New Jersey Employment Lawyer Blog - Law Offices of Costello & Mains, P.C.

New Jersey Employment Lawyers

webmaster@lawyercentral.com (Lawyer Central) — Wed, 08 Sep 2010 02:09:48 PST

The Law Offices of Costello and Mains, P.C. focus on providing New Jersey workers with legal advice and assistance regarding their employment law issues. They are dedicated to protecting the rights of employess throughout New Jersey. Kevin Costello, a certified Civil Trial Attorney, has been named a Super Lawyer for five consecutive years. Trust 'The Employment Rights Lawyers' to fight for your rights.

Everyone vs. Everyone: Why South Park?s Treatment of Sexual Harassment in Schools is no Joke

webmaster@lawyercentral.com (Lawyer Central) — Wed, 01 Sep 2010 02:09:48 EST

First of all, let me just say this: I'm not a stick in the mud. I get what the creators of South Park are all about. They're making fun of ?normal' points of view taken to silly extremes. Their brand of satire requires several pieces to work. First, the issue has to be one that involves two sides or more. Second, both sides of the issue have to have something valid to say, when expressed rationally. Finally, and most importantly, for their brand of humor to hit the target, both sides have to have gotten out of hand - silly.

When they make fun of both sides - with the kids usually being the voice of question and moderation (I've learned something today?') - that's funy. But what about when SP's writers make fun of only one side - in this case, the victims of a pernicious and dangerous course of conduct - when that side hasn't expressed any extreme or silly points of view? Still funny? Still fair game?

Not so much.

I watched a recent episode addressing sexual harassment in schools. I don't know how old the episode is, because in it, Mr. Garrison is still "Mr." Garrison. But now is when I saw it, so now is when I'm having this reaction.

I get making fun of political figures and celebrities and their causes - they have resources, they have thick skin (or they should) and they're no strangers to criticism and lampooning. I get extending this concept to movements and causes even without political or celebrity backing when the movements get silly or extreme.

But helpless kids? Kids being abused in schools by their peers using wolfpack tactics, physical violence and damaging psychological attacks? Kids falsely depicted as performing sex acts using technology available at the public school level? Kids who all too often think violence or suicide is the only way out?

Really? That's funny? I guess I'm getting old. I don't think it's so funny. I suggest that the writers of South Park have crossed out of acceptable bad taste into unacceptable stupidity.

Kids commit suicide over this. I doubt very much whether the South Park writers know any of these kids personally or their families, or they wouldn' t have written this episode.

Really what this was, was yet another attack on the use of litigation to address wrongs, as if the founding fathers, were they brought back to answer for how they drafted our Constitution, would have to apologize for creating Courts at all.

The episode suggested that any attempt to hold school officials responsible for failing to prevent or stop this conduct is somehow stealing from schools and students.

I shouldn't have to keep saying this: As long as people have no fear of being held accountable in Court, they will not work harder, spend more, or otherwise go the extra mile to do the right thing. Sorry, but I don't trust the inherent goodness of school administrators and board of education officials to do the right thing in the face of sexual harassment without the threat of being called to account in Court.

In fact, there are not nearly enough law suits holding school administrators, school boards and school professionals responsible for sexual harassment of which they are aware and which they fail to stop. Teachers and administrators take the view that it's just "kids stuff." Because kids are doing it to other kids, it's not to be taken seriously.

Every study to which we have access suggest that the vast majority of kids who suffer damaging sexual and same sex sexual harassment at school don't report it. Of the small minority of students who do report it, most suffer retaliation from other students such as being labeled as "rats." They often find that the harassment is increased in intensity or even that administrators and teachers simply side with harassers who might be better students or have more social pull at the school.

I sincerely hope that the South Park guys don't know kids whose lives are altered or damaged as a result of what happens to them at this vulnerable period in their lives.

I won't suggest that they need to apologize, because they never admit they've gone too far, but I will suggest that they've made fools of themselves. As long as Courts are there to hold people accountable, our society will endure without resorting to violence to settle disputes. If access to Courts to sue for damages is taken away, any way that happens, you're left to trust bureaucrats, corporate types and others to do the right thing without fear they'll be held accountable if they don't.

Do you think they will?

We've had Courts of one kind or another since civilization began. We cannot go on without them. Don't let politicos - or irony - sell you on the idea that going to Court is anti-American. Oppression is anti-American.

The Defense of Marriage Act (DOMA) is Unconstitutional

webmaster@lawyercentral.com (Lawyer Central) — Sun, 01 Aug 2010 02:09:48 EST

A federal district court judge sitting in Boston, Massachusetts has recently ruled that Section 3 of the Defense of Marriage Act, which establishes the federal government's definition of marriage as "between one man and one woman," is unconstitutional.

The context of the fight is important, however, in understanding the subtleties and potential outcomes of this ruling.

First of all, let me say that personally, and to the extent that I speak for my law firm, we are fully in support of full equal marriage rights across the United States.

In order to be a lawyer in New Jersey, and indeed, I presume in every State of the Union, an attorney must swear an oath to uphold and defend the Constitution against all enemies, both foreign and domestic. Anyone who seeks to interpret the Constitution for religious reasons, or in support of narrowly political points of view, is, in my view, an enemy and we must protect the Constitution against those people. I can understand non-lawyer religious bigots, zealots and crazies arguing against full equal marriage rights, even though, when pressed, not one of these people can explain how opening marriage to others affects their marriage.

I cannot understand, however, or, more properly, can't stand, when attorneys, who have sworn this oath, put aside the oath and pick up a religious book and argue that the religious book, and not the Constitution, ought to ground civil law.

Now that that is out of the way, let's talk about this ruling and what it actually means.

The judge was ruling that each State has the right to define marriage on its own and that the federal government's attempt to usurp that power was an unconstitutional "over-reaching."

In the context of Massachusetts, therefore, this was a "good" ruling, in the sense that the Commonwealth of Massachusetts has already stated that it wishes to define marriage in terms of civil rights rather than in terms of gender or religious rights. On the other hand, to the extent that this ruling survives through the appellate process and even through and including the Supreme Court, it doesn't necessarily mean good times are ahead across the entire Untied States.

Put bluntly, since I don't have to worry about upsetting people in conservative States, there are States in this country where people have backward ways of thinking, where religious policy infiltrates and poisons civil policy, and where people feel afraid of any sort of change or granting of civil liberties to gay human beings. In those States, I have no doubt that, if this ruling in Boston survives the process, they will seize upon it as an opportunity to "protect" marriages against the "gay agenda."

That having been said, I am not sure whether or not this ruling will survive the appellate process. The next step is the circuit court of appeals, which may or may not adopt the district court's ruling and/or reasoning for that ruling. Even if the circuit court does so, the next step of course would be the United States Supreme Court, which is currently "right leaning."

So I don't know how to feel about this ruling, really. On the one hand, it's a good thing for the people of Massachusetts and it's a good thing for any State which, if this ruling survives, chooses to use it in order to fairly and decently define marriage for the people of a particular State. On the other hand, I can see, if it survives, this ruling being used as a weapon by conservative States.

I am a straight person who is married with a family. My marriage is not threatened by broadening the definition of marriage to include two people of the same sex who are in love. If someone paid me 10 million dollars, I couldn't make any good faith argument that my marriage would be in any way affected by such an opening of the definition. I therefore question the integrity and honesty of anyone who attempts to make that argument against civil and equal rights.

'Full Marriage Equality' Editorial

webmaster@lawyercentral.com (Lawyer Central) — Wed, 07 Jul 2010 02:09:48 EST

Here is what was recently published in the New Jersey Law Journal, authored by me, in response to a conservative attorney who continues to argue against civil equality by using reference to 'natural law' when she really means 'religious' law. But she knows better than to argue a position in direct contravention to the Constitution.

I remind you all, regardless of how you may personally or religiously see this issue to remember that when we decide to live by 'natural' law, it's whatever the strongest person says it is.

Here's the Voice of the Bar piece, with acknowledgment to the New Jersey Law Journal:

"Subjective Religious Concepts Have No Place in Civil Law
New Jersey Law Journal
July 2, 2010

Dear Editor:

Please accept this letter in response to Grace Meyer's latest offering in her continuing, one-person rant against civil equality ["Bar's Same Sex Marriage Stance Is Retreat From Natural Law," Voice of the Bar, June 28].

As long as Ms. Meyer continues to feel it appropriate to laud "natural law" ? an entirely subjective, amorphous and unknowable concept ? as a policy grounding for civil law in New Jersey, and as long as she continues to ignore her oath to uphold and defend the constitution in so doing by ignoring the establishment clause, I feel she must be responded to.

New Jersey law is not founded on religious concepts, thus it cannot be driven by religious principals. Private definitions of marriage have nothing to do with civil definitions of marriage, which are entirely economic in nature. As long as this is so, all citizens must have the right to access the same benefits, liabilities and obligations of marriage.

Ms. Meyer and those like her can call marriage whatever they like in their churches, mosques, synagogues, druid circles and temples. For the rest of us, who derive our civil rights from civil law, "natural law" is a nonsensical concept that can be used to justify every manner of cruelty, horror, slavery, oppression, theft and abuse. Natural law means the strong prey on the weak, and that no one has any rights except from the barrel of a gun or from the point of a sword. Unless we are prepared to return to "natural law" in all ways in which we live in this state, then we cannot pick and choose subjective pieces of natural law to suit religious objection to full civil rights.

I continue to respectfully suggest that anyone with a law degree ought to feel great reluctance to suggest nonlegal and subjective religious concepts ought to inform civil law in this state, regardless of their personal religious agendas."

Governor Christie Makes History By Politicizing the New Jersey Supreme Court

webmaster@lawyercentral.com (Lawyer Central) — Thu, 01 Jul 2010 02:09:48 EST

We have three branches of government for a reason. They're supposed to stay separate and equal. The judiciary should not be weakened and subordinated to the political will of either of the other two branches.

Governor Christie has recently made history in a couple of ways, none of them particularly distinguishing. For example, he is the first Governor in New Jersey history to refer to school children as "drug mules" for the New Jersey Education Association and the first to suggest to voters to not pass school budgets.

Yet as obnoxious and incredible as those acts are, he's gone even farther.

Now, he is going to be the first governor to politically posture in the process of appointing and reappointing Justices to the New Jersey State Supreme Court.

The New Jersey State Supreme Court was recreated in its modern form when the New Jersey State Constitution was updated in 1947. It is the envy of many States which don't have a political appointment process for their judiciary and which instead depend upon the mud slinging "populist" agendas of political candidates in order to fill judicial vacancies.

In New Jersey, as much as the process was never perfect - - no process ever is - - there was a respect and a decency about the judicial appointment process that every governor, of both parties, always observed. Never before, to my knowledge, has a governor of either political party refuse to appoint a sitting Justice simply because that Justice was appointed by his opponent.

In refusing to reappoint Supreme Court Justice John Wallace, Governor Christie makes history as the first governor to lower himself to political thuggery in administrating the judicial process in the State.

It was not the intention of the 1947 Constitutional framers that incoming Governors should start playing "political games" with judicial appointments to our Supreme Court and try to satisfy the whim and whimsy of voters who pay attention to serious political issues only a few times every few years.

One quick look at the Washington, D.C. process utilized in appointing Justices to the United States Supreme Court is all we really need to see to determine how badly this process goes when political litmus tests and political whim and whimsy come into the picture. The modern era of judicial appointments has been an era marked by political attacks, political posturing and nonsense.

As the outgoing president of the State Bar Association recently said, candidates for the bench should reflect "the rich tapestry of people who make New Jersey the most diverse State in the country, and they should be absolutely free to make decisions on a reasoned basis, untethered from the influence of partisan politics."

This has never been more true than now, at a time when special interests, many of them corporately powered, attempt to politically influence not only the passage of laws for the public good, but now, through pet legislatures, the process of the administration of those very same laws.

Justice Wallace, whom Governor Christie has decided not to reappoint, has been an outstanding judge. His decisions have been thoughtful and well rooted in the law, even though there is no lawyer in the State who has agreed with all of them. He has been fair-minded and he has protected the integrity of the bench, of the New Jersey State Constitution, of the law, and of New Jersey's people, even though 99% of them were never aware that their rights as New Jersey citizens were being protected in this fashion.

In addition, he happens to be the only African-American member of the Supreme Court, in a State with a sizable African-American population. Governor Christie's decision to deny tenure is an affront not only to Justice Wallace, but to the Supreme Court as a body and to the judiciary of the State of New Jersey, as well as to the people of this State whether they know it or not. It is an insult to New Jersey's image before the country as a State whose judiciary is of the highest caliber. It is an insult to everything that makes the judiciary an independent part of our three tiered system of government.

This action by Governor Christie is unprecedented in its temerity and it is not an act of which any of his supporters should be proud. If you voted for Governor Christie, you need to ask yourself whether or not you are comfortable with the idea that he is now embarking on a course that no New Jersey governor has ever embarked upon. If you validate this action and you support him in taking it, then you must be prepared for the next Democratic governor who takes office to do the same thing. No doubt that Democratic governor's politicking will displease you, and no doubt that any Republican replacement to that Democratic governor will please you in his subsequent politicking.

Very soon, I fear as an attorney that we will have a State Supreme Court that resembles the United States Supreme Court, which has become a political animal more than it has become a place of high justice and fair justice. Justice Wallace deserved better than this, and as did his brothers and sisters on the Supreme Court and in the judiciary at large, and as did the people of this State.

Many things have frightened me as a lawyer over the last 5 to 10 years.

Many of them appear in other blogs of mine.

This act of Governor Christie's frightens me as much as the most frightening things I've seen.

I challenge law makers of both political parties to call Governor Christie to task for this, and I call upon the citizens of the State of New Jersey of all political stripes to tell Governor Christie not to politicize the administration of justice in our State. Our integrity as a model of judicial fairness and ideals depends on it.

School Bullying Results in 800000 Verdict

webmaster@lawyercentral.com (Lawyer Central) — Tue, 01 Jun 2010 02:09:48 EST

The "L.W." case, in which a student was consistently bullied in school based upon sexual orientation but the school didn't stop it, has become black letter law in New Jersey.

The decision was recent, only a few years back, but it certainly resulted in a lot of school districts "waking up" to the idea that bullying is the school district's "responsibility," and that it's not something to which a district ought turn a blind eye.

When I first started doing employment and civil rights work, I vowed always to bring to the work that I do a common sense, blue collar grounding that emerges from the way I was raised (See my earliest blog entries for a bit of that). Having been raised in a working class Brooklyn family in the 70's, I had to deal with bullying personally and I had to watch it happen to others.

When a kid wasn't a strong athlete and didn't constantly act like he was prepared to fist fight, for example, he was called a "faggot" and every other synonym in the book.

Some families approved of that, and some didn't. Some were bigoted and thought it was hysterical that their children were growing up bigoted, too. I now see, as an adult and as a civil rights lawyer, what happens when this sort of mentality finds its way into the school place.

Kids' lives are ruined. Kids attempt suicide. Kids turn to drugs and other self-abusive behaviors. They don't feel comfortable talking about it with their families because it's so deeply humiliating, especially if their family is the type of family that uses racist or homophobic language itself. How can a kid who's being taunted for being gay (whether he's actually gay or thought or portrayed to be) tell his father about it, when his father uses homophobic language in the home, unaware that his son is being similarly victimized? How does that kid think the father's going to respond? Will the father change his tune and realize that bigotry of that type has become personal? Or will the father blame his son for not taking care of the problem on his own?

Today, schools profess a zero tolerance policy towards fighting. Back in my day, if a kid got out of line, you decked him. That took care of the problem and frankly, at least in Brooklyn, the school officials silently approved of that because sometimes, a kid just needs to get his block knocked off in order to get him to shut his mouth.

That's over now, as well it should be. As an adult, as a parent, and certainly as a lawyer, we can't have schools approving of a "handle the bully by hitting him" mentality. Which means the school districts have to act responsibly to end bullying. But what happens when they don't, in an age when taking care of the bully the old fashioned way is no longer an option?

It means that bullies now have a degree of immunity they've never really enjoyed before. Moreover, they have instruments they never had access to before: cell phones and the internet. MySpace, Facebook, Twitter, Tweeter (I can't count them any more) and any number of other future toys do and will allow bullies and their allies to passive-aggressively and anonymously - - anonymous means it's very hard to see the personal affect of your conduct in the eyes of your victim - - to bully others viciously and continuously. It's now a team sport, because it's so easy.

It's one thing to be called a name in the playground by your accuser, and to put a fist in his teeth. It's another thing to have 20 accusers who are all cutting and pasting all sorts of images on to your likeness for their Facebook pages and then calling attention to that for the entire school. The new bullies wouldn't have had been bullies 40 years ago, but it's easier now, because it can be done at a distance.

Show one whiff of vulnerability, and it's all over for you and there's really nothing you can do about it except to tell the school. What can the school do about it except tell the parents, and what can the parents do except scold their kids (sometimes) or subtly suggest that their kids are being victimized in their "free speech" rights (more often? "it's just kids being kids"?)?

In Michigan, a jury handed down an $800,000 verdict to a student who underwent years of bullying by his classmates. The school officials were aware and didn't do enough to stop it. I'm sure that the school officials disagree with the decision. I'm sure that they feel that there are practical limits on what they can accomplish. I'm sure that they feel that they were responsive enough. Perhaps they were, perhaps they weren't. I don't know what the facts of the case were. But New Jersey now recognizes these cases. We litigate these cases.

Of course, the schools have a special, enhanced duty to stop specifically bigoted harassment and bullying (as opposed to just general bullying without a bigoted taint) as a result of the L.W. decision. In essence, according to our Law Against Discrimination, students are entitled to the same protection as workers are in the work place, for the same reasons.

But you know what? Bullying has to "start stopping" in the home. People have to stop being bigoted. People have to just decide to get into the 21st century, get past the silly groupings into which we divide yourselves, get past things as unimportant as sexuality, religion (or atheism), national origin and ethnicity and get into being human. If more people do this, then more students will realize that there is no reason to bully students using these criteria.

Otherwise, we're going to have a lot more fists in the face, either in court or out.

Big Brother is Watching Civil Rights Abuses by Schools

webmaster@lawyercentral.com (Lawyer Central) — Sat, 01 May 2010 02:09:48 EST

Every time I wonder if I'm becoming just a bit paranoid about the ability of government to intrude on our civil liberties and to further erode the Constitution, I'm reminded that just because you're paranoid doesn't mean they're not out to get you.

By the way, when I say "government," I'm talking about not just the federal government, but state and local governments, such as municipalities.

On February 11 of this year, a class action lawsuit was filed in Philadelphia by a student in the Lower Merion School District alleging that the school district was invading the privacy of students by using "spy cameras" imbedded in school issued laptops.

Sound like a science fiction movie? Sound like the rantings and ravings of the kinds of persons we usually marginalize when they come up with these theories?

Ask yourself this: what if most of the people that we tend to ignore because we've been taught to ignore them by the government are actually telling the truth: What if the government really is out to get us?

Don't worry, I'm not nuts. I don't believe that. But I do believe the government is counting on our complacency in chipping away at the bright, firm line our Constitution once established.

It turns out to be the case here, at least.

The school was spying on students using imbedded cameras in the laptops activated remotely by the school officials with the ability to monitor students whether they were using the computers at the time or not.

That's right. The school has confirmed in defending the lawsuit that in fact, teachers and officials could look at students in the privacy of their own homes, doing whatever it was that the students were doing, whether it involved the laptop or not.

How do we know this? How did this suit get started?

A student was eating candy but the teacher who was spying on the student through the hidden spy camera thought the student was taking pills. The school confronted the student with the picture obtained with the use of the embedded camera and, much to its embarrassment and much to what should be a cold feeling creeping up your spine, if you value your civil rights, they were wrong.

They were wrong, and as a consequence of being wrong, opened up a huge can of beans; the fallout has yet to be determined.

Do I hope that the class action civil rights suit succeeds? Of course. But what does that tell us about the state of affairs in the country today?

When I was a kid conspiracy movies were usually about people who were sane and who were trying to uncover illegal conspiracies that really were happening. The bad guys in those movies were the conspirators and their allies. Yes, the conspirators lied. Yes, they misdirected. But the sense in the film was always that the anti-conspiracy people were the "heroes." They had credibility and they were doing good work.

I don't think that's an accident. I think that was the sign of the times. When I was a kid, the Watergate conspiracy had blown the lid of the "virtuous" American government. The American government's atrocities in Vietnam for the cause of "freedom" had, I think at last, finally disabused Americans of the idea that "America, love it or leave it" was the way to relate to our government. The public was prepared to hold the government accountable for its conspiracies. We'd finally realized that patriotism meant the right to criticize.

Then a strange thing happened in the 1980s and 90s. The X-files came along. All sorts of shows and movies came along which were promoting the idea that there was a gradually evolving "lunatic" fringe of people who thought that there were conspiracies going on, but who were no longer the sane heroes of the 1970s. These were the marginalized lunatics of the 80s and 90s. By the end of the 1990s, popular culture had taught all Americans that anyone who felt that there was pretty much any conspiracy going on at any level was out of their minds. The very idea that the American government could ever be involved - - once again - - in something like Watergate, or the Agent Orange cover up, or the atrocities in Vietnam, or (take your pick), was simply ludicrous.

What the school district did is atrocious and disgusting. The fact that the school officials even considered the idea potentially appropriate, no matter what their motives, is so deeply objectionable to me as a civil rights lawyer, and should be so deeply objectionable to you as an American citizen, that we should all be outraged that there was even a culture that permitted a conversation about, let alone the actual deployment and activation of, secret spy cameras.

There has to be a limit where the government simply is not to be allowed to intrude on our personal liberties. There has to be a rational limit beyond which the government is powerless to stop us from destroying ourselves if we wish to do so. It's what freedom means. If that kid was taking pills, and he is able to hide that from his family, and his family is unable to detect it, then it may lead to a tragedy. I understand that the school's motivation was to potentially stop drug abuse, but where do we draw the line? Do the ends always justify the means? What if the school was making a moral judgment about what that student was doing whether or not it proved to be self-destructive? Would the school start monitoring the sort of websites that the kid visited? Would the school start monitoring the content of any political speech in which the child was engaged in the privacy of their own room?

I hope the Lower Merion School District serves as a stark and bright line in the sand for when it's okay and not okay for the government to step on the Constitution.

The problem is, I think we're in the middle of an alarming trend in the other direction. I think some people who read this are not going to care what the school did; they're going to say this was just a good intention gone wrong. By their logic, good intentions will justify any means, as long as the end desired is a good one. Some people just won't care because they think that security is more important than freedom.

You should care. You should care a lot.

This is why civil rights exist, and this is why I'm a civil rights lawyer.

Illinois Supreme Court Overturns Damages Cap in Medical Malpractice Matters

webmaster@lawyercentral.com (Lawyer Central) — Thu, 01 Apr 2010 02:09:48 EST

You've heard me blog on this before, despite the fact that I'm an employment lawyer, about the nonsense from the insurance industry on the medical malpractice 'crisis.' The insurance liars use doctors and nurses as unwitting pawns to spread lies about how "tort reform" is going to drive down medical malpractice costs.

You've heard me tell you that the statistics do not defend this position, and that 90,000 people a year suffer as a result of preventable medical errors.

You've heard me tell you about how only 8% of malpractice which actually occurs ever enters a court room, and how only a fraction of those cases result in a positive verdict for plaintiffs.

You've heard me tell you that the real reason insurance costs rise for doctors is because insurance companies raise their prices; there's no control imposed by gutless legislative bodies, because insurance industries contribute so much money to their campaigns on both sides of the aisle. You've also heard me tell you that one of the reasons that insurance costs have risen across the board for all professions is because, since 9/11, and as a result of the bad economy, the insurance industry as a whole - including the interconnected portions of it that are part of the medical malpractice writing group - are trying to spread their risk around and make everyone pay.

All that aside, they never stop, because why should they? As long as there's a tight economy and legislatures are responsive to "doom and gloom" predictions of lost jobs, insurance executives and their lap dogs will always seize an opportunity to erode the rights of the individual.

Yet finally, some common sense seems to be prevailing.

In Illinois, the short sighted legislatures passed a "cap" on medical malpractice damages, as if to suggest that someone whose life is devastated or lost by a medical mistake may only recover a tiny portion of their losses because the "poor, poor doctors," driving in their Mercedes from one of their homes to the other, can't afford the "high" cost of medical malpractice premiums. Better to assist the doctors by capping damages - which in fact doesn't assist the doctors at all, but instead assists the insurance companies - then actually making the doctors stop making the mistakes, or by making the insurance companies lower their rates.

The Supreme Court of Illinois has said "no" to that nonsense in a recent decision. The Center for Constitutional Litigation argued that the "cap" on medical malpractice damages imposed by the legislature usurped the function of the judiciary and with it, the function of the jury. The Supreme Court of Illinois agreed, halting, for now, the march of corporate and insurance greed.

I almost feel sorry for the doctors, because I know that within their particular field of science, they are very bright people. You would have to have been to have gotten through medical school. With that brightness, however, can sometimes come arrogance, because out of their element, they are no more knowledgeable about the way the insurance companies work than "Joe the plumber" or "Dan the ditch digger".

The doctors and nurses are being lied to by their carriers. They are being told that their rates will come down if only jury verdicts are forced down. Of course, the rates will never lower even if the caps are imposed, because the insurance industry is going to find another reason why the rates have to stay high "for now" until more changes to their liking are made in the fabric of our society.

It's un-American and it ain't right.

The insurance industry as a whole and, particularly, the medical malpractice insurance lobby, are lurking muggers on the "journey to justice."

That's all for now.

Why Arbitration Agreements Are Un-American

webmaster@lawyercentral.com (Lawyer Central) — Thu, 18 Mar 2010 02:09:48 EST

I know that I blogged about this before, but the situation is only getting worse because the mood in the country is only getting more paranoid, suspicious and self-interested. Agreements to arbitrate employment rights claims, as well as claims involving many other rights, are being forced on Americans.

This allows corporate America to chip away at civil liberties while at the same time making everyone feel grateful that they - or members of their family - "still have jobs." It allows corporate America and its apologists on both sides of the political aisle to rationalize the destruction of one of the principals on which America was founded - the right to a trial by jury - under the guise of "tightening belts" and "economic efficiency."

I had a client come to us the other day who had been viciously, repeatedly and horribly sexually harassed at work. The disgusting commentary and the smugness with which it was delivered by her co-workers and by management was truly outrageous. They never seemed very nervous about what she would do, and she always wondered why. She came to see me, explained the situation, and we initiated a lawsuit.

Once we initiated the lawsuit, I found out why the perpetrators were so smug. Although my client had forgotten doing so, she had signed an agreement to "binding arbitration" of any "dispute arising from" her employment relationship.

Before I get back to the case of Mrs. X, let me tell you a little bit about these "binding arbitration" agreements, the people who arbitrate cases (usually) under these agreements and why they exist.

Once again, as usual, it's a question of what the conspirators want you to believe and what is the truth.

What they want you to believe is what it says in the Federal Arbitration Act, what it says in arbitration agreements, and what any corporate type will tell you if you talk to them about the subject matter. Incidentally, it's the same thing that most defense lawyers will tell you. It's the same thing that most Republican legislators and quite a number of Democratic legislators will tell you. It's the same thing that the Federal Chamber of Commerce will tell. It's certainly what the HR and PR people in the pharmaceutical, manufacturing, financial, medical and any number of other corporate sectors will tell you.

What these people all have in common, of course, is that they do long range strategic planning for their companies and for their industry. They understand that a penny spent early is a dollar saved later. So what's their "penny" spent early?

It's paying an arbitrator fees to decide a case, rather than having the case decided in a court of law, where justice is essentially free. Why, you ask, would a company voluntarily pay an arbitrator as much as $400.00 or more per hour, racking up tens of thousands in arbitration fees over the course of the particular piece of arbitration, when it can have free access to a judge and jury?

The answer, of course, must be that the company thinks it's going to benefit from spending that extra money somehow. So how do you think it intends to benefit? It benefits, of course, because the arbitrators, by and large, don't render the same kinds of verdicts that juries do. Arbitrators understand that for the most part, the corporation is paying their fees (we'll get to what happens when individual litigants are expected to "share" arbitrators' fees in a minute). They understand that it's corporations, corporate attorneys and corporate lobbyists and their legislator allies who create anti-consumer and anti-civil rights statutes like the Federal Arbitration Act. These corporate types are the reason the arbitrators and the organizations which administrate arbitrations have a living.

In short, they understand on which side their bread is buttered and, for the most part, unfortunately, they tend to deliver accordingly. Arbitration results, by and large, are manifestly less favorable to plaintiffs than jury verdicts. Statistically, more cases are lost by employment plaintiffs in arbitration than are lost by employment plaintiffs in State court and even in Federal court, where the rules can sometimes be "anti-plaintiff" and where some of the judiciary might be somewhat conservative in its leanings.

I'm not getting into, in this article the specifics of how, consciously or unconsciously, arbitrators lean in favor of corporations and how they tend to minimize their verdicts, restrict access to certain types of damages, restrict access to certain types of information that the plaintiffs need to prove their cases, etc. I really don't care whether they are doing it consciously or unconsciously, what I care about is the fact that they are doing it at all.

All you need to see is the "you know what" - eating grin on the face of the corporate representatives and corporate attorneys when they leave in arbitration where they might have paid $20,000 or $30,000 in arbitrator fees but won a case that they would have lost in front of a jury, of where they minimized a verdict in a case where a jury might have done a considerably better job. They realize they're making an investment, over the course of many such cases, and that investment is going to pay dividends in the long term.

It's why those companies will tell you anything they need to tell you in order to get you to support initiatives or statutes like the Federal Arbitration Act and why they constantly try to "hide" pro-arbitration provisions in all sorts of bills having nothing whatsoever to do with the management of workers in this country. It's why some defense firms are even attempting to get unions to waive the rights of its members in favor of arbitration of all work related claims in Collective Bargaining Agreements.

I'm going to say this without drama and without flare, because I want you to understand how important it is: arbitration of any dispute which is compelled or coerced is un-American and eats away at your civil liberties, whether you realize it or not, whether you want to admit it or not.

The day that corporations are looking for will not be long in arriving: when they can manage and anticipate the dollar cost of human suffering and simply decide when it's okay and not okay to hurt their workers, discriminate against them, retaliate against them and abuse them. They'll simply decide how much money they think they'll need to spend to win the arbitration, and then they'll do whatever they feel that they need to do, knowing that the cost is predictable and manageable.

The first time that a corporation does something voluntarily for the good of mankind will be the first time, in my book. Any time a corporation does something "good," it's got an angle. I don't believe corporations will ever do the right thing or look for the right method of dispute resolution simply because it's fair and just. They'll look for the efficient, effective and inexpensive method of dispute resolution because it minimizes the cost of hurting people.

I don't mean to insult all arbitrators, but I do mean to insult the ones that know where their bread is buttered and who act accordingly. I do intend to "call out" the individuals who'll talk out of one side of their face, calling me an alarmist for ranting and raving about this, and suggest that arbitration is just fine while speaking publicly, but who'll privately giggle and laugh at the idea that anyone actually believes that arbitration isn't an atrocity.

But it gets worse. Much worse. So far, I've been talking about the arbitration agreements that involve the corporation paying the full cost. These are unfair. They restrict access to information. They restrict the time within which the plaintiff can marshal information to bear their burden of proof. They restrict rights. They restrict damages. But at least the corporation pays the bill, which means that an individual earning a middle class living wage doesn't have to worry about paying an arbitrator for the privilege of justice.

Yet courts will also enforce arbitration agreements that require the injured worker to pay half the cost of arbitration. The words "equal" and "fair" are used to explain this horrific practice, as if the corporation, possessed of hundreds of thousands, millions or billions in assets, is somehow "equally positioned" to spend, when compared to the $39,000 a year worker discriminatorily discharged with two kids and a spouse to support at home.

What a joke.

The corporations know that this is piggish and disgusting. Yet they include this language in agreements every day. Want to know why? Because no matter whether a judge wishes to be fair or unfair about the impact of such agreements, the Federal Arbitration Act and the State Arbitration Act tend to tie judicial hands when attempting to interpret these agreements. Some judges, out of a sense of higher justice, will rule against the Act and fail to enforce those particular provisions of arbitration agreements while still sending the matter to arbitration. They will require that the corporation pay all fees on the grounds that any requirement that an individual pay anywhere from $5,000 to $15,000 in arbitrators' fees is as good as saying only the wealthiest workers in this country have any rights at all.

Most judges, however, will feel beholden to follow the law as they understand it and some are happy to see matters leave their court room and become someone else's problem.

These arbitration agreements are even worse than un-American. They are fascist. They are as bad as a "no frills auto insurance policy", which provides basically no coverage whatsoever for a highly reduced premium. It's the same as building a house in a swamp or buying a swaybacked horse. No matter how cheap the deal is, if you can make no use of it whatsoever, than it's no deal at all.

"Arbitration" agreements are not "fair." They are not "equal." They are not "efficient" methods of delivering "justice." They are not "alternative dispute resolution."

These are tough economic times. Corporations are "tightening their belts" across the country. Yet CEOs, board of directors' members and other executives seem to have record salaries despite the poor economic times. Tax payers seem to be called upon to bail out people who draft their own golden parachutes with the bail out money and then laugh at the rest of us because we were suckered into the bail out. Corporate wrongdoers still get to avoid jail when they should be held personally accountable for anything they do wrong in the name of service to the corporation's ever growing greed.

"Chambers of Commerce," really just lobbying organizations for corporate greed, keep "spinning" all kinds of nonsense about the need for "tort reform" and whittling away at the system of justice instead of admitting that the system of justice is fine, but that the corporate culture in the country is toxic, un-American and horrid.

Fight arbitration agreements. Don't sign them. Insist on negotiation. Don't support candidates that support arbitration agreements. Insist they explain how and why this doesn't hurt people. Explain to your bosses, co-workers and union representatives that you don't want them.

Because on the journey to justice, arbitration agreements are land mines.

It's Time to Pierce the Corporate Veil in Discrimination Cases

webmaster@lawyercentral.com (Lawyer Central) — Mon, 01 Mar 2010 02:09:48 EST

One of the most frustrating doctrines of law for attorneys representing victims in discrimination and harassment cases is called the "corporate veil," which is a way of colorfully describing the legal "barrier" that exists between a corporation on the one hand and its owners, employees and agents on the other. Put very simply, the CEO of Exxon was not going to be personally liable for the oil spills, no matter how highly positioned in the company the CEO was, no matter how much money the CEO had, and no matter how much the CEO benefited from the practices that lead to the spill. The company was certainly liable, but not him, not unless his independent actions would subject him to other criminal or civil liability. Absent that special scenario, the fact that he was the "titular head" of the company didn't mean anything.

Here's an example closer to home.

Say you hire a contractor who works for a company that has a hand full of contracting employees. Say that they further operate out of a location that the business itself does not own, but that the owner of the company does own, through a third corporation. Say further that the contractor and his company cheat you and charge you great deal of money for either substandard or non-existent work.

You approach a lawyer and you wish to sue. The lawyer investigates the company and initiates the suit, only to find that the company immediately declares bankruptcy. After all, bankruptcy is a pretty easy thing for companies to declare. The company had virtually nothing in terms of real property, because the contracting company you contracted with does not own the business premises, it rents it. The company owns a couple of trucks with very little equity and very little book value, and perhaps some tools.

The owner of the company is loaded, has three homes and two boats, but you cannot get to him, even though he may be the guy that was undertaking the wrongful conduct in the name of his company.

Does that seem fair to you?

It does if you're a corporate type. "It's good for business," those people say, not really caring to explain or even confront the repeated unfairness that this works when individuals are victimized by "the corporate veil," shielding from ultimate responsibility the people who benefited from the wrongful practices by arguing that "the company" undertook them, not the person..

Often, application of the corporate veil can result in judgment proof companies and very rich owners simply declaring bankruptcy and moving on the next corporate shell game. It stinks.

The apologists for this system will continue to tell you that what's good for business is good for the economy, what's good for the economy is good for the country, etc. They might dress it up in terms of patriotism, they might call people who have objections to this system "communists" or "socialists," and who knows what other nonsense. At the end of the day, they simply do not like the idea that individual "fat cats" who benefit from corporate practices can then be made personally responsible for the consequences of those actions.

We see this a lot in small businesses where the tyrannical owners are sexists, homophobes, racists and other types of bigots. They act, and then claim that they did so in the name of the corporation only. So, despite the hateful and bigoted way that they acted, they attempt to separate themselves from individual liability simply because they were doing whatever they did in the name of the corporation at the time.

It's time to end this doctrine. I call on voters to discuss the issue with their representatives. Individuals ought always be responsible for what they do.

At least, that's how I feel.

Sexual Discrimination in Contractual Relationships

webmaster@lawyercentral.com (Lawyer Central) — Mon, 01 Feb 2010 02:09:48 EST

The New Jersey Law against Discrimination (The "LAD") has been described as a "civil rights statute," one of the more far reaching employment statutes in the United States. The mandate from the legislature, consistently reaffirmed by our courts, is to interpret the law against discrimination broadly and liberally, in order to achieve its purpose. Its purpose has been best described as that of eradicating "the cancer of discrimination." To this end, the LAD has been from time to time revised and expanded, sometimes by legislative intent, sometimes by reasonable court interpretation. Most of the attention paid by the Courts under the LAD has been directed to employment relationships as opposed to the other relationships the LAD governs, such as those involved in housing, obtaining loans, etc.

Two of the "under used" provisions of the LAD are the subsection which states that it is illegal to discriminate on the basis of any of the protected classifications (sex, race, etc.) in a "contractual" relationship and the closely related provision which prohibits discrimination in regard to entering and using places of "public accommodation." Some fact patterns involve both, such as the refusal of the part of the merchant to sell to someone against whom they have a racial, sexual or other type bias. This would constitute not only a denial of fair service since the business is a place of public accommodation, but would also constitute a violation of the prohibition against discrimination in the course of a contractual - in this case potential contractual - relationship.

We've certainly filed our fair share of cases alleging discrimination in these non-employment situations, but we have never had the need to go to the appellate division of our state on any of those cases, which have either settled or been tried to a conclusion without further appellate activity.

Further, all biased harassment is discrimination, but not all discrimination is harassment. Biased harassment is one type of discrimination, but there are many types of discrimination. If I am a bigot who has a problem with people of a different ethnicity, there are different ways that I can make that bigotry felt. I can harass the person while treating them otherwise fairly in the terms and the conditions of my relationship with them, or, on the other hand, I can be respectful and polite to their face while under-paying them or under-compensating them in other ways, for example. Those are two opposite sides of the same coins.

Of course, many fact patterns involve both.

In the context of "contractual" discrimination, however, there has never been a case that has held that sexual harassment is an example of the type of "discrimination" prohibited in the actual or pending contractual relationship. Put bluntly and clearly, if I refuse to buy my products from a female business owner because she will not sleep with me, for example, am I guilty of sexual harassment as a form of illegal discrimination? Our appellate court has answered that question with a clear "yes."

The recent decision in J.T's Tire Service vs. Untied Rentals North America Inc. has held that a refusal to do business because of a failure to enter to a "quid pro quo" sexual relationship is a type of sexual harassment and thus a type of illegal discrimination under our LAD. It's a decision the plaintiff's employment bar applauds, because it makes sense.

If a legitimate business owner is trying to pay their taxes, employ their workers and make a living to support themselves and their family, shouldn't she be free of the type of pressure that requires sex in order to do business? Once again, the "freedom" to be free of bigotry is not an illusion. It is something that we need to remember means different things to different people. It'd a lot easier for a Christian white male to say that there is "too much" ruckus about discrimination than it is for an African American, lesbian, disabled female to make the same observation. Perceptions mean everything. Our democracy means nothing unless we protect the most vulnerable of our citizens, and unless we adhere to principal.

I applaud this decision, because it was the right one, one more paving stone on the journey to justice.

The Truth About Who Files Lawsuits

webmaster@lawyercentral.com (Lawyer Central) — Wed, 28 Oct 2009 02:09:48 EST

As an attorney representing the rights of individuals rather than those of corporations, I can tell you that the “Journey to Justice” is slanted against the right of the individual; that it is seeded with landmines placed by corporate, banking, insurance, and vested interests who regard lawyers as an impediment to their abuse of normal citizens.

In your heart, do you really believe that the majority of the lawsuits filed in our Courts are filed by “frivolous” plaintiffs seeking to get something for nothing? Really? Or is that just something that it’s politically “hip” to say, or to agree with, when someone else says it?

In your heart, you know, don’t you, that that is not true? Don’t you ever find it suspicious that the only real conversation that seems to happen about this comes from the people with the most money to spend? Don’t you find it suspicious that the various “chambers of commerce” across the country, and the Federal “chamber of commerce”, are not really chambers discussing commerce, but really PR machines, designed to spend billions of dollars on anti-lawyer, anti-plaintiff and pro-corporate ads?

Please don’t be gullible.

Corporate disputes – that is to say, suits between businesses – dominate dockets throughout the fifty states. The majority of lawsuits filed in this country are filed by corporations and businesses against other corporations and businesses to protect their money, to advance their interests, to protect their patents and trademarks, to claim breaches of contract, fraud, defamation and other forms of relief, and, most importantly, to seek damages. How ironic it is that these very same interests are willing to take away your right, to claim damages, but to preserve their own?

Have you ever heard about “corporate tort reform”? Of course not. Why in the world would the corporations with the power to change the playing field want to tilt it against themselves? They're not fools.

They just assume you are.

The United States Supreme Court begins its October 5, 2009 term with a business heavy case load. More than half of the forty-five cases set for the new term focus on business interests and business rights. There are no plaintiff’s employment cases and no plaintiff’s environmental disputes which have been granted review.

On the other hand, there are plenty of cases on patent infringement, anti-trust law and white-collar crime matters on the docket.

So ask yourself the following question. As easy as it is to agree with the nonsense at the parties and barbeques and on TV, nonsense which has been spoon-fed to you by banking, insurance and corporate interests and their powerful PR machines masquerading as “neutral” statistics and news, do you really think, based upon the cases that are going before the Supreme Court, that it’s plaintiffs and their claims for damages which are a problem in our courts?

Be honest.

In addition to being honest, be smart and be brave. When people tell you that “lawyers” and “plaintiffs” and “claims for damages” are a “problem”, ask them for statistics. Don’t let them get away with quoting you Rush Limbaugh’s statistics, or statistics from the Federal Chamber of Commerce. Ask for neutral statistics. Ask them how many plaintiffs cases for individuals are filed in this country, as opposed to cases filed by corporations against other corporations, and businesses against other businesses. Ask them to tell you how many punitive damages verdicts there really are, versus the number the right tells you there are.

The truth will surprise you. The corporations in this country have long been gaining control over our lives; the Court and the politicians who appoint to it are the gem in their crown. Control justice, and you control America.

Ask yourself when you were a kid how many ads you saw for corporations that weren’t trying to sell a product in particular, they were just trying to sell their image? That’s a recent phenomenon, and it’s really only been around for the last twenty five or thirty years. Ask yourselves why they do that. Why would they spend the money to simply remind you that they are there, and that they are wonderful people?

I’m not trying to sound like a conspiracy nut. I’m simply telling you that corporations are selfish. They are soulless. They don’t care, because they are not designed to care. They are designed to make money. The people who run those corporations are relieved of individual responsibility for what they do in the name of the corporate quest for dollars. Don’t trust a word that a corporation tells you, and certainly don’t trust what their paid “hacks” tell you. Just look at the statistics. The real statistics, like the caseload before the Supreme Court above.

Then ask yourselves where the real problem is. Is it with lawyers, not spending billions on PR, but quietly going about trying to help people on an increasingly tilted playing field? Or is it the unfettered and unholy access that corporations have to our legislators and now, to our courts through the appointment of judges by those legislators?

I don’t like it, and neither should you.

Plausibility and Common Sense DANGER

webmaster@lawyercentral.com (Lawyer Central) — Mon, 10 Aug 2009 02:09:48 EST

One of the must consequential decisions of the Supreme Court’s last term didn’t look so consequential at first, but it has since.

In the case of Ashcroft v. Iqbal, an Arab-American sued the Bush Administration for abuse borne of racial profiling after the 9/11 attacks.

Of course, the anti-Arab hysteria rampant at the time affected many people, even some judges; the courts seemed willing to forgive racial profiling and even more obvious bigotry for the cause of security. I have my own issues with such an obnoxious view on the part of our courts, and how dangerous such a view is to the American ideal of liberty and presumption of innocence. I choose not to live in a country where racial profiling is the norm, and where civil liberties no longer exist, or no longer exist for certain minorities, in the name of “security.” I would rather be less secure and more free.

But that’s not my only problem with the case. My problem with the case is that it has a far more insidious and sinister potential impact on all litigation from the plaintiff’s perspective in federal courts throughout the entire United States. In fact, if I and others concerned over this case are right, this new sinister philosophy might even affect state court litigation, as well.

The Supreme Court must always act with restraint and care when it makes new law, because that law has a ripple effect throughout the entire court system. As one of my favorite comic book characters, Spider Man, used to say, "with great power comes great responsibility.

Yet on its face, the Iqbal decision merely found that Mr. Iqbal’s case could not proceed forward; yet something deeper and sinister happened.

In the 5-4 decision, the dissent was very troubled by the fact that a judge subjectively decided that he didn’t like the case and therefore decided to get rid of it. The majority, of course, led by ideologues who have no respect for the Constitution or for civil liberties because their corporate masters don’t have that respect, sided with the Bush Administration and held that federal judges can now be “gatekeepers,” deciding when a case lacks “plausibility and/or common sense,” in which case they are allowed to dismiss it.

Note those entirely relative and entirely dangerous and subjective words: “plausible” and “common sense”.

What in the world do those words mean to you? I bet they mean something different than they do to the next person. In fact, they mean something different to everyone. In further fact, the words can have no meaning unless those meanings are relative, individual and uniquely borne of each person’s experience.

The words are ridiculous and impossible. Yet now the Supreme Court has now given Federal judges a new power that they have never had and that the Constitution never contemplated they have: the power to decide when cases are not “plausible” or when they don’t make subjective “common sense” and then to dismiss them.

The old standing Supreme Court precedent was that a case merely needed to set forth some facts and a claim theory in order to survive initial review. It was then up to the discovery process to ferret out the actual proofs. Sometimes, when only in the complaint stage of the case, plaintiffs don’t always have the proof that they need; the defense often controls that proof. Under the old standard, the defendant was in theory required to turn over that proof if it existed and thus the truth would become known.

During discovery.

In this new post-Iqbal world, a lawsuit must now satisfy a potentially very skeptical and biased judicial gatekeeper before the plaintiff ever has a chance to see or seek the truth.

Law professors don’t like it, civil libertarians don’t like it, and pretty much every plaintiffs' lawyer in the country doesn’t like it. Defense lawyers love it, because it gives them yet another tool to use against the cause of justice. I don’t expect better from them. I expect better from my Supreme Court, but I’m not surprised given the caliber of the President who has just left office and the resulting caliber of the judges with which he stacked the Court.

Mark my words: Iqbal is dangerous. It’s going to result in meritorious cases being dismissed. It’s going to result in abuse. It needs to be overturned.

Of Free Speech vs. Hate Speech

webmaster@lawyercentral.com (Lawyer Central) — Mon, 31 Aug 2009 02:09:48 EST

One of the fundamental tensions in true constitutional thought is the tension between encouraging and protecting the freedom of speech on the one hand, and the societal duty to discourage and/or punish hate speech, on the other.

Anyone—whether a lawyer or not—who suggests that this is an easy tension to resolve is kidding themselves, and you, or they are simply ignorant of the true scope and nature of the problem.

By calling it a “problem” I don’t mean to imply that it is a problem that has a “solution”, i.e., something that we can do to make the problem go away forever. In fact, that tension should always be with us. The fact that the tension exists, the fact that people talk about it, is a sign of a healthy democracy, just as a temperature of 98.6 is the sign of a healthy body. That body temperature is a tension between the heat necessary to run the body and the point at which heat begins to damage the body. Just a few degrees too cool and the body beings to shut down. Just a few degrees too hot and tissues start to become damaged. That fine “knife edge” of temperature is right, as doctors sometimes say colloquially, “where you want to be”.

A healthy ongoing public debate about the nature of free speech vs. hate speech is “right where we want to be” as an American constitutional democracy. The day that it becomes too easy to prevent hate speech is the day that it becomes too tempting to overly discourage “free speech”, which would start us down the slippery slope towards the thought police, censorship and intellectual fascism. On the other hand, the day that we fail to acknowledge the powerful role that language has in shaping our society, i.e., the day that we decide hate speech no longer matters and that everyone is free to call anyone else whatever they wish, is the day that we stop acknowledging that a better tomorrow lies around the corner.

A recent story out of Missouri highlights this tension.

Along our highways, it’s now common to see “adopt-a-highway” signs indicating that a particular sponsor has either personally cleaned up a particular stretch of highway or has hired a contractor to do it in their name. Most often, we see civic groups and corporate sponsors “adopting” stretches of highway in this fashion, and most of the time, none of us are going slow enough to be able to read the signs, let alone particularly care who's adopted that stretch of road.

In the future, I now plan to take a moment to slow down, perhaps even pull over, if time allows, and see just who is “adopting” our highways.

A neo-Nazi group calling itself the “National Socialist Movement” (the words “national” and “socialist”, in combination, are usually indicative of some variety of “Nazi”), adopted a portion of a Missouri state highway in order to get their official recognition for it in the form of an adopt-a-highway sign. Because states cannot legislate the source of the content of speech due to free speech concerns – which is appropriate and reasonable lest the state become the official auditor of what the public may and may not hear from whom – Missouri was powerless to refuse these Nazis the opportunity to adopt the highway and get that official recognition. So they fashioned a rather clever sidestep.

They renamed the highway after a rabbi who had fled Nazi Germany to escape Nazi persecution. If this Nazi group wishes to clean up the highway, they are going to be cleaning up a highway named after a Jewish rabbi and civil rights activist who fought the Nazi way of thinking.

Obviously, some of the Nazis in that particular group objected, suggesting that it was “childish” for Missouri to do that. This, by the way, from people who wear red, white and black arm bands around their arms and who, as adults, mind you, march around with their hands in the air, worshiping a dead lunatic. So much for "childish.

Yet, there were other objections from Constitutional scholars who suggested that even this “sidestep” of renaming the highway amounted to “content-based” anti free speech activity on the part of the Missouri highway department. In essence, the highway department was judging the morality of the message, and responding with a deterrent.

I read the article, sent to me by a friend, and began to think about it. As a Constitutional scholar, as an attorney who swore to uphold and defend the Constitution against all enemies, including when an enemy happens to be a government, this posed a real conundrum for me.

On the one hand, the whole purpose of the Constitution is to protect the minority from the majority, even when the minority are a bunch of hateful, ignorant bigots. It is their right to be hateful ignorant bigots today that protects the next “free thinking religious conscientious objectors” (for example, like the Puritans who came here on the Mayflower) from governmental persecution tomorrow. No one – no one – is intelligent or wise enough, or great enough in soul and in spirit, to be solely responsible for judging the content of the ideas that flood the marketplace in a country with 300 million people. For these reasons, it is critical that we not allow the government to ever generally legislate the content of our free speech except in the case of the most outrageous abuses, such as yelling “fire” in a crowded theater, or publicly calling for violence.

When there is a legitimate purpose to legislating against free speech in certain environments, however, where certain people are more vulnerable, then, of course, it is also appropriate to do so, such as in New Jersey where we have anti-discrimination laws that affect the workplace and places of public accommodation, where hate speech is aggressively legislated against. Put simply, you can’t call your co-worker a racist name because you will upset the Law Against Discrimination, but you could call a stranger that racist name at a bus stop. Either way, the racist name is just as hurtful and just as objectionable on moral grounds, but at a bus stop, the state lacks the legitimate interest to legislate against that speech and therefore free speech concerns must reign supreme. In the workplace or in a school, however, or when the individual called the name comes into a restaurant to eat, it is especially inappropriate and therefore it is legitimate for the state to legislate against it.

That's the balancing act.

Part of me applauds the Missouri move. Technically, there is absolutely nothing wrong with renaming a stretch of highway to applaud and laud a civil rights activist. At the same time, however, it is very clear to me that they would not have made this move but for the particular content of the Nazi speech. Part of me is worried about that “trick”, even if it has the effect of offering counterbalancing ideas to Nazi thought. What if, the next time, some racists in the state legislature decide to rename the highway after Adolf Hitler just because a synagogue decides to adopt a highway?

Unlikely, of course, but then, once upon a time, everything that ultimately surprises us seemed very unlikely before it happens. As a Constitutional scholar, my job is to think about this, even when most people don’t, even when most people are smiling and clapping over the Missouri move.

For now, I guess more of me likes the idea than doesn’t. But it’s worth a discussion, and as I said above, the discussion is a symptom of a healthy democracy.

So discuss it.

I Didn't Sexually Harass Her But They Fired Me Anyway

webmaster@lawyercentral.com (Lawyer Central) — Wed, 29 Jul 2009 02:09:48 EST

We've heard this many times, nearly always from men facing allegations from women in the workplace. The standard fact pattern was usually a "he said, she said" scenario, where, given a choice of whom to believe, the employer chooses the female accuser over the male accused. Almost always, it seemed, the employer was playing it safe, risking an aggrieved male without a likely legal remedy over a female accuser with a certain legal remedy in the event the employer handled the accusations 'the wrong way.'

Until recently, the standard answer from our firm to such people was that we couldn't help. Employers, we explained, faced significant liability for failing to respond to allegations of sexual harassment, and if in the face of that liability, some employers simply chose to credit bare allegations, it was within their right to do so, however unfair it seemed. The historic pattern of sexual harassment of women in the workplace, combined with the policy requiring that, presented with accusations, the employer must respond in some reasonable way, meant that choices of whom to believe meant the choice usually favors the accuser.

To which the response from most of the callers has been words to the effect of “so then, someone can say anything they want about me and I can be fired?” My response is often, basically, yes, at least here in New Jersey. And since New Jersey’s Law Against Discrimination (LAD) is a fairly proactive, liberal and far-reaching civil rights statute, that was probably the way it was going to be in nearly every other state as well.

But that might changing. Slightly.

We've had some questions of late regarding a recent decision out of the 2nd Federal Circuit Court in Sassaman v. Gamache, issued May 22, 2009. Here's what happened in that case:

What happens when the male is fired not just because the employer wants to make the safe decision and believe the accuser for practical or economic reasons, but when the employer goes as far as to say words to the effect of “well, since you are a man, you probably did it anyway”?

Isn’t that sexual discrimination as well?

After all, isn’t discrimination for the most part based on stereotypes? And don’t stereotypes derive from broad-based assumptions about particular individuals, not judging them based on their individual conduct, but rather judging them on how they look or to what group they belong? And if an employer decides that women are inherently truthful about sexual harassment and men are inherently untruthful, isn’t that exactly the type of discrimination the LAD prohibits?

And if the answer to all of that is “yes”, collectively, does that really put employers in a “no-win” position?

It is important to read the Sassaman decision. The supervisor very stupidly stated to the male that he discharged words to the effect of “I really don’t have any choice. [The alleged victim of the harassment] knows a lot of attorneys; I’m afraid she’ll sue me and besides you probably did what she said you did because you’re male and nobody would believe you anyway.”

Well, that was stupid.

The 2nd Circuit Court decided that, combined with a failure to adequately investigate the allegations, the “gender stereotyping” inherent in the decision to fire the male was no different than any primary sexual discrimination which might otherwise be committed in the course of employment. Assuming that a male is going to lie about sexual harassment and is more likely to have committed the act than a female is to lie about the act having been committed is no different than, and certainly just as bad as, assuming other discriminatory stereotypes about men, women, straight people, gay people, black people, white people, etc.

The 2nd Circuit also noted that the rush to judgment and the failure to adequately investigate was very much akin to the failure to investigate when an employer is protecting an illegal harasser or discriminator. The “rush to judgment” here was simply an apparent validation of the employer’s pre-existing stereotypical impression of men as perpetrators and women as truthful victims.

Now, to be fair, in all the years we've been unable to help the general male in the general scenario absent evidence supporting the discriminatory assumptions about men, we've never heard a fact pattern like the one above. Had we, we would have accepted the case for the same reasons that the attorney in Sassaman obviously accepted his or hers, and I believe we would have prevailed.

It will still be a cold day in July when an employer or their agent is foolish enough to make the sorts of admissions that the employer’s agent in the Sassaman case made and escape liability for them. That won’t only be because most employers aren’t that dumb, especially not after many of them have read Sassaman, but it’s also because a lot of the time, gender stereotyping isn’t necessarily at the bottom of a termination of a male accused by a female of sexual harassment. Sometimes, it’s a gut reaction or a gut hunch that the employer has that the allegations are truthful. Sometimes it’s simply an economic argument; firing the harasser is less legally dangerous than believing the harassee.

Also, it should be very clearly noted that the Sassaman Court in no way authorizes a new breed of lawsuit for a simple failure to investigate adequately when such a failure is not coupled with the sort of “gender stereotyping” evident here. Nothing in the decision seems to open the door for “negligent failure to investigate” claims under the LAD on the part of fired alleged harassers, though common law defamation claims for such men have and continue to exist; they just don't have a great chance of success, or significant value.

While the Court thought that the failure to properly investigate and the “rush to judgment” were relevant here, it felt that they were relevant to the issue of admitted gender stereotyping. I don’t believe that the Court has opened the door, as some suggest, to create an independent cause of action under Title VII (or under any State scheme which mimics Title VII, such as does the LAD) based upon nothing more than an alleged failure to reasonably investigate the allegation. I don’t believe such a cause of action will ever arise statutorily, and if it does, it won’t be soon.

Obviously, what we can infer is that employers are going to have to be a bit more careful about making sure that they investigate claims of sexual harassment before they act, especially in “he said, she said” one-witness-on-either-side scenarios such as this one. It is also important that the employer not predispose or “prejudge” the fact pattern simply because a woman is making a complaint against a man, nor let any “gender stereotyping” infect how it deals with the issue.

Unlike many of the defense attorneys that I know who are panicked over this decision, both because they see a new potential cause of action against their clients and also because they feel that it puts their clients in a no-win situation, I feel that nothing has really changed. As long as an employer intends not to discriminate, and truly does not discriminate in its heart, I think it extraordinarily unlikely that a “Sassaman” type claim will find any footing. While some courts may not require direct evidence of gender stereotyping in firing a male harasser accused by a female alleged victim, I think many courts will require something more than simply a “hunch” or an “inference.”

Why Mandatory Arbitration of Employment Claims Is Un-American

webmaster@lawyercentral.com (Lawyer Central) — Tue, 05 May 2009 02:09:48 EST

I've spoken about the subject of forced arbitration recently. It stinks. It's un-American, and it’s a clear plot by corporate America and its allies to KEEP YOU OUT OF COURT where you can challenge them before a jury of your peers. Instead, mandatory arbitration agreements, which are becoming more common, sadly, especially in the context of employment law, compel you to have your claim heard before one person. Few of these people are fair. Many are former management lawyers who represented corporate defendants and who know who's paying their arbitration fees and supplying them with work. Worse, these arbitration agreements usually fail to give you and your attorney enough time to develop your case and deny you and your attorney fair discovery (information seeking) rights.

Yet arbitrators charge fees that judges don't, and even when the employer only splits this cost with you (when you can afford it all, which isn't often if you've just been put out of a job), it still costs more money to try a matter before an arbitrator than before a judge.

So why do they want it so badly?

Because arbitrators almost never award the kinds of verdicts that juries do, awards which truly compensate victims and which deter discrimination, whistle blowing and harassment. Forced arbitration is corporate damage control.

Over you.

And it's not only expensive for employers, but also for you, because some of these agreements require you to pay part of exorbitant arbitrator fees you simply can't afford. And if you can't? No arbitration, and no case. It's time for the states and Congress to kill this serpent once and for all and end mandatory arbitration forever. I'm an employer, and I'm not afraid of Court, because I know how to treat people.

Here's a good discussion of this evil from a recent edition of the LA Times by David Lazarus:

_______

May 3, 2009

If you have a credit card, a cell phone or even just a job, chances are you've already signed away your right to sue if something goes wrong.

Mandatory arbitration clauses have become a routine part of the fine print in most financial, telecom and employment contracts, as well as numerous other customer agreements.

They typically require you to abandon the right to a jury trial or class-action lawsuit, and to agree instead to take any grievances to a professional arbitrator.

But because of the way the system is set up, critics say, arbitration often favors the company and not the individual. So the likelihood of a positive outcome (for you) can be less than if you had pursued litigation.

Consumer advocates, sensing a shift in the political winds under President Obama, believe the time is right to challenge mandatory arbitration and have banded together to support legislation ending the practice.

"We have no problem with arbitration," said David Arkush of the watchdog group Public Citizen. "We just want people to be able to choose it if they want it, rather than having it be required."

He was speaking on behalf of the Fair Arbitration Now Coalition, an organization of consumer and community groups. The coalition released poll results last week showing most people have no idea they're giving up a constitutional right when they sign contracts containing an arbitration clause.

When details of mandatory arbitration are made clear, 59% of Americans say they oppose the practice and would back legislation requiring that arbitration be voluntary, the poll found.

Easier said than done. Although bills have been introduced in the House and Senate ending mandatory arbitration, they're strongly opposed by some of the most powerful industries in the country, including banks, telecom providers and insurers.

"We know it will be tough," Arkush said. "But we've probably got as good a chance now as we've ever had."

One of the biggest problems with mandatory arbitration clauses is their prohibition on joining class-action lawsuits. This effectively takes away consumers' single most powerful tool in seeking redress from companies for relatively minor grievances.

More often than not, such issues would be too costly to pursue in court individually. Class-action suits allow consumers to join together in dealing with a deep-pocketed business, leveling the playing field.

Another key problem with mandatory arbitration is that the company generally gets to pick the arbitrator, often a retired judge. These arbitrators thus have an incentive to keep the company happy if they want future employment.

"If a retired judge issued a significant anti-insurance decision, for example, there is no chance an insurance company would use him again," said Jeffrey Ehrlich, aClaremont attorney who has handled numerous arbitration cases.

"The deck is stacked against consumers because the arbitrators don't want to offend the people who hire them."

Fontana resident John Ramirez told me he experienced just such a situation after going into mandatory arbitration with his former employer, Tenet Healthcare Corp., in 2003.

Ramirez, 37, believed he'd been discriminated against because problems with a prosthetic leg forced him to miss about six months of work. He lost his own leg in a childhood accident.

"They started giving me a real hard time after I came back," Ramirez recalled. "I was forced to work the graveyard shift."

He filed an arbitration claim seeking back pay and compensation for his claim of discrimination. But the arbitrator ruled against him.

Ramirez thinks a jury would have been more sympathetic.

"If I could have sued, I might have won," he said.

Tenet declined to comment. But Wayne Kessler, a spokesman for the American Arbitration Assn., a leading arbitration provider, said procedures are in place "that are fair and neutral, and which give all parties to a dispute an equal voice in the selection of an arbitrator."

Or maybe not.

Geoff Lysaught, director of the Searle Civil Justice Institute at Northwestern University School of Law, said researchers have found evidence that companies involved in repeated arbitrations tend to receive more favorable outcomes than infrequent participants.

He said this may not necessarily reflect the fact that "repeat players" represent more revenue for arbitrators.

"The reason they may win more often is because they only arbitrate cases they think they can win," Lysaught said. "They settle all the others."

He said this theory might also explain why consumers tend to win about half the cases they bring to arbitration, whereas companies win nearly 84% of cases they initiate.

Perhaps. Or perhaps, as consumer advocates and lawyers say, it's because professional arbitrators know how their toast is buttered, and they have a built-in bias toward pleasing companies.

Seems to me that if arbitration is indeed fair to everyone, it shouldn't have to be crammed down consumers' throats. Arbitration should be offered as a cost-effective and relatively speedy alternative to litigation. But it should be just one option available, just as filing a lawsuit should be an option.

By the same token, no company should be permitted to deny customers their right to a jury trial or to participate in class-action lawsuits.

In a perfect world, such things wouldn't be necessary.

But this isn't a perfect world.

New Jersey Considers Workplace Bullying Law

webmaster@lawyercentral.com (Lawyer Central) — Mon, 27 Apr 2009 02:09:48 EST

Assemblywoman Greenstein has sponsored A-1551, a bill to prevent abusive harassment and bullying in all workplaces in New Jersey, both public and private, and regardless of whether the abuse and bullying are discriminatory in nature.

    It’s about time.

    Oh, I am certain that some “employers” of the State of New Jersey and their advocates – the people that probably assume that they’re going to violate this statute on a regular basis and want immunity from doing so – will oppose this with their dying breaths. I recently had the pleasure to debate the issue with a noteworthy employment defense attorney on NJN News and it’s very clear to me that some of the opponents of this bill don’t really care about he rights of workers, but only about their freedom to do pretty much as they please, including reducing their workers to tears and illness.

    This amazes me.

    I’m an employer. In theory, I should be lining up with the other employers to worry about the “frivolous lawsuits” and other phantom boogie men that the employers and their conservative allies will throw into any discussion of this reasonable statue whose time has come. Yet, I'm not lining up with them. I wonder why?

    The cynical amongst you will say that I'm an employment lawyer, and that I stand to gain by bringing suits such as these. That's not why. It's because I'm not an ass who plans to abuse his workers.

    The statute doesn’t prohibit just any old rude, ignorant or unpleasant remark. It doesn’t prohibit asking for 110% from your workers. it doesn’t prohibit asking the workers to do overtime and telling that they might lose their job if they don’t. It doesn’t prevent setting exacting standards, nor does it even prevent favoritism, nepotism or unfairness.

    The statute is limited to dealing with severe and abusive, distressing conduct which, in fact, produces some degree of emotional distress supportable by medical expert testimony. Below that standard, there is no cause of action under this proposed law.

    It has been my experience as an employment rights lawyer that, out of the total number of people who contact our office each week, perhaps ten percent of them have potential cases. Of that ten percent, we decide to accept as clients perhaps half that number.

    Obviously, it is thus our statistical experience – based upon roughly seventy-five hundred inquires of this office in the just the last several years – that approximately 90% of all workplace bullying and harassment does not fall under one of the existing New Jersey laws meant to deter this conduct. New Jersey has two very progressive worker rights statutes: the Law Against Discrimination and the Conscientious Employee Protection Act. Yet those statutes are also very narrow. The Law Against Discrimination certainly deters harassment, but only does so when the harassment is motivated by one of the discriminatory categories contained in the law (race, gender, ethnicity, religion, etc.). The Conscientious Employee Protection Act only prohibits harassment which is retaliatory in nature and which is directed against someone who has engaged in “protected conduct” under the whistleblower statute which, in turn, is narrowly defined as opposing illegal conduct, opposing conduct violative of compelling public policies or which constitute fraud, or threatening to report or actually reporting such conduct, participating in investigations, and the like.

    There are some other minor and even more specific statutes in New Jersey, but those are the two big ones. As you will see from looking at the above descriptions, most of the harassment and bullying is motivated by concerns other than discriminatory motive and other than retaliatory motive (for the conduct that the whistleblower statute addresses).

    Most of the conduct is simply because some bosses really don’t respect the dignity of their workers, and that is something I think this statute is meant to change and something which ought to change.

    Let me be absolutely crystal clear: there is absolutely no excuse whatsoever for treating your work staff in a way which is so hostile, so abusive, so belittling and so designed to rob someone of their dignity that they are reduced to true psychiatric illness. Like I said at the beginning of this entry, there are far too many things the employer can still do to get what they want without also keeping on the list the most extreme conduct meant to truly wound and injure.

    The work’s compensation statutes, the opponents say, represent adequate remedies. They don’t discuss, however, how the worker’s compensation statutes provide very small dollar figures, and are generally insufficient to compensate the person for what they endure.

    Again, as an employer, I say that the time for this statute has come, and the only people it’s going to harm are the people it’s designed to harm, the employers who, by forcing their victims to go on worker’s compensation, spread the cost of their own bad acts to all of the employers of New Jersey. I don't think that’s fair. If the employers of our state think about that for a while I suppose they might start to resent the fact that their own worker’s compensation rates increase as a result of abuse that they don’t themselves commit.

    Maybe it is not such a bad idea to make the abusers to pay directly after all.

    We applaud Assemblywoman Greenstein and we hope that the New Jersey legislature has the wisdom, foresight and character to make this bill law.

Racial Harassment in Bergen County-Justice for Roberth Morales

webmaster@lawyercentral.com (Lawyer Central) — Fri, 10 Apr 2009 02:09:48 EST

Roberth Morales was a 17 year employee of the Bergen County Parks Department, having enjoyed a successful career and looking forward to supervisory and managerial level positions in his future.

    That all changed in 2004 when he received a promotion to interim supervisor and came directly under the control of two Mike Rand and Todd Cochrane. Both began to criticize Roberth’s ethnicity (Roberth was from Ecuador). Sometimes, Mr. Rand did this right in front of Mr. Cochrane, who is the assistant superintendent of the entire parks department. Sometimes, Mr. Cochrane would join in.

    They would talk about how Hispanic people were only good for getting drunk, drinking and joining gangs, that they were constantly bringing booze and weapons to the county parks and generally making sure that Roberth felt as low as he could possibly feel, he being an Hispanic man.

    The county hadn’t trained Cochrane and Rand not to engage in this behavior and hadn’t trained Roberth in how to deal with it. Roberth internalized the harassment, trying to keep his head up, but inside, it deeply affected him, as it would have anyone whose ethnicity and race were being so callously and viciously impugned by their own bosses.

    Finally, during a cold three days in April of 2009, Roberth got justice. Before a jury ofBergenCounty residents, cognizant that they were awarding a verdict against their own county that they would have to personally support in some measure by their own tax dollars, they awarded Roberth Morales compensatory damages. The Court will then follow suit to award attorney’s fees as well.

    Cochrane denied the conduct right down to the end, and county counsel was obliged to deny the conduct, too. In the end, however, justice won the day, reinforcing my faith in the jury system and in the power of eight strangers to come together and to deliver justice in the way that the original framers of the Constitution intended.

    There was no doubt that it was a hard case – defense counsel all but called Mr. Morales a liar – but in the end, the jury went with their gut and picked the truthful party.

    I was proud to represent him and proud to be a part of obtaining justice, one victory at a time.

Third Circuit Rules It Is Illegal to Discriminate Against an Employee For Having an Abortion

webmaster@lawyercentral.com (Lawyer Central) — Mon, 23 Mar 2009 02:09:48 EST

In a recent and controversial ruling by the United States Court of Appeals for the 3rd Circuit, it was decided that Title VII of the Civil Rights Act - and by extension, the New Jersey Law Against Discrimination - prohibits an employer for discriminating against an employee for having an abortion. This was a case of first impression.

Because Title VII and the LAD bar discrimination on the basis of sex, these same laws also pertain to pregnancy. Pregnancy, in turn, has been defined as including child birth or related medical conditions. As long as a woman is "affected" by pregnancy, that counts as "pregnancy," and thus as gender or sex.

The plaintiff in this case had contended that she had undergone a surgical abortion and that she was discriminated against and terminated as a result. The defense to that particular claim had been that there was no protection under the law for an individual who had decided to have an abortion.

While the 3rd Circuit has been normally somewhat conservative as of late, and while employees generally don't enjoy a high rate of success there, the 3rd Circuit obviously did the right thing here. As long as a woman's right to chose is still alive, and as long as it is a constitutionally protected right, an employer cannot discriminate simply because a woman exercises that right or experiences complications or medical issues as a result.

The plaintiffs' employment bar is encouraged by this correct and reasonable decision.

Courts Unfriendly to Employment Plaintiffs-Harvard Study

webmaster@lawyercentral.com (Lawyer Central) — Mon, 16 Mar 2009 02:09:48 EST

The Harvard Law and Policy Review, the Official Journal of the American Constitution Society for Law and Policy, cites what seems to be a generally bad track record for the fair handling of plaintiff's employment cases in the Federal Courts.

As an employment practitioner in New Jersey, I am fortunate enough to have an excellent New Jersey statutory system protecting worker's rights, most known of which are the Law Against Discrimination (LAD) and the Conscientious Employee Protection Act (CEPA). These statutes allow me to go to New Jersey Courts in order to handle those statutory claims. Once in a while, however, because we are dealing with citizens of different states (for example, my client is a worker in a New Jersey setting, but the company is based outside of New Jersey), I am forced by the defense to fight the matter in Federal Court.

The Harvard study deals with all of the federal courts across the United States, but it is important to understand how the Federal Courts are organized in order to appreciate how the study affects your rights in New Jersey.

The Federal Courts are divided into a number of "circuits" which each contain a certain number of states and territories. New Jersey belongs to the Third Circuit. In each Circuit, all of the individual district trial courts send appeals to the appropriate Circuit Court. So, therefore, if you were to file an appeal from the decision of a Federal District Court in New Jersey, you would go to the Third Circuit Court of Appeals. If you still felt aggrieved after that, you would appeal to the United States Supreme Court from the Third Circuit.

Obviously, each Judge is his or her own person, and each district and each circuit are individual entities. Yet the study identifies some very troubling overall trends.

These are ominous findings, and not to be lightly cast aside, no matter what your political or cultural meanings may be. Obviously, people without integrity will argue against this study on the grounds that the finding itself is biased (anything that comes out of an Ivy league university is usually attacked by the right wing) or on the grounds that the study is too vague or doesn't take into account other factors. Obviously, someone who is committed enough to ignoring the truth - for whatever reason, perhaps because it serves their interest to do so - will certainly find a way to ignore this study. Yet the study is compelling and unsettling.

From 1979 through 2006, federal plaintiffs won only 15 percent of job discrimination cases. By comparison, plaintiffs in cases not involving job discrimination won 51 percent of the time. That's a startling disparity. The study asks many difficult and troubling questions about why this disparity might occur. Some wonder about whether or not it's a lack of minorities on the bench, others wonder whether or not the burdens of proving job discrimination are simply too high to be fair, and still others cite a variety of reasons ranging from the short periods of time that plaintiffs are given to gather evidence in federal court to the infiltration of corporate and other vested financial interests controlling the judicial appointment process.

Obviously, employment defense lawyers see no reason to agree with the study. An attorney at Proskauer Rose, an employment defense firm, was quoted in a recent article commenting upon the study; "if it's a real case, they settle, employers aren't dumb." This comment, of course, pre-supposes that all defendants readily settle meritorious claims - they don't - and that any claim which doesn't settle must lack merit.

I of course take issue with this comment, although I don't personally know the attorney to whom the comment is attributed. Obviously it is all very easy for a defense lawyer to say something like that. On the other hand, what the comment doesn't acknowledge is the fact that defense firms attempt to "paper" plaintiffs to death in most cases. They attempt to assassinate the plaintiff's character, make investigation into jobs that the plaintiff had both before and after the affected job in the case, and in other ways seek to intimidate that plaintiff - and other plaintiffs - from filing valid lawsuits. In addition, many defense firms and their clients take the view that if they settle any case, then they appear to be a "soft target" for other individuals who would then bring more groundless claims.

No, I'm afraid that comment by the defense lawyer doesn't fairly portray the employment rights warfront at all; we here at the firm would know, as we're there fighting, every day.

Yet even as an employment lawyer exclusively representing plaintiffs, I am not entirely unsympathetic to what the attorney says. Clearly, if you look at a large enough population sample - there are over 300 million people in the United States - you are going to find idiots of every stripe. There are certainly cases in every area of the law - filed by corporations as well as by individuals - which lack merit and which ought not to have been filed. There are, however, in employment cases, many defenses which lack merit, as well as there are defense tactics which lack merit and/or which are unfair, that are pursued without hesitation. Documents are purposely withheld and/or destroyed, forcing plaintiffs to endure constant Motion practice in order to obtain the documents, which Motions of course have the effect of exhausting and rendering irritable Judges who finally "give up" and stop rendering fair decisions.

This tactic is akin to the first kid in the back seat who keeps irritating the second kid, causing the parent, eventually, to blame the second kid when he yells 'ouch' one too many times.

In many states plaintiff's employment practitioners have been paring down or even eliminating their practices, leaving victims of discrimination and retaliatory whistle blowing to the mercy of less capable attorneys and/or to the vagaries of the EEOC and/or state administrative agencies.

Of course, in states like New Jersey, where there exist powerful state statutes protecting workplace rights which tend to at least duplicate if not go father than the federal statutes, there is usually no reason to go to Federal Court in the first instance, unless a plaintiff is moved there involuntarily by a defendant on the grounds of different citizenship of the parties or for other reasons, as noted above.

I am also not suggesting that there is an inherently unfair approach taken by New Jersey judges in Federal Courts. I know the New Jersey magistrates and judges attempt to be fair. The problem is that they are working with a system of court rules which is not fair, at least not in my view. For example, in New Jersey, when I file an employment discrimination case in State Court, I am given 450 days of discovery in order to gather the proofs I need to win. On the other hand, in Federal Court, the initial discovery schedules are significantly shorter than that, and this of course inures to the detriment of the plaintiff, whose burden it is to gather evidence to prove their case. What seems fair - the fact that there is a short discovery clock which affects both parties - actually isn't fair, because it is really the plaintiff that bears the burden of proof and if both sides are deprived of the opportunity to gather evidence, it is usually the plaintiff that is going to suffer.

Another example of the inherent unfairness of the federal system in my view is the easy Summary Judgment standard that defendants need to meet in order to dismiss cases. No matter how fair minded a Judge wishes to be, they must follow the law. If the law itself is flawed, as I contend that federal summary judgment standards are, it is simply more difficult for a plaintiff to survive the summary judgment process. In the State Courts of New Jersey, on the other hand, the process is simply more fair, because the law has been written in a fairer way and judges are compelled to follow it.

After I read the article about this study on line, I took a look at the "comments" posted by individuals on line who had read the comments. These are also very troubling. People seem to be very impatient with the idea that social justice is still something for which the United States should strive. They seem to feel - and I'm certain that many of these people are Christian white males who've never known what it's like to suffer discrimination - that the United States is "just fine" and that women, racial minorities, disabled individuals and other historically disenfranchised individuals ought to just "suck it up" and accept the fact that discrimination is institutionalized. As a white male myself, I am embarrassed by such an attitude. The people who have been benefitting from unfair standards ought to be the first people who want to change those standards. It's easy not to see a problem when it doesn't affect you, or worse, when the practice benefits you at someone else's expense. I'd like to hope that many of these commentators don't live in New Jersey, and I'd like to hope that they don't show up on our juries.

Think about fairness as it affects people other than yourself and think about whether or not it's time to start changing the people who in turn have the power to change the federal judicial system. It was envisioned as a check and balance against the legislative and executive power. It's supposed to be fair. The statistics suggest otherwise.

Finally-Religious Based Harassment is Truly Illegal in New Jersey

webmaster@lawyercentral.com (Lawyer Central) — Fri, 06 Mar 2009 02:09:48 EST

Until the New Jersey Supreme Court's Recent Decision in Cutler v. Dorn, victims of religious based harassment in the workplace in New Jersey have labored under a significant disadvantage. As a result of a regrettable 1999 opinion from the Appellate Division in Heitzman v. Monmouth, religious harassment victims had been forced to meet a higher standard of proof as to what constituted a religiously hostile workplace than had other hostile workplace victims, such as those suffering racially or sexually hostile workplaces.

The Heitzman Court, with all due respect, seemed to pick and choose which evidence it considered to support the hostile workplace claim, seeming to torture the fact pattern so that evidence which was strongly supportive of the plaintiff's claims was not considered, while 'weak' evidence was. The result was an opinion which seemed to set the bar higher for religiously hostile workplace claims than for hostile workplace claims of any other type.

And boy, did the defense bar jump all over it. In every case of religious harassment - and in many other types of harassment cases - the defense bar attempted to use the Heitzman decision to start chipping away at the gold standard for a hostile workplace claim in New Jersey as set forth in the Lehmann v. Toys 'R' Us decision.

Heitzman had since 1999 therefore represented a road block against a number of meritorious cases, resulting in unfair and early dismissal or impaired value, for many years, until the recent decision of Cutler v. Dorn.

Finally, as a result of the Cutler v. Dorn decision, religious harassment cases are now adjudicated in exactly the same way as are other workplace harassment cases. The standard for religious harassment cases is now higher than it is for other types of harassment cases.

The employment bar is most encouraged by the elimination of the Heitzman decision and by the placement on equal footing of religious based harassment claims with other types of harassment prohibited under the New Jersey LAD.

Corporate Greed

webmaster@lawyercentral.com (Lawyer Central) — Sat, 20 Dec 2008 02:09:48 EST

Folks, I can't say it better. This is from a CBS news analyst and speaks eloquently to what I do, why I do it, and why it's time to change the culture in this country and bring the business world to heel. Here it is:

"Made in America: Corporate Gall"

Dec. 20, 2008

(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News and
CBSNews.com.

Like the child who kills his parents and then begs for mercy because he is an orphan, the U.S. Chamber of Commerce now is begging President-elect Barack Obama to protect corporate interests in the nation's civil litigation system as a way of restoring jobs and bolstering an economy shattered largely (as we now know) by corporate greed and misfeasance.

Talk about your gall.

Here is what the president of the Chamber's legal arm wrote in an open letter to Obama: "We understand the critical necessity of revitalizing the economy by restoring American jobs, encouraging the growth of U.S.
businesses, and protecting the savings and investments of millions of Americans. However, we are concerned that the potential expansion of legal liability significantly impairs these much needed steps toward a national recovery."

The quote may be roughly translated this way: "Now that corporate America has helped screw everything up and led us into the greatest economic crisis since the Depression, we need to make sure that corporate America isn't aggressively punished for its misdeeds or legitimately thwarted from misdoing them again."

This is either an astonishing hypocrisy - Is corporate America unaware that the rest of us are in on the secret of the causes of the recession? - or the clearest indication there can be that Big Business is, always has been, and always will be about protecting Big Business.

The Chamber has been pushing tirelessly for decades to rein in plaintiffs' attorneys (who look to punish corporate negligence or fraud with civil lawsuits), deregulate industry and commerce (we all know how well Wall Street did with its freedom), and nullify important consumer protection laws (like the one in Maine which is allowing smokers to go after tobacco companies for false advertising). The lobbying effort has been national and local, highly-public and super-secret, and devastatingly successful.

Thanks in part to the Chamber and its Orwellian-named Institute for Legal Reform, the Securities and Exchange Commission backed off its scrutiny of screwy deals and schemes, the Congress was lax in its oversight of the mortgage industry, litigators were thwarted or punished, and the White House and Justice Department pushed a legal doctrine ("preemption") that almost always helped employers over employees.

All of these things, and more policies and practices endorsed by the Institute, helped unshackle the savageries of corporate America and left individuals less protected against an ever-freer and more predatory market.

Indeed, aside from the occasional Supreme Court decision that has helped the little guy, and the heroic efforts of states to help protect consumers and the environment, the history of our "litigation system" (as the Institute puts it) over the past 20 years is one of unremitting advances for the Chamber and its fellow travelers in law, politics and governance.

The Environmental Protection Agency has been reduced to a shadow of its former self so that polluters have gone unpunished, the Madoffs of the world have been nurtured and coddled and thus have flourished, and the brutal Savings and Loan crisis of the late 1980s has been made to look like a bake sale compared to the trillions of investment dollars lost and the hundreds of billions soon to be spent by our government.

Even the Web site for the Institute reads like a cruel parody. Not surprisingly, it does not highlight the personal stories of the millions of victims of corporate greed or managerial incompetence. It does not measure the number of lives saved, and fortunes protected, and pollution cleaned through these lawsuits. Instead, under the banner of "lawsuit abuse," it tracks the lives of people who believe for one reason or another that they have been unfairly sued.

[Now, tell me, have you ever known someone who believed that he or she had just been fairly sued?]

Plaintiffs' attorneys aren't responsible for the mortgage-fueled economic meltdown. Class-action litigation isn't, either. And don't blame overzealous regulators or greedy employees who want better pay or conditions in their own factories. The people with whom the Chamber and the Institute do battle are not the people who invented or allowed the great pyramid schemes which brought down Freddie Mac and Fannie Mae. They did not force consumers to spend more than they earned or save less than they should. Corporate America is directly responsible for what has just happened to corporate America, and if you don't believe me, ask the folks at Ford, GM and Chrysler.

The economic meltdown came about because business interests were able to greatly decrease the vital tensions between industry and regulation, between oversell and oversight. And it will take the restoration of those tensions by government leaders not just to help bring us out of our slump but to help ensure that the next downturn doesn't come again for a long time.

So it seems to me that the last things the Obama administration ought to do once it takes over is further shackle lawyers, or stifle well-meaning state laws, or make it easier for businesses to avoid liability and culpability for their actions.

The Chamber and the Institute want us to believe that one of the problems which created our misery also happens to be one of the solutions to it. They call it "reform."

I call it nonsense.

Bigoted Pediatrician

webmaster@lawyercentral.com (Lawyer Central) — Thu, 10 Apr 2008 02:09:48 EST

I had a same sex female couple come in to my office to see my partner and I the other day. They had a beautiful little girl who was only a few weeks old. They live in New Jersey. Bear that in mind as I tell you the story, because, while this story's facts might not be shocking in more backward thinking and ignorant parts of the United States, it is particularly shocking having taken place in New Jersey.

These ladies went to a pediatrician. Now, whether or not this pediatrician knew that this was a same sex couple is open to debate, but be that as it may, they made an appointment for the little one's vaccinations.

When they went to the doctor's office, the doctor asked them who the mom was, and then who the father was. The couple replied that there was no father, but that the baby had been conceived through artificial insemination, and the birth mom indicated that her same sex partner was the baby's other parent.

Now, before I go on with the story, a brief moment for some background.

Last year, New Jersey appeared to have adopted a "Civil Union Law," this in response to a decision by our Supreme Court which suggested that full rights of marriage must be available to same sex couples... all rights, that is, except the name 'marriage.' The decision opted instead to call such unions 'Civil Unions' and essentially directed the legislature to pass a law which enabled the decision.

This law was supposed to have finally dispensed with the many inequities, loopholes and other defects of the prior "Domestic Partnership Act," which was essentially an abject failure. Not only did it not carry all the same rights as married couples had - only about 8% of those rights were protected in the Act - but it also overlooked the basic, human truth that words have power. The word 'marriage' was missing from the Act, and that enabled many ignorant people to treat Domestic Partners as less than marrieds, with all the bigotry that would entail.

So yes, indeed, the Civil Union Law was to finally equalize the field, grant all the same protections, and end the bigotry... but it still would not use the word marriage. Why? Why omit the word? Because aside from the irretrievably bigoted people on the one hand and the advocates for equality on the other was this vast sea of people for whom this issue was not particularly important either way, but who were still 'uncomfortable' with the idea of using the word 'marriage' to describe a same sex relationship. So the 'separate but equal' inequity of the Civil Union Law would remain after all. Yet, it was hoped, things would still get better.

Now let's return to the story.

My clients went and got 'Civil Unioned' (It doesn't even flow grammatically, not like 'married'), but, according to law, they still couldn't use the word 'married.' Which, I suppose, made them less than spouses in the eyes of the state, and, as a result, in the eyes of this doctor.

When the doctor looked up in surprise that a second mother was indicated, she proceeded to treat my clients in an increasingly hostile and humiliating way, culminating in a crying baby (babies pick up these vibes), two very humiliated people, and an order to "get out of my office."

My first thought when I spoke to these clients was that they were dealing with a "religious nut" doctor who was going to make some sort of biblical argument against same sex marriage and/or against the same sex orientation. The fact that there was a crying, presumably straight little baby girl at stake here would have made any such argument ridiculous - because any objection to the orientation of the mothers had nothing to do with the baby's needs - but frankly, I don't know whether or not the doctor had that as an issue.

What I do know is that this little episode teaches us a further lesson about the utter failure of New Jersey's civil union law. Notice I no longer capitalize it. It doesn't deserve capitals.

Using the word 'marriage' involves force and power, and carries with it thousands of uses in nearly every diverse culture on the planet. The word means something immediate, having only secondarily to do with gender. It carries with it an immediate appreciation of a life long commitment, of love, of desire to dwell with, support, and care for one another, and perhaps to raise a family. Say the word to someone from nearly anyplace, and any when, and these are the ideas that their definition of marriage involves.

Paradoxically, that might be one of the reasons why bigots, hate mongers and the ignorant are so steadfastly against the idea of using the word 'marriage' to describe a love relationship in a same sex people. Had these two women gone into the doctor's office and proudly declared that they were married, then the doctor would have had to have understood that, as a matter of law, marriage implies automatic adoption and automatic parentage. The phrase 'civil union,' on the other hand, implies confusion and uncertainty, and provides exactly the kind of fertile ground for the ignorant to do what this particular doctor did.

It doesn't matter if you are gay or straight, religious or not. What's fair is fair. Don't be satisfied with civil unions, because injustice anywhere is a threat to justice everywhere.

Governor Corzine Lets Down The People of New Jersey

webmaster@lawyercentral.com (Lawyer Central) — Fri, 25 Jan 2008 02:09:48 EST

For years, the American Association for Justice and the New Jersey Trial Lawyers Association have been trying to right a long standing wrong in New Jersey. New Jersey remains one of only 10 states which still do NOT ALLOW pain and suffering damages to survivors when they lose a loved one as a result of negligence. Even most conservative states allow these damages now.
Yet even a democratic governor is capable of bowing to corporate pressure. Despite passage by the state Assembly and Senate of an Amendment to the State's Wrongful Death Act which would allow grieving families to collect compensation for their pain and suffering over the loss to negligent death of their loved ones, the Governor "pocket vetoed" the bill, which meant he refused to sign it and let it expire.

So. A liberal governor doesn't even act to protect victims. What chance do we have to halt the slippery slope toward corporate/banking/insurance fascism in this country? Very little.

But we'll keep trying. You should, too. Elect people ready to tell vested money interests in this country to go to hell.

Racism in the Jury Box

webmaster@lawyercentral.com (Lawyer Central) — Fri, 25 Jan 2008 02:09:48 EST

Here's another in the never ending list of stories we as civil rights attorneys have to tell, in order to bang through the heads of Americans to get them to understand that racism is still ALIVE AND WELL in the USA. Of course, it's alive and well all over, but aren't there places we all expect it NOT to be? Places where, as objectionable as racism is on general principles, it's especially not ok for it to exist?

How about in the JURY ROOM in a lawsuit, where a jury is called upon to deliver JUSTICE, in a FAIR and EVEN HANDED WAY?

Take a look at this story from Seattle, perceived as a "liberal" leaning city:

"Alleged racial comments made by jurors during deliberations in a medical negligence case have prompted a Spokane, Wash. plaintiff attorney to seek a new trial. Attorney Mark D. Kamitomo asked for a new trial after learning from two jurors that a number of their fellow jurors allegedly referred to Kamitomo as "Mr. Kamikaze," "Mr. Miyashi" and "Mr. Miyagi," behind closed doors. A judge is scheduled to hear Kamitomo's motion for a new trial on Jan. 25. AP, Seattle Times 01/15/2008"

Ok, so what does this tell us? What lessons are there to learn?

Lesson 1: If people are comfortable crapping on their oaths as jurors this blatantly, then imagine what prejudices, biases and secret grudges they carry into their duties in other cases.

Lesson 2: The corporate/insurance/conservative/pro-business smear campaign against lawyers, judges, the courts and the law is WORKING, if people consider judge shows and this kind of conduct appropriate treatment of one of the institutions which is a foundational rock of our freedom.

Lesson 3: Juries are NOT "running away with pro-plaintiff verdicts." Apparently, most juries are still sticking it to people for all the wrong reasons.

Lesson 4: RACISM IS EVERYWHERE. If you deny it, you're not paying attention. If it can happen in "liberal" Seattle, where might it also happen? Here. That's where. Anywhere.

So what are you prepared to do about it? Any opinions or jokes you'd like to have back? Does this embarrass you at all if you care about our country?

Me? I plan to keep fighting.

The McDonalds Myth

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 02:09:48 EST

Ever hear someone rant and rave about the "McDonald's Coffee Case?" About how "that's what wrong with our Court Systems," and other ignorant nonsense? They're wrong. They're spouting - and repeating - MYTHS. Here are the FACTS...

MYTH #1: "The Coffee wasn't that hot..."

FACT: McDonalds coffee wasn't just hot, it was scalding, capable of almost instantaneous destruction of skin, flesh and muscle (see below).

MYTH #2: "Stella Liebeck was acting like a fool, driving and handling the cup."

FACT: Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds. The grandson stopped momentarily so that Liebeck could add cream and sugar to her coffee. She placed the cup between her knees and tried to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

MYTH #3: "I heard she wasn't even that badly burned..."

FACT: The sweat pants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. She had to undergo painful, repeated debridement treatments.

MYTH #4: "She held out for millions..."

FACT: Liebeck sought to settle her claim for $20,000, but McDonalds refused.

MYTH #5: "Poor McDonald's was caught by surprise..."

FACT: During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. This history documented McDonalds' knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees to maintain optimum taste. The McDonalds witness admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforced a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder," since the location of the writing would not warn customers of the hazard.

MYTH #6: "This case is about crazy juries giving millions away..."

FACT: The jury awarded Liebeck only $200,000 in compensatory damages despite the seriousness of her injuries. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. In order to punish McDonald's for its horrid, willful conduct, however, the jury also awarded Liebeck $2.7 million in punitive damages. Yet that amount is equal to about two days of McDonalds' coffee sales.

Yet, even given that paltry amount, the trial court ALSO reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful. No one will ever know the final ending to this case.

MYTH #7: "So what? How does this verdict even matter? Nothing's gonna change..."

FACT: Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees.

SO, what have we learned? First, don't shed a tear for corporations. Second, don't believe the thirty second sound bytes, especially not the ones from conservative commentators, who've taken lies and half-truths to an art form. Third, be wary of "secret settlements" which let corporations make millions off the PR of "poor us" while GAGGING the victim.

Fourth, finally, and most important of all: LAWSUITS CHANGE CONDUCT AND MAKE US ALL SAFER: CORPORATIONS AND THIER POLITICAL STOOGES DON'T.

The parties in this case, at the insistence of McDonald's, eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned.

Caps On Damages Dont Work

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 02:09:48 EST

"Caps on Damages Don't Work" This excellent editorial appeared on Newsday.com on Oct 17 2007:" Darrie Eason is a penetrating example of what's wrong with proposals to cap damages for pain and suffering in medical malpractice cases. The high cost of malpractice insurance is a problem. But adding insult to patients' injuries by arbitrarily limiting jury awards is not the answer.

Eason was told she had cancer. One double mastectomy later, doctors told her the devastating diagnosis was a mistake. Her tissue sample had been mislabeled. She never had cancer. Tragically, by then her breasts had been removed.

If it's proved that her travail was caused by somebody's negligence, she can collect economic damages - lost wages and the cost of hospitalization, surgery, physical therapy and the like. But that just covers her expenses. So, what else is there? Whatever a judge or jury considers just compensation for her pain and suffering.

Under current law, without caps, she could be awarded millions of dollars. Impose the cap sought by President George W. Bush and congressional Republicans, and she could get no more than $250,000. Would that be just? What's the anguish of losing two healthy breasts worth for a single, 35-year-old woman? Right now that's for jurors to decide, as it should be.

Virtually all the other actors in malpractice dramas - insurers, doctors, lawyers, hospitals, laboratories - have deeper pockets than the typical person who sues. People like Eason shouldn't be forced to bear the brunt of the cost of fixing the nation's malpractice insurance problem." Every independent study done on caps on damages awards compels the same conclusion: THEY DON'T WORK. The caps issue is, in simple terms, a corporate and insurance HOAX perpetrated on the public and on the professionals - including lawyers - who pay insurance premiums. Don't vote for candidates who sing this song, because they're almost certainly taking BIG campaign contributions from insurance and business executives. Do you think people like that have best interests at heart? Well, neither do their pet candidates.

A Rose By Any Other Name - Marriage

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 02:09:48 EST

The NJ Supreme Court's decision in Lewis v. Harris, which recognized as fundamental a same sex couple's right to have all the benefits of marriage, was, in the classic sense, a compromise borne of cowardice.

My point is not to 'debate' same sex marriage. There is no debate. Marriage only comes in two forms: a religious ceremony, performed by a cleric, which carries no civil effect, and a civil marriage, which is the state's recognition of an economic relationship. Despite the pomp and frippery of a religious ceremony, it is the state that makes it official.

As long as no law can tell a temple whom it can marry, then it follows that no temple can tell the law whom it can marry. Any objection to same sex marriage equality is thus a religious objection. It is therefore of no consequence in or to a secular republic. Folk who are not satisfied with holding and expressing their religious beliefs within family and church and who insist that their religious values should dictate state policy should move to Iran to some other such place where religious 'values' dictate policy.

I was involved in the Lewis case. I represented one of the amicus parties, along with other counsel. We wished for more. We wished for a rose by any other name. We wanted marriage equality, and now, the battle begins again.

NJ's attorney general Rabner recently disappointed us in that effort by suggesting that NJ would 'recognize' marriages from outside of NJ as 'civil unions' only. This is, of course, an insult both to the principle, and also to those couples - and to the states from which they come - who were married where legislatures are braver.

It's 'just' a word, is marriage, but then, so is 'justice.'

What Workplace Harassment Says About Our Society

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 02:09:48 EST

In my last entry, I said I hoped that this blog reveals who I am as a person, because those who come to me for help should have complete faith in my ideals, as well as my skills. Here's the first of those peeks behind the green curtain; it has to do with why I do this work.

I know the title references the workplace and our society, but I ask you to bear with me as I start that topic in the past - my past. There's a reason I start this discussion thirty five years ago, in Brooklyn, NY.

My mother, who's no longer with us, was Jewish, and dad, who survives her, was Catholic. Nowadays, I suppose, you could call him an agnostic. Neither of them were much religious, and our house was one in which there was no formal discussions of, or resort to, deities. The religious culture was more for both of them about family traditions than belief.

As you might expect from such a blend, holidays were many, and were celebrated in what was for our home a pretty unique manner. I remember Christmas Trees and Chanukah menorahs in the window at the same time, sausage and peppers on Passover, potato latkes on Easter, and Catholic and Jewish relatives laughing and eating - and eating and eating - the same dishes, in the same house.

I never felt odd as a little guy, having two religious cultures in the same house, because both families loved me. To a child, happily, there's not much more he needs; metaphysics and sociology come later. If there were pressures, or prejudices, between members of the family, I never detected them as a young child, and I remain happily ignorant of them in the present if such ugliness was ever there at all, now that almost all of those adults I remember as a child have left us.

But as I got older, I learned the first truth about prejudice and ignorance: it's taught, it's not in-born.

In Brooklyn, NY, during the late 60's, 70's and early 80's, my childhood and then young adult-hood was a rich blend of cultures and ethnicities. There was a little bit of everyone and everything. Most of the time, closeness, tolerance and a common sense of "we all live here and the place isn't getting any bigger so let's get along" was enough to maintain relative harmony. Sometimes, it wasn't.

"Your (or 'our') own kind" was, sadly, a phrase you might expect to hear from just about every quarter. Jewish parents used it to tell their daughters not to date me because I wasn't Jewish enough. Catholic moms said it for much the same reason. African American students didn't spend as much time mixing with Caucasian students as they might have, and vice versa. Of course there were examples otherwise, noteworthy for their rarity, and so I thought of my childhood landscape as I grew not as a porridge, where everyone became a harmonious part of the whole, but rather as a stew, in which chunks of this and that maintained a distinct taste though on the same plate.

I don't recall at what age I remember starting to hear those words - you know the ones of which I speak, or ones like them - but I remember them suddenly becoming part of the background of my life. I remember hearing them directed at others, and I remember hearing them directed at me. In my ignorance, I said them too, as much because the sense of wrongness attending their use was not as compelling as the day to day reality in which those words were so common.

Non-Jews called me a 'kike' and a 'hebe' and Jews called me 'half-gentile,' or worse, 'half-goyim.' I suppose half an insult was intended as a more accurate description. 'Gay' and 'faggot' and the like were used to describe the real thing and to imply insult when it wasn't the real thing. The labels were everywhere. All the worst ones you can imagine were sprinkled liberally into the neighborhoods, into the classrooms - though not where a teacher could hear, even if those teachers might secretly sanction the use of those words themselves - and into the homes, the street games of stickball, the bike rides to the playgrounds.

The worst - and really, as I look back now, the strangest - part of it all was that, most of the time, there was less malice in the use of those terms than there was a sense that the observer was just stating the obvious. As often as not, I remember kids using those terms to talk to each other even as they laughed, or even though they were friends. It looks odd now, but then, I suppose, it was the only social system I knew, and it was hard to imagine another. I had no reason to imagine another.

I won't bother with the justifications for this way of relating to one another, because everyone has stories like this. "I didn't mean anything by it" would make someone a billionaire if they could patent its use in that context alone.

But is that enough to explain those times, those behaviors? "I didn't mean anything by it?" "Don't be so sensitive?" Are those phrases, and the endless cousins of such, enough to justify bigotry as the background wallpaper of my life? Of anyone's life?

How does that feel to you, as you read this in private, recalling those times when you were needlessly hurt by bigotry, or needlessly hurt others? Are you thinking the above excuses work for you, should work for our society? That trying to do better is a waste of time, or represents too much 'political correctness,' or represents the 'agenda' of some group trying to undercut our way of life? Or that there are 'more important things' about which to think?

When I was a kid, I suppose it was. After all, was there something better?

Yet I went to college, I got out of Brooklyn, I learned that there's always a way to build a better mousetrap. I become exposed to ideals which, being abstractions, are never really attainable, but the striving for the ideal is what ennobles us, not the attainment; and certainly not the abandonment of the effort to reach those ideals.

So what, as I ask at the start of this entry, does workplace harassment say about our society?

I'll certainly talk at greater length in other, future entries about the specifics of the law of workplace harassment, about the elements of such a claim, about developments in the law of NJ and in the law of the nation relating to such claims. Today, in closing this entry, I'd rather talk about the disease, instead of the symptoms and diagnosis.

Disease, as I come to think on it, is a pretty good metaphor.

When we're sick, we make decisions about how to respond, and our response depends on so many unique variables, there's no point in listing them all. But one of the main issues for us in deciding what to do when we're ill is how sick we are, and what's going to happen to me if I don't do something about it?

If we have a cold, we don't do much, because we don't worry much. If we have acne, some of us care more than do others, so some treat it, some just ignore it. For some diseases, some people have surgery, some don't.

Sometimes, a disease seems chronic - it will always be with us - but not quite enough to inspire us to make big changes in our lives. If you have high cholesterol, is it easier to change diet and exercise to lower it, or take a pill and eat that pizza?

Our society is sick. The reasons for it have as much to do with myths - which persist in misinforming people about how the early business of the United States was conducted - as with traditions and grievances brought here from other nations and from other cultures and religions. The sickness is one of those conditions which is persistent and seems unlikely to disappear on its own. Yet for many people, the symptoms of the disease are just not irritating enough to warrant major intervention. They ignore it, because it's easier than addressing it.

I know some people are angry reading this. They believe I'm not seeing the good in America, or Americans, that I'm a negative person, a naysayer, what have you. I'm not. I love the ideals upon which this country was founded. But I'm a realist, and I therefore know that no society has ever been perfect, and none will ever be. The goal isn't perfection, or a rose-colored refusal to see imperfection out of some misplaced sense of patriotism or stolid refusal to recognize problems. The goal, as I said above, is the striving for a better vision of the ideal.

The problem is that the disease of bigotry is insidious. Bigotry claims victims quietly, wearing them down, burning from them the passion to grow, the strength to achieve. Worse, these victims in turn might themselves become embittered transmitters of the disease, feeling that if they suffered, so should others. And even worse, the entire society suffers when the victims of bigotry fail to make the society a better place, instead becoming at best watered down participants in it or even enemies of it.

The next gay man beaten to death might have cured cancer. The next black kid shot by a racist cop might have become the man who saves the Mars mission at its critical moment. The next woman who, in the face of sexual harassment, quits her physics research career might have been the person who finds the fusion solution to the world's energy problems.

It would be easy for me to ask if we can afford such waste, expecting a resounding 'no' from everyone. That's a cheap question, because it's an abstraction, and thus easy to answer without much effort. Here's the harder question: What are you prepared to do about it?

Think about it more often than you have. If you do, I'll be satisfied that this blog has been worth the effort. What do I do about it?

I'm a civil rights trial lawyer, and I'm trying to make a point about how to treat one another with dignity and respect, one case, and one client, at a time.

The Road So Far

webmaster@lawyercentral.com (Lawyer Central) — Mon, 12 Nov 2007 02:09:48 EST

Welcome to my first blog entry. This feels strange, I have to admit. Even given as much writing as I've done professionally and in expression of my personal muses, I have to admit that the idea of authoring a blog still seems odd to me. In time, I'll get used to the idea. My sense of humility tells me that no one else besides my family and friends will be interested in my thoughts on the law and how the law relates to society. Yet clients and referring attorneys have asked so many questions so often, and suggested I author this blog so often, that I've given in.

My intention in the Journey to Justice is to talk about the law. For the most part, I plan to focus both on the specific areas in which I concentrate my trial practice, and more specifically, as to New Jersey, the state in which I maintain my practice. Yet I also plan to raise awareness about the law generally, and the state of our society and culture as a reflection of the law, and as affected by the law.

In talking about my areas of concentration in the practice - employment discrimination, workplace harassment, sexual harassment, wrongful discharge, failure to accommodate, sexual orientation discrimination, gender rights discrimination, workplace retaliation, wage and hour, whistleblower law - I plan to talk about the cases, the changes in the law as it evolves, the people affected by those changes, and what this critical area of the law says about us here in New Jersey and in America.

When I address the law generally, I hope to correct misapprehensions about the law, and to restore respect for it, and faith in it, as the best means by which we can resolve disputes. It'll never be perfect - nor will any other institution conceived by the minds of human beings - but our goal ought to be to make it as fair, and as good, as we can. That's not just the job of the legislatures, it's the job of every one of us as citizens. We're responsible for the people we elect and what in turn those people do; we're not blameless when we vote for the wrong people and when those people harm the electorate with their actions. We're also responsible for the examples we set, so we're responsible for how we talk about the law, and whether we instill in the next generations respect for it and faith in it. If we treat it with disdain and hostility, then we deserve what we get.

To punctuate that last point, I'll close with a quote from Dr. Martin Luther King, who was also human and therefore far from perfect. He said "Injustice anywhere is a threat to justice everywhere."

If we all remembered that not only when we interact with the law, but when we relate to others, we'd be doing a great deal better than we are.

Something upon which to meditate until we can talk again.