Aug 23 2017

NY Appeals Court: No, You Can’t Fire Someone Because They’re “Too Cute”

Dilek Edwards worked as a massage therapist for Manhattan chiropractor Charles Nicolai, who is married to former Playboy centerfold Stephanie Adams. Adams is also a co-owner of the chiropractic practice. About a year into her employment Edwards began giving yoga lessons to Nicolai. Nicolai one day informed Edwards that his wife is likely to become jealous because Edwards was “too cute.” Edwards claims Adams texted her, warning her “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the F–K away from my husband and family!!!!!!” shortly after her boss admitted that his wife “might become jealous” due to Edwards’ yoga lessons. The following day Edward received an email from Nicolai, which stated: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

She didn’t return to the office; instead she filed a discrimination lawsuit against her employers. Her lawyers argued that Section 8-102(23) of the New York City’s Human Rights Law defines “gender” to include “a person’s gender identity, self-image, appearance, behavior or expression.” But Judge Shlomo Hagler of NY County Supreme Court disagreed saying that those terms were all meant to cover discrimination based on sexual identity to protect transgender employees. Well, Edwards persisted. She took her case to the Appellate Division and won its reinstatement yesterday.

In restoring the case, the court held:

Adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination . . .. Here, while plaintiff does not allege that she was ever subjected to sexual harassment at [her place of employment], she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant’s motivation to terminate plaintiff’s employment was sexual in nature.

It was the motivation behind the firing that was discriminatory and the court viewed it as just “one species of sex- or gender- based discrimination.” In an earlier blog post I had expected the case to come out in the other direction as it will not often be as clear in this case what the employers’ motivation may be and without any evidence of harassment or a hostile workplace, it could lead to the filing of many similar-type lawsuits.

Charles Nicolai (From his office’s website)

Dilek Edwards (From FB)

Stephanie Adams (Photo by Jamie McCarthy/WireImage)

In the Edwards case, the defendants filed a motion to dismiss the case before they even answered, so the case still has to drag through the discovery process. That means depositions, examination of texts; phone messages; and possibly social media posts, all of which will make the case go on for another few years. Which could make for some very dicey litigation as Ms. Adams has some interesting history and has done very well in life, business and the courtroom. Some salient facts: (1)She was a Playboy centerfold in November 1992. (2)At that time she was identified as the first openly lesbian centerfold. She obviously has since expanded her horizons. (3)She was injured in a scuffle with police in 2006 after an argument with a cabbie outside her apartment, according to the New York Daily News.The taxi-driver called the police claiming that she ‘flashed her vampire teeth’ and threatened to shoot him following an argument after he refused to carry her clothes up to her apartment. She claimed she was pushed to the ground when police officers arrived, an injury which left her with permanent neck and back injuries. Officers initially claimed that they performed a ‘controlled drop’ because they didn’t know if she was concealing a firearm. But they later admitted that her clothes were so tight-fitting that there would have been nowhere to conceal it. Adams was awarded $1.2 million – $385,000 more than her lawyers asked for; (4) In 2015, when the NYPD denied her a gun permit, she took them to court and won; (5) The permit denial was allegedly based on a number of domestic disputes with her husband and roommate some of which she was listed as the victim and others where she was listed as the perpetrator (6) She currently has more than a million Twitter followers and says she is now teaching yoga. Oh to be a fly on the wall in those proceedings. I suspect the parties may settle before it gets that far.

Follow me on Twitter at @OscarMichelen

Aug 18 2017

Shutting Down a Neo-Nazi Website Can Be More Dangerous Than the Neo-Nazis

In an article published last night, TThe Electronic Frontier Foundation makes strong arguments why it was wrong for Google. Cloudflare and GoDaddy to refuse to continue to manage the domain of The Daily Stormer, a neo-Nazi website and magazine. Allowing these major controllers of the Internet to shut a site down based on legal content – repulsive, yes but legal – is dangerous. Who is to say what the next CEO of these companies may deem offensive or likely “to incite violence.” Certainly the ACLU and the NAACP faced similar charges years ago. Our country is bigger and better than The Daily Stormer. We can tolerate its existence and combat its influence through activism and education and like everything else on the Internet – better content. Once we open this door, it will be harder to argue for Net Neutrality – a looming legal battle taht could change the face of the Internet. To quote from the article: “If the entities that run the domain name system started choosing who could access or add to them based on political considerations, we might well face a world where every government and powerful body would see itself as an equal or more legitimate invoker of that power.”

Lets look at what happened to The Daily Stormer. After the murder of Heather Heyer, the activist run over by a white supremacist in Charlottesville, the Daily Stormer delighted in her death highlighting that at 32 she still had not produced offspring, which in their mind is the only reason women exist on the planet. Of course, the article received condemnation from nearly every corner of the country. Then the powers that be determined that this opinion (and that’s what it is – an opinion) was an “incitement to violence.” First, the domain registrar GoDaddy dropped the site; Google Domains and others quickly followed suit. But there remained one notable holdout: Cloudflare, a server company that specializes in protecting websites against hacks, was still serving the Daily Stormer— insisting, as it has in the past when challenged to defend controversial clients – that policing online speech is not and should not be its job. Then all of a sudden. two days ago, Cloudflare joined the others and stopped servicing the site, effectively taking it off the Internet. Here is what their CEO Matthew Prince said:

Let me be clear: this was an arbitrary decision. . .. I woke up this morning in a bad mood and decided to kick them off the Internet. … It was a decision I could make because I’m the CEO of a major Internet infrastructure company. Having made that decision, we now need to talk about why it is so dangerous.. .. Literally, I woke up in a bad mood and decided someone shouldn’t be allowed on the Internet. No one should have that power. After today, make no mistake, it will be a little bit harder for us to argue against a government somewhere pressuring us into taking down a site they don’t like.

This document can take it

Well, thanks for the half-assed apology Prince. You recognize its dangerous, your recognize that it goes against your policy, and you recognize that it opens the door to pressure from others to take down other sites. You could have shown a spine and defended, not the Neo-Nazis, but the First Amendment. The First Amendment after all is unique to America. Europe speech is far more restricted than ours. For example you cannot display Nazi symbols in Germany, and it is much easier for publishers and the media to be sued for libel and defamation. The right of Nazis to march in the public square was recognized by the United States Supreme Court in Skokie v. Illinois. Well, the Internet is essentially the new public square. Its strength and beauty lies in the power it offers to opinion and information. It needs to be as unfettered and unrestrained as possible. And for the 1,000th time this week, “Hate speech is protected speech.” There are already laws in place that would prosecute the actors if they crossed the line of speech and opinion and actually incited people to violence. And remember please that inspiring people to violence is not inciting people to violence. After weeks and weeks of planning this White Pride march in Charlottesville, about 200 yahoos showed up. Clearly, this segment of the alt-right is a fringe element of American society. Yes they are here, yes they are real and yes they are dangerous, and yes, the President seems to enjoy their support, but they are not sufficiently large in number to warrant changing the Internet. We give them too much power that way. I am saying we merely tolerate or appease them. Far from it. But it is better to use the Internet to decry their methods and opinions. Better to denounce and throw out of office any elected official who equivocates in denouncing them. Better to counter-protest in larger numbers and to educate the populace in the falsity of their messages. Fight back with better ideas and tireless activism. They were horrifically wrong 70 years ago and they are horrifically wrong today. I loved the article I read this week about how a small German town combated their Neo-Nazi march. It seems that for decades, far-right extremists have marched through Wunsiedel in Bavaria every year. This year, the organizers of “Rechts gegen Rechts” (Right against Right) took a different approach to fight them. Without the marchers’ knowledge, local residents and businesses sponsored the 250 participants of the march in what was dubbed Germany’s “most involuntary walkathon”. For every meter they walked, ten Euro went to a program called EXIT Deutschland, which helps people escape these extremist groups. Campaigners hung humorous posters to make the march look more like a sporting event, with slogans like “If only the Führer knew!” and “Mein Mampf” (My munch”) next to a table laden with bananas. They even hung a sign at the end, thanking the marchers for their “donations.” The idea raised 10,000 euro and i am sure made the group think twice about marching next year. But even if they do, at least they raised money for a worthy cause while doing it.

Then there is the other effect of this censorship. I would rather that Daily Stormer operate on the World Wide Web than on the Dark Net or some other private network of servers. You think that by banning them from the Internet, they are simply going to go away? No. They will use this to recruit more members and they will find new more secretive ways to get their message out. This is likely to lead to even more violence. If we allow these fringe hate groups to prod us into changing the way we live our lives, we cow-tow to them. We can stand up to them without giving up our basic principles or giving them any indication of acceptance. But to react to them in this way can lead to far greater harm. I will leave it to the EFF to have the last word:

It might seem unlikely now that Internet companies would turn against sites supporting racial justice or other controversial issues. But if there is a single reason why so many individuals and companies are acting together now to unite against neo-Nazis, it is because a future that seemed unlikely a few years ago—that white nationalists and Nazis now have significant power and influence in our society—now seems possible. We would be making a mistake if we assumed that these sorts of censorship decisions would never turn against causes we love.

Follow me on Twitter @oscarmichelen

Aug 17 2017

Pro Se Plaintiff Beats Back Trump Org in Trademark Battle Over iTrump Music App

After a contentious six-year legal battle, the Trump Organization and its phalanx of high-priced lawyers have been beaten down by 40-year-old San Francisco music teacher, Tom Scharfeld. Scharfeld developed a few apps to allow iPhone users to replicate playing musical instruments on their devices. He developed iBones to simulate trombone playing and iTrump to simulate trumpet playing. So in 2010, he registered the two marks with the United States Patent and Trademark Office (USPTO) and put the two apps on iTunes for download at $2.99 apiece.

Then along came Donald Trump and the Trump Organization. Even though they are not in the app business or the music business or the music app business, they filed petitions to try and block and cancel the USPTO’s registration of the iTrump trademark. They claimed that while they were not in the same business, the marks still hurt the prestigious and famous Trump brand “built over many years for everything from buildings to books to the TV show, ‘The Apprentice.'” With little or no money to invest in fighting the Goliath, Scharfeld represented himself. Through discovery battles and motion after motion, Scharfeld established that the word “trump” is a known and accepted substitute for the word “trumpet” and pointed out to the USPTO its uses as such in the Merriam-Webster Dictionary and even the Bible itself. In 2013, he won some early rounds and Trump Org started to back down from their attempts to cancel his mark.

But Scharfeld didn’t stop there. Upset at how much time and effort he had invested in fighting their attempts to cancel his mark without any legal basis to do so, Scharfeld took aim at some of Trump’s other trademarks and filed counterclaims to cancel those. He pointed out that Trump rarely used or defended the marks. Scharfeld eventually won rulings that canceled some of Trump’s trademark registrations and forced him to withdraw another. Bloodied and beaten, in July of this year, Trump Org walked away from the last remaining issue and folded their tents and went home, having lost or abandoned every claim and defense they brought.

Kudos to Scharfeld, an MIT graduate, for taking this on pro se and winning a long and difficult battle against powerful and skilled opponents.He is quoted in a Bloomberg article about the case as saying that “the fight has taken its toll. He said he’s been unable to market the app in the way he wanted, but now he can focus: ‘I have people who use it for fun, and I have people who use it as a tool,’ he said. ‘They’re still selling.'” Indeed they are – I’m not an iPhone user, but if you want to download the app you can get it here

Follow me on Twitter @oscarmichelen

Aug 16 2017

A Bad Idea Sometimes Comes From a Good Place: Illinois Erases Statute of Limitations on Child Abuse Cases

Illinois Governor Bruce Rauner signed legislation that completely removes the statute of limitation for crimes involving sexual abuse of minors. Sex abuse victims are calling the new law a great step forward. They say pursuing justice criminally will help with the closure process.Survivors of abuse say eliminating the statutes of limitations will give them the time they need to come forward and report a crime to police.

Who could possibly be against this, right? Uhm, me . . . and hopefully every person who values the Constitution. Before you start calling me a supporter of pedophiles, hear me out. Our Constitution requires those accused of crimes to (a) be presumed innocent; (b) receive due process of law and (c) obtain a speedy trial. Why? Because we recognize that the criminal justice system is already heavily stacked in favor of the prosecution and the Founding Fathers wanted to develop a system of justice that protected the innocent, not one which merely convicted the guilty. And its worked pretty well. Conviction rates across the country are well above 90% with many states at or above 97%. So its not like the guilty are getting away with crimes. So the last thing we should be doing is reducing the few protections the system has in place for the accused. One would think the recent rash of exonerations, including of some men who were on Death Row for crimes they didn’t commit, would be enough for the populace and the politicians to cherish those protections.

The scales are there for a reason

“But the children!!What about the children!!” folks will scream. Yes, child sexual abuse is an horrific crime with lifelong implications and consequences for victims. False accusations of child abuse also have far lasting implications and consequences. Statutes of limitations were developed by the Ancient Greeks who imposed a five year statute of limitations on all crimes except murder. In New York, that five year rule still applies to almost all felonies and there is still no statute of limitations on murder. Statutes of limitations strike a balance between the right of an accused to have their day in court and seek justice and the right of the accused – who remember is presumed innocent – to be able to properly defend themselves. Memories fade, witnesses disappear, crucial evidence will likely be long gone if someone can be prosecuted 50 years after a crime supposedly occurred. And believe me, people accused of this crime already walk into the courtroom with tremendous disadvantages just by the nature of the charges.

Advocates for child sex abuse victims point to the fact that children often suppress these incidents for years. In a story about the new law posted by the local ABC News affiliate, David Rudofski said he was sexually abused by Illinois priest Father James Burnett when Rudofski was just 8 years old. But, it wasn’t until he was in his mid-30’s when Rudofski reported the abuse. He’s quoted as saying: “”It takes years – sometimes decades – to have the courage to come up and talk about or even realize what happened.” No doubt. But Illinois law already had one of the longest statutes of limitations for these crimes on the books: It called for cases to be reported and prosecuted within 20 years of the victim turning 18. That time period seems to strike a sufficient balance between the two important and competing interests here.

Children can be manipulated into making false allegations of child abuse, particularly in hotly contested custody cases. Is that common? No. Studies show that the prevalence of false allegations by children is around five to ten percent of cases. While that is a low number, the statistics also show that in Illinois there was not a large number of cases that went un-prosecuted due to the statute of limitations. I saw no such statistical evidence in legislative history for the new law. The drive for the new law seems to come in part by the case of Dennis Hastert, the former Illinois Congressman who served as Speaker of the House in between Newt Gingrich and Nancy Pelosi. It was revealed that for years, while Hastert was a high school football coach in the 1970s, he abused and molested numerous of his students and players. Some of those cases fell beyond the statute of limitations though Hastert settled most of them in civil court and ended up doing 15 months in a Federal penitentiary for trying to buy off another victim.

We use the scales to symbolize our system of justice for a reason. Laws that fully eliminate the statute of limitations, or extend them to points where they no longer serve their function, sound good and provide a nice platform from which politicians can make their “Tough on Crime” speeches. But they also erode long-standing protections put into place to make sure we do not wrongfully convict an innocent person. We should be very careful to tip the scales.