Making Space for Creativity in the Practice of Law

My experience with the "Creativity Crash Course" at the Stanford Online has motivated me to make some changes in my law office environment: 1) converted my entire hardware and software to Mac, 2) shifted to cloud based backup, and shfited to a fully wireless network 3) have gone fully paperless, 4) use wireless dictation and Dragon transcription, 4) dumped my rectangular desk and all file cabinets for a single round desk and a stand up laptop work station, and 5) added new artwork that communicates calm and "openness." The overall idea: greater productivity through more physical and emotional space and an invitation to collaborate and "move" while working.
"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Harvard University has created a massive data base from online testing for "Implicit Preference." Unconscious bias is our innate neurological filtering process that allows us to quickly assess "safety" from "danger" Our task in a complex modern society is to sort out useful and harmful biases. "Unconscious bias" is not a matter of being a "bad" person. Biases however can cause us to evaluate co-workers and acquaintances not only inaccurately, but also illegally. The challenge of the law is to implement a system of proof that allows a jury or judge to infer bias operated from circumstantial evidence. I think expert psychological opinion is sometimes needed to support how bias operates in managers who will vigorously declare under oath: "I am not biased."

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Current Creativity Exercise

 I'm participating in a six-week Stanford University online creativity class involving 30,000 people from all over the world organized into creative teams. This week's assignment is to "be more attentive."  Specifically, we are to observe and record what we see at four retail outlets. From these observations will come opportunities to improve the way customers are serviced.

I am a lawyer and writer, and  maybe more importantly I'm a dad. Every one of these roles requires I pay attention and come up with creative solutions. I'm sure creativity is a major part of your world also.  Why not reframe the way you look at the world today to explore the possibility of other answers?

 The picture is my team's report from our first week. Fairly clear from the outset was that we were to create not only the way we approach a problem but the way we report the solution.

 

Prowlng for the Gaffe

I just read an article in the Los Angeles Daily Journal [“Binders Full of Platitudes” – Oct. 22, 2012, p.5] by Eric Kingsley of Kingsley and Kingsley, noting what a terrible "gaffe" Mitt Romney committed with the stated that he obtained "binders of women" to fill Cabinet positions while governor of Massachusetts. This statement allegedly demonstrated that Mr. Romney is an obstruction if not an outright opponent of equal pay for women. It's easy enough to see the statement for oneself by going to YouTube. I took the time to view the statement.

It seems to me that partisan fervor incline some people to pounce like tigers upon any imagined "gaffe". As an employee rights attorney I certainly advocate for equality in the workplace, and particularly equal pay for equal work. Still, I question why an intelligent man like Mr. Kingsley is so bent out of shape. I can't help but believe that Mr. Kingsley was in search of a gaffe--one that would give him a platform for writing an article like that I found in the Daily Journal. Mr. Kingsley ends his article with the statement: "This issue highlights the GOP's current 'war on women.'"

More interesting to me than this partisan diatribe about those bad corporations oppressing women, are the economic realities that lead to disparate pay practices. I don’t love corporations, nor do I hate them. They are simply mechanisms people use to make money. They are neutral while the people who run may or may not be ethical. But economics—now that is more scientific than Mr. Kingsley’s diatribe. Economics produces data.  The young woman posing the question to the candidates in the town hall forum noted in the question that women currently earn 78% of what men earn. Let’s start there.

I just finished reading a book by a liberal author who might take issue with Mr. Kingsley based on a review of the economic data and trends. It seems education and culture are the key drivers toward gender equality, not legislation or individual court decisions. The book is “The Great Divergence—American’s Growing Inequality Crisis and What We Can Do About It” by Timothy Noah [Bloomsbury Press, 2012].

Noah makes the following points: 

Single mothers suffer most from income disparity. (Implying that the divorce rate is a major contributor). The reality is that single mothers have less time to devote to extra hours of work and less flexibility in working, and thus earn less. That is, anyone unable to work the necessary hours to build a career or to attend school will earn less. There is a gender problem, but it has more to do with who is the primary caretaker of dependent children. [Between 1970 and 2004 the number of single parent homes in which minor children lived rose from 12% to 26%]

Our earnings gap between the “rich” and the “middle class” is not due to gender inequality in pay, because that gap is closing even as the gap between “rich” and “middle class” increases. See generally “Women in the Labor Force: A Databook, Report  (Washington: U.S. Bureau of Labor Statistics, 2009), 8.

The number of Master’s degrees awarded after 1990 has doubled, and most of those have gone to women. College educated women have seen their incomes increase in tandem with the productivity increases, while college educated men’s incomes have lagged behind productivity increases. More women than men in the U.S. earned doctorates for the first time in 2009, and after.

Supporting Washington Post Article
 

Part time female workers generally earn more than part time male workers. “The Gender Wage Gap: 2010,” fact sheet (Washington: Institute for Women’s Policy Research, Mar. 2011; updated Apr. 2011). [However, there is an apparent gender bias gap in that women taking first time positions right out of college earn about 16% less than males.]  Women now outnumber men in college and post-graduate education enrollments. [implying the gap will of necessity close in the labor supply-demand dynamic of a high-tech society].

In conclusion, I recognize that gender discrimination exits, against both genders. Are court decisions and verdicts the answer? The conclusion is inescapable: women are helping themselves by advancing their educations, and being more in demand than men for higher paying jobs. Not only that, but the most highly educated women will open doors for other women who work for them and with them.

Both Mr. Kingsley and I make our living representing women and other “protected categories.” Even so, neither he nor I, nor the U.S. Congress will produce the gender equality he and I dream to see happen. It appears the answer has come from an unexpected source: the greater appetite and adaptability women are demonstrating for success in the U.S. educational environment.

 

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Only Manly Men and Little Women Need Apply.

In Garrison Keillor's Lake Wobegon, "all the women are strong, all the men are good looking, and all the children are above average."  Not a place where a charge of gender stereotyping is likely to occur.  But what about some workplaces in our country where those in power of hiring and firing might think all the women are to be "good looking," and all the men are to be "strong?"

I represent people who are in the process of changing gender in cases of discrimination based on gender stereotypes.  These clients are some of the most courageous persons I know as they seek to navigate not just the medical transition, but also the employment dynamics that emerge as the transgender employee makes his or her new identity known.  The social impact within a workplace is challenging for everyone:  a change of name, a change of dress, a change of toilet use, a change of grooming, a change of voice, a change of emotions, a host of changes, that are often first discovered by seeing the changes rather than discussing them proactively.

Companies wanting to avoid liability, or even more responsibly, seeking to be sensitive and supporting during this sometimes awkward shift in office dynamics, do not have to re-invent the wheel of company policies.  Guidelines are in place by progressive companies that can be used as models for both the company and the individual to make the “transition.”  See for example, the Ernst Young Transition Policy.

 An EEOC administrative decision in April, 2012 entitled Macy v. Bureau of Alcohol, Tobacco, Firearms & Explosive Agency provides an excellent overview of the applicable federal law protecting persons in gender transition.  More than that, it serves to clarify the essence of sex discrimination:  the perception of a person’s sexual characteristics in a way that leads to discrimination.  The gravamen of discrimination is not the biology of sex, but the stereotyped perceptions of what sexual identity is supposed to be.  

In Macy v Holder, Mia Macy was denied a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), after she informed her background investigator that she was in the process of transitioning from male to female.  She was informed shortly after that the position was no longer available due to budget cuts.  However, concern with the abrupt elimination of the position, she approached an EEO counselor to express her concerns.  Macy later learned that the position was not eliminated.  Instead, management had filled with another applicant.

Macy believed the offer of position was revoked because she disclosed her transgender identity during her background check.  She filed an EEO complaint against the ATF and alleged that she was discriminated against based on “sex, gender identity (transgender woman) and on the basis of sex stereotyping”.

The administrative EEO officers denied that Macy’s entire claims were under EEOC jurisdiction.  They tried to separate the claims: discrimination based on “sex”, which is processed by the EEOC and “sex stereotyping”, “gender transition/change of sex”, and “gender identity” which, they claimed, were not.     

The EEOC concluded that Title VII discrimination occurs when a person is treated differently because of stereotyped attitudes about how a person is to act as a male or as a female.  In reaching this decision, the EEOC relied primarily on the U.S. Supreme Court decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 239.  The Supreme Court held that Price Waterhouse managers acted in violation of Title VII when they denied promotion to a female accounting partner because she did apply the cosmetics or behavioral style they thought were “feminine.”   The EEOC, following Price Waterhouse, decided that the term “sex” describes not only “the biological differences between a men and women – and gender” but also the perceptions that a decision maker may have about how a person is to express his or her gender identity.

The decision is an excellent source of legal information for persons wanting to act within the law, and for those who have been wronged by those indifferent to Title VII’s protections. 

Link to the Commission’s Full Decision on Scribed.

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Playing the Odds: Duran Duran

What are the odds the Supreme Court will overturn the Court of Appeal in any randomly selected case coming before it?  The Justices may just be more able to provide that probability analysis after its review of Duran v. U.S. National Bank Association 203 Cal.App.4^th 212.  This case, now pending before the Supreme Court, will decide the way proof is admitted to prove class members properly belong in the class. 

In Duran, the issue was the scope of proof needed to establish an employer’s liability to a class for non-payment of overtime.   The Court devised its own method of getting to an “efficient” trial method to admit evidence applicable to all 260 employees:  it randomly selected 21 individuals out of the total population of 260.  Based on this random sample, Court ruled the entire population of employees was misclassified as salaried exempt.    

The trial court refused to allow evidence obtained by the defense from 70 employees that they were not properly in the class overtime eligible employees.  At least these 70, argued the defense, should have been excluded from the “presumed” class of all 260 employees.  

Our conservative Supreme Court may track the thinking of the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 (2011) that found serious due process concerns with statistical methods that overlooked significant individual differences among a large part of the population of all “class” members.  But, our Court, applying our overtime laws, and following class action law for California employees, will be free to fashion their own class action procedures. 

The strange part of the trial court’s decision in the Duran case was it’s finding of a 95% certainty that each member of the class worked 11.86 overtime hours per week, subject to a relative margin of error of 43%.  The logic of this statement is bizarre:  “I am  95% certain that my conclusion is true about one-half the time.”    I predict the CA Supreme Court will not let this kind of statistical analysis result in liability for the all class members, especially where the defense sought to present 70 declarations from purported class members showing they were not properly in the class. 

Here is Wikiepedia’s short version of the major decision points in crafting a survey sample to produce a reliable statistical analysis:

§  Defining the population of concern

§  Specifying a sampling frame, a set of items or events possible to measure

§  Specifying a sampling method for selecting items or events from the frame

§  Determining the sample size

§  Implementing the sampling plan

§  Sampling and data collecting

§  http://en.wikipedia.org/wiki/Sampling_(statistics)

In conclusion, I’m 95% certain that I have about a 50% chance of picking the outcome of the Duran appeal. 

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

The Censor: He Has a Face, and He is Us.

Face to Face:  Social Media and the Masks We Share

For those intrepid few who dare to express themselves as indiscreetly as the English language will allow, there is AB 1844, soon to be officially Labor Code Section 980 et seq.  The California legislature has come to the protection of persons too dense, too indifferent, too rich, too independent or too eccentric to give a damn what they post on social media.   Of course, it also has provided protection for even the cautious citizen who has no personality to hide.  No one, not even someone whose greatest contribution to public debate is how to cook vegetables, should be required to give up his username and password to a meddling employer.

In the early days of social media, I think there was an illusion that a person could be “real” in that environment.  The illusion is over.  If you want to be real, transparent, and open, well, it turns out the old fashioned friends who actually meet over dinner or shared activities may be the answer after all.

Did we once hope that social media would provide that open intellectual space where viewpoints had room to breathe?  If so, we soon were jolted from our dream by investigators who actively rooted out contrarian or offensive viewpoints to deny us employment or decline our membership applications.

     

But I sense the communal censor has grown stronger over the years.  That golden age of naïve Facebook users produced some colorful and interesting narcissists.   It still does.  But most people have learned at this point that “image control” and “job protection” or “career management” involve either putting nothing on social media, or only the most bland and boring of information that will assure you that coveted status of “safe,” “normal,” and “employable.”  The social mask we wear now must expand to cover a face the size of Facebook.    Maybe LinkedIn was always the final resting place of the “social” self. 

In the work environment, “punished” most often means fired.  “Freedom of speech” does not exist in non-public work environments.   Employers with “open door” and “open communication” policies routinely punish employees criticizing a manager or company practice.    In healthy and innovative work environments, wild, jarring and “indelicately” expressed ideas may actually be encouraged.  Alas, in many other places the free expression of an idea will likely cost your job.  But what if the “speech” occurs outside the workplace, after work hours, and states strong negative employee opinions about the employer?  In a phrase:  what are an employee’s privacy rights?

A lot has been written on this topic of “social media privacy.”  I will not rewrite it.  Instead, I will simply reference the essential new developments created by some NLRB rulings and AB 1844.  The National Labor Relations Board in May 2012 issued Memorandum OM 12-59 that traces the NLRB rulings, and provides a “model” social media policy.  The concern of the NLRB appears to be primarily that social media restrictions can be overbroad in limiting “concerted activity” among workers to address grievances at work.   I have posted the complete “Office of the General Counsel” memorandum for your reading pleasure.  It includes a very useful model policy that General Counsel states is NLRA compliant.

Labor Code Section 980(a)-(e) will prohibit an employer from requiring the employee to access the employee’s social media in the employer’s presence, or to provide the employer with the employee’s username or password to a social media site.  Section 980(e) is an anti-retaliation provision to protect employees who resist illegal employer demands that violate Section 980.  

The remedies for a Section 980 violation appear to be a general civil cause of action for violation of the statute, and quite likely a common law right to proceed with a “wrongful termination in violation of public policy.”  Section 2 of the new statute states that the Labor Commissioner has no duty to investigate or determine if a violation has occurred, leading me to conclude that there is no “exhaustion of administrative remedies” requirement of the employee, who may proceed by direct civil action for the full measure of tort damages. 

Here is the full text of the NLRB General Counsel's Opinion Memorandum:  Memorandum OM 12-59 Office of the General Counsel .

Here is the full text of AB-1844, soon to be CA Labor Code Sec. 980:  California Legislative Information: AB-1844 Social Media Privacy

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

The Applicant: A Poem by Slyvia Plath

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.