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Archive for the tag “environment”

A Collection of Deaf Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of deaf law issues.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

A Collection of Employment, Civil Rights, and Labor Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of employment, civil rights, and labor legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!


My Articles:

U.S. Supreme Court Analyzes Definition of ‘Supervisor’

The United States Supreme Court, in the matter of Vance v. Ball State University 133 S.Ct. 2434 (2013), has weighed in on who qualifies as a supervisor of employees in order to assess liability for work place harassment. The Vance matter fills in the gaps left by the cases of Burlington Industries, Inc v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).


In Vance, the Plaintiff, a black woman, worked as a substitute server at Ball State University’s (“BSU”) Banquet and Catering division of Dining Services. Over the course of her employment with BSU, the Plaintiff lodged numerous complaints of racial discrimination. Her complaints reached a head with her interactions with a fellow BSU employee Saundra Davis. Plaintiff alleged that Davis intimidated her by giving her a hard time, glaring at her, slamming pots and pans around her, and smiling at her suspiciously. Most notably for the purposes of the Vance opinion, Plaintiff claimed in her complaint that Davis was her supervisor which, alleged Plaintiff, would make BSU liable for Davis’ actions in creating a hostile work environment for Plaintiff. The case turns on whether Davis can be legally defined as a supervisor or as a fellow employee in order to hold BSU liable.


Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate on the basis of race or color and, through case law, an employer can be held liable under the aforesaid Act if it allows for the creation or perpetuation of a discriminatory work environment which, by definition, would unlawfully change the terms and conditions of employment. An employer can be held directly liable for a racially hostile work environment if it was negligent in taking remedial action upon a showing that it knew or should have known about the harassment; however, if the harasser is a supervisor, then an employer can be held vicariously, and strictly, liable for the actions of the supervisor. The Vance Court narrowed an employer’s vicarious, and strict, liability by ruling here that vicarious and strict liability will only attach when/if the supervisor takes a “tangible employment action”, such as exacting discipline upon or transferring or terminating the complaining employee. The rationale for finding an employer vicariously and strictly liable for the actions of a supervisor is that there is a presumption that a tangible employment decision taken by the supervisor must be officially sanctioned by the employer or, at the very least, delegated by the employer; otherwise, the supervisor would not have the authority to make such a decision. Indeed, the Court noted that even if a tangible employment action did not take place, liability can attach to an employer if a complaining employee can show the supervisor created a hostile work environment and the employer can not respond with an adequate affirmative defense for the supervisor’s actions. Affirmative defenses include the employer claiming that it exercised reasonable care to prevent and/or promptly correct the harassing behavior and/or the complaining employee unreasonably failed to take advantage of the opportunities provided by the employer to remedy the matter.


When attempting to apply the above to the Vance matter, the Court explored all of the various uses, permutations, and definitions of the word “supervisor” and concluded that its interpretation must fit within the interpretive framework of employment cases. The Court believed that the guidelines provided by the EEOC regarding who or what defines a supervisor are vague and ambiguous. The Court ruled that the ability to direct the tasks of another employee, at least on its face, is not sufficient to qualify someone as a supervisor. The key is whether the alleged supervisor can take a tangible employment action and, in fact, the Court ruled that so doing is the “defining characteristic” of a supervisor. Indeed, the Court indicated that a co-worker can certainly inflict psychological injury and even create a hostile work environment, but a co-worker cannot dock the pay of, or demote, another employee unless s/he is a supervisor.


Ultimately, the Court held that the Plaintiff simply provided insufficient evidence to suggest that her harasser directed, or was empowered to direct, her day-to-day activities by BSU, let alone take tangible employment action, sufficient to qualify her as a supervisor to warrant holding the employer vicariously and/or strictly liable.

Originally published on December 24, 2013 in The Legal Intelligencer Blog and can be found here.

Clash of the Canons and Civil Law at GTS

This post is from Anglican Curmudgeon which you can find here.

An excerpt of the Anglican Curmudgeon post is as follows: “The recent meltdown at the country’s oldest theological seminary (and the only Episcopal seminary under the direct supervision of ECUSA) puts to the test some of the canonical abuses and litigation strategy implemented in the last few years by the Church’s leadership at 815 Second Avenue. Eight of the ten full-time faculty employed by General Theological Seminary declared in a September 17 letter to the Board of Trustees that due to the “hostile work environment” created by the Seminary’s Dean and President, the Very Rev. Kurt H. Dunkle, they were unable to continue to work under him.

The phrase “hostile work environment” is drawn from the well-developed body of labor law enforced in the United States by the National Labor Relations Board. However, ever since a decision by the United States Supreme Court in 1979, the NLRB’s jurisdiction has been held not to extend to religious schools and their faculties (including lay faculty), due to concerns over entanglement with religious rights under the First Amendment. Just as with all the recent Church property disputes, ECUSA has been at the forefront of insisting that the civil courts must defer to it in all civil litigation involving its religious affairs, governance and operations.”

You can learn more about this issue here.

Green Marriage

I am a firm believer in ideological consistency, regardless of one’s ideology.  I think such consistency demonstrates intellectual honesty and true belief and/or adherence to the chosen ideology.  Few things are more frustrating to me in a debate than when someone who holds a certain position does not hold to another which logically flows from the first, for no apparent reason other than preference.

Many people who self-identify as ideologically liberal subscribe to what most would call “environmentalism.”  I do not want to get too bogged down with what exactly environmentalism is, but suffice it to say for my purposes, environmentalism is an ideology which thinks we should do what we can (including using the force and power of government) to keep the Earth clean and free from pollutants, reduce greenhouse gasses, pursue renewable resources, recycle existing materials, preserve green spaces, reduce deforestation, reduce resource usage, and anything else commonly known as “green.”

Most people who self-identify as ideologically liberal also support the concept of no-fault divorce, see no issue with sex outside of marriage (in fact they take it as normal), have no issue with unwed pregnancy (in fact they sometime applaud it), and other sorts of hallmarks of the sexual revolution.  By contrast they tend to view traditional sexual mores as ranging between old fashioned (or archaic) to oppressive to intolerant to irrelevant in the modern world.

So, what does environmentalism have to do with liberal sexual mores?  To put it simply: I do not believe the two are sufficiently ideologically consistent for the same person to hold to both.

I came to this conclusion while driving around my neighborhood and the surrounding area.  In a few places near my house, large tracts of land are being (or have been) cleared of trees and green spaces in order to make room for more houses to be built.  As we speak, new neighborhoods are being constructed where woodland used to be and I wondered why all this new housing is suddenly needed.

Now, obviously population growth is certainly a cause for the need for more housing, but there is also another cause for it too:  the break down of the traditional nuclear (and married) family.

How did I arrive at this conclusion?  I think it is pretty well known that fewer and fewer people are getting married, the divorce rate is remaining at approximately fifty percent (50%), and unwed pregnancy is becoming increasingly common.  Once upon a time, a man and woman would get married and have kids and they all would live in the same home.  All would use the same electricity, gas, and water and the same green space.  Nowadays it is increasingly common for mom and dad to live in different houses.  As a result, in order to accommodate these separate homes, as opposed to a single home for the family unit, to house these “families”, approximately twice as much green and/or wooded space has to be destroyed, approximately twice as much water is used, approximately twice as much gas and/or electricity is used, and approximately twice as much building materials are needed for construction of the new homes, not to mention more gasoline needed and the additional wear and tear on one’s car for the transportation of the children between the parents.

Ironically, those who consider themselves “conservative” (and support traditional family values) generally would not consider themselves “green” or environmentalists, but their views on the family are just that.  Therefore, if one believes environmentalism to be important, one must abandon the more liberal views of the family, otherwise one would be very obviously ideologically inconsistent.  If one is truly “green,” he must also oppose the deterioration of the traditional nuclear family by divorce, unwed pregnancy, and other similar sorts of things as they are all adversely affecting our environment.

Of course, as I have mentioned on this blog, I have a Christian worldview which, I think rather consistently, embraces both stewardship, care, and concern for the environment as our role in God’s creation as well as the view that children ought to be conceived in a marriage of a mother and father.

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