July 14th, 2013

Court Justice: An American Oxymoron

Key lessons from Zimmerman murder trial acquittal for advocates for legal solutions to the workplace bullying crisis in the U.S.

Again, a jury’s decision crushes hope for African-American youth. Read the NAACP statement about the jury decision. The “system” seems to not care even when they are killed for committing no crime. Zimmerman literally got away with committing murder. Watch Sen. Harry Reid, a former trial attorney, on Meet the Press state simply that he supports the “system” (advance to the 12:00 min. mark).

White supremacists will overtly rejoice; those harboring implicit stereotypes (explanations for discriminatory behavior when holders of stereotype never utter racial slurs aloud and may not have insight into how that stereotyping accounts for their own behavior) will refuse to acknowledge the moral dilemma such trial outcomes have on society.

We don’t know yet if the jury members wrestled with their consciences over the “stand your ground” law in Florida state or the fact that hotheaded, self-proclaimed crusader Zimmerman was legally carrying a gun that provided the overwhelming leverage over the unarmed teenager. The legal bases of the trial were not supposed to test the defendant’s racism. The judge disallowed that factor from entering the case. Any hope of changing Florida’s “stand your ground” law was squashed by the governor.

The jury of Floridians upheld the validity of both state laws put in place by the powerful gun lobby and the anti-democratic group, ALEC, that hands out the boilerplate bills on all issues that serve to reverse social progress in America.

The decision honored the laws (that’s what courts are supposed to do) while dishonoring Trayvon Martin’s humanity extinguished needlessly by Zimmerman. In the not-so-distant background were the Newtown Connecticut parents whose children were slain by automatic weapons. Survivors of gun victims are expected to grieve and just “get on with their lives,” and not to hope the loss of their loved ones will lead to any changes in our violent society.

Too few court decisions step outside the lines to make a social policy statement for the good of the human race. I had hoped the glare of the national spotlight with saturation coverage on TV would prod those six women to step up and do the right thing. Instead, the narrowness of court trials in the U.S. prevailed. The jury was not necessarily wrong. It certainly was not brave. Eliott Spitzer, former NY Attorney General and Governor, on ABC This Week, stated clearly “this was a failure of justice” (advance to the :30 sec. mark).

Achieving justice from the courts is a gamble with little to no chance of winning if you are deemed the less powerful. Good people are portrayed as evil by attorneys. One would have thought Trayvon, the murder victim, was on trial. That the “system” is rigged is not news to Trayvon’s parents or to the millions of African-Americans who consider the decision a slap in the face. With this latest confirmation that people of color wearing hoodies are all suspicious and threatening, cynicism is reinforced, hope shredded, again.

Justice is also a rare outcome from court cases involving employment law. In the U.S., there are few circumstances in which employees are able to complain about employer practices in state or federal court — when illegal discrimination is alleged or when conduct is so outrageous that it exceeds the norms of civilized society. The odds are against such plaintiffs.

Employers know they can win most legal arguments in court. Employers’ attorneys fight the same fight repeatedly and perfect their craft. They learn from experience. However, employees have one fight in their lifetime to try to win justice for their bullying experience. Plaintiffs’ attorneys may or may not have ever fought the particular employer in the case. They rarely have history. And plaintiffs have very limited access to money. Employers have deep pockets or insurance that covers defense costs. It’s not a fair fight.

We are often asked why WBI wants laws on the books that will enable employees to sue their employers if the prospects of victory in courts are so dismal. The law we want enacted is called the Healthy Workplace Bill. The HWB has two goals: (1) to provide legal redress for abused workers that does not exist in current laws, and (2) to give employers a legal incentive to prevent and correct workplace bullying that they should now be doing voluntarily, but are not.

Critics predict a flood of lawsuits, but that fails to take into account the high losing rate for plaintiffs in employment cases. That is, attorneys will not accept cases with no chance of winning. Only the strongest cases will be taken. Truthfully, we don’t want broke and dispirited bullied workers to have to take a second mortgage and borrow from relatives to pay attorney fees for a case not likely to be won. Listen to our advice about suing an employer in our WBI Webinar: So, You Wanna Sue?

The lesson from the Zimmerman trial reinforces our reluctance to encourage plaintiffs to expect justice from court.

That makes the second goal of the HWB the most important. Employers who take “reasonable steps” to prevent and correct the problem — a policy and faithful enforcement of the promise to protect employees from an abusive work environment (as defined in the HWB and WBI) — will escape liability for any bully’s misconduct. That clause rewards good employers. All employers should be working to eradicate workplace bullying for several reasons. If the only thing that moves U.S. employers to act is fear of litigation, then so be it.

An unwritten third goal might be to make a statement that in the states where it is enacted, the State has declared that health-harming workplaces are unacceptable. It is a statement about values in those states. Sometimes values need to be made explicitly clear so there is no question.

In conclusion, the HWB has been carefully written to follow the language and format of discrimination statutes. It rewards good employers and dangles the prospect of facing litigation when bullying is allowed to harm people. Specifically, physical or psychological health harm is something employers should prevent as routine employee health and safety protocols. Instead, they treat bullying with indifference, often boasting that managerial prerogative is unlimited and if the worker doesn’t like it, “sue me.” So, the HWB is the response.


<-- Read the complete WBI Blog

Tags: , , , , , ,

This entry was posted on Sunday, July 14th, 2013 at 2:03 pm and is filed under Commentary by G. Namie, Fairness & Social Justice Denied, Healthy Workplace Bill (U.S. campaign), Rulings by Courts, Workplace Bullying Laws. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Having trouble? Click Here for Comments Guide

Facebook Comments


Disqus Comments

This site is best viewed with Firefox web browser. Click here to upgrade to Firefox for free. X