Tuesday, August 07, 2007

Legality vs. decency

(Editor's note: This is the post I made over at Stubborn Facts yesterday, edited slightly to remove confusing references to SF).

I'd like to examine two situations that explore the boundary between "decent and fair" and "legally actionable."

The first will be a familiar one to most of you: the legal rights denied to gay couples by virtue of their inability to marry. The specific case comes to us from Indiana, via Holly over at the Moderate Voice.

Brett Conrad spent more than half his life as Patrick Atkins' partner. For 25 years, the men shared bank accounts, apartments and eventually a home in Fishers.

But when Atkins, 47, fell seriously ill in 2005, Conrad faced what many gay Hoosiers consider a travesty: no law guaranteeing them the same rights as married couples to participate in care decisions for their ill partners.

Conrad, 47, spent much of the past two years trying to win guardianship of Atkins from Atkins' parents, Thomas and Jeanne of Carmel. Jeanne Atkins is quoted in court documents as saying she believes homosexuality is a sin and that she disapproves of the men's relationship. The parents have barred Conrad from visiting their now-disabled son in their home where he lives.

Had they been able to marry, of course, there would have been no question about Conrad's rights to visitation, inheritance and ability to make medical decisions for his partner.

On the other hand, as the story points out, the men could have established those same rights by (for instance) granting each other power of attorney or naming each other their health-care representative.

The main difference is that the rights that accompany marriage are automatic, free and generally legally unassailable. The legal equivalents for nonmarried couples can be costly and subject to challenge in court -- and the rules can differ state by state, making travel a somewhat more fraught experience, as another couple relates later in the story:

For Kim Allman and Leisa Waggoner, disapproving families aren't the only threat to the layers of contracts in place to protect their assets, health and two children.

Waggoner, who adopted Allman's children, is painfully aware that when the family travels to Oklahoma to visit Allman's brother, state law there explicitly forbids her adoptive status.

"That would mean that if something happened to Kim (in Oklahoma), I could lose the kids," Waggoner said. "I'm scared."

Such cases are sympathetic, and a big reason why I think gay marriage -- or at least its legal equivalent, bestowed in a similarly automatic, free and unassailable manner -- should be legalized as a matter of simple human fairness.

But -- and this is the key point as far as this post goes -- in large measure that legalization has not yet happened. So however much I might sympathize with such couples, they do not yet have a legal case. If they sue in such situations they will likely lose, because the law has not established a foundation on which they can act. Their cases may prompt the creation of such a foundation, but that foundation doesn't yet exist.

Keep that in mind as I describe the second situation, outlined in a New York Times Magazine piece from a couple of weeks ago: the rising tide of workplace litigation over workers who want to take more time to care for their families without losing their jobs. It's well worth going behind the NYT firewall to read.

Some cases are relatively simple, like that of Kevin Knussman, a Maryland state trooper who sought leave during his wife's difficult pregnancy and again after the baby was born -- in both cases, leave that was explicitly allowed under the law. He was denied, he sued, and he won, because the legal foundation had been established.

But then there's the case of Lucia Kanter, who sought a reduced work schedule or a leave of absence in order to help care for her autistic son. She was turned down, and then she was fired -- in part, it seems, because of concerns that she couldn't handle the workload because of her son's problems.

She's a sympathetic figure: a mother trying to take care of her child. And it's easy to view her firing as the act of a callous and uncaring employer.

But there's a difference between "fair" and "legally actionable." Being a jerk is not a crime, and the employer has some legitimate concerns of its own. We all might agree, for instance, that the decent thing would have been for the employer to cut Kanter some slack and accommodate her needs. But should the employer be forced to do so through the law? Accommodation, after all, is not without cost to the employer. How much responsibility does a business bear for the personal travails of its employees?

To quote from one critic of the trend, Zachary Fasman (a partner in a New York law firm):

"I’m not against work-life balance — who is? But the organization of the work force has always been left, to a large extent, to the discretion of the employer. So long as it doesn’t discriminate, where a business draws the line on these things depends on the nature of the business. You can’t rewrite the rules of the American workplace unless Congress does it."

Fasman notes that an overemphasis on the right to accomodation could rob businesses of such basic practices as the right to require overtime or set work schedules, which could make it difficult or even impossible to properly operate the business.

He's a bit hyperbolic, of course, but his main point is correct. There are a lot of things that would be nice to do; but we should be careful about what people and businesses are legally required to do.

The last line of his quote, by the way, gets at the root of the problem. The increasing lawsuits are a symptom, indicating that workplace law and practice are out of step with the realities of modern living -- realities that have changed what people consider discrimination.

The market provides part of the solution, as enlightened employers change their practices in order to lure and keep employees. But not all employers are enlightened.

The legal system provides another partial remedy, applying updated interpretations to existing law. But such "fixes" tend to be patchwork and often increase murkiness rather than clarity.

The real fix is for Congress to establish clear, updated rules that spell out what sort of accommodation is required and what is not. That's a political process in which both employers and workers can have their say, not a legal process in which a sympathetic plaintiff can produce a result with unintendedly broad consequences.

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