The legacy of the civil rights movement

The legacy of the civil rights movement

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The struggle for civil rights puts us squarely within a longstanding movement. It is helpful to keep the history of those efforts in mind as we focus on the problems of the moment. Here are the reflections of a woman who has dedicated her life to global human rights – The Legacy of the Civil Rights Movement.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

The Civil Rights Act – looking ahead

The Civil Rights Act – looking ahead

By Marvin Krakow

When we look back, few of us would want to be associated with opposition to our country’s efforts to end discrimination.  Yet, today, as we did then, we all too quickly close our eyes to the mistreatment of others, and all too readily harden our hearts against the suffering of those we call “other”.  As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose progress and compassion over misplaced caution and over “all deliberate speed”.   We have a chance to think big.

Looking Ahead — Part 2

We can draw a two part lesson from the changes which followed the 1964 Civil Rights Act.

First, we have learned to appreciate diversity and inclusion.  People once excluded by law and by custom, when given a chance, contribute to our communities.  They become our co-workers, our business partners, our friends, our loved ones. We share celebrations, food, holidays, life’s passages.

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Our work becomes more productive.  Our art, our writing, our music, the entirety of human expressive effort becomes more creative.  Our lives are enriched beyond measure.

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Second, we have learned that we often fail to see or to appreciate discrimination inherent in our daily lives.  In the mid-twentieth century, we failed to appreciate the extent to which our laws and customs abused and marginalized women, minorities, members of the LGBT community, immigrants, people with physical and mental challenges, and older people.

Occupy_Wall_Street_spreads_to_PortlandToday, we fail to recognize the ways in which we abuse and marginalize people without money, people with limited education, and people whose religions we do not understand.  We fail to recognize the ways in which we deny the humanity of working men and women  and degrade their lives.  What we don’t see, we can’t acknowledge: the more subtle and hidden forms that traditional discrimination now takes.

Our work is not done.  Imagine how our communities might look fifty years from now at the one hundredth anniversary of the Civil Rights Act.  Imagining the future gives us a sense of the struggles ahead, but at the same time, it acknowledges changes already underway, and it provides hope to sustain our efforts.  Here is my personal wish list for 2064:

  1. Employers must have good cause before firing a worker.  Job security will be a fundamental right for all.
  2. Countries participating in the global economy will develop and enforce international standards for treatment of working men and women.  Participating countries will require that goods and services sold in their domestic markets be produced in safe facilities, by workers who are paid a living wage,  enough to provide food, clothing, shelter, medical care, and education for their families.
  3. The countries of the world will develop and enforce international standards for environmentally sustainable production.  No business will be allowed to operate without systems and processes to prevent environmental damage.  Participating countries will no longer permit the degradation of land, water, and air as a part of doing business.
  4. The right to free movement of all people among the countries of the world will be guaranteed in the same way that the right to free movement of all people among the states of the United States is guaranteed by our Constitution. How we treat a person will not depend on where he or she was born.  We will recognize that laws which restrict immigrants are fundamentally unfair.  We will provide sufficient support and services to fully integrate newcomers into our communities.
  5. In the United States, we will expand Social Security to develop an effective and financially sound workplace benefit system, including unemployment stipends, paid medical and family leave, disability insurance and retirement pensions which support a decent life.
  6. Both here and abroad, we will find ways to reduce inequality of income and wealth, making sure that all people can earn enough to provide a decent life for themselves and for their families.
  7. Workplaces will follow the model of union grievances, and will provide informal, effective, and speedy dispute resolution mechanisms to address claims of unfair treatment, and to serve as a check on unilateral management actions.
  8. We will reaffirm and guarantee the rights of working people and consumers to present discrimination and workplace fairness claims to juries.
  9. Workplaces will provide support for family obligations, including decent childcare, and paid leave for medical and newborn care.
  10. Successful businesses will develop mechanisms to involve workers in decisions affecting the operation of the workplace.  In the unionized sector of the economy, an expansion of the mandatory subjects of collective bargaining may support that change.  In every workplace, we will protect working men and women who speak out about issues at work, safety, pay, discrimination, illegal conduct.   Even in the absence of legal requirements, the economic advantages realized by fully engaging working men and women will provide a competitive advantage to businesses which seize the initiative.
  11. We will surrender the illusion of superiority.  The mistreatment of others, including all forms of discrimination and retaliation, rests on the often unacknowledged assumption that the person in power is better than the person oppressed.  It is possible, however, to affirm our own needs and desires without denigrating the humanity of others.
  12. This item left blank.  It will be filled in by the struggles of ordinary people.  It will amaze us!
Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

The Civil Rights Act – looking back

The Civil Rights Act – looking back

By Marvin Krakow

The Civil Rights Act of 1964 guaranteed equal treatment in the workplace, in public facilities, and in public accommodations, regardless of race, religion, ethnicity or sex.  Equality was not the norm in 1964.  Remembering where we started may provide hope and inspiration for the next fifty years.

This is the first of a two part posting: first, a history we have lived, second, imagining and planning for the future.

Looking Back – Part 1

http://upload.wikimedia.org/wikipedia/en/f/ff/Little_Rock_Desegregation_1957.jpg

Little Rock Desegregation 1957” by Will Counts. Licensed under Fair use via Wikipedia.

By beginning with a look at the United States of the late 1950’s and early 1960’s, we can better appreciate the magnitude of the changes we have experienced.  There and then were the conditions which the Civil Rights Act was meant to address.  The United States Supreme Court struck down segregated schools and the doctrine of “separate but equal” public facilities, only in 1954.  A year later, the Court called for dismantling segregated public schools with “all deliberate speed.”   In practice, communities and states intent on resisting the required changes made much of “deliberate” at the expense of “speed.”

In 1960, as part of the Wilmington, Delaware school district’s long delayed preparation for desegregation, I, with a few classmates, had a chance to visit the black school about six blocks from our own.  The only apparent equal part was the architectural plan.  The two schools had the same floor plans.  Even as an eleven year old, I could see that the black school had almost no books, that the sandstone bricks were crumbling, the toilets broken and foul.  By contrast, my own school had well maintained granite, a fully stocked library, plenty of classroom supplies and materials, clean and functioning lavatories.

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

The lack of adequate facilities and the open lie of “separate but equal” were but the tip of the iceberg of de jure segregation.  Our country had opportunities only for a select few.  We did not tolerate differences.  We murdered those who challenged the assigned order.   State sponsored and state enforced racial separation — combined with political disenfranchisement, and an economic and social caste system — was violent, brutal, and unremitting.   In the Summer of 1964, the world witnessed the terrorism supporting American segregation in the murders of James Earl Chaney, Andrew Goodman, and Michael Schwerner.

Lynchings, counted in the thousands, were carried out over generations, not only in the South, but throughout the country.  “Race riots”, actually pogroms and massacres of entire communities, terrorized people of color.  The ferocity of racial as well as ethnic violence characterized and defined American society in the first half of the twentieth century.

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“Student and Faculty Civil Rights Rally, San Jose State College, February 28, 1964” by Moore, John. Courtesy of San José State University, Special Collections and Archives

Pervasive discrimination was not limited to African Americans.  Universities had quotas for Jews, Catholics, and other minorities.  Large corporations, law firms, hospitals would not consider ethnic minorities for hire.  Women had limited rights to own property.   Gays were invisible. In quantitative terms, almost two-thirds of our country’s people suffered discrimination.  Freedom and opportunity were reserved for members of a small and privileged class consisting almost exclusively of economically fortunate, white, Anglo-Saxon, Protestant men.    The norm, the life experienced by most people, included closed doors, hatred, persecution, and violence.

When we hear the stories of individuals we can begin to understand the extent and severity of discrimination in the mid-twentieth century United States.  From my own family stories: a young woman limited to secretarial work for men who were far less talented than she, a high school girl learning from her admired father that his field of work was closed to all women, a man who died unable to tell his family of his love for another human being, a woman hospitalized for “hysteria” as she came to terms with her love of another woman, an entire family whose parents, grandparents, aunts and uncles, and cousins were slaughtered after the United States refused them safe haven from Nazi genocide.

There are few in my generation, coming of age in the 1960’s, who do not know such stories.  The details may vary. The story tellers may be Asian, Hispanic, African American, Irish, Native American. Regardless of one’s origins, America of the early and middle twentieth century held up the torch of liberty and opportunity while unapologetically shutting doors and crushing hopes.

Discrimination and violence strike deeply.  At its core, discrimination is a disregard and disrespect of another person’s humanity.  It is an expression of contempt and hatred.  When we suffer discrimination, the pain stays with us for years.  It is felt for generations.  When we engage in discrimination, when we tolerate contempt and hatred, and when we acquiesce in violence, we rend the fabric of our communities.  We corrupt our souls.

O’Connor, Sotomayor, Ginsburg, and Kagan” by Steve Petteway. Licensed under Public domain via Wikimedia Commons.

The Civil Rights Act of 1964, at the time of its passage, represented our country’s highest aspirations in the face of social and political realities far different than our Constitution’s promises.  The ongoing success of that legislation is all around us. Women and minorities have entered the workplace.  Many have risen to positions of prominence.  People with physical and emotional challenges are emerging from the shadows of dependence and isolation.  We are beginning to understand the waste of human potential and the pain we inflict in denying and demonizing love and sexuality.  We have made room for a true diversity of spiritual beliefs and practices.

But we can’t take our progress for granted.  As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose compassion over misplaced caution and progress over the next iteration of “all deliberate speed.”

We now have a chance to be on the right side of history.  In my next post, I will discuss how we might get there.

 

 

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

The myth of the disgruntled employee 5

The myth of the disgruntled employee

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By Marvin Krakow

Removed from the distant wars currently in the news, it is easy to see how neighbors alike in so many ways must dehumanize one another in the midst of conflict. It’s a form of blindness that is common not just to war, but to all conflict – and one that I see all too often in my practice.

Let me introduce you to the people who come to our law office for help.   Many have worked for the same employer for long years, often for decades.  Most feel strong and warm connections to their employers and co-workers.  They struggle, as we all do, with the challenges of life, with their health, with family responsibilities, with financial reversals, and with their careers.  They come to see us, because their bosses have disrupted their work, their source of income, their identity. They are not irrational.  They are not trying to game the system.  They work with a seriousness of purpose.

Who are they?  They do every kind of work: executives, janitors, public servants, truck drivers, waiters, teachers, and artists. They come from every imaginable background.  They have advanced degrees; they did not learn to read.  Their families are established; they are recent immigrants, accompanied by their children who translate. Some are old, some young, some rich, some poor.  They are straight. They are gay.   They have strong religious beliefs.  They have no religious beliefs. They are breadwinners with obligations to pay college tuition or to support an elderly parent.  They are men and women near the ends of long careers who need another few years of work, because they cannot afford to retire.   They are from every racial and ethnic background.

If they share anything in common, it is that they are not happy to find themselves in a lawyer’s office.  When I ask potential clients about their previous dealings with lawyers, the most common response is that they have never hired a lawyer, and have never been involved in a lawsuit.  Most of them come to us reluctantly, and they apologize for doing so.  They will explain that they would prefer to consider all other options instead of filing suit.  They come, despite that reticence, because they feel they have been seriously hurt and profoundly disrespected by their employers.

Who brings a lawsuit?  Here are a few examples from my own recent experience: a store manager falsely accuses a 60-year old retail assistant of failing a drug test, and fires him.  New owners replace a worker who successfully led a computer software development department for over thirty years and replace her with a less qualified, younger man.  An executive needs time off to care for his dying wife; the owner fires him a week after she dies.

In each of these cases, the prevailing myth of the “disgruntled employee” hides the reality of our common humanity. It is impossible to hear the adjective “disgruntled” without filling in the noun “worker,” and conjuring an image of a madman spraying bullets from an automatic rifle.

The myth serves intertwining legal and psychological purposes for employers and their counsel.   A long term, productive employee is viewed as damaged.  He or she suddenly becomes a “complainer,” “a trouble maker,” “not a team player,” “unable to communicate,” “uncooperative,” “unresponsive to constructive criticism,” “an alarmist,” someone who “games the system,” “insubordinate.”  Managers targeting these employees sometimes send lengthy and detailed emails documenting “deficiencies” which were neither observed nor noted before the employee raised questions of discrimination or harassment on the job.  As part of this management mythology, employers assume that an employee who complains does so out of a failure of character: the employee must be permanently and irrationally dissatisfied by his or her lot in life, and with his or her workplace in particular.  They believe, or claim to believe, that the employee is dangerous.

Management’s goal is to cast the person as fundamentally unlikeable, less worthy of respect, “less human.”  Ultimately, management lawyers who demonize the worker who reports a problem by treating them as quasi-criminals, put the entire workforce at risk.  When the starting point is that complaints come mainly or exclusively from defective personalities, employers fail to take reports seriously.  They fail to remedy problems before they grow more serious.  They ignore warning signs of sexual predators.  They fail to correct safety hazards.  They allow mistreatment of older workers.  They make it harder for a parent to care for his or her children.

There is a better way.  When a manager puts aside defensiveness and character assassination, and  sees the care and loyalty driving an employee complaint,  he or she is likely to recognize issues that are critical to the well-being of the employer’s enterprise. Unfortunately,  conflict feels less troubling when the enemy isn’t quite so human.  I sometimes think these employers missed a chance to get to know my clients in all their humanity.  But perhaps it is simply easier for them to forget the people they once knew.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

At-will employment: What would Midas do? 1

At-will employment: What would Midas do?

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By Marvin Krakow

In California, as in most of the United States, the default rule about job security is that there is none.  Employers call the default job security rule “at-will employment.”  What at-will employment means is that the boss is free to say “you’re fired,” at any time, for any reason, or for no reason at all.   A new boss who wants to clean house can show the door to a man or woman who devoted twenty or thirty years to the company, without a penny of severance.  Sometimes, business owners and managers use the at-will rule to hide illegal reasons for firing.  They get rid of whistleblowers.  They force out older workers.  They pick on those too sick to fight back.  As our economy goes through turmoil or as an individual business goes through hard times, loyal employees learn to their dismay that they have no job security at all.

A wise woman once explained to me her approach to difficult problems.  She called it the “what would Midas do?” method.  You may remember the fable of King Midas, a man with great wealth, and, as it turned out, excessive greed.  But for our purposes the critical fact is great wealth.  The method is simple: For any given problem, consider how a person of unlimited wealth might solve the problem.  What could he or she buy that would fix it?  Then, having identified the expensive method, figure out how to duplicate the result with amounts of money or resources more readily available to ordinary mortals.  The “what would Midas do” method can shine a bright light on the related problems of job security and workplace fairness.

We don’t have to guess what our mythological Midas might do.  We actually know.  Our modern day Midases are the One Percent.  They are the managers of multinational corporations, the highly compensated professionals, the academic superstars.  What they do is surprisingly simple.  They use their privilege and bargaining power to insist on written employment contracts that modify the default rule of at-will employment.  Almost without exception, the One Percent, our modern oligarchs, insist on contract terms which prevent firing without cause and which provide generous severance payments when they are fired.  We see this in news reports of CEO’s who walk away from their jobs with multi-million dollar “golden parachuteswhen the company changes hands or the board of directors decides it’s time for a new king or queen.

And we also have seen the Midas approach adapted by the less wealthy.  Working men and women, when they have the power of a good union behind them, bargain for security in much the same way as the far wealthier business owners.  I learned that lesson on my father’s knee.  I had the good fortune to grow up in a home where unions were valued for bringing security to the workplace.  As a young boy, I asked my father what a union was and what a union did.  His answer – which I remember to this day – was that a union keeps the boss from saying “Off with your head!”  Seeing what Midas does, union members and their representatives, as their first order of business, negotiate contracts which prevent termination without just cause.  Next, union bargainers seek earned severance benefits to provide loyal employees the resources to support themselves and their families during the long search for a new a job.

In recent decades, unions have fallen on hard times.  For most of us, there is no union to bargain for job security.  Even for working people who have a union, the rich and the powerful have mounted persistent and effective assaults on job security.  We need to ask the question again: how can we have the job security which the wealthy take for granted?  The answer is simple.  We can change the default rule to the rule which the wealthy claim for themselves.  Revoke the at-will rule for firing employees after their first year.  Change the default rule to permit termination only for just cause.  Require employers to fund and to pay meaningful severance benefits for economic layoffs.  Those simple changes would create a better and fairer workplace.

We can’t expect those with the Midas touch in this economy to eliminate at will employment voluntarily.  But, no matter how long it may take, instituting a just cause requirement is the real answer to this Midas question.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

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