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Archive for the tag “james. cushing”

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!

Musings:

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.

Bought With a Price: Every Man’s Duty to Protect Himself and his Family from a Pornographic Culture

As many of my readers know, one of the primary areas of my law practice is family law.  Unfortunately, family law deals with many very deep and profound problems in the family structure which result in custody disputes, abuse, divorce, and other related issues.  A common problem which often underlies these issues is the use of pornography.  Recently my friend and my former parish priest, Fr. K. Brewster Hastings from my old church St. Anne’s in Abington, PA, emailed me about a new publication issued by the Most Reverend Paul S. Loverde, Roman Catholic bishop of Arlington, Virginia called Bought With a Price: Every Man’s Duty to Protect Himself and his Family from a Pornographic Culture.

Pornography is an enormous blight in our society and plays a significant role in the diminishment of the American family and sexuality in general.  The problem of pornography has become so prominent that Bishop Loverde felt led to prepare a comprehensive published essay on the subject.  You can find the entire piece in .pdf format here.  You can read more about it here.

Instead of summarizing the piece, I will let its author do the talking for me.  Accordingly, here is a statement from the Bishop about his publication:

“Seven years into his addiction to online porn, John wrote to tell me of his struggles. His addiction began when he misspelled a word in an online search and was taken to a hardcore porn site. When I received his letter, he was nineteen. If anything, his exposure to pornography at the age of twelve was later than some: studies reveal our children’s first exposure is even younger.  With the release of Fifty Shades of Grey, I wonder what we are saying to John and his female peers. I wonder what our decision to objectify women in situations of sexual violence—and to support the industry which fuels it—says about us and about our society? Though by the entertainment industry’s standards this movie is not classified as pornographic, it normalizes the intertwining of sex and violence, that old pornographic standby.

I have not had the privilege of a sheltered life. As a young priest and campus minister in the ’70s, I saw the early fruit of the sexual revolution: broken relationships, devaluation of sexual union, and rising divorce rates. In the lives of those I served, I saw prolonged adolescence, rising numbers of fatherless children, more addictions, and isolation. I listened, counseled, and tried to listen some more. With the dawn of the Internet, we awoke almost overnight to new dangers. Men began to chase online fantasies through progressively more explicit images, ones in which men were violent and controlling of female subjects. Virtual fantasies now broke apart real marriages, careers, and families. Wives stumbled upon their husband’s online history. Young adults lost their jobs viewing porn online at work. Children imitated what they saw in adults and began “sexting” one another—the end result of which was suicide in several cases.

By the mid-2000s, I was fed up with the silence surrounding this issue. In 2006, I wrote Bought with a Price, a pastoral letter aimed at empowering men and women to protect themselves and their children from porn. Since publishing that letter, I have been welcomed into many lives. Victims and addicts often share their stories with me—through letters and conversations. So too, many have confided their stories of hard-won freedom in overcoming addiction. With each new victim’s face, name and story, I find the $97-billion-a-year global porn industry less anonymous. The Internet and cable TV providers—the “white collar pornographers” who guarantee 24/7 access to porn in our homes—strike me as more culpable. It troubles me that many adults will watch Fifty Shades of Grey. My greater concern, though, is for the children like John whose entire moral ecosystem will be marred by the cultural mainstreaming of porn. I suppose we have the option of shrugging our shoulders, ignoring it, or cracking a joke. But I challenge every adult to reflect on this cultural moment from the perspective of a father or mother of young children.

Anyone listening to Pope Francis has heard his call to resist unjust social conditions and go to the margins: to the poor, weak, and defenseless in our “throwaway culture” marked by a “globalization of indifference.”

At the margins, I see twelve-year-old John fighting an addiction he did not seek. I see our daughters and sisters and wives viewed as objects for pleasure, victimized, and even trafficked. And I see a predatory porn industry that is nothing short of euphoric over these developments.

“There’s a greater sense of optimism,” a leader in the porn industry was quoted as saying earlier this year. “I believe the companies that have stood the test of time . . . have figured out a way to stay viable. I would say it’s a new era for the industry.”

It is most certainly a new era. The time has come to join our children at the margins and to defund the industries that prey so viciously and unjustly upon them.

The choice before us is stark. It is anything but grey.”

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