This file includes new notes as well as those originally published in 1997. In the iUniverse version, the numbers start at 352.
Chapter 5 Running Footnotes (John W. Boushka; tally; match to original text on xchap5 file )
2 "What is GLIL," The Quill, Oct., 1994. "Classical liberalism" refers to the notion that individual rights and expression are the most important value in a political system.
3 Advocates for
4 See David Boaz, Libertarianism: A Primer (New York: Free Press, 1997) pp. 20-21. These pages present, for comparison, the standard political science charts (how Communism-Left completes a full circle with Fascism-Right, and how (leftist) Liberal, Libertarian, Populism, and "Conservatism" (old-fashioned usage) fit into a simple chart. Boaz uses the term "statism" as a practical synonym for "authoritarianism."
5 Harry Browne, Why Government Doesn't Work (New York: St. Martin's Press, 1995).
6 Perry Deane Young, God's Bullies (New York: Hold, Rinehart
and Winston, 1982), contains a chapter on secretly closeted gays within the
religious right and the Reagan administration, pp 132-154. True, conservative
gays and Republican gays tend to take the attitude that you have to prove
you're good enough as a person to belong regardless of the prejudice against
"queers" as a "group." The closet and double-like becomes a
source of feeling "special" or connected. Imagine this "Uncle
Tom" attitude, carried to extreme, if applied to blacks during
segregation. Also, see J. Jennings Moss, "The Outsiders," The Advocate,
7 David Boaz and Edward Crane, "The Collapse of Statist Values," Market Liberalism (Washington, Cato Institute, 1993). However, in his Primer, Boaz uses the term "libertarianism" more broadly, reflecting an attitude of "classical liberalism" with great (but not radical or anarchistic) restraints on government, especially federal government.
8 Libertarian Party candidate (1996) for Pennsylvania Attorney General, T. Collins, wrote (in 1994) a white paper proposing the notion of "state citizenship" to avoid federal income taxes.
9 In practice, libertarians tend to favor term limits and are somewhat divided on campaign finance reforms; they would dislike adversarial politics but not want to interfere with candidates who can spend their own money.
10 The Christian concept corresponding to "cooperation" is "hospitality." The concept of "spontaneous order" was developed by F.A. Hayek and others: "Made Orders and Spontaneous Order" by Hayek, and "Two Kinds of Order" by Polanyi, in David Boaz (editor), The Libertarian Reader. (New York: Free Press, 1997).
In his 1996 presidential campaign, Harry Browne maintained that we can afford to get rid of the Federal income tax (and replace it with nothing) if we drastically reduce the Federal government to the purposes which, taken as literally as possible, the founding fathers apparently intended (especially when they wrote the Ninth and Tenth Amendments). These functions would include national defense, foreign policy, and a federal judiciary and perhaps (very minimally) oversight of interstate commerce. Browne suggests a national asset sale to pay for these functions.
10c There are a few libertarian-leaning law schools, especially George Mason University in Fairfax, Va., known also for its Institute of Humane Studies, which provides grants for individual freedom policy education and policy research and invites students to summer forums,
11 Andrew R. Cecil, Introduction, The Ethics of Citizenship from Lectures on Moral Values in a Free Society (The University of Texas at Dallas, 1980), p. 16.
12 Boaz, Libertarianism, op. cit., pp. 64-70.
13 James Hutson, "The Bill of Rights and American Revolutionary Experience," from A Culture of Rights, ed. by Michael Lacey (London: Cambridge University, 1991).
14 Robert Bork, The Tempting of
Robert Bork, Slouching Towards
15 Michael Lerner, The Politics of Meaning (New York: Addison-Wesley, 1996).
16 Andrew Peyton Thomas, "Can We Ever Go Back?" The Wall
17 Supporters of the recently vetoed bill against late-term partial-birth abortions describe horrific procedures where babies are murdered with only their heads still within the womb (before they are legally born, when their killing is still legal abortion). Certainly I abhor such procedures: the woman's control of her body is just a hypothetical point in these situations.
18 In the 1976 film Logan's Run, everyone was executed at the age of 30!
19 William Murchison, Reclaiming Morality in
20 Former National Gay and Lesbian Task Force President Melinda Paras always spoke of fundamental collective "fairness" as an underlying moral value. It's not fair for the handicapped to be denied accessible parking spaces, and it's not fair for gays and lesbians to be discriminated against (speech for Fairfax County Va. GAA, April 1996).
21 George Will, Statecraft as Soulcraft: What Government Does (New York: Touchstone, 1983). P. 31 discusses conscription in the context of self and community interest.
22 Dean Hannotte, introduction to Paul Rosenfels, Homosexuality: The Psychology of the Creative Process (New York: 9th Street Center, 1971/1986), p. iii.
23 William Channing, "A Human Being Cannot Be Justly Owned," from Boaz, Libertarian Reader, pp. 88-91. This piece, to condemn slavery, argues self-ownership from the exclusivity of property rights and from the moral equivalence of rights and responsibilities.
F24 Joseph Steffan, Honor Bound: A Gay American Fights for the Right to Serve his Country (New York: Villard, 1992), p. 16.
25 Hillman, The Soul's Code, op. cit., p. 6.
26 Steffan, op. cit., p. 145.
27 Anthony and Cleopatra (1606); p.d.
MacKenzie, op. cit., p. 201, cites the Naval Academy Honor Code. The Code does not now require midshipmen to turn in others they suspect of cheating; however a midshipman resigned in 1996 out of conscience for failure to report a crime of one of his classmates.
28 Dean Hannote, We Knew Paul,
29 Stephen Carter, "The Insufficiency of Honesty," Atlantic Monthly, February, 1996, pp 74-76.
30 David Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994), pp. 323-324.
31 Chai Feldblum, "Sexual Orientation, Morality, and the Law: Devlin Revisited," (Georgetown University Law School and University of Pittsburgh Law Review, 1996).
You could say drug laws may keep about 20% of people who would otherwise drugs from using them. A similar argument can be made about prostitution and gambling laws. You believe they really work? There is more about drug testing at http://www.doaskdotell.com/content/labor.htm
32 Peter McWilliams provides a detailed history of how our drug laws evolved and how they may even feed corporate "special interests." Peter McWilliams, Ain't Nobody's Business If Your Do (Los Angeles: Prelude, 1995), pp. 271-337. Or consider Richard Condon's 1960 novel, Mile High, in which organized crime conspires to bring about Prohibition in order to make a killing on it.
33 Newt Gingrich, To Renew
36 Government also abuses seizures in the environmental areas. James Bovard, "New Assault on Property Rights," The
36a Ch. 5 P 236 pr. 1 Picking on marijuana users is like the military's picking on gays, as the easiest (and most naive) "criminals" to user as prey for the politicians.
In 1997, the Virginia House of Delegates in the General Assembly has already voted to repeal its 1978 state law allowing the medicinal use of marijuana. NBC Dateline covered the asset forfeiture problem in a broadcast in January, 1997.
37 William F. Buckley and others, "The War on Drugs is
Lost," National Review,
38 Frank Herbert, Dune (New York: Putnam, 1965).
39 Robert Samuelson, "Anti-Smoking Hysteria," The
40 An appeals court in
41 Aren't people who get addicted to nicotine morally responsible for their own predicaments? Maybe not if they were deceived by false advertising. But when a litigant lost a wrongful-death suit, her attorney claimed, "we're taking personal responsibility to an extreme." Indeed we should!
42 But see Joan Taylor, "Child Pornography and Free Speech," Liberty, Jan. 1997, p. 38, for a discussion of the way the proposed Child Pornography Prevention Act which would criminalize the depiction of under-age sex even in computer-generated art (and who would determine who "looks" underage?) The "theory" is that prurient interest in children must be stopped.
43 There are four kinds of residential real-estate assumption: (1) full (when the second borrower qualifies and the first gets a novation releasing from liability (2) assigned, when the original owner is liable only for missed payments (3) simple (common with FHA until 1989) and (4) Subject-to, which leaves the original owner completely responsible forever. The common law rule against assignments holds an original borrower liable until the lender gives permission for assumption. Some left-wing writers have urged consumers with bad credit or with no credit to assume loans and insist that sellers "trust" them and not make them qualify.
In the late 80s, when real estate values were declining in some areas of the country, it was common for borrowers to “walk.” Lenders (often after takeovers and mergers or government rescues under the FDIC, following the notorious D’Oench, Duhme Doctrine) began to pursue them for deficiencies, sometimes after foreclosure sales for almost no value, for as long as 4 years after foreclosure (Wiedemer, A Homeowner’s Guide to Foreclosure, Dearborn Financial Pub., 1992). Sellers in unqualified assumption situations would be exposed to deficiency lawsuits but this has not been reported much by the media. See http://www.doaskdotell.com/content/realesta.htm for some philosophical points.
43b. “Hate crimes” legislation, in fact, strikes me as an attempt to have two wrongs make a right. The practical justification, in the case of gay-bashing, is that juries may let an accused off more easily if “homosexual panic” is allowed as a defense, so we need the counter-weight of hate-crimes designation (for gays). I say, punish the crime according to its heinousness, regardless of the victim or of the excuses of the perpetrator. Trouble is, intent and state of mind and pre-meditation are well-established concepts of criminal law. I would encourage laws which treat “hatred” (on a case-by-case basis) as legally a form of premeditation (which wouldn’t have the “principle” problem of treating crime differently according to the class of the victim), but would discourage the reference to the category of the victim in determining the degree of malice. (Remember the killer of Matthew Shepard was punished almost to the full extent of the law anyway.) But in June 2000, the House passed a bill adding disability and sexual orientation to categories that trigger hate crimes consideration.
44 Peter Unger, Living High and Letting Die: Our Illusion of Innocence (London: Oxford University, 1996).
44a Ch.5 P 239, pr. 4: Virginia Gov. George Allen wrote to me: "I believe that the historical husband-and-wife family is the very foundation of our society, and that the state should reaffirm the primacy of the time-tested family model whenever it is challenged or whenever alternative models are held out as its equivalent."
44b But some historians maintain that, whatever the religious right claims to be in the Bible, the Western “nuclear family” did not become accepted as a social model until the time of Napoleon, and then during the Victorian era. If women were regarded as “property” or as “inferior” it is hard to see how monogamous intimate marriages could provide much psychological sustenance.
45 In some African cultures, women are so little respected as equals that female circumcision and clitoral mutilation is still practiced.
46 Note the reunion of the Henry family at the end of Herman Wouk's War and Remembrance.
47 Don Feder, "Society's Stake in
Defending Marriage," The
48 Here's one amusing affront: Nate Penn and Lawrence Larose: The Code: Time-tested Secrets for Getting What You Want from Women - Without Marrying Them (New York: Fireside [Simon & Schuster] 1996).
48a The Census 2000 reports now that less than 25% of all households are traditionally married couples with children. The percent of unmarried couples was 1.9% and the number of single households raised 21% (since 1990).
49 But some observers disagree that most middle class parents
"need" two incomes. Shannon Brownlee and Matthew Miller, "Lies
Parents Tell Themselves about Why They Work,"
49a According to a General Accounting Office (GAO) survey released in January 2002, woemn’s income had fallen further behind men’s between 1995 and 2001. 60% of males in corporate executive ranks had children at home, whereas only 40% of females did, a figure which suggests (to the chagrin of some) that the “mommy track” or even taking advantage of maternity leave materially reduces female advancement in the conventional corporate workplace.
49b Elizabeth Warren and
Amelia Tyagi. The Two Income Trap: Why Middle
Class Mothers and Fathers Are Growing Broke.
an interesting employment discrimination case on Wall Street where female
executives who took maternity leave say they were penalized and unable to
compete with men who did not take paternity leave (or maybe single men) see
50 Barbara Vobejda, "Social Trends
Show Signs of Slowing: Family Characteristics Appear More Stable" The
50a Robert Kuttner, in
an overview, “The Politics of Family,” for aspecial
issue on family values in The American
51 Actually, southern Christian fundamentalism has sometimes stood up for the right of women to have opportunities of their own apart from homemaking their husbands. Christine Heyman, Southern Cross: The Beginnings of the Bible Belt (New York, Knopf, 1997), and Goodwin, op. cit.
References: (Linda Hirshman) http://abcnews.go.com/GMA/AmericanFamily/story?id=1653069&page=1
Mommy wars: video submissions to
52 Ed Mickens, "Is There a Lavender Ceiling," Out, Dec. 1996, p. 150.
52a The Minneapolis Department of Health and Family Services
conducted a survey in 1998 ("SHAPE") which reported that
self-identified "GLBT" people showed a 41.3% achievement of
undergraduate college degrees compared to 27.6% for self-identified
"heterosexuals," and that 26.3% of GLBT's
made over $46,400 a year compared to 17.5% for "heterosexuals." So
maybe having fewer "responsibilities" (or more "disposable
income") makes a difference. Rachel Gold, "
53 Barbara Vobejda, "Day Care Study
Offers Reassurance to Working Parents," The
53b Ch.5 P. 242 pr. 2. William R. Mattox, Jr., argues "With big
families come big rewards," in an op-ed in USA Today,
53c In September 1987, Chilton
Corporation (a credit reporting company eventually bought by
54 The usual proposal is a $500 per child credit; some conservatives
(Phil Gramm) have wanted this amount to be $5000! There is already a credit of
up to $720 per dependent (maximum of two dependents) for day care expenses to
enable a parent to work. See The Ernst & Young Tax Guide 1997 (New
York: Wiley, 1996), p. 464. President Clinton has proposed college tuition tax
credits for parents of dependent children, but conservatives generally claim
this just drives up tuitions. See Pete Dupont,
"Providing Fuel for Tuition Inflation," The
55 Nash, Time, op. cit. (see Ch. 3) and
56 Philip Lawler, "Sex, Marriage, Love, and Babies," The
Wall Street Journal,
57 In the 1950's, "legal separation" was the penultimate remedy. Situation comedies (I Love Lucy) were built around couples that "fight," but up close and personal, I found the idea of fights (the few times I saw them in other peoples' families) terrifying.
58 Barbara Whitehead, The Divorce Culture (New York: Knopf, 1996), provides an interesting history of the transition from "vulgar" to "expressive" divorce as our society has migrated toward emphasis on personal fulfillment and "growth."
59 Back in the 1950's, Ladies Home Journal ran a column, "Can this Marriage be Saved?" by Dorothy Disney.
60 There was a famous case (Bobbitt) in
61 Sheppard and Kathryn Kominas, Accepting Ourselves & Others (Minneapolis: Hazelden, 1996), p. 321, 325-326. Also, Brian McNaught, Gay Issues in the Workplace (New York: St. Martin's Press, 1993), chapter "Homophobia and Heterosexism," pp. 47-64.
62 Ben Wattenberg, "The Grandfather Gap," PBS Broadcast,
63 The Titanic, history series on A&E Cable History Channel, Sept., 1996.
64 The Communications Decency Act of 1996 is discussed in Chapter 6 (overturned by the Supreme Court in 1997). In 1958, the Supreme Court ruled against the Los Angeles Postmaster who had tried to stop the mailing of a homosexual periodical on the grounds that homosexuality per se was obscene. Ed Alwood, Straight News: Gays, Lesbians, and the News Media (New York: Columbia University, 1996), p. 34.
65 Some Fairfax County, Va. parents tried to have The Washington Blade removed from the public libraries in the early 1990's.
66 "Writing rights," The Advocate,
67 Before World War II, Mussolini unashamedly "taxed
bachelors" to help fund his pro-natalist ideas.
Crane Brinton, A History of Civilization, (Englewood Cliffs: Prentice-Hall,
1960), p. 468. The Christian Coalition's Ralph Reed, in Contract with the
American Family (Nashville: Moorings, 1995), correctly points out the
burden of the
One subtle form of marriage penalty occurs on the Schedule D, Capital Gains and Losses form. A single person may subtract up to $3000 in stock market losses, but married persons filing separately may deduct only $1500 each. Of course, the cap on loss deductions raises interesting public policy questions of its own.
67a In fact, Caesar Augustus,
Roman Emperor around the time of Christ, severely taxed men and denied
inheritances to men who were not married by age 25. In Roman society, the
accepted age for marriage was 14 for men and 12 for women. But marriages were
“arranged,” infidelity was often acceptable, and infanticide (rather than
abortion) was sometimes legal, as were the horrible spectacles in the Coliseum.
Slaves came from conquered peoples.
“Morality” was more a “practical” thing in those days; there was no
pretense of the right to life or of universal human rights. See US News and
68c. In 2002, there was study showing that children of women who work full time before their children are at least nine months old do not do as well on intellectual performance. A similar result seems to hold with children who had little breast feeding. This, along with studies regarding reduced fertility among women who postpone having children for career, seems to point to a “collective” problem when women who want to have children early must “compete” with those who don’t or when men reduce the value of fatherhood in their own purposes for sexuality.
68d. Although most mainstream employers today do
not live to consider marital status or family obligation as relevant to the
ability or will to do most jobs (and may believe they are legally forbidden
from inquiring in many states), marital status and especially having dependents
definitely affects eligibility for financial aid for trade schools (as usually
administered by state and sometimes federal programs). This can differentially affect laid-off
employees seeking to acquire new technical schools and certifications for
career transitions. 9source: KRS Computer & Business Scholo,
68e Allan Carlson talks about the “family wage” as a motive behind FDR’s New Deal, on p. 148 of his 1988 book Family Questions: Reflections on the American Social Crisis,” (Transactions Press, 1988), in a chapter called “The Moral Politics of the Minimum Wage.” Carlson believes that modernism and equal career opportunities for women are undermining family socialization.See also note 53b.
69 Jonathan Rauch, "A
Pro-Gay, Pro-Family Policy,". The Wall Street Journal,
70 Males, The Scapegoat Generation (1996).
71 George Gilder, Sexual Suicide (New York: Quadrangle, 1973);
George Gilder, Men and Marriage (Louisiana: Pelican, 1986).
72 Arkes, The Weekly Standard,
Remember, legally married partners cannot be required to testify against one
another (a real "privilege"). In fact, if legally married spouses
file separate returns, the
When companies offer equivalent "domestic partnership" healthcare
benefits to not-legally married partners of employees, the (non-contributory)
premiums are taxable by the
Another example of workplace disparity: heterosexuals often meet future spouses in the workplace; for gays (especially men), courting in the workplace is dangerous, to say the least.
In Bob Powers and Alan Ellis, A Manager's Guide to Sexual Orientation in the Workplace (Routledge, 1995), practical arguments for same-sex domestic partnership benefits are presented, from p. 125. For example, the City of Seattle found no actuarial risk when the policy was instituted in 1990 (and cancelled its surcharge), and the cost of caring for a partner with HIV is usually less than caring for children with severe disabilities; and gays and lesbians do have children to raise.
Gerald Celente: Trends 2000: How to Prepare for and Profit from Change in the 21st Century (Warner, 1998) talks about the "millennium family" (only 26% of families in 1999 are "traditional" one-earner husband-wife with children) and the notion of "progressive libertarianism."
73b marben- contains a summary of the benefits and
drawbacks of legal marriage. In early 2000, the
Whatever the philosophical public policy debate, there is a detailed discussion of actual financial planning issues for gay and lesbian couples (including the effects of Vermont’s law and of domestic partnership employment benefit provisions in many areas) in the essay “Straight Money Facts for Gays and Lesbians” at http://www.ihatefinancialplanning.com/
In October 2001
and death decisions on each other's behalf. As enacted under AB 25, domestic partners will have these rights:
- Relocate with a domestic partner without losing unemployment benefits.
- Use sick leave to care for an ill partner or the child of a domestic partner.
- Be exempt from state income tax the health benefits provided to domestic partners.
- File disability benefits on behalf of an incapacitated partner.
- Make medical decisions in the hospital or act as a conservator.
- Sue for wrongful death as well as seek damages for negligent infliction of emotional distress.
- Administer a partner's estate.
- Bequeath property to a domestic partner using the statutory will.
- Adopt a partner's child using the stepparent adoption process.
- Continue health benefits for surviving partners of governmentemployees and retirees.
Additionally, AB 25 requires health plans to offer domestic partner coverage to businesses and associations similar to coverage offered to dependents of employees and subscribers. This requirement will assist small and medium-sized employers that decide to offer domestic partner benefits to their employees. Further, opposite sex couples may register as domestic partners.
73c. See Owen Ullmann, "Tax Break for
Couples Could Create Imbalance Elsewhere," USA Today,
73d Of course, others besides legal spouses and children can receive inheritances, but legal spouses generally may not be left out of wills. In June 2000, the House of Representatives voted to repeal the inheritance tax (over the sliding $600,000+ limits) completely over some timetable, appealing to the argument to save family farms and family businesses. Above these limits, the estate tax rate raises to 55% now. It could be argued (in conjunction with note 196) that the bill encourages family cohesiveness and weighs against individuals (often gays) who set up lives around interests distant from family matters. The left would argue that completely abolishing the estate tax preserves inherited “privilege.”
Objectivists have supported the idea of inheritance, but generally maintain
that an individual will fare well or poorly in life based on how well he or she
uses the inheritance. Another hidden idea is the “dead hand” – a post-probate condition on the receipt of funds by
heirs. The ability of heirs to keep the money (or receive it from trust) could
depend on some specific behavioral requirements. This is more common in
73e The Canadian government is
not appealing a ruling from the Ontario Supreme Court in June 2003 essentially
allowing same-sex marriages. The effect may be that
73f Jeff Jacoby, in an editorial “Same-sex marriage might ruin traditional family life,” produces a rather collectivist argument against gay marriage in his July 2003 Boston Globe op-ed. To answer “rationalist” arguments for gay marriage, Jacoby quotes a Globe report that of the 5700 gay and lesbian unions in the past 3 years, 2000 came from previous heterosexual marriages. Of course, such an argument diminishes the moral importance of the fact that 2000 individuals made personal choices (now more protected by the Supreme Court as a fundamental right under due process in Lawrence v. Texas sodomy law opinion) for their own personal happiness but for which they can also be held personally accountable. Again, I would like to direct the argument more to the idea that marriage has a lot to do with providing for people who aren’t able to make all of their own choices, and cast the argument in terms of the notion that responsibility for self incorporates responsibility for others. Indeed the gay marriage debate will test the limits of self-ownership and individualism as a moral philosophy, and might well also bring back another debate about filial responsibility, as the elderly population grows and as the gap between rich and poor among families with children gets larger.
However, many adult children would maintain that they are entitled to recover lost wages or expenses from caring for parents. In some cases, this has led to intra-family fraud in guardianship or conservatorship of the elderly. Sometimes elderly persons are declared incompetent with little due process and defrauded by companies, also. See Barry Yoeman, “Stolen Lives: Thousands of older Americans are being robbed of their freedom, dignity and life savings by a legal system created for their protection. How can this happen?” in The AARP Magazine, Jan/Feb 2004, p. 42.
73g David Wilkinson and Chris
Stevenson proposed a Department of the American Family in an op-ed “In support
of marriage” in The Washington Times,
Richard Sincere rebuked the idea of a “Department of the American Family”
with his letter (“Regulation, bureaucracy and the family”) of
74 Mixner, op. cit., p. 141.
74a. On the $600,000 limit (increasing every year since 1996), single people can of course leave their money as they choose (subject to the same limits), but sometimes their wills are challenged, and it is often difficult to leave a spouse out of a will if one wants so.
75 In the Bottoms case in
75b (Dec. 4, 2003,
See also 76j.
The Supreme Court, in January 2005, refused to hear a case (filed by gay
foster parents) challenging a decision from the 11th Circuit
(complicated by Judge Pryor) allowing the
Note - April 1999 N.H. legislature repealed this law (both legislatures by wide margins) and the governor signed.
In April 2000, the
The following states have state court rulings supporting second-parent
adoptions by same-sex couples:
These states that have higher state court rulings denying second parent adoptions,
In these states, judges generally grant them but there is no higher state court ruling on the books:
Alabama, Alaska, California, Georgia, Indiana, Iowa, Maryland, Michigan, Minnesota, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Texas and Washington.
The Newark Star Ledger, on
Andrew Berg provides a discussion, “Will My Kids Be Gay,” in the September 2003 And Baby. Berg writes, “More than 30 studies comparing the children of gays and lesbians to the children of heterosexuals have shown no significant differences when it comes to sexual orientation and gender identity.”
In early 2004 Oklahoma passed a law barring recognition of adoptions by
same-sex couples in other states, and took away parental rights from non
biological parents (or parents by legal marriage) when passing through the
state. This seems to be a misuse of state-by-state experimentation (that is,
using public policy exceptions to Full Faith and Credit), a solution that has
generally been credible with the gay marriage debate itself. See
76a1. From the New Jersey Law Journal: http://law.com/nj
Marriage Laws Are Entitled to Full Faith and Credit “ by
Martin L. Haines,
“ It is very unlikely that
the U.S. Supreme Court, once it has the issue to decide, will deny application
of the Full Faith and Credit Clause to same-sex marriages. It reads the clause
broadly, saying its purpose is "to alter the status of the several states
as independent foreign sovereignties, each free to ignore obligations created
under the laws or by the judicial proceedings of the others, and to make them
integral parts of a single nation. (Williams v.
“ Even if the Court refuses to apply the Full Faith and Credit Clause to same-sex marriages, it cannot avoid the application of the Constitution's equal protection and due process clauses to them. ("[No State shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") “
76b The Dutch parliament has reportedly approved both same-sex marriage and in some cases adoption, to take effect in April 2001. The web reference is http://ruljis.leidenuniv.nl/user/cwaaldij/www/
Ch 5 P 251. In 1997,
76d More resources on same-sex marriage:
Freedom Network: http://www.free-market.net/directorybytopic/same-sex/
76e. One contributor to queerlaw
informs us about Robert Wintemute’s new book on
same-sex partnerships. The book is Legal
Recognition of Same-Sex Partnerships: A Study of National, European and
International Law, Robert Wintemute and Mads Andenaes, Editors. (Hart Publishing,
At 790 pages, the book promises to be an encyclopedic look at same-sex marriage as its legal advocacy and adoption sweeps the globe.
Authors included are (in the U.S.), Chai Feldblum, William Eskridge, Jr., Arthur Leonard, Nancy Polikoff, Evan Wolfson, Mary Bonauto, and a multitude of others who come from Australia, the UK, Canada, New Zealand, Brazil, Japan, China, India, Israel, Denmark, Spain, . . . a total of 47 contributors.
Major parts are I. Theoretical Perspectives; II. National Law of the
76f In early 2002 the
76h But Stanley Kurtz, in “Gay Priests and Gay
Marriage,” National Review,
Laurie Goodstein, “Vatican to Check
U.S. Seminaries on Gay Presence,” The New
76i Here is a great tabular analysis, “Gay Marriage Rights” by Canadian Roedy Green (Canadian Mind Products) of gay marriage arguments, including (in Canadian law) the rights that same-sex couples would give up if gay marriage were legal. There is also a country-by-country international analysis, as of June 2002. The link is http://mindprod.com/marriage.html
Now there is a new storm (January 2005)
What I think could happen is that such a law would revert back to the federal definition of "homosexual" in the 1993 law for the military. This is important!
Proposal would ban gays from adopting children
By Christina Bellantoni
Again, this is a “must ask, must tell” law (or a “do ask do tell” law).
Now, imagine, as a thought experiment at least, a second law that requires that teachers (over a certain age) of students below a certain age or of special needs students or assistants who must give personal care have been parents themselves. Imagine also a law that says that an attendant who gives personal care to mentally impaired persons not be homosexual in the legal 1993 definition, or have stated in a public forum that he or she is. This can be a very slippery slope indeed!
"While considering this bill, the House Health, Welfare and Institutions Committee voted to significantly weaken the measure’s language, making sexual orientation and “homosexual activity” only one factor in the overall evaluation of a candidate." This language is as follows: "this bill will now directs that the investigative report presented by the adoption agency to a judge prior to entry of an order of adoption include information on whether the petitioner is known to engage in current voluntary homosexual activity or is unmarried and cohabiting with another adult to whom he is not related by blood or marriage. This information would be in addition to information on whether the petitioner is financially able, morally suitable, in satisfactory physical and mental health and a proper person to care for and to train the child, among other criteria." (Source http://www.equalityvirginia.org/) This bill was defeated in the State Senate judicial committee in late February 2005.
For a more complete state-by-state list visit http://www.doaskdotell.com/content/gayadopt.htm
77 (see also 76c) Barbara Kantrowitz, "Gay Families Come Out," Newsweek,
See also Frederick Bazett, "Children of Gay Fathers" and Saralie Pennington, "Children of Lesbian Mothers," in anthology Gay and Lesbian Parents, edited by Bennett (Westport: Praeger, 1987),
Laura Benkov, Reinventing the Family: Lesbian and Gay Parents (New York: Crown, 1994), and Charlotte Patterson, "Children of Lesbian and Gay Parents," Child Development 63, #5, Oct. 1992. Also, Patterson, "Children of Lesbian and Gay Parents: Summary of Research Findings," from Sullivan, Same-Sex Marriage, op. cit., p. 140; Jerry Bigner and Frederick Bozett, "Parenting by Gay Fathers," excerpts from the Virginia Appeals Court 1994 ruling in Bottoms v. Bottoms, and important papers by Flaks, Belcastro, Wolfe, and Antiga on gay parenting.
Lisa Keen, "Children of Lesbian Mothers Don't 'Differ'
77a. Here are some more references on gay and lesbian parenting, adoption, and custody. Legally, this is a very fragmented area of law, differing enormously among the states and changing rapidly, and it is difficult to keep up with it in detail. :
Gay Parent Magazine Online: http://www.gayparentmag.com/
Lesbian mothers: http://www.lesbian.org/lesbian-moms/adopt.html
Human Rights Campaign: http://www.hrc.org/familynet/chapter.asp?chapter=17
On Februrary 15, 2002 CNN “The Point” ran a
discussion of the absolute gay adoption ban in
Ann Oldernburg provided a story “For Rosie, coming
out is merely about what’s right,” in USA
See also note 75 for the Bottoms case in
And there is a case in
Transgender Law & Policy
Father in Custody
For immediate release
Anyone tuning into Michael Kantaras’ custody battle in
education on transgender issues
instead. Due to the unprecedented
Court TV coverage of Mr. Kantaras’ fight for his children, more
people were exposed to accurate information about transsexualism and
sex-reassignment than in any case that has
ever been litigated on
behalf of a transsexual person anywhere in the country.
“We have heard from transgender people from
around the country who
see this case not only a validation of their ability to marry and be
good parents, but also as an unprecedented
validation of our lives
as transgender men and women,” said Kantaras co-counsel Shannon
Minter. “In addition to Michael himself,” adds Minter, “the primary
credit for the educational impact of this case must go to
attorney Karen Doering, the founder and director of the Equality
Florida Legal Advocacy Project, a non-profit legal organization
has transformed this private battle into an amazing opportunity to
educate the country about transgender issues.”
78 Dr. Kenneth Morgen, Getting Simon (New York: Bramble, 1995). Morgen doesn't try to explain his desire to be a parent. The book provides detailed guidelines and forms.
See also American Psychological Association's Lesbian and Gay Parents, a Guide for Psychologists
79 Conversation with Tim Fisher, Gay and Lesbian Parents Coalition International, 1996 (and newsletter).
81 Viatical settlement companies buy life
insurance policies from terminally ill persons (not just AIDS patients( and
provide cash for medical care and living expenses. This is "fending for
yourself," when there is no other institutional source of health
insurance, but it deprives someone of passing an estate to a loved one. Arthur
Allen, "The Invisible Hand," The
81b There is more discussion
of viatical contracts by Jane Bryant Quinn, “Should
You Invest in Death?” Newsweek,
82 Although some libertarians, while advocating total privatization
of schools, also opposed vouchers; they argue vouchers lead to dependency. See
also Chapter 6, note 35a. On
82a Ch. 5 P 252 pr 5.: Actually, a balanced federal budget and a flat income tax (or better, no income tax) would reduce interest rates and would tend to encourage more consumer lending and borrowing. Lenders would need to make sure borrowers live up to their voluntarily assumed obligations.
82b Ch 5 P 255, proposed definition of marriage: On
82c Ch 5 P 259, pr. 5. Although we hear a lot about today's low
unemployment and tremendous demand for technically skilled people (especially
for the Y2K problem), older managers (at least those who did not deliberately
reinvent themselves in the early 1990's) are still hard up. See Tony Horwitz, "Some Who Lost Jobs in the Early 90's
Recession Find a Hard Road Back; Younger Workers Do OK, But the Over-50 Set
Sees Sharp Drop in Prospects; Upside: Joys of 'Mr. Mom,'" The Wall
82d Before Father’s Day in June 2003, CNN reported that the national unemployment rate for fathers with dependent children under 18 was 4.5% as compare to 6.1% nationally. The report did not address marriage per se. It apparently did comprise fathers with custody or actually raising their children (not divorced or unmarried fathers without custody). The report also claimed that some employers do consider the presence of dependents in making close layoff decisions. I have reported anecdotes of that elsewhere, but in general many large employers tend to do layoffs as a numbers game with a very structured, impersonal approach to protect themselves from discrimination lawsuits. In general, the unemployment problems for single mothers seem to be very severe. Whatever this report implies about gays or childless men, it also seems that people who have children before preparing themselves for stable careers often have severe employment problems. So these numbers may be deceiving, and individual circumstances may be much more important.
82e An indication of the problems of single mothers with children was
illustrated by the arrest of a
83 David Boaz and R. Morris Barrett, "What Would a School
Voucher Buy?" CATO Briefing Papers, No. 25,
83a Also, check Joe Viteritti, School Choice: The Constitution and Civil Society (Washington, Brookings, October 1999). Viteritti argues that school vouchers represent an opportunity to improve education for poor people, and form a proper alliance between private and public enterprise. In earlier times, private education really was available only to "the rich."
83b Privatizing education would de-politicize controversial content (once we get beyond the legal church-and-statel arguments about vouchers for the non-sectarian component of education in private parochial schools). The Virginia General Assembly, in 2002, at least defeated a bill that would have severely restricted the presentation of “gay-related” subject matter in social studies (or health) classes in public high schools.
84 Gene Cisewski, Dave Doss, and
85 Kominas, op. cit., p. 321.
86 The Libertarian Party 1996 platform position appears in Appendix 7.
87 Gene Cisewski, "License Expired," The Quill, March 1996, p. 4.
88 William Mohr, "The Stakes in the Gay-Marriage Wars," Robert Baird and Stuart Rosenbaum, editors, Same-Sex Marriage: the Moral and Legal Debate (Amherst: Prometheus, 1997).
88a In May 2001 Tom Green, who
reportedly has 5 wives, will go on trial in
89 William Eskridge, The Case for Same-Sex Marriage (New York: The Free Press 1996).
90 The government of
91 William Eskridge, "Credit is
Due," The New Republic,
Also, David Frum, "Gay Marriage and the
Courts," The Weekly Standard,
Some commentators claim that DOMA assumes that the Full Faith and Credit clause would not apply to "marriage"; instead there is just an extension of the amorphous notion of "comity." The FFC clause is more concerned, say, with honoring court judgments than with the recognition of social "contracts" largely defined through tradition. Further, states would not be required to honor civil arrangements (from other states) if these arrangements violate their own "public policy."
In May 2002 Rep. Bob Barr from
"Marriage in the
It adds, "Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital
status or the legal incidents thereof be conferred upon unmarried couples or groups."
D.C. Congressional Delegate Walter Fauntroy
supported the idea, saying "As an African
American, I am particularly sensitive to and
knowledgeable of the value of the institution of marriage and the family," Fauntroy said. "For we, as African Americans, were subjected
to the most cruel form of slavery in the history of the world, a slavery based on the destruction of the family as a vehicle of
culture, socialization and procreation."
The organization is :
See the Lou Chibbaro
article in The Washington Blade,
“Victory Alert: Last gasp
effort by homosexual movement dies
A bill that would have expanded health insurance coverage beyond a spouse or
child to include "any household member" chosen by the beneficiary was killed
yesterday in a House committee by a vote of 13-6. Delegate Kathy Byron
the bill that was championed by homosexual rights groups, including
"Equality Virginia" and the Log Cabin Republicans. In opposing the bill
Byron stated, "One of the fundamental values that I hold dear in my life is
that family means mother, father and children."
What they are saying, however, seems to be that a company that offers health insurance benefits to non-married domestic partners will raise premiums and copayments for “normal married people” in a zero-sum-game world. That sounds like a dubious speculation.
91b (From an AP story in May 2004)
But some lawyers say the law is so vague and ill-defined that it could interfere with legal contracts such as powers of attorney, wills, medical directives, child custody and property arrangements and joint bank accounts, perhaps even joint mortgages and leases..
The bill's sponsor, Del. Robert Marshall, a Republican from
"Civil union is a proxy for marriage and domestic partnership is a proxy
for civil unions,"
Virginia Attorney General Jerry Kilgore, the likely Republican nominee for governor next year, echoed this in an advisory opinion, saying he believed the law was constitutionally defendable.
92 David Mixner, Stranger Among Friends, (New York: Bantam, 1996).
93 Liz Spayd and Brigid
Quinn, "The Gay Marriage Trap: We Fell Into a Right-Wing Ambush," The
Washington Post, Outlook, page C1,
94 Gallagher suggests that the law should at least allow lifetime binding agreements. Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love (Washington: Regnery, 1996), p. 250. But Andrew Sullivan points out that marriage is a constitutional right recognized by the Supreme Court even before women's suffrage. Laws restricting marriage for convicts and deadbeat dads have been held unconstitutional. Can it be unconstitutional to withhold recognition of privileged status for a personal relationship that persons nor in such a relationship must pay for? How can legal recognition of a religious ceremony be a fundamental right (or entitlement)?
But the conservative case against honoring even a golden "wedding" anniversary for a same-sex couple starts with the rune, "women tame men" (George Gilder and George Will).
96 Gallagher, op. cit., p. 136.
97 Arlene Zarembka, "Registering as
Partners Could Turn Hazardous," The
98 Jonathan Rauch, "Who Needs Marriage," from Beyond Queer, Challenging Gay Left Orthodoxy, a reader edited by Bruce Bawer, (New York: The Free Press, 1996)., p. 308.
99 M. Scott Peck, op. Cit (from Chap 3).
100 Marshall Kirk and Hunder Madsen, After
the Ball: How
101 Michael Lerner, Editorial, "The Oppression of Singles," Tikkun, Nov.-Dec. 1995, p. 9; also, The Politics of Meaning (New York: Addison-Wesley, 1996).
102 The film Marvin's Room (1997), Miramax.
103 Gallagher, op. cit., p. 252.
104 Robert Bork, reviewing Maggie Gallagher's The Abolition of Marriage.
105 Laura Schlesinger warns women against "stupid conception" in Ten Stupid Things Women Do To Mess Up Their Lives (New York: Harper Perennial, 1995). Her favorite radio quote is "I am my kid's mom."
106 Jack Nichols, The Gay Agenda: Talking Back to the
Fundamentalists (New York: Prometheus, 1996), p. 151. Nichols, one of the
co-founders of the Mattachine Society, attended the
106a Ch 5 P 259 end of family values section 03, various other notes:
An upper-class example of gender roles is the expectation that fathers pay for their daughters' weddings.
One can understand arguments about the "social benefits of marriage" (and placing "family values" ahead of personal ambition) with the following points: First, many people (especially men) do much better in life when they know other specific loved ones depend on them. Second, practical necessity forces many people to defer following their own dreams in order to meet the needs of others. How often, in the past, did young adults forego college in order to work and bring income to family tables. A rising standard of living helps with this, and one can say government programs (like Medicare) have relieved individuals of many of these practical burdens. So "family values" provides a good test of libertarianism.
Here's a future example: Space travel. We'll go through a period where single adults (or possibly couples) can go on several-year voyages to other planets, but not "normal" adults with kids. (What about a single only child with an aging parent?) We really will notice the differences in our priorities, between vicarious self-perpetuation, and outer discovery of truth.
Male socialization (by women) into fatherhood still starts with sexual interest!
"Family values" would require that adults limit exchange of expression even among themselves to avoid inadvertent harm to children.
107 "Downward Mobility: Corporate Castoffs Are Struggling to
Stay in the Middle-Class," Business Week,
107b See also Tom Peters's The Brand You50 (Reinventing Work) (1999), which advocates the idea of every professional making himself into a "brand." The conceptual issue is this: how do you meet the short term needs of customers today and, at the same time, develop products, services or intellectual property that has no market today but that you believe will have great value say, in five years? There is a difference between "a job" and a career. But if you can't do the job your employer expects today and have enough left over to grow, you're already overvalued and in trouble with your priorities.
107c Sometimes “ex-managers” or highly-salaried professionals who
seem too inflexible of “grizzled” (or perhaps too preoccupied) to keep up with
technological virtuosity are put in the position of proving that they can
perform specific maintenance or problem-solving tasks without assistance from
others, in order to justify their incomes in a competitive context.
107d Sylvia Ann Hewlitt and Cornell West: The War Against Parents (Mariner, 2000), pp 71-83 provide some discussion of the way companies seemed to be taking the pressure put on them by corporate raiders and investment bankers out on their employees, especially in the late 1980’s and early 1990’s—and that this was especially hard on families with children. In many newer technical areas, the demand for skilled help has reversed much of this.
107e It was not unusual back
in the early 1960s, say, for companies to tell entering college graduates (or
ex-military) just where they should live and what kind of cars they should
drive in public. (With some companies like
107f Check the New York Times
article: “When Employees Are Sick,
Absenteeism Can Be a Virtue”
By DENISE DIFULCO. URL: http://www.nytimes.com/2004/09/26/jobs/26jmar.html&position= or http://www.nytimes.com/2004/09/26/jobs/26jmar.html?ex=1097737311&ei=1&en=975194c832813a74
(You may need to re-search or get a NY Times online subscription first)
108 But insurance "discrimination" may be allowed according to reasonable underwriting rules. For example, auto insurance companies often charge females less than males because men drive more aggressively, and, likewise, charge young single men more than young married men; here is a case of preserved "family values." Gay men probably drive less "aggressively" than straight single men.
Bolick argues that race-based civil rights laws today actually discourage the hiring of minorities, out of fear of litigation (Nigel Ashford uses similar arguments in discouraging similar laws for gays), and encourages flight to the suburbs. (Bolick, op cit., p. 62). He also argues that most race disparities in corporate achievement are related to poor educational systems
The Minneapolis Star Tribune (Aug. 31, 2001), in a story by Robert Franklin, reports that a federal suit against St. Cloud State University based on allegations of a hostile (“racist”) learning environment, was thrown out by Judge Richard Kyle, Plaintiff Raymond Shorter had contended that the applied psychology curriculum was “Eurocentric”. The juge seemed to feel that the plaintiff had aggravated his own situation, but in fairness it must be reported that there have been other discrimination complaints at this institution. Sometimes infliction of emotional distress is actionable.
108c The other big measure of racial social justice generally is
thought to be related to desegregation (beginning with Brown v. Board of
Education, Topeka Ks., 1954). Starting in 1971, the Supreme Court allowed
local court to order forced busing of school districts to obtain "racial
balance" in the schools. Tamar Jacoby, in the op-ed "Beyond
Busing," The Wall Street Journal,
109 Normally, under
Repa, op. cit., p. 8/49, reports that the percentage of major American companies reporting AIDS among workers increased from 23% in 1991 to 36% in 1993.
109a Ch. 5 P 261, fn 109: Although, as of the time of this book's publication, HIV infection without CDC-defined "full blown AIDS (HIV+ with at least one opportunistic infection or neoplasm, or a lowest recorded T-4 count of < 200) does not qualify for relief under the ADA.
The following provides discussion on the
Click here: http://www.usdoj.gov/crt/ada/pubs/hivqanda.txt
The following provides the
Click here: The Americans With Disabilities Act of 1990
109b There is concern over how a 1999 ruling by the Supreme Court to limit the effectiveness of ADA on conditions that have been "treated" may affect persons with HIV (particularly when asymptomatic). Most states have disability laws which are likely to provide some employment protection for those with HIV infection, including eligibility for group health insurance coverage (even group life) through the workplace. Generally, individual insurance (life or health) is not protected. Insurance companies use a Medical Information Bureau (MIB), which is a bit like a credit bureau, although HIV information as such is not carried by MIB. Mortgage insurance is likely to be covered in most states, although there have been few problems with applying for mortgages and loans.
This whole matter of the ADA and HIV may be invoked in debate as Congress, in 1999, considers legislation on "information brokers" and upon the sharing of information between different kinds of companies (more or less in the spirit of the Fair Credit Reporting Act, FCRA) as it considers allowing commercial banks to merge with other kinds of financial institutions and insurers, removing restrictions in place since the Depression. The Graham-Leach-Bliley Act in fact did pass in November 1999.
There have been media reports (as on
109c Ch P 261, pr 1. There is another subtle problem with the
109d. Some larger government agencies have special programs to hire
and train disabled workers. But the
downside of this is that workers sometimes feel that they must prove that they
could make it on their own skills, without the special programs. For more on
109e In January 2003 the media
reported a lawsuit by soap opera actor Michael Nader when
109f Some human resources
texts report concern by employers about employee lifestyle behaviors that risk
increasing group health insurance costs. These have tended to focus upon
smoking, obesity, absence of physical examinations, extreme sports, not wearing
seatbelts, and so on, rather than on sexuality and family. See Richard G. Renckly: Human Resources: Emphasizing Practical Problem
Solving and Day-to-Day Operating Details (Barrons:
1997), pp 218-219. Nevertheless, this brings up the “pro-freedom” argument that
single-payor health insurance might increase job
growth. Again, this might give government the warrant to interfere with
personal lifestyles, even if this has not happened much in
109g The federal, state and local governments have long had special
programs to employ the persons with developmental disabilities. Christopher
Lee, in the Washington Post,
110 Recently, under a combination of
111 Geoffrey Cowley, "Flunk the Gene Test and Lose Your
112 Repa, op. cit., p. 8/6, for a discussion of "required discrimination." Also, Clint Bolick, The Affirmative Action Fraud (Washington: Cato, 1996).
112a Ch 5 P 261, fn 112 Another controversy is whether employers and educational institutions may adopt qualifications which "inadvertently" cause statistical disparities between minorities. The Civil Rights Act of 1991 (an update of 1964) allowed government to engage in racial preferences only to correct past discrimination, but gave private employers wider leverage in using racial preferences and allowed lawsuits to be brought on the basis of "statistical imbalances" (Bullock, op. cit., p. 58). Bush was ultimately (in 1991) forced to sign a "quota" bill. Affirmative action, I think, tends to make us more conscious of race (an other categories) when most of us really want to forget it when left to ourselves.
Also, check Leslie Kaufman's "Toxic Employees," Newsweek,
112b affirmac- contains a conceptual overview of the affirmative action problem.
113 See the
In fact, we can argue that some statutory laws to limit liability exposure (by defining "reasonable care" in exercising our obligations to one another) are important to have a libertarian society at all. We could discuss many examples: copyright law (with controversy over fair use, electronic copying and even for-profit status), product and premises liability. If we pass these laws, we need to do so without politicizing the interests of those affected, a very difficult call. Going the other direction is the statutory concept of "strict liability," that denies lack of knowledge as a defense.
113a Ch.5 P 262 pr. 1: p 175. In 1993, after the military ban debate, a few conservative Senators and congressman actually said they would not hire gays onto their staffs because gays were "bad role models". Again, this military-Cracker Barrel type of thinking. A very few employers really think they're offering the privilege of "first class" citizenship to those share in society's collective obligations: being part of the country's defensive chattel, and putting kids first. These moral concentrations become more noticeable when government gets out of the way.
Another imperative is to scale back the use of 'disparate impact," and
allow employers to consider everyone's qualifications for a job on an
individual basis, regardless of the way these decisions relate to head-counts
by age and gender. Comments by the Supreme Court in a 1993 decision and several
appeals courts already seem to nullify requirements that employers decisions on
qualifications and salaries should have equal results across age groups. See Francis
McMorris, "Age-Bias Suits May Become Harder to
Prove," The Wall Street Journal, page B-1,
In early 2003,
113b Ch 5 P 262 fn 113 Numerous media sources (such as
113c In December 2002 Cracker
In 2004, Cracker Barrel settled with the Justice Department regarding alleged racial discrimination in its restaurants. Story is at http://money.cnn.com/2004/05/03/news/midcaps/cracker_barrel/index.htm?cnn=yes
113d In the opposite direction, however, a shareholder (Hou-Yin Chang of Orangeburg, S.C.) of Coca-Cola with only 49 shares has introduced a proposal to withdraw Coca-Cola’s sexual orientation anti-discrimination policy. The company thankfully opposes the proposal and encourages to support its anti-discrimination policy. But if this single-person asymmetric tactic were successful, it could set a dangerous example or precedent for other companies.
113e In a “heterosexual
version of Cracker Barrel” a sheriff’s office in
113g June 30. 2005: A gay man (Richard James Miller) has alleged discrimination against
114 A large number of employees received awards just because of their skin color, regardless of the merits of their own circumstances considered on a case-by-case basis.
114a There are various indirect ways that employers can try to screen out older job candidates, and these may or not be illegal. In some states case law weights more heavily in favor of the older employee or candidate when “disparate analysis” is applied, even for age. For example, a company may require that an applicant for an information technology position have majored in computer science, a possibility excluded for the oldest applicants. Recruiters and outplacement counselors repeatedly advise older job applicants against giving too many dates on resumes. Of course, some age qualifications for jobs (whether as actors or firemen) are obviously bona fide in any community.
Here are some sources: Peter Whitfield, “Don’t lose your legacy staff”, Computer Weekly,
“Over 40s IT staff face gloomy job prospect,” Computer Weekly,
Anne Covey, The Workplace Law Advisor, Perseus, 2000.
114b Adam Cohen provides an interesting commentary “Too Old to Work:
If you’re over 40 and work for a big company, your future may well be tied to
the fate of 6,400 Allstate agents who refuse to be ‘streamlined.’” In New
York Times Magazine,
115 Jack White, "Texaco's High-Octane Racism Problems," Time,
116 Patterson and Kim, op. cit., p. 237. And remember the Bakke (medical school admission) case of reverse discrimination!
117 Some of my friends speak of a "libertarian left," reverting to classical liberalism, and insist that some legal protections are necessary because employers have enormous advantages in scale over individuals. There is also a "libertarian right," for example, the group Libertarians for Life.
118 The 1982 landmark film on gay romance, Making Love, contains a surprising passage where a doctor lectures on the importance of personal competence and the need to punish poor performance.
119 In information systems, mainframe skills are enjoying a sudden resurgence at financial institutions because of the century change at year 2000; afterwards, there will be a glut again. Open systems require more mental agility. (But see note 137.)
120 A 1990 newsletter from the Institute for Certification of Computing Professionals recounts many instances of gross technical incompetence and basic knowledge defect in highly paid computer professionals. Productivity tools have let people get soft on, say, dump solutions or programming efficiency. (See also note 137).
122 Most "experts" encourage older workers to disguise their ages on resumes anyway.
123 Legalization of most drugs might encourage employers, following the example of public schools, to ban all non-prescription medicines, such as decongestants. This is already true in aviation (as I found out when I took a flying lesson) and car-racing. In the 1980's there was vigorous debate over workplace random drug testing, which generally was replaced with pre-employment and "for probable cause" testing. A few companies are so adamant about drug testing as to test their employees' (scalp) hair, which can show past cocaine use for up to three years. Rarely, employers have fired workers for off-duty smoking and alcohol use. See Robert Covington, Kurt Decker, Individual Employee Rights (St. Paul, West, 1995), pp 358-366 for technical discussion of employment drug testing, with such tests as EMIT and GCMS, and measures of specificity and sensitivity.
123a. In fact, the Olympic Games, Tour de France, and many other athletic competitions ban the use of “performance enhancing” substances even when these substances are legal. FIDE, the international chess association, has seriously entertained testing contestants for drugs, even for legal substances, even caffeine. There has been talk that this could eventually be done for weekend Swiss tournaments! (Chess Life, May 2000, letters to GM Larry Evans, p. 12).
123b Drug testing, which continues to get more sophisticated. False positives for over-the-counter legal medications and second-hand exposure to marijuana may rarely happen (and that could put more presumptive responsibility on job holders), and Judge Judy recently had an episode in which the hair test was used (involving crotch hair cutting) to see if a plaintiff in a libel case had ever used drugs. A “false positive” may indicate that the applicant or employee attends events or bars where marijuana is used and might be breathed second-hand. As of 2004, hair tests may become much more common in employment soon, and could prejudice someone who has ever used an illicit drug even once, or been unknowingly exposed.
There is, however, controversy over how big a problem second-hand use poses, even if the hair test is used. For marijuana see
The identification of over-the-counter decongestants and sprays as amphetamines (which chemically they are) may be a bigger problem in practice.
123c. On Feb 8, 2004
There is an article by Randy Dotinga in the
123d. The Borgata
123e There have instances where pharmacists refuse to fill prescriptions (for morning-after abortion pills or even for contraceptives) based on their moral or religious convictions. Drug store chains allow this if the pharmacists will give referrals. Personally, I believe that if one does not want to follow an employer’s directions one should not accept a position that would require one to behave in a manner contradictory to one’s own beliefs.
123f Michelle McCusker, a
kindergarten teacher at a Catholic school St. Rose of Lima in Brooklyn, New
York, was fired from her teaching job after she told the school she would carry
her baby to term and not marry the father. She was fired for contradicting
Catholic teachings by personal example. She claims that she could have had a
secret abortion and gotten away with it. Josh Getlin,
“Unwed. Pregnant Teacher Battles Catholic Church in N.Y. Over Firing,” Los Angeles Times,
123g A Daimer-Chrysler
The Indo-Asian news service reported on
123i Clarian Health, a hospital chain in
123j Michelle Andrews, “
124 Conflict of interests is distinct from "misappropriation" (stealing an employer's information or resources) and breach of loyalty. Conflict of interest sometimes limits the way an associate can spend her own money!
For example, in a few states employees of financial institutions and certain other businesses may not make campaign contributions, even on their own with their own money, even non-management employees. See also note 132b.
124b A senior police chief with the National Park Service was placed on leave and threatened with termination in December 2003 for “improper lobbying” and disclosure of confidential budget information when commenting about being forced to redeploy police to meet administration security priorities.
124c Rob Stein, “A Medical Crisis
of Conscience: Faith Drives Some to Refuse Patients Medication or Care; Some
Health Workers Assert a ‘Right of Conscience’,” The
124d Liza Nubdy,
“Souls on Ice:
125 Some employers, especially banks, are particularly careless in making many of their associates "officers," which would seem to limit these employees' personal freedom further. There is a common misconception that only officers are legally personally liable for wrongdoing by a corporate employer. Anyone can be liable for a tort (discrimination, harassment) when she violates stated company policy and has discretionary control over a subordinate or a customer; there have been personal liability claims associated with the FMLA and FLSA [and sometimes copyright infringement]. See Paul Kennedy, Robert Tisch, "When Supervisors Are Sued," Human Resources, Jan. 1997, p. 124.
125b Ch 5 P 265 fn 125. Newsday's James Toedtman
(as reported in the Minneapolis Star Tribune,
126 Programmers are used to doing what they want with their own lives (when not working overtime), but many consulting companies advertise for clients by using their staff's resumes. Attorneys have given me varied opinions on whether targeted customers alone would cause a conflict of interest; the general reading of common law is that conflict exists when a person's judgments exercised by his job may affect customers or subordinates; see the Tacoma reporter case in a subsequent note.
126a. Let me just add that the adversarial nature of the business and political worlds does indeed tend to contradict the need for objectivity in completely reporting all sides of an issue to customers or readers (the kind of objectivity we were supposed to learn when we wrote term papers in high school and college
126b Some states, such as California, do have statutes specifically prohibiting employers from disciplining associates for off-duty speech in many circumstances, and even for personal statements. A judge in California ruled that an employee could not be discharged for "coming out" when his speech could reasonably be construed as non-commercial political expression. It's less clear what most courts would rule when a person's speech has substantial commercial or publicity value as "conflict of interest" (again, see Tacoma case).
In 2003, technology journalist Henry Dorr was suspended and then dismissed from
the San Francisco Chronicle after participating in a demonstration opposing the
war in Iraq. The Chronicle, apparently after the fact, implemented a policy
prohibiting newsroom employees from participating in war-related
demonstrations. LaborNet (in an article in NWU’s Summer 2003 American Writer) claims that if
such a violation of
126c However loyalty sometimes is enforced. In June 2003 Coca Cola fired a union truck driver for drinking a Pepsi on the job, although some believe that the firing was motivate by his union organizing.
127 The federal Employee Polygraph Protection Act (1988) bans the use of most lie detection except for jobs involving security, handling drugs, or when there is suspicion of theft. Recently, large employers have been giving multiple-choice personality tests to screen candidates, especially for executive and marketing positions; it is unclear whether some of these will be found to contain gender or racial bias. See Barbara Repa, Your Rights in the Workplace (Berkeley: Nolo, 1994), chapter 6 for a complete discussion of current employment privacy law.
127a Ch 5 P 265 fn 127. In 1999, the Department of Energy plans to polygraph many of its employees and contractors over leakage of secrets to China. Is the polygraph reliable enough for national security concerns or not? Does a person have a "due process" right not to be fired for wrong polygraph or voice stress analysis test results?
The FBI is now reportedly looking at a “brain scan” polygraph which has already been claimed to have freed an innocent man (CBS “60 Minutes”).
127b Ch 5 O 265 fn 127 on March 8m 2004,
There is a company called “No Lie
127c Ch. 5 P 266, provision (2): The
To take advantage of the deduction, the (individually owned) business must turn a profit and, in the month the premium is incurred, neither the filer or spouse can be eligible for an employer's health plan.
128 Security might be jeopardized by the cost-cutting frenzy typical in the early 1990's, with the superficial savings by decentralizing processing from mainframe to client-server and (sometimes) the temptation make programmers into "jacks of all trades" and to skimp on separation of functions. One mortgage company switched to open systems and was down a week almost immediately after a virus.
128a. Amy Zuckerman, James Kaczman, “The Fight for Lingua Franca,” Business 2.0,
129 See Chapter 6 for California Initiative 209. When colleges end
affirmative action, they may find themselves excluding African-Americans if
they rely too much on certain written tests. Ellis Cose,
"Color Blind," Newsweek,
130 Frank McMorris, "Age-Bias Suits
May Become Harder to Prove," The Wall Street Journal, p. B-1,
130a. The flat tax is discussed in many places, such as the chapter "Tax Reduction" in the Cato Handbook for Congress (Washington: Cato Institute, 1995). The conventional income, it is argued, penalizes both work, success, and capital formation. Dick Armey (Texas) had also proposed a 17% flat tax. But a flat tax could change financial planning and investment strategies considerably, and suddenly.
130b. Regarding employer-paid
pre-tax health benefits (apart from the same-sex domestic partnership issue
discussed elsewhere), my own experience with managed care and surgery was that,
when I got the proper referrals, the total cost (in
130c In US
News and World Report,
131 Associates in sensitive positions could be held responsible, over time, for keeping their credit histories accurate and favorable, with discipline for exceeding thresholds for late payments, judgments, or foreclosures. They could even be held to limitations on consumer and mortgage debt based on income. (The law, surprisingly, usually does not allow employers to terminate for a single garnishment). Some authorities in human resources literature warn, however, that employers must be able to show a specific job-related reason for credit-worthiness.
132 In Tacoma, Washington a reporter was involuntarily transferred to a copy-editing position for publicly visible political activities on her own time. The state supreme court ruled for the newspaper in February 1997, on the grounds that a newspaper needs to protect its public appearance of objectivity in reporting news.
132b Many newspapers and media networks ban individual political
contributions by journalists or newsroom employees, although they seem to
happen anyway. See “Journalists Not Loath to Donate to Politicians: Media
Companies’ Policies Vary Widely,” by Howart Kurtz, The
132c The Washington Blade, on
The NLGJA (National Lesbian and Gay Journalists Association) provides this statement by Executive Director Pamela Strother and President Steven Petrow, at http://www.nlgja.org/news/news18mar04.html. For example:
“So, how do editors determine when a personal stake in a story goes too far? Many analogies have been put forward over the past few days. Does this mean a female reporter who has had an abortion may not cover that issue? Does that mean that an African-American editor who experienced some form of racial discrimination should not cover race issues?:
As I have indicated elsewhere at this site (and in both DADT books), I am very concerned about this kind of conflict over work and “self-promoting” speech outside of work, in other areas. For example, what about teachers? What about the military (and the military ban)? What about lobbyists and spokespersons. This is especially pertinent in the days of “Google hacking.” I have covered this at this link:
Bryab Anderton also provides a discussion of political contributions by journalists and publishing executives responsible for editorial content, in The Washington Blade, Aug. 20, at http://www.washingtonblade.com/2004/8-20/news/national/activist.cfm It is acceptable for owners of publishing companies to contribute but apparently not for journalists and editors (which again tie in to my own conflict of interest rules at http://www.doaskdotell.com/highproductivitypublishing/coirules.htm)
132d Randal Terry, the founder of the pro-life organization “Operation Rescue,” provides The Washington Times (April 13, 2004) with an op-ed “Outing Out Magazine,” in which he claims: “My son, Jamiel Terry, was paid $5000 by Out magazine to write a story about being Randall Terry’s homosexual son. I’m still in a state of shock… Most painful to me as a dad is that my son prostituted my name for $5,000; he sold out our family’s privacy for cold hard cash.” Of course, who owns that “right to publicity”—is it Jamiel with his own life, or is it Randall? The Washington Times loves to pour ice water on dental pulp itself. The Out story is the front page feature story (apparently for May 2004) at http://www.out.com/. Users may have to search for it (or preferably buy a copy) once another issue is published.
Michael Powell covered
the Terry situation in detail in The Washington Post Style section on
133 Labor unions, of course, have always tried to do this by demanding political solidarity of members and spending their dues on political campaigns. Libertarianism would certainly support state right-to-work laws but would probably maintain government should never interfere with collective bargaining from workers who want to be unionized.
133b 1Labor union disputes have sometimes gone wrong for gays, as in a case in Massachusetts when a gay member (Peter D. McGarth) of management was targeted with anti-gay and offensive comments as a “scab” by striking union members (at Commonwealth Gas). In an extremely detailed article by law professor Arthur S. Leonard, “Limits on State Gay Rights Law Appeals: Court rules federal labor law might preempt Massachusetts civil rights protections”, at http://gaycitynews.com/gcn_333/limitsonstategy.html Leonard relates that federal appeals court judge Nancy Gertner indicated that federal labor relations law superseded state gay ENDA-style law. Federal law apparently does not explicitly prohibit homophobic remarks in union pickets and demonstrations and has tended to forgive highly emotional or adversarial behavior during labor demonstrations. But the tendency of rank-and-file union members in a blue-collar environment to use homophobic remarks does show the resentment of some “family breadwinners” against “yuppie class” members whom they think don’t accept such responsibilities. This sort of problem is one reason why I have not wanted to move into management during my own career.
134 Protecting whistleblowers certainly serves public policy, but does a person really have a right to continue to depend on an employer for income if he knows that employer is behaving illegally or blatantly unethically?
134a Kathleen Day, “Whistle-Stop
Campaigns: Some Firms Are Trying to Limit Protection of Workers Who Expose
Wrongdoing,” The Washington Post,
Business, P F1,
135 Another good idea would be for employers to willingly treat their employee manuals (for both salaried and hourly associates) as contracts, so that "at will" termination does not come as long as the associate doesn't break the contract. Every associate should know the rules when she comes to work, and employers and associates ought to be able to agree upon the rules in advance, according to our notions of "freedom to contract." Only recently in some states have courts rules that employee handbooks do imply "enforceable" (procedural) rights of due process in termination; the common law idea that employment rights are not enforceable seems to have been copied by government in the military ban and in security clearances.
136 The Fair Labor Standards Act (FLSA) supposedly limits the right of an employer to treat an associate as a contractor, such as to situations where employment is temporary, where associates provide their own materials and method of work. In practice, employers have wide discretion to use "freelancers."
One point is to remember is that it is common to use various compensation schemes even for "employees," and these can include salaries, wages, bonuses, commissions, and piecework, and this could be administered at the "team" level and even include contractors in some situations. A key concept, not always well-defined, is whether the expectation ny a personof major income from one "employer" is indefinite. See more discussion at the doaskdotell labor link.
137 In May, 1996, a "Team Act," which would permit companies to set up management-labor work teams in certain union shops, was introduced in the House.
The opening up of the Internet to the public in 1992 (by its release from the National Science Foundation) led to a resurgence of information technology jobs in the "open systems" sector, and tended to siphon away younger professionals from competing with older "grizzled" mainframe programmers (who, according to some computer journals, “know who they are” when they cannot easily learn object-oriented thinking and “sexy” programming languages). So there seems to be less tension between "team work" and individual competition than there was earlier (when, frankly and often as a response to downsizing pressures, there was a lot of pressure on well-paid professionals to prove they could be depended upon to solve problems by themselves in emergencies, and for managers to do the work of the people they supervise). Nevertheless, IT would be well to expand upon the certification concept, right now supported by the ICCP (note 120) and by open systems software vendors. Education "handyman companies" could set up regional centers to certify professionals with hands-on "lab practical" tests and intense career planning interviews, to benefit both employers and processionals. Important attributes to test would include mental agility (the notorious trap-door "IQ test – no problem-solving ability”), attention span, work habits, application practices, retention of less frequently used skills (like dump analysis or software package setup). Outside auditing companies could evaluate the integrity, coding standards and application best practices (and systems development procedures) with which systems are developed and installed, in order to give them more credibility. Certainly, today's IS environment, with its emphasis on piecemeal agility with purchased packages rather than on writing in-house applications, demands a mental quickness, attention, curiosity and versatility that was not always expected in the past, where an employee might “own” a narrow range of work for many years. Many professionals are not confronted with their weaknesses in this area until faced with management, ownership, or outside financial or audit pressures. [See also the "IS ethics" essay at this (doaskdotell) site.] So we have a paradoxical situation, where techies or geeks with the immediately hottest skills (and sometimes the “jacks of all trades,” people whose orientation to life is objectively curious enough for them to absorb new stuff quickly) are courted with perks, and others are expected to prove that they “deserve” their incomes by giving away their time. The trend to distributed processing and decentralization of technology (while centralizing administration) may reflect the growing ability of bright individuals to invent their own paradigms (on an employer’s dime) and force others to perform to play the job performance game by their rules. Distributed processing does indeed fit the self-managed “team concept” (where the team is a profit center controlling its own budget), but care must be taken to use economies of scale properly in operations and in common, underlying infrastructure (otherwise redundancies occur as teams “reinvent the wheel”). Whatever the “labor shortage,” a lot of people will have trouble paying their bills.
Author Marcus Buckingham, on “Good Morning America” in October 2000, talked about how some people become hard-wired to have certain job aptitudes by the end of childhood. Some people are tinkerers, and some people are more content-related. Yet, when I was growing up every boy was expected to pay his dues by doing tasks expected of all men, regardless of aptitude. This gets to be a “moral issue” in the workplace. We could cross relate job aptitudes and requirements to the “polarities” in Chapter 3: whether one will promote the work of others as opposed to one’s own ideas (balanced v. unbalanced) and whether the jobs require leadership and action, or thought and perception.
The “dot-com” economy will certainly encounter the swings of other sudden-boom industries, as investors expect them to make profits (the layoffs are already starting in the spring of 2000). But the “dot-com” paradigm certainly raises double-edged questions about balancing innovation with old-fashioned loyalty, professionalism, audit, and separation of functions.
Much has been made in this chapter on the "Darwinian workplace" of the late 80's and early 90's (see also note 107). However, see Helena Cronin's article, "Only the Pronoid Survive," Fast Company, Nov. 1999, p. 330. Cronin argues that Darwinism actually encourages altruism as (when expressed in genes) something that encourages one individual to put his progeny above himself. (A brightly colored male bird draws predators away from females). This translates into business, where generosity, helping stakeholders (customers and employees) just makes good sense. This fits in with the libertarian notion of "spontaneous order." As for creationism, well, it invokes "the philosophy of science."
Sherri Cruz writes, in the Minneapolis Star Tribune (Aug. 27, 2001), that programmers are now criticizing the H-1B visa program for technology workers, which was created during the run-up in demand during the Y2K fix and Internet buildup, but which now simply allows employers to hire “cheaper” foreign labor, as with blue collar work, particularly undermining what independent contractors can charge. The organization speaking up is the Programmers Guild. Ironically to find traditionally libertarian IT workers suddenly racing global competition with those having lower living standards,
See http://www.acm.org/ubiquity/views/c_beise_1.html, What IT Labor Shortage? Redefining the IT in "IT Professional" By Catherine Beise and Martha Myers, presents a hard-hitting view of the new job marketplace, with its desire for younger employees (often single) willing to put in long hours for someone else’s goals (perhaps with a questionable or limited business model), and frank ageism, the idea that older IT people conditioned by structured design and proceduralism can’t learn OOP (object-oriented programming) and get the necessary quickness.
137a More still about “social Darwinanism” comes out of the “reality television” (“reality T.V.”) crase with shows like “Survivor,” where people make all kinds little primate alliances. A survivor has to impress his peers as well as his “boss.” Again, ironically, Darwinianism implies a degree of cooperation.
137b The Internet and the focus on external customer is also increasing the proportion of technical jobs which (as structured and paid) require 24x7 “night owl” shift work, especially weekends and early “graveyard” hours when technical maintenance may be performed. Increased used of shifts can reduce dependence on unpaid nightcall. Some people would find it more difficult to function and carry on a personal life in this kind of environment.
137c In Peggy Simonsen, Career Compass: Navigating Your Career Trategically in the New Century (Davies-Black, 2000), there is a functional decomposition of careers into several types: “portfolio careers,” “lifestyle-driven careers,” “linear careers,” “expert careers” (including “geek” careers, which require very quick turnaround in technical agility as mentioned above), and “sequential careers.” (P. 45).
138 These subunits might be construed similar "S- corporations," where the owners are taxed personally as if they were proprietors, with businesses themselves paying no corporate income tax.
138a There is a certain paradox in the modern business world. Some functions are better decentralized (performed by end-users with direct contact to public customers); however taking advantage of the "economies of scale" of consolidation requires (shorter term) development, too. Here, the customers will be internal. A good paradigm is that one should have the same customers as the business entity that pays one's income. In information systems, we are certainly seeing a shift in the paradigm, from automating repetitive but simple high-volume processes for large businesses for serving complex needs of individual customers in a decentralized manner (e-commerce, individualized entertainment, games).
138b Since we got through the Y2K “crisis” many employers have backed away from heavy dependence upon contractors and temps. Partly this is associated with the 2001 economic slowdown and “technology bubble burst” but some of it is because managed care and other technological innovations (facilitating telecommuting) is giving very large employers an advantage in giving their associates competitive benefits. A good question is whether we could use productivity gains to reduce the workweek, possibly with some preference to those with dependents.
139 One factory in Ohio starts every new worker as a temp, and lets the permanent employees "vote" the temps in to permanent positions! Today, most companies keep salary and personnel records confidential with each employee.
Ch 5 P 265, pr. 1. So the salaried professional may compare his situation to those "proles" upon whom his lifestyle depends, as (in the other direction) executives who get rich off of bottom lines. Sometimes it seems Wall Street rewards companies who cut upper middle-class payrolls.
Ch 5 P 265 fn 125: An editorial employee of a publisher could be held personally liable for an author's copyright infringement.
Ch. 5 P 265, pr 2: Of course, with the erosion of loyalty (following from the downsizings and mergers), many associates will tend to feel they are free to do exactly what they want with their own time and resources. But the lines are not always so clear. We get back to a change of wind, over the virtue of expressing your opinions v. keeping your mouth shut.
140 The New York Times,
141 President William Jefferson Clinton, Between Hope and History (New York: Time, 1996), p. 96. NUCOR, despite its variable compensation, offers tuition bonuses for children of employees. Clinton also praises Starbucks Coffee for offering health care (and even stock options) to part-time associates. It does seem that corporations are (very recently) beginning to realize that a stable workforce can help offset training costs, and maintain customer service and loyalty. Note the works by Peters on the importance of training and customer service.
141a In the 1970's, I was sometimes expected to be on call Friday night and Saturday some times for the benefit of some employees who could not work for religious reasons. But I expected to excepted time in return.
142 Henry Hyde, "A Mom and Pop Manifesto," Policy Review, The Heritage Foundation, Spring, 1994, p. 29.
142a Ch 5 P 268, pr 4: Regarding the idea of favoring a sole breadwinner, one can say that the two-earner family brought a higher-standard of living to many families (not in the "ruling" or management class) and is, in a sense, therefore "pro-family." This cuts both ways. Check the Oct. 1997 Out for the article "Who Benefits?" for discussion of the notion of getting single people to "work at a discount."
142b. The family wage idea comes up in Patrick J.
Buchanan’s new book, The Death of The
143 William Tucker, "A Return to the Family Wage," The
143a Congress is, in 2003, considering an addendum to the Family and Medical Leave Act (FMLA)
called the Family Time Flexibility Act with an optional program for employers
to give employees to choose between overtime compensation in pay or in other
paid time off. See the article “’Mommy wage gap: It’s real, but is it fair’” by
H.J. Cummins in the Minneapolis Star Tribune,
144 For varying views of this workplace imbalance, see
"Balancing Work and Family," Business Week,
Some critics maintain that many parents don't take advantage of the family
privileges employers offer, because of subtle fears of discrimination, or
perhaps because many adults feel more comfortable at work (around other adults)
than in psychologically intimate situations with their children. See Brownlee
and Miller, op. cit., and Laura Shapiro, "The Myth of Quality Time," Newsweek,
There is also an American Association for Single People (
Brian McNaught (op. cit, note 61) says on page 48, "when the boss asks Marilyn, because she's 'single' to cover the office during the holiday so that the rest of the employees can be with their families, that too is heterosexsm."
A 2001 Canadian study (by Jay Belsky, of the
144a. KSTP, on
144b On Monday.
According to Shannon Bream’s report, there are 86 million singles in the
United States (40% of voters), but they are treated by some employers as if
they don’t have “lives” of their own and may be asked indeed to do more
traveling, work more unusual hours or even unpaid overtime when salaried, and
may not be able to keep personal social commitments. The problem may be more
severe with jobs that are less technical in nature. There is an organization
called “Learning Escapes.” Of course, discrimination in travel or restaurants
(couples rates or 2 for 1) is well known, but sometimes offset by offering for
domestic partners or same sex couples. Would a state like
144c In the first week of March 2006
145 The Fair Labor Standards Act says little about "salaried" or exempt workers. The important distinction is that "exempt" workers are paid a fix amount per pay period, regardless of hours actually worked (especially at home or in the office) with the ownership of a specific job responsibility. Generally, an employer may legally require whatever time and effort it takes to achieve previously negotiated job objectives. (With a contractors, the employer may not have to pay until the objectives are actually delivered.) If one associate is ill, another cannot suddenly be required to work the ill person's time without compensation. An associate can have a contingent responsibility to guarantee, say, the availability of an information system when others are unable or unavailable. Family matters can be treated preferentially compared to other outside interests. Therefore, the "exempt" concept actually mitigates against legal remedies intended to force employers to treat all associates absolutely equally. This certainly ties back to the "family wage" issue just mentioned. There is some legal controversy over whether exempt employees may legally be paid "overtime" (outside of bonuses) or given "comp time." Relatively few benefits are actually required by law for salaried or hourly workers (these are social security insurance, unemployment insurance, workers' compensation, and [family] leave without pay; health care, vacation, holidays, sick leave, pension or 401K, etc. are often demanded by market forces or union contracts; there is recent controversy of conversion or "capping" of (defined benefit) pension plans to portable employee-managed 401K's and retirement accounts, which appeal to job-hopping younger workers. ). Of course, there are other compensation techniques, mentioned elsewhere, that complicate the discussion: piece-work, job-sharing, temping. (Another issue is that our entire retirement system is harder on women, or for that matter men, who have spent a lot of their careers in the "home.")
Steven Kahn, Barbara Brown, Brent Zepke, and
Michael Lanzeron, Personnel Director's Legal
Guide, 1993 Cumulative Supplement (Boston:
Computer programmers (applications and systems) give me varied reports on how their companies enforce on-call responsibilities. Some banks actually deduct pay when a programmer fails to respond and a backup is called. So programmers, although used to psychological, expressive freedom of introversion, may sometimes find themselves grounded, almost as if in the military. Some companies are reluctant to spell rules concerning off-duty obligations out in advance, because associates may enjoy more freedom in practice if employers are free to handle inequities among associates on a case-by-case basis. The military, by contrast, must spell out rules for every conceivable situation.
I think that a fair way to handle this is to make on-call a “contractural” obligation when appropriate in a salaried environment (with the person’s response a performance appraisal metric) but to reduce the work-week accordingly (like from 40 to 36 hours) and to limit the percentage of weeks a person is on-call to a reasonable fraction. People without dependents at home could be expected to do more of it.
Another good reference on the Nightcall issue is Janet Lehrman Ruhl, A Programmer's Survival Guide: Career Strategies for Computer Professionals (Yourdon Press, 1988).
145b for Department of Labor's own account of the rules, see:
But the federal government has gotten clumsily involved in catagorizing workers (salaried-exempt, hourly, contractor) and in the relative equity with which they may be compensated.
For the problem of extreme overtime by hospital interns and residents, see
Robert Pear, “Interns’ Long Workdays Prompt First Crackdown: Medical Training
Group Is Enforcing Rules,” The New York Times,
145c Ch 5 P 270 pr. 1 : (D)Other sole breadwinners really do offer
their employers a lot of free overtime to enhance their reliability as
providers, at the obvious cost of time at home. For further discussion of the
politics of the workplace, there is surprising candor about (progressive)
practices at Microsoft in Steve McConnell, Rapid Development: Taming Wild
Software Schedules (Seattle: Microsoft Press, 1996). For example,
"voluntary" overtime should come from the employee's own values, not
from employer demands. Customers who demand "free" overtime are not
following the ethics rules of "rapid development." Another good
discussion of workplace values in information systems is provided by Ralph
Sprague and Barbara McNurlin, Information Systems
Management in Practice (New Jersey: Prentice-Hall, 1993), Chapter 18,
"Managing the Human Side of Systems." Both of these books provide
discussion of what makes different kinds of professionals "tick" based
on personal values and even personal "identity." For example,
programmers often do not require the social ratification of others for their
145e: Even union employees sometimes have to work some
"free" time, depending upon their bargaining position. For example,
flight attendants are often not paid except for time that the airplane is
moving, despite being required to report in uniform an hour before the flight
(with no pay for that time). This "work rules" dispute contributed to
the rejection of a contract offer by Northwest Airlines in 1999. Curiously,
Terri Chaffer (from the union) commented that these work rules "might mean
nothing to the general public." For argumentation, they mean everything!
(See story in Minneapolis Star Tribune,
145f: A few "liberal" lawyers have tried to maintain that Romer would invalidate
145g: A practice becoming more
common with employers is that employees waive their rights to sue (“release of
all claims”) and settle disputes with mandatory dispute resolution agreements,
which require secret administrative (non-judicial) settlements of
employment-related claims out of court. Kate Andrias,
“Locked Out: What do
146 Meredith Bagby, Annual Report on the
147 President Clinton, op. cit., p. 97.
147a Ch 5 P 271, pr. 4: In fact, my first employer paid married men more per diem than it did to single men even though wives usually did not accompany the married men. In those days, discrimination happened because people with different "lifestyles" supposedly had different levels of cultural responsibility.
148 Daniel Baker, Sean Strub, Bill Henning, Cracking the Corporate Closet (New York: Harper Business, 1995), p. 108.
149 Presumably, such a clause prohibits behavior that ordinary understanding interprets as homosexual interest; it follows the military's example of defining statements as "conduct." (referring to DeMuth v. Miller, PA, in the book text).
149a. Of course, as the Internet bubble burst in
the latter part of 2000, into recession in 2001, conflict of interest came to
be understood publicly as related to financial analysts – often certified as
professionals—working for investment banks that have interests in the firms
that the analysts report on. In late 2001, with Enron (a genuine tragedy for shareholders and
employees) we would see the problem of accounting firms auditing the same firms
that they consult for. Even the IPO and
venture capital processes with dot-coms seemed to
involve favored treatment (“preferential allocations”) of certain investors
like hedge funds. This brings back the whole memory of insider trading, ranging
“Conflict of interest” policies often preclude trading or other activities of “immediate family members.” It will be interesting to see how non-legally married domestic partners (especially same-sex partners) are handled in “conflict of interest” situations. Generally, domestic partners are regarded as “immediate family” for this purpose if their finances are co-mingled.
There are several federal statutes dealing with conflict of interest among federal employees. The best source may be “Federal criminal conflict of interest (Fourteenth Survey of White Collar Crime)” by Suzette Richards and Robert Warren Topp, from the American Criminal Law Review, Summer 1999, vol 36, i3, p. 629 (no URL available to me).
Stephen Fishman, on p. 14/8 of Web and Software Development: A Legal Guide, proposes a standard employment Conflict of Interest clause that would prohibit not only “any business activity competitive with the Company’s business activities” but also any other activities (not necessarily commercial) that conflict with the Company’s best interests.” Presumably such a clause could include public criticism of the company, it’s industry or major identifiable stakeholders. (It could not include legitimate whistleblowing.)
149b Employees can be held criminally liable for violations of law (such as not carding minors and selling tobacco (under 18) or liquor (under 21) or illegal telemarketing), even though they are low-paid and even if they were not properly supervised. Sometimes managerial or editorial employees can be held criminally and civily liable for copyright violations in which they knowingly participate as employees. Of course, employees in financial or auditing companies can be held liable for violations of law, as well documented with Enron and WorldCom. Federal whistleblower laws and public policy rulings by judges are supposed to protect employees who report legal or ethics violations in good faith.
149c Interesting questions arise with state unemployment claims, when someone owns a business not yet producing income but putatively interfering with a conventional job searches as generally required by states as “public policy.”
150 In most states, employers probably cannot legally spy on employees' private lives or strictly personal associations. Some companies have dismissed workers for (sexual) fraternization, and the resulting lawsuits for invasion of privacy have met mixed results in court. See Repa, p. 6/43, and Ellen Alderman and Caroline Kennedy, The Right to Privacy (New York: Knopf, 1995), pp. 277-320.
150a. However, in 1998 Alicia Pedreira was fired by the Kentucky Baptist Home for Children for a public display of affection (off work) with her lover, with the T-shirt “Lesbos.” Apparently the Home maintains that such public “conduct” reflects poorly on the religious values of the home. This wound up in court since the Home takes state money, but a federal judge dismissed the lawsuit in July 2001, on the theory that civil rights laws don’t protect “lifestyles,” even when it comes to employers using public money. See also note 158a
151 James Stewart, "Gentlemen's Agreement," The New
153 Ellen Alderman and Caroline Kennedy, op. cit., pp. 270-285.
154 Daniel Mullen, "High Court Dismisses Lawyer's Claim of
155 Frank Buttino, A Special Agent: Gay and Inside the FBI (New York: William Morrow, 1993).
156 For more detailed discussion of gays in law enforcement, see Robin A. Buhrke, A Matter of Justice (New York: Routledge, 1996). Buhrke gives harrowing accounts of gay police officers being harassed, outed, and fired, and of the fear of gays in the criminal justice system of being "found out." The cases certainly remind one of the military ban. A lesbian applicant for a position in the Dallas Police Department finally won a court case in 1993 (Alderman/and Kennedy. op. cit.).
157 Gov. Ronald Reagan had opposed this Briggs initiative on the grounds that students could retaliate against teachers with false accusations of homosexuality after getting bad grades.
157b In 1997, another teacher in Utah was forced to sign an agreement ("gag order") that she would not discuss her sexual orientation with students! Apparently this included public statements made "off the job." The military "don't tell" gets replicated again!
157b1 In 1978
157b2 In 1977,
157c In April 2003, the Utah Supreme Court ruled that parents could not sue to remove a kindergarten teacher (Wendy Weaver [aka Wendy Chandler]) just because of her sexual orientation or personal advocacy of her beliefs. From Paul Cates of the ACLU:
“Stephen Clark, cooperating attorney for the ACLU of Utah, argued that what is at stake in this case is whether plaintiffs and others who share their views about homosexuality should be able to use the heavy hand of the law, with its criminal and civil sanctions, to punish what they maintain is a moral and spiritual failure. "Questions about the proper role of the courts often arise at the intersection of ideological or cultural struggle and law. In this case, the Utah Supreme Court concluded that the courts couldn't properly address and resolve what is essentially an ideological and cultural debate."”
157d The New York Times,
157e One of the gay men to
marry (his lover in a same-sex ceremony) in
157f I have some special concerns connected to “No Child Left Behind” (particularly custodial care for retarded students in certain special education programs). Visit http://www.doaskdotell.com/content/educ.htm and http://www.doaskdotell.com/highproductivitypublishing/coirules.htm point 9.
157g South Carolina Republican Senate candidate James DeMint advocated a “don’t ask don’t tell” policy for teachers in a debate on Sunday, Oct. 3. http://washblade.com/2004/10-8/news/national/ “Inez Tenenbaum, said government should not endorse homosexuality and “folks teaching in school need to represent our values,” the State reported. Tenenbaum, who is the state’s education superintendent, called DeMint’s stance “un-American,” according to the State. After the debate, DeMint said he would not require teachers to openly state they are gay, but he said if they were “openly gay, I do not think that they should be teaching at public schools,” the State reported.”
157h There are many old cases for teachers. One of
the most famous is Gaylord v.
157i. Here are some web references regarding the First Amendment rights of teachers, on and off duty:
http://www.firstamendmentschools.org/freedoms/faq.aspx?id=13021 (Pickering-Connick test – important)
I would be concerned about possible (legal) consequences if a teacher is involved in off-duty pornography, or if Internet postings of a teacher were construed as an indirect solicitation from underage students. See note 174b about a case with a guidance counselor in Arizona.
157j. Here is another good paper, from the American Bar Association: http://www.abanet.org/irr/hr/yared.html
157k Here is a blog
entry based on a
158 Congressional Digest, Nov. 1996, p. 276. But now the Bay Area Chapter has a "Don't Ask Don't Tell" policy! The British chapter of Boy Scouts actually did lift the ban on gay scouts in early 1997. The Girl Scouts (in this country) have no such "ban," possibly a reflection of the fact that lesbianism is less threatening to women than male homosexuality is to many men, with their burden of "initiative." There is some controversy over whether the Rhode Island Boy Scouts have really adopted a "don't ask, don't tell" policy.
158a. In James Dale v. Boys Scouts of
In 2000, Gays and Lesbians for Individual Liberty submitted a friend-of-the-court brief to the Supreme Court arguing that the government did not have the right to tell a private organization whom it chooses or keeps as members or leaders, and that gays eventually could be hurt if the government were to limit private speech, especially with respect to freedom of expressive association (as with gay bars, homes or centers for gay youth—like District 202 in Minneapolis , etc). The Supreme Court sided with the Boy Scouts in a 5-4 decision in June 2000. See http://www.doaskdotell.com/content/boyscout.htm.
158b The ACLU and the Americans United for Separation of Church and State have sued the state of Kentucky and the Kentucky Baptist Home for Children, as a partially publicly funded employer ($13 million of its $19 million budget in 1999) for firing at least one lesbian employee and adopting a written policy denying employment to people known to be homosexual. The ACLU points out that Congress has actually directed funds to religious groups and yet authorized these groups to discriminate on the basis of religious tenets.
159 Peter Fisher, The Gay Mystique: The Myth and Reality of Male Homosexuality (New York: Stein and Day, 1972), pp 147-152. Fisher gives a harrowing account of discrimination in the old days: private-eye investigations, questions as to lack of a spouse, requirements that gay cabbies get notes from psychiatrists.
160 Alwood, op. cit., p. 120.
160a Ch 5 Page 274, after pr. 2. There have been reports of dismissals of gay officers by the Connecticut State Police even though Conn. has no sodomy law. There have been a few cases, even in the 1990's, where insurance companies or agencies have fired salesmen for apparent homosexuality. In 1997, a charity agency actually refused to hire men not capable as serving in the Boy Scouts! Whether the Scouts are completely "private" is clouded by the fact that in many communities they do receive, at least indirectly, public and United Way funds.
160b Rev. Mike Piazza of the Cathedral of Hope (Metropolitan Community Church of Dallas) reports that his services are broadcast on 38 stations in north Texas. Between 1996 and 1998, six choir members have been fired from their jobs for appearing on televised broadcasts that apparently led employers to "presume" their homosexuality. In 1981, a consultant where I worked exclaimed to me that he was watching a broadcast of Dallas Pride March and that when the TV lens zoomed in, it was me!
161 ACLU, The Rights of Gay People (New York: Bantam, 1983 and 1992).
162 Lou Chibbaro and Lisa Keen,
"Clinton Lends His Support to Employment Bill," The Washington
162b. A federal judge in
162c. In April 2002 a Senate committee recommended a full Senate vote on ENDA. See http://www.hrc.org/newsreleases/2002/020424enda.asp
Also at about this time the Dallas City Council passed a bill prohibiting sexual orientation discrimination in most areas.
162d One interesting sidebar of the WorldComm mess in 2002 is that this company often required
employees to double up in hotel rooms on business trips. Well, lumberjacks used
to share common bunkhouses at one time, as did
162e Occurrences of “Cracker
Barrel” discrimination still sometimes occur. Kevin Naff,
managing editor of The Washington Blade, reports that he was harassed by
his boss at a Fortune 500 company in a Washington DC suburb in 2001 shortly
Naff uses his experience as an argument for ENDA as a practical necessity, buy I would cast this story as an argument the eventual achievement of gay marriage and of the right to serve openly in the military—equal rights implies equal responsibilities implies equal rights!
For an analysis of the controversy at
163 OH/RS, "Gay Leader Praises a Senate Vote on Employment
Non-Discrimination Act and Rejects Attempts to Expand Government
Intrusions," Gays and Lesbians for Individual
When I first saw the text of this GLIL press release (in 1996), I felt that it was a bit abrasive and inconsiderate. Why praise refusing to extend the power of Government to prevent discrimination? Yet ten years later, it makes a lot more sense. For government to extend powers to protect people selectively, preferentially or deferentially to some perceived needs of the population will tend to drive the population further into second class status if government still continues to discriminate in areas where persons can be of public service and "pay their dues." The Press Release (sent by email) also criticized the Senate vote about that time advancing DOMA (the Defense of Marriage Act) which would ironically turn out to matter years later.
In 2004-2005, I was an unlicensed substitute teacher in the Arlington and Fairfax county school systems in Virginia. I often found that lower income students (particularly minorities) did not respect me so that I sometimes had serious problems maintaining discipline, and eventually resigned. These kinds of students sensed that I did not share their burdens or street smarts experiences so they did not feel that they had to respect me. They suspected that I am gay and that I have never been a parent myself. True, and that added to the discipline problems. Would an ENDA like law for teachers really have helped me? Of course, in public schools we can argue (as with other footnotes on this pages, such as the note about the Briggs initiative in CA in 1978) that government owned systems should not discriminate. They should not. But in the military and with marriage and adoption laws government discriminates. So legally, I am a second class citizen. Even with ENDA giving only "partial" equality (a sort of sometimes separate and sometimes equal), I could not be a credible authority figure so the job was just no good. I thought that the idea of "don't ask don't tell" would work for the military in 1993, particularly for young recruits wanting their educations paid for. But for older people who have lives to relect upon and who need to be respected, it just doesn't work. Only full political equality works.
All of this happened when the public needs more math teachers (particularly retired from other areas), just like it needs more military recruits.But you can't do public service credibly as a second class citizen, at the beckon and call of the whines of others.
As if all if this were not ironical enough, Gov. Warner of Virginia extended
sexual orientation discrimination protection to state agency employees as his
term expired. The new governor Kaine has continued
it. But more controversial is a bill in the Virginia General Assembly banning
sexual orientation discrimination with local governments and school boards. Now
some assemblymen have complained that this would ban discrimination on the
basis of pedophilia or beastiality (i.e., "there
are eight sexual orientations"). The Washington Post ran an
editorial on this matter on
163a During the early part of
2003, some communities and states have reacted to war threats and worsening
economies by wanting to reverse gay anti-discrimination laws, particularly in
163b Stephen Barr provides a
story in The Washington Post,
Apparently the White House announced that OSC would still continue to honor Clinton’s order. In some interpretations, and employee could have been fired for his orientation but not for specific conduct (the opposite of the military “don’t ask don’t tell” policy), although it does not make sense to classify someone by orientation and then deny that the classification legally does not exist.
But in May 2005 Mr. Bloch told that Congress has not given him the authority to enforce non-discrimination for sexual orientation in federal employment, despite an earlier personnel statute and a Clinton administration XO. He told Carl Levin at a Senate hearing, “the courts have repeatedly rejected sexual orientation as a class protection.”
been leading an effort to halt a rollback of protections in existence since the Carter administration.” Source” Human Rights Campaign
163b In September 2004 the administration proposed technical changes to rules regarding civil service contracts that would have limited discrimination protection to those categories provided by law. That is, gays and lesbians could not be protected as a class. Story by Paul Johnson, “Administration Moves to Remove Gay Protections from Federal Labor Contracts,” http://www.365gay.com/newscon04/09/092204civServ.htm Apparently, however, the Social Security Administration has agreed to continue to protect sexual orientation in letting out contracts.
163c It seems that security clearance protections
for civilian employees are being weakened late in the Bush administration,
compared to supposedly improved protections from
164 This has already happened with a gay bar in
165 Nigel Ashford, "Equal Rights, Not Gay Rights," Political
Press #109, Libertarian
165a Ch. 5 P 278 pr 2: It is well to note that anti-discrimination laws may not be of much use to people for applying for lucrative positions overseas in Muslim or Asian countries that have much more socially conservative cultures. (At least in the past, Saudi "religious police" have frequented even civilian American worker compounds looking for contraband literature and booze).
Some municipalities do include small employers (down to one employee even) in all their civil rights ordinances, even including sexual orientation.
The practice of firing workers and then hiring them back as freelance is supposed to be difficult according to tax law, but I know it happens (National Geographic did this with indexers in the early nineties. Some changes in the Balanced Budget bill for 1997 might make it easier for employers to classify workers as contractors ¾ particularly workers well-equipped to telecommute from their home computers. But, as I have pointed out elsewhere, contractor status (particularly when one has several customers) may give one more freedom to speak out on controversial issues.
166 "ENDA, Pros and Cons," Congressional Digest, Nov., 1996.
166a Reportedly, the National Gay and Lesbian Task Force (NGLTF) has (in 1999) withdrawn support for current ENDA bills that do not protect transgendered persons! Such political correctness!
166b The fact that ENDA would not require “disparate impact” statements apparently means that class actions lawsuits based on historical statistical anomalies and requiring reparation would not be supported. That may work with race, but imagine the government trying to “classify” people as “gay” and “straight” and the privacy invasion issues.
167 Chai Feldblum, brief before the Supreme Court for Romer vs. Evans, Oct. 1995, p. 8.
168 Sue Fox, "More than Half of Fortune 500 Protect Gays," The
See also, "On Wall Street, a New Push to Recruit Gay Students," by
Rachel Emma Silverman, The Wall Street Journal,
169 Associates, however, pay taxes on domestic partnership benefits (which they wouldn't pay if legally married).
170 The Family Research Council has beefed loudly about American Airlines's helpfulness to servicemembers attending court appointments in lawsuits against the military for the gay ban. [In 1997, the Southern Baptist Convention voted a non-binding boycott of all Disney companies, for both offering "spousal" benefits to gay employees and for adult films made by some of its subsidiaries. It ignored the fact that Disney is a conglomerate of autonomous companies. Should customers (particularly churches) be able to determine corporate personnel policy when government is no longer allowed to do so?]
170a Corporate mergers have been known to result in the loss of "gay-friendly" policies. In 1999, Exxon-Mobil decided to discontinue Mobil's previous domestic partner benefits policy, at least for new hires. Exxon apparently felt that it did not want to get into the business of deciding when non-legally married partners had accepted financial responsibility for one another. Exxon-Mobil also rescinded Mobil's general non-discrimination policy for sexual orientation. The first major employer to offer domestic partnership benefits and then to rescind them was Perot Systems (Source: Out, Dec. 1999, p. 112).
170b In early 2000, a middle
school student in
171 Elizabeth Birch, Human Rights Campaign, letter to The
172 Ed Bean, "After 137 Died in its Texas Plane Crash, Delta
Helped Families," The Wall Street Journal,
173 Some HIV-negative gay men break the rules and give blood anyway, since they see their colleagues wearing "I gave blood" buttons. Screening will catch their blood, won't it?
174 Almost all major private employers reserve the right to discharge "at will." The "excuse" is that employees can resign at will. Technically, employers do not even have to pay severance with either layoff or "at will" termination. Reputable employers rarely want to do this, and use the "at will" prerogative only when an associate, though not guilty of breaking any specific rules, has somehow created a situation where his presence is simply not in the employer's best interest. Of course, it's easier for an employer to replace an associate (or, usually, a customer) than for an associate to "replace" a job.
In the 1960’s and earlier, one would sometimes hear of sudden corporate raids on gays (a day in 1965 when Technicolor fired all of its gays), where you wonder if they “asked”; and during those days, an openly gay person might be blackballed by whole industries, such as television networks.
174b. More on "conflict of interest": On
In June 2002 a Broward County Fla. Gym teacher was placed on desk duty after
he appeared in a porn video and the story of his appearance was published at a
MSNBC web story. The teacher claimed he was fooled into believing he was
appearing in a sports commercial. (Story by Jen Christiensen,
In January 2003, Maryland corrections officer Marcie Betts was dismissed
from her job at a prison near Hagerstown after security intercepted mail,
intended for an inmate, containing a photo of her in Tabu
Tatoo magazine. Apparently she had just started
her job after finishing training, and the photos and publication of her
likeness may well have occurred before her employment. The prison contends that this development
would hinder her effectiveness in disciplining inmates, or could endanger other
employees. Investigation also led to a membership “adult” web site containing
pictures of her, taken by her husband. Apparently the magazine photo was
published without her knowledge or permission. She sued, under First Amendment
claims, for her job, and apparently Administrative Law Judge D. Harrison Pratt
will order her job restored. She makes the argument that she could have lost her
job had the pictures have been of a hypothetical identical twin or of anyone
else coincidentally bearing a strong likeness to her. The story is by Darragh Johnson, “Guard Posted—and Was Sent Packing: Fired
Md. Prison Employee Sues, Claiming Rights Were Violated,” The Washington
A guidance counselor at an Arizona high school was pressured to resign from
her job (she had specialized in preventing dropouts) after she posed as a nude
model for a magazine for older women. Apparently she did not know that she
would pose nude ahead of time, and she did not authorize publication of her
likeness in a pornographic magazine. She told her story to Oprah Winfrey on
Reporter Larry Oakes writes, in “Troubles cloud aquarium’s success” In the
Minneapolis Star Tribune,
Also, Pat Doyle, in "Workers feel effects of rising competition for
gambling dollars," reports in the Minneapolis Star Tribune,
The House of Representatives has a rule prohibiting members from accepting book advances while serving. The Senate (judging from Hilary Clinton’s book situation) does not, although it prohibits usual financial gain from outside publicity.
It is not unusual for consulting firms to have no-moonlighting policies, largely because they want their workers available on-demand for overtime. This is simply an employer policy, not necessarily related to “conflict of interest” in the usual sense. I have heard of cases in other industries where sales or customer-relations people were forbidden to moonlight because outside activities would make employment with the company appear to be "part time." Indeed, in an age of downsizings and expectations of worker mobility, a balance needs to be struck.
Check http://www.doaskdotell.com/content/morefund.htm notes on Chapter 5 for discussion of employees fired for comments on investor trash boards and for mention of eWatch, a service that looks for off-the-job anti-corporate activism on the web.
A TV news anchor for a station in Youngstown, Ohio was forced to resign in
early 2004 when she appeared in an apparently innocent, spur-of-the-moment
sunbathing pose at a spring break party in Florida, and her picture was
circulated on the Internet and in sports bars in her home town. The story was
There was also an incident in
Miss Nevada USA was relieved of her duties in Dec 2006 after racy photos
taken over her five year before (when she was 17) appeared on the Internet. A
lot has been written about Donald Trump’s discipline of Miss
More on people who seek “fame” on the Internet at this blog entry.
A school bus driver in Georgia was fired for a gay bulletin board Internet ad in 2006, http://billonglbt.blogspot.com/2007/05/ga-school-bus-driver-question-raises.html
174c. The New Orleans Times-Picayune reported on
174d Employee blogging has gradually started to become a controversy. I have been concerned with this since about April 1999 (starting with a case in North Carolina where an employee of a tech firm tried to manipulate the stock price) and I posted my first White Paper in March 2000. There have been some scattered terminations, especially since 2003, of employees (“dooced”) for off-the-job blogs on their own computers, at companies including Microsoft, Google, Delta, Wells Fargo, the Houston Chronicle, and some others. See my essay on blogging ethics for details.
174e. There has been a lot of coverage in the past five or so years about the general public objection to commercial telemarketing, state “do not call lists,” and the Federal Trade Commission’s plans for a national do-not-call list. Generally these apply only to commercial telemarketers, not to non-profit fund-raising (“telefunding”). As association of telemarketing companies is suing the FTC. This raises an interesting debate. Some people feel that telemarketers are using an unethical business model (somewhat like spammers): they can reach a large number of people with automation, and need only a small percentage of responses to be profitable, so their whole solicitation scheme is predicated on “bothering people” at home or on invading or intruding upon family privacy. On the other hand, telemarketing employs some millions of people, many of whom have few other skills (other than the soft “people skills” required to sell) and many of whom might have difficulty getting other jobs. The implication, then, is that such employees should be forced to find “real jobs” (without commissions), probably at a minimum wage. (See more in Barbara Ehrenreich’s Nickel and Dimed.) In Wisconsin, the welfare-to-work program (often for single mothers) was implemented with the help of telemarketing firms, and with commissions might be capable of paying a living wage, significantly above minimum wage.
This extends to another point. As people (like myself) get older, it is harder to keep up specialized expertise on technology and to make a good living without moving into management or sales (or both). It is easier for companies to create and budget sales jobs (even more so, “multi-level marketing” and pyramid schemes) in a down economy, because the compensation will come largely from commissions. But a person who depends upon sales of other people’s products (“hucksterism”) to make a living may be in an ethical (even legal) bind if he wants to be respected as a writer or artist, too.
175 Repa, op. cit., pp. 8-51.
176 Kat Snow. "Kids: Utah's High School Students Have Galvanized the State Gay Rights Movement and Set the Stage for a National Debate," The Advocate, Issue 704, Mar., 1996, p. 24.
177 A gay doctor friend tells me that "Medicine is like the military. It's don't ask, but definitely don't tell."
178 "For rent sign says no AIDS or lesbians," Washington
Blade National News,
179 Dave Edmondson, "Property as a Gay Right," The Quill, Aug. 1994.
181 Chandler Burr, op. cit. (see Chap. 3)
182 An example of this kind of thinking occurs in the movie Sling Blade (1996), when a gay male character tells the retarded man that the two of them have something in common, oppression for a "difference" they didn't cause. Come'on, Miramax Films!
183 See Joe Sartelle's "Rejecting the
Gay Brain (and choosing homosexuality)," Bad Subjects, (1994) for
"moral" discussion. Also, Chandler Burr, in his followup
essay "Suppose There is a Gay Gene" (The Weekly Standard,
184 John O'Sullivan, "After Reaganism,"
185 Tim La Haye, What You Should Know About Homosexuality (New York: Tyndale, 1980).
185a Ch 5 P 284, last para. Homophobia, as part of a larger cultural conventionality, shelters people from having to think about their own ordinariness; if provides a convenient rationalization for mediocrity.
185b In Agust 2001 Sout Dakpta governor Bill Janklow decided to remove all Adopt-a-Highway signs in the state rather than recognize the Sioux Empire Gay and Lesbian Coalition (SEGLC).
186 Andrew Sullivan, Virtually
186a According to a book by Bruce Bawer, Muslim immigration has problematic to
188 Wolinsky and Sherrill, op. cit., p. 86. (see Chap 4)
189 In 1968, at the height of Vietnam and Johnson's "liberal" authoritarianism, Charles Socarides actually proposed that the federal government (or NIH) set up a National Center for Sexual Rehabilitation!
190 N. Penn, op. cit.: Ellen Fein and Sharon Schneider, The Rules: Time-Tested Secrets for Capturing the Heart of the Right Man (New York: Warner, 1995).
191 David Boaz, "Reviving the Inner City," Market Liberalism, edited by David Boaz and Edward Crane (Washington: The Cato Institute, 1993).
192 If, as Colin Powell suggests, companies make a practice of targeting schools with disadvantaged children for their employees to mentor as volunteers, will gay employees feel comfortable doing that and will they prefer to volunteer in their own community instead? Despite the reputation of brokerage for long hours, one Wall Street firm says it wants all of its associates to volunteer in community activities bettering young people and brings up the issue during interviews. Some people may see volunteering as a "time tax"!
193 Michael Lerner, op. cit.
194 Although Henry Aaron of the Brookings Institutes argues that Social
Security's public funding is not so unsound as it
appears; what bothers us is that it redistributes wealth and establishes
preferences. See "The Myths of the Social Security Crisis: Behind the
Privatization Push," The Washington Post,
A more recent treatment (2005) of social security appears at http://www.doaskdotell.com/controv/socialsecurity.htm At the time of the writing of this book, there was a real philosophical question as to whether social security is to be viewed as a savings plan (the Bush view) or more as a wealth redistribution and safety net program (the FDR view), in which case “soaking the rich” on all of their incomes would make sense and bail out social security (even if you paid them benefits).
195 Brett Fromson, "Wall Street's
Quiet Message: Privatize Social Security," The Washington Post,
195a Ch 5 P 289, fn 195. Yet President Clinton, early in 1998, proposed a new "hidden" tax on currently tax-deferred annuities. Where is the sense of personal responsibility for savings?
196 Many analysts point out that privatization would raise social security taxes, to make up for the benefits given to retirees who had never paid into the system when it started in the 1930's. The libertarian solution is to stop paying government benefits to retirees who don't need them (See Browne, op. cit., pp 159-169), or, at least, to substantially raise retirement ages. Note also, social security tends to transfer wealth from two-earner families back to one-income families with stay-at-home spouses.
There are substantive arguments for keeping social security "public." These have to do with the behavior of markets if completely open to retirement savings, and the idea that it would no longer be a safety net for the less capable or less lucky. However one cuts it, social security has a lot to do with redistribution, which is why libertarians and conservatives attack it.
Remember, social security, Medicare and Medicaid relieve
people like me from the responsibility of supporting our aging parents. They
don't (always) have to spend their own savings, they
can leave more to us. Is that right? In Singapore, people are required to
support elderly parents! There was talk in Congress, in 1994, of requiring
adult children (according to marital status, perhaps??) use their resources to
pay for custodial care for parents before the parents could use
The number of American families engaged in caring directly for elderly
members has risen sharply during the last decade. See Susan Levine, "One
in Four U.S. Families Cares for Aging Relatives," The Washington Post,
Also, M. Jane Taylor, "The Ties that Bind: Gays Face Special Challenges
Caring for Elderly Parents," The Washington Blade,
The issue of eldercare and (especially) unmarried adult children (without their own children) is bound to become controversial. While liberals may argue for more federal money for custodial care (especially at home as opposed to nursing homes) and while there is support for tax credits for those taking care of parents at home, this may be an Indian gift for persons who give up careers. Custodial care is not something that can easily be automated, and will always be labor intensive. So eventually, as the Alzheimer’s crisis grows (into a magnitude once feared for AIDS) there could be political pressure to penalize unmarried people who move away from aging parents.
The “Victorian” family values discussed in this chapter did indeed provide an honored place for the elderly in the social structure. There is a tendency for male sexual values, when not channeled by marriage or psychological growth, to decrescendo into a meritocratic celebration where men and women eventually become seen as “burdens” once they are “too old.” Persons with strong supportive family ties do, of course, enjoy longer life spans.
196a Ch 5 P 289, fn 196: Some feminists point out that Social Security is disproportionately important to women, especially single women.
196c Another indication that social security is really a "tax": for every $3 a person 65-69 earns over $15,500 a year, the person loses $1 that year in social security benefits.
197 David Bergland, Libertarianism in One Lesson (Costa Mesa, California: Orpheus, 1989/93). The worst polluters of the environment have been governments - witness the Soviet Union with Chernobyl. Pollution can be regarded as a property trespass; so even the protection of legitimate property rights demands "democracy." The global warming threat is looking more and more real. According to one study, the planet's temperature could go up by 4 degrees C. by 2100. See Thomas Karl, Neville Nicholls and Jonathan Gregory, "The Coming Climate," Scientific American, May 1997, p. 78. A United Nations study released in October 2000 announced that manmade sources could lead to a rise of 11 degrees F by 2100. All of this raises the possibility of big government action and the politicalization of lifestyle “sacrifices.”
197a Ch 5 P 290 fn 197. Global warming may indeed prove a test of libertarianism. Imagine government (as it had threatened with the gas "shortages" in the 70's) rationing driving privileges, and playing one group off against another (singles v. families). (Personal mobility = personal power!) As with disease, it is difficult for government to guarantee societal "survival" without policing individual private behaviors. An intermediate solution would, of course, be the energy or fossil fuel "tax," which still channels private behaviors for social goals. So we must solve this problem ¾ possible overuse of dangerous fuels ¾ with progress! In the employment area, professionals who can't work the regular schedules required by carpools may indeed view telecommuting as a mandatory job skill. (Think also about the ozone hole problem and air-conditioning freons.)
By the way,
p. 187. Actually, the FHA has been a good deal for the taxpayer as long as property values kept increasing. But when government "insures" people against responsibility for their own choices as consumers, people buy more than they can afford and builders charge more; the ponzi scheme will eventually collapse.
198 Daniel Sperling, "The Case for Electric Vehicles," Scientific American, Nov. 1996, p. 54.
199 John Goodman and Gerald Musgrave, Patient Power: A Free-Enterprise Alternative to Clinton's Health Care Plan (Washington: Cato Institute, 1994). The Canadian style (and "socialistic") "single payer" plan, of course, politicizes all disease and associated behavior, but it would have the advantage of taking health care out of the cherry-picking workplace.
199a Bill Moyers covered the health care
issue on PBS with his “
200 Discontinuance or misuse of medication can cause resistant strains of pathogens (whether HIV, staph, or TB, to appear and threaten others. There really are genuine "collective" public health issues. Some drug companies, such as Merck, have been willing to provide expensive (but recently successful) protease inhibitors to HIV patients without charge. While some insurance companies have balked at experimental AIDS drugs, HMO's such as Kaiser generally provide any medication that is genuinely medically indicated. Whitman-Walker Clinic, the largest AIDS service organization in the Washington, D.C. area, gets about 50% of its funding from private donations and fund-raising, and 50% from government.
201 "Santa's Sweatshop," US News and World Report,
202 GLIL public forum, Washington, D.C.,
202a Ch 5 P 290, pr. 1. When uninsured people are hospitalized (often minimum-wage non-union service workers), social workers tell them to empty their bank accounts and hide their savings in "Christmas stockings." How many people get on Medicaid this way? This observation does give some credibility to Clinton's call for universal health care.
Various notes on this paragraph: Of course, the libertarian proposals to
eliminate most regulation and licensing can be daunting, in such areas as
airline safety or home building (20/20 report
Libertarianism would hold that government should not interfere with voluntary bargaining agreements between unions and management.
When one allows another to assume (without qualification) a mortgage in a down market, one is likely to wind up supporting that person, almost as after a divorce! FHA and VA generally don't pursue deficiency judgments, but conventional lenders will go after the individuals in a ("subject-to") assumption chain with the "deepest pockets." Even a foreclosure on a credit record will be regarded by some employers as evidence of unreliable character, and rightly so: people must keep their promises. The whole area of assumptions is rather arcane: the types of assumptions (starting with the most dangerous for the original owner) are subject-to, simple, assigned, and "full" (or novated). The common law "rule against assignments" doesn't seem obvious to the uninitiated.
204 The United Way is controversial, to some people, in allowing individuals (in workplace donations) to choose charities of interest to them. People can avoid donating to groups that offend them. This may mean many poor people receive less direct help, since people do not care about them directly.
205 Mary Ruwart, Healing Our World: The Other Piece of the Puzzle (Kalazamoo: SunStar, 1993).
206 Rosenfels, op. cit., p. 142. (See Chapter 3).
Ch. 5 Section 05: General Comment: It's my responsibility to find the place where I fit in, or where I meet needs others will pay for. It's not the government's responsibility to change attitudes to make others comfortable around me.
Ch. 5 Section 05: General. The Supreme Court decided n 1998 that sexual harassment apply between members of the same sex ia actionable when it leads to a "hostile workplace" finding.
Ch 5: General: John Stossel’s “Give Me a Break”
has shown how far anti-discrimination legislation can go—a lawyer in
Ch 5: General
Here is some important statutory legislation:
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