You are Harming Your Child with Your Words

Article first published as You are Harming Your Child with Your Words on Blogcritics.

Listen to the endearments parents and other adults use for children. There are two kinds: the ones they use for girls and the ones they use for boys.

Girls are sweetheart, sweetie pie, sugar, honey, dolly, princess.

Boys are champ, chief, buddy, pal, kiddo.

These differences follow the children as they grow up. Sales clerks and doormen (and doormen are nearly all men) call women “sweetheart” or “honey.” Men are “buddy,” “pal,” or “chief.” (The exceptions are ma’am and sir.)

These differences matter. As children, girls learn to be sweet and ingratiating because they have learned that cuteness and niceness make them lovable; boys learn that they can be leaders, in charge of and superior to others — even on an equal footing with adults (“buddy” and “pal”).

Perhaps even more interesting than the effects of these endearments on children is adults’ reflexive use of different endearments for girls and for boys. Whether or not you believe that the names parents and other authority figures use for their children affect those children, it is undeniable that adults instinctively think of their girls and boys differently. Do they not think their sons are sweet? Do they not think their girls are champs? Do they expect different behavior from girls than from boys? And where does the reflex to use different endearments come from?

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Men’s Jeans: The Lower the Better

Article first published as Men’s Pants: The Lower the Better on Blogcritics.

I love when men wear their pants low. The lower the better — below the butt is fabulous.

I love it because it’s funny. It’s funny that they have to grab their pants all the time so they don’t slide off. It’s funny that they can’t walk normally because their pants constrict everything between their knees and their hips. It’s funny that they think this is a good look for them.

But the real reason I love it: men are finally hobbling themselves for fashion. Women have been doing it for years, with high heels, short straight skirts, strapless dresses they have to keep tugging up lest they fall out of them. It’s about time men got a taste of it. And maybe some women will look at the stupid pants and realize how stupid they look teetering around on their stilettos.

The next milestone will be when men actually injure themselves for fashion. Confidential to high-heel wearers: how are those bunions doing? And the back pain? Maybe try some acupuncture, but definitely don’t lose the fabulous shoes.


Turning the Other Cheek: Illegal Retaliation in the Workplace

Turning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

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The Top Ten Myths and Facts About Suing Your Employer for Discrimination

If you believe that someone at work is discriminating against you, one of your options is to go the legal route and bring a case against your employer. I’m all in favor of taking action again illegal discrimination, but you need to have your eyes open when you make up your mind to fire the opening salvo in a discrimination dispute. Here are ten myths and facts about going after your employer for sex discrimination.

1. Myth: Your employer will cave quickly and you will move on with your life.
Fact: There is a good chance your case will drag on longer than you could ever expect.

You would not believe how long discrimination disputes can take to resolve. Seven years is not unheard of. One reason is that there are many steps in the process before you even get to court, including attempting to negotiate a settlement and filing an administrative charge at the Equal Employment Opportunity Commission or equivalent state agency (this is mandatory before you can file a lawsuit in court); another reason is that once you’re in court you are at the mercy of the judge, and the mercy of some judges is very slow. Some women reach an agreement with their employers relatively quickly while others will be in it for the long haul. Employers and their lawyers do their best to make it worse by dragging things out as long as possible.

2. Myth: It won’t cost too much to pursue your case.
Fact: Pursuing your case will most likely cost more than you expect.

Lawyers, especially good and experienced ones, are not cheap. When you consider that most of them charge by the hour and put that together with #1 above, it is obvious that pursuing your case will cost you. This is another reason that employers and their lawyers try to drag things out – they are hoping you will run out of money, if you don’t run out of patience first.

3. Myth: Your employer is terrified of bad publicity.
Fact: Your employer will probably not surrender when you threaten to go public.

Nearly every woman who ever came to my office to discuss suing her company for sex discrimination told me that her company was scared of bad publicity, so if we threatened to publish her accusations in the press, the company wallet would fly open. Nearly every one of them was wrong.

There are two reasons that your boss won’t wet his pants when you brandish the phone number of a Wall St. Journal reporter. First, he knows that for you, press coverage is a gun with only one bullet. Once you pull the trigger, you’re out of ammunition – in other words, once the story hits the press, it is out there, and whatever power the threat of exposure did give you is gone.

Second and more important, your employer is presumably in the press a fair amount – certainly a lot more than you are. Your story will be one bad article, but the next day or week or month there will be a good article about the business. Your story will not define the company’s public image. But your story will probably define your public image for a long time. Your employer knows this, and is counting on you having more to lose from press coverage than the company does.

4. Myth: Your colleagues – both the ones who suffered discrimination and the ones who knew it was happening – will back you up.
Fact: Your colleagues will probably wimp out.

If someone at work is discriminating against or harassing you, he is probably treating your female colleagues the same way, and other colleagues have probably witnessed his conduct. It would be nice to think that the other victims and the witnesses would tell the truth about what happened to you in the workplace.

Don’t count on it. More often than not, colleagues plead ignorance or flat-out lie when asked to step up. They fear for their jobs and will usually choose continued employment over lending you a hand or standing up for justice.

5. Myth: Your case will expose your employer for the prejudiced, backwards institution that it is.
Fact: Other people will probably not find out how evil your employer is.

Usually “success” in a discrimination case means settlement; only a very small percentage of discrimination complaints go all the way to trial. And employers have a very nasty habit of insisting that your settlement remains completely confidential. It’s the equivalent of a gag order: you are not allowed to tell anyone about the discrimination or about the settlement. This is a particularly noxious tactic because it means that other women don’t know to stay away from your woman-unfriendly workplace, and the public in general has no idea how much discrimination is really going on. Forget about getting a bucket of money from your case and then writing a book-length expose about how vile your employer is. If you settle your case, no book. If you take your case all the way to trial, then no settlement agreement and no confidentiality clause. You could write the book and tell the world, and you would have years to do it (see #1), but you would need a big advance (see #2).

6. Myth: You will be avenged against the perpetrator when he loses his job.
Fact: The bad guy will probably not get fired.

One of the fondest wishes of most discrimination victims is to see the bad guy get what’s coming to him. Sadly, he very rarely will. Employers rarely fire the perpetrators of discrimination even when they lose discrimination cases in court and have to pay the victims lots of money. Occasionally they will transfer the jerks, but usually nothing happens. If seeing your boss canned is your primary motivation for suing your employer, forget it. Talk to a lawyer about some more realistic expectations.

7. Myth: You shouldn’t tell higher-ups or human resources about the discrimination.
Fact: Making a complaint to human resources can help.

Yes, your boss may retaliate against you. Yes, human resources probably won’t do anything helpful. But if you are serious about pursuing a discrimination case against your employer, you should do everything you can to end the discrimination and to get your attempts to do so documented. It will probably mean the end of your career at that company, but it will help your case. And who knows, maybe you’ll be one of the lucky few who actually have effective HR departments, you’ll be promoted and transferred to a new department, you won’t have to bring a case, you will never have to see your repulsive boss again, and justice will prevail. It does happen. It can help to see a lawyer even at this stage so she or he can coach you through this process.

8. Myth: It is illegal for your boss to treat you unfairly.
Fact: Unfair treatment is not always illegal.

Your boss can make your life miserable without breaking the law. For instance, if he treats everybody, male and female, like crap, then it’s not discrimination when he treats you like crap. If he assigns you all the scut work because he just doesn’t like you, but he treats other women well, then it’s not sex discrimination. He can cut your pay, transfer you, demote you, or even fire you just because he thinks you looked at him funny. As long as his reason isn’t your gender, then it’s not sex discrimination. It can help to keep notes about how he treats you and your peers so that if you decide to see a lawyer, you can give her or him a good picture of how your boss treats both you and other employees, both male and female.

9. Myth: The focus in my discrimination will be on my employer’s wrongdoing, not on me.
Fact: If your case goes to court, your employer and its lawyers will do their best to invade your privacy and keep the spotlight on you and whatever wrongdoing they can dig up or make up.

If you accuse your employer of unfairly firing, demoting, disciplining, or otherwise penalizing you, your employer will almost inevitably respond by saying that whatever it did was a fair reaction to your performance: your boss fired you because you were always late, or demoted you because all your peers outsold you. Whatever it is, your employer will try to keep the focus on what you did rather than what it did.

If your case goes to court things could get even worse. One of the pre-trial stages of litigation, called “discovery,” involves exchanging relevant information with the other side. Your employer may demand that you turn over all kinds of information you consider private, such as your journals or records from all your doctors. Just because the other side requests it doesn’t mean you have to turn it over, but you and your lawyer will need to have a good legal argument not to turn it over.

10. Myth: There is nothing I can do about the discrimination I face at work.
Fact: There are many things you can do. Sex discrimination is illegal, and if it is happening to you, you should do something about it.

The first nine myths and facts might have been just a little discouraging. Don’t give up. Consider it from a dollars and cents perspective: I and thousands of other lawyers have made a living representing employees who accused their employers of discrimination. We could not have done that if we never won.

Yes, you could stay in your job and do nothing, or leave your job without reporting the discrimination to anyone. But you could also report the discrimination to a manager or to HR; negotiate an exit that involves your employer paying you to stay quiet about the discrimination; file a complaint with the federal, state, or local government; or organize other women who are also experiencing discrimination and take on your employer as a group. This last option can be the most effective (see Part I and Part II of my article about settling gender discrimination class actions). The big class actions that you read about in the newspaper happened because more than one woman stepped up to take a company to task over workplace discrimination. When you work together with your colleagues you have more power, more credibility, and more support. If you do decide to try the class action route look for a lawyer with experience bringing class action discrimination cases, as they differ in significant ways from single-plaintiff cases.


Every case is unique; all of the above are generalizations based on seeing a lot of cases over time, and this article is not legal advice. Many women before you have gone after prejudiced employers and made them pay, and it may be that you have a strong case, a strong stomach, and a good lawyer who can make you one of those women. You have the right to be treated equally – if your boss is breaking the law, he should suffer the consequences. Don’t decide to throw in the towel without seeing a lawyer about your individual circumstances. One good place to find a plaintiff’s employment lawyer is the National Employment Lawyers’ Association.

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Support the Federal Prevention of Farm Animal Cruelty Bill, Despite Its Flaws

Animals raised for food currently have no federal protection, but Congress will soon consider changing that. A bill called the “Prevention of Farm Animal Cruelty Act” (HR 4733) has been introduced in the House of Representatives that would follow the lead of several states by taking a stand against gestation crates, veal crates, and battery cages. These are three methods of confining animals that are widespread (to the point of ubiquity) in factory farms and that cause animals relentless suffering.

Gestation crates are small metal cages only two feet wide that prevent pregnant pigs from turning around and even lying down comfortably). Sows spend most of their adult lives in these crates as they are inseminated soon after they give birth and thus kept pregnant over four out of every five months. Gestation crates cripple pregnant pigs and cause obesity. The fumes and toxins produced from the concentration of so many animals in one space sicken them (and the humans who “take care of” them). Pigs are smart animals, and the constant confinement, lack of activity or stimulation, and pain lead to neurotic behaviors like biting the bars of their cages over and over, or chewing on nothing.

Veal crates are also about two feet wide. Baby calves taken away from their mothers right after birth are chained by their necks inside these tiny wooden crates to keep them from moving – muscles would make their meat tougher. (Veal producers also deprive them of iron and fiber so their meat will be white.) Calves in veal crates never get to run, stretch, turn around, or even lie down comfortably, and they never will. They are usually killed at four or five months of age for “special-fed” veal or after just three weeks of life for “bob” veal.

Battery cages provide about four inches per hen in compliance with federal guidelines. Poultry producers cram four chickens into each 16-inch wide cage in order to maximize the number of eggs they can collect per square inch. The birds cannot spread their wings or lie down. They stand on wire mesh that cuts into their feet; sometimes their toes grow around the wire. The walls of the cage rub off the birds’ feathers and cause blood blisters. With no outlet to express their natural urges to dust bathe and to peck at the ground, birds peck at and injure each other (most have the ends of their beaks burned off as chicks in a painful, mutilating procedure intended to prevent this pecking). The concentration of so many hens in one space creates so much ammonia that it sickens the birds, hurting their lungs and making their eyes burn.

The Prevention of Farm Animal Cruelty Act would not outlaw any of these cages, or any other form of cruelty against animals raised for food. It would only prevent the federal government from buying the meat of animals who were confined in gestation crates, veal crates, or battery cages. Several states have already gone further than this by banning these crates and cages, including Michigan, California, and Ohio, which banned or placed a moratorium on new gestation crates, veal crates, and battery cages; Colorado, Arizona, and Maine, which banned gestation and veal crates; and Oregon and Florida, which banned gestation crates. (All but Florida have phase-out periods before the prohibitions kick in. The federal law includes a two-year phase-out.)

Nevertheless, the federal bill is necessary. The major existing federal anti-cruelty statute, the Animal Welfare Act, excludes “farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber.” The only statute that offers animals any protection from the cruelty inherent in agribusiness is the Humane Slaughter Act, which is primarily honored in the breach. Slaughterhouse by Gail Eisnitz documents the frequent violations of the Humane Slaughter Act in horrific detail. And the Humane Slaughter Act does not protect poultry, thanks to a USDA regulation that hacks away at the statute. There is no federal law that prohibits cruelty to animals in factory farms for their entire lives before slaughter, and no federal law that gives poultry any protection at all.

It would be a victory just to have Congress adopt the Declaration of Policy in the Prevention of Farm Animal Cruelty Act: “It is the policy of the United States that the raising of livestock for food production shall be consistent with the basic principles of animal welfare.” More importantly, this bill would result in improvements to the lives of millions of farm animals because the federal government is one of the country’s biggest purchasers of meat. Paul Shapiro, Senior Director of the Factory Farming Campaign at the Humane Society of the United States, notes that the federal government buys approximately 1% of all the meat sold nationally. That translates to close to four million animals each year who would be spared three cruel forms of confinement, and in reality, the reforms would help many more animals than that as producers converted their entire facilities in order to qualify as government suppliers. Right there are four million reasons to contact your representative and ask her or him to support HR 4733.

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Is Injecting Stuff Into Dead Animals “Natural”?

It’s rare to find Perdue on the right side of an animal welfare issue, but don’t fret: it’s only because its two biggest competitors are on the wrong side, and that is hurting Perdue’s bottom line.

The issue is what it means to label chicken “natural.” Overlooking the fact that there is nothing natural about selling raw corpse-parts in plastic wrapping where people buy actual food, the question at hand is whether it is “natural” to inject said parts with salt, water, “and other ingredients.” Perdue is pissy because the two biggest poultry producers, Pilgrim’s Pride and Tyson Foods, inject but still use the “natural” label, while Perdue, coming in at number three, does not inject.

The purpose of injecting salt and other non-chicken substances into chicken carcasses is not to raise consumers’ blood pressure (as far as I know), but to enhance the flavor and appearance of the meat. As Jonathan Safran Foer writes in Eating Animals, the chicken at the supermarket is the remains of “a drug-stuffed, disease-ridden, shit-contaminated animal.” Injecting salt, water, and whatever else into the meat gives it “what we have come to think of as the chicken look, smell, and taste.” It also puts more pennies in the poultry producers’ pockets by charging consumers chicken prices for water weight.

The U.S. Department of Agriculture is considering revising its labeling guidelines to make clear that injecting any non-chicken substance into chicken is not “natural.” If it makes that change, Perdue will gain market share when Pilgrim’s Pride and Tyson Foods lose their “natural” labels and consumers who want to eat “natural” meat choose Perdue instead – at least until the two biggest players lose the syringes and earn the “natural” label again.

Changing the labeling guidelines could result in marginally better treatment of chickens while they are alive. Chickens who are properly nourished, not over-drugged, given an environment in which they can maintain their hygiene, and slaughtered humanely will have more flavor and look better without injections. (Or so I’m told by people in the know – as you may have guessed I don’t eat meat myself, and I have very mixed feelings about advancing an argument that the government should do anything because it will make meat taste good.) Changing the labeling guidelines could also make the factory farming of chickens marginally less profitable and therefore perhaps a marginally smaller industry because poultry producers won’t be able to overcharge consumers for water and salt by selling them as chicken.

But then comes the backlash: Pilgrim’s Pride, Tyson Foods, and agribusiness everywhere will find another way to make up the lost profits, and it will probably come out of the chickens’ hides.

Is it Moral to Eat Plants?

The gauntlet has been thrown down for ethical vegans: is it moral to eat plants? This month BBC News published an article asserting that plants “can think and remember.” Natalie Angier published a piece titled “Sorry, Vegans: Brussels Sprouts Like to Live, Too.”

The articles cite evidence that plants send chemical signals from one leaf to another in response to light and activate defenses against marauding animals and insects. But this evidence does not entitle plants to the same moral concern as animals: it does not prove that plants are sentient.

Ethical vegans (as opposed to vegans motivated by health or environmentalism, both of which are also sound rationales for a vegan diet) eliminate animal products from their diet (and their wardrobes) so they will not cause animals to suffer. Agribusiness has made the lives of millions of animals raised for food and fiber hellacious and their deaths gruesome in ways that would be unimaginable in the bucolic, red barn mythology of the old-fashioned American family farm. Vegans abstain from animal products because we know that animals suffer – both that they are capable of suffering, and that factory farms makes them suffer.

The new studies of plants have not proven that they are capable of suffering. According to Gene Baur, co-founder of Farm Sanctuary, “sentience is the key point. For the animals it’s obvious and well-documented. With plants it isn’t.” Without sentience, there can be no suffering. Angier has challenged ethical vegans prematurely: since we don’t have evidence that plants suffer, we don’t have a reason not to eat or wear plant products.

But this argument puts ethical vegans in an ironic position. Normally it is vegans defending the position that animals are sentient, that they feel pain and fear, and a significant piece of evidence for that argument is their reactions to threats and to sustenance. With regard to plants, vegans must argue that plants’ reactions to threats and sustenance do not prove that they are sentient.

So let’s grant Angier’s argument for a moment and assume that plants are sentient. Humans cannot survive without eating them, which is a very practical but amoral argument. There is also a moral argument consistent with the values of ethical vegans, as Baur points out: “by eating plants we’ll be killing fewer than if we eat animals, who have eaten lots and lots of plants.” Even if evidence emerges that plants are sentient, therefore, ethical vegans will still hold the moral high ground.