Who Won the Debate? Comments from Colorado

I had the privilege of watching the debate tonight in Denver with a group of highly interested citizens in the home of a new friend.

Mostly 30-40-somethings, they shared some incredibly interesting insights.

Lots of Obama supporters, a broad range of professionals were represented, including restaurateur, journalist, web site designer, financial former-hedge-fund numbers-guy, state information specialist, immigration paralegal, professional development manager, technical writer, attorney, and more in other discussion groups. Married couples and singles, some have small children, and others have small furry "children." I don't think there were any hockey moms - of any political persuasion.

I tried to sneak into the warmly colored candle-lit living room just after the debate had started (as per usual, I had a hard time breaking away from a writing project to leave on time and arrived 30 minutes later than I had planned). I had never met them before, aside from the host, who graciously stopped the debate to introduce everyone (oh my gosh, so much for sneaking in!). Thank the stars for TiVo, because no one seemed too disturbed by my disruption. To my relief, they welcomed me, and we got the debate back on after a couple of moments of pleasantries.

My subscribers will know that I've been trying to challenge my own stereotypes this election season and listen to people I would usually ignore (remember, I even listened to Bill O’Reilly and Pat Buchanan?). I was determined to hear both Presidential candidates with an open mind.

The room silenced as the TiVo fired up the debate again. I felt optimistic that I could listen and try to be receptive to both sides. Be open, I told myself.

But I found myself closing off to McCain must faster than I had hoped. As I watched his body language and facial expressions and listened to his words, I realized I had crossed my arms and legs, rolled my eyes, and wanted to say something, even if just "whatever" as the group watched silently, intently, intensely.

Every once in a while, someone would say something quick, so as not to interrupt the debate (OK, it was usually me, but I tried to stay quiet, I did!). A few times, we had to stop and rewind (the miracles of TiVo) to catch something we missed, or thought we might have heard incorrectly.

One of those instances occurred during a discussion of the economy when McCain tried to support his plan to cut the taxes for the rich corporations by claiming that since Ireland only has an 11% tax rate, unless our corporations get a tax cut the businesses will . . . what, go to Ireland? We had to rewind that to make sure we had heard what country he said. Yes, it was Ireland.

Closing off. Smirking. Laughing haughtily. McCain and I were both doing it.

I tried to open up again. Uncross the legs and open arms. Open mind again.

But then McCain brought up the earmarks. If you read my previous post on this topic, Earmarks-Shmeermarks: Keep Your Eye on the Ball, you'll know why I just couldn’t stay silent. Earmarks are only 1% of the federal budget, and one month in Iraq costs an entire year of earmarks. Earmarks can be good, unless abused. Legs crossed, rolling eyes, and folded arms.

Obama said (most of) the things I hoped he would say. And his demeanor reassured. He talked about priorities that matter to me, alternative energy, tax cuts for working Americans, making corporations pay their fair share, education, phased-withdrawal from Iraq, diplomacy, health care.

I wished Obama would have addressed McCain’s proclamation that he would take care of the veterans. Obama, please remind everyone that McCain voted no on the GI bill and then missed the vote the next time it came up! Why didn’t he hammer this fact?

It felt like time slowed for the debate. All were quiet. Listening. Thinking.
I couldn’t wait to confab with my debate-watching compatriots to hear what they thought about all of this!

When the debate ended, the pundits came on. With all due respect to the media, I wanted to mute them immediately and hear from the people in the room. A few moments later, little discussions broke out all over the place. I wanted to hear each one, but they all erupted at once.

I was surprised that the groups jumped into policy issues immediately and didn’t spend much time on the funny stuff, like when McCain said his pen was old, or Obama called McCain “Tom” then later another name (was it Bob?).

The first discussion I heard centered on the financial markets and what would happen to us all. Our financial expert gave us a quick tutorial in insurance on mortgage losses and the financial house of cards we saw tumble last week. Scary stuff.

Some of us wondered whether we will see a fundamental change in our daily lives as one group member recounted how her sister in another state was afraid she might not get home from work tonight because the gas stations had closed and then later opened to huge long lines of cars waiting for fuel.

We wondered whether the financial crisis would bring us back to basics and force people to live within their means, and whether that would be such a bad thing in the long run. There was some discussion of whether China would become the largest owner of American companies and what effect the rising debt would have on our ability to rebound.

There was unanimous agreement that our costs have gone up noticeably, food, gas and electricity. But salaries haven't. Some worried about food and power outages. Others have started walking or riding their bikes or scooters to work. Some opined that we might all lose weight in the next few years, and maybe the diet industry would become obsolete.

I sensed a cloud of fear and anxiety in the room. I had expected to be celebrating Obama’s win. But they didn’t seem overwhelmed.

One woman said she wasn’t impressed with how many times Obama said McCain was right, as he prefaced several of his answers before showing where he was wrong. She said she could just hear the McCain camp saying something like, “he agreed with McCain eight times tonight.” As a matter of courtesy, once or twice would have been enough for her.

Another said that he didn’t think Obama or McCain adequately addressed how the financial meltdown would impact their proposed budgets. And some wondered whether there might be an October surprise to rival Sept. 11 or the Great Depression.

Then the talk turned to the upcoming Vice Presidential debates and Sarah Palin’s performance with the media this week. One man was astonished that she hadn’t been prepped better. Acknowledging that Charles Gibson’s question about the Bush-Doctrine may have been loaded, he thought the lack of preparation of Palin on these issues was a bad sign. His wife thought that if Palin couldn’t handle Katie Couric, she’s in for trouble with Putin. I heard some comments that Palin’s quips about Alaska being the front lines between Russia and the U.S. showed a great and scary lack of understanding.

After the debate, it was almost as dark inside as out. The mood was heavy.

But as quickly as the mood had turned fearful, it turned hopeful, as the group began discussing how the U.S. might weather the storm and become more of a world citizen instead of an imperialistic military force. They talked of the importance of community and de-centralizing the energy and food structures.

They hoped we could restore the respect and friendship of the rest of the world.

As people left our gathering to return to their homes and lives, I felt a new sense of hope for our country. People do care about important issues. They are listening, apparently with open minds and open hearts.

Yet no one would say who won the debate.

Photo credit: http://www.debates.org/

NY Recognizes Out-of-State Marriages

Can you imagine getting a job transfer, moving to a new state, and having the state tell you your marriage is invalid there?

That's what the Alliance Defense Fund wanted for gay workers in New York. But a judge ruled otherwise this month.

“The court said that respect for out-of-state marriages of same-sex couples is the law in New York,” said Susan Sommer, Senior Counsel at Lambda Legal.

Dismissing a lawsuit challenging out-of-state marriages for 2 gay NY state employees who had married in Canada, the New York Supreme Court Bronx trial court put it this way:

“…when partners manifest the commitment to their relationship and family, by solemnizing that commitment elsewhere, through one of life's most significant events, and come to New York, whether returning home or setting down roots, to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon that solemnized commitment."

The court also said: "The emotional, familial, financial, and legal stability that accompanies marriage establishes a strong presumption in favor of the marriage's continued validity.”

Attorneys with Lambda Legal and Jeffrey S. Trachtman and Norman C. Simon of Kramer Levin Naftalis & Frankel LLP represented two long-time public employees raising a special needs child adopted from foster care. The couple depends on the protections that come from respect for their marriage.

This decision affirms their human equality and is another step forward toward a true egalitarian society respecting the rights of all our citizens.

Kudos to the lawyers who protected the rights of their clients and the many who will be positively affected by this decision!

Lambda Legal has an article on this case too: Read more »

Photo credit: Flickr - Jeff Belmonte from Cuiabá, Brazil

EEOC Sues to Protect Christian Woman's Rights at Work

Should a company be able to fire a Christian woman because she won't wear a short skirt or pants? She worked at a clothing store with a dress code that conflicted with her religious beliefs. The dress code won. At first.

But employers cannot legally discriminate against workers because of their religious beliefs. Employers are required by federal law to provide reasonable accommodations for the beliefs when it's not unduly burdensome.

Is it unduly burdensome for the store to let her wear skirts an inch below her knees?

The EEOC seeks to recover back pay for the worker and also asks for reinstatement, punitive damages, and costs for the lawsuit, which was filed yesterday in the United States District Court in the Eastern District of Missouri, EEOC v. J. M. Hollister and Abercrombie & Fitch Stores, Inc. The stores have 20 days from the date they were served with the lawsuit to file an Answer or a motion to dismiss the suit. I honestly don't know what their defense is. Maybe they will say they fired her for other reasons.

Just for fun, ask youself whether it would it change your opinion of this case if the worker was fired for wearing the Muslim religious dress, like a hijab head scarf or burka? Do you think there could be elements of sexism at work here too?

Read the EEOC's guidance on religious discrimination here: Religion

Colorado Proposed Amendment 53 - Criminal Accountability for Business Executives

Amendment 53 would amend Colorado law to hold executive officials criminally liable for corporate illegalities.

It would condition an executive's liability on his or her knowledge of the duty imposed by law and of the business entity’s failure to perform such duty. It would give an affirmative defense to executive officials who disclose to the attorney general all facts known concerning company criminal conduct.

The Blue Book sets forth the following Arguments Against 53:

1. It would negatively impact a business climate in which most businesses and their executives comply with the law. For example, the new criminal penalties could drive higher insurance costs for law-abiding executives, which may ultimately be passed along to consumers. Additionally, fear of prosecution could hinder recruitment of top business talent and may leave community leaders reluctant to serve on nonprofit boards.

2. State and federal laws already hold business executives accountable. For example, executives can be prosecuted under Colorado law for their own criminal conduct on behalf of their business. Recent federal laws have strengthened criminal and civil penalties for business executives who commit fraud. Criminal prosecution when it is clearly deserved already exists.

The Blue Book sets forth the following Arguments For 53:

1. Amendment 53 addresses a gap in state law. While business entities themselves can be prosecuted, their executives can currently avoid responsibility for their businesses' failure to follow state law.

2. The measure helps ensure that these executives are held accountable when they know of a legal duty that their business has failed to perform.

3. Over time, Amendment 53 can foster a business environment that attracts and retains responsible employers. Amendment 53 may encourage a healthy and moral economic climate for Colorado. When businesses fail to comply with state law, the state's economy can be impacted in a variety of unexpected or far-reaching ways.

Is it time to hold executives criminally liable in this way when they know their companies are breaking criminal laws and fail to take action?

Source: Colorado Legislative Council, Blue Book: http://www.leg.state.co.us/LCS/InitRefr/0708InitRefr.nsf/89fb842d0401c52087256cbc00650696/db82dfb60f6ccfc687257465006d9778/$FILE/2007-2008%2074bb.pdf

Colorado Proposed Amendment 47 - Right-to-Work? Or Anti-Union?

Here's how I see Colorado Proposed Amendment 47. The anti-union crowd calls this the "right-to-work" amendment. From what I can tell, "right-to-work" laws interfere with the freedom of businesses and unions to contract. And they hurt workers.

Workers already have a right to work wherever they can qualify for a position, so the title of this amendment is a misnomer. The proponents of this amendment are big-business executives with an interest in busting unions.

It's not a workers' rights amendment, as the title might suggest. The real question is whether companies and unions can require employees to pay union dues as a condition of employment.

As it stands, no one is forced to join a union, but if they choose to work at a company with a union contract, they can be required to pay dues for the benefits they receive. By accepting employment at that company, even non-union members get the benefits of the union contract negotiations. Should they get a free ride?

If Amendment 47 passes, non-union workers would get a free ride with union protection without having to pay union dues. That is, if any unions still could afford to protect workers without funding through workers' dues.

This proposed Amendment 47 also is really harsh. It creates a criminal penalty for charging union dues. It goes so far as to put this criminal penalty into our state Constitution.

Proposed Amendment 47 is an effort to get rid of unions by taking away their funding. It's not an effort to protect workers. It's to protect big business. Given the way big-business has fumbled big-time and cost us billions, if not trillions, is it a good idea to bust the unions now? Who will speak for labor?

If you think unions help workers, vote no on proposed Amendment 47.

Or if you oppose amending our Constitution to add criminal penalties for charging union dues, vote no on proposed Amendment 47.

In any case, vote!

Here's the text of proposed Amendment 47: Colorado Secretary of State

Stressed out by the bailout? Duke Integrative Medicine offers free online mindfulness class

Stressed out by the financial bailout?

Duke and eMindful.com are offering mindfulness courses at no charge starting this Saturday through October 10.

The classes sound great - like being in a room together in the comfort of your own place. Who couldn't use these right about now?

1. Five Good Minutes Class for those affected by the Financial Crisis

2. Learning to Manage Stress with Mindfulness Class for those affected by the Financial Crisis

3. Two-Hour Stress Reduction Class for those affected by the Financial Crisis

They predict a huge turn-out, so you might want to check it out now.

Thanks for the tip to Stephanie West Allen. I love her blog, Idealawg.

Check it out for for the details on how to sign up:

http://westallen.typepad.com/idealawg/2008/09/stressed-out-by-the-bail-out.html

Teenagers, Women Fight Harassment, Win Settlement

Scolari’s Warehouse Markets will pay $425,000 and furnish other relief to settle a class sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced this week.

The company's senior officers and managers harassed 19 female employees in repeated and sometimes severe sexual harassment across multiple stores in the Reno area, the EEOC charged.

Several of the victims were teenagers at the time.

The EEOC asserted that Scolari’s senior officers and managers inappropriately touched female employees, propositioned them, made lewd comments and passed around naked photos of themselves, among other acts. In addition, the EEOC charged that Scolari’s management failed to address and correct the unlawful conduct, even when the young women reported it. Instead, the company fired the women or forced them to abandon their jobs after they told the company about the harassment, according to the lawsuit.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, according to the EEOC. The EEOC filed suit in U.S. District Court for the Northern District of Nevada after first attempting to reach a voluntary settlement (EEOC v. Scolari’s Warehouse Markets, CV 04-229 DAE - RAM). A consent decree setting forth the terms of the agreement was approved by the court on Sept. 5.

Scolari’s agreed to pay $425,000 to the employees identified by the EEOC to have been sexually harassed or retaliated against. Scolari’s further agreed to provide training to all employees, provide reports to the EEOC regarding its employment practices for a period of three years, and to hire a consultant to review its harassment policies and procedures.

Source: Scolari's to Pay $425,000 to Settle EEOC Sex Harassment and Retaliation Suit

English-Only Violations Alleged at Macy's

Here's an excellent article about an alleged unlawful English-Only policy at Macy's in Minnesota where workers are claiming they were threatened with termination for speaking with each other in their native Somali language while they sorted merchandise in a basement closed off from the customers. Macy's denies having an English-Only policy.

Read more about the story here: http://minnesota.publicradio.org/display/web/2008/09/22/somali_macys/

Read the Equal Employment Opportunity Commission's guidance on English-Only policies: English-only rules

Source: Macy's Case Highlights Confusion Over English-Only Rules (NPR), accessed Sept. 25, 08

Colorado Proposed Amendment 46 - Wolf in Sheep's Clothing

The so-called "Colorado Civil Rights Initiative" is a wolf in sheep's clothing.

It pretends to guarantee equality for Colorado citizens.

Its supporters claim women and minorities shouldn't be "treated as second-class citizens."

Yet it would dismantle more than 40 years of progress in the true fight for equal rights of all citizens, including women and minorities.

The title of this Constitutional Amendment is deceptive. Who isn't in favor of civil rights? Certainly it's not something many people would openly admit. Yet this Amendment would not protect civil rights. It would repeal them.

The ballot language looks benign. It borrows the language of a true Civil Rights law, Title VII, in a very tricky way. The first part of the proposed amendment asks the voter to agree to:

"An amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (emphasis supplied).

We don't want unlawful discrimination by the state. Agreed.

But here's the little phrase that would dismantle equal employment opportunity - "granting preferential treatment." Surely preferential treatment can't be good, can it? We don't want those "special interests" getting preferential treatment, do we? The words "preferential treatment" are code words for "affirmative action." And everyone knows that you can't have preferential treatment where there isn't even equality.

Veterans often get preferences in workplaces and on campuses — which usually benefit men more than women. Friends help friends and acquaintances get jobs. The children of alumni get preferential treatment over others in admission to college. Affirmative Action helps open doors for women and people of color who often don't have those connections.

Why the deception? Why didn't the Pro-Amendment 46 crowd just come out and say directly that they want to ban affirmative action in Colorado? Did they try to appear to be for equality, when they are against it?

"Affirmative-action" is not an expletive. It simply requires positive steps to be taken to provide equal employment opportunity. Equal employment opportunity is a fundamental part of our laws. We want people to have the same opportunities to be employed or to contract with the government regardless of our physicalities or our beliefs.

Opponents have distorted the reality of affirmative-action beyond recognition. Affirmative-action is not the same as quotas. Quotas are prohibited by federal law.

Affirmative-action is rooted in the historical inequities once enforced by our government.

Remember segregation? Remember Jim-Crow laws?

Until 1965 our government mandated segregation by law. The government engaged in systematic exclusion of Black Americans from full participation in society. Laws allowed segregated restaurants, hotels and theaters, schools, all aspects of public life.

The government also systematically discriminated against women. For example, women were excluded from the practice of law. The U.S. Supreme Court actually ruled that: "The paramount destiny and mission of women is to fulfill the noble and benign offices of wife and mother." It's called the Bradwell case.

Women couldn't even be bartenders, unless they were the wife or daughter of a male bar owner. And that was just in 1948! There in the Cleary case, the Supreme Court said that the state's interest in protecting morals was so reasonable that "to state the question is in effect to answer it."

Judges recognized the damages caused by state discrimination. People in all three branches of government designed affirmative action to eliminate the remnants of state-enforced segregation and exclusion of women, Blacks, Latinos/as, and other non-white workers.

President John F. Kennedy first used the phrase "affirmative action" in 1961 when he issued Executive Order 10925. This order requires federal contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." Lyndon Johnson's 1965 Executive Order 11246 used the same language. In 1967, Johnson expanded the Executive Order to include affirmative action requirements to include women.

Affirmative Action levels the playing field. It was not level before, and it's not level yet. AA works so people of color and all women have the chance to compete in education and in business. White men hold 95% to 97% of the high-level corporate jobs, according to NOW. "And that's with affirmative action programs in place. Imagine how low figures would be without affirmative action. Of 3000 federal court decisions in discrimination cases between 1990 and 1994, only 100 involved claims of reverse discrimination; only 6 of those claims were found to be valid."

Women and people of color still face unfair obstacles in business and education, despite enormous gains over the past several years. An astonishing 70% of schools are not in compliance with Title IX, the federal equal education opportunity law, according to the National Organization for Women. NOW also reports that for every dollar earned by men, women on a whole earn 74 cents, African American women earn 63 cents and Latina women earn 57 cents. Only 25% of all doctors and lawyers are women, according to the Census Bureau. Less than 1% of auto mechanics are women. And women are only 8.4% of engineers. Less than 3% of federal contracts go to women-owned firms. Women still face barriers in schools. In Washington, women receive only 12% of doctorates in engineering, and women are substantially under-represented in computer science nationwide.

Colorado's proposed Amendment 46 is aimed at preventing programs that work to tear down barriers to opportunity for people who, because of their gender, race or ethnicity, have been underrepresented in education or contracting.

This anti-affirmative action amendment seeks to eliminate:

• Programs that help women achieve pay equity with men;

• Programs that encourage women to enter fields where they are underrepresented and could earn higher wages;

• Outreach efforts and other programs that inform women and minorities of opportunities to bid on and earn public contracts;

• Programs that encourage female and minority students at the elementary and high school level to excel in reading, science and math; and

• Scholarships and programs that encourage women and minorities to enter medical, science and engineering careers.

Working women have moved from welfare to jobs as forklift operators and other non-traditional construction jobs through federal affirmative-action outreach efforts. The US Department of Labor cites Lisa as an example of a laborer employed at an expansion project. Before she entered the trades, she worked for $5.00 an hour without benefits as a seamstress. She now earns over $20 an hour with benefits. Judy is a journey structural ironworker and single parent of two teenage sons. Before entering the trades, she worked two jobs, with no room to advance. She credits her new job to affirmative action and says "employers will not hire without affirmative action." She was one of 20 women in her union of 2,321 members.

Colorado Proposed Amendment 46 is bad public policy. If it passes, it would eliminate public programs aimed to increase opportunities for women and minorities in education, employment, and business. Even modest outreach programs to inform women and minorities about educational or contracting opportunities would be affected.

Vote!

Sources: (accessed 9/24/08): U.S. Department of Labor, http://www.dol.gov/esa/ofccp/regs/compliance/aa.htm; National Organization for Women: http://www.now.org/issues/affirm/talking.html; Colorado's Civil Rights Initiative: http://coloradocri.org/ballot_language.html; Grutter v. Bollinger (2003), Written Opinion ; ADL: ADL Opposes Colorado Amendments 46 and 48; Photo Credit: Colorado Department of Wildlife; Subscribe to Kimberlie Ryan's Working Wellness

Musgrave: The Sarah Palin of Colorado?

Did Colorado US Representative Marilyn Musgrave’s campaign manager call her “the Sarah Palin of Colorado”?

I received an e-mail from Emily’s List this morning reporting this statement, although I haven’t seen it yet in an independent source. But it raises some interesting questions.

Who is Marilyn Musgrave? Should she be re-elected by Colorado voters? At first, I thought it was just a good campaign line. For the Democrats. But if her campaign manager actually said it (and I said “if”), they must think it’s a good line for the Republicans too.

So is Marilyn Musgrave the Sarah Palin of Colorado? Let’s review. She is the first Republican woman elected to Congress by Colorado. She has a B.A. in social studies from a state school, CSU. She married her college sweetheart and had 4 kids. She and her husband, Steve, owned and operated a bale stacking business. Like Palin, she is a devout Pentecostal and an Aquarius.

She started her political career on the Fort Morgan School Board in 1991. There, she focused her attentions on changing the sex-education of Colorado kids to abstinence-only. She was a President of the Fort Morgan Right to Life Chapter. Sound familiar? Palin started on the school board, focused on replacing sex-ed with abstinence only, and belonged to anti-choice organizations.

Musgrave worked her way from the school board to national politics, winning a seat in the Colorado State House of Representatives in 1992, a seat in the Colorado State Senate in 1998, and going to Washington in 2002 as Colorado's first female Republican U.S. Representative. Palin started with the school board, became mayor, and serves as Alaska's first female Republican governor.

Musgrave is opposed to equal rights for gay American citizens. She worked against allowing adoption, civil unions, and marriage rights. She opposes abortion choice. She opposes embryonic stem cell research. She opposes emergency contraception. She tried to (unsuccessfully) amend Colorado law to prevent contraceptive distribution to runaway teens. She is an ally of Focus on the Family. Sound familiar? This is Musgrave, but the same could be said about Palin too.

Palin, I mean Musgrave, strongly opposes gun control. As founder of the 2nd Amendment Caucus, she is working to protect gun manufacturers and dealers from lawsuits. She is an ally of the Gun Owners of America, considered by some to be even more conservative than the National Rifle Association, earning the distinction of being named “Gun Rights Legislator of the Year.” She advocates funding for home-schooling. She’s anti-union. She wants to make Bush’s tax cuts permanent. She sponsored a resolution for Congress to declare 2007 as “National Year of the Bible.” She said Dominionist D. James Kennedy inspired her to go into politics.

The National Rifle Association gave her an “A” for support of pro-gun issues. The Christian Coalition ranks her at 100% in support of their legislation.

The National Education Association gave her an “F” for public education issues. The Children’s Defense Fund gave her a 30% based on her 2006 voting record.

Holy Hell! Maybe Marilyn Musgrave is the Sarah Palin of Colorado! Vote!

Sources:

ttp://musgrave.house.gov/News/; http://en.wikipedia.org/wiki/Marilyn_Musgrave; http://www.votesmart.org/summary.php?can_id=2703 (accessed Sept. 23, 2008)

Judge: Federal Law Protects Transsexual Workers

In a landmark ruling, a federal court ruled last week that transgendered workers are protected by Title VII, the law prohibiting discrimination on the basis of sex, race, religion, national origin, and color. The judge took evidence in a bench trial in this "failure to hire" case in August.

Who is the applicant? She had received the highest interview score of 18 candidates for a position as a Specialist in Terrorism and International Crime. She sought a position with the Congressional Research Service in the Library of Congress. She had served in the military for 25-years leading counter-terrorist operations.

The selection committee had unanimously recommended that she be hired. She was told that they were excited she was joining them because she was "significantly better than the other candidates."

Then all hell broke loose. Diane had been born a man. She had interviewed as a man. They hired a man. When she disclosed that she would be transitioning from male to female gender, they freaked.

They had a series of meetings to decide what to do. Diane's experience hadn't changed. Since 1986 she had been involved in leading counter-terrorism and counter-insurgency operations all over the world. She served our country proudly, and was a 25-year military veteran.

But now they said she "wasn't a good fit" and withdrew the job offer the day after finding out about her transition. At the end of that meeting, they thanked her for her honesty. Then they offered the position to a man with a lower interview score, who accepted.

The Library of Congress asserted various defenses, saying they worried about her credibility, truthfulness, her ability to maintain contacts in the military (based on their assumptions about stereotypes against transgendered workers), possible distraction from her job during the transition, and security clearance.

The judge didn't buy any of it. These after-the fact justifications just didn't jibe with the evidence. They had a couple of damaging e-mails showing their true bias. The court also pointed out that their stated concern of truthfulness was contradicted by one of the last things they said when snatching her job: "Thank you for your honesty."

And by the way, the court followed well-established legal precedent in ruling their stated concern with the discrimination of others (possibly losing military contacts based on discriminatory stereotypes) was itself facially discriminatory. The law forbids employers from using other people's discrimination to effect their own discriminatory conduct. Employment agencies can't refuse to send a woman for an interview just because the potential employer asks them to discriminate unlawfully. In the same way, the Library of Congress can't refuse to employ a transgendered worker based on its fear of military stereotypes.

Discussing the legal theories of sex stereotyping, the Court put it this way:

"Ultimately I do not think it matters for purposes of Title VII liability whether the library withdrew its offer of employment because it perceived Schorer to be an insufficiently masculine man, and insufficiently feminine woman, or an inherently gender-nonconforming transsexual."

There was sexual stereotyping. The judge also concluded Schorer is entitled to judgment based on the language of the statute itself.

Title VII prohibits discrimination "because of sex." They wanted to hire a man. They thought they had hired a man. They changed their minds when the man was actually a woman. The court analogized it to a religious conversion. It would be illegal to discriminate against a Christian or a Jew, regardless of conversion. Here, the court found that the Library of Congress literally discriminated because of sex.

This decision does not apply outside of D.C., but other courts may follow this lead. It could also be appealed, but for now, the case goes on. The next step is a conference for the remedial phase. Will the judge require reinstatement? Award money?

Stay tuned. Read the well-reasoned opinion here: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DIANE J ...

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Congress Helps Workers With Disabilities: ADA Amendments Act

Workers with disabilities have faced huge hurdles in protecting their rights at work.

Congress is helping out.

The federal law that protects workers with disabilities, called the Americans With Disabilities Act, had been interpreted by the courts so narrowly that many discrimination claims were thrown out before trial because it was so hard to prove many types of disabilities under the restrictive federal court interpretations.

As of last week, both houses of Congress said "no more." They have approved the ADA Amendments Act (ADAAA). It clarifies the definition of disability and overturns Supreme Court decisions that had made it more difficult for employees to prove disabilities. President Bush has said he will sign the law, which will become effective January 1, 2009.

Definition of Disability. The term "disability" continues to mean: (A) a physical or mental impairment that substantially limits one or more "major life activities" of such individual, (B) a record of such impairment, or (C) being regarded as having such an impairment. The new law clarifies these components.

Major Life Activities. The law adds a definition of "major life activities" to address the restrictive interpretations by federal courts. The major life activity affected does not need to be directly related to working. The definition of major life activities now will include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. These are just examples, so other activities may also qualify.

Major life activities also include "major bodily functions," such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. As this plays out in the courts, workers now may be considered disabled if they have sleep apnea, dyslexia, stuttering, ADD, or infertility.

Substantially Limiting. An impairment still must "substantially limit" a major life activity to qualify as a disability. Congress has now made clear that it intends for courts to interpret that phrase broadly. Congress has instructed the EEOC to issue interpretive guidelines. By doing so, Congress intends to overturn portions of the Supreme Court case TOYOTA MOTOR MFG., KY., INC. V. WILLIAMS, which disqualified an assembly line employee with carpal tunnel syndrome from disability protections because she could still brush her teeth.

Mitigating Measures. Also, the determination as to whether someone is disabled now will be made without considering mitigating measures. A worker who controls a condition by medication, prosthetics, hearing aids, assistive technology, or other medical equipment or aids can no longer be excluded from the definition of disabled just because of these mitigating measures.

If a person's condition would qualify as a disability without these aids, the person is considered disabled for the meaning of this law. This overturns the Supreme Court's decision in SUTTON V. UNITED AIR LINES, INC., which denied protections for airline pilot applicants with uncorrected vision of 20/200, because they had glasses.

Interestingly, the new law provides an exception stating that poor vision corrected through ordinary eyeglasses or contact lenses is not a disability. This exception is limited to vision, so a person who corrects poor vision with eyeglasses generally is not disabled under this law, but a person with hearing aids may be considered disabled. Employers cannot use vision tests based on applicants' uncorrected vision, unless a certain level of uncorrected vision is required by the job and is a business necessity.

Remission. Workers in remission or with episodic recurrences are still considered disabled if the condition would qualify as a disability when active.

No Reverse Disability Discrimination. The law prevents non-disabled workers from bringing claims of reverse discrimination.

Disability litigation is always hard - for workers and businesses - and these amendments won't change that. There's no substitute for open communications and reasonable accommodations. Maybe this new clarification will help employers and employees understand their rights and responsibilities. At least it's a step in the right direction.

Photo Credit - Get your Breast Cancer Awareness Stethoscope at: http://www.stethoscope.com/ (accessed 9/22/08); Subscribe to Kimberlie Ryan's Working Wellness

Emancipation Proclamation

Today marks the anniversary of the Emancipation Proclamation.

President Lincoln issued part one on Sept. 22, 1862. All slaves held within rebel states would be free as of Jan. 1, 1863.

Take a moment today to contemplate your own humanity.

Challenge stereotypes you may hold deep down inside.

Take it one step further and do a good deed in for your brothers and sisters of all colors of the rainbow. We're all in this together.

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Specter: Take Time to Analyze Bailout Plan

Miracles never cease. I agree with Republican Senator Arlen Specter on something else (he's pretty moderate, so we have actually agreed on some important issues in the past). Here, he's talking about a plan to rescue the nation’s financial institutions.

“I realize there is considerable pressure for the Congress to adjourn by the end of next week, but I think we must take the necessary time to conduct hearings, analyze the administration’s proposed legislation, and demonstrate to the American people that any response is thoughtful, thoroughly considered and appropriate,” Senator Sen. Specter wrote in a letter to the Senate leaders of both parties.

Anyone else wonder why it had to reach critical mass with a 1-day deadline before Congress received the plan? Sounds like a simple hard-ball negotiation tactic.

Please, Congress, take enough time to analyze this before giving the Treasury Department (i.e. Executive Branch), more unsupervised powers and a huge checkbook. Pretend it's your teenager asking for your debit card, the car, and no curfew. Stay calm, think hard, and make a wise decision. Above all, don't be pressured into a recipe for disaster!

Source: Democrats Begin To Set Own Bailout Terms, By DAVID M. HERSZENHORN, STEPHEN LABATON and MARK LANDLER, (emphasis supplied), published and accessed 9/21/08; Subscribe to Kimberlie Ryan's Working Wellness

Election Polls: Part 6: Recap

Who's winning in the polls? What do the polls mean?

What should you consider in evaluating for yourself what these polls mean?

This is the last of a six-part series in which we looked at poll variables to help you sort through the garbage to find the gold nuggets in the polling world.

Here are the top 5 tips:

1. Who? Be sure to look at who participated in the poll. Is it a random poll or a self-selected sample?

2. When? Is the poll more than 3 days old and have any intervening events occurred since the poll was conducted that might change the result? i.e. financial crash.

3. How? Are the questions as worded biased, leading, or complex? Do they use double-negatives?

4. Race matters? Does race matter? Be aware of the possible Bradley Effect, or higher poll numbers for the minority candidate because people won't disclose their racial biases in a poll. Poll numbers do not necessarily reflect how the participants will actually vote once they are alone in the booth.

5. Size and margin of error. As a general rule, samples of 1,000 or more are considered statistically reliable, with a small margin of error of plus or minus 2%. The smaller the sample, the higher the margin of error. The larger the sample, the lower the margin of error. A sample of 50 people, showing a 55% lead to 45% can vary significantly, giving the "leader" a possible range of 40%-70%, and the "loser" a range of 30% to 60%. There's a 30 point overlap, making this kind of a result extremely unreliable, especially in a "close" race. In contrast, a 1,000 sample showing a 55% lead to 45% means that the leader has 53-57% and the other 43-47%. This can be fairly interpreted as a lead.

Bonus Tip: TV call-in polls and Internet polls are inherently unreliable.

By evaluating these few variables, you know more clearly how to interpret poll results for yourself. And you won't be misled by the latest polls trying to tell you who's going to win the election.

And please, don't ever, ever let poll predictions keep you from casting your vote. It's not over until it's over. Vote!!

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Election Polls: Part 5: Size and Margin of Error

When judging the accuracy of polls you see, be sure to look at the size of the poll and the margin of error. In polling lingo, that's MOSE (margin of sampling error).

For those of you pretentious types, you can pull that out at your next cocktail party. As in, "because the MOSE of the last Gallup Poll was plus or minus three, it's a pretty good reflection of the current mood of the country." Now let's go through the basics.

Pollsters have figured out the mathematical model for accuracy of poll results based on the size of the poll. Here's the general breakdown of the margin of error by sample size:

Sample 50 people, plus or minus 15% margin of error

Sample 500 people, plus or minus 6% margin of error

Sample 1000 people, plus or minus 3% margin of error

Sample 5000 people, plus or minus 1% margin of error

Many state polls use 500-person poll samples. This means if the state poll shows Obama and McCain at 50/50, they could actually be anywhere between 46% and 56%, which is not really a dead heat.

A 1,000 sample is standard among national polls, but at a cost of $50,000, it's too expensive for many state polls. There's nothing wrong with using smaller polls, but it won't give the most statistically accurate result. Always look at the methodology and the margin of error.

The Associated Press has guidelines for reporting these polls. If the difference between the candidates is more than twice the sampling error margin, reporters can say the candidate is "leading." This is usually 7 or more percentage points in a 1000 person poll. If the sampling error margin is 3-6 points, then the candidates are "close." If they candidates are 0-2 points apart, they are considered "tied." But remember, if the sample is only of 50 people, there is a 15-point margin of error, so it wouldn't be accurate to say that candidates are tied, even if the poll shows them at 50/50 results.

Today's Gallup poll shows Obama leading McCain by 4 points. Obama's at 49%, and McCain's at 45%. This is based on a 2,720 person sample, with three-day rolling averages of responses to interviews. So, the margin of error is plus or minus 2%. Since twice the margin of error is 4%, it is safe to report Obama as in the lead under the AP guidelines.

But hopefully these numbers are not impacted by the Bradley Effect we reviewed in the last post. This would happen if bigoted poll participants either refrained from voting or lied (to the pollsters or themselves). Sometimes people answer polls differently than they actually vote when alone in the booth.

Test out your knowledge so far. Here's the link to the Gallup poll from today: Gallup Daily: Obama Leading McCain by 4 Points. Be sure to look for who, when, and the MOSE. You will see that is a sample is registered voters, so you know from previous posts that this does not show new voters or possible swing voters. Look at the "Survey Methods" section to evaluate.

Now you know just enough to be dangerous - like the pollsters!

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Election Polls: Part 4: Race Views and Polling

Do people report their racial biases in polls? Pollsters hypothesize that poll participants who are more likely to vote based on race are less likely to answer polls.

Why? They call it the "social desirability bias." Bigots might not not want to admit their true feelings to others, or even to themselves, for fear of being judged harshly for their racial biases. Even Rush Limbaugh says he is just joking when he calls Mexicans "stupid" and tells them to "go back to their countries." He just can't admit that he is a bigot. In the same way, some people responding to polls might not admit that they won't vote for Obama because he is black, or half-black, or half-white. That's why some of them wear hoods. They don't want to be seen. Some hockey-moms don't wear hoods, but they might as well. So they just don't answer the questions at all, or if they do, they don't answer honestly.

Pollsters call this the "Bradley Effect." The effect is named for black Democrat Tom Bradley, who lost the California governor’s race in 1982 even though he was way, way ahead in the polls. Some think this happened to Obama in the New Hampshire Democratic presidential primary. The polls had him running ahead of Hillary Clinton by up to 13 points. Yet, when the returns came in election night, Obama lost by three points.

When looking at poll results claiming to report on racial views of participants, remember the possibility that the Bradley effect might just be slanting the results. People just don't want to report their bigoted views honestly. Imagine that. Under this theory, even if Obama leads large in the polls on race issues, the actual voting scene may be different since bigots usually don't self-identify in polls.

What about those large poll leads anyway? What should you know about margins of error and poll sizes? Stay tuned.

Source: John Ridley, Rush Limbaugh Hates Mexicans (But in a Funny Way)!, http://www.huffingtonpost.com/john-ridley/rush-limbaugh-hates-mexic_b_127902.html (accessed Sept. 21, 2008); Source: John Nichols, Did the Bradley effect beat Obama in New Hampshire?, http://www.thenation.com/blogs/campaignmatters?pid=268328. (accessed Sept. 21, 2008); Subscribe to Kimberlie Ryan's Working Wellness

Election Polls: Part 3: Question Wording

When did you stop beating your wife? Known as a loaded question, it implies that you were indeed beating your wife. If you say, "I haven't," this isn't good, because you have accepted the premise of the question (unless you actually beat your wife, in which case, you should get immediate help).

In polling situations, when you're looking at poll results, you should carefully evaluate the words of the question asked. Some questions have an obvious bias, and the answers may not accurately reflect the whole picture.

Leading questions are statements disguised as questions. They may make the poll participant feel that only one response is legitimate. For example, "You think it is important to value life, don't you?" That's a leading question, as opposed to an "open-ended question" like "What is your view on the value of life?"

You also can see that the question may depend on how the respondent interprets the words "value of life." If asked further, some may say they value quality of life (maybe so-called right to die advocates), while others may say life above all else (maybe so-called pro-life/anti-choice advocates). They could both answer the leading question in the same way (yes, it is important to value life), while their fundamental beliefs may be opposite from each other.

Another thing to look for, if you can, is the order of the questions. Sometimes pollsters will ask a so-called "horse race" questions first. For example, the first question might be a question about Iraq, like "do you agree that the US should withdraw from Iraq?" Then the follow up question might be, "what do you see as the biggest problem facing our country today?" The tendency might be to answer, "Iraq," since it's already on the poll participant's mind. So, if you see wildly diverging poll results, you might see if you can find out the order of the questions asked.

Also watch for double-negatives and questions that are too complex. A good example of a double-negative can be found in this law: "Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense." This is a double negative. Confusing. Here's another good example: "Do you not want no additional tax increases?" If the answer is "yes, I do not want no additional tax increases," it really means, yes I want tax some increases, because I don't want no tax increases. If the answer is "no, I don't want no tax increases," it means I want some tax increases. Watch for double negatives.

Also watch for questions that are complex, "do you want the candidate to vote for subsidies of all non-governmental financial institutions for the next three years unless the financial institutions implement internal reporting structures to which all financial analysts should report before the institution of the plan to subsidize all qualifying non-governmental institutions until such time as Congress approves otherwise unless earlier determined by a statutorily authorized governmental body or the voters by referendum vote or other determination as left to the discretion of Congress or the voters?" You can see the potential problems with a poll question like this.

So, when you're evaluating the credibility of a poll result, look at the words of the question to determine whether it would be easy to confuse the issues by using biased language, leading questions, double negatives, or complex sentence structures. Some might say, K.I.S.S.

Interested in finding out about how racial bias might influence polling results? Stay tuned!

Photo Source: Hay Kranen, Widimedia Commons, http://commons.wikimedia.org/wiki/Image:Question_mark_3d.png (accessed Sept. 21, 2008)

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Election Polls: Part 2: Poll Timing

In our last post, we examined who is polled and how that impacts the credibility of the poll. If you'll remember, polls are more reliable when they are random from a defined population, like random digit telephone dialing. Poll results are less reliable when the poll participants select themselves, like Internet or TV call-in polls.

You'll also want to watch for when the poll occurred. According to pollster Claudia Deane, you should think "dead fish and relatives." You know, the 3-day rule? In the current political climate, some poll results can grow rancid even faster.

Polls can spoil quickly, for many reasons. Intervening events can change the way people think. Imagine polls taken on Friday, before the announcement of the financial melt down on Saturday. This event alone made a lot of people cranky. You can see how this change of mood could affect previous poll results.

Another big intervening event will be the debates. People could change their opinions after the debates, starting next Friday night, which is why poll results from this week might not be viable next week.

Of course, there will be post-debate polls. Even then, people change their minds after a couple of days. They watch the news, think about their current situations, and the story develops and evolves. In the Gore/Bush debates, many of the polls reported Gore as the winner the first day, but a few days later the polls reported a change of opinion toward Bush.

When you're looking at poll results, check out both the "methodology" box to see how they selected the sample, and when the poll occurred. Three days can be a good rule for large-scale polls, depending on the questions and any intervening events. Then ask yourself whether any significant events have occurred since the poll that would impact the results you are seeing.

Polls can be enlightening, if you know what they are actually telling you. If you think about who is participating and when the poll occurred, you are well on your way to putting these election polls into perspective. Are you ready to consider another important factor - the words of the question? Stay tuned.

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Election Polls: Part 1: Selection of Poll Participants

I'll admit it - election polling was a mystery to me. I hear one poll say Obama is ahead. Another says McCain. Another says they're in a dead heat.

How do we know which to believe? How do they determine who's ahead at any given moment?

So I decided to take a class, or rather a Webinar from Poynter/NewsU, called Understanding and Interpreting Polls in the 2008 Election. I highly recommend it. In the meantime, I'll share a few gold nuggets with you.

One of the first things you should know when trying to interpret a poll is how the participants were selected.

The best way to ensure an accurate result is to take a random sample from a specific population. If it's not random, it's not mathematically accurate. The polling industry standard is the RDD, or random digit dial. This is a poll taken by telephone where numbers are not taken from a list, but instead are dialed randomly. Since a large number of the population has telephones, it excludes few enough people that it can still be statistically accurate.

Since women are statistically more likely to answer the phone, sometimes you will have someone ask for the man of the house, or even ask for someone born in a particular month. This is the pollster's effort to even out the possible bias if mostly women were to participate because they simply answered the phone. So they're not just being sexist!

Another method for selecting poll participants is registration sampling. This is when the list is derived from registered voters. This can give a good picture, but may exclude the all-important swing voters or new voters.

Both of these methods are called probability polling, because they draw random samples from defined populations.

Another alternative for selecting poll participants is non-probability sampling. This includes self-selected poll participants. For example, if you're watching Lou Dobbs on CNN, he sometimes has call-in polls. While this can give a reliable sample of Lou Dobbs watchers, it does not give an accurate measure of the whole country. Someone who is watching Lou Dobbs, who cares enough to pick up the phone and self-selects to participate is not representative of the voters who do not watch CNN or who instead are watching Jerry Springer or All My Children.

Be wary of these TV call-in polls (on any channel) for predicting the mood of the country - they are not statistically reliable.

What about Internet polls? While they are fast, easy, and private, pollsters do not yet know how to get a random sample of Internet addresses. They cannot make them up, like they can with phone numbers (imagine all the crazy e-mail addresses you know). And there is no consolidated directory of all Internet addresses. Another downfall of Internet polls - they do not know who is actually participating - it could even be a kid! Again, Internet polls usually involve self-selection, which are not probability polls and do not give accurate measures.

When you're looking at poll results, they usually have a little box somewhere on the page that shows the Methodology. Take a look to see if you can tell how the poll participants were selected, and take that into account when assessing the credibility of the poll numbers you are reading.

Next we'll explore other important factor in understanding polls, like timing and state polls v. national polls. Stay tuned!

Source: Poynter/NewsU, Claudia Dean: Understanding and Interpreting Polls in the 2008 Election, http://www.newsu.org/courses/course_list.aspx (accessed 9/18/08)

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Be the Change

Be the change that you want to see in the world.

If I have the belief that I can do it, I shall surely acquire the capacity to do it even if I may not have it at the beginning.

Mohandas Gandhi

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Arizona Immigration Law: Employers May Lose Business Licenses

The United States Ninth Circuit Court of Appeals ruled on Wednesday that employers in Arizona may lose their business licences if the government determines that they have hired undocumented workers.

The Legal Arizona Workers Act targets employers who hire undocumented workers.

Its principal sanction is the revocation of state licenses to do business in Arizona. It has yet to be enforced against any employer.

Several groups challenged the law on its face, saying that federal law preempts the state from imposing this law and arguing that it violated employers' rights to due process to challenge the federal determination of the work-authorization status before sanctions are imposed. The court rejected both arguments.

Upholding the law, the court instructed that the statute can and should be interpreted to allow employers to present evidence to rebut the presumption that an employee is unauthorized before any license can be adversely affected.

The court upheld the statute in all respects against the facial challenge, but noted that it is brought in a "blank factual background" without the context of a particular case. If and when an actual case is brought under this law, other legal challenges will be available to employers.

CPLC V. NAPOLITANO - read the case here.

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Colorado Proposed Amendment 55 - Just Cause Terminations

As an employment lawyer, one of the top ten questions I hear is "what is at-will employment"? I usually try to explain that this means that:

Workers can be fired for any reason or for no reason, as long at it's not an illegal reason. Well, what in the hell does that mean?

Basically, it means in Colorado there is a presumption that your employers can fire you for almost any random reason, for example, because they don't like the color of your shirt. But they can't fire you because they don't like the color of your skin. Certain laws protect workers from discrimination based on age, sex, color, religion, national origin, race, and disability. Those are some exceptions to at-will employment. Our society values equality, so bosses generally aren't supposed to act like bigots.

So, employers can terminate for any reason or no reason - as long as it does not violate a federal or state law against discrimination.

Workers lucky enough to have written employment agreements also can't be fired at-will if their contracts say the employer must have just cause to terminate them. This usually means the employer has to show bad performance or gross misconduct of some kind. Lots of high-level executives get this provision, along with their "golden parachutes," paying them millions even when the company goes under. But that's a different post.

So, employers can terminate for any reason or no reason - as long as it does not violate a federal or state law against discrimination - or violate a written employment agreement.

Let's recap so far. Minority workers get some protections from being terminated at-will and so do high level corporate execs. Sometimes whistle blowers are protected from termination, or at least they can get a remedy after they are fired for exposing things such as corporate accounting fraud, safety violations, and fraud on the government.

So, employers can terminate for any reason or no reason - as long as it does not violate a federal or state law against discrimination - or violate a written employment agreement - or violate whistle blower laws.

Union workers usually get protections from being terminated at-will for no good reason. Most union contracts require employers to show that they had a good reason for the termination, again usually just cause.

Government workers usually are protected from being terminated at will, since they have grievance procedures, administrative hearings, and written findings to support their terminations.

So, employers can terminate for any reason or no reason - as long as it does not violate a federal or state law against discrimination - or violate a written employment agreement - or violate whistle blower laws - or union collective bargaining agreements.

See where I'm going with this? And there are even more exceptions. Employees generally can't be terminated for legal off-duty conduct; for political affiliation; for voting or not voting; for taking military leave; for being pregnant; for taking family and medical leave; and the list goes on. . .

But you can be terminated for a random reason, like the boss is in a crappy mood because the Starbuck's was cold - even if you're doing a great job at work. Where is the protection for workers doing their job on a daily basis, who certainly deserve to keep their jobs unless there is a good reason for termination? Do we really want to keep a rule that encourages baseless, if not random, firings?

In the state of Montana, workers have had "just cause" protections since 1987. And nothing bad has happened to their economy as a result. A recent issue paper shows that Montana's "just cause" law had no perceptible impact on the unemployment rates. I highly recommend the article written by Denver attorney Barry Roseman and published by The American Constitution Society containing a detailed analysis of unemployment rates for Montana and the surrounding four states before and after the just cause law passed. 1.

Colorado workers are fed up with being fired with no reason given. Trust me. They seek my advice daily. Employees deserve a valid reason for their terminations. Colorado Amendment 55 addresses this need.

Amendment 55 defines "just cause" as specified types of employee misconduct and substandard job performance, employer bankruptcy, documented economic circumstances that directly affect the employer. It would include companies that employ more than 20 employees and non-profits that employ more than 1000. It would exclude the government and union workers who already have just cause provisions. It would provide workers fired without just cause with remedies including reinstatement where feasible, where not feasible, lost wages and benefits. It also provides the possibility of attorneys' fees and court costs to the prevailing party. Workers bear the burden of proof in this kind of a case, and they have a duty to minimize their damages by actively seeking work.

Employers should not be scared of this Amendment. Currently, they have a false sense of security by relying too heavily on the at-will presumption. It is riddled with exceptions, and the random nature of it invites an ignorant supervisor to abuse the authority of the company in a termination situation. Employers' lawyers have forever been advising employers to document poor performance of workers, provide honest evaluations to workers, and terminate for legitimate reasons. Small businesses with fewer than 20 employees would not be impacted by the Amendment.

Nothing infuriates a terminated worker more than a manager glibly saying, "You're at-will, so I don't have to give you a reason for termination." Talk about inviting lawsuits - this statement alone has driven thousands of calls to my office asking about filing a lawsuit. Amendment 55 would cure this. Yes, I'd like our society to advance to the point of equality that would put lawyers out of business.

If you think Colorado workers should keep their jobs unless they are engaging in misconduct or poor performance, Vote Yes on Amendment 55.

Source 1: Barry Roseman, Just Cause in Montana: Did the Big Sky Fall?, (Sept. 2008), accessed Sept. 18, 2008.

Source: Colorado Secretary of State, Amendment 55, General Election Ballot Question (accessed Sept. 18, 2008).

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