The San Antonio Fourth Court of Appeals recognized same sex harassment in certain limited situations.  See my prior post discussing the decision in Clark v. Alamo Heights Independent School District, No. 04-14-00746 (Tex.App. San Antonio 10/21/2015) here. The seminal case for same sex harassment is the U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In the Oncale case, the court made it clear that there case was really about gender stereotyping, not harassment based on sexual orientation.

The Texas Supreme Court has accepted an appeal regarding the Clark case. We will see if it threads the needle of harassment based on sex stereotypes, instead of harassment based on sexual orientation. The Clark case is based on a plea to jurisdiction. So, we assume the Texas Supreme Court will focus on the essential elements of such a case.

The decision in Pena-Rodriguez v. Colorado did not receive much attention. But, it should have. In that case, a Mexican immigrant was found guilty of assaulting two teenage girls. After the verdict, a member of the jury reported that another member of the jury said some racist things about Mr. Pena-Rodriguez. The jury was all white. One juror, a former police officer, said he’s guilty “because he’s Mexican and Mexican men take what they want.” The same juror made several anti-Mexican comments. He dismissed the credibility of an alibi witness because the witness was an illegal immigrant. These statements are clearly racist. If these sentiments had been known, they would have kept the former police officer off the jury. But, because the statement did not come to light until after the verdict, it could not be used under the law in Colorado and in most states.

Most states have a version of the “no impeachment” rule, that provides a jury cannot be impeached after the verdict for things said during deliberations. There are just a few limited exceptions to the rule, such as when a juror considers something s/he should not have during deliberations.

The no impeachment rule dates back to common law England. But, as Justice Kagan pointed out, this is as good as “smoking gun” evidence gets. This statement clearly shows racist sentiment. By a 5-3 vote, the U.S. Supreme Court ruled that where prejudice is involved, the “no impeachment” rule must give way. The Sixth Amendment, which guarantees the right to a trial by jury, requires the courts to consider evidence of racial bias.

As the dissent pointed out, this ruling will invite scrutiny of jurors everywhere regarding what was said in the formerly sacred room, the jury room. It is common practice for lawyers to meet with jurors after a trial to discuss how they arrived at their verdict. If evidence of racial bias is fair game, then surely other forms of bias will also become fair game. And, yes, that does open a Pandora’s box. But, the alternative is jurors acting out of racist prejudice. And, that cannot be allowed. See Above the Law blog post here. The time may come when we move away from the jury system. England uses juries in only rare cases, now. See the decision in Pena-Rodriguez v. Colorado, No. 15-6-6 (3/6/2017) here.

Some of us are more likely to contract certain illnesses due to our genes. But, would we want our employer to know about those predisposed illnesses? Well, a bill proposed in Congress would allow your employer to ask that question. HR 1313 passed a vote in committee and is now before the whole House. It would allow your employer to require you to take a genetics test to determine if you were predisposed to certain illnesses. All 22 Republicans voted for the bill. All 17 Democrats voted against it. Observers expect it will be attached to the current new health care bill now working its way through Congress.

The bill, known as the Preserving Employee Wellness Programs Act, would apply to employer health care wellness plans. If the employee refuses to take the DNA test, then the costs of his/her health care would rise 30%. See Time news report. Under current law, known as Obamacare, an employer could require an employee to pay more for insurance if s/he refuses to participate in an employer’s wellness plan. The idea is to improve the health of workers and thereby reduce health care costs for the employer. Wellness plans include more than just health insurance. But, there is little evidence that wellness programs actually improve the health of a workforce. And, there appears to be no direct correlation between genetic predisposition and a person’s health. But, that does not appear to stop House Republicans from advancing the proposal.

The 2008 Genetic Information Nondiscrimination Act prevents employers from discrimination against a person for a genetic predisposition toward certain illness. The GINA bars an employer from even asking workers to undergo a DNA test. So, I presume the current bill, if passed, would or could overrule the GINA.

Big Brother is out there, and he may be your employer. It is bad enough to be fired because you develop a serious illness. But, to be fired because you might develop a serious illness is more than most people can accept.

Back when I was active in the Nationals Guard and Reserve, I would visit other Army units to coordinate exercises, gather information or for some particular need. I soon noticed that when subordinate members of the unit would freely chat with an unknown captain or major, that was very likely a strong unit, with good morale. If the lower ranking member would not chat with me, that indicated problems. The military is like a large corporation, with different corporate culture in each unit.

In today’s corporate culture, social media has made it easier for employees to chat publicly about their experiences. Uber received a lot of blow back when one engineer described the ride-sharing company as chaotic, sexist and overly aggressive. Susan Fowler wrote a blog post about her year at Uber. The attention has grown so much that it may affect the value of a likely IPO later this year for the business. See San Antonio Express News report.

Ms. Fowler mentioned how she was propositioned by a male senior manager and that Human Resources often protected “high performers” at Uber. Consumers who notice issues between employees notice that tension, according to research at Georgetown University. That research found consumers react strongly to perceived problems with a particular brand. Christine Porath, the Georgetown researcher, also found that companies that devoted more attention to the welfare of its workers performed better during the recent economic crisis.

Uber’s CEO reacted to Ms. Fowler’s blog, saying the company would heal the wounds and build a better corporate culture. Yes, employees, all employees, matter. Human Resources, often overlooked, is on the front lines of that culture. In military terms, we would describe HR as a “force multiplier.” HR provides much more value that simple processing of forms. It makes the other departments better. The corporations, and military units, that appreciate that will become much more productive.

 

The jury trial has greatly diminished in federal court. Where once some 10% of cases filed in federal court resulted in a jury trial in the 1960’s, that number has now decreased to less than 1%. The judge proposed for the U.S. Supreme Court wants to help bring back the federal court trial. Judge Neil Gorsuch, nominated by Donald Trump for the Supreme Court, and Judge Susan Graber propose making jury trials the default for all civil lawsuits filed. Currently, a plaintiff must specifically ask for a jury when s/he files a new lawsuit. The two judges proposed this change to the federal rules of civil procedure in a June, 2016 letter to the federal Judiciary’s Advisory Committee on Rules of Civil Procedure.

The two judges cited several reasons, but their reasons essentially boil down to simply supporting the Seventh Amendment guarantee of jury trials. See ABA Bar Journal report.

I wrote about Ricardo Romo previously here. He was placed on leave from his position as president of the University of Texas at San Antonio. When he was first placed on leave, he pledged to clear his name. Now, he has decided to retire. He does not explain the entire situation but suggests he was the subject of a sexual harassment complaint because he engaged in an abrazo at work with female employees. His chief of staff, Sonia Martinez was also placed on leave at the same time. See San Antonio Express News report.

I am not Hispanic, but my experience with the abrazo is: 1) it is voluntary. The participants are not required to engage in an abrazo. Persons wishing to show mutual affection can choose to simply shake hands. And, 2) the abrazo is basically a hug. Hugs come in degrees of closeness.

Mr. Romo’s story sounds fishy to me. No sexual harassment claim is based simply on hugs. Words are required to make a case. Hugs are capable of subjective interpretation. Hugs alone are not enough. And, when the alleged perpetrator is a president of a public university, the quality of proof must be stronger than normal. The case against this former president surely involved more than simple hugs.

One of the great things about practicing law is working with people. We see people often at their worst, sometimes at their best, but always as their genuine selves. From a Texas Bar Journal, I find this story about two spouses who prosecuted their own divorce. The two spouses wrote their own divorce decree. Since they were planning to continue to share the same house until it was sold, they came up with some rules on sharing that household, which they hoped would minimize friction:

  • Husband shall exceptional care during and after Dallas Cowboys games to not break any material objects in the house and to remain cordial to wife, who is not responsible for the outcome of sporting events (emphasis in the original).
  • Wife shall endeavor to give Husband the space he needs to recover from Cowboys losses.

That is just two people trying to work things out…..

Among the many forces unleashed in the past year or so is anti-Semitism. Bomb threats against Jewish Community Centers, the place where many people, Jewish and otherwise, find rumba lessons, tennis lessons and basketball. More than 100 JCC’s across the country have been the targets of bomb threats. Two Jewish cemeteries have been vandalized. Two Indians were shot in a bar in Kansas City, because the shooter thought they were Iranians. See CNN news report.

The FBI is investigating. They do not yet know who is making these threats. But, we can assume whoever it is, they do not dance, play tennis or otherwise engage in their community.

The colonel hearing the court martial of Bowe Bergdahl will not dismiss the charges against the young sergeant. He agreed the comments by then Candidate Trump were troubling. But, he would not agree they were so pervasive and unfair as to saturate the community and cause prejudice. See CNN news report. The lawyer for SGT Bergdahl will appeal.

All I can say is the defense has a pretty good appeal issue now or later. Candidate Trump’s comments were very unwise. He repeatedly referred to SGT Bergdahl as a traitor during his campaign.

A county prosecutor showed up at the local school to listen to a young student read aloud an Old Testament story in his native language. The state had recently passed a law against speaking a language other than English in school. Nebraska passed the Siman Act in 1919 which forbade instruction in a foreign tongue. The County D.A. saw the act and brought criminal charges against the teacher for allowing the use of a language in school other than English. The teacher, Robert Meyer, was tried and found guilty. But, he refused to pay the fine. He appealed. The Nebraska Supreme Court ruled that the Siman Act, like education itself, was part of the state’s powers and was lawful. This Act was directed at a security threat. The country had been at war with Germany, and speaking German was deemed a threat to national security. The teacher was charged in 1923. The boy who read Old Testament story was named Raymond Parpart and he was speaking German in class, in violation of the Siman Act.

Mr. Meyer appealed to the U.S. Supreme Court. In a 7-2 decision, the Supreme Court disagreed with the Nebraska Supreme Court. The federal court derided the law as an affront not only to the rights of teachers, but also to parents who wished their children to be educated as they saw fit. The court noted that the Siman Act prohibited current foreign tongues, such as Spanish, Italian and German, but not ancient languages, like Greek, Hebrew and Latin. The Act, said the court, was proscribing educational principles. Justice James C. McReynolds also noted the irrational, disproportionate treatment of German immigrants. “Mere knowledge of the German language cannot reasonably be regarded as harmful.” The court was saying that knowledge of how to speak German in itself does not make a person sympathetic to the Kaiser. Just as today, mere knowledge of how to speak Arabic does not in itself make a person a terrorist. Just as today, knowledge of how to speak Spanish does not make a person a Mexican drug smuggler.

The court noted that the protections of the U.S. Constitution extend to persons who speak English, as well as to persons who speak a foreign tongue. The court allowed that it might be better for persons to speak English in school and learn ordinary speech. But, said the court, this cannot be enforced by methods that conflict with the Constitution. A valid goal cannot be achieved by prohibited means.

Yes, the more things change, the more they stay the same. See the decision in Meyer v. Nebraska, 262 US 390 (1923) here.