Tuesday, January 05, 2010

Word Nets Catch No Real Fish

Oh, if only life followed the dictates of the Supreme Court. We would have a greatly simplified and predictable world.

Once upon a time, the Court was troubled that managers were being sued individually for acts of discrimination. (Reno v. Baird). On the other hand, the anti-harassment statute was clear that individual managers were to be liable for harassment. Hence, the discrimination/harassment distinction. Not as easy to distinguish practice as it looks in writing.

In Roby v. McKesson (2009) 47 Cal. 4th 686, the Court once again visited the fuzzy logic of harassment vs. discrimination. That fuzzy logic had concluded previously that "management actions" related to the operation of the business, while "interpersonal actions" (such as pinching a subordinate's ass) were not "official" management actions. [Uh, just to be clear, the graphic description is mine, not the Supreme Court's. This penchant for the clear bold statements may be why those august souls have yet to let me in their Court].

Now, can you see how our effort to use words to structure reality is like throwing a fish net over the vastness of the universe. Yes, we have reference points for order, but we have sacrificed truth. The "truth" is that the Court's earlier "word net" caught no real fish. We are, in effect, back where the Court started. The Court abandoned its old "discrimination/harassment" distinction, and simply allowed an employee to present proof that "management actions" were intended to harass her.

I just want to say thank you to the CA Supreme Court. First, thank you for my license. I want to keep it, and I hope you realize I meant no disrespect with that "pinching" remark. I know you'll let me argue before you if I follow the rules, and I promise to follow the rules. Secondly, thank you for abandoning magical thinking, and returning to reality. It makes my job as an employee's lawyer so much easier. I think it also improves the chance for justice.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.