A recent question to the New York Times workplace column “The Workologist” perfectly illustrates a permanent flaw in sexual harassment law. Believe it or not, I have no recommendation regarding how to fix it. I don’t think it can be fixed.
I work at a blue-collar job, and I am one of four women in a crew of 40. The guys never touch or harass me, or any of the women, as far as I know.They do, however, constantly hug and grab and bump each other in a friendly way. It’s not unusual for one of the guys to go through a whole short meeting (a stand-up “huddle”) with an arm around another guy’s shoulder. No one ever touches me, and it’s not that I want them to. That would be weird. But I almost feel left out. Should I let this “bro contact” bother me?
I love it. Perfect. This is what using the law to dictate ethics can result in, and does result in frequently: hypocrisy, confusion, and a double-bind.
Let’s begin with the last sentence: “Should I let this “bro contact” bother me?” The whole point of “hostile work environment” sexual harassment law is to make sure no woman has to ask this question. A boss who responds to a female employee’s complaint of a hostile work environment-creating unwanted sexual attention in the office with “Don’t let it bother you!” has breached his or her duty under the law.
So what’s going on here? The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection—and quite properly do not hug the few women in their midst, lest one of the females, reasonably or not (or perhaps intentionally, to grab some power or cash) be made “uncomfortable,” take the physical contact as unwanted and sexual in intent, complain, and perhaps sue. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.
Even if some of the women announced their consent to be treated as “one of the guys,” it would not solve the dilemma. One of those bro-hugs could still turn into a copped feel, or be perceived as crossing lines by the female huggee. Then there is the looming third party harassment problem: a woman who has not consented to being hugged might see her female colleagues being man-handled (but completely innocently, of course) and assume that consenting to unwanted physical contact was a condition of employment, or that they would be adversely affected if they did not agree to participate enthusiastically in the hug-fest. Not treating the women in the company like the men is discrimination; treating them the same is an open invitation to a sexual harassment lawsuit. Continue reading →
1. When “Everybody Does it” isn’t just a rationalization. I was asked by a law firm to render an opinion as to whether particular conduct was a violation of the legal ethics rules. A legal ethics opinion—bar associations issue these periodically to cover gray areas– in the jurisdiction said that it was, but the opinion was over 20 years old. The reasoning given in the opinion for declaring the conduct unethical was that the practice was “new to the jurisdiction” and might mislead or confuse the public.
Today, however, my research showed, the conduct is commonplace in that jurisdiction. Many, many law firms engage in it. What was new two decades ago is new no longer, and the reasoning for the opinion’s conclusion was based on conditions that no longer exist. Moreover, no firm has been punished for the conduct, and won’t be.
The firm was concerned that the legal ethics opinion had not been over-ruled or withdrawn. I said that it didn’t have to be. “Everyone” was engaged in the conduct it forbade, the bar had allowed “everyone” to do it, and if an issue was raised now, I am 100% certain that the old opinion would be withdrawn as no longer reasonable or germane.
2. One more human feature that makes ethics harder: the ability to simultaneously hold two contradictory and mutually exclusive beliefs.
I was watching one of the apparently inexhaustible supply of cable shows about haunting and paranormal investigations with my wife. This one climaxed in a session with a Ouija board, and the love of my life uttered, within seconds of each other, these two statements:
“It’s amazing how many otherwise intelligent people really believe in ghosts and demons.”
“Ouija boards! I wouldn’t allow one of those things in the house. I’m not taking any chances.
I have heard many other friends and acquaintances endorse both of these positions as well.
3. It is the study of how one discerns the truth, after all. Who needs it? They no longer teach ethics in our education system, and now apparently philosophy is on the way out. Claremont Graduate University in California will be closing the PhD program in philosophy and terminating two tenured faculty. Apparently the move was dictated by budget and “market considerations.” The Claremont colleges in Southern California are a distinguished and growing batch consisting of Pomona, Scripps, Harvey Mudd, Claremont-McKenna, and Pitzer. They still have a philosophy faculty, but I wonder for how long.
I was tempted to check the curriculum of these schools to see what kinds of courses were deemed worthy of support while a graduate degree in philosophy was not, but I decided that it would make my head explode. Continue reading →
This day in ethics: in 1908:the FBI was founded as the the Office of the Chief Examiner, and re-named a year later. Few American institutions have as mixed an ethical legacy, and the cognitive dissonance continues. In 1984, one of the most evil men in U.S. history died, though his exploits have inspired as many works of fiction and entertainment as many a more virtuous figure. Ed Gein, the serial killer who was the inspiration for “Psycho,” “The Texas Chainsaw Massacre,” “The Silence of the Lambs” and many others novels and films, and about half the episodes on the long-running CBS drama “Criminal Minds, finally went to his maker. The identity of this monster’s “maker” is a matter of debate.
1. Baseball ethics and a troubling societal blind spot. The American League Rangers finally demoted struggling outfielder Delino DeShields to Triple-A Round Rock on Tuesday. The real question should be what too them so long. Despite playing solid defense in the outfield, DeShields, 25, has hit just .204 in 322 plate appearances this season with an On base+Slugging total of .570, which is, for you sad baseball unenlightened, objectively horrible. Any OPS under .700 is unacceptable in the major leagues.
Yet an unnamed Rangers player told reporters that such demotions don’t breed a winning culture and instead breed complacency. Funny, I always thought complacency was when an organization just accepted sub-par performance rather than moving to address it. Yes, even in baseball, the toxic idea that employees have a right to their jobs no matter how well or poorly they perform them is on the rise, and with it support for America’s socialists. Continue reading →
What befell Papa John’s Pizza founder John Schnatter is even a more direct example of current day McCarthyism and Salem’s “He’s a witch!” method of personal destruction than the fate of James Gunn, discussed in Part I.
Schnatter was already on the progressive hit list because he had been openly critical of the NFL’s addled kneelers–you know, those astute social justice athlete-activists who honest-to-Pete weren’t protesting the National Anthem when they protested during the National Anthem and never have been able to clarify what exactly they are protesting, unless it was kind of everything, and who were exercising their sacred First Amendment free speech rights, but really weren’t, though they don’t understand that, not being familiar with the nation’s founding documents? Those guys—and was ripe for race-baiting. Then he had a fateful conference call with the chain’s marketing agency Laundry Service—That’s funny: I have a laundry service called “Marketing Agency”!— that wanted to hire rapper Kanye West to represent Papa John’s in ads. The call was also intended, reportedly, as a role-playing exercise for Schnatter to deal with sensitive race issues and to learn how to avoid future public-relations botches.
In the course of explaining that he wasn’t a racist, Schlatter told the tale of how KFC’s Colonel Sanders reportedly used the slur “nigger” often. Schnatter said he never would use that word — but GOTCHA! He had, in order to tell the Col. Sanders story!
WIIIIITCH!!!
Although Schnatter says he intended to convey his antipathy to racism, some on the call found his language ” offensive,” and reported that he had “used” the taboo word. Nobody, apparently, claimed he had used the word as a slur; he just refused to use the baby-talk code “N-word,” which, you may have already noticed, is an example of particularly idiotic political correctness that impedes education, journalism, public debate and competent communication that I emphatically reject in writing this blog. Talking or writing about the word “nigger” is not using the word “nigger” in the fashion that makes it rationally offensive. If anyone finds using the word to discuss the word itself offensive, that person has a problem, and it is between his or her ears.
Schnatter, who was already in trouble at his company and had stepped down as CEO in the wake of his criticism of the knee-happy NFL players, initially capitulated to the latest barrage of criticism. “News reports attributing the use of inappropriate and hurtful language to me during a media training session regarding race are true,” he said in a statement. “Regardless of the context, I apologize. Simply stated, racism has no place in our society.” Then he resigned from the company board. Here is the infantile way Forbes announced the news:
“John Schnatter—the founder and public face of pizza chain Papa John’s—used the N-word on a conference call in May. Schnatter confirmed the incident in an emailed statement to Forbes on Wednesday. He resigned as chairman of Papa John’s on Wednesday evening.”
The three days of heavy rain wouldn’t bother me so much if it didn’t make Rugby so miserable. You do NOT want to be cooped up with an unhappy Jack Russell Terrier. Trust me on this.
1. Baseball Ethics, Jerk Division. Watch this:
Yes, that guy deliberately took a baseball away from a kid who lost hold of it after it had been tossed to him by Cubs first base coach Will Venable during yesterday’s Cubs-Cardinals game. Apparently the child was given a replacement ball by the Cubs, and this one was autographed. The gesture also took some the inevitable heat off the jerk who snatched the ball. with the Cubs telling reporters that he had helped the same boy get a ball earlier in the game and wasn’t really a monster.
A few points:
That the kid ended up, as some commentators put it, “better off” because the jerk stole his ball is pure moral luck, and doesn’t make what the guy did any less wrong, cruel or despicable.
Neither is it mitigation that the same man—claims the Cubs—helped the kid get another ball earlier. What kind of ethical principle is that?“I helped you before, so this entitles me to steal from you now: all even, right?”
Please save some contempt for the woman the jerk gave the purloined ball to. She should have handed the ball right back to the child, She’s as big a jerk as her friend is.
2. Now consider this: what if the jerk was a federal judge nominated to fill a Supreme Court seat? Would that video be fair game to consider in evaluating his qualifications to be a SCOTUS justice? Let’s have a poll:
I don’t care to live in a culture where law-abiding citizens can have their reputations and careers destroyed by people maliciously publicizing old or private communications to make them hated or distrusted, or worse, a culture where doing this to people is deemed virtuous. Such a culture is one based on perpetual fear, where individuals cannot express an opinion that they may change later, or make a joke to a select audience, or have a conversation expressing strong but spontaneous and transient feelings without risking personal destruction at the hands of someone who wishes them ill.
That is the U.S. culture, however, that extremists on both ends of the political spectrum are successfully constructing, unles we stop them. Their tools are political correctness, invasions of privacy, abuse of technology, social media and its attendant mobs, and an utter disregard of fairness, decency and ethics.
Two recent example illustrate how serious the problem is. This post is about one of them.
Talented writer-director James Gunn, the creative force behind the delightful Guardians of the Galaxy movies was fired by Disney after his old tweets containing offensive jokes were uncovered and circulated on social media and the web. The tweets were deliberately sought by conservative blogger and activist Mike Cernovich, to intentionally wreck Gunn’s career. Gunn’s real offense was that he has been a vocal “resistance” recruit and a prominent conservative-hater, so once Cernovich had the goods on him, the Right was happy to use them.
No doubt, Gunn’s old tweets included jokes that many would consider worthy of Roseanne Barr on a careless day, like
“Laughter is the best medicine. That’s why I laugh at people with AIDS.”
“I like when little boys touch me in my silly place.”
“The best thing about being raped is when you’re done being raped and it’s like ‘whew this feels great, not being raped!’”
Gunn, realizing that joking about pederasty, rape and AIDS was sufficient to get him Kevin Spaceyed for life, tried to explain:
Many people who have followed my career know when I started, I viewed myself as a provocateur, making movies and telling jokes that were outrageous and taboo. As I have discussed publicly many times, as I’ve developed as a person, so has my work and my humor. It’s not to say I’m better, but I am very, very different than I was a few years ago; today I try to root my work in love and connection and less in anger. My days saying something just because it’s shocking and trying to get a reaction are over. In the past, I have apologized for humor of mine that hurt people. I truly felt sorry and meant every word of my apologies. For the record, when I made these shocking jokes, I wasn’t living them out. I know this is a weird statement to make, and seems obvious, but, still, here I am, saying it. Anyway, that’s the completely honest truth: I used to make a lot of offensive jokes. I don’t anymore. I don’t blame my past self for this, but I like myself more and feel like a more full human being and creator today. Love you to you all.
I believe him. I believe him, though something nasty in me would love to know if he was telling friends that the Milwaukee Brewers should punish Josh Hader for the racist tweets he made in high school, because this whole phenomenon is a Golden Rule matter. That has been the Ethics Alarms position forever, including during the 2014 Donald Sterling Ethics Train Wreck, in which an NBA owner lost his team, millions in fines, and his reputation after his mistress taped an ugly conversation they had in his bedroom and circulated it. I reiterated this position most recently in May of this year:
The position of Ethics Alarms on these incidents, which also includes spurned lovers sharing private emails to the world in order to humiliate a correspondent, the Democratic Senators who leaked the President’s coarse rhetoric about “shithole” countries that took place during a meeting that was supposed to be private and confidential, and Donald Trump’s infamous “pussy-grabbing” statements, is simple. Once the embarrassing words are unethically made public, they can’t be ignored, Once the embarrassing words have unethically made public, they can’t be ignored. Neither should the circumstances of their making, or the unethical nature of their subsequent use was weapons of personal destruction.
There is not a human being alive who has not made statements in private meetings or conversations, whether those statements be jokes, insults, rueful observations or deliberate hyperbole, that would be horribly inappropriate as public utterances. Thus the feigned horror at such statements by others is the rankest kind of Golden Rule hypocrisy. In addition, the opprobrium and public disgrace brought down on the heads of those whose mean/ugly/politically incorrect/vulgar/ nasty/insulting words are made public by a treacherous friend, associate or colleague erodes every American’s freedom of thought, association and expression, as well as their privacy.
And yes, to anticipate the objection, I do not regard social media posts by non-public persons who later become celebrities to be truly public communications. They are, in the minds of the foolish individuals who send them, personal messages aimed at friendly audiences, and not intended for public circulation. In reaching this position I am influenced by the legal ethics and judicial rule regarding what is public knowledge regarding a former client that can be used by a lawyer . Simply because information is included in a public document that anyone can access doesn’t mean it is considered public enough for a lawyer to reveal it if the information involves a client. Most people don’t know about those facts because they don’t know how to find them, where to look, or whether the information even exists. Information doesn’t become truly public until it is widely accessible and disseminated. Once Gunn (and Hader) became celebrities, their social media presence was public, but not before. True, both Gunn and Hader should have realized that what they posted when they were nobody special had suddenly become a matter of public interest, and true, people need to start thinking that way, but most of our newly famous just don’t.Continue reading →
It was the blog equivalent of coming home and finding that you left the bathtub water running.
At 6: 56 this morning, I read reader Marie Dowd’s comment that said,
“7: ‘This cover’ has no link and a search showed a cover with people in the spray of a fire hydrant?”
Initially I had no idea what she meant, and then, when it dawned on me, I rushed to check out yesterday’s Warm-Up while screaming “NOOOOOOOO!” in slow motion. Sure enough, I had never posted the New Yorker cover showing the President looking flat and arguably dead at the bottom of an escalator, and that was what I was writing about. Thus the post made no sense. Here, for anyone who cares, and apparently few did, is what was supposed to be shown. Does it make sense now?
7. Is this New Yorker cover responsible?
It is perilously close to Kathy Griffin’s severed head: many read the image as the President being dead, and members of “the resistance” have openly alluded to Trump’s death or hope thereof over the past 18 months. (Note the double thumbs up, however.) I rate the cartoon as well within the boundaries of political commentary, but, again, wonder what the reaction would have been if a similar image of President Obama was run on the cover…and it easily could have been, many, many times, with justification.
I haven’t posted a Comment of the Day this month, and it’s me, not you. I have a high quality backlog, in fact: my apologies. I’ll be working diligently to catch up.
First in the queue is Arthur in Maine‘s deft reflections on the post about the police officers who flipped a coin to decide whether or not to arrest a reckless driver. (I tend to think that it is a very well-argued “Everybody does it” rationalization, but never mind…).
When I was going to school in Boston, I made my beer money by working in emergency medical services. Part of that work was in a district of the city, and part of it was in the northern suburbs; the latter company was a private concern that had the EMS contract for three contiguous towns and did a boatload of transfer work on top of it. A terrible company, long since sold out, but that’s another story. Suffice to say that I liked the work itself, even if the company itself was lousy.
In that role, I came to know a lot of cops and firefighters really well. They weren’t that different from us, other than the fact that their jobs were a lot more dangerous than ours – and ours were dangerous.
First-response work requires that the teams work in very close proximity with one another, and teams are mostly together for their entire shifts. Depending on the branch, shifts can last between eight hours and 48 (yes, you sleep if there’s nothing going on). Inherent in a smoothly functioning unit in all three first-response disciplines is a good relationship between crew members; partners or teams at odds with each other become a huge problem. If they can, supervisory personnel will usually do their best to ensure that the personnel in a given car or truck get along well. It’s remarkably intimate. Continue reading →
1. What did you expect? Following close on the heels of Scott Pruitt’s firing from the EPA as a result of blatant ethics violations, Commerce Secretary Wilbur Ross said last week that he would sell all of his stock holdings to “maintain the public trust” after the Office of Government and Ethics pointed out that his financial transactions could get him into legal trouble.
“I have made inadvertent errors in completing the divestitures required by my ethics agreement,” Ross said in a statement. “To maintain the public trust, I have directed that all of my equity holdings be sold and the proceeds placed in U.S. Treasury securities.”
To maintain that public trust. Right.
The culture of CEOs and business executives is so alien to ethics that this kind of thing was assured as soon as Donald Trump was elected President. I wouldn’t say the business culture is necessarily more unethical than the political culture, it is juts unethical different ways. However, President Trump brought this brand of malfunctioning ethics alarms with him, and we shouldn’t expect it to abate until he leaves the White House.
Then we will get back to the good old-fashioned political versions of unethical conduct we’re become numb to. Ah, those were the days!
2. A question of degree. Professor Brian McNaughton, a former professor at Colorado State University, is facing a felony charge for fabricating an outside job offer to get a higher salary. This meets the technical definition of fraud. Apparently he presented the school with fabricated offer letter from the University of Minnesota. McNaughton resigned his position and apologized, and returned the fruits of the ill-gotten raise, about $4,000 per year over four years.
He also says that he was urged to use the tactic by other faculty members, who said it was a standard ploy. When does the “I have other job offers” gambit cross the ethics line into fraud? Clearly when you use a forged letter, but short of that, it’s just lying—unethical, but not criminal.
…if an employee is performing a job and is good at it, that person should be compensated for it accordingly and in line with individuals within the same organization at an equivalent level professionally (ideally pay should be bench-marked against similar-sized institutions in states or parts of the country with comparable income ranges). Does a job offer and the suggestion that the employee is desirable to another organization change how well that person is performing? Promotions and rewards should be directly related to performance and an individual’s contribution to the organization and to science.
Well, yes, but competition and reality interferes with this nice, fair but overly simplistic and impractical theory. In fields where employees are not fungible, basic economic theory comes into play: you can’t deny the influence supply and demand. The fact that there is competition for an individual’s services does increase that individual’s value. Just saying “it shouldn’t be that way” doesn’t change reality. That’s what makes McNaughton’s lie fraudulent: he’s misrepresenting his value, and using false means to do it.
3. Would you fire Dan Coats for this?
Naturally the anti-Trump mob loved it, and that was the director of national intelligence’s intent: he was playing to the mob and virtue signaling to the detriment of his boss. Either than, or he’s thoroughly unprofessional and can’t be trusted to be on TV. Washington Post reporter Dan Baltz is either foolish, naive or dishonest when he writes:Continue reading →
1. Here is the level of logic and ethical reasoning the public is subjected to by the media: Here is NBC Sports blogger Bill Baer on why it is misguided for the Milwaukee Brewers not to punish relief pitcher Josh Hader—whose career crisis I discussed here–for tweets he authored when he was in high school seven years ago:
The “he was 17” defense rings hollow. At 17 years old, one is able to join the military, get a full driver’s license (in many states), apply for student loans, and get married (in some states). Additionally, one is not far off from being able to legally buy cigarettes and guns. Given all of these other responsibilities we give to teenagers, asking them not to use racial and homophobic slurs is not unreasonable. Punishing them when they do so is also not unreasonable.
A study from several years ago found that black boys are viewed as older and less innocent than white boys. A similar study from last year found that black girls are viewed as less innocent than white girls. Michael Brown, Tamir Rice, and Cameron Tillman, among many others, never got the benefit of the doubt that Hader and countless other white kids have gotten and continue to get in our society. When we start giving the same benefit of the doubt to members of marginalized groups, then we can break out the “but he was only 17” defense for Hader.
How many repeatedly debunked false rationalizations and equivalencies are there in that blather? It’s not even worth rebutting: if you can’t see what’s wrong with it…if your reaction is, “Hey! Good point! Why is it OK for a cop to shoot a teenager for charging him after resisting arrest, but not OK to suspend a ball player for dumb social media posts he made in high school?”…I am wasting my time. And NBC pays Baer as an expert commentator. It might as well pay Zippy the Pinhead.
2. Is this offensive, or funny? Or both? Increasingly, we are reaching the point where anything that is funny is offensive, thus nothing can be funny. The Montgomery Biscuits, the Tampa Bay Rays’ Double-A affiliates, will be hosting a “Millennial Night” this weekend, being promoted with announcements like this one: “Want free things without doing much work? Well you’re in luck! Riverwalk Stadium will be millennial friendly on Saturday, July 21, with a participation ribbon giveaway just for showing up, napping and selfie stations, along with lots of avocados.”
Nonetheless, I agree with the critics. I think the promotion goes beyond good-natured to insulting. It’s like announcing a Seniors Night by guaranteeing free Depends and promising extra-loud public address announcements that will be repeated for the dementia-afflicted who forget what they just heard. [Pointer: Bad Bob] Continue reading →
Ethics Alarms 
I haven’t posted a Comment of the Day this month, and it’s me, not you. I have a high quality backlog, in fact: my apologies. I’ll be working diligently to catch up.
First in the queue is Arthur in Maine‘s deft reflections on the post about the police officers who flipped a coin to decide whether or not to arrest a reckless driver. (I tend to think that it is a very well-argued “Everybody does it” rationalization, but never mind…).
Here is his Comment of the Day on the post, Ick Or Ethics? The Officers’ “Coin Flip”: