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Pa. Superior Court: Family Court Notice Must Be Meaningful

Although there are standard forms for various pleadings and motions for family matters, they should certainly not be considered formalities or merely boilerplates. In the matter of T.L.G. v. J.D.G., the Pennsylvania Superior Court drove home the importance of pleadings and motions in providing the opposing party notice of what is at issue when going to a family court hearing.

In T.L.G. the parents of two children were subject to a stipulated custody order. One of the two children subject to this order unfortunately suffers from various mental health issues. Her parents both agreed to enroll their daughter in a residential program in North Carolina. At the conclusion of her program in the residential facility, she had the option to enroll in a therapeutic boarding school (which was recommended by the professionals at the residential program), or, in the alternative, she had the option to enroll in a standard public school with in-school and out-of-school therapeutic services. The parents disagreed over where to enroll the child; the child’s mother wanted to follow the recommendations while her father wanted to send her to a public school with additional services.

As the parents were unable to overcome their impasse regarding where to enroll their daughter, the mother filed a petition for special relief requesting the court to enter an order requiring the parties to follow the recommendations of the mental health professionals at the residential program. Accordingly, the court entered a scheduling order that set a hearing date “in consideration of the within petition.”

At the day of the hearing, the judge before whom the hearing took place opened the hearing by announcing that the order he would enter would likely be one that awarded sole legal custody (in the areas of education and mental health issues only). The judge ultimately entered an order granting the father sole legal custody (limited to education and mental health issues), and the mother timely appealed this order to the Pennsylvania Superior Court.

On appeal the mother argued that the trial court abused its discretion and violated her due process rights when it entered an order modifying the custody order (by changing legal custody) despite the fact that there was no petition to modify custody filed by either party.  Instead, the mother argued, her petition simply requested an order to resolve a single discreet issue of dispute between the parties, and the trial court’s order should have reflected that.

In ruling on the mother’s appeal, the Superior Court first noted that “notice and an opportunity to be heard are fundamental components of due process.” Furthermore, the court further noted that notice to a party must be provided within a meaningful time in a meaningful manner. Citing the Pennsylvania Superior Court case of Langendorfer v. Spearman, 797 A.2d 303 (Pa.Super.2002) (which in turn cited Choplosky v. Choplosky, 584 A.2d 340 (Pa.Super.1990)) the T.L.G. court also indicated that “if the parties do not receive proper notice that custody is at issue, a trial court cannot ‘assume that the parties had either sufficiently exposed the relevant facts or properly argued their significance.’”

While filing a petition to modify custody is typically the appropriate manner by which to request a custody modification, the court recognized that a trial court, under the right circumstances, may modify a custody order when it is in the best interests of the child, even if a petition to modify had not been filed. The court clarified, however, that such circumstances are only “if notice of the proceeding adequately advises a party that custody will be at issue, a court may entertain the request to permanently modify a custody order after hearing in that proceeding.”

When reviewing the facts of this matter, the court observed that mother’s petition for special relief does not request any modification of the custody order at all. It merely requests the trial court to adjudicate the discreet issue of where their daughter should be enrolled. Furthermore, the court also observed that the trial court’s scheduling order, quoted above, did not reference the potentiality of a modification of custody.

Based on the above, the Superior Court ruled that mother did not have proper notice that custody modification would be an issue at a petition for special relief hearing. In addition, the court did not believe the trial court judge’s opening statement at the hearing that legal custody may be modified constituted notice at a “meaningful time” or in a “meaningful manner.” In the court’s view, requiring the mother to make an objection on the record against the judge’s statement giving her last-minute notice that modification would likely be at issue (indeed, there was not even notice that it would definitely be an issue) is not sufficiently advanced notice to the mother to enable her to prepare or properly advocate. Indeed, the trial court did not even inform the parties that it would, in fact, modify legal custody until it issued its order after the hearing concluded.

In light of the above, the court ruled that the trial court abused its discretion and violated the mother’s due process rights when it awarded the father sole legal custody over educational and mental health matters despite the fact that neither party filed to modify the custody order. The court ruled that the mother did not receive proper notice that the custody order could be modified, vacated the trial court’s order, and remanded the matter. This decision makes it clear that court filings, and the court notices that follow from them, must be specific and provide adequate notice to the parties in order to ensure and protect a party’s basic due process rights.

James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.

 

Meritocracy Is Killing High-School Sports

Athletics are supposed to be great equalizers in American life. But they’re being hijacked by the wealthy.

If you want to understand how income inequality and opportunity-hoarding by the rich can combine in toxic ways to hurt the less fortunate, you could look in all the usual places—elite colleges, housing policy, internships.

Or you could look at high-school sports.

In the 2018–19 school year, the number of kids participating in high-school sports declined for the first time in three decades. At least, that was the headline; the reality was even worse. Thirty years ago, the high-school population itself was shrinking, due to a short-term falloff in births after the Baby Boom. This past school year is the only period on record when high-school sports participation declined even as school attendance increased.

The most obvious reason for the decline of high-school sports is that football, the Friday-night-lit mainstay of the high-school experience, is withering on the vine, likely due to fears about injuries and head trauma. The number of high-school boys playing the sport fell for the fifth straight year in 2018–19, and fewer male high schoolers now play football than at any other time this century. Many schools cannot field a full team and have resorted to a six-on-six version, according to the National Federation of State High School Associations (NFHS). America’s most popular sport on television could be close to a full-blown crisis.

But it’s not just football. Basketball, baseball, golf, and lacrosse are all losing players too. The number of girls playing high-school basketball has fallen to its lowest level since the early 1990s. Head injuries can’t explain all that. Neither can school funding or the number of high-school teams, which are steady, according to the NFHS. Something else is going on.

So is it screens?

Smartphones conveniently take the blame for just about every other societal ill, from rising anxiety to declining sex. But Farrey assured me that screen culture is not the culprit here. What’s telling, he said, is that the children of high-income parents are playing as much as ever. Kids from homes earning more than $100,000 are now twice as likely to play a team sport at least once a day as kids from families earning less than $25,000.

The deeper story is that the weed of American-style meritocracy is strangling the roots of youth sports. As parents have recognized that athletic success can burnish college applications, sports have come to resemble just another pre-professional program, with rising costs, hyper-specialization, and massive opportunity-hoarding among the privileged.

Before kids enter high school, they tend to participate in youth sports leagues, which have become one big pay-to-play machine. It’s now common for high-income parents to pull their kids out of the local soccer or baseball leagues and write thousand-dollar checks to join super-teams that travel to play similar kids several counties away. As I wrote last year, it’s not a crime for parents to spend money on their children. But as travel teams hoard talented (and, typically, high-income) kids, they leave behind desiccated local leagues with fewer resources and fewer players. As a result, many low-income children lose the sports habit (or never gain it to begin with), and simply stop playing altogether by the time they get to high school.

Another crucial factor is the rise in sports specialization. Once again, it might seem harmless that ambitious parents and coaches want talented kids to pick a sport and focus on it. But the frenzy around early specialization might be misplaced. A 2015 paper from Harvard concluded that specialization—defined as at least one year of intensive training in a single sport that requires quitting other activities—increased risks of “injury and burnout.” In July, ESPN published a two-part story on specialization in basketball and its correlation with injuries and emotional exhaustion. One coach likened the overwork of young athletes to “an epidemic.”

What’s more, it’s simple math that specialization means fewer kids per high-school sports team. A teenager who plays three sports counts as three distinct participants in the NFHS data. So the decline in participants partly reflects the fact that students who, 20 years ago, played football in the fall, basketball in the winter, and baseball in the spring are now just focusing entirely on, say, basketball.

“Athletic recruiting is the biggest form of affirmative action in American higher education,” says Philip Smith, a former dean of admissions at Williams College, has said. (About 30 percent of Williams students are recruited athletes.) In the 1990s, Division I and Division II colleges annually distributed less than $300 million in student-athlete scholarships. Today that figure ismore than $3 billion.

You might think most of that scholarship money is going to help kids from poor families who couldn’t otherwise afford college. That’s not the case. In 2010, just 28 percent of Division I basketball players were first-generation college students, meaning they likely came from low-income families. Five years later, that figure has fallen by nine percentage points. Today, fewer than one in seven students receiving athletic scholarships across all Division I sports come from families in which neither parent went to college. Farrey calls this the slow-motion “gentrification” of college sports.

This process starts in youth and high-school sports. Both historically served as a pipeline to flagship universities for low-income kids. But when they’re shut out from pricey travel leagues and the expensive coaching that early specialists receive, lower-income kids are denied not only the physical benefits of playing sports, but also the jackpot that is college recruitment and Division I and II scholarships.

Institutions that were meant to be opportunity-equalizers for the rich, poor, and everybody in between—community youth sports leagues, public high schools, the American college system—are being stealthily hijacked to serve the primary goal of so many high-income parents, which is to replicate their advantages in their children’s generation.

By Derek Thompson and published on August 30, 2019 in The Atlantic and can be found here.

Taking “Aim” at the Second Amendment

            The United States Constitution provides the very framework in which our nation is based, providing for the organization of the United States government and the establishment of the relationship between the federal government with the states, citizens, and all people within the United States.

The Second Amendment of the Constitution, which is part of the United States Bill of Rights, protects the right of the people to keep and bear arms.  The extent to which this right applies remains the subject of dispute as courts attempt to balance an individual’s right under the Second Amendment against governmental interests in adopting regulations to restrict gun ownership and control.  The Second Amendment was found to be fully applicable to both state and local governments through the Fourteenth Amendment in McDonald v. City of Chicago.  Thus, there has been a constant battle between gun rights as safeguarded by our Constitutional and the need for public protection and safety.

The right to gun ownership was established in Heller v. District of Columbia, where it was found that individuals have a right to own a gun in self-defense to protect their hearth and home.  However, this right did not provide an unfettered right to gun ownership.  In assessing a core Second Amendment right under the intermediate scrutiny standard, the court in Heller determined that gun registration requirements effectuated the important governmental interest in the public interest of promoting public safety.  Similarly, Heller limited the types of guns that could be owned by individuals to only those that were in common use and typically possessed by law abiding citizens.  Assault weapons and large capacity ammunition feeding devices were found to be “dangerous and unusual” and not to fall within the purview of rights provided under the Second Amendment.

The extent to which the right to carry guns in areas outside of the home remains the subject of dispute where two cert petitions are currently being argued before the Supreme Court.  In Masciandaro v. United States of America, the petitioner was convicted for possessing a loaded gun in the trunk of his car while in a national park area.  In applying the intermediate scrutiny standard, lower courts found that a regulation prohibiting the carrying or possessing of a loaded handgun in a motor vehicle did not violate an individual’s Second Amendment right as there was a substantial government interest in providing a safe environment for persons who visit and make use of the national parks.  In his appeal before the Supreme Court, Masciandaro argues that the Second Amendment right to possess a gun within one’s home should be extended to allow the possession of guns while traveling on public highways.

Similarly, in Williams v. State of Maryland, another case currently before the Supreme Court, purports that the Second Amendment provides for the right of an individual to carry a gun in his backpack while traveling to his house.  Williams was arrested after an officer observed him rifling through his backpack near a wooded area and then hiding his gun in the bushes.  The Court of Appeals of Maryland upheld his conviction on the grounds that Williams lacked standing to challenge the statute and handgun regulations as a violation of the Second Amendment since he failed to file an application to obtain a permit to carry a firearm, even though he attempted to argue that restrictiveness of the state law to obtain a gun permit was the reason he was unable to obtain one.  Nevertheless, it was found that Maryland’s statute prohibiting the wearing, carrying, or transporting a handgun, without a permit and outside of one’s home fell outside the scope of the protections afforded under the Second Amendment.

The Constitution provides for the very framework in which our nation is founded.  It provides the groundwork for the rights that we enjoy today and is the catalyst which has shaped our nation.  Yet, the rights entailed in the Constitution have not been deemed to be an absolute right.  Whether the Supreme Court will recognize and extend Second Amendment rights to protect the right to carry firearms outside of one’s home remains to be seen.

By Theodore Y. Choi, Esquire and published in Upon Further Review on September 13, 2011.

Expand Your Business, Increase Your Income!

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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A slogan such as the title of this article seems simply common sense to probably most Americans. If sales are up, then certainly expanding your business is the natural thing to do, or at least to think of doing. If you own one restaurant and it is doing well, consider opening a second – and a third, and a fourth. Except that this logic is totally contrary to real common sense, to the purpose of economic activity, and to our hopes for eternal life.

Contrary to common sense? To the purpose of economic activity? How so? Because the reason why the human race engages in economic activity is to satisfy our need for external goods and services. It is contrary to reason to make the acquisition of such goods and services ends in themselves. So if someone is providing sufficiently for himself and his family with his present business, if he is able to satisfy his own and his family’s need for external goods, what need does he have to expand that business and try to increase his income? Why would he even wish to do so? Has he never reflected on what is the purpose of income and wealth? That they are merely so that we can obtain the goods and services we need for life on this earth? And that if we have enough of them, it is irrational to want more.

But can we say that this is even contrary to our hope for attaining eternal life? How? Holy Scripture is full of instruction and warnings about earthly goods and riches. For example,

…if we have food and clothing, with these we shall be content. But those who desire to be rich fall in temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction. For the love of money is the root of all evils; it is through this craving that some have wandered away from the faith and pierced their hearts with many pangs. (I Tim. 6:8-10)

St. Paul is here connecting a desire to become rich with a “love of money” that he terms “the root of all evils.” The desire to become rich, that is, to have more earthly goods than one reasonably needs, indicates a disordered attitude toward one’s possessions. But it does more than that. It places the person who desires to become rich into a near occasion of sin. For it is the rare rich person who does not succumb to an inordinate attachment to his riches, and to an even more inordinate attachment to acquiring more and more of them. It is true that someone born into riches, through no fault of his own, may licitly retain that wealth – provided he remembers his duties of justice and charity toward the other members of the human race, which Pope Leo XIII expressed in Rerum Novarum in the following words:

Therefore, those whom fortune favors are warned that freedom from sorrow and abundance of earthly riches, are no guarantee of that beatitude that shall never end, but rather of the contrary; that the rich should tremble at the threatenings of Jesus Christ – threatenings so strange in the mouth of our Lord; and that a most strict account must be given to the Supreme Judge for all that we possess. (no. 22)

But those who are not rich, yet who are sufficiently providing for themselves and their families, they are those whom St. Paul warns, “who desire to be rich” and therefore “fall in temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction.” If Catholics are serious about their faith, if we really believe that we will be judged after our death and our eternal destiny will be heaven or hell – then who could in good conscience seek to acquire more than is reasonably necessary in this life? Why would anyone risk eternal damnation not merely for transient earthly goods, but for transient earthly goods which are not even needed?

I am not of course denying the uncertainties of this life, of the need for reasonable savings or the high cost of such things as our children’s education. But at some point we surely can say, enough. Beyond that point there is no rational reason for increasing our income. Beyond that point riches are nothing more than a temptation and a snare.

Only if we recover the traditional Catholic understanding that the goods of this life have purposes, and thus are limited by those purposes, only then can we begin to live rightly. In fact, we can hardly understand what the Church teaches and why unless we come to see that the things of this life exist in a hierarchy, that economic activity and the acquisition of wealth do not stand alone but are subordinate to the overall ends of life. If we can do that, then, as Pius XI wrote in Quadragesimo Anno:

If [the moral law] be faithfully obeyed, the result will be that particular economic aims, whether of society as a body or of individuals, will be intimately linked with the universal teleological order, and as a consequence we shall be led by progressive stages to the final end of all, God Himself, our highest and lasting good. (no. 43)

You can learn more about this issue here.

Deaths caused by drivers running red lights at 10-year high

I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here).  They are consistently controversial and violative of basic rights as described in the article below.

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The number of people killed by vehicles blowing through red lights is 28 percent higher than in 2012, AAA said.
DETROIT — The number of people killed by drivers running red lights has hit a 10-year high, and AAA is urging drivers and pedestrians to use caution at traffic signals.

CONSIDERING ADDITIONAL TYPES OF DISABILITY OR LEGAL RELIEF FOR YOUR SOCIAL SECURITY DISABILITY CLIENTS

By Faye Riva Cohen, Esq., assisted by Gina Y. Mosley, Esq., of The Law Office of Faye Riva Cohen, P.C., Philadelphia, PA

Published in National Organization of Social Security Claimants’ Representatives Forum

March 2010 and April 2010

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death.  That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies.  Therefore, a thorough interview with a potential client should determine:

  • Whether that person suffered an injury at the workplace;
  • Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
  • Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
  • Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
  • Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
  • Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
  • Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS

Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness.  The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions.  The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent.  See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability.  Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary.  That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions.  However, these employers will not be required to make accommodations which will cause an undue hardship.  Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions.  It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations.  Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin.  U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.

It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness.  Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.

THE REHABILITATION ACT

The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.

 THE PREGNANCY DISCRIMINATION ACT

The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (”FMLA”).  An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions.  For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options.  The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave.  In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave.  Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.

Pregnant women also rely heavily on FMLA.  As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child.  One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more.  Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects those employees over the age of 40 from workplace discrimination based on age.  29 U.S.C. § 621 et seq. It applies to employers with 20 or more employees, state, local and federal governments, and employment agencies and labor organization. Under this Act, it is unlawful for employers to discriminate against employees or job applicants with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, job assignments and training. As with the ADAAA, this Act also makes retaliation relating to the aforementioned unlawful.

Although an employee can be asked to waive their rights under the ADEA when signing a severance agreement, a clearly established protocol must be followed.  The agreement must be (1) in writing and understandable; (2) specifically refer to ADEA rights; (3) not waive rights or claims that may arise in the future; (4) offer valuable consideration; (5) advise the employee in writing to consult with an attorney prior to execution of the waiver; (6) allow for 21 days in which the employee can consider the agreement; and (7) allow for 7 days within which the employee can revoke the agreement after signing it.  Consider this protocol if a severance agreement concludes one’s client’s disability matter.

 THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act, (P.L. 103-3, 107 Stat. 6) (“FMLA”) was enacted on February 5, 2003 for the purpose of helping people who were stressed about trying to balance the competing demands of work and family life. The FMLA allows an employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child, to care for a family member, or to tend to his own serious health problems. The employee has three options from which to choose when deciding how to take time off.  He can take the entire 12 weeks at once, take leave as needed following proper procedures, or he can simply work a reduced schedule. Note that FMLA time off may be combined with paid time off and employers generally have an option of requiring that employees use up their sick/vacation/personal time prior to using FMLA time.  Employers have the burden of providing employees with information, notice and guidance about FMLA requirements.

It is important that any FMLA documents completed by the client and their doctors be reviewed by an attorney if possible.  Moreover, an attorney or representative should ensure that the FMLA documents conform or are at least considered when applying for other types of disability.  Often these documents will have different or contradicting onset dates, diagnoses, prognoses, or levels of severity of condition which will complicate the Social Security disability application procedure. The FMLA leave documents can be of assistance and provide documentary support in a Social Security disability claim.

The Department of Labor’s Wage and Hour Division published a Final Rule under the FMLA in January 2008 which became effective on January 16, 2009, and an updated set of regulations by the Department of Labor were published. The FMLA benefits provided to military families (referred to as military caregiver leave and covered service-member leave) greatly expand the usual 12 weeks of FMLA leave up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. Also, the time spent performing light-duty work doesn’t count against the 12 week FMLA leave. The regulations provide added guidance of what a “serious health condition” is.

Implementation of the ADA and the FMLA sometimes cause friction between an employer’s right to know about an employee’s condition and an employee’s right to keep his medical conditions private.  Relying on a medical treatment source for this information is not suggested, as doctors have been known to tell patients they are not required to reveal any information about their medical conditions, when that is not always the case, which can result in an employee’s termination for refusal to divulge information an employer has a right to know.

Generally, the information that must be revealed by an employee or his medical treatment sources under the FMLA must be enough to permit the employer to know how to best accommodate an employee, or to provide the information on Department of Labor Form WH-380E, which is a certificate of health care provider for an employee’s serious health condition. This information, requested from a doctor, includes, among other things, the beginning date of the condition, dates treated for the condition, probable duration of condition, medication prescribed, treatments, referrals made to other health care providers, and whether an employee can perform certain job functions.

Employees on FMLA must follow an employer’s usual and customary procedures for reporting an absence, barring an usual circumstance.  Further, an employer’s direct supervisor cannot contact health care providers and cannot ask for additional information beyond that required on the certification form, as the Health Insurance Portability and Accountability Act (“HIPPA”) is invoked to limit this information. There are also provisions for certification of ongoing conditions and fitness for duty certifications.

 FECA AND FELA CLAIMS AS OPTIONS FOR FEDERAL EMPLOYEES

 The Federal Employees Compensation Act (“FECA”), 5 U.S.C.A. § 8101 et seq., provides federal employees with compensation benefits for work-related injuries or illnesses.  Administered by the Department of Labor’s Office of Workers’ Compensation Programs, all claims generally must be brought within three years of the date of injury. The federal employee will continue to receive compensation benefits as long as they remain totally or partially disabled.  The federal employee will receive two-thirds or three-fourths of their salary at the time of the injury depending on whether the employee has dependents.

Another piece of federal legislation that attorneys who handle disability matters should be familiar with is Federal Employers’ Liability Act (“FELA”). 45 U.S.C.A. § 51 et seq. This Act was initially meant to protect the rights of railway workers who were injured while at work in this country. Since its enactment, FELA has been greatly expanded.  There is a three year statute of limitations from the date of the injury.  Generally the statute begins running when the employee knew or should have known of the existence of the injury and that the FELA statute of limitations is triggered in an occupational injury case when the injured worker knew or should have known: 1) of the existence of the injury; and 2) that workplace exposure was a cause

 SHORT AND LONG-TERM TERM DISABILITY POLICIES AND ERISA

Clients frequently are not aware that they are entitled to make a claim which entitles them to receive some form of some short and/or long-term disability payments as a general benefit of their employment, membership in a union or because they have opted to receive additional benefits paid for through payroll deductions. Employees may also have disability coverage they have purchased privately.

However, simply because this type of benefit exists does not mean that it is easily procured. Disability insurance carriers may be reluctant to approve clients for benefits, particularly long-term disability benefits, and if they are approved, carriers often attempt to terminate the employee prematurely. Employees are sometimes lulled into thinking that because they have received short-term disability benefits easily that receiving long-term disability benefits will also be an easy process. Moreover, if an employee is receiving long-term disability benefits, this normally indicates that the injury is not work-related, because a worker’s compensation claim would ensue instead.

Insurance disability carriers tend to have little respect for the fact that a claimant has been awarded Social Security disability benefits prior to or even after an ALJ’s decision, and this type of award does not have significant impact on a carrier’s decision to award long-term disability benefits.  However, a detailed decision by an ALJ judge, the Appeal’s Council or a court, will usually be helpful in a long-term disability claim.  In the event that a client suffers from physical and mental impairments, because many policies limit the number of years of benefits for mental impairments, carriers may seize on a decision and allege that the mental impairments take priority over the physical impairments, so one should use care in emphasizing the nature of the disability claimed.

Most insurance carriers require that a successful applicant for long-term disability benefits apply for Social Security disability benefits, and if that claim is successful, those benefits will be offset against any amount paid to the applicant under long-term disability coverage, after the deduction of any attorney’s fees. If that claim is not successful, it should not impact on private disability insurance benefits.

There are several levels of administrative appeal in the long-term disability denial process and insurance carriers frequently extend the administrative process as long as possible, hoping to wear out the applicant. It is important that each stage of the administrative process be followed, and that any and all medical evidence is submitted to the insurance carrier during the administrative process.  This is because there is case law which states that evidence submitted after the administrative process cannot be introduced if a denial is later litigated under The Employee Retirement Income Security Act of 1974 (“ERISA”), found in the U.S. Code beginning at 29 U.S.C. §1001.

ERISA is a federal law which mandates minimum standards for most voluntarily established pension and health plans in private industry. The result is additional protection for individuals with covered plans.  Long-term disability appeals are included in the health care plans covered by ERISA. Being familiar with ERISA is particularly important when dealing with denials of long-term disability benefits in that this federal law preempts the vast majority of state and local laws pertaining to similar subject matter.

ERISA dictates an administrative process which must be fulfilled in its entirety before the employee obtains the right to sue.  The administrative processes differ from policy to policy but the common thread running through every policy is that stringent timelines must be followed in order to safeguard the claim. ERISA also provides for an internal appeal process.  Once this process is complete, a lawsuit can be brought.

UNEMPLOYMENT INSURANCE BENEFITS

Although there may be risks if a claimant applies for both unemployment insurance (“UI”) benefits and Social Security disability benefits contemporaneously, for those who don’t have a financial choice, one is not precluded from filing for both benefits contemporaneously. In order to receive UI benefits, one must assert that he is ready, willing and able to work but cannot find employment.  Conversely, to file for Social Security disability benefits one must show that his medical condition prevents him from working in his previous position or any other field and he is not currently seeking employment.

Although there appears to be an inherent conflict in these positions, in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) the U.S. Supreme Court held that: (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) an employee was entitled to an opportunity to explain any discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. A similar analysis can be applied to the receipt of UI benefits where one alleges an ability to do some type of work.

Administrative law judges may not look favorably upon Social Security disability claims where the employee is receiving UI benefits, but they should consider a claimant’s application for and/or receipt of UI benefits as only one of the statutory factors adversely impacting the claimant’s credibility in assessing the ability to work, and it should be considered as part of the five step sequential evaluation process and the totality of circumstances.

Holding oneself out as being able to work is not the same as being able to work and perform substantial gainful activity. Also, a mere desire to work is not proof of the ability to work, because many employers will not hire someone with a myriad of medical problems, despite that person being willing to make a work attempt.

A November 15, 2006 Memorandum from Chief Judge Frank A. Cristaudo to Regional Chief Judges and Regional Office Management Teams, states that “[t]his is a reminder that the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits.  The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).” The Memorandum states that Social Security Ruling 00-1c incorporates Cleveland.  A long line of Appeal’s Council and ALJ Decisions prior to Cleveland support this analysis, which requires consideration of all of the evidence and the totality of circumstances, making the ability to receive both types of benefits possible.

Some advocates delay the date of onset of the condition in a Social Security disability claim paving the way for a client to receive UI benefits for a period of time. However, the Social Security disability process can be quite lengthy, and may not always be successful for claimants, so it may be desirable for them to have a stream of income pending the Social Security disability process.  UI benefits are not offset by Social Security disability and therefore can serve as additional funds for claimants during the Social Security disability application process.

THE PUBLIC POLICY EXCEPTION AS APPLIED TO EMPLOYEES AT WILL AND EMPLOYEES WITH WORKER’S COMPENSATION CLAIMS

Since 1891, Pennsylvania common law held that in the absence of a specific statutory or contractual restriction, an at-will employment relationship could be terminated by either the employer or the employee at any time, for a good reason, a bad reason or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891).  It was not until almost 100 years later that this holding was reevaluated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974).  In Geary, an employee was terminated for warning his fellow coworkers of the valid dangers posed by the new product the company was manufacturing.  Interpreting Geary, Yaindl v. Ingersoll-Rand Co. held “when the discharge of an employee at will threaten public policy, the employee may have a cause of action against the employer for wrongful discharge.” 281 Pa.Super. 560, 422 A.2d 611, 617 (1980).

Some states may have statutory or common law making it a violation to terminate an employee who has been injured during the course of employment. In Pennsylvania, for example, the courts have established a narrow exception to the standard employment at will doctrine which permits employers to terminate their employees for minimal reasons, stating that it is a violation of public policy to terminate an employee who initiates a claim of worker’s compensation. Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002). However, this is often a difficult standard to meet and employers often ignore this exception, taking the risk that an injured employee will not have the substantial resources necessary to sue the employer for violation of the policy.

 In September 2009, a record setting consent degree was entered into between Sears, Roebuck and Co. and former employees who were allegedly discriminated against when Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees rather than providing them with reasonable accommodations for their disabilities in violation of the ADA.  The case was docketed as EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. The Chicago based U.S. Equal Employment Opportunity Commission declared that the class action lawsuit it had initiated would be settled for $6.2 million with additional remedial relief.  Many attorneys in the workers compensation field believe that this settlement will lead to important changes in how companies structure their leave policies.

 However, the Pennsylvania public policy exception to the employment at-will doctrine will not apply where a statutory remedy is available.  For example, an employee who was terminated based on race, color, religion, national origin, or sex is entitled to file under Title VII and similar state statutes, although he may be permitted to raise the exception as an ancillary state claim.

SEVERANCE AGREEMENTS IN LIEU OF COURT PROCEEDINGS

 Another helpful tactic which should be considered if Social Security disability standards cannot be met but an employee must leave his position because he can’t perform his job duties due to some disability and/or his employer can’t reasonably accommodate his disability, is negotiating a severance agreement to include additional funds for a client and/or lengthen his entitlement to health insurance benefits.  The agreement will be enforceable so long as the scope is reasonable, no laws are violated, consideration is present and the agreement is knowingly and voluntarily entered into.

Employers are oftentimes willing to enter into a severance agreement to avoid the lengthy discrimination agency or litigation process.  It may be far more cost effective for an employer to give these concessions early in the negotiation process.  It is important to exhaust all other remedies discussed earlier if a severance agreement is to be signed because standard severance agreements terminate the employee’s right to sue the employer for any actions that took place during a certain time frame, with the possible exception of worker’s compensation claims, depending on state law.

CONCLUSION

 It is not unusual to have a client suffering from a job-related injury or illness who would have been able to continue to work given a reasonable accommodation under the ADAAA or following a FMLA leave. Instead, many employers terminate, lay off, or force these employees to resign in violation of the law and the public policy exception to the employee-at-will doctrine and the aforementioned statutes, depending on state law.  That client, in addition to the receipt of Social Security disability benefits, could potentially receive worker’s compensation benefits, short and/or long term disability benefits, retirement disability and/or a settlement from an employer due to alleged violations of one of the civil rights acts or policies.  Note that there may be financial offsets from receipt of more than one of these types of benefits. Also, a negotiated severance agreement or settlement may include severance pay, extension of insurance benefits and attorney’s fees and costs for a client.

In conclusion, there is no doubt, as outlined by the various remedies above, that the disability field of law is often confusing as it requires interaction with various laws and policies which often have not only varying, but conflicting, burdens of proof.  However, a practitioner who is at a minimum familiar with other possible remedies can be of great help to his client. Also, this help may result in additional sources of income to the client and to the practitioner who undertakes these additional claims or refers them to other attorneys and is able to collect referral fees depending on state guidelines.

 

How Religion Supports Science, but Atheism Doesn’t

I have spoken with several scientifically minded people recently who’ve reported a conflict between the religious and scientific worldview. Most of these people are not actual scientists (a few of them are), but nevertheless, they seem to appreciate what science has done for the world, and generally enjoy the musings of those engaged in it. Fair enough: science has done a great deal to improve the priorly squalid conditions of our human experience, and conjectures among scientists are of often enormous intrigue, especially those which can make for a good sci-fi. But is there really a conflict between the scientific and religious worldview? Is it irrational to be a person of faith and lover of science?

Here is what I would maintain. There are, admittedly, among certain, specific religious affiliations, real and obvious conflicts between what some particular religions say, and what some particular scientific endeavors teach. No person of faith should deny these apparent face-offs. (Here, something like young earth creationism comes to mind, or the denial of the efficaciousness of penicillin.) But at the same time, no person of faith should concede that just because there are some conflicts with some religious viewpoints and the mainstream scientific consensus, that the religious worldview, broadly construed, is in anyway incompatible with the enterprise or results of science itself.

We can defuse this so-called conflict hypothesis, first by taking the most general religious stance possible: that God exists. In other words, there is not a being, but a foundation to being itself, or an ultimate, self-sufficient answer to the question of “How come anything?” Across religious traditions—from Christianity to Hinduism—this foundation is believed to be a mind, or at least something mind-like: unified, perfect in its understanding, and capable of relating all real and really possible ideas. This ground of being—this Godhead—therefore, is unlike anything else and is the reason for everything else. Because of this, the best and perhaps only way we can approach God intellectually (apart from specific revelation) is by a slow, philosophical process of stripping away all the things God is almost certainly not, like a being in time or space, or composed of parts, matter, etc. Classical theism, then, says God is the power behind all powers, the fully knowing, fully inclusive reality which, because it exists through itself, continually donates being to everything existing apart from it.

Back to the original point: Is such a belief inconsistent with science? If so, the conflict is not easily apparent. We’ll need to investigate.

Science is the study of physical things, or to be precise, how one physical event causes or leads to another physical event. Science, then, is etiological rather than ontological. It assumes a physical reality and goes from there; science cannot answer why there is a physical reality to start. This is the first distinction a person should make, and once a person has this distinguishing feature clear in their mind, it becomes quite understandable why science has very little to say about God. Science is definitionally and practically restricted to studying God’s creation but cannot in principle have anything to say about the Creator—who is not a limited, physical thing—himself.

Here is a simple way of thinking about it: Science works within the book of physical, interactive life. It can tell us that Jack laughed because Susy told a joke. But clearly there is another, higher up, and further out, explanation to be found. For is it not equally true that Jack laughed because the author made Susy to be funny, and Jack susceptible to jokes? And so, we can see there is a proximate answer, which science deals with, but also an ultimate answer, which is left to philosophy and theology and all the like. The proximate answer is both true and insightful, yet all proximate answers within the book depend ultimately on there being an author. And so, who is the author, we would like to know? And why did he or she bother writing the story to begin with? These are legitimate questions—perhaps the most legitimate we can ask—and they are all legitimately unanswerable through the empirical enterprise.

The question of why any story of life has been put to paper to begin with, which is the all-too-familiar but far from insignificant realization that anything exists instead of nothing, is a question that science cannot attend to, but philosophy and theology, on the other hand, can. If God did not exist—that is, if there were not a necessary, self-sufficient foundation to reality (that which in principle does not, and could not, be caused)—it is hard to see how anything could exist. Everything about physical reality is conditioned; there are a confluence of causes to explain the things which constitute the world we live in, from galaxy formation to fermions and bosons and so on. But reality in total (whatever that is) cannot be the sort of thing in need of an outside explanation, since nothing could stand outside of reality to cause it. So there must be a part, a layer, or a foundation, of reality beyond the realm of created, physical things—beyond time and space and matter and energy—to answer the most interesting and important question of all: “How come anything?”

But we can, and should, go further. God supports science in other ways yet unmentioned, and often unrecognized.

If, for example, God exists, then we might expect to have been formed with generally reliable faculties. We can trust that however God brought us about (evolution or otherwise), he did so with the intent of having us discover real truths about the world—mathematical, logical, moral, etc—and that our cognitive faculties are not just a jumble of useful but false beliefs suited for the proliferation of genes. If, however, God did not exist, then we have no strong reason to expect our beliefs, or our belief forming mechanisms, to be aimed accurately at discerning reality. Any theory of unguided evolution, after all, does not care about truth, only that some such species remains a going concern, and these two things—truth on one hand, the propagation of DNA on the other—are not necessarily, or even probably, related. Delusions (like, according to Richard Dawkins, belief in God would be, or objective morality) could lead to survival just as well as truth, and in some respects, maybe even more so. But if this is the case, then we have reason to be skeptical of all beliefs formed through our evolutionarily mechanisms, and this includes our beliefs in evolution and naturalism (naturalism being one of the strongest forms of atheism). The position then is self-defeating. To accept both (evolutionary theory and naturalism) is to have to reject both. Theism, on the other hand, offers ample epistemological support to evolutionary theory, since we can trust that God providentially guided the process leading to rational, reasoning animals like us. (For more on this line of argument—that is, how evolutionary theory undercuts belief in naturalism, but can be supported by theism—see here and listenhere.)

We also might expect that if God exists, the world would be orderly and intelligible—and, indeed, the world is orderly and intelligible, magnificently and exquisitely so. Also—amazingly enough—the world is stable: yesterday was pretty much like today in terms of physical laws and causal processes, and we expect tomorrow will probably be the same. Why should any of this be the case, if God did not exist? That anything exists at all, that there exist people to understand and ask questions about existing things, and that our existing physical laws are generally unchanging and susceptible to understanding, is, to be frank, a miracle beyond the reach of any purely naturalistic explanation. Given the existence of God, however, all this is just the sort of thing we’d expect. Even if we could not predict the way God would do things (for that, we’d have to be God), the existence of God makes sense of the way things have actually been done. God makes sense of science and everything science assumes: logic, mathematics, and the moral realm. Theism provides a solid foundation to all of these in the existence of a nonphysical, foundational mind. Belief in God makes science both rational and reliable. Rejection of God makes science a bizarre mystery, if not a ludicrous leap of faith. In this sense, we are all believers in something. The only question is where do we draw the line?

By Pat Flynn and published on Word on Fire on August 20, 2019 and can be found here.

 

No ‘gay gene’: Massive study homes in on genetic basis of human sexuality

Nearly half a million genomes reveal five DNA markers associated with sexual behaviour — but none with the power to predict the sexuality of an individual.

The largest study1 to date on the genetic basis of sexuality has revealed five spots on the human genome that are linked to same-sex sexual behaviour — but none of the markers are reliable enough to predict someone’s sexuality.

The findings, which are published on 29 August in Science and based on the genomes of nearly 500,000 people, shore up the results of earlier, smaller studies and confirm the suspicions of many scientists: while sexual preferences have a genetic component, no single gene has a large effect on sexual behaviours.

“There is no ‘gay gene’,” says lead study author Andrea Ganna, a geneticist at the Broad Institute of MIT and Harvard in Cambridge, Massachusetts.

Ganna and his colleagues also used the analysis to estimate that up to 25% of sexual behaviour can be explained by genetics, with the rest influenced by environmental and cultural factors — a figure similar to the findings of smaller studies.

“This is a solid study,” says Melinda Mills, a sociologist at the University of Oxford, UK, who studies the genetic basis of reproductive behaviours.

But she cautions that the results may not be representative of the overall population — a limitation that the study authors acknowledge. The lion’s share of the genomes comes from the UK Biobank research programme and the consumer-genetics company 23andMe, based in Mountain View, California. The people who contribute their genetic and health information to those databases are predominantly of European ancestry and are on the older side. UK Biobank participants were between 40 and 70 years old when their data were collected, and the median age for people in 23andMe’s database is 51.

The study authors also point out that they followed convention for genetic analyses by dropping from their study people whose biological sex and self-identified gender did not match. As a result, the work doesn’t include sexual and gender minorities (the LGBTQ community) such as transgender people and intersex people.

A need for more data

Scientists have long thought that someone’s genes partly influenced their sexual orientation. Research from the 1990s2 showed that identical twins are more likely to share a sexual orientation than are fraternal twins or adopted siblings. Some studies suggested that a specific part of the X chromosome called the Xq28 region was associated with the sexual orientation of people who were biologically male — although subsequent research cast doubt on those results.

But these studies all had very small sample sizes and most focused on men, says Mills. This hampered scientists’ ability to detect many variants associated with sexual orientation.

In the recent study, Ganna and his colleagues used a method known as a genome-wide association study (GWAS) to look at the genomes of hundreds of thousands of people for single-letter DNA changes called SNPs. If lots of people with a trait in common also share certain SNPs, chances are that the SNPs are related in some way to that characteristic.

The researchers split their study participants into two groups — those who reported having had sex with someone of the same sex, and those who didn’t. Then the researchers performed two separate analyses. In one, they evaluated more than one million SNPs and looked at whether people who had more SNPs in common with each other also reported similar sexual behaviours. The scientists found that genetics could explain 8–25% of the variation in sexual behaviour.

For their second analysis, Ganna and his colleagues wanted to see which particular SNPs were associated with same-sex sexual behaviours, and found five that were more common among those individuals. However, those five SNPs collectively explained less than 1% of the variation in sexual behaviour.

This suggests that there are a lot of genes that influence sexual behaviour, many of which researchers haven’t found yet, says Ganna. An even larger sample size could help to identify those missing variants, he says.

But Ganna cautions that these SNPs can’t be used to reliably predict sexual preferences in any individual, because no single gene has a large effect on sexual behaviours.

It’s complicated

Although the researchers have identified some of the SNPs involved in same-sex sexual behaviour, they aren’t sure what the genetic variants do. One is near a gene related to smell, which Ganna says has a role in sexual attraction. Another SNP is associated with male-pattern baldness — a trait influenced by levels of sex hormones, which suggests that these hormones are also linked to same-sex sexual behaviour.

The results demonstrate the complexity of human sexuality, says Ganna. They also presented a challenge to the study researchers, who knew that explaining nuanced findings on such a sensitive topic to the general public would be tricky.

To ensure that their results are not misinterpreted, the study researchers worked with LGBTQ advocacy groups and science-communication specialists on the best way to convey their findings in the research paper and to the public. Their efforts included the design of a website that lays out the results — and their limitations — to the public, using sensitive, jargon-free language.

Ewan Birney, a geneticist and director of EMBL European Bioinformatics Institute near Cambridge, UK, applauds that effort. “It’s a communications minefield,” he says.

Although some researchers and LGBTQ advocates might question the wisdom of conducting this kind of research, Birney says that it’s important. There has been a lot of sociological research on same-sex sexual behaviours, he says, but this is an incredibly complicated topic. It’s time to bring a strong, biologically based perspective to the discussion, Birney says.

References

  1. 1.

    Ganna, A. et al. Science 365, eaat7693 (2019).

  2. 2.

    Pillard, R. C. & Bailey, J. M. Hum. Biol. 70, 347–365 (1998).

By Jonathan Lambert and published in Nature on August 25, 2019 and can be found here.

‘Luxury beliefs’ are the latest status symbol for rich Americans

A former classmate from Yale recently told me “monogamy is kind of outdated” and not good for society. So I asked her what her background is and if she planned to marry.

She said she comes from an affluent family and works at a well-known technology company. Yes, she personally intends to have a monogamous marriage — but quickly added that marriage shouldn’t have to be for everyone.

She was raised by a traditional family. She planned on having a traditional family. But she maintained that traditional families are old-fashioned and society should “evolve” beyond them.

What could explain this?

In the past, upper-class Americans used to display their social status with luxury goods. Today, they do it with luxury beliefs.

People care a lot about social status. In fact, research indicates that respect and admiration from our peers are even more important than money for our sense of well-being.

We feel pressure to display our status in new ways. This is why fashionable clothing always changes. But as trendy clothes and other products become more accessible and affordable, there is increasingly less status attached to luxury goods.

The upper classes have found a clever solution to this problem: luxury beliefs. These are ideas and opinions that confer status on the rich at very little cost, while taking a toll on the lower class.

One example of luxury belief is that all family structures are equal. This is not true. Evidence is clear that families with two married parents are the most beneficial for young children. And yet, affluent, educated people raised by two married parents are more likely than others to believe monogamy is outdated, marriage is a sham or that all families are the same.

‘Upper-class people don a luxury belief to separate themselves from the lower class’

Relaxed attitudes about marriage trickle down to the working class and the poor. In the 1960s, marriage rates between upper-class and lower-class Americans were nearly identical. But during this time, affluent Americans loosened social norms, expressing skepticism about marriage and monogamy.

This luxury belief contributed to the erosion of the family. Today, the marriage rates of affluent Americans are nearly the same as they were in the 1960s. But working-class people are far less likely to get married. Furthermore, out-of-wedlock birthrates are more than 10 times higher than they were in 1960, mostly among the poor and working class. Affluent people seldom have kids out of wedlock but are more likely than others to express the luxury belief that doing so is of no consequence.

Another luxury belief is that religion is irrational or harmful. Members of the upper class are most likely to be atheists or non-religious. But they have the resources and access to thrive without the unifying social edifice of religion.

Places of worship are often essential for the social fabric of poor communities. Denigrating the importance of religion harms the poor. While affluent people often find meaning in their work, most Americans do not have the luxury of a “profession.” They have jobs. They clock in, they clock out. Without a family or community to care for, such a job can feel meaningless.

Then there’s the luxury belief that individual decisions don’t matter much compared to random social forces, including luck. This belief is more common among many of my peers at Yale and Cambridge than the kids I grew up with in foster care or the women and men I served with in the military. The key message is that the outcomes of your life are beyond your control. This idea works to the benefit of the upper class and harms ordinary people.

It is common to see students at prestigious universities work ceaselessly and then downplay the importance of tenacity. They perform an “aw, shucks” routine to suggest they just got lucky rather than accept credit for their efforts. This message is damaging. If disadvantaged people believe random chance is the key factor for success, they will be less likely to strive.

‘The key message is that the outcomes of your life are beyond your control’

White privilege is the luxury belief that took me the longest to understand, because I grew up around poor whites. Often members of the upper-class claim that racial disparities stem from inherent advantages held by whites. Yet Asian Americans are more educated, have higher earnings and live longer than whites. Affluent whites are the most enthusiastic about the idea of white privilege, yet they are the least likely to incur any costs for promoting that belief. Rather, they raise their social standing by talking about their privilege.

In other words, upper-class whites gain status by talking about their high status. When laws are enacted to combat white privilege, it won’t be the privileged whites who are harmed. Poor whites will bear the brunt.

It’s possible that affluent whites don’t always agree with their own luxury beliefs, or at least have doubts. Maybe they don’t like the ideological fur coat they’re wearing. But if their peers punish them for not sporting it all over town, they will never leave the house without it again.

Because, like with diamond rings or designer clothes of old, upper-class people don a luxury belief to separate themselves from the lower class. These beliefs, in turn, produce real, tangible consequences for disadvantaged people, further widening the divide. Just as fashionable clothing will soon be outdated, so will today’s fashionable beliefs. In the future, expect the upper class to defame even more values — including ones they hold dear — in their quest to gain top-dog status.

By Rob Henderson and published in The New York Post on August 17, 2019 and can be found here.

Divorce After Death?

Historically, when a husband and wife were in the process of being divorced and one died their status remained as if married, and division of the probate marital property would occur under the probate rules of Title 20.  Effective January 28, 2005, the foregoing changed, and equitable distribution under certain circumstances may now occur even after one of the spouses has died.

            Title 23 now provides that “[I]n the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).”  23 Pa.C.S.A. § 3323(d.1).   The Official Note indicates that the primary reasons for the changes is so that parties who are divorcing would need not choose between equitable distribution or electing against the Will of the other spouse.  Indeed, the Official Notes state that “[T]he parties’ economic rights and obligations are determined under equitable distribution principles, not under the elective share provisions of Chapter 22 of Title 20 (Decedents, Estates and Fiduciaries Code).”  Importantly, the change to Title 23 leaves several questions unanswered, that have yet to be clarified by the courts.

            It is universally accepted that a divorce decree cannot be entered, regardless of the approval of the divorce grounds, when one of the spouses in the divorce action dies, because a divorce action abates immediately upon the death of one of the parties.  The changes to 23 Pa.C.S.A. § 3323(d.1) does not alter the foregoing.  Taper V. Taper, 939 A.2d 969 (Pa. Super., 2007), Yelenic v. Clark, 922 A.2d 935 (Pa. Super., 2007), In Re Estate of James A. Bullotta, Jr., 838 A.2d 594 (Pa., 2003).  Therefore, regardless of the approval of divorce grounds, the parties remain married.

            If the parties remain married, regardless of grounds of divorce being established, then any item of property that passes by law to the surviving spouse, because they are the surviving spouse, must supercede equitable distribution.  Of particular note are retirement plans, such as IRA or 401(k) plans that are generally governed by ERISA, which of course is a federal statute that does not fall within Title 20.  Frequently, pension plans stipulate that if a spouse is named as a beneficiary, their name cannot be removed without their consent.  The same might be the case for life insurance provided as an employment benefit through the decedent’s employer.  Likewise, a tenancy by the entireties is created and governed by common law and not Title 20.  Consequently, assets passing outside Title 20 may not be subject to equitable distribution after the death of a spouse.

            23 Pa.C.S.A. §3323(d.1) did not take effect until January 28, 2005.  Left unresolved is whether the change to Title 23 effects parties who separate prior to the effective state of the statute, and whether the change to Title 23 should be applied to parties when one of the parties filed for divorce prior to the effective date of the statute.  Under 1 Pa.C.S.A. §1926, no statute is to be considered retroactive unless it is clearly and manifestly so intended by the General Assembly.  Indeed, “in the absence of clear language to the contrary, statutes must be construed to operate prospectively only.”  Budnick v. Budnick, 419 Pa.Super. 172, 615 A.2d 80 (Pa.Super.,1992.)  citing Flick v. Flick, 408 Pa.Super. 110, 115-117, 596 A.2d 216, 219-220 (1991).  There is nothing in §3323(d.1) that even hints at retroactive effect; therefore the statute may not apply to those individuals who separated prior to January 28, 2005.

            Attorneys who practice in the field of family law should be aware that if the parties separated after January 28, 2005, and one of the spouses is ill, consideration should be made to obtaining a finding of grounds for divorce, depending on the assets involved and how they are held.  Those attorneys who practice in the field of estate law need to make certain they are aware of this change in the law, the need to update wills, and the need to check the records of the Register of Wills to determine if a Personal Representative is appointed.  Consideration should be made to filing an informal caveat to block probate of any will, and a formal caveat then filed and a petition filed to appoint an independent administrator pendente lite to marshal the assets of the deceased spouse’s estate, to ensure that the other spouse is not left with nothing.

Here is yet another an article, by Adam S. Bernick, Esquire, who is of counsel to my firm, providing some sound advice and insight into the estate planning process.  This article was originally published in Upon Further Review on December 8, 2009, and can be seen here.

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