Watch and learn: Video recordings of 2022 programs

 

Hello dear readers, I’m linking below video recordings of several programs in which I participated during 2022. I hope you’ll find something of interest!

• “Bullying and Incivility in the Academic Workplace” (March 2022) (link here) — I gave a presentation about “Bullying and Incivility in the Academic Workplace” to the Northeastern University College of Science in Boston, as part of a series on “Disrupting Academic Bullying.” I first cover bullying, mobbing, and incivility generally, then I examine these behaviors in academic workplaces.
• “Creating Healthy Workplaces Through Legislation” (April 2022) (link here) — At a conference hosted by the U.S. Department of the Navy and Howard University, I was invited to participate in a panel discussion on “Fostering Professional Climates and Cultures Through Accountability.” The conference was the 2022 “National Discussion on Sexual Assault and Sexual Harassment at America’s Colleges, Universities and Service Academies.” I joined Rear Admiral Rebecca Patterson, Keetah Salazar-Thompson, and Kelley Bonner on this panel. My brief handout for the conference is posted here.
• “The WBI Story: Drs. Ruth & Gary Namie” (July 2022) (link here) — I had the privilege of interviewing Drs. Ruth and Gary Namie, co-founders of the Workplace Bullying Institute and long-time colleagues and friends, about the history of their pioneering work to address workplace bullying. This program was part of Gary’s Workplace Bullying Podcast series.
• “The Hero’s Call: Workplace Bullying” (Sept. 2022) (link here) — Suffolk Law alumnus and trial attorney Marc Diller extended an invitation to appear on his law firm’s video web series, The Hero’s Call. Marc and his colleague, Dr. John Naranja, asked me about my work around workplace bullying, the anti-bullying Healthy Workplace Bill, and associated activities in the field of therapeutic jurisprudence.
• “The Dignity of an Intellectual Life for All” (Oct. 2022) (link here) — I organized and hosted an interactive discussion featuring Zena Hitz (tutor, St. John’s College and author, Lost in Thought: The Hidden Pleasures of an Intellectual Life (2020)), followed by a responsive panel of distinguished educators, including Joseph Coulson, Hilda Demuth-Lutze, Linda Hartling, and Amy Thomas Elder. Hosted by Suffolk University Law School and co-sponsored by the Basic Program in Liberal Education for Adults at the University of Chicago, Harrison Middleton University, and the World Dignity University initiative of Human Dignity and Humiliation Studies.

Popular 2022 posts

Image courtesy of citypng.com

Hello dear readers, and welcome to the New Year! I collected ten of the most popular 2022 posts on work-related themes. If you missed them earlier or would like to take another look, then here’s your chance to read them:

• “Gaslighting” is the Merriam-Webster 2022 “word of the year” (Dec. 2022) (link here)
• Watching “Gaslight” (1944): One viewer’s guide (Oct. 2022) (link here)
• Workplace bullying and mobbing: Annotated recommended book list for 2022 (Aug. 2022) (link here)
• We need to dig beneath generic references to “toxic workplaces” (Aug. 2022) (link here)
• “The Wire” as work primer (July 2022) (link here)
• The Amy Wax situation: On academic freedom, diversity & inclusion, workplace mobbing, and cancel culture (July 2022) (link here)
• Dr. Martha Stout on outsmarting sociopaths (including those at work) (June 2022) (link here)
• On disability bullying (March 2022) (link here)
• Bullying, mobbing, and incivility in the healthcare workplace (Feb. 2022) (link here)
• A degrading money grab for classroom supplies in South Dakota (Jan. 2022) (link here)

We need to dig beneath generic references to “toxic workplaces”

(image courtesy of clipart-library.com)

If you’ve been following media coverage of some of the not-so-wonderful aspects of the current American workplace, then you may have encountered the growing cacophony of references to “toxic workplaces,” “toxic work environments,” “toxic jobs,” and the like. (If you doubt me, do a few Google searches and you’ll quickly see what I mean!)

It appears that a mix of the following has given rise to generic references about toxic work settings:

• The MeToo movement;
• The pandemic and overwork of workers in essential job categories;
• The Great Resignation;
• Diversity, equity, and inclusion;
• Political and social discord;
• Bullying and incivility;
• Attention to bad bosses;
• Wage stagnation and benefit cuts;
• The recent dramatic uptick in union organizing.

Organizational behavior research from years ago taught me that different forms of workplace mistreatment tend to run together in packs. Thus, if you encounter a workplace rife with sexual harassment, then you’re quite likely to see other forms of interpersonal mistreatment flourishing as well. Contemporary news accounts often confirm this. For example, I’ve noticed that investigative pieces focusing on sexual misconduct in a given workplace often then segue into describing behaviors that might be labeled as bullying and/or incivility.

In any event, if we wish to create healthier, happier, and more productive workplaces, then we need to dig beneath the generic tag of toxicity and ask specifically what’s going on. The results may yield different problem areas and different fixes. Some bad behaviors may be intentional. Others will fall under the categories of negligence or dysfunction. Some may implicate employment and labor law violations. Certain concerns may be organizational in nature; others may be limited to a department or working group.

It’s also true that, on occasion, frequent complainers will invoke the language of toxicity to avoid supplying specific allegations that won’t hold up. Some will do so as attempted shields against accountability for their own inadequate work performances.

That said, I feel confident in saying that there is a fair amount of genuine unhappiness and undue stress in our workplaces during this snapshot moment in time. Some of the causes may be beyond the means of even well-intentioned organizations to remedy. But good employers will address worker concerns with attention to detail and an innate sense of fairness and dignity, while bad ones will dismiss reports of workplace toxicity and sometimes pay the consequences.

The Amy Wax situation: On academic freedom, diversity & inclusion, workplace mobbing, and cancel culture

Screenshot from Inside Higher Education

Applying just about any conventional measure, law professor Amy Wax has built a spectacularly successful career. She holds a chaired professorship at an Ivy League law school (University of Pennsylvania). She has assembled a ferocious c.v. (link here), loaded with sterling academic and professional achievements, publications, and awards. Her degrees include a J.D. from Columbia and an M.D. from Harvard.

And yet she is under heavy fire for an ongoing, alleged series of polarizing, critical statements and negative characterizations about people of color, women, and gays. For that she faces potential discipline and loss of tenure protections. The Dean of her law school has asked the university’s faculty senate to impose sanctions on her, a possible prelude towards eventual termination proceedings.

Scott Jaschik, writing for Inside Higher Education (link here), provides a lot of details about this situation, which has received national attention. Here’s his lede:

Some students and faculty at the University of Pennsylvania have been clamoring for years for the ouster of Amy Wax, the polarizing law professor who courted scandal with incendiary and racist remarks and writings and seemed to relish the resulting controversies. Despite the repeated calls for her removal from her tenured position, and the criticisms of her actions—including by university leaders—that followed each controversy, Wax remained in the position and seemed firmly protected by free speech and academic freedom rights.

That pattern may be about to change: the dean of the Penn law school has started a process that could lead to Wax’s termination.

To be clear, we’re not talking about an isolated instance or two of questionable speech. From Penn Law dean Theodore Ruger’s memorandum to the Chair of the Faculty Senate (link here), here are some of Prof. Wax’s alleged statements, made to individual students, her classes, and public audiences:

• “Stating in class that Mexican men are more likely to assault women and remarking such a stereotype was accurate in the same way as ‘Germans are punctual.'”
• “Commenting in class that gay couples are not fit to raise children and making other references to LGBTQ people that a student reported evinced a ‘pattern of homophobia.'”
• “Commenting after a series of students with foreign-sounding names introduced themselves that one student was ‘finally, an American’ adding, ‘it’s a good thing, trust me.'”
• Telling a Black student…”who asked whether Wax agreed with [a panelist’s] statements that Black people are inherently inferior to white people, that ‘you can have two plants that grow under the same conditions, and one will just grow higher than the other.'”
• Telling a Black student “that Black students don’t perform as well as white students because they are less well prepared, and that they are less well prepared because of affirmative action.”
• “Stating, based on misleading citation of other sources, that ‘women, on average, are less knowledgeable than men,’ women are ‘less intellectual than men’ and there is ‘some evidence’ for the proposition that ‘men and women differ in cognitive ability.'”
• “Stating that ‘our country will be better off with more whites and fewer nonwhites.'”
• “Stating that Asians have an ‘indifference to liberty,’ lack ‘thoughtful and audacious individualism’ and that ‘the United States is better off with fewer Asians and less Asian immigration.’”
• “Stating that ‘there were some very smart Jews’ among her past students but that Ashkenazi Jews are ‘diluting [their] brand like crazy because [they are] intermarrying.'”
• “Stating that low-income students may cause ‘reverse contagion,’ infecting more ‘capable and sophisticated’ students with their ‘delinquency and rule-breaking.'”
• “Stating that ‘if you go into medical schools, you’ll see that Indians, South Asians are now rising stars. . . . [T]hese diversity, equity and inclusion initiatives are poisoning the scientific establishment and the medical establishment now.'”

In her recently posted GoFundMe appeal to create the “Amy Wax Legal Defense Fund” (link here), Prof. Wax states that Dean Ruger’s charges of inappropriate conduct are an attack on her conservative principles and are “littered with indignant invective and unsubstantiated and distorted claims.” She adds:

Penn Law Dean Ruger’s latest steps are part of a longstanding campaign at Penn Law School against me based on my stated positions, opinions, and speech, and despite my stellar performance as an award-winning teacher and academic during my decades-long career as a law professor. Penn’s actions represent an unprecedented and deeply destructive threat to the practice and traditions of free expression on campus and the tenure protections afforded to professors who express unpopular views. They are further evidence of the “woke” takeover of our university system, which seeks to stifle and punish dissent and purge our campuses of any deviation from a narrow set of progressive dogmas.

Academic freedom and tenure

While academic tenure may not be the lifetime job guarantee that some claim it is, it’s true that tenured professors at stable institutions who perform their work satisfactorily can expect continued employment. (For more about this topic, see my blog article, “What is academic tenure?,” link here.) And as a tenured professor at a prestigious university, Prof. Wax enjoys some of the strongest job protections available to any American employee.

One of the main purposes of tenure is to safeguard academic freedom in teaching, scholarship, and service activities. This includes freedom of expression, written or spoken. I regard academic freedom and tenure as carrying both rights and responsibilities. They include earned protections and accompanying obligations to perform one’s job with integrity. Tenure revocation is possible in cases of serious misconduct.

For controversial speech in such a context, I suggest that we establish a spectrum between being a thought-provoking scholar and being a simple provocateur.

The thought-provoking scholar pushes the boundaries of our assumptions and perceptions, using facts, analysis, interpretation, and sometimes creative expression. At times, this may include voicing or supporting unpopular viewpoints. The simple provocateur is more akin to a keyboard warrior, playing to the crowd in the comments section. This is the stuff of the internet troll and has very little to do with reasoned thought.

Where Amy Wax places on that spectrum may help us understand how her situation should be resolved. If her statements are considered so outlandish, irresponsible, and hurtful as to constitute misconduct, then sanctions may be in offing.

One of the most challenging considerations here is that we don’t have a bevy of comparable situations to give us guidance on how this should be handled. Assuming that Prof. Wax said or wrote most of the statements attributed to her, then this is a far cry from more typical scenarios that involve isolated instances or a small cluster of utterances deemed problematic.

It’s fair to point out that if Wax had been employed in a standard-brand, private-sector job setting (like a law firm or medical center), then it’s likely that she would’ve been terminated for cause already, perhaps following disciplinary warnings or a suspension. But academic freedom and tenure provide both substantive and procedural protections that most jobs do not offer.

Diversity and inclusion

You can easily see how the Wax situation is tailor-made for America’s tortured and fraught political and civic dialogue about diversity and freedom of expression. Her alleged statements have caused such an uproar because many have found them to be outrageous, hurtful, and wrongheaded. They’ve come at a time when “DEI” (diversity, equity, inclusion) is a deep focus of the day, in academe and corporate America alike.

Wax’s defenders range from those who agree with the substance of her alleged statements to those who place a very high value on academic freedom. 

Workplace mobbing

Folks have every right to criticize or defend Wax. She should be subjected to appropriate discipline if she’s crossed a clear line. From my concededly distanced perch, I believe that she is at that line or has even crossed it. While some of her alleged statements may fall under the cloak of academic freedom, many others appear to be grounded in animus towards difference.

Whether one agrees with Wax or not, there’s always a risk that critical voices can become an unruly mob. I find Wax’s worldview deeply objectionable, but I’m not happy about workplace mobbing scenes either. Prof. Kenneth Westhues’ pathbreaking work on mobbing in academe has repeatedly illustrated how quickly and dramatically such behaviors can escalate.

I imagine that Prof. Wax is feeling quite under siege right now. I don’t envy her. If she does face any disciplinary proceedings, then I hope — for everyone’s sake — that they will be conducted with dignity, fairness, and honesty.

Cancel culture

Especially because there is no legal definition of cancel culture, it’s important that we have some understanding of what it means in the employment context. I suggest that we define cancel culture at work as a response claimed to be disproportionately harsh — typically, either severe discipline or termination — to statements or actions deemed objectionable, hurtful and/or controversial.

At this juncture, it’s hard for anyone to legitimately claim that Amy Wax has been “cancelled.” However, the University’s moves toward possible disciplinary action and/or termination will cause the term to be used. And especially if her tenure is revoked and she is dismissed, then notwithstanding any due process she had been accorded, the cries of cancel culture from certain circles will be loud and sustained.

If Wax does leave Penn under whatever circumstances, then she will very likely land on her feet. She will be accorded martyr status and will no doubt be hired by an institution more compatible with her social and ideological views.

Summing up

While admitting that I’ve waded into this conversation with some trepidation, I feel obliged to share my own sense of this situation. I consider many of Amy Wax’s alleged statements to be hurtful and divisive. They sound like those of a provocateur fueling an ugly, exclusionary worldview, rather than those of a thought-provoking professor who occupies a position of enormous privilege and responsibility.

Yup, issues surrounding diversity and difference are challenging and can yield honest differences of opinion. There is a place in that discussion for strong language. But I don’t think that the heart of Wax’s rhetoric is contributing to our understanding of these issues. Sadly, one thing I’m certain of is that the eventual outcome of this situation — whatever it happens to be — will drive a deeper wedge into our political and social divide. 

On disability bullying

We have long known that children who have disabilities are more likely to experience bullying behaviors than their peers who are perceived as being non-disabled. The National Bullying Prevention Center (link here), for example, shares that in 10 U.S. studies examining “the connection between bullying and developmental disabilities, all of these studies found that children with disabilities were two to three times more likely to be bullied than their nondisabled peers.”

Indeed, search the term “disability bullying” and you’ll find the top hits centering almost exclusively around bullying of kids with disabilities. I’m glad that we have established that connection. At the very least, it validates the experiences of those being targeted and helps us to focus on preventive and responsive measures.

What about bullying of adults with disabilities?

We see less attention given to bullying of adults who have disabilities. That’s among the reasons why I welcomed a recent column by disability expert Andrew Pulrang, “The Many Flavors Of Disability Bullying” (Forbes.com, link here):

There are few things as simply and straightforwardly awful as bullying disabled people. But there is so much more to do about ableist bullying than just condemning it.

Ableist bullying is surprisingly difficult to recognize and understand, because it’s more than one thing, and has has many facets and flavors.

Pulrang goes on to identify predominant forms of bullying behaviors directed at adults with disabilities:

• “Simple, superficial mockery,” such as making fun of appearances, physical movements, and mental health conditions;
• “Dismissing complaints” over problems that persons with disabilities might face;
• “Portraying disabled people as privileged and entitled” as they struggle to deal with impairments and seek accommodations;
• Making jokes about someone’s disability in their presence, as if to test their sense of humor; and,
• Gaslighting disabled individuals into questioning their perceptions of reality.

He concludes:

To fight disability bullying, people of all backgrounds and roles need to not only refrain from these bullying behaviors, but also engage with and refute the kinds of thinking and assumptions that prompt them.

The legal angle

At times, those subjected to these forms of mistreatment may have legal recourse via civil rights and anti-discrimination laws. In workplace and public accommodations settings, the Americans with Disabilities Act figures most prominently. Here is where questions of reasonable accommodation come into play.

Furthermore, if someone is being subjected to workplace harassment because of their disability, they may have a hostile work environment claim under the ADA. However, such legal claims are hard to win. Occasional jokes or putdowns about a disability, for example, may not be sufficient to state a harassment claim under the ADA.

Ultimately…

A combination of more enlightened human behaviors and stronger legal enforcement will diminish bullying behaviors directed at people with disabilities. Obviously we have work to do on this front. If you doubt this, then consider that less than six years ago, the U.S. elected a President who cruelly mocked a reporter’s disability while on the campaign trail.

In the past, this one act would’ve been sufficient to self-torpedo any political campaign. I can only surmise that in 2016, some people voted for him in spite of this incident, while others were more inclined to vote for him because of it. Both possibilities teach us sad but important lessons about unfinished business in terms of advancing human dignity.

On moral courage and sacrificing privilege: When Betty White stood for inclusion in 1954

With Betty White’s passing at the age of 99, this internet meme about White refusing to ban Arthur Duncan, an African American dancer, from the cast of her television variety show in 1954, is getting wide circulation.

Of course, the social media world is full of distortions and fabrications. But this story is true.

In fact, amid the countless remembrances of White published upon her death, the Washington Post includes a deeper look into that 1954 episode, as reported by Gillian Brockell (link here):

White made a career playing sweet characters with hidden — and hilarious — grit, and that quality goes all the way back to her first televised variety show, where, as the host and producer, she defied racist demands to get rid of Duncan because he was Black.

Her response?

“Live with it.”

…“And all through the South, there was this whole ruckus,” White remembered in [a 2018 documentary about her life]. “They were going to take our show off the air if we didn’t get rid of Arthur, because he was Black.”

“People in the South resented me being on the show, and they wanted me thrown out,” Duncan agreed. “But there was never a question at all.”

And, as Brockell notes, this was a momentous time for civil rights:

This was in 1954. As in, the year the Supreme Court handed down the Brown vs. Board of Education decision banning segregated schools. As in, before the Montgomery Bus Boycott, the Little Rock Nine and the Greensboro lunch-counter sit-ins.

On moral courage and sacrificing privilege

By the mid-1950s, Betty White was already a pioneer, a woman getting featured roles in an emerging medium, including a variety show bearing her name. But this was long before she was Betty White, a beloved figure to many generations. As a relatively young female host and producer in what was very much a white man’s world in terms of power and control, she had a lot to lose by resisting pressures to satisfy a large, if not admirable, demographic.

And yet she was willing to sacrifice some of her hard-earned and hardly secure privilege to stand for inclusion. That’s what moral courage is about in an everyday work setting. As I wrote some six years ago:

There are many scenarios in which positive social change can occur in society, including our workplaces. With virtually any of these possibilities, chances of success will be increased when supporters of change are willing to sacrifice some of their privilege in order to advance a cause.

By privilege I refer to some advantage, by virtue of wealth, demographic status, social standing or popularity, organizational rank, legal right, and/or inherited trait. And when I say sacrificing privilege, I mean being counted in a way that could jeopardize some of that advantage. It may mean speaking up in a meeting, intervening as a bystander, endorsing an unpopular yet principled position, or otherwise doing or saying something that potentially puts one at odds with supporters, sponsors, or the in-crowd.

Betty White’s eclectic talents, comic genius, and famous quips are being rightly celebrated now. In addition, let’s remember that she was willing to stand on principle, typically in a manner that was quick to the point without being overly preachy. Among other things, she also supported women’s rights and the LGBTQ community, and she passionately advocated for the well-being of animals. In a world where way too many privileged people are unwilling to jeopardize even the smallest bits of their comfortable standing for something bigger than themselves, Betty White modeled a different example of success.

Netflix’s “The Chair”: A telling farce about the academic workplace

A lot of the buzz surrounding “The Chair,” Netflix’s new short “dramedy” series about academic life, centers on whether it’s a realistic depiction of working in higher education. My answer? Not really, but sort of. Overall, it’s a telling and entertaining farce that yields truths about modern academe, especially the world of elite colleges.

The gifted Sandra Oh plays the first woman of color to serve as chair of the English department at a fictitious, Ivy League-type university. Soon after assuming her new post, she is embroiled in politically-charged allegations of misconduct by a professorial colleague and close friend. Of course, the situation is precipitated by a student social media posting that goes viral. The unfolding mess (i.e., when “cluster” is only half a word) becomes the dominant storyline of the series.

Although Oh is the glue that holds “The Chair” together, she is joined by an excellent ensemble cast. Two scene stealers are Holland Taylor as an eccentric, sharp-tongued senior professor whom the university is trying to push out, and Everly Carganilla as Oh’s precocious and attitudinal young daughter. Although the show mimics the white male hierarchies of many universities, the women are by far its strongest and most interesting characters.

The exaggerated behaviors of faculty and administration highlight the show’s farcical qualities. “The Chair” illustrates with exclamation marks topics such as academic freedom and tenure, diversity and identity (especially race, gender, and age), career arcs and ambitions, substance use, student-faculty relations, institutional governance, and academic administration. Neither professors nor senior administrators play heroic roles. They operate in, and contribute to, a self-absorbed bubble. They also curse a lot, tossing f-bombs with regularity.

As for the undergraduates, on the surface, they’re multi-talented, ambitious, politically correct, and very earnest. At times, one might be tempted to tag them as the adults in the room, at least compared to their over-the-top faculty mentors. However, only by stepping back and asking, “but what are they soooo earnest about?,” does one understand how a blend of superstar ability, privileged sense of self-importance, and lack of life experience can produce absurdly blown-up responses to matters calling for common sense and genuine dialogue.

“The Chair” throws lots of barbs at academic culture and academic people during its six 30-minute episodes. Those who are not familiar with the pathologies of university life may miss some of the finer points. Nevertheless, the series also works as a take on venerable workplaces grounded in pomp and dysfunction. 

As an academic, I alternately enjoyed and winced at “The Chair.” There’s talk of a season two. If it comes to pass, I’m now curious enough about this neurotic bunch of on-screen colleagues to watch what happens next.

What will America’s world of work look like as we emerge from the pandemic?

Second shot came 3 weeks later!

What will America’s world of work look like as we emerge from the pandemic? Now that vaccination numbers are up, new infections and COVID-19 fatalities are down, and businesses and cultural institutions are re-opening, it’s time to generate discussions about the future of work, workers, and workplaces during the months and years to come. 

Bullying and harassment

First, bullying, mobbing, and harassment at work — key topics for this blog — won’t be going away any time soon. As I reported last month, the Workplace Bullying Institute’s 2021 national scientific survey revealed that, during the pandemic, a lot of bullying behaviors simply migrated to online platforms such as Zoom. Furthermore, individuals of Asian descent have been targeted for racial harassment due to the apparent origins of the coronavirus in China. Also, retail workers across the country have been verbally abused and physically assaulted by out-of-control customers who disagreed with mask and public safety requirements. In short, while this pandemic has brought out the best in some people, it also has brought out the worst in others.

The face-to-face workplace

Second, we’re going to see a somewhat clunky and varied transition back to working in face-to-face office settings again. Some workers can’t wait to get back to the office, while others have found themselves working effectively — and more contentedly — at home. Employers have experienced differing productivity levels with people working remotely, and some have been re-evaluating their need for large office spaces. We may see greater reliance on hybrid approaches that mix-and-match working from home and coming into the office when necessary.

Restaurant recoveries?

Third, many retailers, especially those in the restaurant and food service industry, are going to be in recovery mode. For example, will the pre-pandemic fondness that many Americans have for eating at restaurants return as vaccinations and improved ventilation systems make indoor dining safe possibilities? Fingers crossed that these industries will make robust comebacks!

Frontline workers

Fourth, millions of essential frontline workers have been putting themselves in harm’s way to stock shelves, operate cash registers, produce and deliver goods and packages, and perform countless other tasks to help keep our society going during this time. Will a grateful nation reward them with higher pay, better benefits, and stronger job security? It’s anyone’s guess as to whether that will occur.

Women bear the brunt

Fifth, the labor market impacts of this pandemic have been very gendered, with more women than men bearing the brunt of caregiving at home for children and the ill. While it may be premature to assess how this will effect current generations of women workers in the long term, the short-term impact has been palpable and threatens to endure.

Health care workers

Sixth, health care workers across the country who have been treating COVID-19 patients face trauma, exhaustion, and burnout from working long hours under the most difficult circumstances. They have been in the trenches of this war against the virus, and many have paid a price in terms of their physical and emotional health. We owe them a debt of gratitude, which includes providing all necessary measures to support them as they recover from this ordeal.

Ch-ch-changes

Seventh, we may witness a stream of career transitions, job changes, and early retirements, the cumulative results of individual and family contemplations about their lives during this long period of semi-quarantine. As I wrote in my personal blog over the weekend:

The pandemic appears to have prompted a lot of self-reflection among middle-aged folks during the past year or so, and the results of these inner dialogues are starting to emerge. More and more we’re hearing about career and job shifts, accelerated retirement timelines, moves to places near and far, changes in personal relationships, new hobbies and avocations, and more active pursuits of “bucket list” plans.

This stuff is popping up in everyday conversations, Facebook postings, and news features about life transitions in the shadow of COVID-19. I don’t know if it’s a temporary blip on the screen or the beginning of some major social ground shifting, but for now the phenomenon is real.

Haves and have-nots

Finally, the pandemic has exacerbated the divide between the haves and have-nots. Those who could work remotely and safely, watch their retirement accounts grow amidst a strong stock market, and take advantage of generous, employer-provided health care plans are coming out of this pandemic in pretty good shape. Those who lost their jobs, tapped into meager savings, and have struggled to obtain needed health care have found themselves increasingly reliant on special safety net measures enacted by the federal government. This is among the reasons why I hope that the Biden Administration’s proposals to create millions of jobs with good wages and benefits to help repair our nation’s crumbling infrastructure and build a healthy green economy are enacted. 

These points raise but a few of the compelling matters related to the post-pandemic future of work in America. In all, they highlight persistent challenges of opportunity, equality, and worker dignity that existed before this virus transformed our lives. Accordingly, I hope that we, as a society, will take the high road in prioritizing the needs of those who have struggled the most during one of the most challenging times in our history.

Ruth Bader Ginsburg: Devoted and skilled advocate for equal rights and equal opportunity

The passing of U.S. Supreme Court Justice Ruth Bader Ginsburg is a deeply sad and momentous occasion. As an Associate Justice of the Court, Justice Ginsburg was a steady and passionate voice for equal rights and equal opportunity. Given the moniker the “Notorious RBG,” she became a hero and pop culture icon to so many women, especially, who rightly looked to her as a role model.

Justice Ginsburg’s important contributions to American jurisprudence will be studied by lawyers, judges, law professors, and law students for many years. After all, the rulings of the U.S. Supreme Court, and the voting patterns and written opinions of individual Justices, attract considerable attention. Every American law student takes a required course in Constitutional Law, where Supreme Court cases interpreting the U.S. Constitution form the main focus of study. In my Employment Discrimination course, we devote primary attention to Supreme Court decisions interpreting major federal employment discrimination laws.

Ginsburg’s death leaves a significant void on the Court and has triggered what will be an ugly and divisive political battle over the confirmation of her successor. If Donald Trump and Senate leader Mitch McConnell succeed in filling this vacancy, it is likely that the ideological balance of the Court will be tipped in a way that threatens reversals in women’s rights, workers’ rights, and civil rights generally for a generation.

Attorney Ginsburg

But I shall leave that for a later commentary. Rather, as we reflect upon Ruth Bader Ginsburg’s signature contributions, I’d like to focus on her legacy as a public interest lawyer. Even had she never sat for a day on America’s highest court, her work as a pioneering advocate for needed changes in the law would have left a great record of accomplishment. As Moira Donegan writes for the Guardian (link here):

Strategic, contemplative and disciplined, but with a passion for the feminist cause that is rarely admitted into the halls of power, Ginsburg established an impressive legal legacy long before she became a judge. Over the course of a two-decade career as a lawyer before her appointment to the DC circuit court of appeals, she successfully argued cases that expanded civil rights law and 14th amendment protections to women, undoing a dense network of laws that had codified sex discrimination in all areas of American life.

***

Ginsburg is the rare supreme court justice whose most significant work was done before she joined the court….Ginsburg personally argued six gender discrimination cases before the then all-male supreme court, winning five. She built on her victories one by one, establishing precedents that made future victories easier to win.

***

First was Reed v Reed (1971), a monumental victory that struck down an Idaho law favoring men over women in estate battles. That case extended the Equal Protection Clause of the 14th amendment to women, barring laws that discriminated by sex. Ginsburg followed this case with victories in Frontiero v Richardson (1973), barring gender discrimination in compensation of military members, and Weinberger v Wiesenfeld (1975), striking down gender discrimination in state benefits. Her tactics were savvy; she framed gender discrimination in ways that made the practice seem unreasonable even to hardened misogynists.

Indeed, perhaps Attorney Ginsburg’s body of work best informs everyday lawyers and law students who wish to use their training to advocate for desired changes in the law. While serving as a law professor at the Columbia and Rutgers law schools in the 1970s, she forged an association with the American Civil Liberties Union that would fuel her advocacy work. This included co-founding the ACLU’s Women’s Rights Project and serving as its General Counsel. The period covered much of her most significant civil rights litigation work.

It is a testament to Ruth Bader Ginsburg’s character, determination, and ability that she has left multiple legacies. Among these, her work on the Supreme Court will be the defining one to many. But I hope that lawyers and law students, particularly, won’t forget her vital contributions as a legal advocate.

LOL: “We have ZERO TOLERANCE….”

 

(image courtesy of ya-webdesign.com)

We see it over and again: An organization is accused of egregious instances of sexual harassment, racial discrimination, bullying at work, or similar mistreatment. The allegations are reported in the media, accompanied by the standard organizational response:

We have zero tolerance for this kind of behavior.

Zero tolerance. Got it. You guys are right on it.

At times, I’ll read a “zero tolerance” response in a news item and know that the organization in question practices anything but that.

Oh, these places might have zero tolerance splashed all over their employee handbooks, but in reality they don’t take it very seriously. Until they’re caught, of course.

I’m not an empirical researcher, but I’ll hypothesize that the zero-tolerance-on-paper organizations are frequently the same ones who invoke the rhetorical (not legal) “bad apple” defense when wrongful behaviors arise, i.e., we regret that a bad apple might have behaved in such a manner. As I wrote in 2017:

But all too often, when I hear or read of an organizational leader or spokesperson invoking bad apple-speak, I feel like I’m being conned. Bad behaviors are typically enabled, endorsed, and/or empowered by bad organizations. Often it’s clear that the situation suggests a pattern and practice of abuse or wrongdoing. Even in situations where the key abusers are few, many other organizational actors looked the other way or tacitly enabled the mistreatment. And sometimes it’s simply a lie, a cover-up for a whole harvest of bad apples. 

Building and maintaining an organization that embraces human dignity is not easy. It takes good leadership and values that are practiced, rather than simply preached. By contrast, although zero tolerance may be an impressive-sounding phrase, all too often it is invoked in situations suggesting that the hard work of creating a healthy, fair-minded, and inclusive organization remains to be done.