Judges Who Blog

gavelI was surprised to find out this week from LawSites that I may be one of only three judges in the United States who “blog.”

 I am an appellate justice for a Native American tribe in Northern Nevada. I work for a sovereign nation that has its own court and code of laws but  is bound to the United States by a complex series of federal laws and treaties.  I formerly worked as a tribal court judge for another tribe.

 I don’t blog about being a judge, per se, though that experience undoubtedly informs my blog.

I write about employment discrimination, workplace bullying and abuse – from a worker’s perspective.  I began blogging after I took a job at a national domestic violence organization and became a target of a bullying supervisor.  I have since written a book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

 I find it appalling that the United States is one of the few industrialized countries in the world that does not protect workers from workplace bullying,  which is a widely recognized form of  violence that can severely impact a target’s health, lead to physical violence,  and costs society billions each year in lost work hours, higher medical costs, social services expenditures, etc.

 Back to blogging judges  …

 It seems a shame to me that more judges don’t blog. Their silence supports the status quo, which works largely to benefit corporate interests, the powerful and the rich (who contribute to political campaigns).   

 I would argue that silence does not serve the judiciary.  As Alexander Hamilton stated in The Federalist Papers,  the judiciary is the weakest branch of government because it controls neither sword nor purse.  The judiciary has utterly failed to make its case to American taxpayers for  appropriate funding.

 According to the American Bar Association,  most states have cut court funding by at least ten percent in recent years. Many states have stopped filling judicial vacancies and/or laid off judges. Many states have frozen or cut the salaries of judges or staff, despite ever increasing caseloads.  Many courts have reduced their opening hours or even close on some work days.

 It’s almost like the painful post-Internet downfall of the Post Office, but there is no satisfactory alternative to the court system for the vast majority of Americans.

 By its silence, the judiciary fails in particular to effectively champion the plight of people who need a just resolution of civil disputes. Civil courts are largely inaccessible to the poor and, increasingly, to the middle class. This has led to injustice on a massive scale. Meanwhile,  taxpayers become more disillusioned, which makes the judiciary even weaker.  

 I suspect that some people find the judiciary  to be arrogant and secretive – perhaps because its leaders on the U.S. Supreme Court refuse to allow their proceedings to be televised and it’s virtually impossible to work there unless you graduate from an Ivy League law school.  

Also, judges seem to think – admittedly with some justification – that they will never be promoted if they voice a public opinion on anything that is  more substantial than the weather.

 But the biggest disservice that is done by the silence of the judiciary involves the public perception of the work of a judge.  

 Many people don’t realize that being a judge is really hard work.  Imagine trying to make a good decision,  with the clock running,  rarely enough reliable information or too much conflicting information to be helpful, with emotions running high on both sides.  Even if the stakes seem low to you or me, they are always high to the litigants.

 A few years ago, a judge in Reno, NV, was shot while standing in his office through a plate glass window  by a sniper crouched in a parking lot across the street from the courthouse. The sniper was a litigant in a divorce case who had just murdered his wife. The judge was presiding over that case.   

 A good judge must be strong enough to make the right decision when it does not serve that judge’s interests. When it goes against the grain of powerful people who feel entitled to more justice than they deserve. A good judge must be strong enough to do the right thing when it could alienate a campaign donor or someone with power over the judge. It can be  like a politician from a “red” state  who has to vote on gun control every day.

Justice is the elusive goal that good judges strive to reach in their deliberations.  But justice is often a moving target. It can be difficult to find the bulls-eye. If you make a “mistake,” there is  an appeals court that will point it out.  Sometimes you make the right decision legally but you know in your heart that it isn’t right on a moral or human level.  You don’t forget those cases.

 There is so much about the judiciary that people don’t know because the judiciary has not told them. I think more judges blogging might help people understand that the course of justice is often imperfect, even when everyone is working in good faith toward a just resolution.

Knowing that so few judges blog makes me feel oddly vulnerable – like the soldier who stands up in a field while bullets whistle past.  Alas, it may be  time to  give up any expectation of promotion to the federal bench.  

 

 

The Incredible Shrinking EEOC

incredible shrinking manThe U.S. Equal Employment Opportunity Commission (EEOC )  received 99,412 private sector workplace discrimination charges during fiscal year 2012 but determined that only 4.3 percent – or 1,800 cases – were based on “reasonable cause.”

That tiny number actually reflects a slight increase from 2011, when the EEOC found that 4.1 percent of cases (1,707 cases) were based on reasonable cause. This was the lowest number since 1998.

If the EEOC  concludes a case is not based upon reasonable cause, it will not  pursue the case. The charging party can still bring a private court action – if he or she has the money to pursue litigation and can find an attorney who will take an employment discrimination case in the face of a federal judiciary that is  hostile these types of cases.

The number of charges determined by the EEOC to have “reasonable cause” has steadily declined from a high of 12 percent in 2001, when the EEOC found that 3,012 cases were based on reasonable cause.

Does this indicate that more workers  are filing bogus charges against their employers?

According to the EEOC, a finding of “reasonable cause” means the EEOC believes “that discrimination occurred based upon evidence obtained in investigation.” A finding of “no reasonable cause” means the EEOC found “no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation.”

Linguistics  notwithstanding, the decline in cases that the EEOC deems are based on ““reasonable cause” more likely reflects  the  EEOC’s changing priorities  in the face of budget cutbacks. The EEOC last year adopted a strategic plan to focus more upon systemic patterns of discrimination. Meanwhile, the EEOC is attempting to whittle down a massive backlog of more than 70,000 cases.

The EEOC reports that in 2012 it filed a total of 122 lawsuits, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits

The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.The year-end data show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges.

The EEOC lost about nine percent of its staff as a result of budget cuts in the past two years, according to the American Federation of Government Employees (AFGE). Gabrielle Martin, president of AFGE’s National Council of EEOC Locals, No. 216, warns  that threatened budget cuts in March would effectively cripple the EEOC and mean that “the United States would cease to have enforceable civil rights in the workplace.”

Overall, the EEOC  in 2012 secured monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities – mediation, settlements, conciliations, and withdrawals with benefits. The number of charges resolved through successful conciliation, the last step in the EEOC administrative process prior to litigation, increased by 18 percent over 2011.

The fiscal year runs from Oct. 1 to Sept. 30.

OK for Dentist to Fire Object of Desire

flossIn a small office, an employee often has no where to go  when she is mistreated by an employer.

The perils of this predicament are amply demonstrated in a recent ruling by the Supreme Court of Iowa.

The all-male Court  ruled that a dentist did not violate sex discrimination laws when he fired his long-time dental assistant because he (and his wife) was afraid he would have an affair with her.

The  Court upheld a lower court’s grant of summary judgment  in the case of Nelson v. Knight, No. 11–1857 (Dec. 21, 2012). This means the Court concluded  there was absolutely no way a jury could decide against Dentist James H. Knight and hold in favor of his assistant, Melissa Nelson.  Therefore, the case was dismissed before  trial.

Knight said he fired  Nelson, who had worked for him for ten years,  after his wife insisted that Nelson had to go. He gave Nelson one month’s severance.

 Knight admits that on several occasions he asked Nelson to put on a lab coat because her clothing was too tight, revealing and “distracting.”  Nelson denied that her clothing was tight or in any way inappropriate and said she complained to Knight at one point that his criticism was unfair.

 Nelson also recalls that  Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. The Court found it significant that  Nelson did  not remember ever telling  Knight not to text her or telling him that she was offended.

 When Knight’s wife found out that her husband and Nelson had been  texting each other, she confronted her husband and demanded that he terminate Nelson’s employment.  The Court finds it significant that Knight and his wife  consulted with the senior pastor of their church, who agreed with the decision.

After the firing, Knight told Nelson’s husband that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson charged that Knight had discriminated against her on the basis of sex in violation of the Iowa Civil Rights Act. She contended that she would not have been fired if she were male. Nelson did not raise the issue of sexual harassment.

 The Court states in its decision that the question  to be decided was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.”   In this case, the Court held that  Knight’s decision was driven by individual feelings and emotions regarding a specific person. The Court concluded Knight’s decision was not gender-based or based on factors that might be a proxy for gender.

The Court states that an employer does not violate sex discrimination laws by ” treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

 The Court did concede that it might be possible to infer that gender was an issue if an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues.

 So if  Knight repeatedly fires future assistants because he thinks he might want to have an affair with them, or if Knights’ wife demands that he fire future assistants because she thinks he might want to have an affair with them,  presumably a Court could find discrimination  on the basis of sex.

Meanwhile, Melissa Nelson is unemployed, with one month’s severance.

This may not come as a surprise to some readers but, according to the Court’s web site, there are no women justices on the Iowa Supreme Court. The seven justices are Chief Justice Mark S. Cady, David S. Wiggins, Daryl L. Hecht, Brent R. Appel, Thomas D. Waterman, Edward Mansfield and Bruce Zager.  Justice Mansfield wrote the opinion.

Workplace Bullying: The Big Picture

I am pleased to be quoted in a  Businessweek  feature on the problem of workplace bullies but I also find it frustrating that  the American media consistently fails to see the big picture about this serious national problem.

Workplace bullying is not just about misguided individuals who bully co-workers and subordinates. More importantly, it is about American employers.

American employers permit bullying in the workplace because there is no law or regulation that requires them to stop it – despite the fact that it is widely recognized as a form of workplace violence. Other industrialized countries recognize workplace bullying as an important public health and safety problem. And decades of research show that workplace bullying causes targets to suffer potentially severe emotional and physical harm.

Only employers can stop workplace bullying. Employees who are targeted for bullying generally are completely helpless to do anything about it, especially if the bully is a superior.

Why don’t employers stop it?

Because in America, workplace bullying is seen as a prerogative of the employer. In fact, some unscrupulous employers use bullying strategically to accomplish a goal – such as to avoid unions, downsize without paying unemployment compensation, or to evade a potential worker’s compensation claim. In my own practice of law, I saw many cases where employees were bullied and driven out of the workplace by an employer after they complained about wage theft (which, by the way, is epidemic in the United States). 

Why don’t workers do anything about it?

The vast majority of American workers are completely priced out of the American legal system and,  besides, federal judges (who have lifetime tenure barring bad behavior) are appallingly ignorant and unsympathetic to claims of  employment discrimination and Intentional Infliction of Emotional Distress.

So one in three or four American workers are bullied by employers, either directly or because the employer tolerates or fails to stop an abusive workplace environment.  

This all  stands in sharp contrast to other industrialized countries – including the European Union – where authorities recognize workplace bullying as a major problem and have placed the burden of eliminating workplace bullying squarely on employers.

Activitists in the United States have been spinning their wheels for more than a decade in an attempt to get a state-by-state solution to the problem of workplace bullying but the only real answer lies with the federal government.  States should act – and I hope they will act – but this is not the solution.  Today, many states will do virtually anything to attract new business; it is wishful thinking that they will voluntarily pass a law protecting targets of workplace bullying  if they can gain any competitive edge by not doing so. 

Meanwhile, the U.S. Occupational Safety and Health Administration has acknowledged the problem by enacting workplace bullying protections for its own employees but it has failed to take any steps to protect the health and safety of millions of American workers across the nation.

This blog is a member of the coalition Protect-US-Workers that has launched a petition drive asking U.S. President Barack H. Obama and U.S. Secretary of Labor Hilda L. Solis to formulate a national response to the problem of workplace bullying.

Talk to your legislators. Sign the petition.