Like a lot of people, I’ve got the summer bug and, given the choice between a walk outside and a blog post — well, you can figure out what has been winning.

But I’ve got a few posts lined back up the next few weeks.  In the interim, I want to share with you one of the most meaningful and amazing speeches I’ve ever heard in person.

It’s from last week when I attended the American Bar Association Annual Meeting in Chicago, where I serve as the State Delegate for Connecticut (and on the ABA Nominating Committee as well).  At that meeting, the ABA presented it’s ABA Medal (it’s highest honor for exceptionally distinguished service by a lawyer to the cause of American jurisprudence) to Bryan Stevenson.

Stevenson is the founder and executive director of the Equal Justice Initiative. During a 40 minute speech (which you really must listen to), he called on attendees to do four important tasks:

  1. Get close to people who live in the margins of society
  2. Change the narrative
  3. Stay hopeful
  4. Do things that are inconvenient and uncomfortable

Sounds straightforward enough. But with Stevenson’s brilliant oratory, he encouraged all of us to find meaning in the work we do through this and allow all of us to strive towards justice.

You may not even agree with him that those convicted of the death penalty deserve mercy. His book on “Just Mercy”  has won numerous awards.  But there is little denying that Stevenson is a voice well worth listening to.

For employers, no doubt Stevenson would encourage employers to considering hiring those who have been convicted of a crime to a second chance after they are released from prison.  It might be doing what Bear’s Smokehouse does — looking at individuals and not judging them solely by their past. As Jamie McDonald, the owner of Bear’s recently said, “Sometimes all they need is somebody to believe in them and give them that chance.”

There may be other times when Stevenson’s advice might apply too; suppose you have an employee who failed to show up for work for three days in a row.  You might just fire them immediately for job abandonment.  But there might be circumstances where you should also try to understand the reasons behind the absence.  Sometimes there will be a good excuse behind it.

If you can find time to listen to Stevenson’s speech, you won’t be disappointed. For those of us who attended the ABA Annual Meeting, it was one that we will never forget.

I’ve previously talked about Martin Luther King Jr. (MLK) day in prior posts (including way back in 2008!).

But this year, I was curious — have any race discrimination claims used evidence relating to the day to support a claim?

Turns out there have been a few.

One of the stranger ones was a claim by a bartender that he wasn’t rehired after being terminated by his employer that was decided by a federal court several years ago.

As allegedly “direct” evidence, the bartender pointed to a conversation that occurred on MLK Jr. Day in which he was asked whether he wanted the night off “because it was Martin Luther King Jr. Day holiday”.

According to the bartender, the request was made so that a supervisor’s son, who also worked as a bartender could work an additional shift.

The bartender claimed that the inquiry “demonstrated racial prejudice” because the supervisor “could have asked him to give up his shift to her son without even mentioning the Martin Luther King Jr. holiday”.

The federal court reviewing the matter disagreed rejecting the notion that this comment — made many months before the alleged decision — was direct evidence. And it noted that it was probably an isolated remark. Nevertheless, in the context of the case, the court rejected the employer’s motion for summary judgment — sending the case instead to a jury.

So, not exactly the most illuminating of cases.

Instead, let’s again reflect on the legacy of Dr. King.  His words and actions continue have deep meaning today.  

scaliaAbout a decade ago, I had the good fortune to sit at a table with Justice Antonin Scalia over a long lunch. He was a distinguished speaker for the Young Lawyers’ Section of the Connecticut Bar Association and, as a former Chair of the that group, I lucked out in my seating arrangements.

I remember my parents were a bit puzzled at my excitement over the prospect of lunch with Justice Scalia.  But I explained to them, that my excitement wasn’t because I agreed with all of his decisions or logic.  I was looking forward to it because whenever there was a new case released, I would typically read his decisions (and often dissents) first.

Because to read his decisions was to appreciate a craft of writing that I could never even hope to replicate.  Even on the many decisions of his that I disagreed with, I wanted to read his dissents to see what the weaknesses were in the majority’s arguments.

Justice Scalia’s legacy when it comes to employment law cases is far more confusing and complicated than you might think.

Take the Abercrombie/head scarf case from last year. Would it surprise you to learn that Justice Scalia penned the majority opinion that found in favor of an employment law plaintiff?

Indeed, he described the case as a “really easy” one. In doing so, he said that the applicant to a job, who was wearing a headscarf, only has to show that her need for the company to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her.

Yet in the Young v. UPS case, he dissented from another decision that was in favor of the employee. In doing so, he was unrelenting in his criticism.  “Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.”

Ouch.

Then look at another seeming “pro-employer” case.  He joined a majority opinion in Gross v. FBL Financial Services, Inc. which made it harder for plaintiff-employees to prove discrimination by saying that age must be the “but-for” cause of the challenged employment action.  That case was classic textualism — what did the text of the age discrimination law say?

But in Thompson v. North American Stainless, LP, he drafted the majority opinion expanding Title VII’s anti-retaliation provisions to cover people (such as another employee’s fiancee) within the “zone of interests” sought to be protected by the statute.

In short, Justice Scalia’s legacy on employment law cases is far more complex than some would give him credit for.

He left an indelible mark in how employment law cases are decided at the summary judgment stage through the St. Mary’s Honor Center v. Hicks case in 1993.  That case held that the trier of fact’s rejection of an employer’s asserted reasons for its actions does not entitle a plaintiff to judgment as a matter of law in a discrimination case.

Yet in the O’Connor v. Consolidated Coin Caterers case a few years later, he ruled in favor of a plaintiff-employee, opining that age discrimination need not be proven by replacement by someone outside the protected age class — only that the employee was replaced by someone “substantially younger”.

And to be sure, there are plenty of decisions that you could find fault in Scalia’s logic and, more than that, judgment.

His opinions against homosexuality were hurtful.  He once wrote that “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home”, and suggested nothing wrong with that.   He should be remembered for those decisions as well.

But I look to other justices for a guide as to how we should judge the man too. Both Justice Kagan and Ginsburg loved him as a good friend — even when they disagreed with his decisions.  I think that’s an enlightened position in an age where political purity is seen as a badge of honor.

So when I look back on Justice Scalia’s legacy, I’ll remember more than his well-written decisions.  I’ll remember that lunch 10 years ago. I’ll remember talking with him about how he thought it completely logical that the court was deciding cases only by looking by the text of the U.S. Constitution.  I’ll also remember a man during that lunch who was charming, witty and willing to share a good story with others.

And I’ll remember how fortunate I was to have broken bread with him.

Have you heard of Justine Sacco?

If you’re on social media, it was hard to avoid over the weekend. She was the public relations professional who posted an offensive tweet on Friday before boarding a plane to South Africa.

Never mind that she had only 200 or so followers when she made the tweet.  By the time she got off the plane, a firestorm had erupted on Twitter that was arguably unlike anything that we’ve seen in some time.

Boing Boing has a detailed account here, but in case you missed the story, here’s the basic outline:

As she embarked upon a long flight to Africa, PR staffer Justine Sacco issued this tweet. At best a darkly ironic self-deprecation that could never fit into 140 characters, it resulted, within bare minutes, in an internet-wide scandal. Even as the plane is still in the air–Sacco presumably oblivious–there [was] a hashtag, #HasJustineLandedYet, a parody account, @LOLJustineSacco, a fake movie poster, and, God help her, a whole entire New York Times article, replete with a stunned disavowal from her corporate employers.

The meme was incredible and fueled by the fact that she was on a long flight — with no internet. By Saturday, Sacco was fired.

Continue Reading Offensive Tweets and Twitter Justice: The Tale of Justine Sacco for Employers