Professor Franks and the False Dichotomy

July 15, 2015

by Jay Marshall Wolman

Apparently, along with Eric Turkewitz, I have been blocked on Twitter by Mary Anne Franks.  A Rhodes Scholar and woman of letters, Dr. Franks has divined that I am not worthy of comment.  According to Dr. Franks, I am a “false rape truther“.  Presumably, she means to equate questions about false accusations with rape with those who question whether Al Qaeda was behind the attack of September 11, 2001, generally labelled “9/11 Truthers”.  Rather than engage in discussion, as one hopes a law school professor who takes to social media might expect, I have been banninated from her Twitter feed.  So much for academic discourse.

The primary thrust of this posting, however, is not to lament the inability of a law professor to engage in debate.  I agree that I am not “entitled” to her attention.  I do lament the lack of intellectual rigor in her discourse, and I am seeking to address that.

The initiating factor was her statement that the likelihood of a false rape accusation was “inifinitesimal”.  Dr. Franks wrote this in the context of a discussion on reddit that seems to have resulted in the recommendation that men wear body cameras to avoid false rape accusations.  It is an interesting proposal, given that the presidential frontrunner endorses police wearing body cameras, in order to ensure good evidence of what actually happened during an encounter (and, perhaps, to act as a deterrent).  Dr. Franks is concerned that this will lead to secret recordings and revenge porn.  She may not be incorrect on that point.  But it is a poor argument to then be dismissive of the underlying concern, false accusations of rape, as “infinitesimal”.  There is no question that such false accusations happen.  If Dr. Franks believes otherwise, then she is a False Rape Accusation Denialist.  When asked by Attorney Turkewitz to back up her claim that it is inifinitesimal, she cited to a Washington Post article.  As a Twitter follower of Attorney Turkewitz, I took note of the discussion and read the article.  According to one study in the Washington Post article, 41% of rape allegations were fabricated.  In another study referenced, 2-10% were fabricated.  Even acknowledging that there may be many actual rapes that go unreported, I was banninated for asking how many false accusations are too many.  Here is where Dr. Franks committed an egregious failure of logic.  She and I both agree that rape is very bad.  What she cannot seem to comprehend is that false accusations are also very bad.  For her, to be anti-rape you must also pretend that false accusations are not a problem.  It is not an either/or situation.  One should be both anti-rape and anti-false accusation.  In fact, false accusations hurt rape victims, for the false accusers harm the credibility of all accusers.  To protect rape victims, Dr. Franks should be working hard to prevent false accusations.

Men (and women) falsely accused or standing the risk of being falsely accused of rape rightly need to take steps to protect themselves.  The body camera idea is just one idea.  But rather than merely address the problems with the proposal, that perhaps other steps are required to ensure consent and privacy relative to the recordings, Dr. Franks opted to pretend that the problem is insignificant.  It is not, which is why it is big news when the UVA, Duke Lacrosse, or Tawana Brawley incidents are exposed.

Dr. Franks further seems to take issue with those who oppose voter fraud, somehow tying it to opposing false criminal accusations.  She also has a problem with raising concerns about benefit fraud.  I admit–fraud is bad.  Fraud in business is bad.  Fraud on the courts is bad.  Fraudulent accusations of criminal wrongdoing is bad.  And voter and benefit frauds are bad, no matter how infinitesimal.  In the last two, the entire polity is the victim of voter and benefit fraud.  Twice more, Dr. Franks sets up false dichotomies.  Disenfranchisement is bad, but so is counting votes of ineligible voters.  Poverty is bad, but so is improperly taking others’ tax dollars.  Again, these are not either/or situations.  One can impose voter ID while working to ensure that every eligible voter gets that ID.  One can audit benefit recipients while ensuring that those who are entitled get what is allotted.  We got country *and* western.

If Dr. Franks is going to lock herself in an ivory tower rather than engage in actual legal practice, she should use her time and Oxford education wisely:  come up with workable solutions rather than ignore problems.  Discuss and debate outside an echo chamber.

Is Use Discrimination Unlawful if Customers are Treated Equally?

July 10, 2015

By Jay Marshall Wolman 

There has been significant commentary in the blogosphere about a recent order out of Oregon allegedly imposing a gag order on a bakery that expressed an aversion to same sex weddings. I’ll leave the First Amendment analysis to Ken White at Popehat and Eugene Volokh as linked above. 

I’m a little more concerned with the order’s analysis of the discrimination claim itself. The Labor Commissioner did not undertake the traditional McDonnell Douglas test for discrimination. Now, this might not be an Oregon requirement, but there was no real analytical framework. This is usually important in determining if the acts were discriminatory. 

This case involved statements by the owners expressing an aversion to making cakes for same sex weddings. Let’s assume the easier case: an express policy against catering such weddings.  Is that unlawful? Why?

The statute prohibits announcing you will deny services “on account of …sexual orientation “.  ORS 659A.409. Technically, and it is unclear anyone argued this, no one is denied service on account of their orientation. Rather, the customers are denied service for the nature of the wedding. In most weddings, parents pay for the cake. This bakery would likely sell a cake to gay parents for their straight son’s wedding and refuse to sell to straight parents for their gay son’s wedding. No paying customers are denied on the basis of their orientation. The statute doesn’t address associational discrimination. Disparate treatment discrimination is not implicated and thus the bakery policy announcement of discrimination against same sex weddings, but not necessarily gay customers, would seem to be lawful. [Arguably, the conduct/person analysis of Elane Photography could suggest that it constitutes disparate treatment, but I believe that the conduct/person distinction is more suited to disparate impact analysis. The New Mexico Supreme Court in that case conflated Constitutional Equal Protection analysis with the statutory interpretation frameworks of disparate treatment and impact.]

The policy clearly has a disparate impact; there’s bound to be a spate of older gay couples now paying for their own weddings. However, the Commissioner did not address disparate impact theory, which may or may not be available under Oregon public accommodation law.  Thus, it may be the right outcome but for the wrong reasons. 

A Cost-Imposing Law that may Indirectly Save Millions

July 6, 2015

by Jay Marshall Wolman, CIPP/US

This past June, the Connecticut General Assembly enacted Public Law No. 15-142, ostensibly to improve data security in the state.  It follows on the heals of the Anthem Data Breach earlier this year.  The first major provision governs state contractors in receipt of confidential information received from the state.  The second major provision, addressed to Anthem and other health insurers, creates specific obligations to secure data under a regulatory scheme.  The third major provision addresses all other businesses.

Previously, reasonable notice of a data breach (release of certain unencrypted personal information) was required to be given.  A specific 90 day notice is now required.  More important is the remedy provision–in the event of a data breach, businesses (including health insurers), must implement identity theft prevention and/or mitigation services.  This also includes incidents where there is no actual proof of a data breach, only reasonable suspicion.  Normally, regulatory burdens such as these impose greater costs on the marketplace.  This may not be the case here.

Following Clapper v. Amnesty International, USA, most federal courts addressing standing (i.e. whether you can claim a right to sue) have found that the increased risk of injury from identity theft does not suffice to have been sufficiently injured to confer standing.  Novel theories to avoid this claim have included the costs of identity theft protection services incurred by breach victims.  This theory has been rejected at the trial court level.  See, e.g. In Re: Barnes & Noble Pin Pad Litigation.

Many companies experiencing a data breach automatically, for public relations reasons, offer identity theft protection services.  Thus, the formal obligation under law would not likely add significant cost.  And, assuming cases like the Barnes & Noble one were reversed on appeal, the claimants would no longer suffer the costs of such services, since the companies are now required (at least in Connecticut) to provide those identity theft services.  The practical effect will be that more consumer data theft class actions will likely be won on the defense of lack of subject matter jurisdiction (how a defense of lack of standing is brought).  With dismissal, there would be no settlement and no claim for millions of dollars in attorneys’ fees.  As a result, companies experiencing a breach (and their cyber insurers) would potentially save millions by doing what they already do, merely because the services are now required.

Of course, if increased regulation with a de jure cost burden has a de facto cost savings due to costs imposed by the court system, it may be time to take a closer look there as well.

The Expansion of Regarded-As Discrimination

June 17, 2015

by Jay Wolman

The Americans with Disabilities Act protects three categories of individuals:  those presently disabled, those previously disabled, and those perceived to be disabled.  The latter is deemed “regarded as”; it does not require the member of the protected class to actually have or have had a physical or mental impairment that substantially limits a major life activity.  This is the only statute explicitly providing for “regarded as” protection.  However, caselaw seems to be filling the gaps in other laws.

In Macy v Holder, the EEOC explicitly found that discrimination against transgendered individuals is unlawful under Title VII, discussing the difference between sex and gender.  It also reviewed cases finding that failure to conform to gender stereotype is actionable discrimination.  Of note, Title VII does not speak to gender.

Recently, in EEOC v Abercrombie & Fitch, the Supreme Court ruled that where an employer perceived that an employee might require a religious accommodation, even if that perception is wrong, and discriminates against the employee on the basis of that perception, such discrimination is unlawful under Title VII.  In that case, as you may recall, a Muslim job applicant was perceived to potentially need a modification of the dress policy, even though the employer disavowed actual knowledge of the need.  For all intents and purposes, it is now deemed unlawful to discriminate on the basis of being regarded as having a specific religious belief if the motive is then to deny a reasonable accommodation to that belief.

Taking it a further step is the case of Rachel Dolezal who regards herself as African American.  Let’s assume she is actually Caucasian.  If she applies for a job and is denied because she is perceived to be African American, does she have a claim?  She has not been discriminated against on the basis of her actual race.  However, she might have a claim based on color, as Title VII does cover both “race” and “color”.  But, she could lose if the employer replaces her with another bronzed or tanned Caucasian–“color” might not be sufficient.  Yet, expanding on Macy and cases cited therein, Ms. Dolezal may be viewed as not conforming to racial stereotype.  Thus, a white person, regarded as being black, might have an actionable claim.  And, if so, others may have actionable claims for not being white, black, asian, hispanic, or native american “enough“.

The Future of Restrictive Covenants in Settlements and Severance

June 5, 2015

by Jay Wolman

The law is ever changing and what is common may, at some point, become unlawful (or already is without folks realizing it).  Recent developments in statutory law and enforcement actions in existing law have really made me think about all of those clauses that commonly appear in agreements with former employees, whether as part of a severance agreement or as a settlement of claims.

For instance, many of these agreements include a confidentiality clause that prohibits the former or soon-to-be former employee from disclosing how much is being received in severance or settlement.  Many of these agreements contain new restrictions on the disclosure of trade secrets (or reaffirmations of prior such covenants), including personnel practices and wage scales.  Many of these agreements contain nondisparagement clauses prohibiting the employee from saying anything that might be deemed as negative against the employer.  Each of these may be or may soon be unlawful.

As noted by Connecticut attorney Dan Schwartz, the Connecticut legislature just passed a bill that prohibits employers from taking action that would bar an employee from disclosing his/her wages or that of another employee.  As noted therein, “wages” means “means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation”.  Certainly, to the extent severance or settlement represents such compensation, the law could be read to make settlement/severance payments that were confidential now free and open.  It also would render inapplicable any trade secret clause that prohibits disclosure of a wage scale or other compensation basis.  In fact, in the situation where there was a confidential settlement, where the claimant employee settled for, perhaps, too little, and thus wanted confidentiality, another employee with knowledge might now be free to publicize the settlement amount.

But wait, you might ask, the law says “employee”, not “former employee”, so isn’t that inapposite?  Not necessarily.  In Robinson v. Shell Oil, that noted liberal Justice Clarence Thomas, writing for the Court, held that “employee” for Title VII purposes, included “former employee” in order to effectuate anti-retaliation policy.  Connecticut courts may follow this rationale, and other states may adopt similar legislation.

That said, some of these provisions may already be unlawful nationwide.  Last year, the EEOC challenged CVS severance provisions that, among others, included nondisparagement clauses and prohibitions on disclosing personnel information. CVS won, but on a technicality, not substantively.  And the NLRB has found success in the 5th Circuit in the Flex Frac Logistics case, where a ban on discussing “personnel information and documents” interfered with employee section 7 rights to discuss wages with coworkers and non-employees.  As a hypothetical, imagine that the former employee wants to get hired as a union organizer to organize the workforce of the employer–the nondisparagement, nondisclosure, confidentiality clauses of a severance or settlement would likely interfere with the ability to organize and would probably not survive.

These clauses are very common, but likely are not long for this world.  In the interim, employer counsel may want to rethink the standard severability clause.  Although employers are certainly keen on obtaining as much a release as possible, it may be time to reconsider whether the agreement should survive if the former employee can simply ignore these clauses.  This also might not bode well for former employees, as employers are apt to pay less in severance/settlement if the amount will be subject to public scrutiny.

If you ever wonder if being a lawyer is hard…. (City of Inglewood v. Teixeira)

June 3, 2015

Do you?

Are you a law student, worried that you might not pass the bar?

If you’re that worried, read this shit and remember that the idiot who filed this idiotic lawsuit is not only licensed, but has clients. See Inglewood, California Sues YouTube Critic For Copyright Infringement Over Use Of City Council Videos (here)

The City of Inglewood is suing the author of this youtube clip for copyright infringement. Come at me, bro. I’m re-publishing it. (wags dick at fucking idiot mayor of Inglewood)

Seriously, read this garbage. If you think you can’t make it as a lawyer, just remember that the author of that piece of shit has a bar license and managed to snag the City of Inglewood as a client.

Negotiation Theory in Action

May 30, 2015


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