Pres. Trump has nominated some crazy folks for lifetime federal judgeships. Four have been rated unqualified by the ABA’s volunteer committee of some 160 lawyers on federal judicial nominations. One such nominee, Matthew Spencer Petersen was questioned by Sen. Kennedy (R-La). Mr. Petersen could not answer the most basic litigation questions. Mr. Petersen is just not qualified for a federal judgeship, or any judicial post. He admitted he has never tried a case, meaning never appeared in court as attorney for a client for a trial, has never conducted a bench trial (i.e. no jury), or a jury trial. He attended some 5 depositions, but did not conduct those depositions himself. He is just not qualified to deal with litigation. As a judge, he deals with litigation every day. He has never argued a motion in federal or state court. He has not reviewed the federal rules of evidence since law school.

He is not familiar with basic litigation devices, such as a motion in limine, a Daubert challenge, abstention doctrine, all basic litigation concepts.

He is currently working as a commissioner at the Federal Election Commission. Matthew Spencer Petersen. He admits up front his back ground is not in litigation. He was rated “not qualified” by the ABA, a rare enough event. See CBS news report.

I previously wrote about Pres. Trump’s questionable nominees here. We expect some degree of political advocacy when judges are nominated. But, this administration could not even find someone who could find his/her way to the court room?

Some work places are just so toxic. When my unit was deployed to Iraq, we inherited work and living space from the unhappiest, most dysfunctional Army unit I have ever come into contact with. The living space was filthy. They never cleaned it up. The members of this unit, some 50 persons, had filed about a dozen Congressional complaints. Dozens of Article 15’s had been processed. IG investigations were common. And, their work was the worst. They accomplished nothing in their 12 months in Iraq. Work place atmosphere matters. We see a pretty bad place in Congressman Farenthold’s office.

One former Communications Director says he often vomited on the way to work. Rep. Farenthold was abusive and degrading. Just before Michael Rekola left for two weeks to get married, Mr. Farenthold called out to him, “Better have your fiancee blow you before she walks down the aisle – it will be the last time.” He then joked about whether his wife would wear white at the wedding. When Mr. Rekola returned from his two week vacation, he turned in his resignation.

Mr. Rekola explains that Congressman Farenthold was often abusive, with screaming fits of rage, fists pounding on the desk. He often referred to aides as f***tards. Congressman Farenthold admits to using the term f***tards regarding employee, but says he meant it in jest. See CNN news report.

When my buddies and I replaced that Civil Affairs unit in Iraq in 2005, we met with and worked with our predecessors for two weeks. We got to know some of them. Some few officers and NCO’s hated their work environment. I will never forget their dismay, their disgust at the low quality of work they had to endure for 12 months. Congressman Farenthold was not in Iraq. But, he apparently knows something about low quality of work.

There are some places a woman should not work. Places that are so offensive, most women would not survive long enough to make the job worthwhile. A Congressman’s office should not be one of those places. Yet, Congressman Farenthold’s office has been very disrespectful toward women. Laurene Greene field her lawsuit against the Congressman in 2014. When she filed her suit against the Mr. Farenthold, she accused him of suggesting she participate in threesome with the Congressman and a female lobbyist. In response to the accusation, Mr. Farenthold simply replied the third person was not a lobbyist. Rep. Farenthold had an explosive temper. he would loudly sweep his arm across his desk when angry.

The office refrigerator was filled with beer. Happy hour would begin at 4:30, “beer-thirty,” said his aides. Male and female aides would discuss strip clubs. The female aides would discuss who had sent them pictures of their genitals that day. Talk about female reporter’s breast sizes were common. The talk was lewd, angry at times or simply rude. Congressman Farenthold lead the way in the discussions. The Congressman would often drink to excess. When he would attend government functions, staff would have to accompany him on “redhead patrol,” to keep him out of trouble. He told another aide that he was having sexual fantasies about Ms. Greene. Lauren Greene was then another aide. She complained and was soon afterward fired. See New York Times report.

Prior to becoming a Congressman in 2010, Rep. Farenthold had been a conservative radio talk show host. He would also buy domain names and re-sell them. In 2014, the same year as Ms. Greene’s lawsuit, he sold a domain that included a sexually explicit act in the name. He was photographed at a party wearing a duck print costume standing next to scantily clad women.

Yes, that is a good example of how not to run professional office, that respects the rights of female workers.

I talked the other day about a recent book from the University of Chicago Press:  Rights on Trial: How Workplace Discrimination Perpetuates Inequality. See my poor post here. The authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology. See my prior post here in which I discuss the success rates of plaintiffs in various types of discrimination lawsuit.

The authors also looked at the process of simply finding a lawyer. One in four discrimination claimants do not find a lawyer. Rights, at p. 109. They found that African-American plaintiffs suffer disproportionately when looking for lawyers. Finding a lawyer is important. Without a lawyer, the chances that a case will be dismissed is about 59%. With a lawyer throughout the process, the chances of dismissal are about 12%. Rights, at 112.

The authors note correctly that finding a lawyer who practices employment law is time consuming. Persons who have just lost their jobs are strapped for time as it is. Add to that the possibility that the terminated person has children, perhaps a spouse with a disability, and it becomes almost impossible to find the time necessary time to look for lawyers. Finding employment is paramount, after all.

Some plaintiffs reported they were asked to pay for a lawyer, one was quoted a fee of $500 and one a fee of $2700. Recognizing that the potential plaintiffs did not complete understand the lawyer selection process, the authors interviewed some 20 plaintiff lawyers, ranging from sole practitioners to large firms and pro bono lawyers. The lawyers estimated they accepted less than 10% of the cases that came to their doors. They all generally focused on how a case would “play” to a jury or judge. As I do, these lawyers looked for clients who seemed more serious about their allegations. Rights, at p. 122.

One long-time lawyer reported that he looked for clients who were not “accusatory” or “whiny” doing the first meeting. The importance of the first meeting looms large in the decision of most lawyers regarding whether to accept a case or not. All the lawyers preferred clients who seemed to be prepared for a lawsuit, with documents on hand. Rights, at p. 124. The lawyers generally operated on a contingency basis with some fee paid up front. Some relied on a payment plan from the client. One lawyer mentioned that there needed to be a certain amount of lost pay at stake before he would accept a case. He sought wage earners of at least $36,000 per year before he would consider such a case. Rights, at p. 126.

In the end, the authors found only some 10% of plaintiffs find lawyers. Criteria for a case being accepted included client’s truthfulness, demeanor, and work ethic. Also important was a complicated formula seeking significant amounts of lost pay at stake. Rights, at p. 128. All I can say is “yep.”

What is sex harassment? Whatever it is, it must be severe or pervasive. In Royal v. CC&R Tres Arboles, No. 12-11022 (5th Cir. 11/21/2013), the Fifth Circuit found the following acts amounted to sex harassment: standing over and behind a woman and smelling her hair several times a day; one man sat in front of the woman with a visible erection and stared at her, saying nothing; smelling women as they emerge from the bathroom. The woman told the male co-workers she did not appreciate the smelling, but the actions continued. The woman reported the conduct to management, who ignored her concerns. The appellate court found that amounted to sexual harassment, but the lower court did not. See my prior post about that case here.

Now, the office of Congressman Blake Farenthold had the following occurrences: staff drinking liquor at work and discussed sex tapes, strip clubs and which anchors on Fox news had breast implants, lobbyists who tested shots of their genitals. A Congressman’s aide wanted to post a photo of a staff member attending an opening of a Twin peaks restaurant/bar ( a Hooter like chain) on Facebook as a promotion of Text business. Two female staffers lodged sex harassment complaints. See Politico report. Rep. Farenthold had an outside agency come investigate these incidents, as he should have. The investigation did not agree these incidents revealed sexual bias. But, the Congressman and the office did undergo sensitivity training.

Yes, in some courts, that conduct would indeed amount to sexual harassment. If there was also some otherwise unexplained personnel decisions that favored male employees. In other courts, it might not be severe or pervasive enough.

And, of course, before these two women complained about the sex talk at work, another female staffer, Lauren Greene, filed a lawsuit against Congressman Farenthold, which he settled for $84,000. Apparently, that training on sexual harassment came too late to avoid a lawsuit. The Congressman says he did not sexually harass Lauren Greene. But, people do not pay $84,000 to settle a claim that has no evidence.

And, look what happened in the Sanders v. Christus Santa Rosa case. In that case, the Western District of Texas found the incidents of alleged sex harassment was severe or pervasive. It rejected the employer’s argument that those incidents were just flirting or sexual bantering. It denied the employer’s motion for summary judgment. Yet, at trial the jury found for the employer. See my post about that case here.

Sometimes, what constitutes sex harassment is in the eye of the beholder. But, we can all agree there is no good reason for discussing sex tapes and genitals at work. And, is there any reason why work related outings need to occur at Hooter’s or Twin Peaks?

Ummmmm, no. Don Trump. Jr. has claimed attorney client privilege in refusing to answer questions about a conversation he had with then Candidate Trump in 2016. There was a meeting at Trump Tower in June 2016 between Donald Trump, Sr., Donald, Jr., and a lawyer. Early on, Donald, Jr. said it was a brief meeting between just the three of them. Now, it turns out there were eight folks present, including Paul Manafort and Jared Kushner. Now we know the meeting occurred only because Donald, Jr. expected to receive dirt on Hillary Clinton from Russian operatives. Donald, Jr. refused to answer questions about the meeting, citing attorney client privilege. He was appearing before the House Intelligence Committee, this week. See Politico report.

There are a few problems with his claim of attorney client privilege. First, he is not a lawyer. The attorney is bound by the attorney client privilege, not the client. The client, assuming it was Donald Jr. (but it would have been any of the eight persons in the room), can say whatever he wishes about what was said. Second, when a second person is in the room – in addition to the lawyer – then the attorney client privilege is waived. It is gone. It does not exist. If you as a client allow a second person to hear what you have to say to your lawyer, then you have waived the attorney client privilege. The point of the attorney client privilege is to ensure free flow of communication from the client to the lawyer, not the other way around. The client can share what he said to his lawyer anytime.

That Donald, Jr. would cite a bogus privilege in response to questions suggests ) he did not actually consult with a lawyer before deciding to cite the attorney client privilege, and 2) he has something to hide.

The thing about lawsuits and making stuff up is you just cannot predict how things will turn out. Pres. Trump has been sued by the James Madison Project, an intelligence watchdog group, and Politico seeking documents related to his tweets that are in turn related to Russia. In James Madison Project v. Dept. of Justice, DOJ argued that the tweets are public statements, “official” statements of the President. One or more of his tweets claimed the Steele dossier was “discredited.” So, the James Madison Project and Politco are seeking whatever documents support the claim that the dossier was “discredited.”

Yet, in another case, some twitter users have sued the President for blocking them. They seek the right to reply to his tweets. He does not like their comments, so he has blocked them on his twitter account. Those twitter users have sued the President and Twitter to become unblocked. (Only in 2017 would we have a lawsuit requesting a government official to “unblock” them). Their point is that if these were traditional public statements, they could indeed react or ask questions. So, they argue that his tweets are a public forum.

In this second lawsuit, known as Knight First Amendment Institute at Columbia Univ. v. Trump, DOJ has argued that yes, while the tweets are official statements, they are also “personal conduct that is not an exercise of state power.” DOJ has moved for summary judgment, arguing that the tweets are maybe not so official, after all. In its motion for summary judgment, the DOJ argued, “To be sure, the President’s account identifies his office, and his tweets make official statements about the policies of his administration.” “But the fact that the President may ‘announce the actions of state’ through his Twitter account does not mean that all actions related to that account are attributable to the state.” In the legal business, we call that double speak. It is also considered a “judicial admission” when a person contradicts himself in one lawsuit, as opposed to another lawsuit. The President tried one lie or exaggeration in one case and found he had to adjust his “story” a bit for a second, different lawsuit. Both sides in this lawsuit have moved for summary judgment. See ABA Bar Journal report.

And, of course, just last weekend, Pres. Trump tweeted that he fired James Comey because Mike Flynn lied to the FBI. That tweet suggested Pres. Trump knew Mr. Flynn was obstructing justice weeks before the President fired him. So, when Pres. Trump fired Mr. Comey, he may have done so to help LTG(R) Flynn. And, now, Pres. Trump’s lawyer, John Dowd, claims he wrote the tweet. That claim will surely lead to the need to further adjust the “story” that the President’s tweets are “official.” Why would a personal lawyer be drafting “official” statements for the President? What regulations or statutes will that violate? The problem with creating a “story” for one’s defense is that keeping that story straight is very challenging.

That is why in employment cases, the employer’s articulated reason for firing an employee is so critical. If the employer does not know why someone was fired, then no one knows. Or, in this case, if the the President does not know what his tweets are, then it may well be that no one knows.

 

Employment cases are difficult for the employee. I have mentioned a couple of studies about the success rates for employment cases. See my prior posts here and here. Now, we have another study. In Rights on Trial: How Workplace Discrimination Perpetuates Inequality, the authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology.

This study looked at not just reported cases, or cases that went to trial, but tried to review the gamut of cases, those that settled early and even some that did not see a lawsuit filed. The study focused on disability, sex, race and age cases. It studied four central steps in any lawsuit, dismissal, early settlement, late settlement and trial. The authors interviewed plaintiffs and their lawyers.

It found the filing of discrimination lawsuits is on the decline. Discrimination filings have decreased from high of 23,725 such lawsuits in 1998 to only 13,831 in 2014.

They found some 36% of such cases were dismissed or thrown out of court on summary judgment. 50% of plaintiffs settled for an average of $30,000. The median settlement amount was $30,000.  Rights, at p. 4. Only 6 percent of cases filed resulted in trial. Among those trials, only 33% resulted in a win for the plaintiff.

Apart from cold numbers, the authors found the plaintiffs paid a high emotional cost for his/her lawsuit. They generally faced ostracism from management and co-workers alike. Many plaintiffs reported depression, alcoholism and divorce in the wake of their lawsuits. Many hoped to get their jobs back. That almost never happens. That finding certainly jibes with my experience.

The study also found that employment lawyers typically accept one in ten of the cases that cross their desks. That does sound right. That screening process unfortunately works against plaintiffs with fewer resources and against African-Americans. African-American plaintiffs were less likely to find lawyers willing to accept their case. That lack of representation means they were more likely have their cases dismissed.

The EEOC employs codes to identify early on which filings are more likely to result in findings f discrimination. It is a triage system designed to identify the cases where the EEOC can have the greatest effect. The authors compared those early factors to eventual outcomes and found the EEOC analysis was not accurate. The EEOC priority codes had no apparent relationship to the actual outcomes, found the authors.

The highest number of cases filed included race discrimination at 40%. Sex discrimination wa next at 37%. Then came age (22%) and disability (20%). See ABA Bar Journal report about the book here.

I will discuss later their observations about looking for lawyers and how well that process works.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

Yes, sexual harassment cases are often rejected by the courts, i.e., by the judges. Over the past several years, the courts have developed a test for just how bad the harassment is (or is not). The legal term is “severe or pervasive.” The harassment must be severe or pervasive. See my prior posts here and here. In the Sanders v. Christus Santa Rosa, the district judge even comments in his opinion that the Fifth Circuit seems to be counting the number of incidents within a certain amount of time. In the Sanders case, the judge denied the motion for summary judgment, but the plaintiff later lost her case in front of the jury.

Sociology professor Sandra Sperino read through some 1,000 sexual harassment cases, apparently filed in federal court. She says only 3-6% ever make it to trial. See NPR news report. Another researcher for the American Bar Foundation looked at a random sampling of sexual harassment cases and found that 37% were dismissed before trial. About half settled, Laura Beth Nielsen added. Some judges dismiss the claim if there was no skin on skin contact. One plaintiff endured some 24 taunts and thinly veiled invitations over ten days. The judge said it only lasted ten days and was not, therefore, severe or pervasive. Ms. Nielsen found only 2% of plaintiffs proceed to win their sexual harassment trials.

The report indicates about one-half of all women in the work place endure some form of sexual harassment. But, only 5-15% report the behavior.