Size Discrimination

I don't think we cover size discrimination in class this semester, so I thought maybe this would be good for the blog. I came across an article this morning that talked about size discrimination in Massachusetts. Many people wanted to see height and weight added to the current accommodations on the basis of race, color, religion, national origin, and sex. To me, this seems similar to what we talked about in class last week about appearances. I know that companies cannot discriminate a person because of what they look like, but I feel like that happens a lot in our society. One of the people that was interviewed for the article talked about how just because she was overweight doesn't mean she wasn't capable at doing her job. More and more people in the United States are becoming clinical obese every day. Wouldn't this law just promote people that may have been slightly overweight to continue only to become so heavy that their lives are in danger? (I'm not saying this would happen just giving you guys something to think about.)

What about those people who are very underweight, or too tall do you guys feel like they have it any easier than those that are over weight and too short?

What do you guys think about this topic? Do you guys think that maybe this should be handle under disability discrimination? Or do you think it should be added to the race, gender, religion, national origin discrimination claims?

Here's the link to the article: http://www.chron.com/disp/story.mpl/nation/5657655.html

Mason v. Avaya Communications, Inc.

I was really intrigued by the case we are to have read for Monday entitled “Mason v. Avaya Communications, Inc.” While I agreed with the ruling that Diane Mason’s request for an at-home accommodation was unreasonable because it eliminated an essential function of the job (Mason’s physical attendance in Avaya’s administration center), I felt that the initial part of the case was not dealt with properly. That is, the incident involving Kevin Lunsford, a co-employee of Mason’s who worked with her in Avaya’s Oklahoma City administration center.

Apparently, in March of 2000, Lunsford pulled out a knife during a verbal confrontation with a coworker at the administration center. In addition to this, Lunsford had at one point threatened to “go postal,” and it was discovered that he kept a supply of weapons, along with a “hit list.” Following the knife incident and verbal confrontation, Lunsford was suspended from work for a week, but returned thereafter. I was completely surprised by this because, for one, it seems like a very short punishment for someone who seems to be, potentially, very dangerous. Of course, I lack many of the details of the case, so it’s difficult for me to speak about the intricacies of such.

Mason was upset by the fact that Lunsford was allowed back to work so quickly, but Avaya assured her that it had conducted a “fitness-for-duty” exam on Lunsford and determined that “he could safely return to the workforce.” A few things surprise me about this case. It’s interesting that there were no other complaints from coworkers about Lunsford. I know that if I had been at work and had witnessed my coworker pull a knife on someone, I’d be pretty distressed (regardless of whether or not I had experienced post traumatic stress disorder in the past). It just seems so odd to me that there wasn’t more of a stir regarding the issue of Lunsford’s return. (It also makes me wonder if Mason was overreacting to the situation.)

Based on our reading in Muir and according to the Americans with Disabilities Act (ADA), an employer can take action if a disabled individual represents a current and real threat to others in the workplace. I suppose that Lunsford was not considered “disabled,” which is why this didn’t apply to him. But it seems to me that his behavior was inappropriate, despite his physical or mental condition, and should have been punished more severely.

Overall, while I do think that Mason’s request to work from home was unreasonable, I do think that there were other more appropriate steps that could have been taken to assure a safe and comfortable working environment for everyone involved. For example, perhaps Lunsford could have been transferred to a different department or even a different branch. After all, since it was he who caused the altercation, it seems reasonable that he should have to take whatever steps necessary to fix it (even if it’s somewhat inconvenient for him). I know I have completely derailed the case from its primary objective, but I am just wondering if anyone felt similarly?

Hoping Wal-Mart does the "right" thing

I came across this horrific story on CNN earlier today:
http://www.cnn.com/2008/US/03/25/walmart.insurance.battle/index.html

I, as I am sure anyone who reads the article, initially felt utterly appalled at how Wal-Mart is choosing to proceed with this case. With so much pain and agony that this family has gone through, how could Wal-Mart choose to respond in this manner? It is widely known that one must become completely literate in contracts that require signature and authorization, including such documents as health plans that truly affect one's well-being. But many employees skim over such documents without ever really reading the fine prints on those contracts.

Like many others before, the Shanks fell into the trap of another corporate giant's fine print health plan policy stating that Wal-Mart has the right to recoup medical expenses if an employee collects damages in a lawsuit. This policy seems like a fair compromise for the employer-employee relationship. However, in the Shanks situation, many could argue that Wal-Mart should deem the situation as an exception to the policy. But is that fair? Should the Shanks be considered an exception to the Wal-Mart policy? Is this a matter of ethics or legality?

Initially I became truly angry with the corporate giant ability Wal-Mart is allowed to exercise. A family who has given so much is receiving almost nothing in return. In fact, this family in some ways is being punished. Now maybe I'm being too sentimental here. However, on the other hand, maybe the Shanks have been dealt some unfortunate cards and should just somehow learn deal with them. And if so, Wal-Mart is a business that can not and should not have to try to fix and accommodate their employees' unfortunate occurrences in life.

How safe is a job offer

Many of you probably know about the acquisition of Bear Stearns by JP Morgan. What is not being discussed is the impact this is going to have on students graduating in May. There are currently eight students from Indiana University that between August and October 2007 received and signed job offers from Bear Stearn. When they signed, Bear was the fifth biggest investment bank in the country and their careers seemed limitless. Now, just over a month before they graduate college they do not know what their status as employees is. The company they signed with no longer exists and JP Morgan has not publicly announced what they are going to do with the hundreds of new hires Bear had lined up to start work in July. Along with this of the 14,000 employees Bear had they owned over a third of the companies shares. When this merger was approved they lost 85% of their wealth over night.

It is scary thought that just before graduation when you think the only thing left to do is finish school, you could potentially lose everything you have worked for over the last four years. I was wondering what people thought about this situation and also if you think there should be some sort of protection or type of severance if you have signed an offer and then lose your job before even starting.

Also in the News.. Whistle Blown on Famous Lawyer

I was recently informed that Dickie Scruggs, a famous lawyer, has pleaded guilty for bribing a judge. For those of you that don't know, Dickie Scruggs is the attorney which fought against tobacco companies in the 1990's that awarded settlements close to $250 million from the industry. Currently, Scruggs is in the midst of another large case where he is representing many Katrina victims in their fight against large insurance companies. Once again, millions of dollars are at stake (yet the future of this case is unkown due to Scruggs' current situation). Scruggs is politically active and well-known in the law community.

However, this once hailed good guy has now lost his credibility. Scruggs is accused of conspiring to bribe a judge for $50,000 to influence the judge's decision on how to split $26.5 million in attorney's fees. The judge, Circuit Court Judge Henry Lackey, is reported to have blown the whistle from the start. He reported the bribery to federal officials when it was first announced, then went undercover to help expose the master plan. Now, Scruggs and others have been accused and admitted to their guilt.

I highly recommend reading this article which accounts for the detailed information which I provided on this post.

I think this is a great example of a true whistleblower and I commend Judge Henry Lackey for his actions.

Interesting Race Bias Studies

In an attempt to respond to Ashley and Katie's blog posts about the doll experiments, I stumbled upon some very interesting studies about the origins and effects of the implicit biases discussed this week in class. I've provided short synopses of the experiments below, along with links to the studies themselves. I hope this sheds some light on what an implicit bias truly entails.

1) This study experimented with expressed steretype inhibition (or lack thereof) when affected with alcohol. The results go to show that as more alcohol gets consumed, the more adamant individuals get about their stereotypes. This gives credit to supporters of the IAT by offering evidence that biases, however repressed, still exist. Moreso, alcohol's ability to relieve the mental barriers of biases offers insight into the extent and passion that one can hold for a certain stereotype, providing some quantitative information that may, or may not, be relevant in potential legal cases that may arise due to implicit discrimination.
http://cat.inist.fr/?aModele=afficheN&cpsidt=17646794

2) This next study offers insight into the mental activity as one attempts to control his/her biases. The frontal lobe, which is largely responsible for cognitive control, "lights up" when biased individuals are presented with a stereotypical situation. The study goes to describe that the presence of implicit biases, when activated by an activity that employs that bias (the students taking part in the study went through an interracial interview), is mentally draining and exhausting to the biased individual's brain - affecting intellectual performance after the study. Cool, huh?
http://www.newscientist.com/article/dn4388-brains-drained-by-hidden-race-bias.html

3) This next article, I believe, really gets to the heart of what we were discussing this week. In a Harvard study on race biases, a hypothetical scenario was presented to a group of physicians in which the subject in question had a life-threatening case, yet was white in some scenarios, and black in the others. Accompanying the study was a short survey to assess the respective doctor's implicit biases. The results go to show that the probability of a black person recieveing the potential life-saving remedy decreased as the doctor's respective biases increased. Though the results seem obvious yet disturbing, the article has a great take-home message which one of the doctors expressed; "It's not a matter of you being a racist. It's really a matter of the way your brain processes information influenced by things you've seen, things you've experienced, [and] the way media has presented things."
http://www.boston.com/news/local/articles/2007/07/20/tests_of_er_trainees_find_signs_of_race_bias_in_care/


I hope that these articles provide some insight into what governs all of our biases, however (un)aware we truly are of them. Thanks to Ashley and Katie for making me look these up.

Should We be Held Responsible for our Brains?

While Brad has briefly touched on this subject in his post, there seems to be a lot more involved in the debate about psychology and law. In class the question was: should a person be held legally responsible for their implicit thoughts of discrimination even if the direct or circumstantial evidence did not support the claim? In a discrimination case, it is difficult to know exactly what distinguishes the facts of the case from the thoughts, emotions or assumptions of the parties involved. Because of this, psychology seems to play an integral role in determining the outcomes of cases, not just in employment, but in criminal cases as well. It takes a logical and critically thinking jury and judge to decide what evidence is true and what parties are credible or trustworthy. All of these metal processes are surely very related to psychology and our ability to effectively categorize, process and retrieve important information.

In class we spoke about the confirmation bias, its relation to stereotypes and information processing. We touched on how a person who has a racial stereotype against Hispanics, like in Krieger’s article, may attribute any negative action by a Hispanic person to that person’s disposition, or personality, thus confirming their stereotype and causing them to pay specific attention to that action. That same biased person might attribute any positive action by a Hispanic person to the situation, seeing it as a rare or unique occurrence, and soon forgetting about it. These mental processes are often done implicitly and without thought. So, the question remains, can we hold people legally responsible for these unconscious thoughts?
What if the crime was more seriously than discrimination? What if the crime was murder?

Recall the IAT tests about black stereotypes and guns, (Kyle mentioned that he took the test and associated black faces with guns). In another class I read an article where a group of all white policemen repeatedly shot and killed a black man they thought to be holding a gun. It turns out the gun was a wallet, the black man was unarmed and the officers were found innocent. The article then continued with an implicit association test that showed subjects frequently mistook everyday objects as guns when they were first shown a picture of a black man’s face as opposed to a white man’s face.

Ultimately, why did the officers go free? Because the jury found that they had reason to believe, in that situation, that the black man had a gun. Now what if the jury and judge held the same implicit stereotypes against blacks as the officers might have held? Did they sympathize with the officers because they would have also believed the black man to have a gun? Did the jury use their implicit attitudes to confirm parts of their racial stereotypes and ignore other valuable information in the case?

After all of that, I still do not have an answer to the question but I believe that these implicit thoughts should at least be taken into account and the juries and judges should be made aware of the defendant’s, as well as their own, implicit attitudes, letting the subsequent verdict decide responsibility.

Continuation of Monday's Discussion on Psychology and the Law

In Monday's class we had a great discussion regarding whether Psychological tests, factors, and influences should be taken into legal consideration. In every Psychology class that I've taken, one of the most heavily stressed comments made my Professors is that much of what we know is all based on theory and correlated data. Considering the fact that the law and jury trials are based on strict FACTS, I think it would be irrelevant to present Psychological theories as determining factors.

Although I find the self-fulfilling prophecy and theories towards biases and preferences interesting, I think that Psychology and Law should remain distinguished.

A Girl Like Me

Here is the link to the post on The Situationist Blog that contains Kiri Davis's video "A Girl Like Me," which we watched in class yesterday (and to which SFlohr refers below).

Is it more than the doll?

Class today got me thinking about the doll experiment that was presented in the YouTube clip. I was afraid this post might come off the wrong way, however I definitely think it is something to consider.

When the children were picking 'good' and 'bad' dolls, the decision was made very quickly, however when they were forced to pick the one that most resembled them, they were hesitant and it took some more time to figure out. This made me think that perhaps race is not the most prevalent issue here. It looked as though they were not picking good and bad because of the skin color of the doll. Instead I thought these children could have been picking on color of the toy alone.

Often times children are more drawn to bright colors and discouraged by dreary colors. This is often ingrained by the way we treat children as infants. We paint our children's room with light colors that we see as happy and uplifting. I've never seen a child's room painted black or dark gray or parents buy toys that are dark in color. Therefore I could see the children picking the doll because of the positive feeling that is reinforced to them, and not necessarily because of the race of the doll or because they think that black people are 'bad'.

I just feel like the fact that the children are picking toys should be taken into consideration. Perhaps the experiment would be different if they were picking a different set of objects.

New Technological Advancements: HR Practices changing. . . Discrimination?

I came across two articles:

This one is from Financial Week

This one is from Daily News

These articles discuss how employers are starting to use Technology and social networks such as Facebook to deploy their hiring practices in order take up minorities, homosexuals, and other members of protected classes. Generally, the articles agree that while these practices are being done, there is no official "law" that states that companies are risking an unnecessary liability in an ambiguous are of HR until the Supreme Court can have word on it.

What do you guys think about this? I mean, people do put out public information for everyone to see, however it is another thing to state that employers conduct searches to PRE-SCREEN job applicants before an interview. This is the same reason we have stopped sending pictures (the little passport style ones) alongside resumes because it gives employers an edge to screen out, for example, those applicants who are members of a protected class.

At the very least, companies should at least put a disclaimer that the individual may be background checked on any public information available at their disposal.

Is this stretching the limit? Or, is it a fair practice to allow this? I am curious to hear some of your opinions.

Physical Attractiveness Bias in Oleanna

I apologize if everyone is through with discussing Oleanna. I hate being the one to admit this and hope that no one find me “shallow” for it. As I have been doing research for the rough draft of my project, I came across this article (click on full PDF to read) and couldn’t help but acknowledge that physical attractiveness bias may have been at least partially affecting my perception of who the victim is in Oleanna. I, like most of the class, strongly sympathized for John, and despite some of Professor Prenkert’s arguments and showing of scenes in the film that can be read in Carol’s favor, I found myself very adamant in my opinion that John was the victim. That is not to say there weren’t good reasons for finding John the victim and as Professor Prenkert mentioned in class today, it was probably the way Mamet intended. I do not want to assume that everyone has the same perceptions on beauty ideals or what those perceptions are, but I must admit I did think Carol was unattractive and wondered had she been attractive if I would have perceived her more as a victim.

As we discussed a little in class today, Mamet’s play is highly interpretive and ambiguous. In class we had mentioned John’s character could act more “pervy” and Carol’s character could act more innocent. I have never seen a live performance of Oleanna, but I wonder if Carol on stage had the same appearance as Carol in the film? I would also like to investigate if Mamet had an idea of what these characters should look like. Although this would not affect our reading of the play, I think it partially persuaded me in John’s favor after seeing the film. Would we as an audience feel differently about who the victim is if Carol was played by Pamela Anderson? Jennifer Aniston? An Olsen twin?

I particularly find this issue interesting because we tend to look at aspects of the law to be so objective, but it’s easy to see how something unconscious such as physical attractiveness bias might persuade a jury’s position in a sexual harassment case.

New Indiana Law Requires Accommodation of Nursing Mothers at Work

Check out the details here.

It covers employers of 25 or more employees and requires them "to provide a private place for an employee to express breast milk for her child and to provide some form of refrigeration to store the milk." The language of the act requies the provision of that private place, which must be a location other than a toilet stall, when "reasonably possible."

The press release makes the claim that the rate at which mothers nurse their infants falls by half after three months, due to the return of women to the workforce. That's a stark statistic if accurate.

But what of these new requirements? I'm sure any one of us could spin a hypothetical in which these requirements are pretty onerous (e.g., an workplace that is just a series of desks or cubicles on an open floorspace, so that the provision of a non-toilet stall private space would require the acquisition of additional space or the installation of walls). So, the rubber will hit the road in the interpretation of what is "reasonably possible."

Job offers and the Military

My friend ran into this particular situation and we could not find any information on a result. I was curious what others thought about how people in the military are being treated. My friend was given a job offer to start work this summer for a sales company. After receiving his job offer he found out his National Guard unit was being deployed. Upon hearing this news, the company that gave him an offer took it off the table. They said because he could not begin employment as stated in the offer they could not honor it. Now there is protection if he had already started the job and then was deployed. The lack in protection is if you have not started your position yet. Personally I can not believe that people serving our country are being treated this way. There should be protection in place that when they return from service they can start work in a deferral program. I am curious to hear other people's thoughts on this issue.

MORE on Privacy...

I was reading the IDS last week and came across a really interesting article about some new monitoring software that Microsoft is in the midst of developing. The new software (unnamed as of right now) will allow employers to monitor employees’ body temperature, heart and respiration rates, brain signals, blood pressure, and facial expressions. WOW. Microsoft explains that they are developing this software in order to alert managers if an employee seems to be depressed, over-worked, or stressed. Well, okay… but I’m sure that there are plenty of individuals in the corporate world that are depressed, over-worked, or stress. Does this mean that they can’t do well at their job, that they’re not going to function at maximum capacity?

Maybe, but not necessarily. How about the fact that just over a quarter of all Americans over the age of 18 suffer from a diagnosable mental disorder in a given year?* This is a lot more prevalent than a lot of people might think, and thus to have an employer be able to monitor some of your most personal information and find out if you’re suffering from depression may not be in anyone’s best interest.

One opponent of the monitoring software stated: “I can see how some employers might want to know their employees’ stress levels or something like that, but a good company would already have policies in place (to deal with those issues).” I just can’t imagine a workplace in which all of my biometric data was measured and monitored. Often times, if I’m having a bad day, I’d rather keep it to myself. I understand the idea that managers want to be alerted if their employees are over-worked or stressed, but I feel that these issues are something that each employee should take care of him/herself. If there is a problem, it should be up to the employee’s discretion to decide whether or not he/she wants to make an issue of it. Each company needs a structure where the employee is going to come and talk to you directly.

The article stated that this technology won’t appear in the workplace anytime soon, and IU law professor Fred Cate explained that the critical issue is how the software is going to be used. He makes a good argument: “It’s clear that it could have enormous potential for invading privacy, but so does lots of other technology that we use.”

So, any thoughts?

*Source: http://www.nimh.nih.gov/health/publications/the-numbers-count-mental-disorders-in-america.shtml

Opposite of discrimination

An acquaintance of mine was telling me a story about his company and discrimination. I'm not sure if there will be any comments but I wanted to tell the class because I thought it was quite unique

He was working for a large consulting firm that would often hire minorities and seemed to be a company that was against discrimination. He told me that they had hired a black man to work on his team and upon working with the new guy, he said "it wasn't hard to tell that he was homosexual."

After a few months of good work from the black homosexual, the company was given word from a client that one of the new guys reports had been plagerized. He had copied part of a competing firms report and given it to the client as his own.

This put the company in a sticky situation because of the employee's race and sexuality. Instead of firing the employee for plagerizing a report that was given to a client, they did nothing. They told the employee that it is illegal to plagerize and let him continue his responsibilities, I'm sure that they didn't take further action against him because of a potential lawsuit that could have stemmed from the employee being fired or repremanded.

Now is it not discrimination that this employee was given special consideration because of his race and sexual orientation? Has the law gone too far when an employee that has very obiviously done wrong and deserves to be fired or at the least be repremanded receives no such actions because of his race and sexuality?