A Nondiscriminatory Standard for Using a Discriminatory Word?

There is a difference between saying (or writing) a word and using that word; specifically, the former does not always entail the latter.

By setting forth on this blog posting the word "nigger" I am certainly writing it, but not necessarily "using" it to characterize or insult or demean anyone.  There are many, myself included, who truly consider the use of that particular word to be offensive; accordingly, in what may well be an overabundance of care and caution, terms such as "the word" or "that word" will be written in lieu of the aforescribed hexagrammaton for the remainder of this posting.

The jury has spoken.  Brandi Johnson has been awarded some punitive damages in her employment discrimination suit against her former employer, STRIVE East Harlem, and her former boss (and STRIVE founder) Rob Carmona.  Seems that Carmona, himself of the Black race, used (and not just said) the word in an excessively strident manner when asserting his position in the organizational hierarchy in his interactions with his former subordinate.  Carmona had claimed that the word has both derogatory and affectionate use in Black and Latino societies (English translation:  Black people are privileged to use that word, but white people are not).

The jury wasn't buying any of it.  Carmona and STRIVE were hit with punitive damages in addition to the compensatory damages.

My take on it all:

Firstly, neither Johnson nor Carmona are the cream of the crop.  It must be understood that STRIVE's intended target has never been the rightward reaches of the bell curve; to the contrary, STRIVE has used a "tough love" approach to get its clients to conform to the standards of the workplace and thereby obtain and maintain gainful employment.  Carmona himself managed to break free of the cycle, and, to his credit, now strives (pun absolutely intentional) to help others break free and become contributing and productive members of society.  Johnson, an employee of STRIVE (but apparently never a client) has a criminal record, which Judge Harold Baer found to be irrelevant to the case and therefore not for consumption by the jury panel.

Secondly, according to Johnson, "I was offended. I was hurt. I felt degraded. I felt disrespected. I was embarrassed."  Notwithstanding the tendencies of purported employment discrimination victims and other types of plaintiffs to overexaggerate their injuries, I basically credit Johnson's testimony at its full face value.  I myself have been the object of discriminatory bigotry, including but not limited to workplace venues, and can fully appreciate the damages such experiences can wreak.

Most notable, however, is that Johnson's attorney, Marjorie M. Sharpe, herself African-American, has publicly come out squarely and emphatically against the double standard which permits Black people to use that word while subjecting others who use it to loss of employment and steep jury verdicts.  Marjorie is squarely on target.  Too, too many in the African-American community have acquiesced in if not proactively championed the double standard, which, among other things, contributes in no small way to the violent culture of rap music.

And on a more personal level, I am far less likely to be convinced of the nefariousness of the word when those who insist that it is so ultraoffensive take license themselves to use it.

This case will likely set precedent, and not only in employment discrimination matters.

It is time for the Black community to take some affirmative action against their own double standard.

Mona Lisa

The world's most famous painting is arguably Leonardo Da Vinci's "Mona Lisa." Though relatively little is known about Lisa Gherardini del Giocondo, the subject of the painting, she is a very classy woman, if only by dint of Da Vinci's painting (and probably was more than a little bit classy in life).

Not so with one of her namesakes. The U.S. Tax Court case of Mona Lisa Herrington v. Commissioner, T.C. Memo. 2011-73, is the tale of a poor excuse for a woman who was abused by a poor excuse for a man, but who prevailed in Tax Court (against a poor excuse for IRS case management) on her contention that the money her abuser expropriated from her business constituted a deductible theft loss.

That this Mona Lisa was in the business of tax return preparation with her H & R Block franchise, and that she had in a separate criminal proceeding pleaded guilty to willfully failing to file her own tax returns, does not alter the situation except to make it more grave.

So read it and enjoy it, and remember that the deadline for filing your tax returns is fast approaching (I received my refund earlier this week, thank you).


The case is Mona Lisa Herrington v. Commissioner, T.C. Memo. 2011-73.

Imprudent Prude, or Incompetent Employee?

I'm back, after 3 weeks that have included an unusually heavy workload, religious holidays, and personal/household concerns.

This posting will comment on some ongoing litigation to which I have no direct personal or professional connection. Susan Seybert, whose employment was terminated by The International Group, Inc., has filed suit against her erstwhile employer for sexual harassment.

Let me state, out front, that sexual harassment in the workplace should not be tolerated. When I held a supervisory position in that great U.S. Government bureaucracy, I was personally compelled on a number of occasions to deal with the issue. I had to deal with one of my subordinates being stalked by some nutjob who worked upstairs. And, in the absence of both a co-equal supervisor of mine and our mutual Division Chief, it fell into my hands to most strongly admonish on of my co-equal's guys who persisted in making unwanted comments of a sexual nature to one of his co-workers (who later, by way of advancement in grade, transferred over to report to me). My personal experience confirms that sexual harassment in the workplace is deleterious to morale and productivity, and therefore avails no advantage to America's economy.

But in our litigious society, unhappy former employees (and their attorneys) are quick and loud with their cries of discrimination and sexual harassment in the lawsuits that seem to inevitably follow an employee's involuntary separation. And no one group has any monopoly on such litigation tactics. It thus falls upon the judicial system to sort out the meritorious claims of discrimination and sexual harassment from those that are baseless, frivolous and/or irrelevant, but asserted in attempted retaliation.

A sexual harassment claimant must prove in court that he or she (yes, men can be and have been sexually harassed) (A) was actually offended by the alleged conduct; and (B) a reasonable person in a similar situation would be offended by such conduct.

While Ms. Seybert was employed by The International Group, she used her company computer, on company time, to exchange with company employees some e-mails containing humorous prose and illustrations of a sexual nature. And so, over the objections of Ms. Seybert's attorney, Judge Pratter of the Eastern District of Pennsylvania has ruled that those e-mails may be presented as evidence at trial because they would be relevant to determining both the subjective and the objective standards of just how offended Ms. Seybert was and/or should have been offended by the conduct of which she now complains.

I know nothing about the case other than what I read in Judge Pratter's opinion. But, having litigated discrimination cases, I am calling it as follows:

Firstly, there is the distinct possibility that the parties will reach a settlement before the actual trial (or, if trial begins, before the jury returns a verdict). Most employment discrimination cases do settle (and sexual harassment is a species of employment discrimination).

Secondly, if the ex-employer does not have totally clean hands, and Ms. Seybert has evidence of this, then this might induce the ex-employer to settle. See "Firstly" above. If Ms. Seybert was wise, she kept documentary evidence of her ex-employer's foibles, and she began to keep such documentary evidence back when the employer-employee relationship was a positive one. The first day on the job is not too early to start keeping such evidence. In an employment discrimination case I handled, my client's discrimination claims were not all that clear cut, but the ex-employer moved over to settlement mode when its attorneys became aware of the documents my client had kept over the years. Though not direct evidence of my client's claims, they could have been worked into the evidence, and they would have been quite embarrassing to show to a judge or to a jury. Had my client not inserted certain dubious statements on his resume, the settlement amount likely would have been significantly higher.

[Packrat that I am, I still have, after 30 years, some documents that a former employer of mine would not want to see on the front page of any newspaper. I could probably shitcan them by now, but they contain evidence that is germane to my ex-supervisor's tendencies towards veracity (or, rather, the lack thereof). After 30 years, my ex-employer has been acquired by a Fortune 500 company and my ex-supervisor is out of there more than 20 years. But I, along with so many of his ex-subordinates from his various workplaces, while too involved with our own lives to waste our breaths even to tell the man to go to hell, would not want to be caught shorthanded in the unlikely event that the opportunity for revenge would ever arise.].

Thirdly, given the facts of the case, particularly the evidence Ms. Seybert allowed to accumulate on the hard disk of the company computer she was using, I am not too sure that Ms. Seybert was all that wise.

Ms. Seybert would have the courts and the world believe that she is a prude. Genuine prudes can be tolerable, and can even be pleasant company (my wife's sister and brother-in-law come immediately to mind in the latter regard). What I and so many other people absolutely detest is prudishness of convenience. And Ms. Seybert's trafficking of off-color humored e-mails suggest that she is a prude when it is convenient for her to be a prude, and goes along with humor of a sexual nature when that is convenient. The way I call it, she was probably fired for job competence reasons.

Dissection for Dissection's Sake:

The case is Ross v Saberhagen Holdings Inc., which has been filed in the Superior Court of King County, Washington under Index No. 08-2-02434-2.

Mesothelioma is a type of cancer that can only be caused by inhaling asbestos. It inevitably is fatal. This is not in dispute.

James Ross, who lives in the Seattle area, has worked with asbestos and has contracted mesothelioma. This is not in dispute.

So what's the dispute? There apparently is a stupid-ass court rule which requires autopsy as a condition of a settlement payment to a mesothelioma victim's estate. James Ross does not want his remains autopsied. He believes that the autopsy is unnecessary because, barring some sort of accident or violence, when he passes on, there would be no question that his death will have been caused by mesothelioma.

Understand that Ross could, if he chooses, preemptively have his remains exempted from the autopsy if he were to declare that autopsy violates his religious beliefs (a stance I myself would in fact take were I in his unfortunate situation). Ross acknowledges that, unlike my own religious beliefs, his personal religious beliefs (whatever they may be) do not per se prohibit autopsy. But Ross objects to autopsy based upon on his personal moral values, religious beliefs notwithstanding.

And so, Ross has instructed his attorney to bring a lawsuit to declare this stupid-ass court rule unconstitutional because it requires inquiry regarding the cadaver-to-be's personal religious beliefs.


My comments:

(A) A quotation from the late Justice Michael Musmanno:

"Those who have no respect for the dead can have but little appreciation of the dignity of man, either living or dead." -- Kotal v. Goldberg, 375 Pa. 397, 405, 100 A.2d 630, 634 (1953) (Musmanno, J.).



(B) In this day and age of MRI and CAT Scan technology, can't they do a "virtual autopsy" of Mr. Ross when the time comes? That way they can see what went on inside of him without cutting him open. I don't know where Mr. Ross stands on the subject, but as for me, I have neither moral nor religious objection to such procedures.


(C) We have men and women who could have chosen safer and easier alternatives, but who have chosen to put on the uniform and place their lives on the line to fight to defend our liberties. James Ross surely has lots of things he wishes to accomplish and experience before he departs from among the living, but he has chosen to put his time and money into fighting for his right to have his earthly remains accorded some respect after his departure. And he is also fighting for your right, and my right, and everyone else's right to not have their corporeal infrastructures violated if we so choose. Accordingly, I publicly express my appreciations to Mr. Ross now, while he is still alive. Thank you, James Ross!


(D) Have you ever wondered why the cost of litigation and legal services has gotten more expensive of late? Have you ever wondered why the cost of health care has gotten more expensive of late? Have you ever wondered why the cost of insurance has gotten more expensive of late? James Ross might be on to something as far as connecting those mysterious fiscal phenomena!