Monday, August 14, 2017

Thoughts on the Charlottesville Violence

I have nothing good to say about the KKK, neo-Nazis, white supremacists, and their ilk, but they have every right to demonstrate and protest. As long as they are non-violent. Antifa has every right to demonstrate and protest. As long as they are non-violent. Protesters and counter-protesters have the same rights. As long as they are non-violent. Every protester and counter-protester has a right of self-defense when attacked. Who physically started yesterday’s melee is still unclear, but self-defense does not give James Alex Fields, Jr. any right to mow down protesters with his car. I have no idea what he was thinking, but he will have plenty of time for reflection in his life in prison, quite possibly on Death Row. Reports have also surfaced about his possible insanity. The scary thing about the Charlottesville violence is that it is becoming more common in the United States with the decline of civil discourse. More often it’s the left resorting to violence, be it at Berkeley, Chicago, Claremont McKenna, Davis, Evergreen State, Middlebury College, or Missouri. A pro-trump rally in Anaheim was attacked by anti-Trump protestors on May 25, 2016. Provocateurs were hired to disrupt Trump rallies last year. A Bernie Sanders supporter tried to assassinate Republican members of Congress in Alexandria, Virginia at a baseball practice on June 14, 2017. President Obama never referred to Radical Islam Terrorism, even calling the Fort Hood shootings “workplace violence.” Yet the media is throwing a hissy-fit because President Trump initially decried all acts of violence in Charlottesville rather than singling out the KKK, neo-Nazis and white supremacists. The failure in Charlottesville was the extreme pacificity, at least initially, by law enforcement. By way of comparison, the Seattle Police interposed themselves between the protesters and counter-protesters yesterday, reducing the risk of violence. Police forces should have learned from Berkeley, Baltimore, and Ferguson that failure to act decisively at the beginning leads to greater violence in these incidents. The city vehemently claims that no order was issued to the Charlottesville police to stand down. If so, they were poorly led, poorly prepared or poorly trained. The President of the University of Virginia, Mayor of Charlottesville, and Governor of Virginia all condemned the rally before it began, adding to the poisoned atmosphere in the city. The Mayor afterwards accused President Trump of being responsible for the violence.

Saturday, August 12, 2017

James Damone and Google's Sexism and Diversity

Silicon Valley has a reputation for discriminating against women in the technical and executive ranks. Sheryl Sandberg of Facebook and Meg Whitman of HP are exceptions, but an overall look at Amazon, Apple, Facebook, Google/Alphabet, and Microsoft shows male heavy employment. Google is roughly 80% male, mostly Caucasian and Asian, in its tech ranks, and 75% in leader positions. It is also fighting a federal investigation that claims it underpays women. Only 23% of Apple’s tech staff and 17% of FaceBook’s are female. The HBO series Silicone Valley focuses on men and gives actresses a secondary role. James Damone failed to understand that diversity of thought does not exist in the Academy, Hollywood, or Silicone Valley. Thought is fine as long as it comports with the accepted orthodoxy, which George Orwell/William H. White, Jr. called Group think, policed by the Thought Police. He penned a memo entitled: “Google’s Ideological Echo Chamber.” His memo cites several studies that show men and women think differently; that men are into things and women into people. He wrote that women in general have more empathy and neuroticism than men. His problem in the memo is that he stepped into the Harvard President Lawrence Summer’s infamous question: “Why are there fewer women in science?” James Damone answered that biological differences play a role in the lack of women in tech positions at Google. President Summer’s provocative answers cost him the Presidency of Harvard. He posited that innate or biological differences between men and women could explain the lack of female success in science and math. Married women with children might be unwilling to spend the long hours necessary for advancement. Let me add anecdotally that after 45 years of teaching law I have seen many incredible young women do it all: marriage, children, and the practice of law. Let me add that I have also seen many incredible young women sacrifice the practice of law to their family, raising children. I have not seen many incredible, young male lawyers sacrifice the law to be Mr. Mom. James Damone was careful to note that generalities do not apply to individuals, but he questioned the shibboleth of diversity and diversity training for the sake of diversity. He was concerned that Google’s diversity efforts were misdirected and ineffective, accompanied by the company’s “politically correct monoculture.” He wanted to start a dialogue within the company. The rigidity of thought in Silicon Valley is amazing because the Valley exemplifies the success of capitalism free from government regulation and rigidity. The orthodoxy leads to the Obama Administration trying to regulate the internet under. the guise of net neutrality. The Obama Administration through FBI Director James Comey tried to force Apple to unlock its users’ IPhones. Statism, the antithesis of capitalism, is how the EU is mugging Google, Apple, and other American innovative companies. Sundar Pichai, Google CEO overreacted by publicly firing Damone and then stating “We strongly believe in Googlers expressing themselves,” but Damone violated company policy “by advancing harmful gender stereotypes in our workplace.” He added: “To suggest a group of our colleagues have traits that make them less biologically suited to such work is offensive and not O.K.” That’s not what James Damone wrote. I’m sure the Google lawyers grimaced when they heard the CEO’s remarks. The standard statement for legal reasons is “We do not discuss personnel matters.” The United States follows the “employment at will” doctrine whereby absent a contract or legal restriction, such as Title VII of the Civil Rights Act of 1964, an employer can terminate an employee at any time for any reason, or no reason. In addition, the Freedom of Speech guarantees of the First Amendment only apply to the government and not to private parties. James Damone, like most employees, could thus be fired for his remarks without any legal cause of action. He wrote after his firing: “As far as I know, I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does.” Actually he doesn’t. However, when CEO Pichai publicly accused Damone of violating Google’s Code of Conduct, a cause of action for defamation could be pled, followed by extensive discovery. The process will be very painful for Google. Management has made it clear to Googlers that they are not to question the company’s diversity program. Damone’s memo was in response to that attitude. Some Google employees made it clear that they will record the names of fellow employees who support Damone or oppose the company’s diversity efforts, and then blacklist them. The new rule at Google is Group Thought. The merits of Damone’s memo are debatable, some saying it’s well researched and others questioning the research, as you might expect on such a volatile subject. Lost in the debate is that Damone was careful about warning against broad generalizations. Damone’s memo decried stereotyping, but that got lost in the coverage of his memo. I believe in judging people on their individual merits. The computing industry shows a number of women engineers who have achieved greatness, including Admiral Grace Hopper and NASA’s Katherine Johnson, Dorothy Vaughan, Mary Jackson and the other African American "computers" in Alabama made famous in Hidden Figures. They triumphed under incredible stress, starting with the deep racism in the South. Google’s problem is that James Damone started a dialogue, but CEO Pichai poured fuel on the fire by terminating James Dimone. Google will need to settle with James Damone for a large sum once the lawsuit is filed. The continuing debate will be costly to Google, not in monetary terms, but in employee morale and publicity. Google will become the punching bag for Silicon Valley sexism.

Sunday, August 6, 2017

Sex Discrimination in the Airline Industry Revisited 47 Years Later: Air India's 30 Year Old Anna Divya is the World's Youngest Boeing 777 Pilot

I smile when I see female pilots walking through airports. I don’t smile as often as I would like because they are still a rarity. Anna Divya, a 30 year old pilot for Air India, is now the youngest pilot, pilot – not co-pilot, pilot – not flight engineer, pilot – not flight attendant, of a Boeing 777. She has a large smile on her face. She accomplished her childhood dream of becoming a pilot. But why do I smile? It goes back to the summer of 1969. I was hired as a legal clerk for the 2 man firm of Darwin & Riordan in San Francisco. Jay Darwin was a pioneering labor law attorney going back to the days of the New Deal. One of the firm’s clients was Jan Dietrich (1926-2008), a well-qualified woman pilot. Jan and her twin sister Marion were among the group of 13 women, the Gemini 13, privately financed to complete the same tests as NASA’s Gemini 7 astronauts. The odds are that NASA never expected at that time that any of these women would be flown into space, but it was good publicity. Jan sought employment with Oakland based Word Airways, a charter operation. World denied Jan a position despite her qualifications because she was a woman. The airline told Jan the public wants pilots to be “tall, gray-haired men.” Unfortunately for World Airways, Congress had enacted title VII of the Civil Rights Act of 1964. Title VII forbad discrimination in employment based on sex, race, color, religion or national origin. The southern Senators tossed “sex” into the statute, hoping it would cause defeat of the bill aimed at racial discrimination in employment. They miscalculated. The bar on sex discrimination in employment is highly popular. The case settled on the courthouse steps with Jan flying for World Airways. My assignment was to do substantial research on the case. The research also led to a Labor Law Seminar paper my last semester in Law school. One of the sources of information for the paper in spring 1970 was the Soviet Embassy in Washington. I knew women pilots flew for Aeroflot and the Russian military. The embassy responded to my request with some published material, which I could quote. I don’t have any of the legal file on the case, but I also remember an affidavit by a retired brigadier general. He wrote women could not be relied upon in flying commercial airlines because once a month …. You get the drift. Far more pervasive and pernicious than the airline bans on woman pilots were their restrictions on stewardesses, and stewards, all now called flight attendants. Many of the domestic airlines were marketing glamorous young, single female stewardesses as the reason to fly their airline. “We really move our tail for you” was one such slogan for Continental Airlines. Another was “I’m Jo, Fly me” for National Airlines. Braniff Airlines promoted the designer dresses of their stewardesses. Here’s a quick summary of the restrictions: No male stewards, except on international flights All stewardesses must retire at age 35 Stewardesses could not be married or marry Pregnancy was verboten. Delta Airlines was an exception. Its stewardesses could make a career of flying for Delta. The flight attendant unions fought the restrictions and with the new Title VII behind them ultimately defeated them. My seminar paper was accepted for publication by the law review at the University of California Berkeley. The cite is “Sex Discrimination in the Airline Industry: Title VII Flying High,” 59 Cal. L. Rev. 1091 (1971). The article begins: “Women have historically been relegated to a secondary role in life. Cotemporary experience suggests that they may become legal secretaries, but rarely lawyers, secondary school teachers, but rarely university professors, airline stewardesses, but never pilots. The purpose of this article is to argue, based on examples of sexual discrimination in the airline industry, that society can and must change these existing patterns of unequal employment opportunities.” I am still proud of the wording of this intro. Ironically, the section on female pilots was edited out because of the length of the article. If any of the few readers of this blog are interested, I can send them an earlier draft of the article. Anna Divya, I salute you and Air India.

Tuesday, August 1, 2017

Have You Heard About the Trump Administration Assisting Ukraine Yesterday? Probably not?

Have you heard about the Trump Admin The ironies of 2017! The Trump Campaign has been accused of colluding with the Russians to defeat Hillary Clinton. The Clinton Campaign has been accused of colluding with the Ukrainians to defeat Donald Trump. The Russians announced the other day that they are kicking out 755 U.S. diplomats as Congress increases sanctions on Russia. President Trump said he will sign the Bill. So much for the alleged Trump-Russia d├ętente! President Reagan ran the “Bear” Commercial in his 1984 reelection campaign against Vice President Walter Mondale: “There is a bear in the woods. For some people, the bear is easy to see. Others don’t see it at all. Some people say the bear is tame. Others say he is vicious and dangerous. Since no one can really be sure who’s right, isn’t it smart to be a strong as the bear? – If there is a bear.” The Russian Bear hibernated after the fall of the Soviet Union. President Obama and his fellow Democrats refused to see the bear even when it was staring them in the face having emerged from hibernation. Governor Romney said during the 2012 Presidential debates that Russia is the greatest geopolitical foe of the United States. President Obama had a pithy response: “The 1980’s are now calling to ask for their foreign policy back because, you know, the Cold War has been over for 20 years.” He was caught on a hot mic before the election, telling Russia President Dmitri Medvedev that “After my election, I have more flexibility.” The media, which is so intent with its daily linking President Trump to a non-existent Russia collaboration, gave President Obama a pass. Russia invaded Georgia in August 2008, seizing South Ossetia and Abkhazia near the end of the Bush Administration. Russia invaded Ukraine in 2014 seizing full control of the Crimea, and sponsoring with Russian soldiers, tanks and armored vehicles Russia based “separatists” in the Doneysk, Luhansk, and Dombass regions of eastern Ukraine. Russia had violated the Budapest Memorandum on Security Assurances when it invaded Ukraine. Ukraine inherited a large army and supply of nuclear weapons when it achieved independence from the collapsing Soviet Union. As part of the nuclear non-proliferation movement, which has otherwise been a failure in Iran and North Korea, Ukraine gave up its nuclear arsenal in exchange for assurances of territorial integrity from Russia. It also leased Sevastopol in the Crimea to Russia for the Russian Black Sea Fleet. Ukraine traded its leverage for hallow promises from the Russian Bear, an erstwhile teachable moment. Russia is currently massing troops in “maneuvers” along both the Ukrainian border and the Baltic nations. President Obama responded to the Russian invasion of Ukraine by sending the Ukrainians MRE’s (meals ready to eat) when they requested military assistance. They are currently receiving some Humvees and drones from the United States. The Defense Department and State Department announced yesterday that they are considering sending defensive weapons to the Ukrainians; i.e. anti-tank weapons. The final decision would be up to President Trump. Russia quit Afghanistan when surface to air missiles started shooting their helicopters out of the air. The United States has many ways to make Russia pay for its naked aggression. The President also announced yesterdaythe sale of 700,000 tons of Pennsylvania thermal coal to Ukraine, displacing Russian coal. President Obama practiced a foreign policy of leading from behind, if not outright appeasement on occasion. President Trump has an activist approach to America’s foreign policy.