Matt Lauer’s Victims: Why Their Legal Options are Limited

Do the women who have been harassed by Matt Lauer have legal recourse? Taking their allegations as true, their options are limited, perhaps even nil.

Title VII prohibits sex discrimination, including harassment. In general, if a person has a complaint, she must file a charge within 180 calendar days from the day the discrimination took place. That time limit is 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. (New York is such a state, as is NYC.) The allegations appear to be time-barred because the women did not complain on time (I may have missed something that occurred recently).

Lawyers try work-arounds with longer filing periods. A common approach is to sue in tort (a term that simply means a wrong under civil, not criminal, law.)

Let’s suppose he forced a woman to have sex in his office by locking the door on her.

There is a tort of assault and battery. It would clearly apply if the sex act was forced on her. But that tort in New York has a short statute of limitations—one year.

The same is true for the tort of emotional distress. Here, the proof is more demanding but likely met: the victim must show that the behavior is extreme and outrageous and caused emotional or psychological harm. Proof of injury gets tricky in cases where female victims don’t have measurable injuries, such as treatment for anxiety or depression. But again, this has a one year statute of limitations.

Ditto for false imprisonment. That’s another tort. It’s actually very common in sexual harassment cases. The predatory male corners a woman, closes a door on her, or renders her semi-conscious or unconscious. This is false imprisonment. But again, New York as a short statute of limitations. It’s one year.

My conclusion: Unless there are recent incidents and are timely pursued in court—as opposed to media interviews, or internal complaints— Lauer’s victims have no recourse.

Here are three ways to make sexual harassment laws more effective:

1. Increase the statute of limitations at least for Title VII.

2. Make employer strictly liable once they receive a valid complaint and fail to take action to stop the harassment (here, I have in mind complaints from co-workers who have reason to believe that harassment to another worker has occurred). This is not the law today. If a woman fails to use her employer’s complaint system—as is common— the employer is not vicariously liable for her supervisor’s actions (I am assuming that Lauer was in some supervisory role here). In effect, the burden is on the victim to complain.

3. Strengthen anti-retaliation laws. Allow for punitive damages where employers punish women who come forward with valid complaints. Otherwise, the status quo will continue: women will suffer in silence.

The HR Joke is On Us

We tune out HR in our jobs. To understand why, think about Catbert, the evil director of human resources made famous in the Dilbert comic strip. As employees we treat HR seriously only at milestones such applying for a job, changing our benefits, and separating (quitting, retiring, or being fired). But that’s because our employers devalue HR while putting finance, operations, logistics, data analytics and other corporate functions ahead of HR.

It’s no accident that Fox News, CBS and other major corporations are paying a steep price for the predatory behavior of unmanaged stars such as Bill O’Reilly and Charlie Rose. HR was not even available for females who were harassed by O’Reilly and Rose. That’s how America’s workplaces run—or run amok.

To better understand why, let’s think about Vicky Crawford. She worked for 30 years in Nashville’s large school district office. Gene Hughes, her boss— ironically, the head of HR— was accused of sexual harassment. Ms. Crawford never made a formal complaint. But in Ms. Crawford’s presence, Hughes occasionally made crude jokes about his erection, and once pulled her head down to his crotch.

Someone else blew the whistle on the boss. When the district investigated, three other women, including Ms. Crawford, came forward with stories that corroborated the first charge against the boss. Hughes kept his job. The three women? All were fired.

Ms. Crawford’s lawsuit for unlawful retaliation under Title VII was thrown out at trial. That’s because a conservative court read the law’s anti-retaliation clause by applying a narrow dictionary definition. The judge ignored the legislative intent behind Title VII. Congress plainly said the anti-retaliation clause was to protect whistleblowers who participate in discrimination proceedings, and also those who oppose discriminatory behavior.

The Supreme Court reversed this decision. In Crawford v. Metropolitan Government of Nashville (2009), a unanimous Court ruled that opposition includes proactive speaking out and less confrontational opposition—here, answering questions in a sexual harassment complaint.

A common attack against women who come forward with allegations is that they waited too long and therefore their motives are questionable. But research on whistleblowers shows over and over that organizations punish them—and less frequently, punish the real wrongdoers. That’s a good start in explaining why women don’t report or report reluctantly and belatedly.

How can the situation be improved? Recent events mark a good beginning. We’re having a national discussion about sexual harassment. But we had a similar conversation when Anita Hill reported Clarence Thomas’s crude sexual remarks and misconduct in her workplace. At the time, many of us thought that was a watershed. In reality, it was a fleeting moment of recognizing the legal and moral hazards in ignoring this problem.

Just as the Clarence Thomas embarrassment passed, Catbert came into popularity. Part of a wonky, left-leaning satire on the dehumanizing aspects of our work, Catbert helped us devalue our HR colleagues and their mission. Conservatives did their part by attacking “PC” as a civility code at work—as if that’s a bad thing. Boys will be boys, according to this school of thought— meaning that work rules go too far in legislating against crude jokes, come-ons to female colleagues, and tales of male prowess.

As for Vicky Crawford, her boss was the real-life, evil carnation of Catbert. His braggadocio about the size of his erection was funny to him. But for Ms. Crawford, talk of the boss’s erection amounted to a long and powerful yardstick of his power over her and her livelihood. With these jokes, he silenced her for years. The HR joke was cruelly turned against Ms. Crawford -- that is, until the Supreme Court paved the way for the school district to pay Ms. Crawford dearly for protecting a powerful man.  

We Are Pilgrims

My dad’s first job in the U.S. was a baker’s assistant. No English was required—just a willingness to start baking at 4:00 a.m. at a resort in New York’s Catskills.

My dad was a Jewish pilgrim.

The original pilgrims were members of a separatist group. They broke with the Church of England and fled to the Netherlands. There they found tolerance and opportunities to be successful in business and education.

But Amsterdam was too libertine. They feared their group would die from assimilation and a low birth rate.

So they risked the two-month journey by ship to come to America.

We are all pilgrims. Most of us trace our ancestry to another nation. 

If we’re Native Americans, we are dispossessed in our own land—like the pilgrims, a group that has been outside the mainstream of cultural and religious life.

I thank the resort that hired my dad and launched his career. Our family has had more than a million things to be thankful for since that fateful moment.

Happy thanksgiving to all.

Make America Dumb and Dumber

Teacher unions are bad for America, right? That’s what most Republicans say. Their brief against unions? These labor groups protect poorly performing teachers; bargain costly salaries, benefits and pensions; and protect teachers, not students.

Following this script, Wisconsin gutted collective bargaining rights for teachers in 2011.

Six years later, we have data on some effects of the law.

On the employment side, average salaries for teachers in the state have fallen by 2.6% and benefits declined 18.6%.

In addition, 10.5% of public school teachers in Wisconsin left the profession after the 2010-2011 school year, up from 6.4% the year before. The exit rate last year was 8.8%.

In an October news report on testing in Wisconsin schools, only 42.7 percent of students performed as proficient or advanced in English (2016 test). In math, only 40.5 percent of students showed proficiency.

But this is the GOP recipe for an informed electorate and a workforce that performs 1950s-type resource extraction jobs (mining in Kentucky, timber and paper processing in Wisconsin).

For Thanksgiving, Take a Moment to Thank Slaughterhouse Workers

I spent today with slaughterhouse workers in America’s largest beef packing plant. Here are some takeaways.

Worst job? Killing cattle with a probe. The animal enters a chute and is jammed into a tight space. The worker uses a hydraulic press with a probe that crushes the skull and penetrates the entire brain. Kill time? Two seconds.

Workers often develop psychological problems with this job. One man developed a severe drinking problem after cattle were in his dreams and spoke in words to him.

How to buy good pork? These guys have worked with hogs, too. When an animal doesn’t die quickly, its body secretes chemicals that affect the meat. The redder the pork, the faster the kill and the higher the quality. Beef has the same principle but you can’t judge the kill time.

Toughest moment for me? The new method for killing hogs is putting them (about 20) on an elevator, lowering them to a pit, and gassing them. It’s fast and doesn’t spread germs.

This made the death of my family in Auschwitz more real for me.

Workers’ view of their company? They hated their old employer, IBP; they respect Tyson, their new employer. Why? “They talk to us and want to know how our jobs could be better.” Also: “They treat us like people, not like cattle.”

The workers are local union officers. They believe that their union is very important. But they don’t view conflict as an inherent part of their relationship with their employer.

Undocumented workers? I didn’t ask, but half the workers were Hispanic and spoke Spanish.  I’m sure everyone has been verified, but my hunch is that some (or more) have fake IDs. Unemployment in eastern Nebraska is 2 percent, so deporting these workers would mean real hardship for the company and the food chain.

Chain speed? That’s how rapidly animals are “disassembled.” 400 per hour in a beef plant, 600 per hour in a hog plant, 1,200 per hour or more in poultry plants.

Speed hurts workers.

Biggest worry: President Trump's USDA took off limits on chain speed for poultry. More workers will slice off finger tips. These workers fear beef will be “deregulated.”

In a labor market with 2 percent unemployment, these guys are planning already for their next move.

Thank you, slaughterhouse workers.

Evil-Non-Angelical Christians

It’s not fair to law-abiding, tolerant evangelical Christians to besmirch their religious identity with the likes of Roy Moore—an evil-non-angelical Christian.

Consider these cases involving other evil-non-angelical Christians:

Tony Alamo - In 2009, he was convicted of ten federal counts of taking minors across state lines for sex, and sentenced to 150 years in federal prison.

Wayne Bent (aka: Michael Travesser) - Founder of Lord Our Righteousness Church, sometimes called Strong City. Was convicted of one count of criminal sexual contact of a minor and two counts of contributing to the delinquency of a minor in 2008. Was sentenced to 18 years with eight years suspended.

Graham Capill - former leader of Christian Heritage New Zealand. Sentenced to nine-year imprisonment term in 2005 after multiple charges of child sexual abuse against girls younger than twelve.

Fred Phelps - Leader of anti-gay Westboro Baptist Church. Convicted for disorderly conduct and battery.

Theodore Rinaldo - Leader of a religious group in Snohomish, Washington convicted of third-degree statutory rape for having sexual intercourse with one minor girl and of taking indecent liberties with another.

Jim Bakker - Created the PTL organization. Convicted of fraud and conspiracy charges after illegally soliciting millions of dollars from his followers.

Kent Hovind (Dr. Dino) - founder of the Creation Science Evangelism ministry. Willful failure to collect, account for, and pay over Federal income taxes, knowingly structuring transactions in Federally-insured financial institutions to evade the reporting requirements, and obstructing and impeding the administration of the internal revenue laws.

Henry Lyons - Former President of National Baptist Convention, USA, Inc. Convicted for racketeering and grand theft.

Barry Minkow - Head pastor of San Diego's Community Bible Church, and founder of the Fraud Discovery Institute, who had turned to religion and entered the ministry after release from prison for the notorious ZZZZ Best fraud, returned to prison in 2011 for further acts of securities fraud while serving as a clergyman. 

Sunday Without Zeke: Here’s Why

The following is quoted from the October 30^th ruling in the Zeke Ellliott case (where the NFL imposed a six game suspension on the star running back and an arbitrator upheld the ruling). The court, in this ruling, granted Elliott an emergency “stay” to allow his case to be reviewed by a federal appeals court (which happened this past Friday).

Readers can judge for themselves. For context, Elliott had an intimate relationship at the time of events with a woman named Tiffany Thompson. Her allegations, and Elliott’s denials, amount to a she-alleges, he-denies dispute that took place under intimate and private circumstances, where no one else could be a witness.

My opinion? There’s about as much evidence to support the charges against Elliott as there are victim accounts of Harvey Weinstein’s abuse and assaults, which are credible. Unless there is a video of these events, we’re never going to get proof-positive. In this case, the clearest evidence against Elliott is medical and photgraphic evidence of Ms. Thompsons shortly after the alleged assaults occurred. See the picture above. That’s good enough for me. NFL players union, if you are going to take a stand against Trump and racial injustice, don’t be hypocrites by throwing Tiffany Thompson under the Cowboys' team bus.

…. [quoting court opinion)

In July 2016, the Columbus (Ohio) Police Department investigated claims by Tiffany Thompson, with whom Elliott had previously had an intimate relationship, that Elliott had physically abused her on five occasions during the week of July 16, 2016. By July 22, 2016, law enforcement officers investigating Thompson's allegations had concluded that there was insufficient evidence to establish probable cause to arrest Elliott, due to conflicting accounts of the underlying facts. The Columbus City Attorney's Office then investigated the allegations but declined to charge Elliott, citing “conflicting and inconsistent information ... resulting in concern regarding the sufficiency of the evidence to support the filing of criminal charges.”

The NFL's director of investigations, Kia Roberts, and the NFL's Special Counsel for Investigations, Lisa Friel, conducted a separate investigation into the allegations, with Roberts conducting a majority of witness interviews over the course of the investigation.

This investigation resulted in a report that the NFL issued on June 6, 2017 (id. at Ex. A-44); the NFL then held a meeting on June 26, 2017, during which Friel presented the findings of the report to Elliott, his agents, and the NFLPA. The Commissioner also ordered that an advisory panel be present.

During this meeting, upon questioning by Mary Jo White, one of the Commissioner's advisors, Friel represented that only one of the alleged instances of abuse leveled by Thompson had been found to be not credible. As the NFLPA points out in its briefing, Roberts was not present at the meeting, and the report did not include any investigators' conclusions drawn from the evidence. (Id. at 3; see, e.g., NFLPA Br. 5-6). The NFLPA responded to the report on July 17, 2017, pointing to evidence in the NFL's report undermining Thompson's credibility and offering alternative explanations for certain facts, including the bruises that had been photographed on Thompson's body. (See Kessler Decl., Ex. A-48).

3. The NFL's Discipline of Elliott Pursuant to the CBA

After the NFL's June 2017 meeting, on August 11, 2017, the NFL notified Elliott that the Commissioner was exercising his power under Article 46 of the CBA to suspend Elliott without pay for the first six games of the 2017 NFL regular season for using “physical force against a woman in the context of an intimate relationship.” Specifically, the Commissioner found that Elliott had “used physical force against Ms. Thompson resulting in her injury” on three out of the five alleged instances of abuse during the week of July 16, 2016. (Id.).

The Commissioner based this finding “on a combination of photographic, medical, testimonial and other evidence” that the Commissioner considered “sufficiently credible ... to establish the facts, even allowing for concerns ... about [Thompson's] credibility.” (Id. (emphasis added [by the court)).

On August 15, 2017, the NFLPA appealed Elliott's suspension pursuant to Article 46 of the CBA. (Kessler Decl., Ex. A-50). The Commissioner designated Harold Henderson to serve as arbitrator for Elliott's appeal.

Before the arbitration, the NFLPA requested that the NFL (i) produce documents related to the Thompson interviews, including investigative notes, and (ii) compel Thompson, Friel, and Roberts to testify at the arbitration hearing.

The NFL rejected almost all of the NFLPA's requests, agreeing only to provide Friel's testimony. (Id. at Ex. A-52, A-54). After a telephonic hearing, Henderson denied the NFLPA's request for the production of documents and for Thompson's testimony; acknowledged that the NFL would make Friel available to testify; and further ordered the NFL to make Roberts available to testify. (Id. at Ex. 55).

From August 29 through 31, 2017, Henderson held the arbitration hearing. At the hearing, Roberts testified that she “had concerns about [Thompson's] Credibility” due to contradictory statements by other witnesses, including Thompson's friends.

Significantly, however, she stated that “[a]ny concerns, any inconsistencies were completely put into the [NFL's] report,” and that she shared her concerns with Friel and other NFL investigators, including her superior, Cathy Lanier. (Id. at 163:11-165:16, 172:21-173:22, 174:7-11 (Aug. 29)).

Friel acknowledged during her testimony that Roberts had “express[ed] the view internally that ... there was not sufficient” corroborating evidence of Thompson's allegations. (Kessler Decl., Ex. C at 301:22-302:2 (Aug. 30)). Friel also testified that before the Commissioner decided to impose discipline, Friel informed him that she (Friel) found the evidence sufficient to impose discipline, but that she was unsure whether Roberts “met with the Commissioner to give [her] views about the sufficiency of the evidence.” (Id. at 322:21-25, 338:23-339:5 (Aug. 30)).

When asked whether she told the Commissioner “specifically that Ms. Roberts had expressed the view that the corroborating evidence was insufficient to proceed,” Friel replied that she could not “recall whether it was stated in those words”; later, she clarified that “[t]he Commissioner was told ... that Kia Roberts did not think that we had enough for a violation,” and that her earlier equivocation “had more to do with the exact language of [‘]insufficient evidence[’].” (Id. at 324:8-13, 336:8-12, 338:8-17 (Aug. 30)).4 Friel testified further that the NFL Report excluded any investigator's recommendation as to whether Elliott violated the PCP as the result of a decision she reached “in conjunction with counsel”; the decision was that, due to the voluminous report, she “thought the Commissioner would be better served by ... a report that laid out all that evidence.” (Id. at 265:10-266:17 (Aug. 30)).

Elliott testified at the hearing and denied any acts of abuse against Thompson. He also produced a witness, Alvarez Jackson, who was present in Elliott's apartment during the relevant time period and testified that he did not see any signs of, nor hear any complaints of, abuse by Thompson. The NFLPA also presented expert evidence in an attempt to discredit photos of Thompson's alleged injuries. (Id. at 91-132 (Aug. 29)). During the hearing, the NFLPA demanded, for the first time, that the arbitrator compel the Commissioner to testify so that the arbitrator could determine whether he should defer to the Commissioner's factual findings, as the NFL argued he should. The arbitrator declined the request to compel.

On September 5, 2017, the arbitrator issued an award affirming the six-game suspension, finding “that the record contains sufficient credible evidence to support” the Commissioner's determinations. (Kessler Decl., Ex. H). The award's analysis begins by noting that although both Friel and Roberts “expressed surprise that they were not asked to make a recommendation on discipline based on their investigation and report,” and “Roberts could not explain why she was not invited to participate in the” June 2017 meeting, “their roles fit squarely into the process outlined” in the PCP. (Id.). The award notes that despite the NFLPA's claim that Friel's and Roberts's testimony revealed “new evidence” regarding Thompson's credibility that was material to the Commissioner's decision, “all the statements and inconsistencies [undermining her credibility were] included in the Investigative report and other materials provided to the Commissioner for his review.” (Id.). Furthermore, Friel's and Roberts's “recommendations were not sought or required at that point, pursuant to” the PCP. (Id.).

The arbitrator then set forth the standard he was to apply as the Commissioner's designated Hearing Officer: “[M]y responsibility is to determine whether the Commissioner's decision on discipline of Mr. Elliott is arbitrary and capricious, meaning was it made on unreasonable grounds or without any proper consideration of circumstances.” (Kessler Decl., Ex. H). The arbitrator clarified further that his review was limited to “determin[ing] whether the player was afforded adequate notice of his alleged violation, the right to representation, opportunity to present evidence, and a decision which is fair and consistent,” i.e., “whether the process and result were in compliance with the terms of [NFL] policy.” (Id.). Finding that the record satisfied that standard, the arbitrator affirmed the Commissioner's determination and denied the appeal. 

Trump Nominee for Federal Judge Should Be Rejected

Meet Brett Talley, who was approved on an 11-9 Senate committee vote to be a federal judge in Alabama. He is unqualified. Here’s why.

He has never tried a case in court.

He has been out of law school only ten years (the ABA recommends a minimum of 12 years post- law school experience for judges).

He has not practiced law for most of his short career. He worked as a law clerk (three years), and political appointee in a communications role. 

He has extreme views. Example: Weeks after 26 children and teachers at an elementary school were killed in a mass shooting, his blog posted:  “Today I pledge my support to the NRA; financially, politically, and intellectually. I ask you to do the same. Join the NRA. They stand for all of us now, and I pray that in the coming battle for our rights, they will be victorious.”

More recently he has tweeted or blogged: “Hillary Rotten Clinton might be the best Trumpism yet.”

“The press cares when you lie to the American people. Unless you are @HillaryClinton #LochteGate.”

Also see the tweet (above).

Brett Talley has the resume and rhetoric of someone who should run for office. He’d be a much better candidate for senator from Alabama than another “judge,” Roy Moore. 
In short, judges cannot be seated on the bench to play to the "base." They are on the bench for everyone who comes before their court. 

COLONEL of Truth: Vets Have Employment Rights

The women and men who serve in our military have MAJOR employment rights. USERRA is the GENERAL law that protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. 
The law applies to PRIVATE and public sector jobs.

Be sure to in-CORPORAL-ate these rights and duties to afford our veterans their rights:

REEMPLOYMENT RIGHTS

Vets who are eligible for reemployment must be restored to the job and benefits they would have attained if not been absent due to military service or, in some cases, a comparable job. This is called the escalator clause—it is a FIRST CLASS right.

RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION

This often involves issues about accommodating time away from work, when many reservists are not accommodated and face discriminatory treatment.

HEALTH INSURANCE PROTECTION

Vets who leave a job to perform military service have the right to elect to continue existing employer-based health plan coverage for themselves and their dependents.

For more, see here https://www.dol.gov/vets/programs/userra/USERRA_Private.pdf. 

Men Who Harm Others via Public Masturbation

When I was in law school 33 years ago, I went for my daily run through a wooded area that ended in a large parking lot. A young guy called out from his car, stating that he needed directions. The situation felt wrong to me. I went over anyway. When I got to his car, he was fully exposed and masturbating. His cruel and lurid grin returned to me when similar accounts were recently reported in the news.

In less than 30 minutes, my legal research shows that this behavior has been going on for many decades. It is criminal. It also reflects a mental disorder.

Here are two brief excerpts that may shed a bit more light on this difficult topic:

Medical Analysis

“Dr. Rath testified that ‘paraphilias’ are a family of diagnoses that include objects and situations a person might find sexually arousing and that are deviant or different from the norm. The word ‘paraphilia’ literally means ‘the love of that which is beyond normal.’”

…

“Dr. Zinik explained that a paraphilia can be treated but not cured. ‘[Paraphilias]’ can be controlled. You can develop the skills and the tools— you can learn the tools and learn the skills that you need to control those feelings and prevent relapse and prevent acting out again on those feelings, but the feelings are not going to change.”

In “OSPD Non–Consent” ... “the sexual interest is in the imposition of sexual activity on another person, whose behavior clearly signals that they don't want sex to happen”. This involves “struggle and resisting” by the victim who is seen to “loathe strongly” and experience “psychological suffering.” OSPD Non–Consent meets the definition of a paraphilia under the DSM–5 because a paraphilia can include a sexual interest with an other than consenting adult partner.

Legal Analysis

At the low end, these actions are prosecuted under public lewdness statutes. Many types of public masturbation cases have far worse elements, including rape (some with murder).

As it does in so many other ways, Hollywood and TV are opening our eyes to matters that have been just beyond our public domain of shared stories and experiences. 

Higher Ed Hypocrisy: University Investments in Cayman Island “Blocker Corporations”

Today’s New York Times features a shocking expose of large university foundations. Indiana University is prominently featured, as are other schools. The problem? These multi-billion dollar funds are invested in locations such as the Cayman Islands.

When universities invest in stocks and bonds, gains are tax-free. But these mega-funds have tax exposure when they invest in hedge funds, and exotic LLCs and partnerships.

To boil this down, university fund managers use “blocker corporations” in these tax havens to avoid tax consequences.

This is legal—but also at sharp odds with the high-minded principles that unite schools as diverse as Indiana, TCU, Duke, Stanford, Colgate, Columbia, and Dartmouth (all mentioned in the NYT).

This “dark information” came to light in a massive leak of confidential investor files owned and maintained by a major tax-haven firm in Bermuda, Appleby.

Here is a specific example of higher ed hypocrisy (quoting the NYT):

“The Appleby records show that investment funds of Columbia and Duke, both ranked in the top 20 endowments, held shares as recently as 2015 in Ferrous Resources, registered in the Isle of Man. Its primary business is iron mining in Brazil.

The company drew criticism there with a planned 480 kilometer pipeline to transport iron slurry from a mine in Minas Gerais to a port.

A 2010 environmental study of the pipeline revealed that more than 110,000 people might be affected by noise, dust, soil degradation and water quality issues.”

Ku Klux Klan Calling Cards

Did you know that the Ku Klux Klan has calling cards? I didn’t until I read Mari Matsuda’s detailed article on racist speech in the Michigan Law Review.

Prof. Matusda recounts the following: “A black family enters a coffee shop in a small Texas town. A white man places a card on their table. The card reads, 'You have just been paid a visit by the Ku Klux Klan.' The family stands and leaves." 

She cites several sources, including Patsy Sims, The Klan (1978). Sims explains that the “calling card is a typical Klan technique.”

Prof. Matsuda also cites a federal lawsuit, Vietnamese Fishermen's Assn. v. Knights of the Ku Klux Klan (1981). In that case, involving KKK efforts to terrorize an immigrant fishing community to leave south Texas, a white woman who allowed Vietnamese immigrants' fishing boats to use her docks received a card that read "You have paid a 'friendly visit' do you want the next one to be ‘real one?’”

Prof. Matsuda concluded: “Part of the special harm of racist speech is that it works in concert with other racist tools to keep victim groups in an inferior position." 

Prof. Matsuda published her research in 1989. Twenty-eight years later, it is immensely relevant.

Can Alabama Execute a Condemned Man Who Has Dementia?

Yes, but this case is compelling. Vernon Madison walked up to a Mobile police officer and shot him twice in the head, killing the victim. That was in 1985. Thirty-two years later, Madison is “legally blind. His speech is slurred. He cannot walk independently. He is incontinent. His disability leaves him without a memory of his commission of a capital offense.”

Here is the legal conundrum. A prior Supreme Court rulings bars the execution of people who lack a “rational understanding” of the reason they are to be put to death. This idea applied to insane people.
In this case a federal appeals court, on a divided vote, ruled that had Mr. Madison met that standard, even though Mr. Martin is not insane.

Judge Beverly Martin wrote: “Due to his dementia and related memory impairments, Mr. Madison lacks a rational understanding of the link between his crime and his execution.”

On Monday, the U.S. Supreme Court unanimously reversed the appeals court, opening the door to the execution chamber. They ruled on a 1996 law that limits post-conviction appeals.

However, three liberal justices said there will likely be future cases of senile prisoners facing execution. They signaled a willingness to consider whether their doctrine of “rational understanding” of a crime—applied to psychotic people— extends to condemned prisoners who suffer strokes and dementia.

Post-script: Some people process this type of case along the lines of “put the prisoner out of his misery,” or conversely, “he’s lucky he won’t suffer as much as his victim.” Fair enough to these points of view. But lawyers think about this differently. The main pillars of criminal law are deterrence, retribution, and rehabilitation. The latter has never been a consideration in Mr. Madison’s case. Punishment incorporates the idea of making a convict connect a state-imposed sanction—here, death— to his crime. For Mr. Madison, that concept has been discarded. But at a future date, the Supreme Court might consider whether a condemned person, strapped to a gurney, confuses the drip in his arm for medical care. The legal question: Is this punishment? 

Should Minor League Baseball Players Get Minimum Wages and Overtime?

Aaron Senne, a former minor league ballplayer, filed a wage-and-hour lawsuit in 2014.

His suit alleges that some minor leaguers are not paid proper minimum wage or overtime, with some earning as little as $1,100 per month during the season despite spending more than 50 hours working each week. That’s rookie league pay. (The math in the scenario works out to $5.50 per hour.) 

The base pay at AAA—a very skill high level— is $2,150 per month.

You might think the Commissioner would argue as follows: (1) You guys love playing this game! (2) We can find many others to take your place. (3) Some of you will make a lot of money. (4) You have real jobs in the off-season.

The Commissioner has not made those arguments. That's because none of those arguments are legally relevant.

Instead, the Commissioner has argued that the employment contracts of players are so varied that individualized trials must occur for each one (recently, there were 2,200 players who “opted-in” to the lawsuit).

The substantive issue is whether minor leaguers qualify under categories for “exempt” employees (as in exempt from minimum wage and overtime). They likely do not meet the test for exemption, meaning they are owed extra pay. They are not “artistic” employees nor “professional” employees, as the Fair Labor Standards Act defines these exemptions to minimum wage laws.

For now, however, the latest court ruling favors baseball (the magistrate ruled in favor of baseball's 2,200 trials argument!) though it has been appealed. Minor league plaintiffs are behind in the count.

Schools and Workplaces: Favorite Targets for Mass Shooters in U.S.

The New York Times is featuring some research by Prof. Adam Lankford. This post offers a brief but deeper look at his research.

The chart from Prof. Lankford's research for this post shows that the U.S. has about 9 guns per every 10 residents. Serbia is next with 6 guns per 10 residents; Yemen is third with 5 guns per 10 residents.
Prof. Langford also finds that the favorite targets for mass shooters in the U.S. are schools and workplaces.
Prof. Lankford published “Are America’s Public Mass Shooters Unique? A Comparative Analysis of Offenders in the United States and Other Countries.” International Journal of Comparative and Applied Criminal Justice (2016).

Here is a summary of his research:

Public mass shooters are often assumed to be an exceptionally American problem, but little is known about what proportion of global offenders attack in the United States, or how America’s offenders compare to those in other countries. The present study offers the first quantitative analysis of all known offenders from 1966 to 2012 who attacked anywhere on the globe and killed a minimum of four victims. The results suggest that public mass shooters in the United States are significantly more likely to arm themselves with multiple weapons and attack at school and workplace settings, while offenders from other countries are more likely to strike at military sites. These differences may be partially attributable to America’s national gun culture and its particular set of social strains.

Fired for Flipping-Off the President: Can She Win a Wrongful Termination Lawsuit?

This is a photo of Juli Briskman, 50, who has been fired by her employer because she was caught flipping off President Trump.

She was riding her bicycle on Lowes Island Boulevard after 3 p.m. on Oct. 28 when she found herself sharing a lane with President Trump’s motorcade, which was leaving the Trump National Golf Course in Sterling, Va.

She had been employed by Akima L.L.C. This company works with government contractors. She worked as a marketing analyst. Rather proud of her defiance—especially after newspapers in Virginia published her two-wheeled editorial stance— she boasted to the firm’s HR department that she was this brave soul.

They fired her.

Does she have legal recourse? No. Virginia is an employment-at-will state. Private sector employers may fire an employee for any reason, no reason—or as here, a bad reason (if you want to argue that her company would lose government contracts, you’d be making up some facts).

The situation upsets me … until I slow down and think about cases on the other side of the political spectrum.

In Chaplin v. Du Pont Advance Fiber Systems, 293 F.Supp.2d 622 (E.D.Va. 2003), a court ruled that the company was within its rights to fire an employee who violated the rule against displaying Confederate imagery in workplace. In that case Chaplin argued that he was fired for his national origin, i.e., “Confederate Southern-American.” There are other cases involving Klan members who have tried to use religion as a basis to protect their ideology against termination. (Only one case succeeded.)
If you're thinking that Chaplin is different because the expression occurred on company property-- and this did not-- you'd be right on the facts. But employment-at-law in Virginia is very broad. Essentially, an employer can fire you being a Democrat (or a member of the KKK).
[A few states-- Connecticut, for example-- prohibit this type of termination.]
Here’s hoping that someone hires Ms. Briskman soon.

GOP Introduces Worthwhile Paid Work Leave Bill

You’ve probably heard of FMLA—shorthand for the Family and Medical Leave Act. The law gives employees a right to unpaid leave for a serious medical condition of their own, or a close family member. Employees are afforded 12 weeks on a rolling, annual calendar.

House Republican lawmakers have introduced a bill that would upgrade FMLA by providing paid leave—that is, paid time off. The nation’s leading HR society (Society of Human Resource Management), and other traditional employer groups, have drawn the bill.

It has real merits. 

First, employers would not be required to provide paid leave. That is disappointing in some respects but shouldn’t end consideration of the bill.

If an employer chooses to provide paid leave—and many competitive employers already do this— the legislation specifies that employers would give workers between 12 and 20 paid days off annually, depending on the employer’s size and the employee’s tenure.

The law would give companies six flexible work options, such as telecommuting or compressed work scheduling, to offer their workers.

Personally, I like the idea of legislating baseline options that vary across a wide array of industries and work settings.

There must be a catch, you’re saying, if you come to this from a union or progressive perspective.

Yes, and here it is: the law would preempt paid-leave laws in eight states and 32 cities and counties that guarantee workers the right to time off. Also, the bill, in its current form, has few or no enforcement mechanisms.

My sense is that this is a reasonable trade-off—and anyway, there is too much local legislation by hard-line conservatives and hard-line progressives on these matters. 

Illinois, for example, came close to enacting a law that would make it a crime for local officials to enact a law that bars collection of mandatory union dues. 

The Illinois approach—a dumb Republican idea outmatched my a dumber Democratic idea—needs to stop.

This blog is often critical of Republican lawmakers.

Not this time. This is a pretty neat bill—with lots of common sense principles, and a modest but important use of government regulation.

Now, let’s have hearings on the bills. Let’s tweak it without distorting it. (My tweak? Make the paid-leave options mandatory for employers with over 500 employees.)

And let’s get Democrats to be brave and support, or at least consider, this bill. 

Trump, the Star Chamber Court, and “Taking the Fifth”

In the aftermath of the ISIS terror attack, President Trump called for “quick” and “strong” justice. He maligned the criminal justice system as “a laughingstock.” He also suggested that the attacker be sent to Guantanamo Bay and subjected to torture, noting that “torture works.”

Yet, two days later, when a military tribunal ordered a dishonorable discharge, with no prison time, for Bowe Bergdahl, President Trump called the military judge’s ruling “a complete and total disgrace.”

That takes us to the Star Chamber Court. This was a special English court that sat at the Palace of Westminster. The word “star” likely came from Hebrew (“shetar” means “document,” but more broadly meant “obligation”).

This term was widely used around the time that the Star Chamber was formed (around 1300) —and by the way, the same time that Jews were expelled from England (1290).

The Star Chamber developed a reputation for cruelty and caprice. A common complaint was that the court punished actions judged to be morally reprehensible but not in violation of any law.

The Star Chamber was also notorious for admitting testimony and other evidence that resulted from torture. That sounds like something that President Trump advocated this week (and in the past).

Our Constitution’s prohibition against self-incrimination—found in the Fifth Amendment—traces to the torture methods used to extract confessions in the Star Chamber.

Here’s hoping that Paul Manafort, Rick Gates and anyone else indicted by Special Counsel Robert Mueller gets the benefit of a presumption of innocence and a full panoply of constitutional protections.

Should States Give Out Birthdates and Contact Information of Public Employees?

“Right to work” is a concept that limits a union’s power to collect dues via a mandatory dues deduction process.

But there’s a good argument behind right-to-work: employees should make a choice whether to pay dues or not.

With that in mind, the Right to Work movement is far more motivated to destroy public unions than to help the employee.

Let’s begin with their formal name: the Freedom Foundation. In the state of Washington, the Freedom Foundation is using the FOIA law (Freedom of Information Act) to seek names, birthdates, addresses, and contact information of every employee in the state who is covered under a collective bargaining agreement. The group sought the records as part of a campaign to inform unionized state employees of their right to opt out of paying some union dues.

Public-sector unions fought back. The unions claimed that disclosing workers’ names and birthdates violated their right to privacy under the state constitution.

The unions also argued that the Freedom Foundation’s request would expose workers to identity theft, and that the information could be used to find their home addresses and phone numbers.

The union won at the state appeals court level—but the Freedom Foundation is appealing to the state supreme court. 

As Snowflakes Melt, So Do Glaciers: China’s Censorship of Academia

Is climate change important to you? What about the Tiananmen Square Revolution—was that real or a hoax? Some people study these and other important matters very carefully, and after much thought and hard work, try to publish research to help advance our frontiers of knowledge.

Increasingly, autocratic leaders (soft dictators) use state power to attack research that undermines their political power.

Donald Trump is on this path … but running in first place is apparent dictator-for-life, China’s President  Xie Jinping.

Here’s the rub.

Cambridge University Press is among the world’s foremost academic publishing houses. The Chinese government threatened to block all access to all Cambridge publications— books and journal articles— unless the publisher removed 300 offensive publications. That’s less than one percent of Cambridge’s titles.

Here was Cambridge’s dilemma: Maintain academic integrity and miss out on a huge market—or throw a little truth overboard and cash in?

Cambridge took the money … until it later restored the publications on climate change, Tiananmen Square, and other delicate topics. The threat of leading academies withdrawing from Cambridge played a significant role.

Now China is playing bully with Springer Nature. This outfit publishes lots of scientific journals, including the Journal of Chinese Political Science. Studies published in that journal are now banned in China. The ban is sticking because Springer Nature doesn’t want to lose its huge market in China.

Trump and Xie are very different in style. In substance, they are making common cause to silence science and other forms of inquiry.  

As snowflakes melt, so do glaciers.

Mucked Up: “I am not a German, although they said I was. I considered myself an American.”

A century ago, Karl Muck, a world-renowned conductor of the Boston Symphony Orchestra, was fired over a national anthem controversy.

America was at war with Germany. Muck was born in Germany, but left to make a life in Switzerland. Lured to America by a rich contract, he came to the U.S. to lead the Boston Symphony from 1912-1918.

His national anthem controversy has familiar overtones. The press was polarized. The Providence newspaper—strongly anti-German—set a trap for Muck. The paper had been attacking Muck for weeks because he played music by German composers. As war reached a fever pitch, some symphonies ended shows by playing the national anthem. Like other national conductors, Muck didn’t do this—he wanted to keep politics out of the show.

While the BSO was en route to Providence, the local newspaper published a call for the symphony to play the national anthem—and also arranged for a patriotic club to make this demand of the symphony. The BSO’s founder and president knew of these requests but didn’t tell Muck because he didn’t want to put Muck, a German national, in an awkward spot.

The performance ended with no national anthem. Muck knew nothing about the newspaper demand or the demand from the local group.

The newspaper falsely reported that Conductor Muck had refused to perform the anthem, accused Muck of treason, and called him a spy and a hater of all things American.

Muck lost his job. Six months later, he was imprisoned at Fort Oglethorpe in Georgia. He remained there for three years with 2,000 other internees.

Expelled in a deportation hearing, his departing quotes to the New York Times: “I am not a German, although they said I was. I considered myself an American.”

(Credit to Janet for providing the lead to this fascinating story in the Boston Globe.)

Professors: “Snowflakes” and “Arnolds”

I’ve been labeled a Snowflake and Libtard by people near and far— including Breitbart readers who exercise their constitutional right to send me dirt-ball messages. I’ve even thought about changing ProfLERoy to ProfSnowflake. It’s just not catchy, and anyway, there are times when my flakes melt—as recently when I praised Attorney General Jeff Sesssions for sending a trial lawyer to Iowa to prosecute a hate crime.

But it’s time to start casting some professors as “Arnolds,” as in Benedict Arnold, America’s first traitor.

Here is an Arnold: Prof. Sam Clovis, formerly of William Penn University in Oskaloosa, Iowa and Morningside College, in Sioux City, Iowa. For many years, he taught classes on business, management, and public policy. He was the Russia-contact whisperer for the suddenly famous George Papadopoulus. He’s likely to be indicted himself, and so, he has withdrawn his nomination to an undersecretary position at the U.S. Department of Agriculture. He gets an Arnold because of his sudden leap from academia to the inner circles of Trump Tower while encouraging contacts with Russians who had dirt on Clinton.

Here’s a second Arnold: Prof. Joseph Mifsud. He holds a faculty position in the politics department at the University of Stirling in Scotland. Now, you might say he can’t be an Arnold because he’s not an American. That is all true—but also remember, Benedict Arnold defected to the British Army and forfeited his allegiance to America.

Are there professors who support President Trump but cannot be labeled an Arnold? Yes—one example is Dr. David Shulkin, the Secretary of Veterans Affairs. Dr. Shulkin has a stellar academic record, having served as Chief Medical Officer of the University of Pennsylvania Health System, the Hospital of the University of Pennsylvania, Temple University Hospital, and the Medical College of Pennsylvania Hospital. (Another one of my snowflakes just melted.) He’s terrifically qualified for this important and overlooked Cabinet post—and he’s helping Americans, not Russians. 

Trump’s New Immigration Plan … It’s Older than Him

When the First Continental Congress met initially in 1774,  fifty-six delegates came from 13 colonies. Nine of those 56 men—about 15%-- were born in another country (four from Ireland; two from England; two from Scotland; and the highly influential Alexander Hamilton, born in the West Indies.

One of the first acts of Congress was an immigration law. It was called the Naturalization Act of 1790. If a person resided in the U.S. for two or more years, was a “free white” male, and had good moral character, they could be approved for “naturalization”—a legal grant of U.S. citizenship.

With the influx of Chinese laborers in the 1860s to build the transcontinental railroad and work in gold and silver mines, white workers felt threatened. This led Congress to pass an openly racist law— the Chinese Exclusion Act in 1882. Many whites favored the law because they feared the “Yellow Peril,” a derogatory reference to skin color.

This law prohibited all Chinese laborers from entering the U.S.; and later expanded to include “ethnic Chinese.” That meant if a child was born in the U.S. to Chinese parents, that person could not be admitted to the U.S. if he left the country.

The law stayed on the books until 1943.

A similar law was passed to exclude Japanese workers, beginning in 1907.

But that wasn’t enough for white nationalist political leaders. In 1921, Congress passed the Emergency Quota Act, which established national immigration quotas. The quotas were based on the number of foreign-born residents of each nationality who were living in the United States as of the 1910 census.

That put a very low lid on immigration.

But that wasn’t enough, still, for white nationalist leaders. So, in 1924, Congress passed the Immigration Act of 1924 (Johnson-Reed Act)—but that wasn’t enough, either, so Congress amended that law with the National Origins Formula. That dialed back immigration from each country to a quota that was proportional to its population in the U.S. as of the 1890 census.

The official U.S. population in 1890 was nearly 68 million, though some people put the figure as low as 62 million and as high as 75 million. In 1890, the U.S. population had 107,000 Chinese (12,500 citizens)—that is, .02 percent of its total.  So, taking the .02 percent quota figure, under the 1924 law the Chinese quota was 214 newly admitted Chinese. 
The effect? America grew proportionally whiter. The Chinese population in the U.S. was about 75,000 in 1930 and about 77,000 in 1940-- down sharply from the 1890 census of 107,000. 

As America entered the 1960s as a world superpower and example for global freedom, this 80-year-old racist immigration system was seen as a national embarrassment. 
While the current diversity immigration program came about in 1990, the model for it was set in the Immigration and Nationality Act of 1965, also known as the Hart-Celler Act. 
In the House, the bill was approved on a 320 to 70 vote; and in the Senate, on a 76 to 18.

Since that time, more than 18 million legal immigrants entered the United States.

President Trump favors the proposed Cotton-Perdue plan (which would end the diversity immigration program and re-set U.S. immigration policy along the lines of the 1924 National Origin’s Formula). 
But it's a merit plan, right? No-- it's an English fluency plan, a sham way of saying whites only.
And, eight years after Trump's model 1924 law was passed, along with the 1930 Smoot Hawley Tariff Act—designed to save jobs for Americans— unemployment was officially 25% in 1933 and remained stubbornly high, at 15% by 1940.

Putting America first is really a recipe for hurting Americans.

What Happens to Social Security Taxes Paid by Unlawful Aliens?

The short answer to this question is that the contributions made by unlawful aliens (and matched by their employers) remain in “suspense” accounts, a term that means legal limbo. The alien doesn’t get the money back if he or she used a fake ID, which is usually the case.

There is an exception. This person (or anyone without a Social Security number) may pay taxes to the IRS with an Individual Tax Identification Number (ITIN). This number can be used by legal and illegal workers to make Social Security tax payments (the number is not shared with immigration authorities as a matter of law, but also because the card is available to citizens who simply don’t have a Social Security number).

What does this mean?

ITIN filers pay $9 billion in payroll taxes annually. This means that the legal and illegal population gets access to Social Security benefits.

However, that money is a tiny drop in the bucket. The Social Security “Earnings Suspense File” has forms dating back to 1937. This is for money that the system has collected without a match to a person.

Taxes in this fund have been paid on $1.3 trillion in wages. (An example of a suspense account for a citizen is a person who changes her or his name upon marriage (including hyphenated versions), and this person accrues payments in the system under two different names.)

Social Security estimates that it has about 340 million unclaimed tax forms recorded in the suspense file.

Stephen Goss, the chief actuary of the Social Security Administration, estimates that about 1.8 million immigrants were working with fake or stolen Social Security cards in 2010. He estimates that undocumented immigrants paid $13 billion into the retirement trust fund that year, and only got about $1 billion in benefits.

The $12 billion in unclaimed contributions for 2010 amounts to funding for people who are legally working in the U.S.

Credit: Alexia Fernandez Campbell, “The Truth About Undocumented Immigrants and Taxes,” The Atlantic (September 12, 2016)