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New Jersey Employment and Civil Rights Trial Lawyer Discusses the Effect of the Trump Presidency on Employment and Civil Rights

On Behalf of | Dec 12, 2016 | Civil Rights |

Trump and “the people:” You’d better be right about this… 

I used to believe that it was impolite to too harshly criticize someone’s political view for the same reasons that it would be impolite to criticize someone’s “religious” view (or lack thereof). I was raised that way, and I’m old enough now (50) to remember a time when polite – though admittedly very strenuous and sometimes strained – political discourse was the norm. I remember civil, respectful and polite reporting on political issues.

We now live in a world of twits (yes, I know it’s “tweets,” but I think I made my point), FOX “news” (not “news”), and emotional, hate-filled racist and sexist rants as a political platform. We live in a world where millions of my fellow Americans found a way to support a man who literally was, himself, supported by racists, neo-Nazis, Ku Klux Klan and white supremacist leaders. He was also supported by a “religious right” so unprincipled, dishonest and delusional that they supported a man who has not one religious or faith-based bone in his body (over a genuine, church-going Methodist). They did that because what they really ­­care about – what they’ve always really cared about – is that the president will appoint Justices to the United States Supreme Court that will overturn Roe v. Wade. That’s the only real qualification you need these days to get the fringe religious lunatic vote. Not actual religious faith. 

To people so afraid, hateful, ignorant (“don’t tell me that global warming is real, I won’t believe you no matter how much science you throw at me!”), stupid and cynical that they’re incapable (rather than simply “unwilling”) to have a discourse even after the fact, as the Trump “transition team” stumbles from one incredibly ill-advised and objectionable potential appointment to another, I am not speaking. You’re beyond help, and not worth the time.

I’m speaking, instead, to the admittedly tens of millions of my fellow Americans whom I genuinely feel must have made a very difficult decision over which (I hope) they agonized, before they pushed the button for him. Maybe they really hated her; maybe they were afraid that a woman didn’t have the temperament to do the job no matter how objectionable the alternative was. Maybe they had what they considered to be “good” reasons.

I know that many of the people who pushed the button for Trump felt that they were casting a vote for a man whom they sincerely believed (though perhaps, in retrospect, as some of them have indicated, with difficulty) when he said he was for the “working man,” for the “common man,” for “Joe-6 pack” and his family. I believe that tens of millions of Americans, in short, voted for Trump because they thought that he was going to be “for” working people, that he was going to “drain the swamp” (and in their minds this somehow meant that this would be better for working poor and low-middle and middle-class families), that he would preserve jobs, protect workers’ rights, etc. I know that several millions of the tens of millions were actual Bernie Sanders’ people who turned to Trump because they thought that he would “break” the system just like their own candidate had promised to do (albeit, certainly and obviously, not in the same way).

It is to all of you and all of them that I’m now speaking on behalf of the rest of us who pushed the button for Hillary whether we liked her or not, whether we thought we would like to have a beer with her or not, or whether she was not foolish for using a second cell phone and an unsecured email server. I’m speaking to you and I’m telling you one thing for all of us:

You’d better have gotten this right, folks, because we – and our children and our children’s children – will be feeling the effects of the presidency for years to come, regardless of the (hopefully) saner choice we make in 2020.

Now that’s out of the way: do you still think that a vote for Trump was a vote for the common man, for the working man, for “middle America” and for the “silent majority?” You think it was a vote to promote the economy, protect jobs, etc.? Fine. I won’t lecture you any further. I hope that those of you that have common sense and a conscience will do plenty of self-lecturing (and perhaps some soul-searching) over the next four years as you watch the travesty you’ve set in motion unfold. Certainly, you’ve been questioning yourself a bit (I sincerely hope) as you’ve watched the inanity of the transition process and the incredibly disturbing love affair between Russia’s dictator and America’s President-elect.

As we always say in the law, the proof is in the pudding, so here’s your “Trump check-list,” from the perspective of an employment and civil rights trial lawyer, with which you can keep score: from the perspective of the “common” working person, was your vote an act of intuitive and prescient brilliance? Or one of the worst decisions you’ve ever made?

Without further ado:

1. Does Trump force the GOP Congressional Contingent to abolish mandatory arbitration of consumer, class action and employment lawsuits?

I have often explained (in multiple blog entries over the years) that mandatory or compulsory “agreements” to arbitrate claims in front of business-friendly arbitrators – instead of placing those claims in front of a jury of your peers – is a gross miscarriage of justice and an infringement on the right of every individual to have a trial by jury.

Check your iphone agreement, your car lease, your home warranty, and pretty much any other agreement from any medium to large size company, whether it’s on paper or electronic. I guarantee you that most, if not all, will have a mandatory agreement to “arbitrate” your claims. If you then have some claim that you’ve been aggrieved, cheated, defrauded or deprived of a right, you may not initiate a lawsuit in your local county court and ask for a jury to hear your claim. Instead, you’ll be forced to file an “arbitration” (probably in another state where the business is headquartered or has a friendly relationship with arbitrators) and you’ll have to pay (in some cases significant) fees to the arbitrator to have your claim adjudicated.

Which means, of course, that you won’t bother. Which means, of course, that the company wins before it even has to defend itself. This is, of course, great for business, but it’s not great for the working man.

You’ll be able to tell your vote was correct if Donald Trump cracks the leash and tells GOP Congressman and Senators to step across the aisle and join efforts with the democrats to do away with compulsory arbitration of consumer fraud, class action, and discrimination and employment rights lawsuits.

2. Does Trump appoint pro-business Judges for the Supreme Court or pro-justice candidates?

If you’re a working person, then you’re not happy with most of what the Supreme Court has had to say for the last 20 years or so, ever since the Court has become dominated by ultra-conservative appointees from Presidents Regan, Bush I and Bush II. Right now, there is a vacancy on the Court which the GOP contingent cynically refused to allow President Obama to fill, hoping that a GOP president would give them a chance to shift the Court to the right once more.

Remember that, when we talk about this, we’re not talking about religious issues, transgender issues, or other social questions, where you may disagree with the perspective from the progressive contingent on the high court. We’re talking about economic, business and free speech issues that directly affect your bottom line, the health of your family, and your ability to earn and protect your wages.

A further right-shifted Supreme Court will mean more decisions like the Citizens United case, which allows mega corporations and businesses like the Koch Brothers to, under the guise of political speech, donate billions of dollars to pro-business, anti-worker candidates and agendas. The court has allowed police to deprive individuals of their civil rights without accountability, has allowed employers to evade their responsibilities to employees, has allowed businesses to avoid accountability for massive tax fraud, has allowed the makers of defective products to avoid accountability for injuries by supporting “pre-emption” under Federal law, has invalidated class actions and has otherwise protected, as often as it could, by its 5/4 conservative majority, business interests as against the interests of individuals.

You’ll be able to tell that your vote was correct if President Trump appoints progressive, pro-worker and pro-individual Judges for the Supreme Court vacancy currently open and any others that become open while he’s in office. You’ll know your vote was wrong if he does the opposite.

3. Does Trump support open access to the courts or will he support limits on damages, limits to the right of a trial by jury and “immunity” for wrong doing?

The typical republican/GOP agenda on a national level is to, wherever possible, take away the individual’s right to hold corporations, banks, insurance companies and malpracticing professionals accountable for the harm they do, to obliterate the right for you to participate in class actions (where the number of voices has a power all its own), to limit the damages you can recover, and has traditionally advocated for diverting lawsuits into binding arbitration or to administrative agencies where your claims over defective products, fraud, malfeasance, professional malpractice or discrimination can be “preempted” by a regulatory scheme that denies you your right to a trial by jury.

The more Trump aligns himself with this traditional GOP strategy, and the less he exhorts his GOP colleagues to think about the “working man” and preserve and expand the right to go to court, seek damages and demand a trial by jury, the more likely he’s not for the “working man;” he is “the man.”

4. Does Trump support a scientifically based, forward looking energy policy that re-asserts America’s dominance in a post-fossil fuel world?

This one should be a fairly easy lift for you. If you’re not a complete idiot, or you don’t have a belief system that somehow denies scientific validity (in which case, really, you shouldn’t be reading this blog, because you’re using a “devil’s device” to do so), then you must accept the reality of man-induced climate change. The degree to which the earth has warmed in the last 100 years of heavy industry is significantly greater than the degree to which the earth warms even during cyclical periods of warming due to sun spot activity and perturbations in the earth’s orbit around the sun. It is scientifically impossible to defend a position in which global warming is not influenced by man, if you’re sane and honest.

That doesn’t, of course, stop heavy industry and oil interests (and, for reasons I frankly can’t understand no matter how hard I try, certain religious movements) from arguing that global warming is somehow a “myth,” but again, if you’re that stupid, I’m not talking to you.

I say that this one should be an “easy lift” because all of you live on the planet. And unless you have a starship hidden away, this is where you’re staying. It’s also where your descendants are staying. We don’t own the planet; we just rent it from our descendants. We owe them a well-maintained lease-hold property.

This one particularly tickles my dark sense of humorous irony, because the State of Florida “went red” (for Trump) during this last election cycle. Yet ironically, as oceans levels continue to rise, Florida will be the first State to go. Yep, Gators, I’m talking to you people, the State in which nearly every square mile is about .4 millimeters above sea level. It won’t take much for the entire State of Florida to disappear. As much as my sense of ire inspires me to suggest that it won’t be a great loss, the humanitarian in me compels me to warn all of you Floridians that you should best hold Trump to his promise to be “for the working man,” since most of the people that live in Florida are still “working people” (even considering the retired population).

Unless you’re planning for your grandchildren to have gills, you might want to make sure that Trump, in his executive orders and in the way that he appoints people to head the Dept. of Energy and the EPA, makes certain that America does not continue to contribute to man-made climate change. Rather, you should press your “working man’s President” to continue to push the United States to the front of the pack in terms of developing hydrogen fuel cells for all modes of transportation and internal energy consumption, to the using of federal land for the growing of biomass and the installation of solar farms and wind panels, and to the development (and international sale, which is good for business, hint) of clean energy technology and air and water cleansing technology.

Don’t you want those jobs? Don’t you want those investment opportunities? Aren’t you a patriot? What are you, a commie?

5. Does Donald Trump make appointments and initiate policies that directly attack illegal discrimination based upon race, ethnicity, national origin, religion, sexual orientation, disability and gender identity or expression?

Martin Luther King once said that “Injustice anywhere is a treat to justice everywhere.” I know that you get that, and therefore, I know that you understand that if you allow one or more groups to be marginalized or attacked because of who or what they are, even if that attack ends up advantaging your group, the worm will (inevitably) turn, and it’ll be open season on you and yours at some point in the future.

And putting self-interest aside, you also know that it’s wrong, don’t you? I mean, even if you voted for the guy (and again, I’m not talking to the religious nuts, now), you really don’t agree with racism, sexism or homophobia, do you? I mean, millions of you said you didn’t when you continued to apologize for him, say that he “didn’t really mean it.” etc., right?

Well if you meant all that, then you’ll make sure that the President invigorates the federal bureaucracy in such a way, and appoints federal judges of such a mind, that prevention and punishment of this type of illegal discrimination continues to be a national priority in schools, in workplaces and everywhere else that the law has reach.

It’s not just the right thing to do, it’s good for you when it becomes you on the chopping block.

How will you know that Trump is for the “working man?” When he protects all working folks; not just white, straight, Christian men from certain states.

In conclusion, I offer this parting thought: It’s never a good idea to “break” something unless you have the means to repair it, and a plan to do so after you’ve broken it. You didn’t have a plan, did you?

I didn’t think so. Like I said, I hope you’re right. I have given you the checklist to make that determination for yourself.

Good luck to us all.