Reasonable Doubts: Dial "O" for Outrage

Tales from The Excuse Factory's cutting-room floor

One of the less friendly reviews of my book The Excuse Factory came from a leftish law professor who accused me of spending too much time on unusual cases from the frontiers of employment law, and further complained that I kept recounting such cases in "tones of incredulity."

I'm sorry. I've tried, I really have, but I just can't repress those tones of incredulity. In fact I wish I could have included even more of the bizarre cases I kept running into while researching the book.

For instance, I regret that there wasn't room to tell about the Oregon woman who sued after co-workers kept leaving rubber spiders on her desk. A jury voted her a large award, most of which was later thrown out when an appeals court ruled that she had failed to establish that she "was terminated for resisting harassment relating to her spider phobia."

Nor was there space to discuss what happened after the University of Connecticut's athletics department was accused of wrongfully insisting on petiteness in its cheerleading squad, thus violating the rights of plumper pom-pom wavers. Yielding to the legal pressure, school authorities announced plans to abandon a popular "human toss" routine and decreed that pyramid formations would henceforth be limited to two levels high.

And with the book approaching 400 pages, I likewise had to omit any mention of the job applicant who filed an official complaint after being turned down on medical grounds. "I have a microchip embedded in one of my molars," explained the complainant, which "speaks to me and others." "You have to remember," said a spokeswoman for the local human rights agency about the decision to launch an investigation, "what's crazy to you might not be crazy to someone else." (The case actually did make history in its way: The late columnist Mike Royko made such merciless fun of it that the federal Equal Employment Opportunity Commission dropped its practice of insisting that every bias complaint be investigated, however dubious.)

With the pundit class stuck on Monica, Monica, Monica 'round the clock, this is hardly the time to attempt a serious column, so let's head down to the archives for a tour of a few cases that got away.

Some lawsuits fascinated me, though I was never sure what point they proved or which side I favored. New York law instructed local police forces to give preference to recruits in their 20s–they're physically fitter and likelier to stay on duty long enough to justify their training costs. A court knocked down that policy as inconsistent with the (then) state of federal age-discrimination law, with the result that it became unlawful for local governments to turn away middle-aged rookies. There was a twist, however: The Age Discrimination in Employment Act protects only workers who've reached their 40th birthday. This left John Doyle and numerous other applicants hanging: They were too old for Suffolk County's 29-year-old cutoff, but too young to invoke the ADEA.

Inconsistent? Maybe, but not to worry, said the U.S. Court of Appeals for the 2nd Circuit, ruling that the county could lawfully turn away Doyle himself even as it was being forced to accept older applicants who–both the county and Doyle agreed–were less suitable recruits than he was. After all, the court pointed out, the county's wish to favor younger applicants was wholly rational, even if, thanks to the ADEA, it was no longer allowed to act on that rational wish with respect to a wide sector of the work force. And Doyle's consolation was the knowledge that he could mark time in some less desired job until he turned 40, at which point–though he'd be less fit and several years closer to pensionability–the county would presumably have to hire him as a cop after all.

Other cases I discarded on grounds of overkill or redundancy. To establish the proposition that some civil servants are so well dug into their jobs that even convicting them of crimes isn't enough to get them out, I felt one real-life example would suffice, and used the one about the New York City teacher convicted of selling drugs (from his school office, according to the authorities) who kept drawing his salary even while he served time upstate in prison. That meant omitting cases like that of the Minneapolis cop who, thanks to a civil service commission's ruling in his favor, stayed at his beat by day even as he served nights in a nearby Wisconsin jail; the well-placed official found to be still at his desk at the U.S. State Department two years after getting convicted of attempted extortion; and the two prominent District of Columbia officials who wouldn't give up their jobs in the housing department despite felony convictions on bribe-taking charges: "All civil avenues open to her will be explored in contesting her termination," said the attorney for one of them.

There wasn't room for a proper chapter tracing the effects of OSHA and similar workplace-safety agencies, so there went the lovely vignette, lifted from Dan Seligman's much-missed "Keeping Up" column in Fortune, about how regulation has gradually suppressed the one-man "backyard" mines that used to be found in mountain areas. "Twice a month I was to search myself for cigarettes and matches before I entered the mine," said Ralph Bloom, who finally closed his all-by-his-lonesome coal operation after 37 years. "Then I was supposed to check in and check out, so I'd know if I was in or out of the mine."

And with only the briefest space in which to explain the principle of legal entitlement to dollars for workplace stress–say, the stress of being yelled at by a supervisor for muffing one's job–there was no time to explore some of the more imaginative exploiters of the trend. These include the various cops who've filed for disability based on the stress they incurred by committing brutal beatings or other misconduct and the wealthy California physician who collected disability checks from his prison cell to cover the stress of being jailed (his reasoning being that the imprisonment–for his role in an $8 million insurance scam–had after all arisen in the course of his professional activities).

Like the Balkans, whose tragedy is said to be that they produce more history than can be consumed locally, some cities and states seem to generate more noteworthy cases than are needed to entertain their own local talk-show audiences. Philadelphia, long famous for civil service excesses, took 10 years to shed a school employee who was late to work nearly every day, and who'd spent the entire period under (remarkably unsuccessful) psychiatric care aimed at remedying his "neurotic compulsion for lateness." On the other hand, the city failed to dismiss (though it did succeed in transferring to a less-demanding agency) an employee whose chronic absences over years were occasioned by his habit of going off to play pinball and video games. The union argued in its grievance that his fondness for the arcades counted as a gambling addiction and was thus a protected handicap.

Then there's Massachusetts, where, according to Howie Carr in the Boston Herald, the state Commission Against Discrimination (MCAD) is known for the openhandedness with which it dispenses emotional-distress awards to those who've suffered workplace setbacks and upsets: $15,000 in emotionals to a seven-months-pregnant woman who got turned down for a job as a bartender; $20,000 against a company that declined to hire as an auto mechanic a man who was legally blind when not wearing glasses and who had no driver's license; $25,000 to a would-be policeman who was completely deaf in one ear; $25,000 to a female cop left at the station while huskier male colleagues were sent on a drug raid; and so forth.

MCAD complainants often lay claim to extreme psychic distress even in cases where you'd think a certain amount of roll-with-the-punches mental stoicism would be a prerequisite for the jobs they were after. For example, after being turned down for a police job in the town of Salem, Charles Brown was awarded $100,000 in emotionals after testifying that he burst into tears when he so much as saw a cop on the street–leaving townspeople to wonder how he might react if some bad guy were actually to shoot at him. Though an attorney for the town complained that he'd never sought counseling and offered no medical evidence for his claims, Brown's attorney said his word should be enough: "He explained the distress he suffered, and it was real."

"The rest of my life," Errol Flynn is supposed to have said as he entered his final decline, "will be devoted to women and litigation," a sentiment that brings us back to Bill Clinton and Zippergate. It seems hard to imagine that just a year or two ago, before the Lewinsky affair brought the standards of public discussion down with such a thump, it still seemed too crude or undignified to air the details of such harassment disputes as Priest v. Rotary (Northern District of California, 1986: "exposed his undershorts which were covered with red hearts") or Jones v. Flagship International (5th Circuit, 1986: caterer's ice sculpture of blouseless mermaid), cases that I suppose these days they're dramatizing on Nickelodeon.

The fact remains that Bill Clinton's lawyers would have had a better idea of what to expect from the Employment Lawsuit That Ate Washington if they'd skipped the dull theoretical treatises purporting to prove the rationality of America's litigation system and instead read through a pile of horror stories. For a model of what happens when lawyers are invited to probe for wider and wider evidence of wrongdoing, check out Cooley v. Carmike Cinemas, which reached a Tennessee federal court in 1994. Cooley, an older manager fired from a movie theater chain, had some pretty decent evidence to back up his claim of age discrimination. But just as the law fatefully defines as relevant to Paula Jones's case President Clinton's relations with all other women not his wife, so the court permitted Cooley's lawyers to start compiling a rather adventuresome dossier of the thoughts and sayings and deeds of the company's brash, 44-year-old CEO, Michael Patrick–all aimed at showing that Patrick was a bad actor when it came to the elderly, any elderly.

Duly admitted into evidence, for instance, were allegations that Patrick had once expressed fears that his sexual performance would decline as he got older (evidence, no doubt, of a propensity toward stereotyping), that he'd once complained about having to spend Thanksgiving Day with his grandmother ("I don't like to be around old people"), and that back in 1968–at the age of 18!–he'd gone to see the movie Wild in the Streets and commented, "Yeah, I believe that. Everybody over 30 years old needs to be put in a pen." Helpfully, the court opinion footnoted Leonard Maltin's TV Movies and Video Guide ("dark satire about [a] millionaire singing idol/drug pusher who is elected President after [the] voting age is lowered to 14"). It seemingly dismissed the possibility that Patrick might have reconsidered his views in the more than two decades since he'd delivered the flip remark–especially since he'd long since turned 30 himself.

In approving Cooley's $500,000 verdict, the 6th Circuit declared that such remarks "help to reveal [Patrick's] state of mind and reflect a deep-rooted, ongoing pattern"–much as Congress (in a law signed by Bill Clinton, no less) yielded to feminists' demands and agreed to expose to litigators' probes the broad sexual history of men accused of harassment, thus ensuring that a claim of unconsenting crudity (in the Jones case) could cast a relevance net wide enough to reach the president's entirely consensual relations with Monica Lewinsky, thus allowing the Jones lawyers to force him into a perjury trap.

For pretty much their whole careers, Bill and Hillary Clinton have hung out with the kind of crowd that tends to admire litigation as a wonderful engine of social progress and dismisses resistance and public outrage as a matter of mere "horror stories." Do you think they'll change their views now that it's happened to them?