Working for Justice

Reasoning Beats Cussing: Or, Your Demographic is Not Your Destiny

Posted July 16th, 2014 by in Employment Discrimination.

I’m a well-weathered veteran of the lawsuit wars, with nearly 35 years of experience under my fluctuating beltline. For most of my professional life, I’ve played David to Goliath. My clients are employees victimized by some of this country’s largest corporations. On behalf of these clients, and with some measure of success, I’ve sued corporate miscreants who practice gender, race, and age discrimination. And I’ve also won lawsuits to recover overtime pay that these corporations wrongfully withheld from their workers.

Given this history, you might think that I fall on the progressive end of the ideological spectrum. Perhaps I do – or don’t; it’s irrelevant to what I want to say in this piece. I have some criticism to level at progressives. Too often, I find that progressives are imprisoned in a bubble of unanimity. Everyone thinks and pretty much says the same things about the political/ legal issues of the day. Positions that differ from the dominant progressive paradigm are caricatured as reactionary or the product of bad faith. Labels take the place of reason and analysis.  That’s not true for my law firm, and I’ll explain why at the end of this entry. But first, let’s see the bubble in action.

The Supreme Court’s controversial 5-4 decision in the Hobby Lobby case has unleashed a tsunami of outrage from progressive circles. Journalists and politicians joined in the attack. The Wausau Daily Herald featured a cartoon of the court’s five-man majority – all of whom are Roman Catholics – garbed as cardinals of the Church. Senate Majority Leader Harry Reid thundered with his usual incisiveness that the Senate “wouldn’t let five white men” have the final say on the provision of contraceptives. (Although, one suspects, Justice Clarence Thomas might not fit snugly within Reid’s condemned demographic.)

Then, there are the scientific studies that purport to “prove” that:

a) “staunch” conservatives are more likely to be 50 or older, white, married, and religious but even worse;

b) such specimens are retrograde, evolutionary laggards, too culturally maladapted to jump on board the ever advancing progressive bandwagon.

In critiquing the decision of the majority in the Supreme Court, some have reverted to shorthand that the Justice’s gender, race, age or religion is all the explanation needed to understand or interpret the ruling.

There is of course nothing new in ascribing a personality disorder to those with whom you disagree politically. Sigmund Freud found the figure of President Woodrow Wilson “unsympathetic.” And so, Freud famously psychoanalyzed Wilson across an ocean’s breadth, years after the President was safely dead. Unsurprisingly, Freud diagnosed Wilson as narcissistic and pathological. The Soviets perfected the political/ psychiatric technique decades later. Political dissidents who failed to appreciate the glories of the workers’ paradise were self-evidently insane. Off they went to psychiatric institutions, there to be dosed with a regimen of drugs sufficient to medicate them into a reality acceptable to their political masters.

The lesson from all this history should be plain: The argument from demography is no argument at all. Attacking a person rather than his position is no virtue; it is a vice that deadens thought. If relied upon as a crutch, it disables an advocate from persuading the unpersuaded to the wisdom of even the progressive point of view. Reducing opponents to stereotypes not only doesn’t move the conversation along, it stops it dead in its tracks.

Lawyers litigating progressive causes, such as employment discrimination suits, can’t afford to immunize themselves from the truth that many judges may not share their progressive outlook. It is possible, nonetheless, (and my firm has demonstrated this in practice) to use creative positions and win your case. Creativity, however, requires a mind open to recognizing that the other side’s argument is not always pernicious nonsense, or that not every older, pale complexioned male jurist will deep-six your litigation. And I am always very much aware that many of our clients may strongly disagree with the political positions of some of our lawyers. Being sensitive to this has allowed my firm to represent clients that are young, old, liberal, conservative, religious, atheist, and otherwise at all ends of every conceivable spectrum – even those that may be radical, tattooed, and red-fingernail-ed.

“Sticks and stones may break my bones, but words will never hurt me.” Not! Words, labels, and political ideologies will hurt if they handcuff your thinking and prevent you from doing the best you can to win the day, whether it is for your cause, your viewpoint or for your clients.

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