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Ron Paul on Employee Rights (Part 2): Unattractive Women Need Not Apply

January 16th, 2008 James Peters

This is the second in our series of posts based on Presidential Candidate Ron Paul's musings on employee rights in his book Freedom Under Siege. This installment's "Paulism" can be found on page 17 of the book:

The idea that the social do-gooder can legislate a system which forces industry to pay men and women by comparable worth standards boggles the mind...The concept of equal pay for equal work is...an impossible task.... By what right does the government assume the power to tell an airline it must hire unattractive women if it does not want to?

Mr. Paul's opinion that only attractive women should work as flight attendants is amusing, but it does bring up some employment law issues, both explicitly and implicitly.

Gender Identity Discrimination

As a general principle, it is not illegal in California to choose an attractive job candidate over a candidate who is equally qualified but unattractive, as long as this is the actual reason for the decision.

However, issues such as the person being unattractive because of a disability or the person doing the hiring would simply rather work with the less-qualified attractive woman than the highly qualified male applicant, discrimination claims become more of an option.

Another issue this brings up is known as "gender identity discrimination". Essentially, this refers to an employer refusing to hire or firing someone for not "acting like" their gender. For example, a woman who is not feminine enough is rejected for employment by Victoria's Secret or a man who acts too effeminate is terminated from his job as an auto mechanic.

This theory of gender discrimination is still fairly rare, but is much more common than it was even five years ago, especially concerning transgendered employees. The crux of the legal argument is that because adverse employment actions are taken against these employees because they are not conforming to the stereotypical behavior and appearance of their gender, these actions are taken because of their gender, thus making it gender discrimination.

There have been a few cases where employees have made arguments similar to Mr. Paul's hypothetical, but usually not successfully. For example, the 9th Circuit Court of Appeals recently ruled that female casino employees can be required to wear makeup even when their male counterparts are not.

Equal Pay for Equal Work

The undercurrent of Mr. Paul's quote, however, is its reference to "equal pay for equal work." This refers to the Equal Pay Act of 1963 ("EPA"), which is part of the Fair Labor Standards Act and says that, all other things being equal, women must be paid as much as their male counterparts in a company (and vice-versa).

Under Mr. Paul's view, an employer should be free to pay each employee whatever they wish for whatever reason they wish. While this makes sense when all employees are on equal footing when competing for jobs, it ignores the realities of the United States' (and the rest of the world's) ingrained discriminatory attitudes towards women.

The EPA was passed to curtail employer behavior based on outdated stereotypes of women. For example, paying women less because of an employers' belief that:

  • Women belong in the home and should be discouraged from entering the workplace;
  • Women will eventually quit once they "find" a husband;
  • Women will eventually leave to have babies; or
  • Women are inherently less qualified or less intelligent than men.

Study after study has shown that women are still paid less than men for doing the exact same job. The EPA was passed in an attempt to remedy this and since its passage the disparity in pay has substantially decreased.

However, when Mr. Paul wrote his book in 1987 the gap was much larger than it is today and blatant discrimination against women in the workplace was much more prevalent.

Conclusion

Apparently Ron Paul thinks bias against women is a perfectly good reason to make pay-level decisions. While he is entitled to his opinion, I am unable to understand how his supporters are more than 50% female.

At first I thought this was similar to his prior racist and homophobic rants, which are somewhat buried in history and do not get much coverage. However, this book is actually heralded by his supporters, including rave reviews by women.

I guess I just don't get it.

Table of Contents for This Series

  1. Ron Paul on Employee Rights (Part 1): Sexual Harassment-What's the Big Deal?
  2. Ron Paul on Employee Rights (Part 2): Unattractive Women Need Not Apply
  3. Ron Paul on Employee Rights (Part 3): Darn Those Pesky Civil Rights Laws

Ron Paul on Employee Rights (Part 1): Sexual Harassment-What's the Big Deal?

January 15th, 2008 James Peters

I have tried to tune out most of the political primary hysteria because I (1) made up my mind about who I would be supporting in the election long ago and (2) I live in California, so my opinion is not really that important at this stage.

Today I happened to stumble across some of Ron Paul's comments in Freedom Under Siege, a book (the link is to a 160 page pdf file of it) he published in 1987. Although I have heard in the past about racist, homophobic, intolerant, etc. comments he has made, I had not heard about some of the things he says about employee rights in this book.

I am neither a proponent of Ron Paul, nor am I an active opponent of his. I believe he has many great ideas, but like most people with a few great radical ideas, he also has a few radical bad ideas. These will be chronicled in a series of posts over the next few days. Originally this was going to be just one post, but the more I read this book, the more material I came up with.

"So-Called Harassment"

The first passage that jumped out at me is on page 17 of the book where he states the following about employees who are sexually harassed by their employers:

Why don't they quit once the so-called harassment starts? ...[H]ow can the harassee escape [any] responsibility for the problem? Seeking protection under civil rights legislation is hardly acceptable...pressure and submission is hardly an example of a violation of one's employment rights.

Mr. Paul apparently believes that employers should be free to demand sexual favors from their employees and then terminate them if they are refused. Clearly this viewpoint is offensive to women and is not going to be adopted by anyone other than the far-far-far-right wing of American politics, but it also defies logic from a pure policy standpoint.

Why Don't they Just Quit?

In Ron Paul's view, an employee who is sexually harassed should just walk down the street and get a different job. Apparently the employer's "punishment" is that the employee quits.

However, this ignores the reality that employees cannot just start a new job right away without suffering any damages. What if that employee left a good job to work for this new employer? What if the employee moved to take this job and it is the only company where she can practice in her field (e.g. the only hospital or school in the area)?

"Hardly" a Violation of Employment Rights

Take this hypothetical of a single mother who works hard at her job as a secretary to put food on the table for her children. She has a disabled child who needs frequent medical care and had to wait a full year to get coverage under her employer's health plan. She has received steady raises in her pay to where she finally has enough money coming in to pay her bills and feed her family.

One day, the owner of the company asks her into his office, closes the door behind her and asks her to have sex with him on the couch. She refuses and he says if she is not undressed and on the couch in thirty seconds she is fired.

Current Law

Under current law in both California and the rest of the United States, the employee could simply refuse her employer's advances and sue for lost wages and benefits (until she gets another, comparable position), emotional distress, punitive damages, costs and attorney's fees.

Not only does this serve to compensate an employee who is forced to go through such an ordeal, but it also acts as a deterrent because employers would expect to be sued if this happened.

Ron Paul's View

Apparently Ron Paul believes that in this example the employee has the "right" to quit on the spot and no longer provide services to the employer. However, the employer also has the "right" to demand sex from his employees and terminate them if they do not comply.

The employee is forced to choose between food, shelter and healthcare for her children and being degraded at the hands of her employer. At the instant she makes her decision the "right" decision is far from clear.

This type of scene already plays out far too often in the United States, but imagine if employers had absolutely no liability for taking these sorts of actions.

Conclusion

Sexual harassment laws were passed in large part to deal with the extreme difference in power between employers and their employees.

Employers can make their employees do virtually anything they want within the boundaries of the law, but society has decided that employees should not be forced to choose between being a sex slave and surviving financially or professionally.

Does Ron Paul seriously believe that employees should be forced to make this decision and employers who force them to should not suffer any consequences? If so, do the 10% of people voting for him the primaries agree with him on this?

Table of Contents for This Series

  1. Ron Paul on Employee Rights (Part 1): Sexual Harassment-What's the Big Deal?
  2. Ron Paul on Employee Rights (Part 2): Unattractive Women Need Not Apply
  3. Ron Paul on Employee Rights (Part 3): Darn Those Pesky Civil Rights Laws

Employers Must At Least TRY To Accommodate Disabled Employees

January 15th, 2008 James Peters

In the United States, employers must actively engage in an "interactive process" with disabled employees to try and find a "reasonable accommodation" for their disability, even if no such accommodation actually exists.

What is an "Interactive Process"?

What this means is if an employer knows one of their employees is disabled and they suspect that employee might need some sort of accommodation (e.g. ergonomic keyboard, wheelchair ramp, a chair to sit in while working, etc.), they must approach that employee and work with them to determine if such a reasonable accommodation exists.

The employee does not have to ask for an accommodation to be entitled to one, because many employees do not know their rights and that should not effect their entitlements under the law.

Additionally, if an employee requests an accommodation for their disability, the employer must work with the employee to either find a reasonable accommodation or determine that no such accommodation exists.

The employer cannot simply ignore the employee or deny the request because the accommodation requested is not feasible. For example, if an employee requests to telecommute and work from home as an accommodation, but the employer legitimately needs them in the office, then even though the requested accommodation might not be "reasonable," the employer is now under a duty to see if there is some other accommodation both sides can agree upon. If the employer simply says "no" and leaves it at that, then a violation has occurred.

California Takes this One Step Further

In California, if the employer refuses to engage in this "interactive process," the employee can sue based on this violation alone. This was the case in Wysinger v. Automobile Club of Southern California (Cal.App.Dist. 2 11/9/2007) No. B191028.

In Wysinger, the jury determined that (1) the employer failed to engage in the required interactive process, but also that (2) the employer did not fail to accommodate the employee's disability because no such accommodation was available. The employer appealed the decision, arguing that these two verdicts were inconsistent, because they were held liable for not working with the employee to agree on an accommodation that did not even exist.

However, the court upheld the award to the employee of over $2 Million, because the employer's failure to even respond to the employee's accommodation requests is a completely separate question and independent from whether an accommodation actually existed or was denied.

Employees must realize that they have a right to a reasonable accommodation for their disabilities at work and employers have to realize that they have to at least try to explore possible reasonable accommodations with an employee who is disabled.

Sometimes the "Decider" is Wrong

January 12th, 2008 James Peters

Let me first say that I rarely disagree with decisions by California state or federal appellate courts (at least those I am not personally involved in and therefore biased towards). However, I occasionally come across a case where I just think the court got it wrong.

In Mokler v. County of Orange, et.al. (Cal.App.Dist.4 11/26/2007), No. G036029, a former Orange County employee sued under several different claims, including sexual harassment of her by a county supervisor. While I agree with the court's decision on most of the issues presented by the case, I do disagree on their sexual harassment analysis and decision.

The Facts of the Case

Without going into too much detail, Ms. Mokler had to interact with Orange County Supervisors "on almost a daily basis" as part of her job duties, including Supervisor Chris Norby. Mokler introduced herself to Norby at a budget hearing in 2003 and he promptly asked her if she was married. When she said no, he called her an "aging nun". Mokler reported the incident to her supervisor, but he did nothing about it and actually told Mokler to "be careful".

Mokler next encountered Norby at a hotel where a political event was being held. Norby took her arm, pressed her body up against his and said "in a flirtatious manner: 'Did you come here to lobby me?'" Mokler responded that she was not there to lobby him and he asked "Why not? These women are lobbying me," gesturing to two women standing next to him. Norby continued to hold her body up against his, looked her up and down, and told her she had "a nice suit and nice legs". Mokler was finally able to push her self away from him and again went to her supervisor who again told her to "be careful" and further suggested she "needed 'to win him over'".

Mokler's final encounter with Norby occurred in his office. When she arrived, he put his arm around her and told her she looked "nice". He walked over to a large map on the wall and asked her where she lived. When she hesitated, he "demanded she provide her exact address." He put his arm around Mokler again and rubbed her breast with his arm until she pushed herself away from him and apparently a male co-worker interrupted them.

The Trial Court's Decision

The jury found in Mokler's favor on her sexual harassment claim against Norby, but awarded no damages to her for the claim. While uncommon, this does occur where an employee suffers no economic damages as a direct result of the harassment and they are unable to prove any emotional distress or other special damages. However, the trial court ultimately "entered judgment on this claim against Norby, but nonetheless declared him the 'prevailing party' and awarded costs in his favor."

In California sexual harassment cases, the "prevailing party" is entitled to attorney's fees and costs, but I am still scratching my head on how Norby had a judgment entered against him and is still considered to have "prevailed".

The only reason for this I can come up with is that there as an offer made under California Code of Civil Procedure 998.  Under that statute, if a party offers to settle for a set amount, the offer is rejected, and then the other party gets less than was originally offered to them, the opposing party can get their costs reimbursed.  However, this is not mentioned anywhere in the opinion and there are several reasons why even this does not make sense as a reason.  But this is not the point of the post, so I will let it go...

The County appealed several of the trial court's rulings, including the finding of sexual harassment by Norby for creating a "hostile work environment".

The Appellate Court's Decision

The appellate court reversed the trial court's decision, finding that no hostile work environment was created by Norby. The court ruled that Norby's conduct was not "severe or pervasive" enough to justify the trial court's finding that sexual harassment occurred.

It is extremely rare to find a case where both the jury and the trial court found that sexual harassment occurred and the appellate court reverses that decision. In almost all cases that are reversed like this, it is usually very clear that sexual harassment did not occur and the jury got it wrong. I would submit to you that in this case the jury was right and the appellate court was in error.

The appellate court based its decision on a number of factors, including their findings that the incidents "involved no physical threats," "the touching...was brief and did not constitute an extreme act of harassment," and the demand for her address was "brazen," but "[did not create]...a hostile work environment."

To me, if a manager rubs a subordinate's breast, this does constitute "an extreme act of harassment". This is sexual assault, plain and simple, which is punishable as a crime in California! How this conduct could ever not qualify as "severe" or "extreme" is beyond me. Further,holding her body up against his and telling her she has nice legs also borders on extreme.

The court suggests that no "physical threats" occurred. However, when a supervisor grabs an employee's breast after demanding to know where she lives and getting no response, to me this certainly does qualify as a "physical threat".

Additionally, while it is unclear whether Mokler brought her sexual harassment claim against just Norby or against Orange County as well, I believe the county should have liability here. When Mokler complained to her supervisor about Norby's conduct, he simply told her to "be careful" and that she "needed to win him over." I do not know whether these remarks were intended to suggest that she go along with Norby's behavior or if this was a veiled threat against her for complaining, but the way the court's opinion reads it seems the county did absolutely nothing to stop Norby's conduct and possibly tried to stop her from bringing it up.

This is simply one man's opinion, but I call them like I see them and to me this case was decided incorrectly by the appellate court. I do not know if Mokler plans to file an appeal, but I would be very interested to see what the California Supreme Court would decide after reviewing the case.

Congress Tries to Legalize "English Only" Workplace Policies

November 20th, 2007 James Peters

According to an article in today's Los Angeles Times, Congressional Republicans are pushing to amend federal anti-discrimination laws to do away with the provision that prohibits employers from requiring employees to only speak English at work.

Currently, under Title VII of the 1964 Civil Rights Act such an "English-only" policy is considered national origin discrimination. There is a "business necessity" exception to this rule where speaking English is necessary to do the job. For example, a nurse who assists with surgeries must be able to speak English to communicate with the medical staff.

This amendment is unlikely to pass and is likely just pre-election posturing to bring the debate over immigration into the forefront of the electorate's consciousness.

However, most employees in California would not be affected by such a change, because California's Fair Employment and Housing Act also prevents English-only policies and is far more protective than Title VII in virtually all respects.

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