The Courts under Trump - Mega Thread

[RedDenver]

 

[teachercd]

7 hours ago, Moiraine said:

 

He often says the right things.

He also seems to have found the fountain of youth!

[DevoHusker]

7 hours ago, RedDenver said:

 

Thats a tough one. The use of the n word is agregious, but a unanimous 3 judge panel ruled that in and of itself did not prove the suits case. Perhaps the plaintiffs lawyer did not do a very good job.

 

I like this quote, from ACB yesterday:

"Judges can't wake up one day and say I have an agenda-I like guns, I hate guns. I like abortions, I hate abortions-then walk in like a Royal queen and impose their will on the world. It isn't the Law of Amy, its the law of the American people.

[Ulty]

8 hours ago, RedDenver said:

 

That is actually pretty consistent with most court rulings across the country. The threshold for determining whether conduct based on race (or sex, or just about any other protected class) is severe or pervasive enough to constitute a hostile work environment is very high. Sometimes impossibly high. It takes a lot of evidence.

[RedDenver]

 

[RedDenver]

2 hours ago, DevoHusker said:

Thats a tough one. The use of the n word is agregious, but a unanimous 3 judge panel ruled that in and of itself did not prove the suits case. Perhaps the plaintiffs lawyer did not do a very good job.

 

I like this quote, from ACB yesterday:

"Judges can't wake up one day and say I have an agenda-I like guns, I hate guns. I like abortions, I hate abortions-then walk in like a Royal queen and impose their will on the world. It isn't the Law of Amy, its the law of the American people.

 

1 hour ago, Ulty said:

That is actually pretty consistent with most court rulings across the country. The threshold for determining whether conduct based on race (or sex, or just about any other protected class) is severe or pervasive enough to constitute a hostile work environment is very high. Sometimes impossibly high. It takes a lot of evidence.

Think about what you're saying here: being called a n***** at work does not make the work environment hostile.

[knapplc]

3 minutes ago, RedDenver said:

 

Think about what you're saying here: being called a n***** at work does not make the work environment hostile.

 

Ulty has spent a lot of time thinking about what he's saying here. So have the courts, and the courts have been very consistent in their rulings. A one- or two-time use of the "N" word does not inherently constitute a hostile work environment. That's not from Ulty, or me, that's from ruling after ruling.  The litmus test is how would a "reasonable person" react to that use. That's a hugely gray area, and each situation has to be looked at individually. 

 

That's how that word is analyzed legally - and since ACB was being asked the question in a legal setting, she gave the correct answer. Morally you're right, and morally I agree with you (as I'm sure most everyone on HB does, including Ulty). 

 

 

[BigRedBuster]

16 minutes ago, RedDenver said:

 

 

I personally don't see the fact that her father was a Shell lawyer as a problem.  Kids don't automatically have their parent's views on the world.  I know I sure as hell don't.  And, I know a lot of people who don't.  She should not be judged by a job one of her parents had.

[BigRedBuster]

16 minutes ago, RedDenver said:

 

Think about what you're saying here: being called a n***** at work does not make the work environment hostile.

It's one of those cringy things that you have to take emotion out of it and look at the law.

[Enhance]

I don't know if this is a fair correlation to make in regards to the use of the N word in the work environment, but it made me think of this...

 

In my college's mass media law/ethics class, we learned about an assault case where Person A insulted Person B's mother and Person B attacked Person A as a result. A court ruled that Person B was justified in the assault because of the insult against his mother. It colloquially became known as the "your momma" rule and, if I remember correctly, it was used as precedent in similar cases.

 

So, sort of an interesting dynamic there. I don't know if one says something about the other, but they both could easily cause someone to be overtly offended. I agree with @knapplc that we all know the correct moral response to this N word dilemma, though.

[Ulty]

6 minutes ago, RedDenver said:

 

Think about what you're saying here: being called a n***** at work does not make the work environment hostile.

Hey, I agree with what you are saying. It is quite easy to imagine that someone being directly targeted with the n-word, especially from your boss, creates a hostile environment. A single incident can sometimes be enough in terms of severity to cross the "severe or pervasive" threshold.

 

But case law, across probably every circuit and including SCOTUS, has consistently put a very high threshold on determining harassment, and every case has to take into account the context surrounding the situation. I don't know the details of the case that was mentioned in that tweet, but as she states in her opinion, the evidence would have to show that the word itself changed altered the terms and conditions of his employment, and it sounded like there were other factors at play even before the word was uttered.

 

And that situation sucks, because I think we can all reasonably assume that someone who would call someone else the n-word is a racist a$$hole, and this view may have likely impacted other elements of his supervision over this employee. But the evidence has to bear it out, and actual evidence of this stuff is very hard to find.

 

That is why it is so important to change the culture in the workplace. Most racism at work is subtle, and a lot of bias is implicit. Workplaces need sound policies and training, leaders need to embrace a culture of inclusiveness, racism (even microagressions) need to be called out, uncomfortable conversations need to be had, and leadership needs to embrace a culture of inclusiveness (not just leadership as work, but also our public leaders, which is why Trump and the current crop of Republicans need to be tossed out). 

 

In this particular case, there are other things we don't know (maybe if I read the full legal report, but I don't plan to here): What else happened in the workplace with this employee? How did the company respond when it found out the supervisor used this word? How are their policies and practices?

 

Those of us who investigate cases of harassment and discrimination have to abide by the myriad court decisions that have already defined what is and isn't a hostile work environment to use as our legal standard. And we have to work damn hard to see if there are other clues that can substantiate harassment and discrimination. Because we want to find this $h!t and address it. 

[Ulty]

3 minutes ago, Enhance said:

I don't know if this is a fair correlation to make in regards to the use of the N word in the work environment, but it made me think of this...

 

In my college's mass media law/ethics class, we learned about an assault case where Person A insulted Person B's mother and Person B attacked Person A as a result. A court ruled that Person B was justified in the assault because of the insult against his mother. It colloquially became known as the "your momma" rule and, if I remember correctly, it was used as precedent in similar cases.

 

So, sort of an interesting dynamic there. I don't know if one says something about the other, but they don't necessarily seem so far apart. I agree with @knapplc that we all know the correct moral response to this N word dilemma, though.

 

In rulings involving freedom of speech, "fighting words" are not necessarily considered protected speech. Calling someone the n-word to their face can be considered a fighting word. 

[DevoHusker]

48 minutes ago, RedDenver said:

 

Think about what you're saying here: being called a n***** at work does not make the work environment hostile.

 

Does it make any difference if both Terry Smith and Lloyd Colbert are (both) African Americans? I have seen numerous references that the n word is okay when used by Blacks.

[TGHusker]

11 hours ago, RedDenver said:

 

He is wrong. And he uses a red herring to distract us from the truth of originalism.  It is this type of dishonesty that keeps us from trying to understand the perspective that we don't agree with.   As she said later in the hearings, after the dinner break, you look at the original intent and you 'modernize it' (my words) to today's realities.  She applied it to unreasonable searches - the founders could not see the day of the internet, police infra red scanners, airplanes etc.  But she said based on the original intent of the constitution, a policemen would be in violation if they stood outside your house without a warrant and was just randomly scanning homes in search of heat lamps that would reveal that you were growing weed.

 

A couple definitions:

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.

 

In United States constitutional interpretation, the living Constitution or loose constructionism is the claim that the Constitution and other constitutions, holds a dynamic meaning, evolving and adapting to new circumstances, without being formally amended.

 

So an originalist would argue that the constitution or a law needs to be amended for there to be a change in the intent of the law. This is different than application of intent of existing law to a present reality - as I noted above regarding unreasonable search and seizures.   Intent and application are 2 different things with application being reliant on the original intent.

 

Living constitutionist want to bypass the whole idea of amending the constitution or laws that are being evaluated.  It, in my opinion, makes the judge the law maker. It is the 'easy way' out.  The legislature branch of govt doesn't have to do anything, the court can take the heat for their new interpretations.  I think it is a way the congress gets off the hook but it also gives away its constitutional responsibility/authority to legislate and to amend.  This cuts both ways - conservatives and liberals can use the living constitution to their advantage.

 

[Ulty]

3 minutes ago, DevoHusker said:

 

Does it make any difference if both Terry Smith and Lloyd Colbert are (both) African Americans? I have seen numerous references that the n word is okay when used by Blacks.

That's a pretty interesting question. It might change the context around the situation, but context always needs to be examined anyway. There is not a clear yes or no to your question without further investigation.

 

 First of all, I would say that the n-word is never okay. 

 

However, determining whether conduct is offensive and therefore creates a hostile environment depends on the complainant's subjective belief that it is offensive, as well as an objective analysis as to how a reasonable person would react in a similar situation. It is possible for a black person to discriminate against another black person, but we still have to apply the same tests and look at the context. 

 

I'm sure we have all seen (at least in media) black people calling each other the n-word, sometimes affectionately, sometimes just as a figure of speech, sometimes as a song lyric. In those cases, is the word being used to attack or target someone? Does the recipient of the word feel offended? Would a reasonable person be offended if they were in that situation? Now, the situation dramatically changes if a white person comes up and then hurls the n-word at those black people. 

 

I can't claim harassment against you if your conduct does not offend me. But that same conduct might be offensive or abusive toward someone else. That's why we often act differently around "the guys" than we do when women are present, right? Perhaps we should all challenge ourselves to engage in appropriate conduct no matter who is around us. If you tell racist jokes among your white friends but never say a word to your black neighbor, you aren't harassing your neighbor. But you are still an a$$hole. Let's stop being a$$holes.

 

So, going back to a black supervisor using the n-word with a black employee, hopefully we all agree that it is inappropriate no matter what, but does it rise to harassment at a legal level? Not if the employee is not offended. Maybe not if the employee perceives the use of that word differently from a black person as opposed to a white person. Then we would have to ask questions regarding if they had used that word with each other before. What was the context of when it was said? What was the intent?