Thinking Ahead: An Emergency Protection for Egyptian Cultural Antiquities Act

As Egyptians exercise their universally recognized rights to assembly and expression, the Egyptian people are deeply concerned about the cultural heritage that resides in their country. Those concerns are shared by many throughout the globe. Archaeological sites reportedly being looted and museums have experienced break-ins. That is why it is important for lawmakers to start thinking about ways to help protect Egyptian cultural artifacts. It is better to think of solutions now rather than reacting to a potentially wider problem later.

One effort might be to stop stolen and looted Egyptian cultural material from crossing the American border. Such import controls could be accomplished by enacting an Emergency Protection for Egyptian Cultural Antiquities Act, which could supplement authority already existing under the federal criminal code and the Archaeological Resources Protection Act (ARPA).

The Cultural Property Implementation Act (CPIA), 19 U.S.C. 2601 et seq., implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Section 2603 of the CPIA permits the President to enact import restrictions on cultural materials illegally removed from a country during an emergency situation without requiring that country’s government to make a formal legal request. Senator Charles Grassley introduced emergency legislation in 2003, pursuant to the CPIA, in response to the looting of the National Museum of Iraq. The time is ripe to consider similar legislation in response to the reported looting currently occurring in Egypt.

Theft, vandalism, and looting in Egypt include some of the following, according to current reports:

• Antiquities official Mohamed Megahed told the BikyaMasr blog of “immense damages to Abusir and Saqqara,” major archaeological sites in Egypt. He added that “[o]nly the Imhotep Museum and adjacent central areas were protected by the military. In Abusir, all tombs were opened; large gangs digging day and night.”
(bikyamasr.com/wordpress/?p=25085)

• The Qantara Museum warehouse in the Sinai was attacked by looters, according to news reports.
(Reuters,http://af.reuters.com/article/egyptNews/idAFLDE70U0XN20110131)

• Dr. Gerry Scott, director of the American Research Center in Egypt, has commented on damage at the site of the Great Pyramids in Giza. (www.unreportedheritagenews.com/2011/01/damage-reported-at-giza-pyramids.html)

• The break-in at the Egyptian Museum in Cairo has been well reported, although the extent of that incident remains unclear.
(video available at www.youtube.com/watch?v=5h5taeUh0aM)

Meanwhile, several organizations have joined together to issue a statement that calls “on United States and European law enforcement agencies to be on the alert over the next several months for the possible appearance of looted Egyptian antiquities at their borders.” Those organizations calling for increased law enforcement vigilence include:
American Schools of Oriental Research
Archaeological Institute of America
Cultural Heritage Center, University of Pennsylvania
Cultural Heritage and Preservation Studies, Rutgers University
Lawyers’ Committee for Cultural Heritage Preservation
U.S. Committee of the Blue Shield

There is authority at present to seize illegally obtained Egyptian artifacts at the American border. The National Stolen Property Act and anti-smuggling laws permit the seizure of stolen cultural property pursuant to the criminal laws found in Title 18 of the United States Code. See United States v. Schultz. Cultural property can also be seized under an interpretation of ARPA under Title 16. Because customs officials most often enforce import controls enacted pursuant to Title 19, An Emergency Protection for Egyptian Cultural Antiquities Act should be contemplated even at this early stage of events in Egypt. Such a statute could resemble the emergency protection law covering Iraq and be worded in the following way:

Emergency Protection for Egyptian Cultural Antiquities Act of 2011
EMERGENCY IMPLEMENTATION OF IMPORT RESTRICTIONS.

(a) AUTHORITY- The President may exercise the authority of the President under section 304 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2603) with respect to any archaeological or ethnological material of Egypt without regard to whether Egypt is a State Party under that Act, except that, in exercising such authority, subsection (c) of such section shall not apply.

(b) DEFINITION- In this section, the term `archaeological or ethnological material of Egypt means cultural property of Egypt and other items of archaeological, historical, cultural, rare scientific, or religious importance illegally removed from locations in Egypt since January 25, 2011.

TERMINATION OF AUTHORITY.
The authority of the President under section 3002(a) shall terminate on January 31, 2016.

Information from the Blue Shield on the Situation in Egypt

See the statement at http://uscbs.org/news/?p=148.

LCCHP and Other Organizations Warn of Cultural Heritage Emergency in Egypt

The Lawyer's Committee for Cultural Heritage Preservation, joined by other organizations, has issued on the situation involving cultural heritage in Egypt. That statement is below:

The undersigned cultural heritage and archaeological organizations express their concern over the loss of life and injury to humans during the protests in Egypt this week. We support the desire of the Egyptian people to exercise their basic civil rights. We also share their concern about the losses to cultural heritage that Egypt has already sustained and the threat of further such losses over the coming days.

Brave actions taken by the citizens of Cairo and the military largely protected the Cairo Museum. However, the numerous sites, museums and storage areas located outside of Cairo are even more vulnerable. As the prisons are opened and common criminals are allowed to escape, the potential for greater loss is created. A recent report from Egyptologist Professor Sarah Parcak of the University of Alabama in Birmingham states that damage has been done to storage areas and tombs in Abusir and Saqqara and that looting is occurring there and in other locations.

We call on the Egyptian authorities to exercise their responsibilities to protect their country’s irreplaceable cultural heritage. At the same time, we call on United States and European law enforcement agencies to be on the alert over the next several months for the possible appearance of looted Egyptian antiquities at their borders.


Archaeological Institute of America
Cultural Heritage Center, The University of Pennsylvania
Lawyers’ Committee for Cultural Heritage Preservation
U.S. Committee of the Blue Shield

Archaeological Looting Crisis in Egypt

Sarah H. Parcak, Assistant Professor at the Department of History and Anthropology at the University of Alabama at Birmingham reports a crisis brewing at major archaeological sites in Egypt. The United States government and others must keep a careful watch at their borders for any ancient Egyptian artifacts. Professor Parcak's email appears below:

"Verified by Mohammad Megahed: Immense damages to Abusir and Saqqara, all magazines and tombs which were sealed were entered last night. Only Imhotep Museum and adjacent central magazines protected by the military. In Abusir all tombs opened. large gangs digging day and night everywhere"

The damage is *vast*.

It seems that some of the storage magazines at South Saqqara and Abusir have been looted-hard to say how much was taken and the extent of the robbing. SCA representatives are only today able to check on the museums/storage magazines, but early reports suggest major looting. If you all could please contact anyone who can help and put them on "high alert" for Old Kingdom remains and Egyptian antiquities in general, and please spread the word to law enforcement officials worldwide. Egyptian looters (who may be encouraged by outside Egypt entities) may try to use the general confusion to get things out of the country.

Other bad news: prisons in Qena and Armant (next to Luxor) have been emptied, so people fear major looting will occur in that region.

Reports still abound for major looting in the Alexandria Museum---but those reports are hard to confirm. The violence has been worse in Alexandria, and there have been few police reports there."

Luxor and Giza Sites Under Military Guard

The Associated Press reports that Egyptian authorities have set up barriers to protect Karnak Temple--the world's largest ancient religious site--in Luxor. In addition, tanks were stationed outside Luxor's museum. This information was reportedly supplied by American archaeologist Kent Weeks, who is in Luxor and heads the Theban Mapping Project.

Meanwhile, the Giza pyramids have been closed and placed under military guard.

Video Showing Egyptian Army Inside Egyptian Museum

The video currently being shown on CNN to illustrate the current situation inside the Egyptian Museum in Cairo is posted at the following link: www.youtube.com/watch?v=5h5taeUh0aM

[Update November 9, 2011: Associate Press video at http://www.youtube.com/watch?v=wTOf0x-eGU0].

Update on the Egyptian Museum in Cairo

The famed Egyptian Museum is near a major plaza where many have gathered in the last few days to protest President Mubarek's grip on power. As looters moved onto the grounds of the museum, the Christian Science Monitor reports: "One man pleaded with people outside the museum's gates on Tahrir Square not to loot the building, shouting at the crowd: 'We are not like Baghdad.'" The paper reports that others joined together to create a perimeter to protect the museum with one man remarking, "I'm standing here to defend and to protect our national treasure."

The military later arrived on the scene. News outlets indicated that the military arrived around 5:15 a.m. local Cairo time on Saturday (January 29). CSM reports that the potential thieves were rounded up amid chants of "Thief. Thief" by the demonstrators.

I observed video on CNN showing shattered glass cases that house the well-known Middle Kingdom models of daily life found on the second floor of the museum. It appears from the video that parts of the models are damaged or missing.

Let us remember that the Egyptian people and their right to self-determination are much more important than artifacts. But more will be posted here about any news related to cultural heritage since that information is hard to come by at the moment.

Imperial Winter Series Race 10; Saturday 29th January

Photo courtesy of LondonCycleSport

A distinctly cool 2ºC with a fresh northerly wind to add a wind-chill that left my hands numb until the race had been on long enough to get the circulation going. A few spirited attacks off the front but (as far as I could see) again nothing stuck. We passed the 4th cats twice, once whilst they were racing and again as they were warming down and not yet cleared the circuit. Every time the pace picked up to haul someone in I found my self at (but thankfully never off) the back. The sprint straight into the wind was interrupted by a sortie onto the grass on the right so I just kept left to roll in at the back of the bunch.

24.9m in 1h:01m:20s. Average speed 24.4mph. Top speed 32.9 mph.

Photo courtesy of Lucy Collin

Kansas City Verdict - Another Successful "Reverse Discrimination" Claim

Earlier this month I commented that one trend we might see this year was more "reverse discrimination" claims. See, 2011 -- the Year of the Non-minority? The outcome of a suit in a Kansas City courtroom yesterday does not prove me right, but it certainly does nothing to prove me wrong.

Like many local governmental units, Kansas City faced with declining revenues dealt with the issue as is often the case by eliminating employees. In the 75 laid off were two, long service, white, female budget analysts, Jordan Griffin and Colleen Low. one in her early 50's, one in her early 60's. 

After they were laid off  they sued complaining that "younger employees or minorities with less experience and lower performance evaluations were kept on." Agreeing with their claims, the Jackson County state court jury awarded each $900,000 in punitive damages and compensatory damages of nearly $350,000 and $500,000 respectively. See, Two former workers win $2.6 million from KC.

Two things that can be drawn from the newspaper account of the story that will be all too familiar to those who try employment lawsuits.

First, the two plaintiffs both had "always received exemplary performance evaluations." And their boss had considered them "spectacular, fantastic employees." In this case those performance reviews may have been deserved, as were the comments, but anyone who has any significant experience in this area knows all too well of cases where such comments and reviews decidedly did NOT represent the true opinion of management that went into the decision making process.

Secondly, one of the things that likely offended the jury was the assertion that their manager had lied to them by telling them that they were not on the list. According to their lawyer:

He repeatedly and affirmatively lied to Jordan and Colleen. He wanted to lull Jordan Griffin and Colleen Low into a false sense of security.

While that could be true, my guess is that the manager had other more noble motivations. He testified that while he did tell them that they were not on the lay off list it was because:

• the list hadn’t been finalized,
• he was hoping they wouldn’t have to be on the list,
• that they could find jobs elsewhere in city government, and
• he was trying to protect the confidentiality of the list.

All of those reasons are certainly understandable, but it is also clear how actions that seem, even in hindsight to be reasonable, can play in the tinderbox of a court room.

And potentially underlying both of the lessons is the difficulty managers have in delivering bad news. That's one of the biggest reasons for erroneously inflated performance appraisals and why managers tell "white" lies in situations where there is at least a chance that the bad news won't have to be delivered.

I hasten to add I am by no means faulting these or any particular managers, delivering bad news is hard for most people. That and a thousand other reasons are why being a manager of people is one of the hardest jobs in America.

We should not be surprised that it sometimes leads to results such as this one. What is perhaps more amazing is how rarely it does.

Update: A Kansas City Business Journal article adds some additional information and does make it clear that this is the type of case I thought we might see more of this year. According to the article:

Jordan Griffin claimed that she applied to become Kansas City’s commissioner of revenue, a position that was vacant in 2006. Griffin alleged that the city would not consider her application or grant an interview because it hired an outside recruiter that specialized in diversity recruitment and that former City Manager Wayne Cauthen had a contract that provided financial incentives for minority hires.

See, Kansas City faces $2.66M discrimination verdict.

Trying to increase diversity, certainly a notable aspiration, and not discriminate on the basis of a protected category, both a noble aspiration and the law, is easy to talk about, but fraught with potential peril. No one ever said being an employer was easy.

Some views from our parliamentarians

I see that the MP for Cambridge, Dr Julian Huppert, secured the adjornment debate last Friday.  His speech is reported in Hansard and he took the opportunity to raise cycling with the Minister of State for Transport.  I do recommend reading his speech.  It is stunningly good and he manages to raise in a few minutes some of the issues I have been raising in this blog.  He deals with the merits of cycling, the importance of bikeability cycle training, the enforcement of cycle lanes, the poor quality of most 'shared use' cycling facilites built in defiance of the DfT's own hierachy of provision, the excessive advocacy of cycle helmets.  I particularly like this in relation to motorists who harm cyclists,
 "We must encourage the police and the Crown Prosecution Service to be more ambitious in the choice of charges and the decision to prosecute, so that judges and juries can decide whether an excuse is good enough.  Driving with a reckless disregard for the safety of fellow road users should be treated very seriously."
Mr Huppert goes on to deal with cycle parking, showers/lockers at workplaces, integration with public transport and then raises the subject, close to my heart, of cycle racing on the Highway.

Mr Huppert is a Liberal Democrat, the sooner he is given a job at the Department for Transport the better.

Disappointingly, at least one motoring organisation, apparently intent on seeing the sharing of roadspace as a battleground rather than a matter for cooperation, has taken exception to Mr Huppert's words.  This is not a party political blog, nonetheless it is rare to find a parliamentarian of any political party talking so much unadulterated sense and Mr Huppert gets my full support.

The response from the Minister of State, Theresa Villiers, was less impressive though she did point out that "Cycling can also help us to address the obesity problems that cost the NHS and wider society around £20 billion annually".  She did not disagree with Mr Hibbert's comments about reducing the stigma attached to cycling by lowering the apparent dangers.  She should really have a quiet word with her colleague in government, Eric Pickles MP, Secretary of State for Communities and Local Government, who attended a conference last week on 'Urban Planning and Liveable Cities.'

Asked a sensible question by Mark Ames of ibikelondon Mr Pickles gave a very silly response (transcript here).  He did not seem too intent upon reducing the stigma some associate with cycling by refering to pedalling in rubber knickers up and down the place to go to work.  I agree cycling need not be long or arduous and does not of itself require special clothing (and I include a helmet in that).  Everyday cycling in ordinary clothes is much to be encouraged.  However if you are going to go far or fast (and looking at Mr Pickles he may not need to be going too far or fast to sweat profusely into his cotton Y-fronts) you will soon learn that lycra (so far as I am aware a synthesised product containing no rubber) is vastly more practicable than cotton or wool.  I cannot imagine that anybody save Mr Pickles would dream of trying to cycle dressed in rubber.

As for his comment that even he might venture out eventually if we make it just a little bit safer; there is no kind way to say this Mr Pickles, but Ms Villiers's response applies to you.  You are endangering your health far more by not cycling than you ever would by 'venturing out'.

If only we had a few more who did not just talk the talk but ventured out properly as Dr Huppert does, we really might start to make progress.

 So, two parliamentarians, guess which one 'ventures out' on a bicycle.

MMA Body Slam of $3.2 Million

$3.2 million is the total jury award to former Tapou T sales representative, Michelle Thomas, from a Los Angeles state jury. The jury first awarded $840,000 in compensatory damages, and then after finding the acts of the employer were with malice, added an additional $2.4 million. Jury Awards $2.4 Million in Punitive Damages to Ex-Employee of Apparel Firm

Although the newspaper article calls it a wrongful termination claim, the facts emphasized in the article were that Thomas was not paid the commissions she was promised, had to work 70 to 80 hours a week without overtime compensation, had to pay out of pocket for cable subscriptions that would allow her to watch the Tapou T show which airs on the Versus network, and one that particularly seemed to be galling that

she was roundly criticized by a supervisor for not watching one required program on her birthday.

I must admit that I had never heard of Tapou T and don't know a whole lot more about Mixed Martial Arts fighting, much less that there was a reality tv show about developing new fighters. And so my headline reference to body slam is probably an inappropriate reference that goes back fifty years ago when I watched professional wrestling from the Dallas Sportatorium with my grandfather.

At least back then, body slams were a big thing. Regardless of whether its an MMA term or not, it's likely that Tapou T is feeling pretty slammed today.

Retaliation in the Supreme Court - Danger Zone for Employers

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activity was also protected by Title VII.

If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.

I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.

But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.

As of now, employers have an unclear line (conceded by Justice Scalia) about what relationship will be considered sufficient to extend one employee's concerted activity to another:

Applying the Burlington standard to third-party reprisals, NAS argues will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.

Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

The easy way to look at today's decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity. Just how far and under what circumstances that zone will reach will be fought out in the courts. A battle that no doubt starts today.
 
The guidelines, to the extent we have them are this:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington,  “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] theuncertainties and unfair discrepancies that can plague ajudicial effort to determine a plaintiff’s unusual subjective feelings.”

I am afraid those 'guidelines' leave a lot of "filling in" for the lower courts to do.  

So I was right -- the "strict constructionist view" controlled, just not the way I had hoped. Which may just show that even when one is "strictly construing" legislative wording, it is possible for judges to "make" not just "interpret" the law. Imagine that.

Imperial Winter Series Race 9: Saturday 22nd January

Quite a large field of at least 40 riders turned out for today’s 3rd cat race. At the sign in Lucy kindly promised me no wind, which turned out to be a half kept promise. The wind was merely strong, rather than last week’s gale, and came from the North so forming a headwind up the finishing straight. A seasonal 6ºC. Perhaps because of the better conditions, and perhaps partly also because I took the precaution of taking the train to work yesterday, I had a much better race. There were some spirited attacks including a solo attempt in the last two laps. I often get this wrong but I do not think anyone stayed away. We must have been doing a reasonable pace as we lapped the 4th cat race twice today, not something that’s happened on the races I have done in this series so far. Came in within the bunch.  No crashes.
26.65 miles in 1:06:09. Average speed 24.17 mph. Max 32.3 mph
As I was leaving my fellow cycling blogger Skippy found me and we had a quick chat, curtailed by the fact I had to get home to walk the dog before dark. He is clearly doing good work finding sponsorship for paralympic athletes.  It was a pleasure to meet him in the flesh. He had struggled to find the circuit so it may be worth pointing to directions here (with added bonus of a rear shot of one of my clubmates!). Hillingdon is a good place to start racing especially if you first get yourself there for some Thursday evening Prime Coaching sessions in the summer months to get used to bunch riding at speed and the layout of the circuit.

Transport Policy again

The Department for Transport has just laid before Parliament a report entitled Creating Growth, Cutting Carbon; Making Sustainable Local Transport Happen.  It includes the following information:

"According to the Retail Price Index, the cost of buying a car fell by 29% in cash terms between 1999 and 2009, while general RPI inflation over the same period was 29%. However, the cost of car maintenance, petrol and oil, and tax and insurance all increased markedly faster than general inflation. The "combined" cost of motoring (covering purchase price and running costs) fell by 11% relevant to the general rate of inflation. Over the same period rail fares rose by 43% and bus and coach fares rose by 58% "

Meanwhile the Automobile Association, reported inevitably in the Daily Mail, are complaining again about petrol prices:

'Sooner or later, politicians will have to face reality - more and more drivers cannot afford these prices. They are pushing up inflation and taking money from other consumer spending.'

The inexorable rise in the number and mileage of motor vehicles, with the inevitable associated congestion and pollution, is surely related to the fall in the costs of motoring both in real terms and more particularly in comparison to public transport.  The costs continue to fail to cover the 'externalities'.

This, from a briefing note prepared by the Institute of Fiscal Studies, continues to hold true:

"Why, in theory, should a government be concerned to change consumer behaviour through the use of fuel duty? The argument is that the costs of motoring exceed the private costs faced by an individual motorist. There are environmental costs, noise costs, road-damage costs and congestion costs which people may not factor into their decision about whether and how much to drive. This means that the costs to society of motoring exceed the costs to the individual, which will lead to a level of motoring that is both inefficiently high and inefficiently cheap from a social perspective. The duty is therefore a way of forcing the private motorist to take account of these social costs."

I am assuming the list of external costs does not include death, personal injuries and medical costs on the (slightly dubious) assumption that these externalities are covered by motor insurance.  Certainly I would add additional external costs relating to obesity and lack of fitness due to no longer moving ourselves around in the manner we evolved (or were designed if you prefer) to accomplish without the assistance of fossil fuels.

I do not claim to know the price of fuel at which these externalities are properly taken into account but I am very sure the level must exceed that at which at least some AA members have to think about whether they should be saving money by using public transport, car sharing or even a bicycle.  I see no evidence that our society is moving away from motorised transport as being overwhelmingly the default option for moving ourselves around.

I see a test of government mettle looming.

Postscript:  for a more in depth analysis of fuel costs try the Road Danger Reduction Forum who recommend an increase in petrol duty

One thing you learn very rapidly as a cyclist is the dramatic effect of air resistance which is proportional to the square of air speed.  One way to save petrol is therefore to drive at a slower speed.  There are even better reasons to do this, of course, and I have now set myself a voluntary limit of 20 mph in built up areas.  I find this has virtually no effect on the time it takes me to drive anywhere but it certainly does attract aggression from a few other motorists.

A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases

Given the overwhelming number of FLSA collective actions that continue to be filed, it is hard to find very much encouraging news, but one ray of sanity is the 4th Circuit's opinion in Desmond v. PNGI Charles Town Gaming, (4th Cir. 1/18/11) [pdf].

The issue was the not inconsequential question of how do you calculate damages in a misclassification case. Here, the employees were thought to be exempt under the administrative exemption, but the court held otherwise.

Plaintiffs of course seek a 150% premium (time and one-half) of the newly computed hourly rate, while defendants argue that overtime has already been calculated in. and so the premium should only be 50% or half-pay. The counter by the plaintiffs is that it gives the defendants the benefits of a fluctuating work week calculation, without having to comply with the regulations.

Noting that it was joining four other circuits and the DOL itself, the Court found the correct way of calculating damages in such cases to be set out by the Supreme Court in Overnight Motor Transportation Co. v. Missel (1942), one of the Court's early FLSA decisions. 

According to the court

The First, Fifth, Seventh, and Tenth Circuits all have determined that a 50% overtime premium was appropriate in calculating unpaid overtime compensation under 29 U.S.C. § 216(b) in mistaken exemption classification cases, so long as the employer and employee had a mutual understanding that the fixed weekly salary was compensation for all hours worked each workweek and the salary  provided compensation at a rate not less than the minimum wage for every hour worked.

Although there may be examples of where individuals were badly served by misclassification, in most cases, it is a case of individuals paid higher than most employees,who clearly understood that they were not receiving any pay for overtime, and were willing to work under those terms. Thus in many respects, any  recovery under the FLSA really is a windfall for them.

The 4th Circuit decision does not eliminate the penalty for misclassification, but it does at least rein it in, so that it is more appropriate.

One other lesson to be learned from this case is how it started.  It has been a highly contested (and no doubt expensive) case. Yesterday's decision is the second time it has been in the 4th Circuit and the second time it has been sent back to the district court for additional action.

Its genesis was when three racing officals were discharged because they unaminously declared the wrong horse to have won a race.  It certainly was not the first, nor will it be the last, case where an employee unhappy with his discharge, which may be perfectly legal makes it to counsel who can not help with the "presenting problem," but can help in other ways.

Imperial Winter Series Race 8 - Saturday 15th January

Photo Courtesy LondonCycleSport

Unseasonably mild at 12.5°C but with a very strong blustery south-westerly wind which caught me out early in the race.  I was on a wheel round a bend turning into the wind but a gap opened ahead and I just could not get by.  I and a few others were dropped, though I did struggle on to finish last.   So no meaningful stats or report from me this week.  Lessons must be learnt from such failures.

Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?

The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII.
But when I looked at the decision, Dawson v. Entek International (9th Cir. 1.10.11) [pdf] what I found was even more confusing.

The Court had in fact discussed the line of cases I was thinking about -- where a number of courts have found Title VII protection for sexual orientation based on gender stereotyping. However, the Court specifically found that there was no evidence of gender stereotyping in this case, and so dismissed what it called claims for sexual discrimination under both Title VII and Oregon state discrimination law. 

The Court held that it was error to dismiss Dawson's sexual orientation discrimination claim under Oregon state law. (There was a question about the effective date of the statute versus the conduct. The 9th Circuit side stepped that question by noting that even before the effective date Oregon had recognized a common law claim for sexual orientation discrimination.)

The part that obviously prompted the DLR headline, and caught my attention after reading the opinion, was the Court's holding that the trial court erred in dismissing his retaliation claim under both Title VII and Oregon state law.  There was no question Dawson had complained, but there was also no question that he had complained only about taunts based on his homosexuality, i.e. his sexual orientation, not anything based on gender stereotyping. 

I think the problem in the court's analysis is here:

Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.

After making clear that sexual orientation is not protected under Title VII, the Court seems to have made a logical error in calling sexual orientation discrimination an unlawful employment practice.
In this case, depending on the remedies under Oregon state law, it may not matter, but as the decision is currently written it would certainly impact Title VII retaliation law.

It would be quite a step forward, not to mention ironic, if you could be fired for your sexual orientation, but could not be fired for complaining that you were being discriminated against because of your sexual orientation.

Surely we are not that much in the Alice in Wonderland world, at least not yet.

Sentencing

Motorist with clean(ish) record throws cyclist into road in front of an oncoming car risking life and limb, accepts responsibility.  Police caution.

Non-motorist with clean record throws fire-extinguisher off high building risking life and limb, accepts responsibility.  2 years 8 months in prison

I fully understand the need to make examples and to make others think twice.  Perhaps a little rebalancing of the criminal justice system to deter danger from motorists, though?  I would settle for taking just one year off the student protester and giving it to the motorist who attacked me.

Postscript 14th January: My unease over the balance of our criminal justice system is not ameliorated by reading today that two protestors who tried unsuccessfully to talk their way into the staff entrance of Buckingham Palace armed with political banners were yesterday remanded in custody for a week.

2011 --- the Year of the Non-minority?

Predicting what a new year will bring is a time honored tradition, but much like resolutions, most predictions rarely last longer than the first flip of the calendar. So rather than a long list, let me just start with one thing that I am guessing we might see, more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.

One example of such a case comes from Peter Thompson's Maine Employment Lawyer's Blog, Can an employer fire a white employee for using the n-word if it lets black employees say it?. The employee in question was a news broadcaster at Fox 29 in Philadelphia before he was fired for using the n-word, while black employees were not disciplined for their use. According to Thompson's blog post,

Fox 29 argues that Mr. Burlington's comparison between his use of the n-word and black employees' use of the n-word ignores the fact that his use of the n-word offended some black employees; whereas no one took offense when the black employees used the n-word.

District Judge R. Barclay Surrick's 36 page opinion is a worthwhile read not only for the factual background, but for the complexity of the legal issues (which also includes a discussion of a cat's paw theory). Turning to the central issue he noted:

We begin by addressing an issue that does not appear to have been decided by the federal courts: can an employer be held liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say “nigger” but not whites? ...

Historically, African Americans’ use of the word has been ironic, satirical, or even affectionate. Id. at 28-31. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. ...

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. See  McDonnell Douglas, 411 U.S. at 800 (stating that the purpose of Title VII was “to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens”). To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII’s command that employers refrain from “discriminat[ing] against any individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).

In El Paso, right before Christmas, a jury returned a verdict in a case that also seems to make the point. The Odessa American headline over an AP story told the story, Anglo worker wins discrimination suit.

The case was brought by a white benefits manager who had an altercation with his Hispanic supervisor. The company fired both.  The employee's lawyer, John Wenke, argued that:

The company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager. Wenke claimed the company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager.

The jury apparently agreed, returning a $5.8 million verdict.

Two cases are hardly a trend, but they are enough to get one's attention.

Imperial Winter Series Race 7 - Saturday 8th January

Not a good week for me mechanically with two punctures travelling to work on Wednesday and the folding pedal falling off my Brompton on Thursday (brilliant design but just not robust enough when grinding up a hill), so I suppose it should have been no surprise that I punctured on my one warm up lap before today's race.  So, as Doug sent us off, my bike was upside down in the mud while I swapped a replacement back wheel borrowed from a kind soul.   I first assumed he was there for the next race but maybe he was a spectator.  Anyway this was not his spare wheel, you should understand, it was the wheel taken off his bike so I really do owe him one.  The circuit has spares but all Shimano equipped.
So I spent my first half lap sprinting to get up to the group which had fortunately this week gone off at a moderate pace.  I raced 'blind' as my Garmin was in my back pocket being protected from the mud.  (Yes, I know, mechanically skilled people do not turn their bikes upside down but I find it reduces the chance of fluffing a rear wheel change and I was in a hurry).
The borrowed wheel served me very well, for a while I thought it was squeaking loudly but I eventually figured out that was number 50 who seemed to be in my vicinity for much of the race.  There was a stiff West wind which served to thwart the attempts of the few who tried to get away.  [Edit: no it didn't, there was a succesful break and clearly I did not know what was going on!].  I thought there might be a risk of a split with the crosswind so tried to stay near the front.  Getting right to the front, though, was a definite mistake as it was hard to drop back without the entire pack coming by on the leeward side.
We eventually passed the 4ths reasonably cleanly though there was one rider who just could not resist latching onto our race.
It had been drizzling as I arrived at the circuit, but for the last 20 minutes of our race we were treated to glorious winter sunshine.  This appeared to relax everybody and the pace slowed right down.  The field was at least twice as large as it has been in recent weeks so as the race slowed and bunched it was hard to get by.
With 5 laps to go everybody decided simultaneoulsy it was time to move up the field so the pace distinctly quickened.  On the back straight of the final lap quite a few of us lost contact with the bunch.  With that number jostling in a sprint, there is always the risk of mishap; a few riders went off into the grass and one unfortunate rider fell heavily on the finishing straight.
26 miles in 01:05:40.  Average 24.3 mph.

While I was racing, a journalist was trying to contact me.  It sadly seems to require a high profile death before the editors of national newspapers are interest in cyclists' safety.  Keep an eye out for an article by Paul Bignell in tomorrow's Independant.

Imperial Winter Series Saturday 1st January 2011

This ought to have been the fifth in the series but due to the freezing weather has been only the second that has been run. Temperature 8°C with a light wind and persistent drizzle which combined with the mud on the circuit (cyclocross?) to leave riders and their bikes smeared brown from top to tyre.

I arrived in time to watch my two teammates in the 4th cat race start before readying myself for my race which started one hour later and was run simultaneously with the women’s race.

Not surprisingly, given that this was New Year’s Day, numbers were subdued and I guess there were about 20 on the start line. Perhaps we had all overindulged and undertrained over the Christmas period (I know I had) as, for the most part, a fairly sedate pace was set. We set off fast, hitting 30 mph on the second lap, and initially passed the ladies. However we then eased considerably getting in the way of the women, particularly one very strong rider who was on a solo break and travelling at a steady pace, passing us when we relaxed and being passed when we put in the occasional effort.

My aim again was to finish, and when the pace slowed again at 5 laps to go I thought, with nothing to lose, I might as well pull off the front and see what happened. Nothing did, and I was duly returned exhausted to the bunch and hung on in there to come in at the back of the bunch.

25.5 miles in 1h07m at an average of 22.8 mph.