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When is it just an email and when is it retaliation?
While we know that whistle-blowers are supposed to be protected from retaliation–we also know that defining retaliation can often be a murky process. What “feels like” retaliation to the frightened, defensive, anxious whistle-blower may not meet the legal standard of retaliation. But what if it does? “What if they and their actions become the subject of a widely distributed email? Is that a form of retaliation?” This was the question asked by some Indiana University researchers and their writeup of the findings is now awaiting publication in the North Carolina Law Review.
The paper uses the 2007 case of Belmont Abbey College. Belmont Abbey is a Catholic school in North Carolina that chose to exclude contraceptives from employee health coverage. Eight members of the faculty complained to the EEOC (alleging religious and gender discrimination) and the President of the school then sent out a mass email to all faculty, staff and students detailing the complaint and identifying the faculty members who made the complaint. The complainants then filed a retaliation complaint with the EEOC. In 2009, the EEOC upheld the gender discrimination complaint but found no cause for the religious discrimination complaint. The EEOC also made a statement that the President’s email was meant to cause a “chilling effect” and make other faculty and staff hesitate before complaining of discrimination.
The authors summarize the murky nature of just what constitutes retaliation as interpreted by the courts in often contradictory rulings. They consider privacy in matters involving religion, sexuality, abortion, sexual harassment, and sexual assault. They examine fear of reprisal (or retaliation) as well as the research on who is most maligned for reporting inappropriate or illegal behavior. (It will likely not be surprising that minorities and women and other people in low positions of power are most villainized. Nor will it likely come as a surprise that because of their assessment of how they will ultimately be treated–often these people are very reluctant to blow the whistle.)
Ultimately, the researchers identify a number of issues for organizations to consider as they contemplate communications that will identify whistle-blowers:
Consider the whistle-blower’s privacy.
Consider the severity of possible reprisal.
Consider the likelihood of reprisal.
Consider the vulnerability of the employee to reprisal.
Consider the form and tone of the disclosure.
Consider the big picture or as the authors say “the totality of the circumstances”.
Overall–the authors conclude that disclosure may be seen as an adverse action against a whistle-blower unless there is a defensible “need to know”. In the case of Belmont Abbey’s email to everyone associated with the college (i.e., faculty, staff and students) there was no need for everyone to know. The intent of the email was “an attempt to shame and ostracize the complainants to produce a chilling effect”. While there is a need to balance employer and employee rights in this sort of situation–it is also critical to maintain clarity as to the goals of different communications about the complaint. In an emotionally difficult and complex situation–it is imperative to think through actions taken (on both sides) carefully.
This is a very thorough treatment of the court decisions and the contradictions and complexities in this area of law. We cannot do justice to all it contains in a single blog post. If you are involved in a whistle-blower case (or might become involved) this is a good article to read for a roadmap through a territory laden with complexity.
Prenkert, JD, Magid, JM, & Fetter-Harrott, A (2013). Retaliatory disclosure: When identifying the complainant is an adverse action. North Carolina Law Review.
Hey Professor! Get married and get tenure–if you’re male!
But if you’re a woman? Not so much. 
A new report put out by the American Historical Association shows us that career advancement varies by marital status for males and females. If you’re a man, being married makes you progress through the ranks faster: in 5.9 years rather than 6.4 years. If you are a woman, however, being married meant an average of 7.8 years to move from Associate to Full professor. If you were an unmarried woman, that same transition took an average of 6.7 years.
It is interesting to note that female full professors were 2x more likely than men to list their marital status as divorced or separated. They were also more likely to have never married at all than were their male colleagues. Sometimes it’s hard to be a woman.
Why does this happen? We thought you’d never ask. You can read the full report here but an article in the Atlantic goes through the report in specific detail and it isn’t a pretty picture. There is a hypothesis as to why men get tenure faster than women though and it’s basically about gender roles for women. (Who would have imagined it?!)
Female professors were more likely to have a spouse or partner with a doctoral degree, 54.7 percent to men’s 30.9 percent. Their partners were also more likely to work in academe, 49.6 percent to 36.3 percent.
“I have a theory about this,” said Tara Nummedal, an associate professor of history at Brown University. “It seems pretty clear that smart women are going to find men who are engaged, but I just don’t see that it works the other way.” She added that a female professor with a stay-at-home spouse is quite rare, but often sees men with stay-at-home wives, allowing them to fully commit themselves to their professions.
When Nummedal says women find men who are “engaged”–what she means is, that women with advanced degrees tend to marry men with careers and interests of their own that are not sacrificed for marriage. She goes further by saying:
“When we look at these kinds of issues, whether it is the wage gap or child care, it becomes increasingly clear that there is a fundamental problem with the professional workplace, which is still best structured for single males, or males with wives who support their careers.”
That may seem a hard conclusion but it is likely one that has women readers agreeing, and it’s well worth reading the entire article yourself. In an era where the number of substantive comments on blogs is way down, this article has almost 194 comments barely 48 hours after posting. They’re worth reading too.
It is an intriguing area. We spend much of our work time looking at bias and how to mitigate or minimize it. Yet, it’s always present. This example of gender bias is something you can only “see” in hindsight as we look back at average progression through the tenure process. But it is a bias likely “felt” by women faculty very, very regularly. As we are working cases, preparing witnesses, and hearing stories from parties–the importance of perspective is paramount. Just because we can’t “see it” doesn’t mean it isn’t there. Bias is all around us and it works to make us decide differently how justice will work depending on whether you are like me or not like me. The task for effective litigation advocacy is to figure out how to make the client as much “like” the juror as possible through the use of universal values that often show more about who we are than descriptors like skin color, age, religion, sexual orientation, or gender.
Robert B. Townsend (2012). What Makes a Successful Academic Career in History? A Field Report from the Higher Ranks. Perspectives on History. (December)
I can tell from your face that you are suicidal
Now this is strange. We’ve written before on studies showing you can identify Mormons by faces alone. And Scientific American tells us you can also identify gay men by faces alone. So now we have research telling us you can also identify who is suicidal from looking at photos of their face. We’d caution you to not try this at home. And while you are not doing this at home, you may also want to take these findings with a grain of salt.
University of Toronto researchers decided to examine whether research participants would be able to identify the difference between those who successfully suicided and “living controls” based on yearbook photos alone. (How do you even think of ideas like this?) Photos of people who had committed suicide (40 photos in all, 12 women and 28 men) were culled from high school and university yearbooks. Each photo was then matched with the nearest photo in the yearbook of a student (who remained alive) and was of the same gender and race. (Because we know you want to know, the authors searched Facebook and other social networking sites to verify that the control photos were indeed of persons still living.)
The authors standardized the photos so that each was converted to grayscale and cropped close to the face/head (as in the A side of the graphic illustrating this post).
In Study 1A, 33 undergraduate student participants were asked to view all 80 photos (40 successful suicides and 40 living controls) and to quickly determine (“based on your gut instinct”) whether they believed the person in the photograph had committed suicide or was still alive. While it did not matter whether the research participant or the individual depicted in the photo was male or female, participants were able to successfully identify those who had suicided at a level significantly above chance (p = .01).
For Study 1B, the researchers wanted to be sure that hairstyle and photo backgrounds or face shape were not affecting decisions. So they cropped the photos further to show only “internal facial characteristics” (as in the photo marked B in the graphic illustrating this post). 30 participants examined the photos and again, were able to identify the individuals who had committed suicide at a rate better than chance guessing (p = .005).
For Study 1C, the researchers (who had by then exhausted their own yearbook sources and those of their friends) looked to the internet for photos of people who had committed suicide. Naturally, since everything is on the internet, they found a website. They gathered the “first 25 targets from the website between the ages of 14 and 19 years old and posing face-forward to the camera”. A research assistant (who did not know these were photos of people who had committed suicide) gathered matching photos of those who were gender and race equivalent to the photos of people from the suicide website. If the person who had killed themselves wore eyeglasses, so did their matched (and verified to be alive) photo-partner. Finally, all the photos were cropped to display only the internal facial characteristics as in Study 1B. This time 29 participants viewed all the photos and again (p = .02) they were able to identify those who had committed suicide at a level higher than chance.
For Study 2, 161 undergraduate students rated the photos from Study 1A for depression, hopelessness, satisfaction with life or impulsivity. Suicide victims were seen as evidencing more impulsivity (p < .05) but there were no differences seen on the other factors. When the researchers looked at the specific photos adjudged to have suicided, they found the participants saw those individuals as seeming more depressed. “Thus, inferences of depression and impulsivity contribute to individuals’ perceptions of suicidality. Distinct from depression, only inferences of impulsivity actually predict whether an individual commits suicide”.
For Study 3, the researchers asked 133 participants to rate each face in terms of how likely “they thought the person pictured might be to make an impulsive purchase, to engage in an impulsive sexual behavior (unprotected sex), or to be involved in an impulsive violent act (a bar fight)”. Successful suicides were judged more likely to be engaged in a violent altercation in the heat of the moment (p < .05) but not seen as more likely to engage in unprotected sex or an impulsive purchase. Researchers conclude that since suicide constitutes a violent act against the self, there is a cue in the facial appearance that indicates impulsive violence is possible to the observer.
For the final study, researchers wondered if the size of the effect seen in the previous studies (55% accuracy in identifying those who had suicided) would be higher in mental health professionals than in community laypersons. They asked 36 psychotherapists (master’s and doctoral level) and 39 community members to examine the photos used in studies 1B and 1C and identify those they thought had suicided and those that they believed to be alive. Again, both the community members (p = .009) and therapists (p < .001) but the therapists were not statistically more accurate than were the laypersons.
The researchers (accurately) point out that it is important to realize these sorts of judgments are inaccurate almost as often as they are accurate and that there is no evidence to support the use of facial appearance as a diagnostic tool in suicidality.
“Rather, this work speaks more to the basic phenomena surrounding the expression and perception of suicidality at rates that are statistically significant but perhaps only modest in practical significance (e.e., a mean identification rate of 55%).”
We are grateful to these writers for pointing out a flaw in their research and attempting to circumvent a rush to judgment (like the one we’ve seen in the nerd defense) wherein readers of this research think you actually can “see” suicidality on someone’s face. The discussion of how to understand the statistical nature of studies like this (and statistical base rates in general) is beyond the scope of this post, but expect to see it here soon. It’s an important concept too often glossed over by the popular media as they “cover” research findings.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***
Kleiman, S., & Rule, N. (2012). Detecting Suicidality From Facial Appearance Social Psychological and Personality Science DOI: 10.1177/1948550612466115
Image: Study stimulus
Should I choose the creative juror, the introvert/extravert, or the religious juror?
We’ve written before about creative folks, extraverts and those who are religious. Three social science projects now give us additional clues as to times when you might want to choose one characteristic over the others. Or not.
As you might guess, it all comes down to your case themes and specifics. Let’s say you are left with one peremptory strike and three venire members in question. One is strongly religious, one is an artist and one is clearly extraverted. Here’s what the new research would say about how those three could differ on some important details.
Creative people, according to Dan Ariely, are better at rationalizing small ethical lapses that can spiral out of control. Ariely says creative sorts are not evil masterminds, but rather have justified minor wrongs that then escalate without warning.
Introverts and extraverts use language differently. And not just in terms of talking more or less. Introverts use more concrete words and are more precise or descriptive while extraverts are more abstract and interpretive.
Researchers asked participants to describe what was happening in a series of photos. Introverts were more likely to concretely describe the photo (e.g., “He could be writing a letter”) while extraverts described the photo more abstractly (e.g., “He could be lonely”). The researchers also opine that the introvert’s style of description is more likely to result in judgments that are situational in nature (e.g., “Camile yells at Martin”) while the extravert is more likely to make judgments as to traits that are more enduring (e.g., “Camile is unfriendly”).
Finally, those who are religious or paranormal believers are more likely to see “face like areas” on photographs than were the skeptics or atheists participating in research. (Yes, this is like those postings of toast with religious images in them on eBay.)
Participants were shown some photographs that were judged as having face like areas and others that were not. The researchers found that those who were religious and paranormal believers were more likely to see the face like patterns (whether they were present or not) than were the skeptics and the atheists.
So what can these varied findings mean for your use in litigation advocacy? That’s a very good question. And here are some thoughts…
Does the case involve allegations or ethical or moral transgressions? The creative juror might be more able to see how a small wrong could spiral out of control for the accused. The introverted juror might be more likely to attribute the misbehavior to situational factors rather than attribute it to character traits. The religious juror might adjudge the defendant more harshly particularly if they see past behavior repeating itself.
Does the case involve allegations of broken promises–like a contracts case, a partnership crushed by betrayal, or warranties of safety or reliability? Again, the creative person may be more likely to believe a good story of a minor wrong that grew beyond expectation. The introvert may be more likely (especially if behaviors of the accused are described concretely) to see the issues as more situational than personality-driven. The religious person may be more likely to see past patterns of behavior repeating themselves.
Since non-economic damages (and the credibility of the economic models used by each side) are often driven by perceptions of character and implied intent, it becomes crucial that you consider what juror is likely to harshly judge your client’s character, or the intent of the opposition.
According to these research findings, you have an extra tea-leaf to predict who will respond one way or another. But our experience with thousands of jurors differs from that of these social science researchers. Whenever you use one trait or characteristic to profile your jurors, you are on a very slippery slope. Just like striking a venire member based on race, age, gender, or income–deselecting based on religion, personality traits or occupation is dangerous and likely just plain wrong. The decision matrix is invariably more complex than that.
Attitudes. Values. Beliefs. Experiences. Those things reflect more about how any particular juror will respond to any particular fact pattern than any single demographic descriptor.
No matter what else you may read–that’s a good thing to remember in voir dire.
Beukeboom, C., Tanis, M., & Vermeulen, I. (2012). The Language of Extraversion: Extraverted People Talk More Abstractly, Introverts Are More Concrete Journal of Language and Social Psychology DOI: 10.1177/0261927X12460844
Riekki, T., Lindeman, M., Aleneff, M., Halme, A., & Nuortimo, A. (2012). Paranormal and Religious Believers Are More Prone to Illusory Face Perception than Skeptics and Non-believers Applied Cognitive Psychology DOI: 10.1002/acp.2874
Religion, ethnicity and Asian-American’s voting patterns
We’ve written a few times about new research on Asian-Americans and so were eager to see a new chapter in a book on ethnic pluralism and its role in the 2008 election. It’s an intriguing treatise on the amazing diversity in the Asian-American community (composed of at least nine ethnic groups and 11 different religious affiliations).
“Asian-American” doesn’t mean one thing. It means many things. According to the chapter authors (So Young Kim and Russell Jeung), Asian-Americans are unique among American ethnic groups in that they do not predictably act as either a racial bloc or a religious bloc. Asian-Americans do not share a religious faith and 27% do not follow any religion per se. And despite their high levels of education and income–they are not particularly politically involved. In fact, Asian-Americans may have lower levels of voting than other ethnic groups (although it is hypothesized this could shift as the various Asian-American groups log in more time in the US and begin establishing a stronger pan-ethnic identity).
What is especially interesting to us is that the authors found patterns in voting among Asian-Americans during the 2008 Presidential elections. Overall, Asian-Americans were more likely to support Barack Obama during the 2008 elections than Caucasian voters with similar incomes and religious affiliations. However, within the Asian-American group, there were subgroup patterns that call out for recognition:
Asian-Americans who were agnostic, atheist, Hindu or Muslim were more likely to vote for Barack Obama (and were also reportedly more liberal).
Asian-Americans who were Protestant and Catholic and more conservative also supported Obama. (You weren’t expecting that were you?)
Finally, Vietnamese-Americans (many of whom are Catholic) were more likely to vote for John McCain.
Another important descriptor the authors use is disenfranchised. Many Asian-Americans feel they are not valued (and truly, they have not been studied to the extent of other ethnic groups in this country) and this is likely an important variable to consider in terms of identification with your case.
Religion, Race, and Barack Obama’s New Democratic Pluralism is a data-dense book with an emphasis on political shifts and ideology based on ethnicity (featuring chapters on mainline Protestants, Evangelicals, Catholics, Jews, Muslims, Seculars, Women, African-Americans, Latinos, and Asian-Americans). What is most interesting from a litigation advocacy perspective is that this chapter shows us that we know a lot less than most of us think we know about Asian-Americans. There is not a blanket description of the Asian-American just as there is not a blanket description of American women, African-Americans, American Muslims or Jews, disabled people or other identifiable groups.
It’s a terrific reminder to not assume and to maintain curiosity about those different than us. They can often surprise you.
So Young Kim, Russell Jeung. 2012. Asian Americans, Religion and the 2008 Elections (Chapter 11). In Religion, Race, and Barack Obama’s New Democratic Pluralism, Gastón Espinosa, Ed. Publisher: Routledge.
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