Posts Tagged ‘homosexuality’

Workplace religious bullies are not protected by discrimination laws, but sometimes, neither are their victims

June 19, 2013

The notion that workplace discrimination laws are easy to exploit is pure propaganda. “What do you mean, she’s suing for discrimination? She was just a bad worker!” “Nobody’s racist anymore – why do we even have racial discrimination laws anymore?” Easy statements, with a certain no-nonsense appeal, but the fact is that plaintiffs in employment discrimination cases face long odds in the courtroom. At the federal level, plaintiffs in job discrimination suits win just 15% of the time (against a 51% plaintiff win rate for all civil cases at the federal level); when the appeals process is factored in, that rate can be as low as 2%. Because of these high risks, plaintiffs’ lawyers are often hesitant to charge on a contingency basis, and so plaintiffs might find them out hundreds or thousands of dollars in legal fees before they even get to trial – and then you keep spending until you either settle (almost universally a better solution that waiting for a verdict) or, lose at trial, lose on appeal, settle after a remand, or win the plaintiffs’ lottery and actually win the case. Plaintiffs’ lawyers face stiff competition from the understaffed, underfunded, underpowered Equal Employment Opportunity Commission which, while a socially worthwhile organization, often just corrals plaintiffs into mediated settlements, usually without a lawyer of their own, helping lawbreaking employers to buy their way off the hook at discount price. In short, employee-plaintiffs have long odds with high costs against a convoluted discovery process with clients who simply can’t afford the long haul it takes to win a big case. And that’s when the EEOC isn’t talking potential clients into settling for peanuts.

Ad on top of all these things, the employee-plaintiffs’ bar sometimes gets people like Pamela Hall.

By all accounts, Pamela Hall is a bully. According to the factual background of the just-decided Hall v. Tift County Hospital Authority, Pamela Hall, a Baptist and a former quasi-supervisor with a Georgia hospital, and Amanda Dix, a staff nurse under Hall, were friends, until religion came up. After what is surely a fascinating but, sadly, judicially unread backstory in which Hall accuses Dix of sleeping with Hall’s husband, Dix reveals to Hall that she is a lesbian, and Hall’s religious beliefs seemingly launched into overdrive.

Now, being a Baptist (ie, anti-gay) with a gay subordinate is not itself fodder for a discrimination case. Neither was it a discrimination case when Hall stuck a religious tract and a condescending little note in Dix’s locker (you know the kind, the condescending Christian power-trip: ‘your sexuality makes you morally inferior to me, but I will be merciful, since it is only your sexuality I hate and that you should change, not you personally!’). And neither was it a discrimination case when Dix found herself receiving follow-up religious harassment from Hall.

So when did it become a discrimination case? According to Hall, it was when she was demoted from her supervisory position. Not fired, not transferred to Alaska, just demoted – and by all appearances, temporarily. Now clearly, she lacks the stability and people skills to be leading anyone which is why she was demoted, but instead, she claims she was demoted because of “religious discrimination.”

What Pamela Hall’s lawyer hopefully told her before going to court was that, in order for something to be discrimination, you have to be treated differently because of your religion. If you’re a Baptist who harasses her subordinates, who goes out of her way to make people uncomfortable because of personality traits that are irrelevant to job performance, then you’re no more fit to lead a team than a Hindu, a Muslim, or an atheist who does the same thing – which is why you have to find the Hindu, Muslim, or atheist who does do the same thing and isn’t demoted, or who receives a lighter punishment. You can’t just be a Baptist who gets in trouble, you have to be in trouble because you’re a Baptist and because you’re not something else.

She lost her case. Her demotion was clearly because of her inadequate leadership traits. But the real sad point here, though, is how her victim’s own case when.

Because her victim doesn’t have a case.

Georgia, like the majority of American states, provides absolutely no job discrimination protections based on sexual orientation. If Hall had gone to Dix and fired her, handing her a pink slip that said just “NO QUEERS IN MY HOSPITAL!,” that would likely have been completely legal (barring a miraculous judicial resuscitation of the moribund public policy exception, but, that’s a tale for another day). Now, a pink slip saying “NO NON-BAPTISTS!” would have been a problem, for Title VII reasons, but Title VII says nothing about sexual orientation discrimination.

Many states have had the courage to stand up to bigoted religious interests, but unfortunately, Georgia is not one of them. Workplace bullying* is bad enough when it isn’t tantamount to discriminatory or bigoted behavior, but it’s far worse when bullying is so obviously based upon pure prejudice and the law provides no remedy for the victims of such blatant aggression. Pamela Hall is the true face of the parody plaintiff, the one who truly bungled her job and abused discrimination laws as an excuse for her own incompetence. And unfortunately, if her victim hadn’t had the courage to complain to upper management, Dix might have herself seen job consequences, even been fired, and had no remedies whatsoever.

*People interested in the subject of workplace bullying and the law are encouraged to read Suffolk Law professor David Yamada’s blog on the subject.

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Anti-Westboro Baptist Church petition is legally meaningless

December 29, 2012

Media excitation continues to grow over a petition created on the White House’s “We the People” page calling for the White House to “Legally recognize the Westboro Baptist Church as a hate group.” Go and read the petition; it’s quite brief, and is apparently the most popular petition ever posted to that page.

In its terseness, the petition seems to leave out certain crucial details, such as what the petition actually hopes to accomplish. I have asked various friends who have signed the petition what they think it would mean for the White House to “legally recognize” the WBC as a hate group, and invariably the answers reduce to either a shrug, or a statement of the bizarre notion that, apropos of the holiday season, the White House keeps some kind of master naughty-or-nice list, and the petitioner wants to see WBC firmly filed away (“legally”) in the naughty category.

The term “hate group” is not a thing, not even “legally.” The petition itself notes that private groups such as the Southern Poverty Law Center do just fine categorizing our moral distastes for us, but the government does not. The government keeps various security lists (FBI’s most wanted list, various terrorist watchlists, etc.), but it does not keep a “These Guys Are a Bunch of Assholes” list.

Attaching the word “legally” onto the front of the petition is the strangest part. It’s as if the petition’s author envisions a committee somewhere, presumably of men in nice suits, sitting around a table debating whether or not someone belongs on the naughty list. They pass around dossiers, exchange motions and objections, the pass a sheet of paper to the oldest, wisest man in the room. He swipes his pen across a huge signature line at the bottom, nods sagely, and then church-bells begin to ring somewhere as the Westboro Baptist Church, widely believed to be a hate group is now officially, certifiably, legally a hate group – as though there is some judicial body out there somewhere that converts subjective opinions into objective facts and they just haven’t gotten on this one yet because, dammit, there hadn’t been a petition yet!

And then the Westboro Baptist Church presumably realizes the error of its ways and converts from church to monastery, its members sealing themselves inside for penitence beneath the shaming glare of a society that finally, officially, legally recognizes them to be a hate group.

Unfortunately for slacktivists nationwide, the law will not solve the WBC problem if a petition gets enough signatures. It is simply a cathartic exercise for everyone too lazy to join a counter-protest or petition the legislature for legitimate redress to express a condemnatory opinion that everybody else already agrees with. Hating the Westboro Baptist Church is the ultimate non-controversial opinion. The WBC is frequently referred to as “controversial,” but in reality, it is not controversial at all: nobody disagrees that the Westboro Baptist Church is  a roving circus troupe of mentally malformed assclowns. There’s no controversy about them whatsoever; what’s controversial is how we deal with them.

People line to get up in arms whenever they hear about the government making some kind of list, but now they want there to be that list. People want the law to reflect their moral preferences when it simply does not and cannot. The law is for ordering society, not conforming it to our moral preferences, and it would be a disordered society indeed that tells the government to tally up our shared disdain for certain groups. How long would groups like American Atheists, the Center for Inquiry, or even the Catholic Church be able to stay off that list? How many NRA members do you think would be ready and willing to label the entire Democratic Party as a “hate group,” and vice versa for Planned Parenthood and the Republicans?

The petition against the WBC is a legally meaningless exercise in expressing a non-controversial opinion that’s just fun to say. It relies both on the laziness of its signers and a cartoonish understanding of the law and the government, and makes people feel like they’re part of the solution when really there is no solution other than to either radically revise our free-speech principles or to just start ignoring the hell out of the Westboro Baptist Church.

I shall endorse the latter proposition promptly and legally.