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Articles Posted in Employment Discrimination

EVERYTHING YOU NEED TO KNOW ABOUT THE DOCTRINE OF QUALIFIED IMMUNITY AND HOW IT PREVENTS CITIZENS FROM ENFORCING THEIR RIGHTS AGAINST LAW ENFORCEMENT AND GOVERNMENT OFFICIALS

What is Qualified Immunity for Police Officers? These Six Cases ...

As the national discussion about police reform and Black Lives Matter continues to rise in frequency and importance, it is important to consider one of the greatest hurdles to preventing police brutality: lack of police accountability.  Qualified immunity is a doctrine created by activist judges that permits law enforcement and other government officials to violate people’s constitutional rights with impunity.  Ordinary people—whether they’re doctors, lawyers, or construction workers—are expected to follow the law.  If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.  Law enforcement and other government officials?  Not so much.  Why is this important?  Because nearly all federal and state civil rights statutes empower ordinary citizens to sue law enforcement officers and other government officials for unlawful conduct.  This is very much by design since we know from history that people, corporations, and government agencies change their behavior when they are concerned about liability. Civil rights statutes only protect people if they are enforced and until qualified immunity is revoked, the law is virtually unenforceable.

Under the doctrine of qualified immunity, public officials are shielded from accountability and liability for their unlawful conduct.  They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law.  This standard shields law enforcement, in particular, from innumerable constitutional violations each year.  In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.”  In other words, ordinary citizens cannot even pursue a claim against law enforcement unless they can show the officer intentionally committed a crime.  It is under this rule that officers can, without worry, drag a nonthreatening, seven months pregnant woman into the street and tase her three times for refusing to sign a piece of paper.

When it comes to discrimination, people often talk in code. Rarely do we hear the classic hateful epithets for races, gender, or sexual orientation, at least not from employers when they are making decisions about employees. A few recent articles point out the subtle, or sometimes not so subtle, code words and phrases that have now taken the place of overt discrimination.

A Cleveland, Ohio, TV station reports that a local temp agency was sued by the Equal Employment Opportunity Commission (EEOC) because when they sent the applicants’ resumes to employers, they attached a notecard with a code phrase on it. “Chocolate cupcake” was a young African-American woman. “Hockey player” was a young white man. “Small hands” was for women in general. “Ballerina” and “basketball player” were two other codes, which the article does not translate, but we might guess what they mean.

A Boston Globe article reports that the Acton-Boxboro School District is being sued after it fired a lesbian softball coach. She says that some parents complained that she set a bad example because she was a single mother, though she and her female partner were raising five children together, and in fact three of their children attended the school where she worked. Other parents complained because she brought her partner with her on a team trip. The biggest complaint seemed to be that she swore too much, and that the students were uncomfortable with her vulgar language. She says that if she were a heterosexual man, these actions would not result in complaints or dismissal.

Finally, the San Francisco Chronicle reports that Google, Inc. is being sued by a 54 year old manager who was fired after co-workers called him “fuddy-duddy” and an “old man.” Management was more subtle when they let him go — they said he was a bad “cultural fit” in the youth oriented company.

Discrimination in employment is far more subtle today than years ago. Code words, stereotypes, and an acceptance of the way the “majority” — usually meaning white men — view the world can lead to treating people of other races, women, and gay, lesbian, bisexual and transsexual people badly. But if that happens in the employment context, it is still illegal.
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