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Archive for the tag “protection”

Title VII’s Religious Organization Exemption Protects Salvation Army

This is from religionclause.blogspot.com which you can find here:

In Garcia v. Salvation Army(D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile
work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII’s religious organization exemption applies to plaintiff’s claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

You can learn more about this issue here.

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NBI Seminar: Family Law From A to Z – Roundup

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Listed below is the complete list of the materials I wrote for my portions which can be read here on this blog.

Thanks!

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Company Settles With EEOC Over Firing of Seventh Day Adventist

This is from religionclause.blogspot.com which you can find here:

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC’s suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

You can learn more about this issue here.

 

Church’s RLUIPA Claim Dismissed, But Defamation Claim Moves Forward

This is from religionclause.blogspot.com which you can find here:

In Riverside Church v. City of St. Michael, (D MN, Aug. 31, 2016), a Minnesota federal district court dismissed a church’s RLUIPA and free exercise claims, but allowed the church to proceed on its free speech and defamation claims. A Christian and Missionary Alliance congregation attempted to purchase a building formerly used as a movie theater but could not obtain city zoning approval.  Eventually the city amended its zoning ordinance to allow religious assemblies, among others, in the relevant zoning district.  The Church however sued over the past zoning denials, and over an allegedly false public statement the city made as to why the Church withdrew from negotiations with the city.  In dismissing the Church’s RLUIPA claim, the court concluded that neither the substantial burden nor equal terms provisions of the law were violated.  The court also pointed to a less-often used safe-harbor provision in RLUIPA that allows the city to “avoid the pre-emptive force” of the statute by taking action to eliminate the substantial burden imposed by a policy.  In allowing the Church’s free speech claim to proceed, the court concluded that questions remained as to whether the ban on religious assemblies in the relevant zoning district was narrowly enough tailored to the city’s traffic safety concerns.

You can learn more about this issue here.

NBI Seminar: Ethics

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Ethics.”

Thanks!

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 Client/Lawyer Relationship

The client/lawyer relationship in a family case is unlike that relationship in any other case.  A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life.  A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these.  When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life.  As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.

There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case.  Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider.  For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value.  Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse.  Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).

Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues.  A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms.  The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items.  Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.

Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation.  Understandably, clients become extremely emotional when dealing with the custody of their children.  Sometimes clients simply cannot accept that the other parent has entered into a new relationship.  Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have.  Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent.  It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view.  The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client.  It often takes more than mere legal analysis to help a client recognize what is best for his children.

Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes.  A child will take with him for the rest of his life how his parents interacted with him and with one another.  Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely.  So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.

Attendance at Client Conferences by Friends or Family of Client

The Rules of Professional Conduct apply to family cases just as much as they do to other sorts of cases; therefore, Pa.R.P.C. 1.6 applies.  Pursuant to Rule 1.6 a client is entitled to lawyer/client confidentiality.  Given this, then, it is important to be cognizant and vigilant as to who is permitted into a conference with the client.

As with any case, certain factors need to be considered before allowing a third party into a client conference: (1) does the client give permission to have the third party in the room?; (2) will the client provide compromising information that could be drawn from the third party at a hearing (and unprotected by lawyer/client confidentiality); and, (3) could the third party be an adverse party?

As a threshold matter, the client must grant permission for anyone to be present at any conference.  The presence of a third party serves as a waiver of confidentiality, and, generally speaking, only the client can waive lawyer/client confidentiality/privilege.  The other factors listed above are tactical in nature.  Once the confidentiality/privilege is waived, the third party could be called as a witness and examined at a hearing as to what the client said in what was believed to be a private meeting.  Obviously, this could serve to severely handicap a case if certain issues come to light that otherwise could have remained in confidence.  Finally, it is not uncommon for a third party – such as a grandparent – to seek custody of a child.  The client and his parents may be allies when a case begins, but life is unpredictable and the relationship between a client and his parents could deteriorate, leading to the grandparents seeking custody themselves.  As a result, an adverse party has had direct and intimate access to confidential lawyer/client communication and information which could be used against the client.

Finally, a person who finds himself in a custody case is often in a compromised position in his life.  In other words, sometimes a person who is very young and/or financially insecure and/or still living with his parents and/or frightened or scared or at a loss as to what to do, has a child.  Such a person reaches out to the people in his life, say his own parents or his new girlfriend or wife, or what-have-you, for advice, counsel, and/or moral support.  While this is perfectly natural and in most situations a good thing, it is important to be attentive to undue influence over the client from these third parties.  It is getting increasingly common in our post-modern culture for grandparents to have a significant role in the raising of grandchildren.  An attorney has to ensure that the goals being sought, and the arguments being made, and the tactics employed are the ones the client wants (with the attorney’s guidance and advice of course), and not the goals, arguments, and tactics the third party wants.  Obviously, a client will be influenced by all of the voices in his life, but the attorney must ensure, as best he can, that the decisions made by the client are his own and not merely those he is pressured into by third parties.

Attorneys’ Fees

An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client.  This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.

The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client.  Obviously there are no contingency in custody matters either.

Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.

Communication With Adverse Party

Communication with an adverse party, if represented, is like any other sort of case.  Communication ought to be timely, civil, and professional.  When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues.  While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests).  As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.

Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party.  It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party.  A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters.  It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client.  So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney.  The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment.  Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client.  Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.

Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed.  As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.

Malpractice Concerns

Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board.  All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct.  The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.

When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board.  Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline.  As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.

The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation.  This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.

In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.

The potential discipline an attorney could receive is either private or public.  Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment.  A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management.  A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.

A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline.  Public discipline is typically imposed after a hearing.  Public discipline can only be imposed by the Supreme Court of Pennsylvania.  If an attorney is disbarred, the attorney cannot practice law at all in any way.  A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar.  Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential.  Another public discipline is suspension.  While suspended, an attorney cannot practice law.  Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply.  Finally, an attorney may be publicly censured.

The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.

As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision.  Instead, the Counsel allows for an internal review process which can be requested by a Complainant.  If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.

It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.

What is the purpose of our economic activity?

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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Based on a talk given at
The American Chesterton Society Conference
5 August, 2016
When we look at the economic conduct of mankind and ask ourselves why the human race engages in such activities, I suppose that everyone would admit that we do so in order to produce goods and services for our use. So far, so good. But I submit there are two contrasting ways of looking at this activity and the products that result from it. This contrast can become clear if I juxtapose two quotations that exhibit two very different attitudes toward the economic activity of mankind. The first is from St. Thomas Aquinas, who wrote that “…the appetite of natural riches is not infinite, because according to a set measure they satisfy nature; but the appetite of artificial riches is infinite, because it serves inordinate concupiscence….” (1) St. Thomas was here contrasting real economic goods – “natural riches” – with “artificial riches” – money and other surrogates for real wealth. The former serve us, they “satisfy nature,” and we desire only enough of them as we can reasonably use, for there is only so much stuff which any person can actually use, and if we acquire more than that, we must resort to devices such as renting storage bins in order to keep our extra and unnecessary possessions, something which in St. Thomas’ time happily did not exist. But even in the thirteenth century it was easier to store up money than actual physical things, and today this is incomparably easier, since bank statements and stock certificates take up very little space. But these sorts of goods can serve “inordinate concupiscence,” for there is a constant temptation to acquire and retain more than we really need or that can possibly serve any genuine human need.

My second quote is from the late Paul Samuelson, winner of a Nobel prize in economics, who wrote

An objective observer would have to agree that, even after two centuries of rapid economic growth, production in the United States is simply not high enough to meet everyone’s desires. If you add up all the wants, you quickly find that there are simply not enough goods and services to satisfy even a small fraction of everyone’s consumption desires. Our national output would have to be many times larger before the average American could live at the level of the average doctor or big-league baseball player. (2)

Here we have two opposed conceptions of the purpose of economic activity, one which is focused primarily on what is natural to humanity, which fulfills human needs, and the second which deliberately abstains from any moral consideration of human desires. If someone wants something, that’s all that matters. The economy exists to satisfy any and all desires.

Now I should note that Aquinas is not asserting that it’s only our basic needs for food or shelter or clothing that are natural. The purposes for which we need material goods can be broadly divided into two parts: first, the absolutely necessary goods, sufficient food, water, shelter, to keep the human race alive. But if we stopped there we would be like ants or bees. They also engage in work to provide for themselves these necessities of life. Human beings, however, are rational animals, that is, our capacities surpass the merely material level, and hence for us a proper human life is not limited simply to survival. We need objects of beauty, music, books, even, in some measure, devices and inventions that make life easier or save time and effort. Without these a properly human life is impossible or difficult. But all the same, St. Thomas sets up human nature as the standard against which man’s economic activity must be measured, whereas Samuelson simply takes each and every demand for a good or service as a given.

I trust I don’t need to belabor which of these two attitudes toward economic activity and material things ought to characterize a Christian, whether Catholic, Protestant or Orthodox. Holy Scripture itself is quite clear on this point:

…if we have food and clothing, with these we shall be content. But those who desire to be rich fall into 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)

In Centesimus Annus St. John Paul II speaks of “the right to possess the things necessary for one’s personal development and the development of one’s family” (no. 6). And in the same encyclical he writes in another passage (no. 36),

It is not wrong to want to live better; what is wrong is a style of life which is presumed to be better when it is directed toward “having” rather than “being,” which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself.

Now I realize that it’s not always easy to say how much is “necessary for one’s personal development and the development of one’s family.” In fact, there is apt to be disagreement about what is a reasonable standard that satisfies nature. And to some extent such disagreement is to be expected, for it’s impossible to calculate such a standard with mathematical exactness. But the important thing, and certainly the first thing to do, is to recognize that mankind’s economic activity and the products that result therefrom do have a purpose, to “satisfy nature,” and not to satisfy simply any and every desire prompted by the wish “to spend life in enjoyment as an end in itself,” so that everyone can live in the manner of a major-league baseball player. At some point, any sensible person will have to admit that the needs of nature have been satisfied, and that anything beyond that is simply excess.

Now, If we accept what I have said so far, what logically follows? We can apply the teaching of St. Paul and St. Thomas and St. John Paul not only to individuals and families, but also to societies.  I am aware that many individuals and families do seek in some degree to acquire and use material goods according to these stipulations and warnings. In a society such as ours this is not easy to do, and, as I just said, it’s often very difficult to decide what is a reasonable standard of living that will satisfy nature, especially since American society can make it difficult to live a countercultural life. In this regard I will note only two things.

First, as Benedict XVI wrote in his encyclical Caritas in Veritate (no. 37), “every economic decision has a moral consequence.” Since the kinds of stores we patronize, the kinds of products we buy and use, have consequences that are both economic and environmental, therefore they have both moral and spiritual consequences for each of us. Someone who desires to “live at the level of the average doctor or big-league baseball player” is making decisions which not only have moral consequences but unavoidably shape that person’s soul according to a particular pattern. A lifetime of our economic decisions will determine whether we have shaped ourselves according to the image of Samuelson’s economic man or to the opposite pattern suggested by Holy Scripture and the writings of the saints.

Secondly, just as it’s very difficult for someone raised in a society saturated by pornography and sexual promiscuity to realize what a sane and healthy sexuality is, so it’s hard for us who were raised in a commercial society, a society which more or less makes riches and material goods an idol, to realize what a sane attitude toward work and material goods is. In both cases we have to strive, using all the means of grace available, to form sound judgments. But now I want to turn our attention to the question of society as a whole, that is, about how a society that seeks to orient its productive activity toward satisfying nature might conduct itself.

The following is a description, from Richard Tawney’s seminal book, Religion and the Rise of Capitalism, of the outlook of Medieval Europe toward work and material goods.

Material riches are necessary; they have a secondary importance, since without them men cannot support themselves and help one another; the wise ruler, as St. Thomas said, will consider in founding his State the natural resources of the country. But economic motives are suspect. Because they are powerful appetites, men fear them, but they are not mean enough to applaud them. Like other strong passions, what they need, it is thought, is not a clear field, but repression. There is no place in medieval theory for economic activity which is not related to a moral end, and to found a science of society upon the assumption that the appetite for economic gain is a constant and measurable force, to be accepted, like other natural forces, as an inevitable and self-evident datum would have appeared to the medieval thinker as hardly less irrational or less immoral than to make the premise of social philosophy the unrestrained operation of such necessary human attributes as pugnacity or the sexual instinct.

And he continues with his description of medieval economic ethics:

At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs. It is right for a man to seek such wealth as is necessary for a livelihood in his station. To seek more is not enterprise, but avarice, and avarice is a deadly sin. Trade is legitimate; the different resources of different countries show that it was intended by Providence. But it is a dangerous business. A man must be sure that he carries it on for the public benefit, and that the profits which he takes are no more than the wages of his labor. (3)

And another historian wrote along similar lines,

We can, therefore, lay down as the first principle of mediaeval economics that there was a limit to money-making imposed by the purpose for which the money was made. Each worker had to keep in front of himself the aim of his life and consider the acquiring of money as a means only to an end, which at one and the same time justified and limited him. When, therefore, sufficiency had been obtained there could be no reason for continuing further efforts at getting rich,…except in order to help others. (4)

The questions I’d like to consider now concern how a truly Christian society would implement these ideals. Many people, certainly most Americans, would think that adherence to such standards must be something purely voluntary. At most, the Church would seek to persuade people of its desirability via her preaching and catechesis. And certainly that is the first thing to be done, to create a social consciousness that the pursuit of riches beyond what one needs is both criminal and stupid. Criminal because it helps create a society that upholds false ideals and corrupts all of our souls, stupid because it detracts from what life in this world is about, and above all, because it makes more difficult our attainment of eternal life. I am not asserting that it is a sin simply to be rich, but I do assert that riches are almost always a near occasion of sin, and therefore we’d better be pretty sure we have a genuine justification for our riches. And especially do we need a very good justification for seeking more riches if we already have enough so that the demands of nature are satisfied.

But there is more. You’ll notice what Tawney said in the passage I just quoted, “At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs.” A Christian society will not be content to simply use moral persuasion in order to correctly orient out attitude toward work and material goods. If nothing else, such a society will make it rather hard for someone to get rich. It will certainly do nothing to facilitate such acquisition of riches, and it will try to structure its laws, tax code and general economic arrangements so that it is easy to earn enough to support one’s family, but hard to do more.

Many are familiar with the taxation scheme suggested by Hilaire Belloc in his 1936 book, The Restoration of Property, according to which any enterprise which exceeded a certain size would be taxed at such a high rate that no one would expand his business beyond a modest size. I know that many people have an instinctive violent reaction against such proposals, but those who do should ask themselves a couple questions. How is this an unjust restriction? How is anyone’s true good harmed by such laws? Until recently we as a society in the United States saw this clearly with regard to that other great human appetite, sexual satisfaction. Within the lifetime of many of us divorce was in most states difficult to obtain, pornography was strictly regulated or even prohibited, homosexual activity illegal. And laws on the books even forbade adultery, even if they were rarely enforced. Even today prostitution is illegal in nearly every state.  We justified these restrictions by saying that such activity was contrary to both the natural law and the revealed law of God, harmful to individuals and to the social order, and that therefore the free choices and desires of individuals could justly be limited in such matters.

If we are serious about conforming our lives to the norms of morality with regard to money and property, the same argument applies: “those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction.” The disordered striving after riches is as hurtful to the common good as is the disordered striving after sexual pleasure.  Both material wealth and sexual pleasure are true goods, but they are goods only in their rightful places. No one’s genuine freedom or legitimate rights are infringed upon if the pursuit of wealth is hindered and directed toward legitimate channels, even by use of state power, just as no one’s genuine freedom or legitimate rights are infringed upon by legal restrictions on disordered sexual behavior.

There is a wonderful quote from G. K. Chesterton in What’s Wrong With the World that juxtaposes so well these two areas of human behavior.

I am well aware that the word “property” has been defiled in our time by the corruption of the great capitalists. One would think, to hear people talk that the Rothchilds and the Rockefellers were on the side of property. But obviously they are the enemies of property; because they are enemies of their own limitations. They do not want their own land; but other people’s…. It is the negation of property that the Duke of Sutherland should have all the farms in one estate; just as it would be the negation of marriage if he had all our wives in one harem. (5)

If it is proper to prevent the Duke of Sutherland from obtaining all of our women as his wives, why is it not proper to prevent him from obtaining all the property as his own?

Let me go one step further, or one level deeper, in our exploration of this topic. Most people who would object to what I just said about the use of social or legal power to restrict our acquisitive appetites, would object, I think, because, usually unknowingly, they hold an idea about social or political authority which is grounded not in classical philosophy or Holy Scripture, but in the Enlightenment of the 18th century, most notably in the writings of John Locke. Government, according to this notion, is merely a necessary evil, necessary because of mankind’s tendencies toward anti-social conduct. “If men were angels,” wrote James Madison in Federalist no. 51, “no government would be necessary.” Implicit in such a notion is the idea that man’s natural state is a-social, and that every restriction we accept as part of living in society is a restriction on our natural freedom, justified usually by the benefits which sociey brings, but still, something essentially unnatural, something which inhibits our natural freedom. Most political discourse in the United States, of both liberals and conservatives, simply assumes such an understanding of freedom and society.

Here again, though, we find Thomas Aquinas teaching a different view. In the Summa Theologiae (I, q 96, art 4) he asks whether there would have been subordination of man to man in the state of innocence, i.e., without Adam’s fall into sin. And he answers his question clearly, saying Yes.  Although there would not have been the domination (dominium) characteristic of the slave (servus), who is “ordered to another,” there would still have been the kind of subjection proper to the free man, when someone directs him to his own good or to the common good. And the primary reason given by Aquinas for this is because man is “naturally a social animal” and “social life cannot exist unless someone presides who aims at the common good.” In other words, according to Aquinas, even if our first parents had never sinned and lost the state of original justice, we still would have required a sort of government, a government that would not have needed to punish anyone, but was still there to coordinate and direct our efforts toward the common good.

I submit that this difference between St. Thomas and Locke manifests the fundamental error of almost all political discourse in the Anglo-Saxon world, especially the United States. But Locke is simply wrong: man is by nature a political animal, our natural state is one of community, with all the necessary restrictions that such community requires and implies. This is not to justify tyranny or to deny that personal political freedom is a good, but it is to insist that such political freedom is far from the highest political virtue.  Justice is more important than freedom, and in fact, any understanding of freedom which regards it as primarily the right to do anything which one pleases, is a disordered understanding. Just as marriage vows do not limit our true sexual freedom, but actually allow for human sexuality to flourish in proper freedom, so society, including government, is not a restriction on man’s legitimate freedom, but the precondition for a true flourishing of such freedom. We do not trade a certain amount of freedom for a certain amount of security, as in the Lockean myth of the social contract, but we are placed by God and nature into society, without which freedom would be a meaningless exercise in randomness.

As a result, then, if a society attempts to channel its economic activity toward the common good, it in no way infringes on real economic freedom. Rather it provides the necessary means by which economic activity can attain its true end: not the goods and services that satisfy everyone’s consumption desires, but the appetite for natural riches which according to a set measure satisfy nature. This is true Christian wisdom, this is the teaching of the Church, the command of Holy Scripture, and the sure way toward our eternal salvation.

Notes:
(1) Summa Theologiae, I-II, q. 2, a. 1 ad 3.

(2) Microeconomics, 17th ed., 2001 p. 4.

(3) Richard H. Tawney, Religion and the Rise of Capitalism, New York, 1926, pp. 31-32.

(4) Bede Jarrett, Social Theories of the Middle Ages, pp. 157-158.

(5) Part I, chapter 6.

Moorish-American Religious Defense To False Identity Charge Fails

This is from religionclause.blogspot.com which you can find here:

Thomas v. Commonwealth, (VA App., Aug. 16, 2016), involved an appeal by defendant of his conviction for providing a law enforcement officer a false identity with intent to deceive.  Defendant, who was driving with a suspended license, told police during a traffic stop that his name was “Barry Thomas-El.” Police were unable to locate information on anyone with that name from the Department of Motor Vehicles, and only later identified him as “Barry Nelson Thomas, Jr.”  At the trial court level, defendant attempted to raise a religious free exercise defense, arguing that use of the suffix “El” was an exercise of his religious beliefs as a Moorish-American national. The trial court excluded evidence relating to this defense.  The Virginia Court of Appeals affirmed, largely on procedural grounds, saying in part:

At the motion in limine hearing, appellant’s counsel argued that adding the suffix “El” to appellant’s name was an act of free exercise noting his “rebirth” within the Moorish American community…. However, appellant’s counsel failed to properly proffer what appellant’s testimony would have been at trial.

The court also upheld the trial court’s exclusion of several documents relating to defendant’s claim of Moorish-American citizenship, saying:

As the documents are political, rather than religious, in nature, they lack any tendency to make the existence of a religious imperative more or less probable. As such, they are irrelevant and thus not admissible.

You can learn more about this issue here.

NBI Seminar: UCCJEA: Uniform Child Custody and Enforcement Act

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “UCCJEA: Uniform Child Custody and Enforcement Act.”

Thanks!

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Parents and children are more mobile than ever.  It is not uncommon for parents and children to live and move to various states over the course of the life of a custody order.  The Uniform Child Custody Jurisdiction and Enforcement Act (23 Pa.C.S.A. §5401 et seq.) was adopted as a way to address and deal with the various pitfalls can afflict a custody case.  The UCCJEA is now the law in 49 states, Washington D.C., and various territories (Massachusetts is the only hold out).

The UCCJEA is divided into four basic parts.  The first part consists of the general provisions (e.g.: definitions).  The second part deals with jurisdiction.  Part three regards enforcing out-of-state custody orders.  Finally, the fourth part contains miscellaneous provisions.

The purpose of UCCJEA is, in large part, to determine the proper forum for almost any custody matter between two states (or, even, a state and another country) and to ensure only one state can actually have jurisdiction.

Jurisdiction attaches to the state that is determined to be the “home state” of the child(ren) at issue.  The “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the case (if the child is less than six months old, then the state the child has lived in since birth).  If the child has not lived in a state for six months, then the home state will be the state which has “significant connections” with the child and at least one parent or, absent that, “substantial evidence concerning the child’s care, protection, training, and personal relationships.”  Mere physical presence, however, is not required or sufficient to make a custody determination.  Standard notice requirements apply to cases under UCCJEA.  If there is another action already pending in another jurisdiction when the Pennsylvania action is initiated, then Pennsylvania may not exercise jurisdiction over the matter unless the other action is terminated or stayed.  A basic principle one can take from the UCCJEA is that a non-“home state” must defer to a “home state.”

Of course, if more than one state has significant connections and substantial evidence, then the courts in the two potential state jurisdictions are to communicate with one another to determine which state has the most significant connections to the child.  When the courts interact with one another, the parties have a right to submit arguments and facts to the courts regarding their preference of jurisdiction and, at the courts’ discretion, the parties may also participate in their communication.  A record of this communication, regardless of the participation of the parties, must be created and kept.  As part of the cooperation between the two states, a Pennsylvania court is empowered to request assistance from another state to hold hearings, order the production of evidence, order an evaluation, copies of transcripts, and/or the appearance of a party.

A Pennsylvania court may decline to exercise jurisdiction if it is determined that it is an inconvenient forum.  In order to determine whether it is an inconvenient forum, the court must first consider whether a court from another state would be more appropriate according to the following factors (as quoted from 23 Pa.C.S.A. §5427(b):

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this Commonwealth;

(3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;  and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

If it is found that jurisdiction was assumed by Pennsylvania due to the unjustifiable conduct of a party, then the court has authority to revoke jurisdiction and assess the party which engaged in unjustifiable conduct, expenses, costs, attorneys’ fees, and the like.

Once jurisdiction is established, that state has exclusive and continuing jurisdiction until circumstances change.  The first way circumstances change is if (1) the child and a parent no longer have significant connection with the state and evidence to make a custody determination is not available in that state or (2) a state court determines that neither the child nor either parent reside in the state any longer.

An example of #1 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware.  The father remains in Pennsylvania.  The children maintain a significant connection with Pennsylvania through regular and frequent visits with father there.  At some point, father seeks to modify the custody order and files a petition to modify in the same jurisdiction as the original order (i.e.:  Pennsylvania).  In response, the mother attempts to transfer jurisdiction of the case to Delaware.  The UCCJEA, which is designed in part to prevent forum shopping, would serve to prevent the transfer sought by mother by its protection of an issuing court’s jurisdiction unless no parent resides in that state.

An example of #2 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents’ divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware while the father moves to New Jersey.  As no parent lives in Pennsylvania, it no longer has exclusive or continuing jurisdiction to modify its own custody order.  Instead, the state where the children reside with at least one parent would likely have jurisdiction.

Once a custody order is entered pursuant to the UCCJEA, a Pennsylvania court is empowered to enforce it and the UCCJEA provides procedures to register a foreign order in Pennsylvania (see 23 Pa.C.S.A. §5445 et seq) .  Of course, the other party has a right to contest the validity of the order that someone tries to register in Pennsylvania, and has twenty days to file a petition contesting after being served notice.  Once registered in Pennsylvania, the courts of Pennsylvania can enforce it as they enforce any other custody order.  The UCCJEA allows for expedited enforcement of a custody determination (23 Pa.C.S.A. §5448) upon petition by one of the parties.  The petition requires representations as to jurisdiction.  A hearing is ordered as soon as possible (“the next judicial day after service of the order unless that date is impossible.”)  A successful petition may result in attorneys’ fees, expenses, and costs to be assessed the opposing party.  Finally, pursuant to 23 Pa.C.S.A. §5451, a party may petition for the issuance of a warrant to take custody if there is immediate danger to the child or immediate risk of removal to another jurisdiction.  If granted, such a petition empowers law enforcement authorities to seize the child for the petitioner from the other party.  The process to secure a warrant also carries with it the potential for an order of attorneys’ fees, expenses, and costs to be assessed the opposing party.

Of course, a state which does not have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection.  Pennsylvania can invoke emergency jurisdiction if a child has been abandoned or needs immediate protection (or the sibling or a parent of the child needs protection).  Once the emergency order is entered, the court determines if there is an existing order from another state and, if so, the emergency order must allow time for the parties to return to the state with jurisdiction.  The emergency order will remain in effect unless and until the “home state” enters a custody order.  If there is already an order in another jurisdiction, or a custody action already started in another jurisdiction, then an emergency order in Pennsylvania must provide the parties a period of time to secure an order from this other state else the emergency order remains in effect.  Upon being informed of the other state’s potential jurisdiction over the emergent matter, the Pennsylvania court must communicate with the court of the other potential jurisdiction.

EEOC Sues Over Firing of Muslim Employee

This is from religionclause.blogspot.com which you can find here:

The EEOC announced this week that it has filed a Title VII religious discrimination lawsuit against KASCO, a St. Louis-based company that manufactures and sells butcher supplies and meat processing equipment. The press release explains:

According to EEOC’s lawsuit, Latifa Sidiqi had worked for KASCO since 2008, most recently as a buyer. After she began more seriously practicing her religion in 2012, a supervisor and others began making derogatory comments about her fasting during Ramadan, wearing a hijab, and her native country, Afghanistan. The agency charged that Sidiqi was fired during Ramadan 2013 because of her religion and national origin, and because she complained about her supervisor’s treatment.

You can learn more about this issue here.

American Airlines Flight Attendants To Appeal Facebook Harassment Ruling

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “American Airlines Flight Attendants To Appeal Facebook Harassment Ruling,” in Savvy Stews b published on September 2, 2018, which can be found here.

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We’ve all read company policy regarding employee conduct on social media sites. Although one would assume that these policies are there to put a stop to and even prevent workplace bullying, they are only useful if companies enforce them.

In a blow to two American Airlines flight attendants this week, Judge Eduardo C. Robreno ruled that the evidence of workplace bullying and harassment brought forth by flight attendants Melissa Chinery and Laura Medlin was insufficient and untimely. The harassment was also experienced by several additional women who issued affidavits but were not part of the lawsuit itself.

The worst part, American Airlines didn’t do a thing to stop it in the first place.

“The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem” – Chinery

Faye Riva Cohen, the law firm that represents the plaintiffs, issued the following statement:

“We are disappointed by the Judge’s decision.  Our clients were victims of gender-based discrimination. Given the unique nature of social media, the harassment our clients experienced was all-pervasive and impossible to escape. We believe that the Judge failed to adequately consider the power of social media and its impact on the workplace.

Additionally, we believe that American Airlines acted improperly. American Airlines maintains a social media policy that is used to police the online conduct of its employees. Nevertheless, American Airlines failed to take our clients’ complaints seriously. Until employers treat online bullying with the severity that it deserves, women will continue to be at a disadvantage in the workplace. Our clients are weighing their options to appeal the decision.”

Ms. Chinery shares, The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem. No apologies from anyone, just an escalated attack.”

RINGLEADER EMBOLDENED BY RULING

Jim Brown, one of the flight attendants accused of the harassment, began gloating on Facebook immediately following the judge’s ruling. He may have spoken too soon since the plaintiffs are planning to appeal the judge’s decision which could legally expose him and American Airlines.

Jim Brown, accused of harassment, has been given cushy positions in the Purser program and others.

In his deposition, Jim Brown admitted to sending a complaint to the company about Chinery that he thought would be anonymous. He also admitted fabricating a story regarding referring to Chinery as “flipper” (slang for “whore”) “to cover my tracks by creating another post and a fake person” (from Brown’s deposition). Despite lying about his words, Brown remains a member of several committees and in the training department and to date has not been investigated. He continues to publicly post on social media, on the day of Judge Robreno’s ruling, saying he was, “Feeling delighted… My message is about Karma working it’s [sic] judicious magic!”

BROWN-NOSING HAS ITS PRIVILEGES?

American Airlines has yet to investigate the harassment claims internally and the men named in the lawsuit remain on special projects, in training positions, and continue to be rewarded with promotions as they are paid and deployed to publicize company messaging to their coworkers. Rewards even included invitations to the wedding of American’s Chief Financial Officer, creating the appearance of special treatment and selective enforcement of company policy.

One may wonder who is responsible for the selection of these individuals to serve in special assignment and training positions. What consequences may they eventually face?

ONLINE WORKPLACE HARASSMENT GROWING PROBLEM

There is a lawsuit against United Airlines for failing to intervene in a pilot’s harassment of a flight attendant. American’s failure to put a stop to the bullying that took place against Ms. Chinery may eventually end up opening a Pandora’s box of liability for the carrier as others step forward to share their experiences and American’s lack of support.

In his memorandum, Judge Robreno writes, “Medlin details only a handful of instances of alleged sexual harassment between 2012 and 2015…including…the general use of sexually-oriented profanity.” Judge Robreno further stated that “insults in the workplace do not constitute discrimination ‘merely because the words used have sexual content or connotations.’” Judge Robreno also contends the alleged harassment was not physically threatening despite the litigants having complained to American Airlines about threats of physical harm.

THEY GANGED UP

Jim Brown wasn’t the only one allowed to get away with behavior that conflicted with the American Airlines social media policy:

[From evidence submitted to the court]

Rick Haskins, a male flight attendant, writing regarding coworkers who voted against a union contract proposal, “Those sixteen people should be shot.”

Daniel Datzer another flight attendant wrote, “I do not respect the 51 percent…… And I NEVER will…. Clowns, fools, morons… This will drastically come back to bite them in their uneducated, bilious, petty, small-minded, redneck lazy tired asses…. I will NEVER stop asking how people voted each time I fly and they will be treated accordingly… This is not a joke…. My anger and deep seated frustration WILL have a place to go… Directly at the enemy. I will maintain the level of professionalism that I have for myself…. But make no mistake…. They will know my discontent and pure disgust at their selfish inhumane actions… And it will NOT be cozy for them….I have this fantasy where the 49 percent goes off and forms its own base…… Because frankly, that is the only way the 51% are going to be able to escape what is coming.”

Victor Dunson wrote, “this is war… If you f**k with my friends you f**k with me and I don’t like being f**ked with: (.”

Judge Robreno also contended in his ruling that “Datzer used coarse sexual language” but that it “does not amount to severe or pervasive sexual harassment.” a picture of a “bedazzled vagina,” repeatedly used the word “c**t,” called a coworker a “sow,” referred to coworkers as “harpies and shrews,” and wrote “have any of them LOOKED in a mirror? Tuck your shirt in fat ass… Fix your hair… How bout a tie? A little lipstick?”

AMERICAN DID NOT LIFT A FINGER

Ana Burke-Leon, AA Human Resources

Despite the legal ruling, according to its policies, US Airways / American Airlines failed to follow its own rules and did not investigate multiple complaints brought to Human Resources by many women. Ana Burke-Leon, AA Human Resource Specialist, tasked with examining Chinery and Medlin’s claims states in her deposition, “Discrimination, unlawful harassment and retaliation in the workplace will not be tolerated.”  She stated the policy included derogatory posts, jokes, letters, e-mail or graffiti that denigrate or show hostility toward an individual or group based on but not limited to race, color, religion, gender, or gender identity.

FROM THE DEPOSITION OF AMERICAN’S HUMAN RESOURCE SPECIALIST, ANA BURKE-LEON

If ever there was an instance to back up employee mistrust in human resource departments, the responses given by American’s HR representative to questions from the plaintiff’s attorney would justify their suspicions.

In her deposition, Burke-Leon repeatedly evades the questions brought forth by Chinery and Medlin’s counsel about whether or not the “c-word,” when used by a male employee to refer to a female employee, would be tolerated:

 Q. Do you consider the word, the use of the C-U-N-T to be an epithet, derogatory comment or slur?

A. Yes.

Q. What’s your understanding as to what that word means?

A. It’s a derogatory word used to describe a female.

Q. So if a male employee refers to a female employee as —

A. You can say it. I understand.

Q. I will say the “C” word. If a male employee refers to a female employee as the “C” word, does that fall within these bullet points list of the type of conduct that will not be tolerated?

A. It will depend on the context. It would depend on if it’s directly related or specific name, a person is involved. It will depend on the context.

Q. If a male employee refers to a female employee as the “C” word, do you consider that to be a derogatory comment?

A. It depends on the way it’s stated. It depends on the content. It depends on the content.

Q. Do you consider a male employee referring to a female employee as the “C” word to be a slur?

A. A slur? I don’t know.

Ana Burke-Leon was tasked with interviewing one of the men named in the lawsuit but in her deposition says she did not because on the scheduled day of her flight to meet him, she “went to the wrong gate” and missed the flight. The matter was later looked into by another member of HR. Burke-Leon went on to say, “Daniel stated that his Facebook page was compromised and that he does not believe he made those comments.”

Another senior Human Resource investigator, Dan Cleverly, admitted under oath that he did not-at-all investigate Medlin’s harassment complaints and concerns. She repeatedly emailed him requesting assistance but was ignored.  When questioned, Cleverly’s response in his deposition was “Because it got lost in my shuffle.” That was towards the end of October. I went on vacation, Thanksgiving, Christmas crazy.”  The evidence provided by American Airlines revealed Cleverly’s apparent bias from personal notes to Burke-Leon where he referred to Chinery as “exhibiting a whole new side of crazy” when she attempted to follow up with him about her concerns. His response, when asked why he said that was “Because this was an overwhelming time.”

The harassment claims brought forth against Jim Brown, to this day, have not been investigated by American Airlines. In his testimony, Brown states he has not had any interviews regarding the complaints made against him. At least four women complained to HR about Brown’s harassment. The outcomes of such investigations would determine whether or not there would be disciplinary action, and, according to AA’s policies, if an employee were in violation, it “would not be tolerated.” How is it possible that American Airlines, for years, has ignored women who came forward to complain along with those who provided affidavits testifying that they witnessed harassment by Brown?

The complaints against Brown, Datzer, Allen, and others, date back to 2012 and continue through 2016.  Despite the claims, since that time, three of the men have been promoted to various positions that include lucrative “special projects” committee work and training positions. Flight attendants are required to requalify annually in training to ensure he or she meets the FAA and company requirements to maintain continued employment. Both women have feared retaliation and for their jobs as the men they have accused of harassment have been placed in positions of authority where they potentially can pass or fail them.

AN APPEAL MAY BE FORTHCOMING

“American offered me a monetary settlement, but this has never been about money. It’s about employees suffering when policies created to protect them are ignored or selectively enforced by the company. These colleagues should be held to the same accountability that everyone else is held to. People should never be rewarded for engaging in workplace bullying and harassment” says Chinery.

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