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Aug 17, 2017 | 0 comments

Article 1: “American Apparel Founder Dov Charney Gives Odd Answer to Question about Having Sex with Employees”

According to the article, American Apparel founder Dov Charney, who left after a string of sexual harassment allegations from his own employees, had a strange response when asked if he was having sex with workers at his new clothing company, Los Angeles Apparel.

“That question is private, and it should be private,” Charney said recently in an interview with Bloomberg when asked if he was “going down the same path at Los Angeles Apparel and hooking up with employees.”

The interviewer then asked if Charney was being “more careful” at his new company. “You always have to be cautious in the lawsuit society that we’re in, you know. … I love the company, and I love the people I work with,” he responded.

“We’re very close and we’re holding hands and walking through the fire. We intend to be successful,” Charney added.

Charney was never charged or convicted for the sexual harassment claims brought against him, which included allegations from American Apparel board members that he kept kept graphic photographs of him having sex with staff members on company computers.

The company did end up settling cases with four models who claimed that Charney had either harassed or sexually assaulted them. Two models settled for $3.4 million dollars — the others’ were confidential.

Shortly after Charney left, American Apparel accused him of violating policies on harassment and retaliation against former employees.

“The company discovered voluminous evidence of Mr. Charney’s sexual liaisons with employees and models,” American Apparel said in court papers.
http://fortune.com/2017/07/12/american-apparel-dov-charney-los-angeles-apparel/

Discussion Questions

1. Define sexual harassment.

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment consists of:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or

b) Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or

c) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

2. As the article indicates, American Apparel, Mr. Charney’s former company, settled sexual harassment cases with four models who claimed that Charney had either harassed or sexually assaulted them. Two models settled for $3.4 million dollars — the others’ were confidential. Is this an admission of liability on the part of Mr. Charney and/or his former company? Why or why not?

Under most circumstances, litigation settlement does not constitute an admission of liability. In fact, most settlement agreements include language indicating that settlement is not an admission of liability. Sometimes, the terms of settlement agreements are disclosed (as was the situation in the subject case when two models settled with Mr. Charney and American Apparel for $3.4 million), and sometimes they are not (as was the situation for the other two models).

3. Assess Mr. Charney’s statement that we (in the United States) live in a “lawsuit society.”

Student responses may vary in response to this statement. Perhaps the inference here is that in the United States, individuals are “sue-happy” and are quick to litigate in order to “make a buck.” Such a generalized statement, however, dismisses the fact that many individuals have meritorious claims, and deserve their day in court before a trial jury, as guaranteed by the Bill of Rights to the United States Constitution.

Article 2: “How to Defend the Constitution When the KKK Comes to Town”

As a law professor, I usually explain free speech to my students by talking about when the Nazis tried to march in Skokie, Illinois in the late 1970s.

As many Americans are aware, a great deal of what most would call hate speech is protected by the First Amendment. The Nazis in Skokie are the classic case. In 1977, the National Socialist Party of America proposed to march in this predominantly Jewish community, home to many Holocaust survivors. The ACLU defended their right to wear Nazi uniforms and display swastikas, and courts upheld that right. The Nazis won (though they ultimately decided to march elsewhere).

Until now, I would have said there is no better illustration that the United States has the strongest speech protections in the world. But my new go-to illustration is Charlottesville, summer of 2017. I teach at the University Of Virginia School Of Law in Charlottesville, Virginia. Since the spring, when our city council voted to remove a prominent monument to Robert E. Lee and to rename parks containing the Lee statue and a monument to his fellow Confederate general Stonewall Jackson, Charlottesville has been the site of targeted demonstrations by neo-Nazis, white nationalists and, recently, the Ku Klux Klan.

I used to talk about freedom and its costs in terms of Skokie. This fall, when the students return, I will be talking about home.

As in Skokie, the demonstrations in Charlottesville have proved the strength of the First Amendment but also shown its steep cost. The Nazis chose Skokie precisely because its residents would find their message deeply offensive. Hate groups have targeted Charlottesville precisely because it voted to take down the monument, and because it is a community actively grappling with a thorny Confederate and Jim Crow past.

Not only that, but the Ku Klux Klan, neo-Nazis and white nationalists all reject a basic tenet of the American system: that all people are created equal. So why does our Constitution protect them?

Not because they deserve respect. In popular culture, people sometimes act as though “exercising my First Amendment rights” should earn them a pat on the back and, if not agreement, at least grudging respect. Nothing about the First Amendment requires that. We permit hate speech, but we need not respect it.

We also need not worry that we’re wrong in our lack of respect. Judge Learned Hand, quoting Oliver Cromwell, said that every courthouse and public building should have inscribed above its entrance, “Consider that ye may be wrong.” But there are certain facts that do not require hedging, and the fundamental equality of all people is one of them.

Free speech is also not, as some judges have argued, a safety valve that prevents bad actions. Racist and anti-Semitic speech is not the hallmark of an otherwise enlightened society. And anyone who thinks speech is a harmless safety valve has not pictured the combination of armed Klansmen, hundreds of angry counter-protestors, and a police force tasked with keeping order.

Whatever this is about, it isn’t safety.

The law offers two reasons to protect free speech, even in the face of social disgust or unrest. First, democracy may require it. After much wrestling, the courts concluded, in cases about socialists and communists, that a person does not have to agree with American values in order to get the protection of the First Amendment. The Constitution protects even those who would try to destroy it, up to the point of a clear and present danger. Otherwise, what we have are not legitimate democratic outcomes but manufactured consensus. On this view, democracy does not prevail if the Klan is censored. Democracy prevails if the Klan speaks and loses on the merits.

Second, the alternative is letting the government choose who can speak and who cannot. Given the government’s track record — not just the McCarthy era and the Red Scare but censorship of abolitionist pamphlets before the Civil War and Southern states’ attempts to shut down press coverage of the civil rights movement — maybe it is not outlandish to think it is better to let the Klan speak than to let the government decide who should.

But these reasons have their costs, and those costs are not borne equally. They fall disproportionately on African-American, Jewish, Muslim, and other minority members of the community. They are the ones who absorb these very public, very ugly assertions that they are worth less than other Americans.

They are the ones who get the message that these monuments were erected to be — and still are — symbols of white supremacy. When the KKK and neo-Nazis show up to defend “history” in a place with a legacy, like Charlottesville’s, for displacing its black residents, that message could not be clearer.

They are the ones who have to live with not only the message of these demonstrations but also the unpredictability of where all this is going. In the short term, the city is preparing for another rally of white nationalists on August 12. In the long term, the fact is that free speech is not free, and we do not split the check evenly.

One thing we must all do is be conscious of these costs. Another is to recognize that, in permitting all viewpoints, the First Amendment puts the responsibility on us to choose what to espouse and what to reject. All views are not equally good. It may be vital to the legitimacy of our system that we have the freedom to choose. It is vital to its survival that we choose wisely.
Note: This is an opinion piece written by Leslie Kendrick, Vice Dean and Albert Clark Tate Jr. Professor of Law at the University of Virginia. She has published widely on issues of free expression, particularly the scope and structure of free speech rights.

http://www.cnn.com/2017/07/12/opinions/free-speech-isnt-free-kendrick-opinion/index.html

Discussion Questions

1. Describe the First Amendment to the United States Constitution’s “free speech” clause.

As stated in the First Amendment to the United States Constitution, “Congress shall make no law…abridging the freedom of speech.” This is known as the free speech clause, and establishes the standard for freedom of expression in the United States.

2. Assess Ms. Kendrick’s statement that we (in the United States) “permit hate speech, but we need not respect it.” Do you agree or disagree with her assessment? Why or why not?

This is an opinion question, so student responses may vary. As defined by the American Bar Association, hate speech is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.

Hate speech is offensive to a reasonable person, yet the United States Supreme Court recognizes it as a form of speech protected by the First Amendment to the United States Constitution. With that being said, nowhere is it written that it must otherwise be respected.

3. According to the article, what are the two reasons the law protects free speech? In your reasoned opinion, which one of the two is a more compelling reason? Explain your response.

According to the article, the law offers two reasons to protect free speech, even in the face of social disgust or unrest. First, democracy may require it. As Ms. Kendrick indicates in her article, the United States Constitution “protects even those who would try to destroy it, up to the point of a clear and present danger. Otherwise, what we have are not legitimate democratic outcomes but manufactured consensus.” Second, the alternative is letting the government choose who can speak and who cannot. In a free society, the government should not be able to pick “winners and losers” with respect to freedom of speech.

Both reasons cited are interrelated and compelling reasons for the law to protect free speech, even speech that is offensive.

Article 3: “3-Year-Old in Body Cast after Visiting Trampoline Park”

According to the article, a 3-year-old Florida boy is in a cast from the waist down for an injury suffered while jumping at a trampoline park.

The case has circulated nationally on social media and raised questions about age restrictions for trampolines.

Kaitlin Hill said recently her son Colton broke his thigh bone late last month while bouncing on a trampoline at an indoor park in Tampa that promoted toddler use. She says the orthopedic surgeon told them the repetitive pressure from jumping may have caused the fracture.

Hill’s Facebook post warning other families not to allow their toddlers on trampolines has been shared more than 235,000 times.

“Our lives have been turned upside down since Colton’s accident and every day is a struggle for his sweet 3 year old self as he adjusts to life in a hip spica cast for the next 6 weeks,” she writes. “… We hope by sharing his story it will prevent a child and their family from experiencing the trauma and heartbreak associated with trampoline injuries in young children.”

The American Academy of Orthopedic Surgeons says children younger than 6 years old should not be allowed on trampolines.

A study published last year in Pediatrics found that emergency room visits in the U.S. for trampoline park-related injuries jumped more than ten-fold in recent years. An analysis showed that there were nearly 7,000 trampoline park-related injuries in 2014, compared to about 580 in 2010.

Most of the injuries were leg injuries, including strains and fractures, but some of the more serious injuries included two spinal cord injuries, a skull fracture, and open fractures.

The American Academy of Pediatrics recommends against recreational trampoline use by children altogether. But for those who do jump, the group advises a number of safety precautions, including constant adult supervision, protective padding on and around the trampoline, avoiding flips and somersaults, and allowing just one jumper on the trampoline at a time.

http://www.cbsnews.com/news/3-year-old-in-body-cast-after-visiting-trampoline-park/

Discussion Questions

1. Define negligence.

Negligence is the failure to do what a reasonable person would do under the same or similar circumstances. In order to prove a negligence case, the plaintiff must establish, by a preponderance of the evidence, the following:

a) The defendant owed the plaintiff a duty of reasonable care;

b) The defendant breached the recognized duty of care;

c) Such breach proximately caused the plaintiff’s harm; and

d) The plaintiff experienced damages (economic and/or physical) as a result of the defendant’s failure to exercise reasonable care.

Negligence is a civil cause of action, with the plaintiff having the legal right to sue the defendant in civil court to recover monetary damages.

2. Assess the negligence liability of the Tampa trampoline park for Colton Hill’s injuries.

Without further evidence (i.e., additional evidence beyond the information included in the article), it is difficult to assess the negligence liability of the trampoline park. Ultimately, negligence is a determination for the jury to make, with the plaintiff having the burden of proof.

As noted in the article, the American Academy of Orthopedic Surgeons says children younger than 6 years old should not be allowed on trampolines. Further, the American Academy of Pediatrics recommends against recreational trampoline use by children altogether. However, unless it becomes an industry standard for trampoline parks to ban young children from access to their facilities, it would be difficult to conclude that the individual trampoline park in Tampa was negligent simply by allowing the 3-year-old to be there.

Certain questions (and their answers) are obviously relevant to this case, including:

a. Does the Tampa trampoline park monitor those who use its facility, and if so, what is the extent of the monitoring?

b. Was Kaitlin Hill monitoring her son when the accident and injury occurred?

c. Did Kaitlin Hill sign a waiver of liability form on behalf of her child?

d. Did a defect in the equipment or otherwise on-site cause the accident and injury?

e. How many other individuals, particularly children, have been injured at the Tampa facility?

3. Define assumption of the risk. In terms of the negligence liability of the Tampa trampoline park for Colton Hill’s injuries, is assumption of the risk a strong defense in this case? Why or why not? Would evidence of the mother’s lack of due care for her child assist the trampoline park in the defense of this case? Explain your response.

Assumption of the risk is a defense to negligence liability. If a trial jury accepts the assumption of the risk defense, it is a complete defense to liability, meaning that the plaintiff recovers nothing from the defendant, even if the defendant was negligent.

Assumption of the risk is voluntarily and willing proceeding in the face of danger, knowing or having reason to know that injury could occur. Foreseeability is a key element of the assumption of the risk defense.

In the subject case, assumption of the risk is not a strong defense, since courts are reluctant to conclude that children can assume the risk. This is based on the premise that children do not have the mental capacity to appreciate the risk involved in a certain activity.

Evidence of the mother’s lack of due care for her child would not really be relevant in this case. Instead, if the case is tried, the trial court judge will instruct the jury to focus on whether the trampoline park owed a duty of care to the child, and if so, whether that duty of care was breached (based on the unique facts and circumstances of the case as revealed by the evidence introduced at trial).