In March of this year, the State of Iowa became the first state to adopt a recent version of what some have called “ag-gag” laws.  The Iowa law prohibits people from gaining entry into or employment in an agricultural production facility (including, most notably, an animal agriculture facility) under false pretenses.  The evident aim of such laws is to prevent whistleblowers from gaining access to and then exposing what takes place inside these facilities.  Thus, ag-gag laws help to deter undercover reporters from gathering and revealing disturbing information about animal-using industries.  Earlier incarnations of such laws were passed in North Dakota, Montana, and Kansas.

These laws—and more are pending in other states—assist animal-using industries in concealing the conduct that consumers support when they purchase and consume animal products.  In this column, I will examine the complex relationship between this concealment of facts and consumers’ willingness to buy animal products.

“The Ignorant Consumer Is Our Best Customer”

Neither the purpose nor the presumed effect of “ag-gag” laws is a mystery.  Such laws are passed to prevent consumers from learning what goes into the production of animal-based food and other products, because learning this information could reduce consumer demand for such products.

Thus far, efforts to conceal this sort of information might appear to have been very successful.  Even today, for example, many—perhaps most—consumers of dairy products have no idea that the cheese, milk and butter that they buy, whether it originated on a “factory farm” or a small family operation, entails the slaughter of cows and their baby calves.

Many consumers believe that cows just spontaneously produce milk.  In fact, like those of every other female mammal on the planet, including humans, a cow’s mammary glands (breasts) naturally produce substantial quantities of milk only after she has become pregnant and given birth.  If the baby is a male calf, he will face slaughter within months of his birth, because, unable to lactate, he is deemed fit only for slaughter.

Meanwhile, a female dairy cow who is “lucky” enough to survive the slaughter of every one of her male babies (each of whom is rapidly weaned so that consumers can buy and eat cheese, butter, or milk from his mom’s breasts) will herself face slaughter when she reaches the age of four or five, though a cow could otherwise live to the age of twenty.

These are all basic facts about dairy.  Yet even among people who associate meat with slaughter (when they allow their minds to “go there”), many somehow maintain the illusion that dairy is a “peaceful” product.

Why do significant numbers of consumers believe these two falsities:  that cows spontaneously produce milk, and that dairy is a non-violent product?  One might be inclined to attribute such ignorance to the efforts of the dairy industry to hide the truth.  But ag-gag laws (and other similar attempts to silence animal advocates’ speech) are relatively new on the legal landscape.  And people have long associated dairy with wholesomeness (though dairy does not, in fact, build strong bones and may contribute to prostate and breast cancer) and with peaceful, lowing cows enjoying serene and untroubled lives until they die naturally of old age.  Yet the truth is that slaughter has always been part of dairying, long before confined animal-feeding operations (factory farms) proliferated.

One reason for mainstream ignorance about the fundamentally violent nature of all animal agriculture, including dairy, egg, and wool production, is the symbiotic relationship between the respective goals of the relevant industries and of their customers.  Industries have every reason to want to obscure the enormous suffering and slaughter that go into the nearly 200 pounds of meat, poultry, and fish, and the more than 600 pounds of dairy alone that the average American individual consumes every year.  After all, such information could conceivably diminish consumers’ enthusiasm for animal consumption.

And consumers likewise may prefer to avoid learning facts that, if truly absorbed, could complicate their lives.  People who consume animal products might find it difficult even to fathom being vegan:  they believe that they would constantly crave their favorite animal-based foods and that they would experience less pleasure in eating than they currently do.  The prospect of what they imagine is a huge sacrifice is emotionally overwhelming, and they may accordingly prefer not to know. (In reality, I can say as a vegan and a member of a vegan family, that being vegan is neither complicated nor difficult.).

If you doubt what I say about people’s beliefs, then approach the average person and offer to tell her all about the slaughter process for dairy cattle.  She will likely decline your invitation, especially if she is about to order a pizza covered in dairy cheese.  To paraphrase Upton Sinclair, the author who exposed the already-execrable conditions in the American meat-packing industry in the early 1900’s, it is difficult to get a person to understand something when her comfort in the status quo depends on her not understanding it.

This difficulty explains why people look at drawings of happy cows on their milk containers and choose to believe, rather than to doubt.  Even the most intellectually-engaged person is prone to becoming incurious about facts that might disturb the stability of their lives.  It may, in fact, be the consumer’s wish to remain ignorant—rather than the industry’s efforts to keep her that way—that plays the more significant role in perpetuating the suffering and slaughter of nonhuman animals.

Ignorance Is Bliss:  Why Exposing Animal Abuse Does Not Change Everyone’s Consumption Habits

If I am correct that both animal industries and their consumers prefer consumer ignorance, then does it follow that if true information about the industries were somehow to leak out, then everything would change?  It might appear that if everyone is intent on silencing the messenger, it must be because the message, if it got out, would transform people’s behavior in a manner that could threaten the vitality (as it were) of the animal-slaughtering industries.  But is that actually true?

The assumption behind this view—that transparency would transform the world—illustrates an optimism about human nature that may or may not be warranted.  Paul McCartney once claimed, in essence, that if glass walls surrounded the facilities that host the slaughter of cows, chickens, and other animals, everyone would stop eating animals.  Yet in assuming the transformative power of transparency, Paul McCartney and others must contend with a history of open and notorious human violence against the vulnerable.

Members of our species have not only watched and tolerated, but also participated in and enthusiastically perpetrated, atrocities against other members of our species, as well as members of nonhuman species, for a very long time.  One could hardly begin to list large-scale human atrocities in just one sentence, but for brevity, the institution of black slavery in the United States, the Holocaust in Europe, and the genocide of the Tutsi in Rwanda should provide a beginning.  And as Steven Pinker suggests in The Better Angels of Our Nature, our rate of violent killing and torture of other humans in the last century may itself pale by comparison to what our ancestors did to one another in earlier eras.  (Unfortunately, Pinker’s treatment of our history of violence against animals is distorted, as I discuss here, and yields the astonishing conclusion that the world has become a more humane place for animals, even as consumers pay for record numbers of animals to be cruelly slaughtered every second of every day).

Though some human-on-human atrocities have taken place behind closed doors (as in the Holocaust), many of them involved up-close-and-personal, bloody, and public slaughtering of victims.  Yet conscience rarely seemed to interfere.

About twelve years ago, I visited a New York Historical Society exhibition called “Without Sanctuary.”  The exhibit showed postcards with photographs taken from lynchings.  In these photographs, smiling white faces appear next to the burned and battered remains of lynched African-Americans hanging from trees.  The pictured white people appear to have happily attended the torture and murder of African-American people and then posed next to the corpses for photographs that they would mail home, apparently for later enjoyment or to memorialize the moment.  The poses of the white people pictured in the photographs resemble what a modern tourist might send home of himself, photographed next to the Eiffel Tower, or grinning as he shows off a snowman he has just built

Nothing about these lynchings was physically “concealed”—they took place in front of what one can only assume was a cheering, jeering crowd of onlookers, and the screams of victims evidently elicited no mercy and no saviors.  As I recall from the exhibit, some of the pictures included hats that had been placed on the heads of the victims, thereby indicating—along with the beaming whites’ smiles—what a festive and jocular occasion they considered the lynching to be.  Seeing these images would surely have persuaded me—if I had doubted it before—that physical transparency, without more, will not usher in an era of peace on earth.

I recently read a non-fiction book, Every Twelve Seconds, that makes a similar point.  The title of the book reflects the frequency with which cattle meet their deaths at the particular (unnamed) slaughterhouse that the author of the book, Timothy Pachirat, describes in great detail.  Pachirat spent time working at a slaughterhouse in Nebraska.  He took the job because he wanted to be able to write knowledgeably about the conditions that prevail in such places.

Pachirat suggests in his book that total literal visibility does not necessarily mean that one truly sees anything.  As he describes it, one can observe the gentle and curious cows walking by the workers who then use electric prods on them and ultimately slaughter and dismember them, while simultaneously failing to take in the animals or their deaths at all.  When one cannot close one’s eyes to what is happening—as consumers currently can, and often choose to, do—one can still close one’s heart and mind to it, simply by focusing one’s attention elsewhere.

In describing an “animal-handling” audit, which assesses whether the animals are experiencing a “humane” slaughtering process, for example, Pachirat says the following:

[t]he result of the audit is to transform a physical confrontation with the killing of live creatures into a technical process with precise measurements of when the procedure counts as humane and ethical and when it does not.  The inspector is looking directly at the animals; he or she is listening to their voices, but they are seen and heard only as criteria within a technical process, as data input.  This technical dissociation operates for work performed outside of the audit as well. . . .

Engaging Empathy

To understand how best to break through the defenses that consumers erect to maintain comfort in consuming animal products, it is useful to appreciate the human capacity for both kindness and indifference.  When we feel empathy for another being, whether human or nonhuman, we want to help that other being or, at the very least, to avoid inflicting suffering and death on her.  On the other hand, when we view the “other” as falling outside our circle of concern, then we feel little or no empathy for her and accordingly experience little inclination to try to help or avoid harming her, no matter how physically proximate she might be.

Physical walls and invisibility do help to place other beings outside our circle of concern.  If we fail to see their suffering or their slaughter at all, then we can more easily avoid empathizing with them.  We do not experience them as being “close” to us, even as we are, somewhat ironically, as intimate with these creatures as one could possibly be, by incorporating their very flesh and reproductive secretions into our own bodies.  Learning what happens from undercover reporters and video footage can help bridge the physical gap, to the extent that this gap accounts for our indifference.

Yet even—and perhaps especially—with greater visual access to animal suffering and slaughter, people increasingly rely on emotional-distancing mechanisms to avoid empathizing with the beings they consume.  They might think of farmed animals as stupid, servile, and indifferent to their own fate, as creatures whose purpose in life is to feed and clothe humans with their broken bodies.  Signs depicting smiling pigs and chickens on restaurants that sell the flesh of these animals help reinforce the notion that animals are virtually asking for us to barbecue and eat their flesh and reproductive secretions.

The insults we use against some of our fellow humans expose the contempt in which we hold the animals who meet their terrifying ends at our slaughterhouses:  “chicken” for people who are frightened or lack courage; “cow” for overweight and intellectually dense people; and “pig” for gluttons—the very humans who overfill their plates with the corpses and secretions of such animals.  More violent similes are illuminating as well:  “like sheep to the slaughter” and “squealing like a stuck pig” both suggest that the right and proper destiny of the live animal is to be cut and bled to death.

I have long believed that a three-part coping process accompanies systematic violence against any vulnerable group, including nonhuman animals:  denial, devaluation, and punishment.  The ugly truth is that consuming animal products supports unimaginable suffering for the animals whose flesh, skin, hair, and secretions meet consumer demand.  People within the industries, and the consumers who supply the lifeblood to those industries through their dollars, deny the reality, by saying “I buy cage-free, farmer’s market eggs laid by happy hens” or by describing themselves as “conscientious omnivores,” because they buy from local farms or by imagining that Proposition 2 in California, which modified some of the standards for animal confinement, has somehow liberated animals from institutional human cruelty.

And people at the same time devalue animals.  We speak of uniquely “human” rights, for example, when referring to the right against torture—an experience whose grotesque intolerability derives entirely from parts of our brains that we share with all vertebrates.  We refer to violent criminals as “animals.”  And we presume that nonhuman animals live in a perpetual present with no memory of the past (a presumption for which people who actually study animal behavior find no evidence) and that animals lack the capacity for the sorts of profound relationships that human beings can have with one another.

And finally, people punish animals.  A small-farmer who learned I was vegan once told me that if I saw how annoying his pigs can be when he tries to load them onto a truck headed for slaughter, I would be happy to eat them too.  When animals do not in fact placidly “go like sheep to the slaughter,” they pay dearly for their defiance of what most humans regard as animals’ proper role as meat “on the hoof.”

Each of these coping strategies—denial, devaluation, and punishment—involves the creation of distances between humans and nonhuman animals.  We pretend that no one is really hurting them that badly (or that those who do are “bad apples,” and that what’s needed are cage-size initiatives), but we simultaneously posit that animals’ experiences do not matter much, and that they deserve whatever they get.  The publication of images from within the insular world of animal farming can address only the first of the three strategies, the denial strategy, and only for so long as the viewer looks at the image and has not yet grown used to it.

I tend to think that addressing the second strategy of the trio—devaluation—is most important in inspiring people to change the way they behave toward animals.  So long as people can devalue the sentient creature whose corpse or eggs or lactational fluids appear on their plates, shocking images will do very little (and will have to become increasingly shocking, as people become numb to what they have so often seen).

I oppose ag-gag laws, both because of their apparent goal and because they effectively protect the consumer’s “denial” of what is truly going on.  Footage and exposés have a role to play in raising people’s consciousness about what they are facilitating when they eat an omelet or a slice of non-vegan cheese pizza.

But we must also fill people’s plates with the wonderful abundance and nourishment that plant-based food has to offer.  And we also need to invite people to really see the lives and beauty and complexity of the animals whom we hurt.  It is as much the heartwarming story of the dairy cow who hides one of her calves and secretly nurses him until her secret is discovered, as it is the story of what happens to male calves under ordinary circumstances, that has the potential to change hearts, minds, and actions.

Over the last decade and a half, the country has been locked in a political and social fight over same-sex marriage. Last week, President Obama declared: “I have just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.”

Obama’s declaration is significant, since Obama had, in the past, always supported rights for same-sex couples generally, but not marriage per se.  Yet this development is just one of a thousand data points that comprise the evolving battle over same-sex marriage, which voters, politicians, and opinion-makers continue to wage.  The very same week Obama announced his stance, North Carolina voters amended their constitution to prohibit same-sex marriage, civil unions, domestic partnerships, and any other arrangement that might qualify as a “domestic legal union”—which is a status reserved for heterosexuals.  Though late to the game, North Carolina joins thirty other states with similar, if typically narrower, constitutional amendments.

Same-sex marriage has become symbolic of gay rights generally.  But the often singular emphasis on same-sex marriage obfuscates the many other important gay-rights battles that are still being fought—over rights that are just as important as the right to marriage is to the full citizenship of gays and lesbians in the United States.  The workplace, long a site of civil rights battles, is perhaps the most important of all these other arenas.  There, gay and lesbian workers have made many gains in fighting for non-discrimination rights, though the landscape is still uneven.

In this column, I’ll situate a recent opinion from the Connecticut Supreme Court, Patino v. Birken Manufacturing Co., in which the court recognized a cause of action for sexual-orientation harassment, against the backdrop of the national legal landscape.  Connecticut, like almost two dozen other states, has enacted a law prohibiting employment discrimination on the basis of sexual orientation.  Until this case, however, it was not clear whether the law included a cause of action for sexual orientation harassment.  This case, however, makes clear that, in Connecticut, gay and lesbian workers are protected against the full panoply of discrimination harms, and that employers can be held liable for failing to protect them against co-worker harassment.

The Harassment of Luis Patino: A Longstanding Problem

The plaintiff in Patino v. Birken was long-suffering.  Over the course of many years, Patino was subjected to vicious “name-calling on the shop floor” of Birken manufacturing, including derogatory slurs for homosexuals in English, Italian, and Spanish.  His co-workers would speak these words in his presence, sometimes while standing directly behind him while he was operating machinery.  Patino testified that he was devastated and “overwhelmed by anger and by frustration and the humiliation” from the harassment, and suffered a variety of ill effects.  “[H]is body would shake, his work product suffered, and it became difficult for him to sleep.”

For years, Patino recorded the incidents in a diary, but did not complain to the employer about his co-workers’ behavior.  This failure to immediately stand up for one’s rights may seem unusual to some, but empirically, it is common.  Indeed, avoiding confrontation and trying to cope is the most common response of sexual-harassment victims.  (I discuss patterns of victim response to harassment here.)  After five or six years, however, Patino began to complain.  He started first with his supervisor, who organized a meeting with Patino and his co-workers at which the company’s owner warned that the “bad words” were “going to stop.”  And the slurs did indeed stop after the meeting, but only for a few weeks; when they started up again, Patino complained again.  Some of the offenders were transferred to a different facility, but the problem persisted.  Other co-workers joined forces with the remaining harassers, and the slur-yelling escalated.

At some point, Patino hired an attorney, who sent a demand letter to the company, complaining of the harassment.  The company’s general counsel, now its president, wrote back to recommend that Patino undergo a psychological evaluation since he might pose a safety risk to others if he were working with precision machinery while his mental function was compromised due to the alleged harassment.

Patino filed a series of complaints with Connecticut’s human rights and opportunities commission, the first stop in an anti-discrimination lawsuit in that state.  In response to one of these complaints, the parties settled, based on the company’s agreement to hold harassment training.  But few of the harassing co-workers attended the training, and the problem did not go away.

Patino’s fifth complaint to the commission was the one that ultimately led to a lawsuit.  He alleged that the company had created a hostile environment based on his sexual orientation by “failing to take adequate measures to alleviate the harassment or remedy the hostile work environment.”  A jury found in Patino’s favor and awarded him $94,500 in damages.

On appeal, the company argued, unsuccessfully, that Connecticut law does not recognize a cause of action for hostile environment harassment on the basis of sexual orientation.

The General Legal Landscape for Sexual-Orientation Discrimination

Whether employees are protected from sexual-orientation discrimination at work varies by jurisdiction.  This is so, in large part, because there is no federal law banning employers—or anyone else—from discriminating on the basis of sexual orientation. Title VII of the Civil Rights Act of 1964 prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. The statute does not expressly cover sexual-orientation discrimination, and every court to consider the issue has ruled that “sex” does not include “sexual orientation.” Thus, gays and lesbians have no direct protection against discrimination under Title VII. (Title VII is not the only federal anti-discrimination law, but the others, such as Titles IX and VI, and Section 1981, are narrower and none of them applies to sexual orientation.)

To the extent that gays and lesbians have successfully deployed Title VII, it has been in same-sex harassment cases or via sex-stereotyping theory.  In 1998, in Oncale v. Sundowner Services, the U.S. Supreme Court ruled that Title VII prohibits same-sex sexual harassment, as long as the plaintiff is able to prove that the harassment occurred because of the victim’s sex.  The Court observed that this requirement might be met in one of three ways: (i) with evidence of the perpetrator’s homosexuality; (ii) with evidence that the perpetrator in fact targeted only members of one sex; or (iii) with evidence that the harassment took the form of gender-role policing—that is, it was perpetrated to punish an employee for failing to live up to traditional gender norms.  The most obvious type of Title VII claim permitted by the Court in Oncale would be one brought based on sexual harassment of a male by a gay male supervisor who was motivated by sexual desire.

The application of the third approach suggested in Oncale is facilitated by an earlier ruling of the Court, handed down in 1989, Price Waterhouse v. Hopkins.  There, the Court recognized that the application of a sex stereotype is a form of sex discrimination.  Thus, the Court found that illegal discrimination had occurred when an un-feminine woman was turned down for partner at least in part because of the way she dressed and conducted herself.  By the same logic, an effeminate man who has been harassed by straight workers may have an actionable claim if he can prove that the harassment he endured was motivated by “gender-policing”—that is, by trying to punish or rein in his gender non-conformity.  But courts have been wary of “boot-strapping” in this area—remaining reluctant to allow gay or lesbian plaintiffs using sex-discrimination theory to remedy what is at core sexual-orientation discrimination (and thus is not actionable).

Since the 1970s, there have been efforts to establish federal-law protection against sexual-orientation discrimination.  The Employment Non-Discrimination Act (ENDA) has been introduced in virtually every Congress for more than a decade, but has never passed.  ENDA would, if enacted, ban discrimination on the basis of an individual’s “actual or perceived sexual orientation,” which the legislation defines to include “homosexuality, heterosexuality, or bisexuality.” Covered employers would not be allowed to take sexual orientation into account when deciding whether to hire, fire, or promote someone.  ENDA would largely borrow its substance and procedure from Title VII, although it would not permit disparate-impact claims (that is, challenges to neutral rules that disproportionately impact a protected class without being justified by any business necessity). ENDA would also exempt religious organizations completely from the Act.

The 2007 version of ENDA was passed by the House of Representatives, but never made it to a vote in the Senate.  This version of the bill prohibited sexual-orientation discrimination, but was silent on gender-identity or transgender discrimination.  Current versions of the bill in the House and Senate prohibit both.  If ENDA passes, sexual orientation (and maybe gender identity, depending on the version of the bill that was passed) will be added to the list of protected characteristics under Title VII.  Employers would then be prohibited from taking any action on the basis of sexual orientation, regardless of motive.  This broad protection would include protection against sexual-orientation harassment—whether or not it fits one of the three scenarios suggested by the Court in Oncale to be actionable.

State Laws Against Sexual-Orientation Discrimination

While ENDA has stalled in Congress repeatedly, many states have adopted laws to prohibit sexual-orientation discrimination.  These laws are not limited to the workplace.  Some states have added provisions to their public-accommodations laws to prohibit sexual-orientation discrimination by stores, restaurants, hotels, and other businesses that serve the public.  Some have amended housing laws to ban sexual-orientation discrimination by landlords and others connected with housing.

As of this year, 2012, about half the states have enacted laws prohibiting sexual-orientation discrimination in various contexts, including employment, housing, and public accommodations; sixteen of these expressly cover gender-identity discrimination.  (The ACLU provides a helpful state-by-state map here.)  Some states only restrict discrimination by public employers, some by all employers above a certain size.  Moreover, even in jurisdictions where it is not required by law, an increasing number of large employers prohibit sexual-orientation discrimination as a matter of company policy.  Given the very high prevalence of sexual-orientation discrimination documented by surveys, these developments are crucial.

Connecticut’s Sexual-Orientation Discrimination Law

With this background in mind, I’ll now discuss the Patino case itself.  In 1991, the Connecticut legislature passed a law banning employment discrimination on the basis of sexual orientation.  The law, section 461-81c of the Connecticut General Statutes, does not allow an employer “to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s sexual orientation. . . .”

The question in Patino is whether this provision is expansive enough to prohibit hostile-environment harassment.  This may seem like a strange line of argument, given that Connecticut’s code expressly bans sexual-orientation discrimination.  The more common type of litigation in this area is about whether a statute, like Title VII, which does not ban sexual-orientation discrimination, can be read as if it does.  But the employer in Patino argued that while the Connecticut statute may ban “discrimination,” it does not ban this particular form of discriminatory conduct—hostile-environment harassment.  The Connecticut court rightly rejected this argument, however, for the following reasons:

First, the court concluded that the phrase “terms, conditions, or privileges of employment” is a term of art in antidiscrimination law, which has come to encompass a standard set of claims, including harassment claims.

Second, the court noted that Connecticut’s antidiscrimination laws have always interpreted to be at least as broad as federal ones are.  Thus, an employer’s duties under Connecticut law will include any duties imposed by Title VII.  And, there is no question that sexual harassment is actionable under Title VII, even though the statute makes no mention of it.  The U.S. Supreme Court ruled in Meritor Savings Bank v. Vinson (1986) that hostile-environment harassment is a form of actionable sex discrimination.  It so ruled, in part, because the legislature’s use of the phrase “terms, conditions, or privileges of employment” was broad enough to evince a congressional intent “to strike at the entire spectrum of disparate treatment of men and women in employment.”  And a hostile environment, as defined by the Court, is one that is severe or pervasive enough to alter the terms and conditions of the workplace.

Third, other anti-discrimination statutes in the Connecticut code, which also utilize the “terms, conditions, and privileges” phrase, have been interpreted by the state supreme court to encompass a cause of action for hostile-environment discrimination.  Courts have, for example, allowed claims for disability and racial harassment.  And, as a general rule, the same phrase will be given the same meaning across provisions emanating from the same legislative body.

Fourth, the court rejected the employer’s suggestion that the sexual-orientation discrimination law was narrower than other anti-discrimination provisions because it could not be understood as redressing a “constitutional tort” since the federal Equal Protection Clause has not been interpreted to give special scrutiny to sexual-orientation classifications.  The court found no support in any of its laws for this differentiation, however.

Fifth, although the sex-discrimination provision in the Connecticut code does expressly include a hostile work environment in its definition of unlawful discrimination, the Connecticut court concluded that such language is not the exclusive means by which the legislature could create such a cause of action.  The court, in previous cases, as noted above, had allowed a cause of action for hostile-environment harassment under statutes that did not expressly mention it.  And such interpretations were entirely consistent with the legislature’s clear goal of eradicating all modes of workplace conduct that create an unequal playing field for a disadvantaged group.

Once the Connecticut court concluded that Connecticut’s sexual-orientation discrimination law prohibits hostile-environment harassment, the court had no trouble concluding that the jury’s verdict in favor of Patino was supported by the evidence.  The jury was presented with evidence that “derogatory comments were made multiple times per week, sometimes several times a day, over a prolonged period of time, despite the plaintiff’s repeated complaints to his supervisors. . . .  [H]is coworkers constantly yelled slurs in his presence as he worked on the shop floor.”  This more than satisfied the legal definition of a hostile environment, the court concluded.  (The court, thankfully, was unmoved by the employer’s argument that the harassment was muted by the fact that Patino did not understand all of the languages in which the slurs were spoken.)  And Patino should not, despite the employer’s urging to the contrary, be punished because “his strong work ethic” and “ability to withstand harassment on the job” had allowed him to put up with the harassment for so long.

A Surprising Aspect of the Case:  An Employer Willing to Litigate What Was Quite Plainly Illegal Discrimination Up to the State’s Highest Court

Patino v. Birken was, in many ways, an easy case.  Connecticut has made clear its disapproval of sexual-orientation discrimination by adopting an express provision prohibiting it.  What’s surprising is that this employer litigated all the way to the state supreme court over whether that statute, which broadly prohibits employment discrimination on the basis of sexual orientation, could be read to exclude one of the most common forms of discrimination.  The Connecticut Supreme Court was right to conclude, unanimously, that it cannot.  None of this kind of state-by-state litigation would be necessary, however, if Congress would simply pass ENDA and create a level playing field for gay and lesbian workers in all states.

Facebook estimates its monthly active users at 845 million people, and its daily active users at 483 million.  One important result of Facebook’s having all those users is that a great deal of First Amendment activity that previously would have occurred in the brick-and-mortar real world, now takes place online instead.  Rather than complimenting a friend in person, we “Like” her post or photo online.  And, on the darker side, rather than insulting someone in person, we may deride—or simply disagree with—him on Facebook instead.

That is exactly what happened in a case that was recently heard in federal court in Virginia, as I will discuss in this column.

The Facts and Holding of the Case

In an April 24 decision, Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia held that clicking on the “Like” icon on Facebook is not First Amendment-protected speech.  The case arose when four deputy sheriffs and two civilian employees who worked in a sheriff’s office supported the current sheriff’s opponent in an election for that post.  One way that each employee showed his or her support was to “Like” the sheriff’s opponent’s Facebook page.  Surely, the sheriff also—and quite reasonably—interpreted their “Likes” as a vote of no confidence for him.

When the current sheriff was re-elected, he fired all six of the employees who had used the “Like” icon to support his opponent, along with six other employees.  The six fired employees who had clicked on the opponent’s “Like” icon then brought suit against the sheriff, claiming that he had violated their First Amendment rights to speech and association when he fired them.

Although the employees contended that their firings were illegal on a number of alternative grounds as well, in this column I will focus on the question whether their use of the “Like” icon was covered by the First Amendment.  Judge Jackson held that it was not, and gave three reasons why—each of which, in my view, is unpersuasive.

Judge Jackson’s First Rationale

Judge Jackson’s first rationale for his holding was that “In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”  But that fact, if true, simply means that Judge Jackson was facing a case of first impression, and thus would need to make new law—something judges do all the time, by relying on analogies to cases that are somewhat similar to the case at bar.  Rather than cutting against the plaintiffs’ arguments, this statement simply suggests that the judge had his work cut out for him.

Judge Jackson’s Second Rationale

Judge Jackson’s second rationale for his holding was that clicking on the “Like” icon is “not the kind of substantive statement that has previously warranted constitutional protection.”  Yet it takes only the tiniest analytic step to translate the act of clicking on the “Like” button into the words “I like,” which do, quite obviously, constitute a substantive statement.

Granted, there are cases where it might be ambiguous what, exactly is being “Liked” on Facebook.  Should a person who “likes” an entire page be taken to express his or her endorsement of every statement or photo on that page?

I would generally say no, but I would also understand a judge’s opposite holding in certain cases—say, in the case of a page that predominantly endorsed terrorism, but also mentioned a few other topics, or one that mingled highly defamatory material with a few innocuous photos of kittens.  This case, though, did not raise that kind of ambiguity.

Judge Jackson’s Third Rationale

Finally, Judge Jackson’s third rationale for his holding was that it would be improper to try to infer the specific statements that the defendants’ clicks on the “Like” icon were making.

If this were a defamation case, that might be a reasonable point to raise—one that would cut in favor of the defamation defendant and in favor of the First Amendment, for it is difficult for a statement to be both vague and truly defamatory. (Also, vague statements usually wreak less damage, unless they convey very powerful insinuations.)

But this case wasn’t a defamation case.  It was a case about whether employees could legally be fired for First Amendment-related speech, and in that context, the judge’s refusal to interpret what the “Likes” meant unfairly cut not just against the plaintiffs, but also against free speech itself.

Again, to interpret the “Likes” as meaning “I like” was not a very difficult task.  By comparison, the Supreme Court has repeatedly interpreted the meaning of purely symbolic speech—that is, speech involving no words all.  To do so, the Court looks to context, circumstance and history.

Its decisions in this area touch on symbolic speech ranging from flag-burning (Texas v. Johnson), to cross-burning (R.A.V. v. City of St. Paul), to draft-card burning (United States v. O’Brien), to armband-wearing (Tinker v. Des Moines). In addition, in the “Bong Hits 4 Jesus” case, known more formally as Morse v. Frederick, the Supreme Court did not balk at all when it came to interpreting the words “Bong Hits 4 Jesus” on a banner that a student had raised at an off-campus school event.  Specifically, the majority opinion in Morse described the message on the banner as “reasonably viewed as promoting illegal drug use.”

As an aside, I disagree with the majority’s interpretation of the banner in Morse.  A banner saying “Bong Hits Now” would have conveyed the pro-drug message the Court described, but that’s not what the banner said.  The actual banner message, “Bong Hits 4 Jesus” was clearly a goof—perhaps one that is best read as a clumsy satire of all the things that Christian believers are asked to do in the name of Jesus.  (A sincere banner to that effect might have said something like “Give to the Poor for Jesus,” and it’s that kind of banner that was implicitly being satirized by the “Bong Hits 4 Jesus” banner.)

But the key point, for purposes of this column, is that, in Morse, the Supreme Court did not balk at giving an interpretation of the banner just because the banner was hard to interpret.  Instead, the Morse Court realized that it was its job to figure out, to the best of its ability, what the banner’s cryptic statement meant.  The judge in the “Likes” case had the same obligation.

A federal judge has great power, but he or she also has a weighty obligation: the obligation to decide.  Punting on the question of how the “Likes” were to be interpreted meant that the judge in the “Likes” case failed to live up to that obligation.

Last week, the Pew Research Center released results of new polling data showing the percentage of adult Americans who hold a favorable view of the Supreme Court (52%) is at a 25-year low.  In the space below, I drill into the numbers a bit more deeply, and offer some speculative explanations for the diminishing public assessment of the Court.

Details of the Pew Survey

There are at least three noteworthy, and related, numerical trends imbedded in the Pew data about reduced respect for the Court.  First, although a graph of attitudes does not depict a straight line—but instead features some zigzagging from year to year—a significant general downward drift has been taking place for over a decade.  Between 2001 (when the approval rating was around 70%) and the present, the direction has been decidedly negative.  In the seven periodic survey readings from early 2001 until the middle of 2006, the rating was in the 50s only once; in the seven survey readings since, it has been in the 50s four times, including in each of the last three readings since early 2009.  So what we see is a descendent trend over the last 10 or 11 years, with a further pronounced drop-off over the last three years.

Second, and somewhat unexpectedly, today there are, as the survey press release says, “virtually no partisan differences in the views of the Supreme Court:  56% of Republicans, and 52% of both Democrats and independents rate the Supreme Court favorably.”  And it is really a drop in Republican approval numbers that has closed the partisan gap (and accounted for the low overall numbers); while favorability among Democrats has bounced around over the last decade, the decline in approval by Republicans has been particularly sharp and salient.

Third, and relatedly, the Court is no longer necessarily viewed more favorably by the party that controls the White House.  During the Clinton years, Democrats viewed the Court more favorably than did Republicans.  During the George W. Bush years, Republicans viewed the Court more favorably than did Democrats.  (And this partisan correlation between respondent attitudes and control of the White House was also present during the Reagan and George H. W. Bush years.)  But during the Obama years, neither Democrats nor Republicans have registered a consistently higher view of the Court.

What are we to make of all this?  It’s hard to know, since the survey asks only bottom-line questions about the degree of a respondent’s favorable impression of the Court, and not questions about what the respondent thinks is driving the bottom-line impression.  To be sure, part of the downhill slope may be explained by a dislike and distrust of government at all levels and in all forms, and perhaps also by an even broader angst about whether America and its economic, social and legal institutions are still worthy of our faith.

One Possible Partial Explanation for the Survey Results:  The Perception That the Court is No Different, and No Better, Than (the Dreaded) Congress

But beyond this general distrust of powerful American institutions, I think there are a number of other factors at play over the last decade or so that bear on the observed trends.  First, the Supreme Court has been thrust (or sometimes inserted itself) into particularly high-profile partisan disputes in a way that makes it hard for some observers to see how the Court is different from the more overtly partisan actors on Capitol Hill.  Bush v. Gore (resolving the 2000 presidential election) is one important example, and the challenges to the Affordable Care Act (Obamacare) is another.  The fact that all five Justices in the majority in Bush v. Gore were Republican appointees, and the possibility that the Obamacare cases might split 5-4 perfectly along Republican appointee/Democratic appointee lines (although I very much hope that doesn’t come to pass), serve to reinforce the notion that the Court is no different from, and no more principled than, Congress.  Even if Bush v. Gore didn’t seem to do long-lasting harm to the Court’s image in 2001 and 2002, when people today are reminded of it in connection with the Obamacare cases, the bad feelings that it generated come rushing back.

Of course, most of the Court’s cases are not resolved 5-4 along partisan lines (and, indeed, a big percentage of Court rulings are unanimous).  But the cases that (rightly) get enormous play in the media—the cases on which momentous things (like Presidential election results and the fate of the most significant statute to be passed in a generation) turn—do tend to break down 5-4 along these lines.  It’s hard for my constitutional law students, let alone non-lawyers, to believe me when I tell them that elegant ideas, lofty principles and doctrinal niceties matter when what folks observe is a very high percentage of monster cases getting resolved along partisan lines.

And this super-partisan perception may be more acute today than in recent decades, because currently all the Justices on the Court who were appointed by a Republican President are markedly more conservative than all the Justices who were appointed by Democrats.  (That wasn’t true when Justices White, Blackmun, Souter or Stevens were still on the Court.)

Interestingly enough, when the Court seems no less partisan and outcome-driven than Congress, even the “winners” in the Court in the overwhelming majority of big cases (Republicans) may come to disrespect the Court, since they so disrespect the Congress to which the Court is likened.  (Much ink has been spilled on the historically abysmal approval ratings for Congress.)

A Second (Related) Partial Explanation for the Survey Results:  The Court has Done Itself No Favors in the Confirmation Process

Related to this first observation is the way the Justices have come across publicly when they have gone through the Senate confirmation processes over the last decade.  After 11 years of personnel stability, the Court received two new members (Chief Justice Roberts and Justice Alito) during the 2005-2006 Term, and two more (Justices Sotomayor and Kagan) since then.  These confirmation processes included widely televised proceedings and featured some self-inflicted wounds by the nominees.  For Chief Justice Roberts, it was his roundly denounced and overly simplistic baseball umpire metaphor, and for Justice Sotomayor, it was her having to deal with an ill-phrased reference in a past speech to the virtues of decisions made by a “wise Latina.”

Perhaps more damaging than these inapt analogies or careless phrases, though, is the fact that the nominees have largely avoided answering most of the meaningful questions posed by Senators in the hearings—specific questions about specific cases in specific areas of the law.  The record of recent confirmations shows innumerable instances of the Senate allowing the nominees simply not to answer because a question asks for specific views on specific matters.  I have elsewhere written at length that such specific questions are necessary and proper to educate the Senate and the nation about whether a nominee ought to be confirmed, but when nominees bob and weave and end up coming off no different than the politicians who are asking the questions, or any other politician called to testify before a committee, the public can’t help but lump everyone together for purposes of poxes on houses.

Some Other Reasons for the Survey Results, Having to Do with Republican Respondents in Particular

None of what I’ve said above fully and directly addresses the somewhat puzzling displeasure of Republican respondents in particular.  After all, the Supreme Court over the last dozen years has exhibited a track record that is solidly conservative when compared to most eras of American history.  When one thinks about the blockbuster rulings of recent years—Bush v. Gore, the Citizens United ruling invalidating campaign finance reform, the Heller ruling recognizing individual gun rights, the Van Orden v. Perry case permitting explicitly scriptural (10 Commandments) displays in public places—one has the general sense that the Supreme Court has for Republicans been somewhat like Burger King, a place where they have had it their way.

Why, then, the Republican negativity?  I think the answer is at least twofold.  First, it is human nature to remember losses, sometimes more than victories.  And Republicans may feel frustrated by the decisions the Court has issued in some key social-issue-cases over the last decade—e.g., Lawrence v. Texas (upholding liberty to engage in homosexual activity), Grutter v. Bollinger (permitting race-based affirmative action), Stenberg v. Carhart (continuing to recognize abortion rights), and Roper v. Simmons (invalidating the death penalty for 17-year-old wrongdoers)—in which the five-member conservative majority didn’t quite hold (because Justice O’Connor and/or Justice Kennedy went the other way.)

Second, victory is itself, of course, a relative concept.  The reality may be that the Republican Party’s movement to the Right has been faster and more consistent than even the Supreme Court’s.  So, for example, the Republican reaction to Heller may not have been “Hurray,” so much as “What took so long?” and “Exactly how many gun regulations does this strike down?”  As savvy veteran political scientists Thomas Mann and Norman Ornstein have recently put the point, albeit in stronger and more colorful terms than I would:  “The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its . . . opposition.”  If Mann and Ornstein’s characterization is remotely descriptive of the attitude held by even a significant minority of Republicans (and the percentage of Republicans in some states who say they believe the President is not a citizen, or not a Christian, suggests Mann and Ornstein do have a point), then no conservative victories at the Court are going to seem to be enough:  Striking down Obamacare on reasoning that leaves Romneycare, or the Fed, for that matter,  intact would result in a half-empty glass at best.

In the end, then, the most striking aspect of the Pew survey on the Court—the fall from Republican grace—may say as much about the Republican party today as it does about the Court.

Last week, Democrats in the House of Representatives introduced the Pregnant Workers Fairness Act (PWFA).  The bill, if passed into law, would guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of a particular job, as long as the accommodation does not impose an undue hardship on the employer.

In this column, I’ll explain the protections that already are part of pregnancy discrimination law, the ways in which courts have unjustifiably narrowed those protections, and the realities of the situations of pregnant women at work that make existing interpretations of the law insufficient.

The Pregnancy Discrimination Act of 1978: Landmark Legislation that Opened Workplace Doors

Before the passage of the PDA, pregnant women worked—or didn’t work—at the whim of employers, who faced almost no constraints on their ability to exclude, sideline, or fire them.  Employers, in fact, routinely discriminated against pregnant women with rules that barred them from the workplace altogether or from particular jobs, changed their working conditions unilaterally, forced them out at specific points during pregnancy regardless of their individual physical condition, and refused to allow them to return to work after pregnancy until a fixed time had passed.

The whim to exclude pregnant women from the workforce was neither random, nor the consequence of many individual decisions by employers.  The tone was set in large part by legislatures and government employers who had, in many different contexts over many decades, developed hard rules about when and whether pregnant women could work.  The government was in no small part responsible for a system that subjected women to forced firings, exemptions from benefits and insurance coverage, and delayed returns to work after childbirth.

The Supreme Court reinforced the systematic exclusion of pregnant women from the workplace with its 1974 ruling in Geduldig v. Aiello, in which it held, somewhat mysteriously, that pregnancy discrimination is not sex discrimination and therefore does not warrant any sort of heightened judicial scrutiny.  In an infamous line of reasoning, the majority wrote of a world divided into two classes—pregnant and non-pregnant persons—that did not implicate sex or gender.

During the same term, however, the Court held in Cleveland Board of Education v. LaFleur that the policies of several school districts forcing pregnant teachers to leave their posts by the fourth month—and not allowing them to return until three months after birth—were unconstitutional under the Fourteenth Amendment’s Due Process Clause.  Although there was no equality-based right against pregnancy discrimination, these teachers had a right not to be conclusively presumed unable to work, regardless of individual condition.  They had the right to an individualized assessment of capacity.

Geduldig and LaFleur were odd bedfellows.  Geduldig seemed to give license to public employers to single out pregnant women for adverse treatment, but LaFleur seemed to restrict that license at least to the extent the adverse treatment denied individual women the right to be judged on their own merits.

Then, two years later, the Supreme Court issued a ruling that made clear the era of pregnancy exclusions were not over.  It applied Geduldig’s reasoning to interpret Title VII, the then-decade-old anti-discrimination law that prohibits employment discrimination on the basis of a number of protected characteristics, including sex.  In Cal Fed Savings v. Guerra to mean that pregnant workers can be treated “no worse than” other temporarily disabled workers, but they can be treated more favorably.

Rights Guaranteed by the PDA

The most significant impact of the PDA, at least initially, was to invalidate widespread formal policies that told pregnant women when they could and could not work, and in which sorts of jobs.  The PDA forced employers to shift to a more individualized model under which pregnant women could not be fired, not hired, or otherwise disadvantaged just for being pregnant.  Decisions about employment now had to be made based on capacity to work, rather than pregnancy status.

The second and important impact of the PDA was to force changes to standard employer benefit and leave policies, many of which excluded pregnancy altogether.  Under the second clause of the Act, employers must treat pregnant employees at least as well as they treat other temporarily disabled workers.  Employers thus must, for example, provide paid or unpaid leave to pregnant women who medically require it if they would do so for something who needed it because of some other temporary disability.

In practice, the PDA protects some pregnant women, some of the time, as follows:

• For a pregnant woman who can work at full capacity—i.e., she has no physical effects that interfere with her job responsibilities—the PDA can be effective in protecting her against the stereotypes and animus her employer might harbor about pregnant women generally.  If a pregnant woman is able to perform all aspects of her job, she cannot be assumed to have limitations that, in fact, she does not have, nor can she be denied the opportunity to work just because she is pregnant.
• For a pregnant woman who temporarily cannot work because of the physical effects of her pregnancy, the particular demands of her job, or the interaction between the two, the PDA guarantees that she will have the same access to leave and benefits as other temporarily disabled workers do.  If the employer is generous, she may be well protected; if the employer provides meagerly in this regard, than she will be less well-protected.  She may also have access to twelve weeks of unpaid leave under the Family and Medical Leave Act (FMLA) if her employer is large enough and she works enough hours per year.
• For a pregnant woman who could work, but only if the employer made certain accommodations to her assigned tasks or work environment, the PDA provides a comparative right of accommodation.  Under the second clause of the Act, such a woman is entitled to whatever accommodation her employer grants to other temporarily disabled employees.  If no such accommodation is granted, the pregnant woman has no absolute right to medically-necessary accommodations and can be discharged for failure to perform her job, subject only to the very limited protection offered by disparate-impact theory. (Disparate impact theory is the basis for challenging employment actions that are not on their face discriminatory, but differentially affect a particular class of employees.)

The PDA’s Limitations

Pregnant women with partial incapacity due to pregnancy are the least well-protected by the PDA, which provides only a comparative right of accommodation.  This limitation is built into the structure of the statute.  But courts have taken a modest right of accommodation and turned it into a barely detectible right of accommodation, through a series of cramped, and often indefensible, interpretations of the PDA.

One such narrowing is in the definition of pregnancy.  The PDA prohibits discrimination because of pregnancy, childbirth, and related medical conditions.  Although the Supreme Court interpreted this language quite broadly in International Union v. Johnson Controls, to include “potential pregnancy,” lower federal courts have ignored this ruling and taken a narrower approach.

As I wrote in a recent column, for example, a federal court in Texas just ruled in EEOC v. Houston Funding that lactation is not  “related” to pregnancy under the PDA and, thus, a woman can be fired for breastfeeding.  Some courts have also ruled that neither contraception nor infertility is “related” to pregnancy under the PDA, which means that employers can refuse insurance coverage or otherwise discriminate on those bases.  (The rulings on these issues are mixed, however; the Seventh Circuit takes a much more sensible approach in Hall v. Nalco, which I have written about here.)

A second type of narrowing of the rights of pregnant women comes from courts’ resistance to drawing an inference of pregnancy discrimination.  Plaintiffs often have trouble convincing courts that an adverse action they suffered was taken because of the status of pregnancy, as opposed to because of its disabling effects (which is permitted by law) or for some neutral reason.

A classic and troubling case is Troupe v. May Department Stores, in which a pregnant sales clerk was fired one day before she was scheduled to begin maternity leave. She was frequently late because of morning sickness.  Her employer claimed she was fired for excessive tardiness, not because she was pregnant and planning to take maternity leave.  The court agreed with the employer—concluding that it is not pregnancy discrimination if she was fired for being late, even if she was late because she was pregnant.  The court is right—pregnancy is not an excuse for failing to perform according to the demands of the job.  But without an obvious comparator—a man who was excessively absent and not fired one day before a scheduled leave—the court refused to entertain the possibility that the tardiness did not motivate the firing—that the pregnancy itself or the planned maternity leave did.

The third, and most damaging, type of narrowing of rights against pregnancy discrimination comes in denial-of-accommodation cases.  In a growing number of cases, courts have effectively read the second clause out of the PDA.  They do this in different ways, but here are the highlights:

• Courts have upheld light-duty policies that restrict such assignments to workers with on-the-job injuries.  Rather than take the PDA’s second clause at its word (again, it states that pregnant women are entitled to the same accommodations as those “not so affected but similar in their ability or inability to work”), the courts allow employers to define the comparison group based on any criterion that is “pregnancy-neutral” such as the source of the injury.  Pregnant women who need leave because of their level of incapacity encounter this same problem—being denied access to paid leave or other benefits because they were “injured” off the job.
• When analyzing formal policies such as these, courts employ “pretext” analysis to smoke out animus against pregnant women.  When they do not find animus, they conclude that no discrimination has occurred.  But the second clause of the PDA does not merely ban ill-motivated decisions that harm pregnant women.  That’s the job of the first clause.  The second clause requires, affirmatively, that employers treat pregnant workers no worse than other temporarily-disabled workers who are “similar in their ability or inability to work.”  This clause is violated by the simple fact of unequal treatment, regardless of the employer’s motive for the policy.
• Courts have refused to allow pregnant women to compare themselves—when invoking the comparative right of accommodation—to employees who receive accommodations mandated by the Americans with Disabilities Act.  (The ADA mandates, for employees who meet the definition of “disabled,” reasonable accommodations that do not impose an undue hardship on employers.)  Courts have ruled that “ordinary pregnancy” is not a disability within the meaning of the ADA; pregnant women thus cannot seek accommodations directly under the ADA.  But neither can they compare themselves to disabled workers, apparently, when enforcing the comparative right of accommodation.  This situation is now more troubling than it once was, given amendments to the ADA in 2008 that have been interpreted by the EEOC to protect many types of temporary disability, including those whose only limitations are back pain and restrictions on lifting.  Yet, the EEOC still takes the position that pregnant women cannot be treated as “disabled” for purposes of requesting reasonable accommodations, even if their restrictions are identical to another worker who is not pregnant.  Who is left for pregnant workers to compare themselves to, now?

Why Do Pregnant Women Need Accommodations at Work?

Until now, I’ve been discussing only physical disabilities that affect some subset of pregnant women. Pregnant women generally are physically able to engage in paid work, just as they are physically able to carry out other responsibilities in their lives.  But there can be conflicts between the physical effects of pregnancy and the demands of a job.  Typical conflicts involve lifting restrictions, dangers from exposure to certain toxins, restrictions on standing for long periods, or the need for regular breaks.   Many women, especially those who labor in low-wage jobs with inflexible working conditions or those who labor in traditionally male-dominated occupations with serious physical demands and various kinds of hazards, do need some type of accommodation during pregnancy in order to maximize the chances of a healthy delivery and continue working.  In many cases, these conflicts can be alleviated with a minor and inexpensive or costless accommodation from the employer.  But, as discussed above, employers routinely deny such accommodations under policies that are then erroneously upheld by courts.

The Pregnant Workers Fairness Act (PWFA): A Proposed Law That Should Not Be as Necessary As It Is

The recently-introduced bill, H.R. 5647, which if passed will become the Pregnant Workers Fairness Act, is styled as a “bill to eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”

The bill focuses on the lack of a meaningful right of accommodation for pregnant women under existing law.  The lack of such a right is caused in part by a limitation introduced by design in the PDA. But much of that lack is caused by erroneous judicial rulings that refuse to give the PDA’s second clause its intended scope.

The PWFA would, if enacted into law, makes it unlawful to:

• Refuse to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee” without demonstrating “undue hardship” to the employer;
• Deny employment opportunities to a woman in order to avoid making required accommodations;
• Force a woman to accept an accommodation she does not want; and
• Force a woman to take leave “under any leave law or policy . . . if another reasonable accommodation can be provided” instead.

The PWFA would be administered as part of Title VII, which means it would apply to employers with at least 15 employees, would require the filing of an EEOC charge as a prerequisite to filing a lawsuit, and would allow an employee to seek money damages for any violation.  Its substantive approach, however, is modeled on the Americans with Disabilities Act (ADA), which grants covered employees an affirmative right of accommodation regardless of how others are treated.

The PWFA Should Be Passed, and Even If It Is Not, Courts Should More Carefully Follow Current Pregnancy Discrimination Law, Which Places a Greater Obligation on Employers Than Some Judges Believe

If enacted, the PWFA would provide protection for many pregnant women who struggle to navigate jobs and working environments that were typically not designed with them in mind.  An absolute right of accommodation would be particularly helpful for those women working in traditionally male dominated occupations that tend to involve greater physical demands and hazards than traditionally female occupations.  This bill could thus help break down the entrenched occupational segregation in the American economy.

But whether or not the PWFA becomes law, courts should pay closer to attention to existing pregnancy discrimination law, which provides many of these protections already.  And employers should, whether the law requires them to or not, take the steps necessary to integrate pregnant women into the workforce.  Short-term accommodations can have long-term payoffs.

In my most recent column here on Justia’s Verdict, I laid the groundwork for a discussion of the policies that former Massachusetts Governor Mitt Romney would very likely pursue, if he is successful in his bid for the White House this year.  Today, I will discuss the approach to government spending that a Romney Administration would be apt to embrace.

The difficulty in assessing Romney’s policy views on any topic, as I noted in my prior column, is that Romney is infamously uncommitted to any set of policies or principles.  During his two presidential campaigns, he has completely changed his positions on so many issues, so often, that a reasonable person can only conclude that he has no commitments other than a firm commitment to the idea that he should be President.

As it turns out, however, this very stance makes it perversely easy to predict what a President Romney would do.  Because he will soon be the nominee of a political party that has a well-earned reputation for lockstep conformity on issues, and because that party has, over the last few years, adopted a very specific and reactionary policy agenda—one that can only be described as radical—Romney’s political instincts will surely lead him to endorse with great enthusiasm the agenda of his party’s extremist base.

As an aside, it is worth noting that the term “Tea Party” has already become redundant in describing the Republican Party and its supporters.  Although the Tea Party was originally identified as a separate movement within the Republican Party, the extreme anti-government protesters’ views—views that were, after all, already well-represented within the party’s Congressional ranks—were so quickly adopted by the leadership of the party that it soon became obvious that nearly every Republican had become a “Tea Party Republican.”

Because of this development, Republican politicians are now on notice that they must follow the extreme views of this anti-government base, or they will be drummed out of the party—as soon-to-be-former Senator Richard Lugar learned this week in Indiana.

The Roles of the House and Senate in Setting Economic Policy in a Potential Future Romney Administration

A future President Romney, therefore, would necessarily govern with the exclusive goal of pleasing his party’s radical base.  Moreover, as I explained in my earlier column, we can safely assume that Romney would govern with a Republican majority and leadership in the House of Representatives that would pull him as far to the right as possible.

On some issues, the Senate would be a possible brake on Romney’s attempts to follow his party’s real leaders to the right.  As I noted at the end of my last column, this dynamic could generally leave the country in policy gridlock—so long as the remaining Senate Democrats defy their own history, and their tendencies to crumble in the face of a Republican President.  A filibuster-proof 60-seat Republican bloc in the Senate, on the other hand, would make it impossible for even a disciplined Democratic minority to stop the country’s lurch to the right.

The rules are different, however, for laws that affect the budget, which is the focus of this column.  A 51-vote majority in the Senate is sufficient to pass legislation that is budget-related, under the “reconciliation process.”  Although that process is itself restricted by other parliamentary rules, the central fact is that budget policies would generally not be subject to the filibuster.

Therefore, whereas my earlier column suggested that we would generally need to imagine a 60-vote Republican caucus in the Senate to give a President Romney free rein to follow his base’s instincts, in budgetary areas the requirement would only be 51 Republican votes—a far more imaginable outcome of the 2012 elections.

Or, to put it more bluntly, the Republican base is much more likely to get its way on budgetary issues than on any other set of issues.  If Romney wins, therefore, what I am about to describe below is not merely a wish list of Republican ideas that would become reality only if the stars happened to align.  Instead, passing those extreme policies into law would merely require a simple majority of Republicans in both houses of Congress.

Those reactionary policies, in other words, would be enacted in short order, after a President Mitt Romney promised to “preserve, protect, and defend the Constitution of the United States.”

Romney, Ryan, and Imaginary Numbers: The Republicans’ Budget Man Will Call the Shots in a Romney Presidency

What would a President Romney’s budgetary policies look like?  That is an easy call.  The most recent of a series of so-called “Ryan Plans,” named for House Budget Committee Chair Paul Ryan of Wisconsin, was passed enthusiastically by House Republicans earlier this year.  Ryan is the darling of his party’s base. He was unsuccessfully wooed to challenge Romney in the primaries, and he is still being courted as a possible Vice Presidential nominee.  If Mitt Romney wishes to have any success at all at dealing with his party in Congress, he will simply have to sign whatever Paul Ryan tells him to sign.

Because budgets involve both government spending and taxes, the Ryan Plan provides a window on current Republican orthodoxy about both sides of the budget.  Here, I will discuss only the spending side.  Indeed, even more specifically, I will discuss only the broad economic consequences of adopting Republicans’ spending cuts, when the economy still remains weak.  In future columns, I will discuss the specifics of Ryan’s proposed budget cuts, and the changes in tax policy that Romney would adopt at the behest of Ryan and his acolytes.

Discussions of government budgets far too often revolve around dueling numbers, in an eyes-glaze-over assault on the attention span of even the most interested observer. Yet it is important to remember one thing about the numbers in the Ryan Plan: They are made up.  I wish that there were a nice way to put this, but Ryan’s numbers are simply fiction.

As Ezra Klein explained in The Washington Post last year, when Ryan submits his budget plans to the official scorekeepers at the Congressional Budget Office (CBO), he simply tells them to assume certain things about the future.  For example, he tells them to assume that his plan will slow the growth of Medicare spending—but not because there is anything in his plan that one could independently evaluate, to determine whether it would actually succeed in slowing the growth of Medicare spending.  Instead, the CBO simply says that if Ryan is correct in his unsupported assertions about how his policies would change the path of spending, then one can make predictions about what the budget deficit will be in future years.

The exact numbers that Ryan and his fans toss around, therefore, are not based on independently-verified estimates of the effects of real-world legislation. They are, instead, best viewed as a combination of convenient assumptions and wishful thinking.  Ryan’s numbers are, therefore, often instructive—but not for the reasons that he supposes.  They are instructive because they tell us what policies the Republicans in Congress, deep in their hearts, wish that they could force upon the country—if only they had a willing President.

We need not, therefore, become bogged down in a debate over whether Policy A or Policy B will reduce spending by X percent or Y percent.  What we have from the Republicans is a clear statement of beliefs and priorities, and a path to getting what they want.

Anti-Spending Extremism at the Worst Possible Time: Austerity Is Harming Europe, but the Republicans Apparently Like What They See There

As a matter of fundamental belief, nothing is more basic to Ryan and his contingent than the idea that government spending is bad.  It is not merely bad, in their worldview, but also an assault on all that is good and decent in the world.  It is so bad that it should be reduced as much as possible, as quickly as possible.  Unless, of course, it is defense spending.

As a matter of economic management, therefore, Republicans have no patience whatsoever with the idea that the government can improve the economy by increasing spending during and after a recession or depression.  Their rejection of Keynesian economics—notwithstanding its clear record of success in predicting and explaining the current economic mess, as well as pointing the way out of the wilderness—is thus complete.

This basic tenet, then, means that a President Romney would quickly enact the most radical spending cuts that any country has ever experienced.  His policies would make those of Britain’s current Cameron government—which insists on continuing with its massive cuts in government spending,  no matter the human and economic costs—look like a big-spending Marxist state by comparison.

Ryan’s imaginary numbers, noted above, include the amazing claim that he would cut non-entitlement spending over the next four decades by more than two-thirds.  As Klein’s analysis pointed out, however, this would require that all non-defense spending be cut below zero, in order for the budget numbers to add up.  Taken seriously, this would mean that there would simply be nothing left of the federal government, except the Pentagon and whatever tatters remain of the Social Security, Medicare, and Medicaid programs.

Of course, four decades is a long time.  Thus, readers may ask, What would Ryan do in the short term?  The Ryan budget that the Republicans passed this year would cut spending immediately to the level of spending that existed in 2008, and then freeze it for five years.  Why is this radical?  Because the year 2008 was the last year before the full effects of the Great Recession were felt.  Thus, going back to that year’s spending levels would mean cuts in all of the current spending programs that support the large number of people who are still looking for jobs, who still need unemployment benefits to survive, who need Medicaid benefits after losing their job-related health insurance, and so on.

Going back to 2008 spending levels would also mean that these lower levels of spending would need to cover the increase in population that is part of our country’s natural growth.  The immediate effects of this plan, therefore, would be felt in reductions of spending levels that are already too low to bring the economy back to life.

Moreover, there is nothing in Ryan’s rhetoric, or in that of any of his compatriots, to suggest that they would stop at these cuts.  To the contrary, they have made clear that all non-defense spending is on the block, and they are merely waiting for their moment to cut, cut, cut.

If they did so, the results would be devastating.  Although Republicans like to claim that we should never be like Europe, they are embracing the exact economic principles and policies that have driven the Euro Zone to the brink of collapse.  As I discussed in a Verdict column this past December, the theory that austerity can be expansionary—that consumers and businesses will be so pleased by their government’s spending cuts that they will more than make up for the drag on the economy with spending increases of their own—never made sense as a theory. No wonder, then, that it has (completely predictably) failed in reality.  The European Continent, and Britain as well, have been teetering on the brink of a second recession, and Britain’s economy is actually recovering from the Great Recession more slowly than it did from the Great Depression of the 1930’s.

Moreover, the results of the failure of expansionary austerity are tearing at the political and social fabrics of Europe.  In a reassuringly democratic development, the French have voted austerity adherent President Nicholas Sarkozy out of office.  He will be replaced by Francois Hollande, a left-of-center (but completely mainstream) career public servant, who sensibly has questioned the wisdom of austerity at a time when unemployment rates in many Euro Zone economies are over twenty percent.

Greek voters, by contrast, were offered no mainstream alternatives, because all of the centrist politicians in that country had signed on to the austerity program that was being imposed upon them by Germany and France.  Greece’s voters thus were left with nothing but extremist choices on the right and on the left.  We are hearing rumblings from other parts of Europe as well, where neo-fascist and anti-immigrant movements are gaining ground.  (Even within France’s peaceful rejection of Sarkozy, the far right has gained at the polls.)

Electoral Accountability Versus Ideological Fervor: Will Europe’s Woes Slow the Republicans Down?

With these cautionary tales coming from Europe, would a President Romney take heed and moderate his views, forcing his party to accept less than total victory over Big Government?  While this year’s Presidential campaign is still ongoing, we are sure to hear reassurances from Romney and his supporters, telling us that he will respond reasonably to any changes in economic conditions.

We should not believe it.  Again, Romney would not be in charge of the country; Ryan and his supporters would be.  The one thing we have learned since they gained the majority in the House, eighteen months ago, is that they are not interested in listening to the voices of moderation.

The debt-limit crisis last summer was the best example of this ideological rigidity.  There, the party’s hard-liners actually held out the possibility that they would rather have the United States default on its obligations than increase the debt ceiling.  And readers should recall that the debt ceiling is an entirely symbolic statute, unnecessary to achieve the supposed goals of deficit reduction that the Ryan forces claim to hold dear.  (It is also worth noting, however, that nothing in Ryan’s plans—other than simple assertions on his part—adds up to deficit or debt reductions.  His spending cuts would be more than offset by his tax cuts for the rich and corporations.)

Moreover, the “accountability moment” elections provide is only meaningful if it is possible for disaffected voters to vote out the people who are responsible for their pain.  Everything in the Republicans’ actions over the last decade or more indicates that they are trying to insulate themselves from voters’ ire.

In short, we should not count on the standard political calculations, or politicians’ own sense of self-preservation, to save us.  If anything, Romney’s bosses have shown that they will respond to adversity by intensifying their efforts, making matters worse for everyone involved.

That is, bizarrely, not even necessarily a bad political strategy, for if they held to that plan, they would then be able again to become the “out party,” during a time of economic distress.  A party that is willing to blame President Obama for a recession that began before he took office would surely be willing to take what it can while it is in office, and then, once again, blame the results on the other side.

The world that Mitt Romney would preside over, therefore, would be one of increasingly desperate economic straits.  More and more workers would lose their jobs, and the answer from President Romney and his masters would be more spending cuts, and more tax cuts for the most financially comfortable people in America. In contrast, President Obama, if he wins re-election, would be likely to continue to move too slowly to truly fix the economy, but he would, at least, not embrace policies that would make matters worse.  (Admittedly that is not an enthusiastic endorsement of Obama’s policies.  That, however, is hardly the point.)

An honest assessment of what Romney would do as President, therefore, reveals that he would actively participate in an economic plan that would bring pain to millions of people, with little hope of Congress’ stopping him before (or even after) it is too late.  One can hope that Romney, if elected president, would somehow rediscover the value of changing his mind, but under the circumstances, the best guess is that—put to a choice between feeding his anti-government base or mitigating economic disaster—Romney would make a bad situation much, much worse.

Last week, Elizabeth Warren—the likely Democratic nominee for the Massachusetts Senate seat formerly held by Ted Kennedy—found herself on the defensive over charges that she had previously claimed to be part Native American.  Yet virtually nobody in Massachusetts will be choosing between Warren and incumbent Republican Senator Scott Brown on the basis of issues involving federal policy regarding Native peoples.  So why was this story news?

In large part, the answer is politics.  Warren was the leading champion of endowing the new federal Consumer Financial Protection Bureau with robust powers, making her a hero to progressives and a bête-noire to the Republicans who blocked the possibility of her appointment to head that bureau.  Given the high-stakes battle for control of the Senate and the likely role that Warren in particular will play if elected, it is not surprising that Warren’s political opponents would seize on any potentially embarrassing detail of Warren’s past.

Still, the foregoing analysis leaves open the question of why this particular issue appears to have resonance.  In this column, I consider but then reject the suggestion of the Brown campaign that Warren’s conduct calls her integrity into question.  Instead, I argue that if this story proves to have legs, it will be because it reinforces popular uneasiness about certain features of affirmative action that conservatives have successfully used to drive a wedge between two Democratic constituencies: minority voters and working-class white voters.

The Claim, and the Truth, as Far as We Can Tell

For most of her professional career, Elizabeth Warren has been a law professor, first at the University of Houston, then at the University of Texas, then at the University of Pennsylvania, and since 1995, at Harvard.  Warren’s specialty is bankruptcy law.  She is clearly a distinguished scholar and a leading expert in the field.

Warren garnered national attention when she served as chair of the Congressional Oversight Panel for the Troubled Asset Relief Program (TARP), bringing an unusual combination of populism, common sense, and sharp-eyed business acumen to the task.  She was also a leading advocate for the creation of the Consumer Financial Protection Bureau.

It does not appear that Warren trumpeted her alleged Native American roots in her academic or public policy work.  She did from time to time mention them, including in the directory of the Association of American Law Schools—which is essentially an annual telephone book of American law professors.  Warren and Harvard have denied that Warren sought or received any special consideration in hiring or promotion because of her Native roots.

What are those roots?  Warren has said that her family told her about Native ancestors, and genealogist Christopher Child has identified records showing that one great-great-great grandmother of Warren was Cherokee, making her 1/32 Cherokee.  That very slight degree of Native ancestry would not qualify Warren for tribal membership, but it does undermine the view that her claimed Native ancestry was an out-and-out lie.

The Integrity Issue

The Brown campaign and some commentators have suggested that Warren’s exaggeration (at best) of her Native roots casts doubt on her integrity.  That charge, however, is flimsy.  There is no indication that Warren ever invoked her Native roots in connection with her public service.

Of course, as scandal after scandal attests, personal misdeeds can shed negative light on the character or judgment of any particular individual.  Thus, a lie or exaggeration in one’s personal life could indicate that the liar or exaggerator would be less than scrupulously honest in his or her public life.

But if so, one surely needs some account of how the personal translates into the public: Newt Gingrich’s defense of traditional personal morality despite his own serial infidelity bespeaks hypocrisy; John Edwards’ own infidelity also bespeaks hypocrisy and may have veered into criminality; Anthony Weiner’s recklessness in tweeting sexually suggestive photos bespeaks a general lack of judgment and a certain creepiness to boot; and so on.

By contrast, Warren’s identification with her Native roots, however thin they may be, looks fully consistent with her tendency to champion the underdog.  Her family told her that she was partly descended from Native people, and she accepted their statements.  Her failure to demand a DNA test or a genealogical chart tells us virtually nothing about her character.

The Lurking Issue: Affirmative Action

Nothing, that is, unless Warren exaggerated her Native roots as a means of career advancement.  For then, Warren could be characterized as a cynical careerist.

To be clear, there is no credible evidence that Warren ever exaggerated her Native roots in the hope that institutions like Harvard would want to hire and retain her for the purpose of making their faculty appear more diverse.  But even if Warren did not collaborate in such a deception, it is nonetheless possible that Harvard or one of the other law schools at which Warren taught “counted” her Native status as an asset.

Minorities, and especially Native Americans, are underrepresented among the faculty of Harvard Law School—as they are at nearly every other elite institution in America.  That is hardly surprising, given genocidal policy towards Native peoples stretching back over five centuries.  Nor is it surprising that, as with other members of disadvantaged minority groups, Harvard (and other institutions) would be eager to hire and promote highly-qualified Native Americans when possible.

Under federal law, programs of affirmative action for minority faculty can only be justified if they remedy specific acts of discrimination perpetrated by the relevant institution, or serve to foster greater intellectual diversity.  In fact, proponents of affirmative action often have additional reasons for seeking to hire people of color: They may also seek to remedy discrimination in a broader sense; they may value integration for its own sake; they may wish to provide role models for students of color; and so forth.

But whatever the reasons offered in support of affirmative action, such programs have long been regarded with suspicion by much of the public.  Among the arguments against them are these: Affirmative action is unfair because it makes innocent third parties pay the price to remedy discrimination they did not cause; it is counterproductive because it leads outsiders to question the credentials of its beneficiaries; and it reproduces the very harm it seeks to remedy, using a two-wrongs-make-a-right logic.

In addition, opponents of affirmative action sometimes argue that even if it can be justified in principle, it benefits the wrong people in practice: children of minority professionals who were raised in relative privilege, rather than poor children who were raised in the inner city (or in the case of Native Americans, on reservations).

Defenders of affirmative action push back against the “wrong people benefit” argument by noting that minorities often experience discrimination even if they are economically well off.  But it is substantially more difficult to push back against that argument when the beneficiary of affirmative action is not even identifiably a member of any minority group.  If Elizabeth Warren, for example, received any career benefit from being 1/32 Cherokee, then that fact may be invoked to call into question the whole idea of affirmative action.

Did Warren receive any such benefit?  Again, it appears that she did not.  But the beauty of this “issue” for the Brown campaign, and for Warren’s political foes more broadly, is that it does not really matter whether she said or did anything to gain advantage from her slight Native ancestry.  Merely making affirmative action a salient issue in the election threatens to harm the Warren campaign.

Why?  Because the natural constituency for Warren includes minority voters—who strongly favor Democrats—and middle-class and working-class whites, whose economic interests Warren has championed.  But the issue of affirmative action splits that coalition, with minorities generally favoring the policy as a means of overcoming what they experience as ongoing and pervasive discrimination, while middle-class and working-class whites regard these policies as systematically devaluing their own interests.

Not to put too fine a point on it, but by raising the question of Warren’s Native-ness, Brown and the Republicans are attempting to reuse a strategy that Republicans have used at least since candidate Richard Nixon’s Southern strategy: Unleash white voters’ racial resentments to induce them to vote against their larger economic interests.

Will it work?  Possibly.  Although Massachusetts in 2012 is hardly Mississippi in 1968, we do well to recall that some of the fiercest opposition to court-ordered busing occurred in 1970s Boston.  Much has changed in Massachusetts in the ensuing decades, but in going after Warren for the “Cherokee issue,” the Brown campaign is betting that much has also remained the same.  We will find out whether that bet pays off in November.

Many consumers hope that they will win a free trip to Paris by entering a lottery or sweepstakes.  But now, especially good-looking men and women may have a new way to score that trip to Paris:  They can register online to have someone else foot the bill for Spring in Paris or Tahiti, as long as they are willing to have a wealthy companion by their side—potentially during both waking and sleeping hours.

MissTravel.com—a website that was launched just a few weeks ago, yet already has more than 20,000 members—offers itself as a place where pretty but penniless people can meet up with generous fellow travelers who will pay for their companionship.  The site says that it matches “generous travelers who hate to travel alone with attractive travelers who would love the opportunity to travel the world for free.”

Critics, however, liken the site to an online escort service—one that allows escorts or high-end call girls to earn frequent-flier miles. The site emphatically states, “Escorts are not welcome,” but online commentators—including one on the site Gawker—have called the site an e-pimp service for prostitutes who are willing to travel.

In this column, I will describe this new site and the legal issues it raises.  In particular, I’ll consider (1) whether the site could get in trouble for possible illegal activity by patrons, and (2) whether there is any recourse if the good-looking men and women who serve as escorts find themselves in hot water when things unravel overseas.  As the Internet becomes a medium for people to connect for everything from marriage, to illicit affairs, to paid sexual services, regulators and users alike have to navigate ever-changing and possibly risky territory as new business models develop.

What is Travel Dating?

Miss Travel bills itself as “the #1 Travel Dating website.”  As noted above, its stated purpose is to match generous travelers who don’t want to travel solo with self-styled “attractive” travelers who would love the opportunity to travel the world for free. At the moment, it appears to be the only travel dating website available online.

Miss Travel was founded by Brandon Wade, the entrepreneur behind the sugar-daddy dating sites SeekingArrangement.com and Seekingmillionaire.com, and the bid-for- a-first-date site WhatsYourPrice.com.  MissTravel.com bills itself as a site where an attractive young woman who has an urge to see the world, but who “lack[s] the funds to fulfill [her] travel dreams” can meet up with a “gentleman who has had some difficulty with the ladies, but [has] money to burn on airfare, high-end hotels, extravagant dinners, clothing, shoes, and entertainment.”

For now, the profiles of Miss Travel’s generous paying members (who are predominantly male) and their beautiful would-be travel companions (who are predominantly female, and who can register for free) are visible online.  Members state whether they are married or single, and stipulate the kind of relationship they want—which ranges from companionship to discreet affairs for those who are “married but looking.”

The site has posted notices that escorts are not welcome.  Moreover, Wade stated on “Good Morning America” that “There’s no money exchanged,” and said, “Sex isn’t even discussed, so why are we thinking that it could be like prostitution?

Yet while sex is not discussed by the site itself, travelers are asked if they want a sexy travel companion, and the profiles of site users indicate that they may have more prurient ideas on their mind.

Concerns About Safety Abroad When Things Get Rocky

Critics of the site worry that when someone is shelling out a fortune to take an attractive man or woman on a trip, they will expect something in return, aside from a peck on the cheek and a photo in front of the Eiffel Tower.

Thus, as some commentators have noted, worrisome questions may arise: What happens if the man who paid for you suddenly isn’t enjoying your company? Or, what if he asks you to perform certain sexual acts that you aren’t comfortable with?  For this reason, some have warned potential companions away from the site.  Granted, any blind date has its risks, but it’s a lot easier to cope with a date gone awry when you are on your home turf.  What if you are assaulted or harmed while overseas?  In some countries, the police or law enforcement may be no help at all.

In response to such concerns, founder Brandon Wade insists that he is not suggesting that his members go on travel dates with complete strangers without doing some homework first.  As a result, he has posted some travel and safety tips on the website—a series of bullet points with seemingly generic advice about precautions to take when going abroad.

The site also reminds people that “MissTravel.com is just an online venue where people meet. We do not screen our members nor are we involved in any actual communication between members. As a result, we have no control over the quality, safety, or legality of the information or profiles posted or the truth or accuracy of the information.  Per our Terms of Service Agreement, you agree you are solely responsible for your interactions with other MissTravel.com members. So please proceed with care.”

Despite this disclaimer, could Miss Travel still find itself subject to suit if things go wrong?  Possibly, but it may be difficult to prove that the site had any duty to its members to ensure their safety.  The risks to users, though, may be grave.  What if a teenager manages to elude any age verification, and uses the service?  Or, might someone find themselves kidnapped or spirited away and trafficked if they go abroad?  These are the potential consequences of leaving the country with a person who is at best a mere acquaintance

And if criminals or sexual predators start to use the site to trawl for possible victims, then what? One can imagine a true-to-life episode of “Law & Order SVU” as a possible outgrowth of this new innovation of “travel dating.”

No wonder Wade includes the following disclaimer in Miss Travel’s liner notes: “Remember, online dating is risky, and we always recommend that our members practice a common sense approach when meeting a stranger online.”

The site also has a page of safety tips, as noted above—and in those tips, it reminds users that it is their sole responsibility to take care of their safety while on a travel date.  But it’s one thing to take a cab back home from a dinner that’s gone sour in your home city, and quite another to think about trying to get out of a difficult dating situation while overseas.

Legal Issues: Is Miss Travel Effectively an Online Escort Service and If So, Will Any Consequences Ensue?

A key legal issue here is whether Miss Travel may be somehow profiting from or operating an online escort service.  Wade staunchly denies this.

But Neetzan Zimmerman at Gawker says “it’s really the #1 prosti-travel website,” and describes Wade as an “e-pimp.”  Zimmerman points out, as well, that Wade’s other websites—SeekingArrangement.com and SeekingMillionaire.com—are seemingly straightforward cash-for-relationship sugar-daddy  sites.

Despite the Miss Travel site’s disclaimers, it seems obvious that most of the men who  pay someone to go on an extravagant trip will probably expect to have sex on their vacation. If that indeed happens, does it qualify as prostitution?

The answer is that if the majority of the site’s travel companions view this as a commercial arrangement, one by which they earn their primary living, and do have sex with their fellow travelers, then perhaps what Miss Travel does will be defined under the law as prostitution.

The Laws and Recent Prosecutions Relating to Websites That Are, or Are Linked to, Escort Services

In recent years, state and federal authorities have pursued online advertising sites that have featured escort ads, including Craigslist.org, Escorts.com, and BackPage.com.  Craigslist and Backpage have also been sued for damages arising from their advertisements.  However, they have been found immune from suit under the federal Communications Decency Act (CDA), which was passed as part of the Telecommunications Act of 1996.  The Act states, at 47 U.S.C. § 230, that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Craigslist and BackPage were viewed, under the law, as passive service providers—with ads being created and posted by the site’s users.

For this reason, websites that advertise escort services may be immune from civil liability. There is still the possibility, however, that a website that knowingly induces prostitution might be criminally liable  Section 230(e) of the CDA establishes that § 230 “shall not be construed to impair the enforcement of” any federal or state criminal law.  Thus, § 230 does not foreclose criminal prosecution of websites that intentionally offer illegal escort services

Recently, two Philadelphia companies were ordered to pay a $1.5 million fine and forfeit $4.9 million after pleading guilty to money laundering.  The two companies—National A-1 Advertising and R.S. Duffy Inc.—also agreed to forfeit a domain name, Escorts.com, under the terms of a sentence imposed by a Pennsylvania-based federal court.

Escorts.com was prosecuted for facilitating “interstate prostitution.”  Prostitutes and their customers paid to use the site to set up their illegal assignations.  From January 2007 through October 2010, the two companies received around $5 million from Escorts.com subscribers. According to court documents, the website made specific reference to sex acts being performed in exchange for money.  Miss Travel definitely does not do that.

In August 2010, a group of state Attorneys General (“AGs”) took aim at online escort advertising—in part because of concerns that underage human-trafficking victims were being advertised on the Internet.  The AGs sent a demand letter to Craigslist asking the company to remove its adult personals category.  Craigslist eventually abandoned its “erotic services” category—although other adult categories relating to people seeking sexual relations are still permitted on the site.

The AGs also took on Backpage.com, calling on the site to terminate its online advertising of “adult services” under the threat of criminal charges.  In response, Backpage implemented new security procedures for adult personal ads  (e.g., better age verification).  In July 2011, the case against Backpage took on new life, as Seattle Mayor Mike McGinn, labeled Backpage a “well-known accelerant of underage sex trafficking,” and ordered his city departments to terminate any advertising relationship with the Seattle Weekly, which carried Backpage’s ads and is owned, alongside Backpage, by Village Voice Media.

It’s unlikely that law enforcement will soon set its sights on Miss Travel, which is still in its infancy.  But if things start to go wrong, Miss Travel may well find itself subject to harsh scrutiny.  In recent years, AGs have gone after online web services that are viewed as hosting or facilitating prostitution, or in any way permitting the exploitation of minors.  Thus, if Miss Travel is not careful, it might end up the subject of an investigation as well.

Facebook recently announced a feature that allows a user to add “Organ Donor” as a “Life Event” to his or her timeline.  (Justia columnist Anita Ramasastry described Facebook’s Timeline, and the mandatory transition to it, in a prior column.)  Whether a user opts to provide his or her organ donor status is entirely up to the user, but the intent of the new feature is to spark discussion and raise awareness about organ donation.

If the first week of the new “Organ Donor” feature is any indication, it is a huge success. Donate Life California reported a staggering 3,900 signups on the first day alone, up from a typical 70 per day. Similar spikes have occurred throughout the U.S., and the U.K.—the only two countries in which the feature is currently available.

The potential benefits of such a campaign to raise awareness cannot be overstated.  According to a news release from Johns Hopkins Medicine, over 114,000 people are waiting for organs in the United States, and the need continues to increase.  Moreover, the news release cites surveys finding that upwards of 90 percent of Americans say that they favor organ transplantation, but only 30 percent are official organ donors.  Facebook’s new feature may shrink that disparity.

In this column, I will first consider why, in light of the countless philanthropic causes available, Facebook chose organ donation.  Based on this framework of what constitutes a “viable” cause for the purpose of Facebook, I will discuss the implications—both positive and negative—of this development, which brings social media and social awareness together.

Why Did Facebook Choose Organ Donation As Its Cause to Promote?

Of the thousands, or even millions, of philanthropic causes it had to choose from, Facebook somehow chose organ transplants as the single best issue to initiate its foray into social awareness.  While it may have been mere serendipity that led Sheryl Sandberg, Facebook’s Chief Operating Officer, and Andrew M. Cameron, M.D., Ph.D., a transplant surgeon and associate professor of surgery at Johns Hopkins, to brainstorm about how each of their respective fields could benefit from the other, the answer is likely more complex.

Assuming, based on the initial success of the new feature, that Facebook is on the way to achieving its goal of recruiting many more organ donor registrants than currently exist, I will look at the factors that likely contributed to the success of its choice.

First, registering is really easy.  Registering to be an organ donor requires almost no effort.  To register, you must simply fill out a simple form that is shorter than most online retail purchase forms, and you’re done.  The ease and speed here is important:  Anyone who has ever worked in nonprofit development or fundraising knows that the easier it is for people to give, the more likely they are to do so.  (Similarly, in the for-profit world, the easier it is for people to spend, the more and more frequently they do so—consider, for example, the effect of the invention of the credit card or the advent of Apple’s iTunes Store.)

Even before Facebook introduced its organ donor feature on May 1, 2012, signing up was easy:  One needed only to visit the Donate Life website to register as a donor.  But  in order to register, a person would first have to acquire the desire to be a donor, and, second, know how to become one. With Facebook’s new feature, these two prerequisites disappear.  By introducing the need for organ donors, Facebook sparked, in many, the desire to become one.  And as to the process required to become a donor, Facebook made an already easy process even easier, with minimal effort on its own part.

Second, organ donation requires no money.  Most philanthropy requires some sort of monetary transaction, or a promise to give or perform something of value.  Potential donors may well worry that they might themselves need the money or other thing of value, later in life.  With organ donation, however, the thing of value is transferred after the donor’s death—when the donor’s fear of personally needing that thing is gone. While many of our day-to-day obligations would be discharged upon our death, this one actually vests at that time.  The campaign slogan might as well be “Want to help others without incurring any expense or investment of time?  Register to donate your organs.”

“Causes on Facebook” used to be a prominently featured application in Facebook that allowed users to “organize themselves into communities of action that support specific issues, campaigns, or non-profit organizations.”  Non-profits were able to use Causes “to spread awareness about their work, recruit new supporters, launch fundraising campaigns, and sponsor petitions.”  However, a Washington Post article suggested that Causes was not as effective at fundraising as was first expected. The article points to the smaller size of donations, among other things, as a downside of online (as opposed to other) fundraising efforts.  But the “Organ Donor” life event feature, unlike Causes, does not depend on a dollar amount, which may be an additional factor in its initial success.

Third, organ donation is largely apolitical and irreligious.  Many of today’s social hot topics are entwined with one’s held views on politics and religion.  Contraception and abortion, LGBT issues, environmental issues, and even discussions as to the proper scope of certain human and civil rights are highly divisive, with the division based on one’s political or religious ideologies.  In contrast, almost all major religions condone or encourage an individual to choose to donate his or her organs upon death.

One reason that organ donation may transcend the typical political and religious skirmishes is that the recipient is seen as faultless, and the donor as the very paragon of selflessness.  Although large companies do often take sides on controversial social issues, Facebook’s choice of an uncontroversial social issue was surely calculated to improve its likelihood of success.  Possibly Facebook may someday work up to more controversial goals, or perhaps it will stay with goals with which almost everyone will agree—like providing clean water, preventing malaria, and ensuring that there is worldwide education for girls, and not just boys.

The Implications of Facebook’s Success With “The Organ Donor” Feature—And Some Possible Risks the Feature Raises

While the success of an attempt to raise awareness and initiate change for the good of society is undoubtedly desirable, we should also consider the implications of using Facebook for purposes beyond mere social networking.

Some critics of Facebook’s new “Organ Donor” feature caution that users should be extremely cautious when making their health information publicly available.  They advise that federal privacy laws such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA) do not protect medical information that is disclosed on Facebook.  Yet, even putting donor status information aside for the moment, the social networking giant already allows users to provide other kinds of medical information: broken bones, weight loss, and overcoming or changing habits are among the “Life Events” users can share with others. Whether sharing such information is wise is an entirely different question, beyond the scope of this inquiry. (Anita Ramasastry, in a prior Justia column, also noted that information on Facebook may be used to calculate or recalculate health insurance premiums.)

Recently, Craigslist founder Craig Newmark announced an experimental “social media fundraiser.” His offer was to donate $1 to the National Wildlife Federation for each Twitter mention of the hashtag #Squirrels4Good.  Within 24 hours, there were already over 1,000 such tweets.  Like Facebook’s organ donation campaign, Newmark’s philanthropy required minimal effort and no money, and its goal was uncontroversial. (Who doesn’t love animals?)

Let’s assume that Facebook’s endeavor to promote registration for organ donations is ultimately successful, by some metric, as was Newmark’s.  The corollary question is whether its success demonstrates the viability of using Facebook to catalyze other types of social changes, thereby transforming Facebook from what was once a form of social networking, into a form of social engineering as well.

It is not a far cry to imagine that Facebook could go from campaigning for organ donor registration to be triggered upon one’s death, to also advocating that persons register for the kinds of donations they can make while still alive, such as donations of one kidney, of a portion of one’s liver, and of bone marrow.  However, unlike Facebook’s “Organ Donor” feature, such donations by the living would present concerns about the commoditization of organs, the law and ethics of which Justia columnist Sherry Colb discussed in a prior column for Justia

Alternatively, nothing prevents Facebook from going beyond those causes that are apolitical and irreligious, to taking stances on controversial issues as well.  With 526 million users worldwide, Facebook is a potent tool for reaching people in every corner of the globe almost instantaneously.  While its imminent public offering may affect the company’s subsequent ability to wield its power in an attempt to effect widespread change, the “Organ Donor” feature alone has given us an initial glimpse into one possible use of a massive global network, and the kind of power such a network can yield—for the good, and otherwise.  Whether and how this power will be used in the future remains to be seen; we can only hope that those responsible for it exercise great care with its use.

The Watergate reporting by Washington Post reporters Bob Woodward and Carl Bernstein is now being questioned because of material discovered by Jeff Himmelman, who has written a new biography of Ben Bradlee, the Post’s former executive editor.  Himmelman is a former research assistant to Woodward, who, in turn, introduced him to Bradlee to assist on a book project that, in the end, became Himmelman’s soon-to-be-published Bradlee biography.  An excerpt from the book in New York Magazine has raised questions about whether Bradlee thought that all the details he was given by Woodward and Bernstein about Woodward’s source Deep Throat were accurate. (For examples, see here and here.)

To me, the most interesting information that Himmelman has revealed so far is contained in a seven-page memorandum that he found in Bradlee’s files.  The memorandum was written by Carl Bernstein in December 1972, and it summarizes Bernstein’s conversation with a woman who had served on the Watergate grand jury.

This episode almost got Woodward and Bernstein into serious trouble.  Ironically, the fact of the existence of this memo is exactly the kind of information Bob Woodward would call “a holy shit story,” because it causes anyone knowledgeable about the facts to ask: Is this a smoking gun?  Evidence of criminal conduct?  Has the statute of limitations run?

Carl Bernstein recognized the significance of this find when he wryly told Himmelman, “Maybe they’ll send us to jail after all.”  As Himmelman notes in passing, the grand juror conversation memo would not have been amusing to Judge John Sirica, had its existence been known at the time that he learned of Woodward and Bernstein’s efforts to contact grand jurors, for the judge made clear in his memoir, To Set the Record Straight, that he would have sent Woodward and Bernstein to jail “had they actually obtained information from that grand juror.”  Clearly, Sirica believed that had never happened—but in fact, it did.

Until Himmelman discovered the old document in Bradlee’s files, only Woodward and Bernstein themselves knew that, in fact, if Carl’s memo is accurate they had indeed obtained information from that grand juror—information which, as New York Magazine illustrates with a graphic, they disguised as coming from a conventional (that is, non-grand-jury) source.  They called the source “Z,” and Woodward later said that Z was in the same league as Deep Throat in terms of importance.

Woodward and Bernstein’s Recollections Of “A Seedy Venture”

In All The President’s Men, Woodward and Bernstein described their efforts to get information from grand jurors as “a seedy venture” and “a clumsy charade.” They write that the effort was, nonetheless, undertaken with an okay from the Post’s lawyer Edward Bennett Williams, who advised them that it was not illegal.  Bob Woodward rhetorically explained his concern, and their situation, by wondering in All The President’s Men “whether there was ever justification for a reporter to entice someone across the line of legality while standing safely on the right side himself.”

When a grand juror reported that he had been contacted by the Post’s reporters, it was the Post’s attorney, Ed Williams, who worked the problem out with the prosecutors and the judge.  It appears that Williams was able to do so because it was (incorrectly) believed that none of the grand jurors had imparted any grand-jury information to Woodward and Bernstein.  Based on this new evidence it seems that Woodward and Bernstein were volunteering nothing to anyone, including Williams.

Earl Silbert, the chief federal prosecutor on the Watergate break-in case, wrote in his contemporaneous diary that he gave Woodward and Bernstein a pass even though Judge Sirica was not pleased with this approach, because he had no evidence that the grand jurors had provided Woodward and Bernstein with any grand-jury information.  Silbert, while acknowledging a request by Judge Sirica that he “look into the law,” wrote in the diary that he did so only “quickly” because the “next morning [Judge Sirica] called [him] down to his chambers with a proposed solution to the [Woodward and] Bernstein matter, which was to make a general statement with the grand jury present, commending the Grand Jury for their actions in not disclosing any information and serving a warning on news media person[s] in general, without naming anyone, [that] this was not to go on anymore, not to continue upon pain of contempt.”  Because this had been Silbert’s own suggested approach, it was acceptable to him.

In his 1995 autobiography, A Good Life: Newspapering and Other Adventures, Ben Bradlee recalled this venture, explaining that it had started when a neighbor of Post editor Ben Cason got a tip about a disgruntled grand juror, and Bradlee dispatched Woodward and Bernstein to talk to the lady, after getting “reluctant” agreement from Ed Williams.  It turned out that the disgruntled lady was not actually on the Watergate grand jury.  But Woodward and Bernstein’s interest had been whetted, so Woodward obtained the names of Watergate grand jurors surreptitiously (memorizing a few at a time, after the clerk said they could not be copied from the files) and the undertaking continued.  When Woodward and Bernstein write about the venture in All The President’s Men, the reader is given the impression that the effort yielded no success, but in fact, Bernstein’s memo show it did.

Ben Bradlee also said that the effort with the grand jurors was fruitless, and noted how “the prosecutors recommended taking no action since no information had been given the reporters by the grand jurors.”

Himmelman says that he asked Bradlee about the Bernstein memo in his files but it did not “ring a huge bell.”  Bradlee told Himmelman, “I don’t ever remember probing whether they had talked to a grand juror.  Maybe because I was scared that they had.” Bradlee also wrote in his 1995 memoir that given the same circumstances, after being told by Williams it was not illegal, he would do it again.

It is not clear why Ed Williams, a seasoned and renowned criminal defense attorney, reluctantly thought that this action of reporters’ talking to grand jurors was not illegal, while Judge John Sirica thought that it was illegal, and would have jailed Woodward and Bernstein had he known that they had received grand jury information.  Because it was believed that nothing had actually been leaked from the grand jury, the question of the correct interpretation of the law—whether Williams’s or Sirica’s—was not really addressed.

Did Woodward And Bernstein Break The Law?

Frankly, it is still unclear, even today, whether or not Woodward and Bernstein broke the law when they spoke to the grand juror.  There is little law on the subject.  On a somewhat parallel set of facts, the Supreme Court of Indiana refused to hold reporters who similarly obtained grand-jury information in contempt under that state’s law in its March 27, 1990 decision in Indiana v. Heltzel.

In casual, off-the-record conversations with those who are knowledgeable about criminal law, I found no clear consensus opinion on the legality or illegality of Woodward and Bernstein’s reporting of grand-juror comments—not only because the law is murky, but also because we still do not know all the facts.  Himmelman, in the excerpt, does not examine the law as it applied to Woodward and Bernstein, although he does opine that the grand juror who was involved “had apparently broken the law by talking” to Woodward and Bernstein.  Others reporting on this story has also pointed out that the law is unclear. If that is true, then there might also be a due process problem raised by applying the law in a criminal case, where due process must especially be heeded. Vague and/or ambiguous criminal statutes cannot be constitutionally applied.

In my own discussions with attorneys on the subject, I found competing views (a) holding that a reporter’s talking to a grand juror is not a violation of the law and (b) holding that it is.

There is one area of clarity here, though:  There appears to be no statute of limitations on charges of contempt of court or charges based on a violation of Rule 6(e), regarding grand jury secrecy, while other potentially-applicable provisions could be subject to a statute of limitations.

Undoubtedly, there are more views on the correct interpretation of the law in this situation, but the following sampling of attorneys’ opinions, alone, illustrates the problems of assessing the legality of Woodward and Bernstein’s activity:

The View that Woodward and Bernstein Had a Complete Advice-of-Counsel Defense

One view holds that there was no criminal conduct because Woodward and Bernstein proceeded based on the advice of counsel—and not just any lawyer either, but one of the most highly-regarded criminal lawyers in the country at the time. In short, a powerful case can be made that Ed Williams’s advice negated any criminal intent on Woodward and Bernstein’s part in undertaking these actions.

Further evidence of Woodward and Bernstein’s effort to not violate the law is the fact that, as they write in All The President’s Men, they actually looked at Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure and concluded that it applied only to grand jurors, and not to reporters soliciting or enticing grand jurors to provide secret information in violation of their oath of secrecy.

The View that There Was Criminal Conduct Because Woodward and Bernstein Ignored Judge Sirica’s Admonitions Not to Use Grand Jury Information In the Future

Another view holds that Woodward and Bernstein engaged in criminal conduct because (1) after Judge Sirica let them off for earlier violations and warned against a recurrence, they still used the grand jury information in writing All The President’s Men (as graphically noted by the New York Magazine); and/or (2) Woodward may have effectively admitted to a conspiracy under, for example, 18 U.S.C. 371, when he wondered in All The President’s Men “whether there was every justification for a reporter to entice someone across the line of legality while standing safely on the right side himself.”

Needless to say, these are extremely complex issues, which I have oversimplified, not to mention that we do not have all the facts. Frankly, I think that when Bob Woodward told Jeff Himmelman that this was all about “a footnote to a footnote,” he got it right.  The only person who might still feel otherwise is Earl Silbert, the prosecutor who let Woodward and Bernstein off the hook at a time when he had what we now know to be less than complete information about their actions.  But as I write this, Silbert has not made any public comment.