim-lucas-threatens-license-johas-drafted-bill-license-journalist/757157001/.)

Latest Fox News Poll: Labor Unions Much More Popular than Donald Trump

The latest poll by Fox News shows that Donald Trump’s approval rating— at 39% from Oct. 22-Oct. 24— is far below the approval rating for labor unions (59%). [See items 10-19, here: https://andersonrobbins.com/wp-content/uploads/2017/10/102517_complete_topline_trumpjob_healthcare_taxes.pdf]

The full list for approval ratings is: Barack Obama (63%), labor unions (59%), George W. Bush (59%), the 2010 health care law, also known as Obamacare (54%), Democratic Party (51%), National Rifle Association (49%), National Football League (46%), Melania Trump (45%), Republican Party (40%), and Donald Trump (39%).

But as someone who has spent his entire career studying labor unions—and particularly, the effect of changes in labor law on these organizations— I am nearly certain that Donald Trump’s influence will vastly outweigh labor unions.

In brief, here is how labor laws have changed since the 1980s: 1. It’s much easier for employers to break strikes. 2. Labor unions are being defunded by “right-to-work” laws that allow employees all the benefits of union-representation without paying a dime for it. 3. Public sector unions— the last strong voice for workers—are being run out of states such as Wisconsin, Michigan, and others. 4. The NFL players union has been cast in the villain’s role by an unpopular president who has focused anger at players who are kneeling during the national anthem.

The future, in my view, is that collective bargaining will essentially be legislated out of existence. That means that laws surrounding the negotiation of labor agreements will become irrelevant or a nullity.

But look at that 59% popularity figure. It tells us that a broad segment of American society wants an organization to speak for them.

That’s what unions did before we had labor laws. They boycotted. They protested. They went on spontaneous strikes. They were also provoked to violence and were violent on their own initiative. Collective bargaining channeled those behaviors to the negotiating table—but this institution is dying 

Why I Bought Lipstick For Myself

Our employment law class read a case involving a Harrah’s casino bartender who was required to wear makeup for her job. The rule was implemented 20 years into her successful career. She quit over the rule. She said she was intensely uncomfortable wearing makeup. It just wasn’t her.

She lost her lawsuit in which she alleged that women were subject to unequal working conditions compared to men. She was literally right about that. But the appeals court said the grooming differences between men and women were so minor as to be no difference in work conditions.

Many of my students expressed strong views on the matter, almost all in favor of the woman who felt forced to quit her job. Their perspectives: Makeup is (a) expensive, (b) harmful for your skin (and more), (c) sets you up later in life for wrinkles and other damage, (d) violates your self-identity, and (e) amounts to making yourself look attractive for other people (i.e., men).

That intense class discussion spurred me to think about the larger issue in that case: conformity to gender stereotypes.

By chance, I had just bought my Halloween costume. I’ll be Witch Hunt. Yes, I will portray a female. But I decided to check out my students’ complaints. I went to Walgreen’s and bought lipstick.

I was shocked by the cost: the choices ranged from $8-$12. I thought I’d get out of there for five bucks. I wanted a certain color (black, as befits a witch). I spent ten minutes and settled for dark cherry, cleareanced at $7.59.

I left the store with a better appreciation for my students’ concerns.

As a male authority figure who always wears a starched shirt and tie to class, often as part of a conservative suit, I am also looking forward to using Halloween—where dressing up is socially acceptable— to portray a female wearing makeup.

My students will manage women and men who dress and wear makeup in ways that don’t conform to traditional gender stereotypes. If Witch Hunt (her name is chosen for satirical purposes) can convey a lesson about gender non-conformity, my $7.59 purchase will be worth it.

White Grievance: A Rebuttal to Yesterday’s Tesla Discrimination Post

Yesterday’s post had a high volume of page views. It touched some nerves across the ideological spectrum. The post was shared among friends.

Here is one response from a social media platform. It is unedited and anonymous. I will not denigrate or praise it or otherwise comment. I am posting it because it clearly presents a thesis of white grievance, and I think it is valuable to read and understand it.

I welcome replies to mhl@illinois.edu or Facebook posts. Any and all viewpoints are welcome. Just don’t make it personal to me or to anyone who is posting. Let’s learn from each other. Thank you.

***

What I have experienced is being called any and every racially charged name for a white person you can think of for doing nothing more than beating someone on the basketball court. I've been physically assaulted on the court as well....because I was white. All if this at the finer institute of higher learning that signs your paycheck.

I've been passed over for jobs that I was infinitely more qualifies for so that a business could hire a "minority." At least 3 of those instances I was told flat out I was the most qualified but didn't fit the "profile" they were required to hire.

I also worked for the better part of my youth year around doing the jobs most on the left say "only minorities will do" at an effective pay rate of about $200-$250 a year. Now to be fair that was on a family farm and I wasn't supporting a family on that meager income but the work I did was the same.

So don't assume you have ANY idea what I've been through Michael. Some of the assaults (notice I said some) required medical attention, stitches and xrays. While that is a far cry from whay occurred in your post it happened all the same.

The fact is racism is rampant in this country and while it may not fit your narrative it happens the other way as well. We just don't hear about it as much because it isn't as sensational. And it doesn't fit the white guilt profile that we're told we should feel. I have other friends who have been assaulted because they were white and one that was killed. Now I don't hold grudges and I don't hold an entire group of people responsible for the actions of a few. I also don't believe all people in these groups are racist just because of my experiences.

“Jim Crow” Conditions Alleged at Tesla Plant

Reuters Legal reports that “Tesla Inc. was hit with a racial discrimination lawsuit in California state court accusing the electric car manufacturer of running a workplace so hostile to black workers that it was reminiscent of the ‘Jim Crow era.’”

In a lawsuit filed on Monday, three former workers claimed that coworkers and supervisors at Tesla's factory in Fremont, California freely used racial epithets and drew racist cartoons. They also alleged that they were punished for complaining about the racially hostile work environment.

The workers also sued three staffing firms that lease employees to Tesla.

***

In my ongoing research on racial slurs and disparagement of minority workers—including unequal or made-up discipline against these workers— I am documenting a sharp upsurge, starting in the mid-1990s and accelerating in the past ten years.

Free Agent Market for QBs in 2017: The NFL’s Case

This is a photo from July 4, 2017, posted by Colin Kaepernick. His teammate, Novarro Bowman, thought it was a “huge mistake” to post this.

In any event, our December arbitration conference will do a mock case of Colin Kaepernick’s collusion grievance. One team will represent Kaepernick; another team will side with the NFL.

Before I started on this exercise, I had a strong hunch that Kaepernick was being boycotted but thought proving collusion would be difficult.

But when you look at all the free agent QB signings since the 2017 league season opened in March, you won’t find any high-priced deals. Kaepernick supporters are right in arguing that he’s way better than 80% of the quarterbacks on this list—but you also have to look at how cheaply these quarterbacks signed. Kaepernick opted out of a contract that paid him $16.5 million, meaning he was probably looking for a multi-year deal starting at $20 million per year. That’s not where the market is.
It's also important to keep in mind that teams drafted four quarterbacks in the first two rounds. That would weigh on the free agent market.

Mike Glennon, Bears: Glennon got a three-year, $18.5 million guaranteed contract.

Jay Cutler, Miami: $10 million, one year.

Brian Hoyer, 49ers: The 31-year-old journeyman played for new Niners coach Kyle Shanahan in Cleveland and comes at the low price of just $10 million guaranteed for two years.

Nick Foles, Eagles: Signed for 2 years, $7 million guaranteed.  

Josh McCown, Jets: The soon-to-be 38-year-old McCown heads to New York on a one-year, $6 million deal. 

Landry Jones, Steelers: Pittsburgh is happy having Jones backing up Ben Roethlisberger, and vice versa. That pretty much sums up his two-year, $4.4 million deal.

Matt Barkley, 49ers: Barkley signed for 2 years, $4 million.  
Ryan Fitzpatrick, Buccaneers: Signed in 2017 for $3.68 million. Fitzpatrick set a Jets record with 31 TD passes in 2015. He has thrown 166 TDs to 133 picks in his career and has started 116 of 127 games.

Mark Sanchez, Bears: Sanchez signed a one-year, $2 million deal.

Geno Smith, Giants: Smith signed for $1.2 million.

Josh Johnson, Giants: $1.015 million.

EJ Manuel, Raiders: Manuel signed for $800,000.

Kellen Moore, Cowboys: Moore signed for $775,000.

Aaron Murray, Rams: $615,000.

Chase Daniel, Saints: Signed for $900,000 .

Case Keenum, Vikings: $1.9 million.

David Fales, Dolphins: $690,000.

T.J. Yates, Bills: Injured reserve; released.

Matt McGloin, Eagles: $25,000 Workout bonus.

Blaine Gabbert, Cardinals: Gabbert, a 2011 first-round pick, has lost starting jobs in Jacksonville and San Francisco, going 9-31. He went 1-4 last season before being replaced by Colin Kaepernick. Gabbert was much better in 2015, completing a career-high 63.1 percent of his passes in eight starts for the Niners. Gabbert signed for $900,000.

Austin Davis, Seahawks: $885,000. 

Attention, Female Employees: “No More Babies”

An orchid grower has paid $110,000 to settle a pregnancy discrimination complaint.

Yanet Perez filed a discrimination charge after the company, upon learning that she was pregnant, forced her to take a leave and denied her requests to come back to work in 2014.

The company allegedly held a staff meeting in 2014 after Perez told her supervisor she was pregnant. At the meeting, some workers allege that they were told not to get pregnant in these terms: there should be “no more babies”; there were “too many babies coming”; and “pregnant, bye.”

The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy and related medical conditions (including discrimination related to nursing).

In making the six-figure settlement, the company denied all the allegations.

Here Is Kaepernick’s Grievance: Why It’s Probably a Loser

If you want to read Colin Kaepernick’s grievance, it is here: https://www.scribd.com/document/361682669/2017-10-15-Kaepernick-Arb-Demand-002?irgwc=1&content=10079&campaign=Skimbit%2C%20Ltd.&ad_group=66960X1516590Xa7072de946f88ce46cafae1272bd75f0&keyword=ft750noi&source=impactradius&medium=affiliate#.

There are real problems with the grievance.

For one, it reads like a political manifesto. I am personally sympathetic to Kaepernick’s protest and his method. But winning a grievance will take evidence of collusion, not political persuasion.

It’s telling to note what is missing from his grievance.

It makes no specific mention of two or more teams that have colluded.

It makes no mention of quarterback vacancies in the period from September 22, 2017 through its October 12^th filing date (before Aaron Rodgers was injured).

The September 22^nd date is important because his primary theory is that President Trump’s racially provocative message— clearly aimed at Kaepernick— starts the clock on his grievance.

It makes no mention that he opted out of his contract at San Francisco on March 3, 2017, as was his right.

In 2016, Kaepernick restructured his deal with the 49ers. He gave up $14.5 million in injury guarantees for the ability to opt out of his deal at the end of the year. 

The point is that he terminated his employment with the 49’ers, not the other way around. And the next point is that he walked from a $16.5 million salary (but no money guaranteed).

Do I think that teams want to avoid him for political reasons? Certainly.

But it’s also important to realize that other players are vocal about racial injustice and taking a knee during the anthem. Michael Bennett, defensive lineman for Seattle, was vocal about being racially profiled by police officers in Las Vegas on August 27^th, and had a gun pointed at his head—for no valid reason. Bennett remains employed and his team management supports his viewpoint.

The NFL will tell its story about Kaepernick outside of public view. Part of their proof will likely be the money that Kaepernick was seeking when he opted out of a very good contract at San Francisco.
Another part of the story from the NFL side? Kaepernick ranked 23rd among QBs in 2016 among 30 who had season-long totals. In other words, his performance was in the bottom quartile-- not statistics that will get a QB a multi-year contract north of $16.5 million per year.

At least part of the story behind Kaepernick’s unemployment is that he over-estimated his market value (he seems to believe he is worth substantially more than $16.5 million a year). If an arbitrator believes that’s part of the story, it will add to Kaepernick’s proof problems.

Several Hurdles Facing Colin Kaepernick’s Collusion Grievance

Collusion is an agreement among two or more people to prevent a person from exercising a contractual right. 

Colin Kaepernick has filed a grievance (a complaint) under the NFL labor agreement. Essentially, he is arguing that teams have colluded to keep him out of the NFL because of his kneeling during the national anthem.

Some brief points.

First, the reason for collusion would be irrelevant. If owners agreed that they did not want to hire a left-handed quarterback—a silly reason— that would still be collusion. 

Second, proof of collusion is very hard. Kaepernick needs to show that two or more teams agreed not to hire him.

Third, he opted out of his contract last year. He thought he could get a better contract. That’s on him. The point is that no one cut him—he overestimated his value. We've never heard his asking price-- and it's likely to be somewhat embarrassing for him because he opted out of a decent contract.

Fourth, there is a 50-day limit on filing a grievance. Why didn’t he file last year? He may be able to argue that he has come up with proof in the last 50 days. Possible? Yes. Likely? I doubt it. Why would teams that are heavily pre-occupied with their roster problems—and competing against each other—and facing many players who are taking a knee— sit around and blackball Kaepernick in the last 50 days?

Here is the contract language. Tell me what you think at mhl@illinois.edu.

ARTICLE 17 ANTI-COLLUSION

Section 1. Prohibited Conduct: 

(a) No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making as follows: (i) whether to negotiate or not to negotiate with any player; (ii) whether to submit or not to submit an Offer Sheet to any Restricted Free Agent; (iii) whether to offer or not to offer a Player Contract to any player; (iv) whether to exercise or not to exercise a Right of First Refusal; or (v) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract. 

(b) Any approval or disapproval of a player’s contract by the Commissioner, or any communication thereof, timely notice of which is provided to the NFLPA cannot be the basis of any claim of collusion. The NFLPA or the affected Player shall have the right to appeal the Commissioner’s disapproval of such player contract to the System Arbitrator, pursuant to Article 15 and Article 14.

Section 2. Other Club Conduct: No Club may have a policy not to negotiate with, or enter into a Player Contract with, any player who is free to negotiate and sign a Player Contract with any Club, on any of the following grounds, if such policy is inconsistent with Section 1 above: 

(a) that the player has previously been subject to the exclusive negotiating rights obtained by another Club in a College Draft, by virtue of a Required Tender to a player with less than three Accrued Seasons, or a Franchise Player designation; or 

(b) that the player has refused or failed to enter into a Player Contract for a prior season containing a Right of First Refusal or an option clause (i.e., any clause that authorizes an extension or renewal by a Club of a Player Contract beyond its stated term); 

(c) that the player has become a Restricted Free Agent or an Unrestricted Free Agent; or 

(d) that the player is or has been subject to any Right of First Refusal.

Bravo, Attorney General Sessions: Enforcing Law for Murdered Transgender Student

Kedarie Johnson was a 16-year-old student when he was shot to death last year in Burlington, Iowa. Johnson (pictured) was gay, identified as both male and female and occasionally went by the name Kandicee.

On Friday, the U.S. Justice Department filed papers in an Iowa county court to say that Christopher Perras, a U.S. Justice Department lawyer, will serve as a county prosecutor in the case.

That almost never happens. It indicates AG Sessions’ intent to lend the DOJ’s experience in enforcing The Shepard-Byrd Hate Crime Act.

The symbolism is important.

Question: Will the DOJ attorney’s close involvement with the case enable the federal government to press federal hate crime charges? That remains to be seen, but that’s the implication. For now, it appears that the evidence is too ambiguous but to make that charge-- but that could change with this lawyer's cultivation of facts.

Last week, our employment law class discussed a leading case from 1875 (U.S. v. Cruikshank) where the Supreme Court struck down the nation’s first hate crime law known as the Ku Klux Klan Act. That case led to another bad case (U.S. v. Hodges, 1906), where the Court ruled that the federal government had no constitutional authority to enforce the Ku Klux Klan Act’s criminal code. 

In that case, white workers who beat and intimidated black workers to the point of forcing them to quit their jobs. They were set free from jail.

In 1968—after a century passed from when Congress enacted the Ku Klux Klan Act, Congress passed the 1968 Civil Rights Act. The law defined a federal crime to kill a person on account of race. In 2009, the law was expanded to cover murders and other assaults, where the motivation is to harm someone due to sexual orientation or transgender status (know as the Shepard-Byrd Act of 2009).
The point? It has taken 100 years to restore the federal law against hate crimes. AG Sessions offers hope that these gains have not been lost. 

Will Muslim Students Be Permitted to Kneel and Pray at a School Flagpole?

Tennessee recently enacted a “student prayer” law. It is likely constitutional because it is only a proclamation, and it applies during the first weekend in August, when schools are not in session. The proclamation is here: http://www.pray4studentstn.com/Pray4StudentsTN.com/Resources_files/Pray4StudentsTN%20Legislation.pdf.

But Kentucky lawmakers have introduced similar legislation. The only difference is that they want this day to coincide with a school day in September.

The core of the legislation is here (quoting from Lexington Herald):

State Rep. Regina Huff’s legislation says the Governor shall “call upon the citizens of the state, in accordance with their own faith and consciences, to pray, meditate, or otherwise reflect upon the students of this state as well as their teachers, administrators, and schools.”

Is this constitutional? Likely, if no school official is involved and no school time is devoted to this activity.

Currently, there is a practice in some communities for students to pray at the flagpole—a nice way of tying together Christianity and American identity.

Perhaps a better question is whether a Muslim student will be permitted to kneel and pray at the flagpole. 

Message from NFL Player, Russell Okung (OT, Los Angeles Chargers)

If you are looking for an angry, defensive, disrespectful message posted by this NFL star, you will be disappointed. If you are looking for a message that plays to predictable “red” or “blue” themes, again, you will be disappointed.

Here is Russell Okung’s thoughtful message on protests by NFL players. Everything below are his words (taken from players union’s online newspaper, The Players’ Tribune).

Fellow NFL Players,

By now you’ve likely read the commissioner’s letter addressed to NFL executives and have seen reports about the league’s upcoming meetings. It occurs to me that any attempt to respond collectively as players is complicated by numerous challenges, and that our options for speaking with one voice are limited. This means we can either wait until we receive our respective marching orders, speak up individually, or find a way to collaborate and exercise our agency as the lifeblood of the league.

Over the past few years, I’ve thought a lot about how we might have a meaningful conversation together. I wish it were as simple as public perception would have you believe — that we all have each other’s cellphone numbers and hang out together on a regular basis. Since that’s not the case, I hope this letter reaches as many active players as possible, and serves as a catalyst to convene a conversation among those of us who are uncomfortable having important decisions made without us in the room.

Things have clearly gotten out of control. As a pragmatist, I will admit, I initially doubted the merits of Colin Kaepernick’s protest and questioned his strategy.

I was wrong.

There is now no doubt in my mind that what he did last season was a courageous, prophetic, self-sacrificial act that has captivated a nation and inspired a powerful movement.

If I had his cellphone number, I would tell him that.

As Kap’s message has now been distorted, co-opted and used to further divide us along the very racial lines he was highlighting, we as players have a responsibility to come together and respond collectively. But how can this happen practically?

The uncharted territory we’re dealing with requires us to innovate if we are to effectuate any meaningful change — if we are to look back at this moment with pride when our grandkids ask us one day how we responded to the circumstances we now face. This requires some sober self-reflection and a greater awareness of what is limiting our effectiveness.

Ours is a unique dynamic. The NFL Players Association, for better or worse, is limited in its capacity to “unify” our interests. Unlike a traditional labor union, the foundational nature of our relationship to each other is defined by fierce competition and learned opposition. The system is designed to keep us divided and to stifle our attempts to collaborate — we’re made to see each other as the enemy. Indeed the system celebrates when it puts us at odds with one another.

As a competitor who loves the game, I can appreciate this aspect of the league to a certain extent. But the current controversy is obviously about much more than football.

Currently, the will of the players who align with Kap’s message is being diluted. Rather than our collective voice prevailing in a way that spans the league, you are seeing individual teams respond separately to the protest in 32 different ways. It’s telling that these decisions are being made at the team level and not being driven by the interests of the players collectively. Some teams are standing and locking arms. Some are staying in the locker room. And some are now being banned from protesting altogether. While many of us can be grateful that our ownership groups don’t take direct orders from the President, we are also aware that the owners are much more united than we are as players.

Player protests have caused such a disturbance that the NFL has now chimed in and prioritized discussions on this topic for next week’s meetings.

Owners have the ability to quickly and efficiently communicate, collaborate and align their objectives to serve the broader interests of the shield. By and large, they are carrying out a strategy to this end, regardless of how it impacts us as players and regardless of how much it reflects our actual will. I don’t mean this to sound disparaging or suspicious of all NFL owners. Again, it’s just an observation of how the system is designed. It is, in many ways, what we all signed up for.

While I don’t have all the answers as to how to ensure we are not robbed of this moment, I am convinced that we will never make progress if we do not find a way to come together and take action that represents the will of the players. What we have is strength in numbers. But our strength is currently not being leveraged because we have no means of direct communication that is not — in some way, shape or form — controlled, monitored or manipulated by outside forces.

So here’s my idea: Let’s open up a line of communication just between us, and be ready to respond with one voice as players. Let’s transcend the “natural” divisions that have been defined by the league and sanitized by a fictional narrative of competition above all else.

Now, I can’t exactly put my phone number or email address in this letter for obvious reasons. But there’s another way to start moving things forward. I’m going to initially lean on Twitter, the preferred social tool of our day, and attempt to connect us with each other. If you follow me (@RussellOkung), I will follow back and DM you next steps for collaboration. From there, we can build out and discuss options for a better way to communicate with one another going forward.

Again, I don’t have all the answers, but I’m hoping to help facilitate some practical next steps by first addressing our limited ability to communicate.

I look forward to hearing from you on the President’s favorite medium. Until then, stay strong.

Much love,


RO

PHOTO BY JAE C. HONG/AP IMAGES

What If Some NFL Players Strike?

There are two terms for this type of strike: wildcat (unauthorized by the union) and quickie (intentionally short duration, technically called a partial and intermittent strike). 

But here’s the bottom line: The National Labor Relations Act would not protect either type of strike.

That means striking players could be fired and not have a legal remedy.

But in the NFL, it’s not that simple. A team, not the league, employs a player. 

If a high-quality player is cut, the team often owes a guarantee. Striking for racial justice would not trigger a morals clause.

Apart from that, a cut player can be signed by other teams—and that includes the firing team’s main rivals. The player would be signed on the cheap, meaning the acquiring team would probably have space under the salary cap.

Okay, you say—teams would be really mad at players and boycott all the strikers. 

Team boycotts of players are subject to extremely strong limits under “anti-collusion” language in the collective bargaining agreement.

Twenty years ago, when free agent baseball players were boycotted by teams in reprisal for the 1994 strike, an arbitrator ordered $270 million in damages. The teams paid up and ended the boycott.

Where have we seen “quickie” strikes? The airline industry, for one. Flight attendants would spontaneously show up at a gate, start to picket, and flights would be canceled (called CHAOS strikes). The strikers were often women in their 50s who were fully vested and age-service credit qualified in pension plans. They knew they would be fired—and they knew their pensions would not be divested. To the surprise of some (including me), they won their case under the Railway Labor Act.

But the players work under a different labor law, the National Labor Relations Act. Quickie strikes are not protected under that law.

I wrote about this contradictory treatment in “Creating Order Out of CHAOS and Other Partial and Intermittent Strikes,” in Northwestern University Law Review. The research received very few citations. But maybe that article will be relevant now.

Trump ACA Rollback: What’s So Bad about Competition in Health Care Plans?

President Trump’s order to allow more competition across state lines for health care plans sounds like a very good idea. So what do critics mean when they say that plans are unregulated?

Meet Buddy Kuhl. He drove a truck for Belger Transportation. Belger offered Buddy a health insurance plan.

Buddy had a serious heart problem. His heart doctor recommended surgery.

Buddy’s health insurer disagreed with his treating physician. 

Under the policy, the insurance company had the right to order two "second opinions." The insurance company chose the medical experts. Both times, the experts agreed with the treating physician—Buddy needed an operation.

But six months had passed by. 

When Buddy had a pre-surgery check, the surgeon said his heart was too diseased to be fixed. Buddy was put on the transplant list.

While waiting in a St. Louis hospital for a heart, Buddy died of heart failure.

Buddy’s family sued the insurance company, alleging that it substituted a medical judgment for the first doctor who got it right.

And here is the key point: The Kuhls lost because health insurance plans were not subject to government regulation—the plan was free to order two, three, four “second opinions.”

With all its warts, the ACA was passed because too many Americans had Buddy Kuhl experiences with health insurance. 

Under the new rules, Americans will experience more “benefit denial” cases compared to the ACA, where regulations constrain insurance companies (and drive up prices). And without regulations, insurers will be much freer to say no-- and patients and families will have no recourse.

For Buddy Kuhls' posthumous lawsuit (which failed), see https://www.leagle.com/decision/19931297999f2d29811235. 

Why the NFL Can’t Suspend or Fine Kneelers

There is some debate as to whether the NFL “Operations Manual” has a rule that requires players to stand for the national anthem and face the flag. Let’s assume the answer to that is yes, the rule exists.

Nonetheless, the league faces serious obstacles in trying to enforce such a standard with discipline.

First, the NFL has a meager management rights clause: “Section 3. Management Rights: The NFL Clubs maintain and reserve the right to manage and direct their operations in any manner whatsoever, except as specifically, limited by the provisions of this Agreement.”

There are more than 300 pages of limitations on management’s rights, including Art. 42, Section 2:

That part says: Section 2. Published Lists: (a) All Clubs must publish and make available to all players at the commencement of preseason training camp a complete list of the discipline that can be imposed for both designated offenses within the limits set by the maximum schedule referred to in Section 1 above and for other violations of reasonable Club rules.”

In the underlined text, I am indicating that management must specify in advance of the season the discipline (penalty) for breaking a rule—not just what the rule is. In this sentence, “complete list of discipline” modifies “designated offenses.”

So, at most, the NFL appears to have a flag rule without a disciplinary schedule and required publication notice. The section can only be read to mean that once the pre-season starts, the only enforceable types of discipline are those that are published by the teams.

This reading is reinforced by Article 46, Section 1(d): “(d) The schedule of fines for on-field conduct will be provided to the NFLPA prior to the start of training camp in each season covered under this Agreement. The 2011 schedule of fines, which has been provided to and accepted by the NFLPA, shall serve as the basis of discipline for the infractions indentified on that schedule.”

Kneeling is “on-field conduct”—and since it’s not a specified offense for the 2017 season, at least in terms of having a negotiated disciplinary scale, punishment cannot be administered now without violating the CBA.

Roger Goodell has already taken massive heat for suspending Tom Brady, and less-so with Adrain Peterson (child abuse, excessive punishment) and Ezekiel Elliott (alleged assault of woman). Those are battles he can win in court. He can’t win the “flag battle”—at least, not until new penalties are posted in 2018.
My suggestion? All teams stay in the locker room until after the anthem is played. Sure, this would be criticized, but it de-escalates the conflict-- a lot.

Tournament of Trump IQ Field Announced: Some Democrats Make the Tourney

Adult Daycare Region

No. 1 Donald Trump vs. No. 8 Archie Bunker

No. 2 Joe Arpaio vs. No. 7 Charlie Sheen

No. 3 Bobby Knight vs. No. 6 Bill Cosby

No. 4 Mike Ditka vs. No. 5 Ted Nugent

Sexual Harasser Region                               

No. 1 Donald Trump vs. No. 8 Roger Ailes (Posthumous Entry)

No. 2 Bill Clinton vs. No. 7 Anthony Weiner

No. 3 Harvey Weinstein vs. No. 6 Bill O’Reilly

No. 4 David Letterman vs. No. 5 Clarence Thomas

Soak the Taxpayer Region

No. 1 Donald Trump vs. No. 8 Donald Trump Jr.

No. 2 Mike Pence vs.  No. 7 Scott Pruitt, EPA

No. 3 Tom Price, ex-HHS vs. No. 6 Ryan Zinke, Interior

No. 4 Ivanka Trump vs. No. 5 The Mooch

White Nationalist Region

No. 1 Donald Trump vs. No. 8 Jeff Sessions

No. 2 Steve Bannon vs.  No. 7 Sean Hannity

No. 3 Stephen Miller vs. No. 6 Sen. Tom Cotton (R.-GA)

No. 4 Kris Kobach vs. No. 5 Rush Limbaugh

How Trump Administration Is Changing “Destination Weddings”

Big-event weddings are being squeezed already in the first ten months of the Trump administration.

The problem is that immigration authorities have changed rules so that fewer H-2B visas are available. Those visas allow foreign workers in lower skilled jobs to work in the U.S.

Among the ten leading H-2B jobs, two are tied to big-event weddings: hotel maids and waiter/waitresses.

Who are employers for these jobs? Catering services and resort hotels.

An article in yesterday’s Bangor Daily News discusses the impact of these visa shortages.

Quoting this article:

“We are concerned about the number of workers. The number of jobs available now and the number of people don’t match up,” said Diane Johanson, director of government affairs at the Maine Tourism Association. One in six Maine jobs is in tourism, some 106,000 in 2016 alone.

About 10 percent of the 77,000 employees in restaurant and lodging in the state are visa workers, according to the Maine Innkeepers and Restaurant Associations.

…

“We already have commitments for weddings every weekend for next fall,” he said. “We can’t stop work on Labor Day. We need the visa situation straightened out.”

Is Dreadlock Discrimination Race Discrimination?

In a recent case, an African-American woman was offered a job as a customer service phone representative—on the condition that she cut off her dreadlocks. She refused. 
The employer said it was a race-neutral grooming policy. 
She said it was race discrimination.

Where did the term dreadlock come from? The woman’s attorneys said that dreadlocks were closely tied to racial identity, including this cultural connection: “During the forced transportation of Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred to the slaves’ hair as ‘dreadful,’” and dreadlock became a “commonly used word to refer to the locks that had formed during the slaves’ long trips across the ocean.”

The federal appeals court said that Title VII--, the nation’s main race discrimination law for employment— defines race in terms of immutable traits, not cultural traits associated or identified with a race.

The court in question is the Fifth Circuit Court of Appeals (Texas, Louisiana, and Mississippi), a court that usually has a conservative take on discrimination laws.

The Seventh Circuit (Illinois, Wisconsin, Indiana) has a broader definition of race. That case involved an African-American woman who was denied a promotion due to her natural Afro. 

My frustration with the court ruling? It was very expansive, delving into the definition and meaning of "race"-- but my question is what is the business justification for a grooming policy where the job is a phone representative? There is no valid justification, which makes it seem like race discrimination.
For more, click here: http://media.ca11.uscourts.gov/opinions/pub/files/201413482.pdf. 

Legalizing Discrimination Against Transgender Employees

Today, the Justice Department reversed course, stating that the federal law that bans sex discrimination (called Title VII) does not extend to transgender employees.

Courts will have the final say on this—and the last three federal appeals courts to look at the issue said that the law’s criterion— no discrimination “because of sex”— includes discrimination based on transgender status.

So, how exactly does a legal memo say it’s okay to discriminate? 
Here’s how. 
Attorney General Sessions’ staff now says Title VII of the Civil Rights Act of 1964 only prohibits discrimination on the basis of a worker’s biological sex and not their gender identity.

By that logic, it’s not far-fetched to think that the Justice Department will limit Title VII’s protection against race discrimination to people who are 100% African-American or similar—in other words, not to people who are from a mixed racial background. The logic here is that a categorical criterion is limited to one descriptor—for sex, one’s birth gender; and for race, only a "pure" race.

The Anti-Female or Pro-Male Google Doc

In our next employment law class, we will discuss sex discrimination— cases where women have complained of gender stereotyping and unequal standards.

We will also read James Damore’s critique of Google’s culture. Damore was fired for circulating his viewpoints among co-workers and has filed a complaint with the NLRB.

I’ve picked three representative quotes about gender from his message, and one quote about his claim that corporate diversity programs stifle conservative views.

I welcome FB posts or emails at mhl@illinois.edu. If you want to read his entire message, visit https://gizmodo.com/exclusive-heres-the-full-10-page-anti-diversity-screed-1797564320.

Here are Damore’s quotes:

“We have extensive government and Google programs, fields of study, and legal and social norms to protect women, but when a man complains about a gender issue issue [sic] affecting men, he’s labelled as a misogynist and whiner.”  

“Nearly every difference between men and women is interpreted as a form of women’s oppression. As with many things in life, gender differences are often a case of “grass being greener on the other side”; unfortunately, taxpayer and Google money is spent to water only one side of the lawn.”

“Discriminating just to increase the representation of women in tech is as misguided and biased as mandating increases for women’s representation in the homeless, work-related and violent deaths, prisons, and school dropouts.”

***

“In highly progressive environments, conservatives are a minority that feel like they need to stay in the closet to avoid open hostility. We should empower those with different ideologies to be able to express themselves.”

Alienating conservatives is both non-inclusive and generally bad business because conservatives tend to be higher in conscientiousness, which is require for much of the drudgery and maintenance work characteristic of a mature company.

Confront Google’s biases.”

Fingerprint Theft

Workers have sued their employer, an ambulance company, for collecting biometric information without their consent.

Some background: A growing number of companies use fingerprint scanners as “punch clocks” for employees. But even “exempt” employees—employment-law talk for people such as managers and professionals are paid a salary, not an hourly wage— are “fingerprinted” at scanners for security entrances.

Illinois is among states that strictly regulate this personal information. Why did Illinois pass its Biometric Information Privacy Act (BIPA)? Because lawmakers were persuaded that biometrics present a unique risk for identity theft if not managed appropriately.

The lawyer for workers argues that there is an “ever-present risk of a data breach of [the employer’s] systems exposing defendant’s workers’ biometrics to hackers and other wrongdoers worldwide.”

This looks a bit silly until you realize that your cell phone, PC, home security system and such are increasingly protected by your fingerprint.

Consider ransomware, where a hacker acquires PINS, passwords and other data and extorts a payment for not sharing your data. 
A hacker could lock (or threaten to lock) your secured items, using your fingerprint as a hostage. 

Under BIPA, an employer can be ordered to pay $5,000 for each willful or reckless violation and $1,000 for each negligent violation. This is no small case. The company has 1,600 employees.

Updates will be provided on this case (Casey Lundsteen v. Superior Air-Ground Ambulance Service Inc., case number 2017CH13253, in the Circuit Court of Cook County, Chancery Division).