I'm a big fan of Roy Wood Jr., and every installment of his "CP Time" bit on The Daily Show is an instant classic. They're always funny, but often, also, are educational.
Last year during African American History Month, Wood talked about little recognized black explorers, such as Matthew Henson, an American who journeyed to the North Pole, and Abubakari II, a Malian royal said to have set sail for the New World more than a century before Columbus.
This year, on Wednesday night, he highlighted African American spies who contributed importantly in the history of war and civil rights, including Josephine Baker and Harriet Tubman.
The piece reminded me of two memorable experiences learning about these women. I first learned about Josephine Baker, an American-born French resistance agent in World War II, only recently, in a seemingly unlikely place, a 2019 exhibit at the Musée d'Orsay titled Black Models: from Géricault to Matisse. In the brilliant, wide-ranging exhibit on the intersection of black culture and French history, Baker was featured among entertainers whose work was fused into a new French cultural identity in the 20th century.
In 2018, my family first visited the Harriet Tubman Underground Railroad National Historical Park, which opened in Maryland in 2013. Situated amid the Blackwater National Wildlife Refuge on the eastern shore of the Chesapeake Bay, the museum is not on the beaten path, but it's worth every extra mile to visit. Impassionedly curated, the exhibits comprise an encyclopedic history of civil rights of which I knew precious little, even having gone to grade school in Maryland and being schooled in constitutional law. Tubman's vital contributions as a Union spy, as well as the real story of her military leadership, portrayed by an eponymous 2019 film, is featured among narratives every American should know about the future face of our $20 note.
Attorney Frank Scaturro has written an in-depth, four-part-essay series on monument destruction for Emerging Civil War, a platform "for sharing original scholarship related to the American Civil War." Here is part one, and here are links to all four parts.
Scaturro is president of the Ulysses S. Grant Monument Association and is working on a book about "New York City’s largely forgotten sites from the founding era." I quoted Scaturro writing about Grant's civil rights record here on the blog back in November. I put a couple of my own coins in the monument meter in October.
Is hair-follicle drug testing racially discriminatory?
That was not the question before the Massachusetts Supreme Judicial Court Friday, but the Court's decision ancillary to that disparate-impact civil rights question is instructive on indemnity.
The civil rights claim in this case was filed in 2005 and still is in litigation in federal court. Plaintiffs in that suit are eight police officers, a police cadet, and an applicant for a 911-operator job who suffered adverse action after testing positive in hair-follicle drug tests administered by the City of Boston. Seven of the officers were fired for cocaine-positive results.
The plaintiffs, all African American, deny drug use. They assert that the test is inaccurate and "disproportionately yielded false positives for people of color, resulting in disparate impact by race," the SJC wrote Friday. "During the eight years for which the plaintiffs present data, black
officers and cadets tested positive for cocaine approximately 1.3% of
the time, while white officers and cadets tested positive just under
0.3% of the time," the First Circuit wrote in 2014.
The city won summary judgment twice in the trial court, yet the First Circuit twice found error, in 2014 and in 2016, and remanded for further proceedings. The case, Jones v. City of Boston, remains in the district court, though the docket shows no activity on the merits since the latter remand, suggesting a resolution might have been reached.
The instant case is a dispute in state court between the city and the test provider, Psychemedics Corp. In the city's contract with Psychemedics, the company promised "to 'assume the defense of' the city, and to 'hold [it] harmless' from all suits and claims arising from 'wrongful or negligent' acts by Psychemedics." After suit was filed against the city, it went to Psychemedics to talk defense. It's not clear that the two ever got on the same page. Psychemedics seemed to regard the suit as outside the scope of the indemnity and regarded its obligations fulfilled by offering the city technical assistance on the science.
Then, as the SJC recounted flatly, "Ten years passed." In 2017, the city started looking around for help with its long mounting legal expenses and set its sights on Psychemedics. "What?!" Psychemedics said. I paraphrase. Psychemedics sued for declaratory relief, and the city counterclaimed for breach of contract and related theories.
The case boils down to an indemnitee's duty to notify an indemnitor of the need to defend. An indemnitee, the Court held, "must give the indemnitor 'notice and an opportunity to defend.' The indemnitee then must allow the indemnitor to take over the defense (if it attempts to do so), and must not later block the indemnitor from doing so." Parties are free to contract specifics, but in the absence of other specification, "'no particular form of words is necessary' to present notice and the opportunity to assume the defense." (Citations omitted throughout.)
Justice Lenk
The SJC vacated the trial court summary judgment for Psychemedics and remanded. The trial judge had improperly decided questions of fact, inadvertently burdening the city with having to refute the company's assertions of fact. The SJC rejected as unproved, as yet, a number of Psychemedics theories, such as that the city had declined the company's defense or had not litigated Jones in good faith as to protect Psychemedics from liability.
To my novice reading—I am no expert on insurance or indemnity—the city fairly invoked the company's duty to defend many times, and Psychemedics tried to weasel out. Anyway, the SJC concluded that that was how the trial court should have looked at the case on summary judgment motion, because that was the position of the city, which was the non-moving party.
With the imprimatur of federal law, today is National Freedom Day, celebrating the day that President Abraham Lincoln signed the joint congressional resolution proposing the 13th Amendment in 1865. Congress passed the proposal the preceding day, and it was ratified on December 6, 1865. Today also is the first day of African-American History Month.
With my comparative law class recently, I had the occasion to visit a classic treatment of race in Star Trek's original series. We were studying "the perspective problem" in comparative research, which refers to the way a legal system (any social system) can look one way when studied by someone within it, and a different way when studied by an outside observer.
There's a scene in the 1969 episode "Let That Be Your Last Battlefield" (s3e15) that's been talked about for half a century even by social commentators outside science fiction and entertainment communities. The theme of the episode is almost cliché insofar as it typifies the tendency of Star Trek creator Gene Roddenberry and 1960s showrunner Gene L. Coon to employ heavy-handed metaphor to effect social comment. Still, the story is effective.
What cliché might have diminished was restored and then some by ferocious performances in Frank Gorshin (Bele) and Lou Antonio (Lokai). Gorshin, who continued acting right up until his death in 2005, was already a well known villain to TV audiences in the 1960s, as Adam West Batman's Riddler. Antonio had recently played chain-gang prisoner Koko in Cool Hand Luke (1967). He followed up Star Trek with a four-decades-long career in TV directing that ranged from The Partridge Family and Rockford Files to legal classics Picket Fences, Boston Legal, and The Guardian, not to mention one West Wing.
The first scene below sets the stage; you only need about the first two minutes. I'm sorry that CBS has labeled it inappropriate for children, so you have to open a new window to watch it. I rather disagree; I recommend the clip especially for children, especially now, part of an essential diet of dialog about race and America.
The second scene below delivers the pièce de résistance. I won't spoil it, in case it's new to you.
Of all the things one could relate about the legendary Dr. King, Nichelle Nichols (IMDb, PBS), Star Trek's original Lt. Uhura, has the very best story.
An at-will employee may be fired for rebutting an adverse employment action, the Massachusetts Appeals Court held today, despite a state law that specifically empowers employees to add rebuttals to their personnel records. The decision drew a vigorous dissent from two of the five justices on the rehearing panel.
As my 1L students tire of hearing, we read cases in law school (in the common law tradition) for one of a number of purposes. For any given lesson, it's important to know which our purpose is, especially when it is to demonstrate the rule by counterexample. To teach wrongful termination, I have used a federal case, applying Massachusetts law, in which the court is much more generous to the at-will claimant than a state high court typically is. But today's case proved only the norm.
The instant plaintiff found no relief from the usual rule that, as the Appeals Court quoted precedent, "employment at will can be terminated for any reason or for no reason." Massachusetts admits of narrow exception to the rule for "well-defined public policy," "preferably embodied in a textual law source." Think firing a model for taking maternity leave, a claim that resonates with dimensions of both statutory entitlement and civil rights. Yet even while the plaintiff here pointed to a specific statutory entitlement, the Appeals Court rejected his claim.
Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file. The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action. But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.
Meehan's rebuttal was not in the appellate record, the court wrote in a footnote. From its absence, one might infer that it was not predicated on what the court would regard as worthy public policy. An employer's "internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception," the Supreme Judicial Court held previously. "If it were otherwise, our courts would become super personnel departments," the Appeals Court reasoned.
It would be hard to conclude that the court's ruling is other than consistent with common law norms. Many a state court has never seen a wrongful termination claim it liked, at least in the context of at-will employment. And the notion of utterly "at will" conforms to the American norm of freedom to contract.
At the same time, the ruling seems to undermine the statute. As a practical matter, an employer asserts many reasons for an adverse personnel action, and an employee's rebuttal answers in kind. The rebuttal itself is then a viable predicate for termination—"not a team player"—even when the employee alleges, inter alia, an actionable wrong, such as discrimination. The employee may then complain of discrimination vis-à-vis the precipitating adverse action. But the employee had that option anyway. There is nothing to be gained, and everything to be lost, by using the rebuttal statute as a resolution procedure.
That was the thrust of the dissent. "Only the credulous and fools would exercise this right henceforth," Justice Henry wrote of the rebuttal statute.
Meditech admitted that it terminated Meehan solely for writing the rebuttal, something he had a statutory right to do. Dispute resolution is among the purposes of the statute, Justice Henry reasoned, possibly sparing the Commonwealth an unemployment insurance claim. At minimum, the personnel record, which might be reviewed by a prospective second employer, is complete with both sides of the story. Meditech has no apparent, legitimate interest, Justice Henry observed, merely in disallowing rebuttal under the statute.
The dissent concluded:
The result the majority reaches renders the statutory right useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do. Countenancing such a result is wholly inconsistent with a just—or even a sane—employment policy. The majority essentially casts the Legislature as a trickster, creating a trap for unwitting employees that employers now may spring.
The case is Meehan v. Medical Information Technology, Inc., No. 19-P-1412 (Jan. 20, 2021). Justice William J. Meade wrote the majority opinion, which Chief Justice Green and Justice Vuono joined. Justice Meade was an appellate attorney in the attorney general's office in the 1990s and deputy chief legal counsel to Governor Mitt Romney in the 20-aughts before going on the bench, and he teaches appellate practice at Suffolk Law School.
Justice Vickie L. Henry wrote the dissent, which Justice Rubin joined. Justice Henry was a commercial litigator in intellectual property, product liability, and other matters for more than a decade, and then a senior staff attorney for Gay & Lesbian Advocates & Defenders before her appointment to the bench. The case was reheard after the initial panel divided 2-1. The addition of two judges apparently only added a vote for each corner.
I like hip-hop and rap, but not as much as I used to. My taste in music, I admit, has been softened in middle age by nostalgia and an inexplicable draw to indie pop, AJR being my current fave (see "Bang!" on Today in August, on Ellen in October, and at the Macy's Thanksgiving Day Parade in November). But I like to think that I still can appreciate a broad range of music, and for various reasons. I like Karlae because she's a woman innovating in a genre that has been dominated by male artists (she's not just Young Thug's fiancée), and she represents the multiracial Atlanta arts scene on the contemporary cutting edge. (HT@themorgansteele, without whose aid I would not know Karlae.)
I was a 2 Live Crew fan in secondary school and university, and it wasn't all about the music then, either. The group's breakthrough album As Nasty as They Wanna Beand its curious companion album, As Clean As They Wanna Be, both came out in 1989, in my last semester of high school. There was a lot to like about 2 Live Crew. I liked the music, which had the imprimatur of my best friend, a musician with discernment decidedly superior to mine. But 2 Live Crew's dispositive selling point for me was a tendency to precipitate First Amendment litigation.
A student journalist in the wake of Hazelwood v. Kuhlmeier (U.S. 1988), I was learning a lot about the First Amendment, sometimes in the classroom and sometimes in the vice principal's office. Meanwhile, in 1989, 2 Live Crew, through its Skyywalker Records, sued the sheriff of Broward County, Florida, for declaratory relief from obscenity prosecutions over As Nasty As They Wanna Be. And in 1990, Roy Orbison's record company sued 2 Live Crew's Luther Campbell, a.k.a. "Luke Skyywalker," for copyright infringement in As Clean As They Wanna Be's "Pretty Woman," a parody of Orbison's 1964 classic. 2 Live Crew prevailed on appeal in both cases, the former in the Eleventh Circuit and the latter in the U.S. Supreme Court. Reluctantly, Campbell did back down on the use of "Skyywalker" when the DJ stage name ruffled Lucasfilm feathers in trademark.
Lately, I've eagerly read more about 2 Live Crew and Luther Campbell in the latter's 2015 memoir, The Book of Luke. The book is full of intriguing revelations from behind the scenes about the band and the author.
Campbell's recounting of his Miami youth is thought provoking on the subjects of desegregation and diversity. Characterizing busing's mixed legacy, Campbell describes a black neighborhood, Liberty City, devastated by the dispersal of its youth, and, at the same time, a broadened cultural competence derived from school and sports with some of the first non-black people Campbell knew. He writes:
Being on Miami Beach, even though the school was using us and just passing us along, I still got an education in how the world works outside the ghetto. Most of the guys from my experience, the guys who never left Liberty City, they didn't learn the same things I did. ... They didn't see how to transform themselves into something more than that. ...
Going to Beach High also made me realize that all white people aren't bad. The system is bad, the game is rigged, but not all people are bad. By going there and playing with white friends, Jewish friends, Cuban friends, it just broadened my horizons. There are good people and bad people in every walk of life. There are racist white people and prejudiced black people, and every individual is his own person.
He drills down further into the rigged game to describe the socioeconomic conditions that undermined the civil rights movement in the long term. In plain language, Campbell explains:
Malcolm X and Stokely Carmichael and the Black Panthers, their whole message was about economic self-sufficiency, about how blacks needed to own and patronize our own businesses, to lift up and take care of ourselves. And I believe that. The problem was that the government had denied us our property rights for so long that we didn't have much to work with. The small value of what we did own, our business district, they destroyed when they put that expressway through. Most blacks didn't own any assets or property to borrow against. Banks discriminated, so we didn't have access to business loans or financial capital that you need to run a business.
Campbell capably carries through with this theme of systemic racism to illustrate its impact on the music industry. Nicknamed "Luke Skyywalker" for his Jedi-like mastery of the DJ table, Campbell and 2 Live Crew, each, were already successful acts when Campbell joined the band and brought it within the sphere of Miami's unique cultural mélange. Rather than navigating the infamously insular and monopolistic world of white-owned record labels, Campbell created Skyywalker Records to be the band's own publisher. He recounts a climate in the media business even more hostile than one might expect to the evolution of music by black artists:
The white executives didn't get us, or just didn't want us. But it was really the black executives, the ones who'd been brought up to run the R&B imprints, who tried to kill hip-hop at the start. To them, rap was too black, too ghetto. It reminded them of life in the streets, the world they'd spent their whole lives running away from. They were caught up playing that respectability politics game for those white-owned companies. They wanted to make R&B into upscale, sophisticated music, show how far blacks had come, show how we were becoming high class. It was the same in the black media. Black radio stations didn't call themselves black anymore. They were "Urban Contemporary." They barely gave rap any airplay at all, or if they did it was only in special shows on the weekends. Ebony didn't put a hip-hop artist on its cover until 1991, twelve years after "Rapper's Delight" sold eight million copies. The white folks over at Rolling Stone had Run-D.M.C. on their cover in 1986, five years ahead of Ebony.
Contrary to rap's stereotype, new music was not about new lows in "nasty" for Campbell. The dichotomous debut of As Nasty and As Clean in 1989 was in fact a label equivalent of how Campbell always had run his DJ business. At least according to his own retelling in the book, Campbell worked hard to put on all-ages shows with security employed to keep out alcohol, drugs, and violence, and then to put on adult-restricted shows later at night. The band proactively labeled its music for indecent lyrics, and Campbell personally communicated to distributors and retailers the admonition that under-age consumers should be permitted to buy only clean content.
Predictably, the dirty content received more media attention and generated more commercial success than the clean; certainly eighteen-year-old me was more interested in the former. Yet in the harsh reaction of public officials to indecency, and in media ignorance of the band's efforts at social responsibility, Campbell saw more than mere market forces at work. In 1988, Alabama record store owner Tommy Hammond was arrested on obscenity charges for selling the 2 Live Crew album Move Somethin' from behind the counter to an undercover police officer. Campbell dates "[t]he legal war against hip-hop" to that arrest and explains further:
The cops, apparently, had been getting complaints from Christian fundamentalist groups about the sale of offensive and vulgar material, and the Alexander City sheriff Ben Royal was, I suppose, a real God-fearing, Bible-thumping, easily offended type of guy.
At first I wasn't even mad. I was genuinely confused. Dolemite and Skillet & Leroy and all these comedy records we were sampling, those had been around for years. They were filthy as hell, real nasty, and nobody had ever tried to censor them. Andrew Dice Clay was doing his stand-up act and putting out his albums at the same time we were, and his routines were just as raunchy as what we were doing. Nobody was getting arrested for selling his albums. What was going on? My father and my uncle Ricky taught me a lot about racism and how it works, but I was about to learn a lot more. ...
Dice is white, you see, so he could say whatever he wanted. Parents might protest him, and they did, but he was a white man making a lot of money for a white-owned corporation; nobody was going to take away his right to free speech. All those old chitlin circuit albums we sampled, they were dirty, but white people never listened to them. They didn't cross the color line, so nobody really cared. ... Nobody cared if we were corrupting young black minds with our evil jungle music. ... But Tommy Hammond's record store was the record store serving the white side of town. 2 Live Crew had done the one thing you're never supposed to do. We were black men coming across the color line talking about sex. We were black men in the company of whites, and we'd forgotten to lower our heads and shuffle away.
Campbell in the book goes on to trace his 2 Live Crew and Luke Records career through gang violence bleeding into the concert arena, stand-offs with law enforcement and protestors, and famous and less famous lawsuits. He reflects ultimately on contented family life and the privilege of giving back to Liberty City. I won't spoil all the fun; the ride is worth the cover price.
For my part, it's gratifying to better know the real Luke Skyywalker, both the Jedi knight who inspired me when I was a kid, and the Luther Campbell he became. His tastes have changed, too: as he puts it in the book, a little less groupies and Hennessy, a little more football practice, fretting over SATs, and "raising hell about housing and education." Every individual might be his own person, but there sure seem to be some universal truths to getting older.
Luther Campbell turns 60 today, December 22, 2020. The book is Luther Campbell, The Book of Luke: My Fight for Truth, Justice, and Liberty City (Amistad 2015).
From GMA newsletter, vol. XVI, no. 1, fall 2020, at 4, my photo at right.
Earlier this year, I wrote about the short, strange life of statues in Guinea-Bissau, and, in particular, the strange-upon-strange birth, disappearance, and re-creation of a statue of U.S. President Ulysses S. Grant in an abandoned park in the "ghost town" of Bolama Island.
In March, I reported that, since going missing mysteriously in 2007, the Grant statue "was recovered in pieces, and authorities ultimately restored him."
Scaturro and the GMA dug into the mystery of the statue's reappearance in the middle of the barren park that was once Guinea-Bissau's glorious "Praça Ulysses S. Grant." (As to why there is a monument to a U.S. President at all on this West African island, see my March post.) The pieces of the original statue never have been recovered.
The latest GMA newsletter (vol. XVI, no. 1, fall 2020) explains how the present likeness of Grant came to be in 2018:
This occurred at the initiative of then-Governor Quintino Rodrigues Bone. Approximately 100,000 CFA francs (roughly U.S. $180) were spent from the local government fund to obtain supplies for the work—a harness, cement, gravel, and colorless paint. With these materials, a local artist, Luizinho (Zinho) Ká, constructed a cement statue. He did not receive any compensation for his work.
....
According to the State Department, there is local interest in replacing the cement statue with a new bronze replica of the destroyed statue, but no funding to do so.
My dispatch from Guinea-Bissau came just before the cancel-culture toppling of monuments across the United States. Sadly, the fall 2020 GMA newsletter also reported the vandalism and toppling of a Grant bust in San Francisco's Golden Gate Park in June.
Scaturro said, "It is ironic that a monument to Grant was restored in Guinea-Bissau soon before another was torn down in San Francisco. Americans who do not respect our heritage can learn a lesson from the people of Guinea-Bissau."
Anyone can join the New York-based Grant Monument Association or visit the General Grant National Memorial in New York (check for covid updates). Scaturro wrote in a statement on Grant's civil rights record:
As the principal author of Union victory during the Civil War, Grant was the principal enforcer of the Emancipation Proclamation. As president, he secured laws that enforced the recently ratified 13th and 14th Amendments and acted decisively to ensure the ratification of a 15th Amendment that would ban racial discrimination in voting. His achievements included five enforcement acts, the creation of the Justice Department, and the Civil Rights Act of 1875, which desegregated various modes of public accommodations and transportation. Grant repeatedly employed military intervention to enforce Reconstruction and crushed the 19th-century Ku Klux Klan. Among America’s top leaders, from military commanders to presidents, none has a more sweeping record on civil rights.
The GMA hosts periodic programs of interest to the public and historians. On November 19, at 7 p.m. US EST, the GMA will host an online colloquy, "A discussion of the partnership between General Ulysses S. Grant & General William T. Sherman," featuring General David Petraeus and Ulysses S. Grant Association Executive Director John Marszalek. GMA members receive registration information.
Social stability in Poland has been increasingly shaky since populist politics has threatened the independence of the judiciary in recent years. Professor Leah Worthamwrote about the issue and kindly spoke to my Comparative Law class one year ago (before Zoom was cool).
Recently tensions have reached a boiling point. In October, the nation's constitutional court outlawed nearly all abortions (Guardian). Protestors have taken to the streets in the largest numbers since the fall of communism, The Guardian reported, confronting riot police and right-wing gangs.
Friend and colleague Elizabeth Zechenter, an attorney, visiting scholar at Emory College, and president of the Jagiellonian Law Society, writes: "Poland is in upheaval, after the Constitutional Tribunal restricted
even further one of the most strict anti-abortion laws in Europe. I
and several other Polish women academics
have gotten together, and we created a webinar, trying to offer an
analysis, legal, cultural, sociological, etc."
The scholars' webinar is available free on YouTube. Below the inset is information about the program. Please spread the word.
Women Strikes In Poland: What is Happening, and Why?
Since the fateful decision of the Polish Constitutional Tribunal (Trybunał Konstytucyjny or TK) on October 22, 2020—further restricting one of the most restrictive anti-abortion laws in Europe—Poland saw massive, spontaneous demonstrations and civic protests in most cities, small and big, and even villages. Protests have been continuing since the day of TK’s decision and show no signs of abating.
To explain what is happening, we have assembled a panel of academics and lawyers to clarify the current legal situation, to analyze the scope of new anti-abortion restrictions, to explain whether this new law may be challenged under any of the EU laws applicable to Poland, and what might be political implications of doing that, as well as offer a preliminary cultural, linguistic, anthropological, and sociological analysis of the recent events.
Contents
0:00:00-0:03:17 Introduction: Bios of Speakers, Disclaimers
Legal Panel
0:03:17-0:26:00 Elizabeth M. Zechenter, J.D., Ph.D., "October 2020 Abortion Decision by the Constitutional Tribunal: Analysis and Legal Implications"
0:26:00-0:46:00 Agnieszka Kubal, Ph.D., "Human Rights Implication of the Decision by the Polish Constitutional Tribunal from 22 October 2020"
0:46:00-0:59:00 Agnieszka Gaertner, J.D., LLM, "Abortion Under EU Law"
Panel: Culture and Language of Protest
0:59:00-1:31:00 Katarzyna Zechenter, Ph.D., "Uses of Language by the Protesters, the Polish Catholic Church, and the Ruling Political Party 'Law and Justice' (PiS)"
Panel: Sociological and Anthropological
1:31:00-1:49:00 Joanna Regulska, Ph.D., "Struggle for Women's Rights in Poland"
1:49:00-2:12:00 Helena Chmielewska-Szlajfer, Ph.D., "Augmented Reality, Young Adults, and Civic Engagement"
Praise for the Webinar
"Wow! That was, without a doubt, one of the most informative, fascinating, engaging, and powerful webinars I have ever attended."
"All of us in your virtual audience 'voted with our feet' ... i.e., it is generally considered that 90 minutes is an audience's absolute maximum attention span for an online webinar, particularly since everyone these days is simply 'Zoomed-out' (over-Zoomed), in this era of COVID-19. But YOUR audience stayed with you for a marathon 2 hours and 45 minutes (and it felt like a sprint, not a marathon)!"
"A high tribute to you and your sister (not fellow!) panelists."
Disclaimers
The webinar was organized impromptu in response to numerous calls to analyze Poland's ongoing protests. The goal of the webinar was to provide a non-partisan review of the evolving situation and better understand the legal, cultural, and sociological underpinnings of the Constitutional Tribunal’s anti-abortion decision that resulted in such massive country-wide protests.
The opinions expressed in the seminar are those of the speakers alone who are not speaking as representatives of any institution; the main goal has been to advance understanding of the situation.
Given the urgency to offer at least a preliminary analysis (and in light of the continuously evolving situation), most speakers had less than 24 hours to prepare their remarks. We apologize for any imperfections.
The employee, a Hispanic woman, was a clerical worker with responsibilities well into the paralegal vein. She had worked in the attorney's office for about three years when she quit and sued for intentional infliction of emotional distress (IIED), hostile-work-environment sexual harassment, and constructive discharge. Finding the defendant attorney liable, the jury awarded $20,000 on the IIED claim, $20,000 on the sexual harassment claim, and $150,000 in punitive damages.
Collaterally, plaintiff's husband was found liable in assault, for which defendant was awarded $1,000, and was held responsible for illegal wiretapping.
The Appeals Court affirmed plaintiff's verdict. Application of law in the case was routine. The court upheld the verdict as against defendant's erroneous assertions (1) that worker's compensation superseded IIED; (2) that the jury had doubled up on its calculation of damages; (3) that the jury was misinstructed on punitive damages; (4) that evidence of defendant's losses was improperly excluded; (5) that the evidence failed to support the jury's findings of causation and damages; and (6) that plaintiff evidence not produced in discovery was admitted at trial without sufficient remediation.
None of that is why I comment on the case here. Rather, I want to republish the court's recitation of the facts, because they constitute a shocking portrait of a workplace that no person should have to endure for one day, much less three years. Please keep in mind that the defendant here is a member of the bar. And be warned that this text is not suitable for kids.
Viewing the evidence with respect to the counts of the plaintiff's complaint for which the defendant was found liable, in the light most favorable to the plaintiff, the jury could have found as follows. The plaintiff was employed as a legal assistant at the law office of defendant, an attorney with a solo practice in Essex County. When she began working there in 2012, the plaintiff was the defendant's sole employee, but the defendant expanded his staff after hiring her.
The plaintiff's duties evolved over her years of working in the office, from answering the office telephones, handling the mail, and scheduling meetings, to working on interrogatories, doing legal research, and discussing client settlements. The plaintiff's desk was in the reception area of the office, across from the defendant's office. When the defendant was in the office, he worked directly with the plaintiff as her direct supervisor.
The plaintiff's complaint alleged, and the jury could have found, that over the course of several years the defendant made numerous comments and engaged in repeated behaviors that constituted tortious misconduct. This conduct occurred at the defendant's office, in the course of the plaintiff's employment. The defendant verbally attacked the plaintiff, calling her stupid and a moron. The plaintiff's coworkers testified that the defendant often belittled the plaintiff in the office, shouting uncontrollably at her and screaming in her face. When she tried to defend herself, he would yell at her to shut up and continue to scream at her. The defendant's screams could be heard even in offices on the floor above the defendant's office. When she was not present, and the defendant was angry with her, he would describe the plaintiff as a bitch, a slut, or a whore. He would also say she was crazy. There was a jar kept in the office into which the defendant would place money each time he called the plaintiff stupid.
Much of this misconduct related to the plaintiff's gender and race. The defendant told the plaintiff that men were intelligent while women were stupid; men were "superior" to women. He instructed the plaintiff to clean up after him in the office, including the mess left behind after his meals, because "that was women's work." The defendant also made comments about the plaintiff's and other female employees' appearances at work. He referred to one female employee as "Miss Dominican Republic." The defendant, at times without prior permission, photographed the plaintiff and her female coworker for the purpose of showing his friends "that I have nice girls here at the office." The plaintiff and another employee testified that the defendant would stand close behind the plaintiff while she was at her desk and look at her cleavage. When she asked him to stop staring at her breasts, he responded that he could not help it and that she should wear other clothes to work. The plaintiff was also instructed to pick up condoms and lubricant for the defendant when she ran errands for him. The defendant would have the plaintiff go through his e-mails in the office, including pornographic advertisements; he once sent a pornographic e-mail to the plaintiff's daughter.
In explicit detail, the defendant would describe his sexual encounters to the plaintiff at the office. The defendant described himself to the plaintiff as "always horny," asked her to comment on his girlfriend's breasts, and repeatedly described sex with his girlfriend to the plaintiff. He recounted a trip to the Dominican Republic in which he said his hotel room "came with [a] girl" and that "for $20 he got full service. Blow job and everything." He described women in the Dominican Republic as "a bargain." He frequently bragged to the plaintiff of a trip to the Philippines in which he claimed he had sex with "cheap" young girls. When she asked him to stop, he ignored her or told her that she had to listen to this commentary because he paid her.
In speaking to the plaintiff, a Hispanic woman, the defendant made numerous racist remarks to her about African-American and Hispanic people. He would refer to his Hispanic clients as "drug dealers" and say that African-Americans were "stupid" and white people were superior. She testified that he used a number of racial slurs, referring to his Hispanic clients as "F-ing Spic[s]" and "calling [black] people n[word*]." When she asked him to stop making such comments, he disregarded her or told her to shut up and listen to him because he was her boss. The plaintiff testified that the defendant also made her sit with him and read his e-mails consisting of racist comments and "jokes" about black and Hispanic people. He often made fun of her accent and told her that her brown eyes were "dirty" compared to his "superior" blue eyes, which were "beautiful."
The plaintiff ultimately left the defendant's employ on October 22, 2015, after an incident with the defendant in the office. The defendant had been yelling at the plaintiff for failing to follow his instructions, and when she tried to explain what she had done, he repeatedly screamed at her to shut up. She informed the defendant that she was not feeling well and needed to go home, and the defendant told her, "Get the hell out of my office. Don't ever come back if you don't say sorry to me." The plaintiff left without the intention of returning, and her employment with the defendant ended.
....
After the plaintiff left the defendant's office, her husband went to the office himself to confront the defendant about his treatment of the plaintiff. After turning on his cell phone camera to record this encounter and placing the cell phone in his shirt pocket, the husband entered the office and moved toward the defendant, who was sitting at the front conference table talking on his cell phone. The husband sat down at the conference table near the defendant and told the defendant repeatedly to put his cell phone away. The defendant and the plaintiff's husband began to argue at increasing volume about whether the defendant would put the cell phone away, and the husband told the defendant to listen to him. The defendant, feeling threatened, retreated to his office and closed the door, repeatedly telling the husband to leave. The husband opened the defendant's office door, and the defendant slammed it shut and called the police.
These frightening facts embody the IIED rule of "utterly intolerable in a civilized society." In our cancel culture, so replete with persons eager to be offended and to castigate their offenders with the force of law, we would be well advised to remember people who are truly and terribly victimized. Watering down our civil rights law by giving eggshell plaintiffs ready access to administrative remedies, in disregard of the rights of respondents, is likely to result in over-corrective reforms that allow perpetrators of this despicable magnitude to escape accountability.
The Massachusetts Supreme Judicial Court last week vacated and remanded the trial court's judgment for police in a civil suit with racial overtones.
Authoring the unanimous opinion, Justice David A. Lowy characterized the case as "disturbing." The court recited the facts as most favorable to the plaintiff, Mark S. Tinsley, the non-moving party. According to that recitation, Tinsley, who is African American, was stopped by Framingham, Massachusetts, police for speeding in 2012. Suspecting Tinsley of hiding something, police ordered Tinsley from the car, and he refused. The traffic stop by two police officers became a physical struggle with five to pull Tinsley from the car. Once he was out of the car, on the ground,
several police officers began beating him. Tinsley did not resist. He tried to put his hands behind his back so that the police officers would handcuff him and thus, he thought, stop hitting him. The police officers did not stop. [One officer] struck Tinsley's collarbone and upper shoulder, and stomped on Tinsley's left hand. [A second officer] sprayed Tinsley with pepper spray. [A third officer] called Tinsley a "fucking n[word]" [footnote: "At trial, [the third officer] denied that he or any other police officer swore at Tinsley or called him 'any names.'"] and kicked Tinsley in the head. While Tinsley was on the ground, an officer handcuffed him [footnote omitted quoting Tinsley's trial testimony]. Tinsley suffered a broken nose, a broken finger, and a wound on the side of his head that required stitches.
Tinsley was convicted on counts including assault and battery (criminal), carrying a dangerous weapon ("a spring assisted knife"), and resisting arrest. While criminal charges were pending, Tinsley sued for civil rights violation and tort claims including assault, battery, intentional infliction of emotional distress, and false arrest. Upon two motions, the latter decided after the conclusion of the criminal proceeding, the trial court entered judgment for defendants police and town on all counts.
The question on appeal was whether the trial court properly recognized in the civil proceeding the collateral estoppel effect of Tinsley's criminal conviction. The doctrine of collateral estoppel precludes a later civil court from re-trying facts and conclusions of law that were determined by jury and court in an earlier criminal proceeding. Thus, after conviction, a defendant may not argue his innocence in a later case.
However, the facts deemed determined in the earlier criminal proceeding are limited to the facts that supported conviction. Tinsley argued, and the Court agreed, that the jury's conviction was not inconsistent with Tinsley's claim of excessive force for the beating he endured on the ground, outside the car, after his arrest. The Court reasoned that Tinsley was placed under arrest when he was seized inside the car. Insofar as Tinsley was resisting arrest inside the car, then, collateral estoppel pertains, precluding suit on the tort of false arrest. But the jury may have based its conviction on a fact pattern that ended before Tinsley was on the ground. So the facts of the beating, occurring after arrest, remain arguable in the civil case.
The Court explained,
Even where the use of force to effect an arrest is reasonable in response to an individual's resistance, the continued use of force may well be unreasonable, as an individual's conduct prior to arrest or during an arrest does not authorize a violation of his or her constitutional rights.... To hold differently would implicitly permit police officers, in response to a resisting individual, to exert as much force as they so choose "and be shielded from accountability under civil law," so long as the prosecutor could successfully convict the individual of resisting arrest.
Accordingly, the Court vacated judgment for defendants on the civil rights claim and the assault, battery, and IIED counts, and remanded the civil case to proceed. The false arrest claim was properly barred.
The case is Tinsley v. Town of Framingham, No. SJC-12826 (Mass. Sept. 17, 2020). Chief Justice Gants participated in deliberations before his death.
Thanks to the Duke (University) Screen/Society, yesterday, I virtually attended a screening and discussion of the 2020 film from Vertical Entertainment, Miss Juneteenth.It is an insightful and gratifying film, so I want to make this note of it. In our covid era, it's easy to miss new releases.
Written and directed by Channing Godfrey Peoples, Miss Juneteenth is the story of Fort Worth, Texas, teen Kai (Alexis Chikaeze) and her mom, Turquoise Jones (Nicole Beharie), as Kai prepares to participate in the Miss Juneteenth beauty pageant, a pageant that her mother happens to have won, back in the day.
Yet that description unfairly oversimplifies the film, as would any description that confined the story by race or class. The film richly portrays Turquoise and Kai's lives. It explores mother-daughter conflict, romantic entanglements, and socioeconomic struggles. Simultaneously, the film comments softly, not heavy-handedly, on pageant culture, civil rights, the American dream, and, of course, never trumpeted yet omnipresent, the glorious but unfulfilled promise of freedom marked by Juneteenth.
In a striking scene set in a Juneteenth museum, the young contestants are being oriented on Juneteenth history by a passionate docent when the schoolmarmish pageant wrangler directs the kids' attention to framed pictures of past Juneteenth queens. The docent was speaking to the legacy of slavery, driven out of the American South, while the pageant director educates the girls on such etiquette nuances as table manners imported with the Pilgrims. The girls' gazes drift to the latter display, which, I contend, speaks subtly but powerfully to how African-American communities have long wrestled with the fine line between cultural subjugation and assimilation that courses through American history from Reconstruction to Civil Rights to present day. I'm reminded at once of Mike Pence's oddly third-person reference from Fort McHenry in August to "American people ... standing with ... our African-American neighbors" and Dulce Sloan's missive this week on The Daily Show with Trevor Noah, "The Messed Up History of Black Hair in America."
A character in the film once comments, "Ain’t no American dream for black folks.” As we wondered at the latest news of government ineptitude yesterday morning, contemplating how our salaries are going down while our workloads are going up, my wife speculated that the anger and resentment that people both black and white feel toward the lack of opportunity for upward mobility in this country is really much the same. The difference, she suggested, is that black people have always known that meritocracy is an American myth, while white people are just figuring it out. (She cited Michael Sandel on WBUR talking about his Tyranny of Merit.)
Miss Juneteenth has given me a lot to chew over. I haven't even mentioned my own daughter's foray into the pageant world when she was a teen: Miss Rhode Island High School 2016! In Miss Juneteenth, as Turquoise is working herself to death to scrape together the money to support Kai's pageant bid, Kai's father, Ronnie (Kendrick Sampson), shakes his head: "An $800 dress just don’t make no sense to me."
Word for word, I swear, Peoples stole that line from me.
The USWNT always faced an uphill battle on the numbers. To generalize, the women could not deny, they were paid more than the men, dollar to dollar. The devil lies in what "more" is.
The USWNT has been fantastically successful. The team has won the World Cup of women's soccer four times, most recently in 2019 in France (I saw a match from a Paris Fan Zone, and my daughter went to one) and won the Olympic gold four times. The squad has been a global force to be reckoned with since its inception in the 1980s. Moreover, many a football fan, such as myself, will tell you that the women's talent is a marvel to behold on the pitch, the United States having substantially defined the women's game for the world.
Direct comparison between women's and men's play is inevitably uneven, because the style of play in the women's game is different from in the men's, apples and oranges. And worldwide, many soccer-power nations have failed to invest in developing female talent, so any given head-to-head is not necessarily taking place on a level playing field. Nevertheless, by many a worthwhile measure, including technical proficiency, the women indisputably are better than the men—who failed even to qualify for the 2018 World Cup in Russia.
The women's superiority was exactly their problem in the equal-pay litigation. A plaintiff bears the burden of making out a prime facie case of pay disparity. Compensation in professional soccer in the United States is mostly based on the principle of pay for performance. The women played more than the men and achieved more than the men, so they were paid more. Their burden, then, was to show, in essence, that their pay rate was relatively lower than the men's.
U.S. civil rights law is, thankfully, sufficiently sophisticated to account for disparity based on pay rate. As U.S. District Judge R. Gary Klausner explained in the instant case, quoting precedent, it can't be that "an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA ... as long as the woman negated the obvious disparity by working twice as many hours." However, the parties disagreed about how to calculate rate so as to compare apples to apples.
Hardening defenses on their polar positions, each side posited a favorable calculation. Plaintiffs urged the court to look at women's compensation through the lens of the men's contract. If the women had won the World Cup, etc., under the men's contract, they would have been far more richly rewarded. Defendant U.S. Soccer urged the court to look at the numbers in gross. The women simply make more than the men, and even though the women play more matches, they make more than the men on a per match basis, too.
Both positions are counterarguable. The women's and men's contracts are both the result of collective bargaining, and a lot goes into a bargaining contract besides its raw numbers. Simply pumping the women's performance statistics through the men's contract formula ignores the broader context of each contract, or collective bargaining agreement (CBA), and the inter-dependency of its compensation formula with other bargained-for terms: like squeezing an apple with an orange juicer.
At the same time, the women's argument in converse challenges the defendant's attempt to aggregate numbers. Maybe the women are paid more per match because they are better soccer players, which the evidence supports. That doesn't mean that they are paid so much more per match relative to the disparity in talent and achievement between the women and the men. To analogize, oranges might cost more than apples because oranges taste twice as good. But an orange for $1.20 is still a bargain relative to an apple for a dollar.
The court's recitation of the women's collective bargaining process is painstaking, packing in plenty of detail for those who want it. In sum, considering that the plaintiffs bear the burden to make out a prima facie case of discrimination, the court found the defendant's position more persuasive. The contractual context was really the clincher. Judge Klausner wrote (footnotes omitted):
This history of negotiations between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the "insurance" that WNT players receive under their CBA.
[¶] One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the MNT CBA, under which players are only compensated if they are called into camp to play and then participate in a match. ... [T]here is indisputably economic value to this type of "fixed pay" contract, as compared to a "performance pay" contract. Merely comparing what WNT players received under their own CBA with what they would have received under the MNT CBA discounts the value that the team placed on the guaranteed benefits they receive under their agreement, which they opted for at the expense of higher performance-based bonuses.
There are problems with the court's approach, including prominently that there are systemically discriminatory reasons that the women elected for the terms they did. Many male players are able to make a living as athletes, so playing for the national team is a bonus. Women's soccer meanwhile has faltered as a nationwide business model, for arguable reasons that must include the ingrained underdevelopment of women's athletics. That makes it harder for a woman than for a man to play at the national level, even if the two squads have the same number of seats.
USWNT selfie with the President, 2015 (White House photo)
Consider that a man who plays professional soccer is incidentally training for the U.S. national team while he's at work. And his day job gives him time off, sometimes months, to play for the national team. A woman with a collateral occupation that is not professional soccer cannot invest the time and energy in the physical training and playing time required to be a globally competitive athlete. Of course, some women do find work in professional soccer, but far fewer than men who do. Characteristically, the USWNT's star players bargained for better job security not just for themselves, but to support their teammates. And that's not all selflessness; their investment in part explains the ongoing developmental success of the USWNT over athletic generations.
That doesn't mean Klausner is wrong on the law. The facts of the case show something we already know, which is that historically rooted discrimination can persist well beyond demonstrable intention, is exceptionally resistant to eradication, and is more susceptible to redress socially and politically than judicially. There are good reasons why the standard to establish a civil rights violation of federal law is high. Failure to surmount that bar in court does not establish that the plaintiff is right or wrong as a social or moral matter.
There were other claims in the case, and the plaintiffs' cause is not formally over, even notwithstanding appeal. The court's treatment of the plaintiffs' claim of discrimination in turf is a worthwhile read. Female footballers often play on artificial and unstable surfaces, resulting in physical injury and career wear and tear, while the USMNT always plays on grass. Despite the disparity in fact, the plaintiffs were unable to prove the discriminatory motive, or intent, that civil rights law requires.
The women's case persists upon some ancillary claims related to fringe benefits, such as better hotels and more frequent charter flights for the men's team than for the women's. There might not be enough there for the women to want to keep the litigation going. Plaintiffs probably will ask Judge Klausner to allow interlocutory appeal to the Ninth Circuit directly from this partial summary judgment, and I expect he will.
The case is Morgan v. U.S. Soccer Federation, No. 2:19-cv-01717 (C.D. Cal. May 1, 2020). Court Listener has the key documents.
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