Title VII

I Suppose This Is Progress: Brigham Young University No Longer Prohibits Gay Sexual Behavior Any More Than It Prohibits Any Other Sexual Behavior

/ Jack Marshall / 6 Comments

Brigham Young University (BYU) this week removed same-sex behavior as specifically prohibited conduct in itsstudent handbook honor code. Now the code  simply bans “all forms of physical intimacy” outside of marriage.

The previous iteration of the code stated,

One’s stated same-gender attraction is not an honor code issue. However, the honor code requires all members of the university community to manifest a strict commitment to the law of chastity. Homosexual behavior is inappropriate and violates the honor code. Homosexual behavior includes not only sexual relations between members of the same sex, but all forms of physical intimacy that give expression to homosexual feelings.

The revised BYU honor code no longer refers to same-sex intimate relations at all, but directs each member of the BYU community  to commit personally to “abstaining from any sexual relations outside a marriage between a man and a woman” because “the Lord’s law of chastity is abstinence from sexual relations outside of a marriage between a man and a woman.’” Continue reading →

Choosing Race Over Ethics, Fairness, Common Sense, Duty And Our Children’s Future: “Disparate Impact” And The New York Teachers Exam Decision

/ Jack Marshall / 17 Comments
Fine. If you can teach, you can teach. I don't care that you're blue.

Fine. If you can teach, you can teach. I don’t care that you’re blue.

How much, I wonder, will American society be willing to distort its values, reality and duties to the public in order to accommodate false standards of racial justice? How many innocent people will be harmed before this destructive trend dissolves as the truth suddenly dawns, and we ask, “What were we thinking?” If a computer program was designed to invent the perfect example of a court decision that shows how divorced public policy regarding race has become from anything approaching logic, it could not come up with better than this.

Judge Kimba M. Wood (Remember her?) of the Federal District Court in Manhattan ruled last week that the New York’s teachers  exam was racially discriminatory, and the results had to be thrown out.  The exam, the second incarnation of the Liberal Arts and Sciences Test, called the LAST-2, was administered to New York teaching candidates from 2004 through 2012 and was designed to test an applicant’s knowledge of liberal arts and science.  Now, the exam was not found discriminatory because anyone could show, or suggested, that certain questions favored one race’s experience over the other. It was not found discriminatory like those infamous Jim Crow exams, or because experts were able to show how African Americans were uniquely unable to do well on particular questions for identifiable reasons. No, the test was found to be discriminatory because minority teaching candidates failed at a higher rate than white candidates, and that’s the only reason.

In order to eliminate the gap, those questions on which minority applicants did significantly worse will have to be eliminated. Wrote Wood:

“Instead of beginning with ascertaining the job tasks of New York teachers, the two LAST examinations began with the premise that all New York teachers should be required to demonstrate an understanding of the liberal arts.”

We are supposed to immediately grasp that this is a bad thing. Continue reading →

Ethics Alarms Mailbag: Is Arguing In The Alternative Unethical?

/ Jack Marshall / 19 Comments

No, it isn’t, but I understand why it might  seem that way.

“I didn’t do it, no one saw me do it, and you can’t prove anything!”

“I didn’t do it, no one saw me do it, and you can’t prove anything!”

An email from ethics issue scout Fred calls my attention to the case of  transgendered female Leyth O. Jamal, 23, who filed a sexual discrimination suit in September claiming that managers at a Saks store in Houston  referred to her as a man, made her to use the men’s restroom and pressured her to dress as a man despite being aware of her transgender identity. She also claimed a male colleague repeatedly asked her whether she was a prostitute in front of customers and colleagues, and threatened her. Saks fired Jamal after she brought a complaint to the Equal Employment Opportunity Commission.

In federal court this week, Saks withdrew its Dec. 29, 2014, court filing asserting that transgender workers are not covered by the gender discrimination ban in Title VII of the Civil Rights Act of 1964. The company  still denies that it discriminated, and has made statements about how it “believes that all persons are protected against sex discrimination under Title VII” of the Civil Rights Act of 1964, which prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. It had argued, however that the plaintiff had based her case not on sex discrimination but on the issue of gender identity and transgender status, which Saks believed fell outside of Title VII’s mandate.

Now Saks is only disputing that there was any discrimination, not that such discrimination was legal. The question posed to me: does this U-turn this look bad for Saks? Is it cynical and unethical? How can you simultaneously argue that what the client alleges isn’t actionable because there’s no law against discriminating against someone for gender identity, and that you didn’t discriminate on that basis, or any basis, anyway? Continue reading →