February 01, 2004

Kill the Beast!

I'm taking Employment Discrimination Law for my statutory elective this semester and I actually like the class a lot. My professor seems really cool for a man of his age and looks like he should be starring in a stage production of "A Christmas Carol" rather than teaching, and the material is interesting. The only thing I don't like about the class is that a certain... guy (defamation isn't my bag) has to make comments every day that manage to equally offend (or at least shock) everyone in the room. His comments are usually along the lines of how he understands why an employer would want to get rid of an employee who had 3 pregnancies in 3 years because she was obviously unproductive and a financial drain on the company and how he doesn't think employers should be punished for having discriminatory beliefs or for making derogatory comments (because of the First Amendment). I admit the murmurs, "oohs" and "damns" that go through the class each time he opens his mouth are more entertaining than most things the teacher says, and you can see the girls on both sides of him look away on purpose as he attempts to look to them to back him up. The professor usually tries to acknowledge what he is trying to say, but also show him how his ideas totally go against the intent of Title VII and everything we're learning about, namely that, even if it is "good business" or "understandable/rational" that employers would do and say such things to their employees, the law says they are not allowed to make employment decisions based on race, sex, nationality, religion, etc. because of a great public interest in equal treatment and opportunity for all.

So, needless to say, this guy has become infamous not just within the confines of the EmpDiscrim class, but among first-year students in general. Everyone knows his name, whispers when he walks by and talks about how he's cutting himself off from a ton of potential future jobs and contacts. This girl I know said to me the other day that she can't believe that such a "white supremacist" is in our class, but I told her that he's just got a bad wrap... he's not a white supremacist (he's never defended employers making decisions based on racial motives), he's just a sexist, chauvinist jerk who thinks he's totally right and that the professor, the reading materials, Title VII and Congress are the ones who don't know what they're talking about. If I didn't hate the guy so much I'd feel sorry for him because I bet he doesn't even know he's as universally despised as he is. I can't wait for class on Tuesday to find out what jackass thing he'll say next.

On another, only mildly related note, something happened the other day that brought up an interesting question. I was on Muni and this very, very large woman got on the train and asked why no one was getting up to offer her a seat, to which one girl replied "Being fat ain't no disability". No one argued with her and the large woman was left to stand during the 4 blocks she was on the train. Should morbidly obese people be considered "disabled" for the purposes of being guaranteed a seat on Muni? I, for one, agree with the girl... but why do I feel terrible admitting it?

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it's a question of equal opportunity and treatment for all. i can see how one could argue for giving up a seat to the overly large woman who is obviously less able-bodied than other passengers and in need of assistance. But is it fair to ask Muni riders to give up TWO seats for her one disabled body?

Posted by: Cody at February 2, 2004 02:41 PM

There is nothing sexist about firing or refusing to promote a person who repeatedly takes substantial amounts of time off work. Such a policy can be equally applied across genders. The focus is on the performance (or lack thereof) and hence has no essential relationship to sexual discrimination. You should be thanking the guy for injecting some diversity of thought into what is, apparently, a stifling arena of uniformity. Listen to yourself. You "hate" the guy simply because he expresses a view you disagree with. God I wish I'd never stumbled on this intolerant, hate-filled site.

Posted by: Janet at February 2, 2004 07:08 PM

It is against the law to fire someone specifically because of sex or "on the basis of sex", which includes "because of or on the basis of pregnancy, childbirth, or related medical conditions." That means that it is illegal for an employer to fire a woman solely on the basis of her pregancies, which naturally include such time off as doctor's visits and maternity leave. Sorry to say, but that is one of the realities of being a woman and even working women have the right to have children and personal lives, and they should not have to sacrifice their professional lives in order to have families or be subject to judgment and ridicule in the workplace for such decisions. It's a fact of life that men do not give birth, but men are afforded paternity leave in the interest of bettering their family and personal lives. Should a man be fired for taking paternity leave 3 times in 3 years if he has (or adopts) 3 babies? Should an employer really be able to replace him while he's away on a leave of absence that legislatures have said he has a right to take because of a significant public interest? It's not like maternity or paternity leaves are "vacations" or mere "personal days", and they can be planned for well in advance of the actual leave, giving employers very little legitimate reason to take the drastic step of firing an employee for taking that time off.

As for my "hate-filled site", I wouldn't say that's an accurate characterization at all, but I understand how you could come to that conclusion since you seem to be a hater yourself. So you caught me using hyperbole on my own blog; try suing me for it... or you could just leave w/o leaving such a shallow, hate-filled response. I don't really think that he's injecting any kind of "diversity" to the class discussion b/c it's not like he's interpreting the statute or the cases in a different way, but it seems like he hasn't even read them or is rejecting the entire premise of anti-sex-discrimination laws. I hardly think that you can say that it's a "stifling arena of uniformity" just because most people agree that it's totally uncool to fire someone based on a discriminatory motive; I'd call that a justified consensus on an important social issue. Unlike you, he's supposed to have read the material and know by now the reasons why Congress decided to outlaw such actions on the part of employers and how those provisions are supposed to apply to real-life situations. It makes me sad that his sexist notions are so ingrained that he doesn't even realize that he's being sexist or going against everything that we're learning about in the class, and it also makes me sad that he's wasting my tuition dollars by engaging the professor in a useless discussion about how you should be able to fire a woman just because she's pregnant when we just spent 2 class sessions talking about how illegal that is... but it makes me even sadder that even more ignorant, obdurate people are reading and leaving such lame, hate-filled comments on my blog.

Cody, I hear what you're saying... I guess it's the reduced mobility that makes me feel bad. I'd never hesitate to give up my seat for *anyone* with a cane or who was obviously having trouble standing... and I'd always give you my seat if you asked for it ;)

Posted by: Kristina at February 2, 2004 08:29 PM

"It is against the law to fire someone specifically because of sex or "on the basis of sex", which includes "because of or on the basis of pregnancy, childbirth, or related medical conditions." That means that it is illegal for an employer to fire a woman solely on the basis of her pregancies, which naturally include such time off as doctor's visits and maternity leave."

Yes, but that has nothing to do with whether it is against the law to fire someone on the basis of having repeatedly missed long periods of work. Get the difference? It is obvious that you favor some sort of disparate impact analysis. Yes, such a policy would disparately impact women, given that they tend to get pregnant. But it would not be discrimination under a disparate treatment analysis, because the exact same standard would be applied to anyone--man or woman--who chooses a course of action incompatible with attendance. It seems to me that your hated classmate is advancing a defensible position, both legally and logically.

In fact, it is more logical. Disparate treatment is the only rational measure of discrimination.

By the way, it is interesting that you believe he will have trouble getting jobs. You must associate with an intolerate crowd if that is your expectation.

Posted by: Janet at February 4, 2004 12:41 AM

Janet sucks.

Posted by: Renee at February 4, 2004 07:46 AM

That's Janet. Miss Hater, if you're nasty.

Posted by: sean at February 4, 2004 07:55 AM

You are correct, there is a big difference between taking maternity/paternity leave and just repeatedly missing long periods of work b/c leaves due to pregnancy aren't just missing periods of work for no reason. I wasn't talking about people who randomly play hookie from work or abuse their employer's lenient attitudes toward absenteeism , I was talking about women getting fired specifically due to leaves that are directly related to pregnancy. *That* is illegal and, although that may seem like a negligible difference to you, it is a distinction that Congress deemed important enough to add the Pregnancy Discrimination Act to Title VII in 1978, 14 years after Title VII went into effect. No, that is not based on a disparate impact theory, because it's not as if the employer had a policy or practice that disadvantaged women in general or even pregnant women, but fired this specific woman who had 3 pregnancies in 3 years. I'm glad that you assume that I prefer disparate impact theory since - if you knew me at all, you'd know this - I am a big proponant of disparate treatment analysis and of the rights of individuals. I can see the need for disparate impact analysis in appropriate cases since some policies and procedures do tend to exclude entire groups and it may be too difficult or costly for individual complainants to bring acion against those employers. I don't actually think he'll have trouble getting jobs... I was just trying to illustrate my point about how people around campus seem to feel about it. Problem is, you don't realize that this is just a place where I write stuff that pops into my head and I don't have to be responsible or accurate because this is *MY* blog and I can say whatever I want. Furthermore, I don't think it's wrong to be intolerant of other peoples' intolerance. Antidiscrimination law is itself a product of our nation's refusal to tolerate the intolerance that was, and still seems to be, ingrained in our society. Sure, that's ironic, but you can't actually argue that's hypocritical. I'm also against other things that are illegal and against social policy, wanna' attack me about those too? Go for it, I can take it.

Posted by: Kristina at February 4, 2004 07:57 AM

Actually Janet, that part about not being able to fire someone on the basis of pregnancy or childbirth is relevant here. If someone misses a lot of work because of pregnancy and you then fire them, claiming that it was because they missed work and not because they were pregnant would still be discriminatory. Simply looking to the effect (the missed work) for grounds for termination and completey ignoring the cause (pregnancy) is just wrongheaded. Disparate impact is not relevant here. Does the Title VII quotation talk about firing people based on pregnancy and childbirth or does it talk about disparate impact? Why don't you take two seconds to think about it with your all-knowing logical mind you fucking jackass.

Posted by: dr v at February 4, 2004 08:00 AM

Instant message text:

Miete x: you shouldn't bother explaining things to her because she's decided to be right
Miete x: and it's her opinion

krisalm: yeah

Miete x: she used the word "disparate" a lot but i'm not sure she understands what it means

krisalm: she must know b/c disparate treatment and disparate impact are competing theories of antidiscrim law

Miete x: and she misspelled intolerant: intolerate

krisalm: hehe

Miete x: it would take too much effort to explain why she is wrong
Miete x: you should just say that yes, alright, it is discriminatory but it's necessary
Miete x: to protect the female presence in the workplace
Miete x: and that while the law may be "abused" by a woman who gets pregnant three times in three years it's also necessary to protect a woman who gets pregnant once in her whole life
Miete x: and that while it might be logical to just not have women in the workplace, you don't want to live in that kind of fascist society, biotch

krisalm: you should post that :-)

Posted by: Renee at February 4, 2004 08:07 AM

Dr. V:

An employer agrees to pay a given employee in exchange for the results of the employee’s actions. When an employee fails to deliver the promised results, it is generally permissible for the employer to cut the failed employee loose. For example, it is okay to fire old people because they are senile and can’t perform on the job. It is not okay to fire them simply because they are old. There is a difference.
And there is a difference here too. One of the key things an employer bargains for is attendance. People who are unable to attend, for whatever reason, simply can’t generate the results the employer needs. This is true regardless of race or gender or sexual orientation. The cause of the failure to attend is irrelevant.

If the pregnancy statute does not follow this pattern, it is the exception and not the rule. Moreover, it actually discriminates against men. I assume that employers can fire men for missing long periods of work but cannot fire women. In other words, women are getting preferential treatment. That is sex discrimination in favor of women. It is a perversion of logic to say that eliminating this preferential treatment for women is somehow discriminatory. Precisely the opposite is true. That doesn't make the statute a bad idea. Perhaps I agree with it. But it *is* discriminatory.


My legal knowledge is limited, and I am certainly not going to bother researching the statute just to refute your interpretation. However, even assuming that the statute means exactly what you say it does, it would not follow that the guy lacked justification for raising his argument. The death penalty is legal, yet law professors spill oceans of ink writing about how it ought to be changed, how it is unjust, how it has a disparate impact on minorities, and so on. Laws are not set in stone. If students feel that certain laws are unjust, it seems reasonable to let them air their misgivings. Do you feel that opponents of the death penalty should just shut up when they are in a class studying the death penalty? Should they be blacklisted and scorned when they are seeking jobs?

And by the way, I *know* this is YOUR blog. I never suggested you shouldn't say precisely what you want. YOU are the one leaning very close to favoring censorship--at least, that is what your attitude toward your classmate seems to suggest.

Posted by: Janet at February 4, 2004 06:38 PM

Ok, I'm done arguing w/ you; it's not fun or enlightening, and I have better things to do. I'm tired of your personal judgments against me when you don't even know me or very much about this topic. If you would like to have a grown-up and productive discussion about this issue, I could do that, but you're obviously dead-set against me for some reason. I don't know you (or at least I don't think I do) and you don't like me, so let's just agree to disagree. Please stop writing here.

Posted by: Kristina at February 4, 2004 10:20 PM