#refusing to work with me to identify and enact an accommodation

[thepoisonroom]

can i make a post about being irritated by antimaskers as a disabled person without annoying people trying to condescendingly explain accommodations for my disability to me! btw!

[ckc4me]

The following is a guest column by Australian academic Simon Springer, a geographer/anarchist. The title of the essay leaves little doubt about his attitude towards the pseudo-progressive ideology that currently infects the Democratic Party and which, under different disguises, is rapidly enslaving much of the world. It is not too much to say that unless the Democratic Party purges itself of this malicious Corporatist infection, it is likely to go the way of the Whig Party; hopefully some party which is truly on the side of working men and women will replace it. We don’t need two parties dedicated to enriching the 1% at the expense of the rest of the country; in the best of all scenarios, the GOP would also wither away and be replaced by a party more in the spirit of Abraham Lincoln. This essay does not discuss Neo-Liberalism’s evil twin, Neo-Conservatism, but I gather from his other published works that professor Springer is not a fan of that poison apple either. This essay is republished through Creative Common license and I claim no ownership or copyright of it. I do not necessarily agree with all the author’s opinions, but I believe his views are worth airing on as many forums as possible. You can contact the author through the Academia.edu portal or via his website.  

Fuck Neoliberalism

Simon Springer

Department of Geography, University of Victoria simonspringer@gmail.com Abstract: Yep, fuck it. Neoliberalism sucks. We don’t need it. Keywords: fuck neoliberalism; fuck it to hell

Fuck Neoliberalism. That’s my blunt message. I could probably end my discussion at this point and it wouldn’t really matter. My position is clear and you likely already get the gist of what I want to say. I have nothing positive to add to the discussion about neoliberalism, and to be perfectly honest, I’m quite sick of having to think about it. I’ve simply had enough. For a time I had considered calling this paper ‘Forget Neoliberalism’ instead, as in some ways that’s exactly what I wanted to do. I’ve been writing on the subject for many years (Springer 2008, 2009, 2011, 2013, 2015; Springer et al. 2016) and I came to a point where I just didn’t want to commit any more energy to this endeavor for fear that continuing to work around this idea was functioning to perpetuate its hold. On further reflection I also recognize that as a political maneuver it is potentially quite dangerous to simply stick our heads in the sand and collectively ignore a phenomenon that has had such devastating and debilitating effects on our shared world. There is an ongoing power to neoliberalism that is difficult to deny and I’m not convinced that a strategy of ignorance is actually the right approach (Springer 2016a). So my exact thoughts were, ‘well fuck it then’, and while a quieter and gentler name for this paper could tone down the potential offence that might come with the title I’ve chosen, I subsequently reconsidered. Why should we be more worried about using profanity than we are about the actual vile discourse of neoliberalism itself? I decided that I wanted to transgress, to upset, and to offend, precisely because we ought to be offended by neoliberalism, it is entirely upsetting, and therefore we should ultimately be seeking to transgress it. Wouldn’t softening the title be making yet another concession to the power of neoliberalism? I initially worried what such a title might mean in terms of my reputation. Would it hinder future promotion or job offers should I want to maintain my mobility as an academic, either upwardly or to a new location? This felt like conceding personal defeat to neoliberal disciplining. Fuck that.

It also felt as though I was making an admission that there is no colloquial response that could appropriately be offered to counter the discourse of neoliberalism. As though we can only respond in an academic format using complex geographical theories of variegation, hybridity, and mutation to weaken its edifice. This seemed disempowering, and although I have myself contributed to the articulation of some of these theories (Springer 2010), I often feel that this sort of framing works against the type of argument I actually want to make. It is precisely in the everyday, the ordinary, the unremarkable, and the mundane that I think a politics of refusal must be located. And so I settled on ‘Fuck Neoliberalism’ because I think it conveys most of what I actually want to say. The argument I want to make is slightly more nuanced than that, which had me thinking more about the term ‘fuck’ than I probably have at any other time in my life. What a fantastically colorful word! It works as a noun or a verb, and as an adjective it is perhaps the most used point of exclamation in the English language. It can be employed to express anger, contempt, annoyance, indifference, surprise, impatience, or even as a meaningless emphasis because it just rolls off of the tongue. You can ‘fuck something up’, ‘fuck someone over’, ‘fuck around’, ‘not give a fuck’, and there is a decidedly geographical point of reference to the word insofar as you can be instructed to ‘go fuck yourself’. At this point you might even be thinking ‘ok, but who gives a fuck?’ Well, I do, and if you’re interested in ending neoliberalism so should you. The powerful capacities that come with the word offer a potential challenge to neoliberalism. To dig down and unpack these abilities we need to appreciate the nuances of what could be meant by the phrase ‘fuck neoliberalism’. Yet at the same time, fuck nuance. As Kieran Healy (2016: 1) has recently argued, it “typically obstructs the development of theory that is intellectually interesting, empirically generative, or practically successful”. So without fetishizing nuance let’s quickly work through what I think we should be prioritizing in fucking up neoliberalism.

The first sense is perhaps the most obvious. By saying ‘fuck neoliberalism’ we can express our rage against the neoliberal machine. It is an indication of our anger, our desire to shout our resentment, to spew venom back in the face of the noxious malice that has been shown to all of us. This can come in the form of mobilizing more protests against neoliberalism or in writing more papers and books critiquing its influence. The latter preaches to the converted, and the former hopes that the already perverted will be willing to change their ways. I don’t discount that these methods are important tactics in our resistance, but I’m also quite sure that they’ll never actually be enough to turn the tide against neoliberalism and in our favour. In making grand public gestures of defiance we attempt to draw powerful actors into a conversation, mistakenly believing that they might listen and begin to accommodate the popular voice of refusal (Graeber 2009). Shouldn���t we instead be done talking? Here is the second sense of ‘fuck neoliberalism’, which is found in the notion of rejection. This would be to advocate for the end of neoliberalism (as we knew it) in a fashion advanced by J.K. GibsonGraham (1996) where we simply stop talking about it. Scholars in particular would discontinue prioritizing it as the focus of their studies. Maybe not completely forget about it or ignore neoliberalism altogether, which I’ve already identified as problematic, but to instead set about getting on with our writing about other things. Once again this is a crucially important point of contact for us as we work beyond the neoliberal worldview, but here too I’m not entirely convinced that this is enough. As Mark Purcell (2016: 620) argues, “We need to turn away from neoliberalism and towards ourselves, to begin the difficult – but also joyous – work of managing our affairs for ourselves”. While negation, protest and critique are necessary, we also need to think about actively fucking up neoliberalism by doing things outside of its reach.

Direct action beyond neoliberalism speaks to a prefigurative politics (Maeckelbergh 2011), which is the third and most important sense of what I think we should be focusing on when we invoke the idea ‘fuck neoliberalism’. To prefigure is to reject the centrism, hierarchy, and authority that come with representative politics by emphasizing the embodied practice of enacting horizontal relationships and forms of organization that strive to reflect the future society being sought (Boggs 1977). Beyond being ‘done talking’, prefiguration and direct action contend that there was never a conversation to be had anyway, recognizing that whatever it is we want to do, we can just do it ourselves. Nonetheless, there has been significant attention to the ways in which neoliberalism is able to capture and appropriate all manner of political discourse and imperatives (Barnett 2005; Birch 2015; Lewis 2009; Ong 2007). For critics like David Harvey (2015) only another dose of the state can solve the neoliberal question, where in particular he is quick to dismiss non-hierarchical organization and horizontal politics as greasing the rails for an assured neoliberal future. Yet in his pessimism he entirely misunderstands prefigurative politics, which are a means not to an end, but only to future means (Springer 2012). In other words, there is a constant and continual vigilance already built into prefigurative politics so that the actual practice of prefiguration cannot be coopted. It is reflexive and attentive but always with a view towards production, invention, and creation as the satisfaction of the desire of community. In this way prefigurative politics are explicitly anti-neoliberal. They are a seizing of the means as our means, a means without end. To prefigure is to embrace the conviviality and joy that comes with being together as radical equals, not as vanguards and proletariat on the path towards the transcendental empty promise of utopia or ‘no place’, but as the grounded immanence of the here and now of actually making a new world ‘in the shell of the old’ and the perpetual hard work and reaffirmation that this requires (Ince 2012).

There is nothing about neoliberalism that is deserving of our respect, and so in concert with a prefigurative politics of creation, my message is quite simply ‘fuck it’. Fuck the hold that it has on our political imaginations. Fuck the violence it engenders. Fuck the inequality it extols as a virtue. Fuck the way it has ravaged the environment. Fuck the endless cycle of accumulation and the cult of growth. Fuck the Mont Pelerin society and all the think tanks that continue to prop it up and promote it. Fuck Friedrich Hayek and Milton Friedman for saddling us with their ideas. Fuck the Thatchers, the Reagans, and all the cowardly, self-interested politicians who seek only to scratch the back of avarice. Fuck the fear-mongering exclusion that sees ‘others’ as worthy of cleaning our toilets and mopping our floors, but not as members of our communities. Fuck the ever-intensifying move towards metrics and the failure to appreciate that not everything that counts can be counted. Fuck the desire for profit over the needs of community. Fuck absolutely everything neoliberalism stands for, and fuck the Trojan horse that it rode in on! For far too long we’ve been told that ‘there is no alternative’, that ‘a rising tide lifts all boats’, that we live in a Darwinian nightmare world of all against all ‘survival of the fittest’. We’ve swallowed the idea of the ‘tragedy of the commons’ hook, line and sinker; when in reality this is a ruse that actually reflects the ‘tragedy of capitalism’ and its endless wars of plunder (Le Billon 2012). Garrett Hardin’s (1968) Achilles’ heel was that he never stopped to think about how grazing cattle were already privately owned. What might happen when we reconvene an actual commons as a commons without presuppositions of private ownership (Jeppesen et al. 2014)? What might happen when we start to pay closer attention to the prefiguration of alternatives that are already happening and privileging these experiences as the most important forms of organization (White and Williams 2012)? What might happen when instead of swallowing the bitter pills of competition and merit we instead focus our energies not on medicating ourselves with neoliberal prescriptions, but on the deeper healing that comes with cooperation and mutual aid (Heckert 2010)?

Jamie Peck (2004: 403) once called neoliberalism a ‘radical political slogan’, but it is no longer enough to dwell within the realm of critique. Many years have passed since we first identified the enemy and from that time we have come to know it well through our writing and protests. But even when we are certain of its defeat, as in the aftermath of the 2008 financial crisis and the subsequent Occupy Movement, it continues to gasp for air and reanimate itself in a more powerful zombified form (Crouch 2011; Peck 2010). Japhy Wilson (2016) calls this ongoing power the ‘neoliberal gothic’, and I’m convinced that in order to overcome this horror show we must move our politics into the realm of the enactive (Rollo 2016). What if ‘fuck neoliberalism’ were to become a mantra for a new kind of politics? An enabling phrase that spoke not only to action, but to the reclamation of our lives in the spaces and moments in which we actively live them?

What if every time we used this phrase we recognized that it meant a call for enactive agency that went beyond mere words, combining theory and practice into the beautiful praxis of prefiguration? We must take a multipronged approach in our rejection of neoliberalism. While we can’t entirely ignore or forget it, we can actively work against it in ways that extend beyond the performance of rhetoric and the rhetoric of performance. By all means let’s advance a new radical political slogan. Use a hashtag (#fuckneoliberalism) and make our contempt go viral! But we have to do more than express our indignation. We have to enact our resolve and realize our hope as the immanence of our embodied experiences in the here and now (Springer 2016a). We need to remake the world ourselves, a process that cannot be postponed.

We’ve willfully deluded and disempowered ourselves by continuing to appeal to the existing political arrangement of representation. Our blind faith has us waiting endlessly for a savior to drop from the sky. The system has proven itself to be thoroughly corrupt, where time and time again our next great political candidate proves to be a failure. In this neoliberal moment it’s not a case of mere problematic individuals being in power. Instead, it is our very belief in the system itself that epitomizes the core of the problem. We produce and enable the institutional conditions for ‘the Lucifer effect’ to play itself out (Zimbardo 2007). ‘The banality of evil’ is such that these politicians are just doing their jobs in a system that rewards perversions of power because it is all designed to serve the laws of capitalism (Arendt 1971). But we don’t have to obey. We’re not beholden to this order. Through our direct action and the organization of alternatives we can indict the entire structure and break this vicious cycle of abuse. When the political system is defined by, conditioned for, enmeshed within, and derived from capitalism, it can never represent our ways of knowing and being in the world, and so we need to take charge of these lifeways and reclaim our collective agency. We must start to become enactive in our politics and begin embracing a more relational sense of solidarity that recognizes that the subjugation and suffering of one is in fact indicative of the oppression of all (Shannon and Rouge 2009; Springer 2014). We can start living into other possible worlds through a renewed commitment to the practices of mutual aid, fellowship, reciprocity, and non-hierarchical forms of organization that reconvene democracy in its etymological sense of power to the people. Ultimately neoliberalism is a particularly foul idea that comes with a whole host of vulgar outcomes and crass assumptions. In response, it deserves to be met with equally offensive language and action. Our community, our cooperation, and our care for one another are all loathsome to neoliberalism. It hates that which we celebrate. So when we say ‘fuck neoliberalism’ let it mean more that just words, let it be an enactment of our commitment to each other. Say it loud, say it with me, and say it to anyone who will listen, but most of all mean it as a clarion call to action and as the embodiment of our prefigurative power to change the fucking world. Fuck Neoliberalism!

 Acknowledgements

I owe my title to Jack Tsonis. He wrote me a wonderful email in early 2015 to introduce himself with this message as the subject line. Blunt and to the point. He told me about his precarious position at the University of Western Sydney where he was trapped in sessional hell. Fuck neoliberalism indeed. Jack informs me that he has since gained employment that is less precarious, but seeing the beast up close has made him more disgusted and repulsed than ever. Thanks for the inspiration mate! I’m also grateful to Kean Birch and Toby Rollo who listened to my ideas and laughed along with me. Mark Purcell motivated greatly with his brilliant delight in thinking beyond neoliberalism. Thanks to Levi Gahman whose playful spirit and support demonstrated an actual prefiguration of the kinds of ideas I discuss here (“Listen Neoliberalism!” A Personal Response to Simon Springer’s “Fuck Neoliberalism”). Peer reviews from Farhang Rouhani, Patrick Huff and Rhon Teruelle demonstrated tremendous unanimity giving me reason to believe that there is still some fight left in the academy! Special thanks to the translators Xaranta Baksh (Spanish), Jai Kaushal and Dhiraj Barman (Hindi), Ursula Brandt (German), Fabrizio Eva (Italian), anonymous contributor (French), Eduardo Tomazine (Portuguese), Haris Tsavdaroglou (Greek), Sayuri Watanabe (Japanese) and Gürçim Yılmaz (Turkish), as well as Marcelo Lopes de Souza, Myriam Houssay-Holzschuch, Ulrich Best, and Adam Goodwin for helping to organize the translations. Finally, thanks to the many people who so kindly took the time to write to me about this essay and express their solidarity after I first uploaded it to the Internet. I’m both humbled and hopeful that so many people share the same sentiment. We will win!

References

Arendt, H. (1971). Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Viking Press. Barnett, C. (2005). The consolations of ‘neoliberalism’. Geoforum, 36(1), 7-12. Birch, K. (2015). We Have Never Been Neoliberal: A Manifesto for a Doomed Youth. Alresford: Zero Books. Boggs, C. (1977). Marxism, prefigurative communism, and the problem of workers’ control. Radical America, 11(6), 99-122. Crouch, C. (2011). The Strange Non-Death of Neoliberalism. Malden, MA: Polity Press Gibson-Graham, J. K. (1996). The End of Capitalism (as We Knew It): A Feminist Critique of Political Economy. Minneapolis: University of Minnesota Press. Graeber, D. (2009). Direct Action: An Ethnography. Oakland: AK Press. Hardin, G. (1968). The tragedy of the commons. Science, 162(3859), 1243-1248. Harvey, D. (2015). “Listen, Anarchist!” A personal response to Simon Springer’s “Why a radical geography must be anarchist”. DavidHarvey.org. http://davidharvey.org/2015/06/listen-anarchist-by-david-harvey/ Healy, K. (2016) Fuck nuance. Sociological Theory. https://kieranhealy.org/files/papers/fuck-nuance.pdf Heckert, J. (2010). Listening, caring, becoming: anarchism as an ethics of direct relationships. In Franks, B. (ed.). Anarchism and Moral Philosophy. New York: Palgrave Macmillan, pp. 186-207. Ince, A. (2012). In the shell of the old: Anarchist geographies of territorialisation. Antipode, 44(5), 1645-1666. Jeppesen, S., Kruzynski, A., Sarrasin, R., & Breton, É. (2014). The anarchist commons. Ephemera, 14(4), 879-900. Le Billon, P. (2012). Wars of Plunder: Conflicts, Profits and the Politics of Resources. New York: Columbia University Press. Lewis, N. (2009). Progressive spaces of neoliberalism?. Asia Pacific Viewpoint, 50(2), 113-119. Maeckelbergh, M. (2011). Doing is believing: Prefiguration as strategic practice in the alterglobalization movement. Social Movement Studies, 10(1), 1-20. Ong, A. (2007). Neoliberalism as a mobile technology. Transactions of the Institute of British Geographers, 32(1), 3-8. Peck, J. (2004). Geography and public policy: constructions of neoliberalism. Progress in Human Geography, 28(3), 392-405. Peck, J. (2010). Zombie neoliberalism and the ambidextrous state. Theoretical Criminology, 14(1), 104-110. Purcell, M. (2016). Our new arms. In Springer, S., Birch, K. and MacLeavy, J. (eds.). The Handbook of Neoliberalism. New York: Routledge, pp. 613-622. Rollo, T. (2016). Democracy, agency and radical children’s geographies. In White, R. J., Springer, S. and Souza, M. L. de. (eds.). The Practice of Freedom: Anarchism, Geography and the Spirit of Revolt. Lanham, MD: Rowman & Littlefield. Shannon, D. and Rouge, J. (2009) Refusing to wait: anarchism and tntersectionality. Anarkismo. http://anarkismo.net/article/14923 Springer, S. (2008). The nonillusory effects of neoliberalisation: Linking geographies of poverty, inequality, and violence. Geoforum, 39(4), 15201525. Springer, S. (2009). Renewed authoritarianism in Southeast Asia: undermining democracy through neoliberal reform. Asia Pacific Viewpoint, 50(3), 271276. Springer, S. (2010). Neoliberalism and geography: Expansions, variegations, formations. Geography Compass, 4(8), 1025-1038. Springer, S. (2011). Articulated neoliberalism: the specificity of patronage, kleptocracy, and violence in Cambodia’s neoliberalization. Environment and Planning A, 43(11), 2554-2570. Springer, S. (2012). Anarchism! What geography still ought to be. Antipode, 44(5), 1605-1624. Springer, S. (2013). Neoliberalism. The Ashgate Research Companion to Critical Geopolitics. Eds. K. Dodds, M. Kuus, and J. Sharp. Burlington, VT: Ashgate, pp. 147-164. Springer, S. (2014). War and pieces. Space and Polity, 18(1), 85-96. Springer, S. (2015). Violent Neoliberalism: Development, Discourse and Dispossession in Cambodia. New York: Palgrave MacMillan. Springer, S. (2016 a) The Anarchist Roots of Geography: Toward Spatial Emancipation. Minneapolis, MN: University of Minnesota Press. Springer, S. (2016 b) The Discourse of Neoliberalism: An Anatomy of a Powerful Idea. Lanham, MD: Rowman & Littlefield. Springer, S., Birch, K. and MacLeavy, J. (2016) An introduction to neoliberalism. In Springer, S., Birch, K. and MacLeavy, J. (eds.). The Handbook of Neoliberalism. New York: Routledge, pp. 1-14. White, R. J., and Williams, C. C. (2012). The pervasive nature of heterodox economic spaces at a time of neoliberal crisis: towards a “postneoliberal” anarchist future. Antipode, 44(5), 1625-1644. Wilson, J. (2016). Neoliberal gothic. In Springer, S., Birch, K. and MacLeavy, J. (eds.). The Handbook of Neoliberalism. New York: Routledge, pp. 592-602. Zimbardo, P. (2007). The Lucifer Effect: Understanding How Good People Turn Evil. New York: Random House.

The GOP is all lied out from the election; meanwhile the Dems need to keep from going over the “cliff” in January, Can the two parties work together to prevent another recession or will partisan ideology trump the common good?

FUCK NEOLIBERALISM The following is a guest column by Australian academic Simon Springer, a geographer/anarchist. The title of the essay leaves little doubt about his attitude towards the pseudo-progressive ideology that currently infects the Democratic Party and which, under different disguises, is rapidly enslaving much of the world.

[evelynfrese]

EMPLOYEE RIGHTS AND THE CORONAVIRUS (COVID-19)

EMPLOYEE RIGHTS AND THE CORONAVIRUS (COVID-19)

The coronavirus or COVID-19 has brought increasingly unsettling work situations for millions of people throughout the United States. These are challenging times for all of us but that challenge does not allow employers to unlawfully deprive employees of their employment rights. The attorneys at Wiggins, Childs, Pantazis, Fisher, & Goldfarb are determined to continue to protect people’s employment rights. We have prepared a set of FAQs to explain how federal, state, and local laws can protect your job, your wages, and your livelihood.

Frequently Asked Questions

Do I have any protections if I’m going through hardships due to the coronavirus outbreak?

Congress passed the Coronavirus Aid, Relief, And Economic Security Act (“CARES”), that was signed into law by the President on March 27, 2020.  The CARES Act contains numerous provisions concerning public health and welfare, and direct economic aid to businesses and individuals alike.  In addition, the CARES Act contains some important protections for consumers who may be facing the economic effects of the COVID-19 pandemic.  Among those protections are:

Mortgage Relief: About two-thirds of all mortgages are federally backed.  If yours is, a mortgage company or servicer may not initiate foreclosure proceedings for a sixty-day period beginning March 18, 2020.  Moreover, a homeowner with a federally backed mortgage may request and obtain forbearance from mortgage payments for up to180 days.  You can determine if your mortgage is federally backed by looking it up at https://ww3.freddiemac.com/loanlookup/ or https://www.knowyouroptions.com/loanlookup#; by calling 877-622-8525 to determine if your mortgage is FHA insured; or by checking your mortgage documentation for specific language identifying it as a VA loan.

Eviction Protection:  The CARES Act forbids the institution of eviction proceedings or the charging of additional fees for late rent payments for 120 days after the Act’s March 27, 2020 enactment date.

Student Loan Relief: Federal Direct Student Loans and FFEL loans owned by the Department of Education have had their payment schedules suspended through September 30, 2020.  While the payments are suspended, not interest will accrue, and no collection activity against the borrower may be instituted.

Credit Reporting: From January 31, 2020, until 120 days after the end of the national state of emergency, if a creditor has made an accommodation, the creditor shall report that account in the same status as before the accommodation.

A more complete listing of the consumer protection provisions of the CARES Act can be found on the National Consumer Law Center website at https://library.nclc.org/major-consumer-protections-announced-response-covid-19.

In addition to the specific provisions of the CARES Act, any contract could be subject to three particular legal doctrines:  (1) force majeure; (2) frustration of essential purpose: and (3) Impossibility of performance.  Force majeure, or act of god, is a defense to contract performance where, because of some calamity outside of the control of the parties, performance is excused.  This doctrine is similar to the defense to a contract where performance is impossible due to conditions that are unforeseen.  Frustration of essential purpose is where contract performance is excused because the contract, even if performed, cannot fulfil the purpose for which it was entered by both parties.  The application of these three doctrines are as varied as the subjects parties contract over, and are highly dependent on contractual language, which may disclaim the defense, and the circumstances of the cases.  If you think one of these may apply to a contractual obligation, consult with an attorney.

Can my employer fire me if I get the coronavirus? What if a family member becomes sick, am I allowed to take time off from work?

The Family Medical Leave Act (“FMLA”) and the Families First Coronavirus Response Act (“FFCRA”), along with other federal laws protect qualified individuals absent from work because of a serious health condition. The FFCRA provides paid sick leave for employees effected by COVID-19 and those serving as caregivers for individuals with COVID-19, as well as an emergency expansion of the FMLA. The FFCRA allows employees who work for employers of less than 500 employees to take up to 80 hours of emergency sick leave. An employee may take emergency sick leave under the FFCRA if they are: (1) subject to quarantine or isolation order or caring for someone who is subject to a quarantine or self-isolation order; (2) advised be a health care provider to self-quarantine due to coronavirus concerns or caring for someone who is advised to self-quarantine; (3) experiencing symptoms of coronavirus and are seeking a medical diagnosis; (4) caring for their child if, because of coronavirus protections, their school or day care has been closed or their childcare provider is unavailable; or (5) experiencing similar conditions, as specified by the Secretary of Health and Human Services. The rate of pay varies depending on the circumstances and more information is available through the Department of Labor (https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave)

Similarly, the Americans with Disabilities Act (“ADA”) prohibits discrimination against individuals with a disability. In certain circumstances, an employee who has an underlying condition exacerbated by the coronavirus (for instance, asthma or a heart condition) may be considered disabled. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment, or a perception by others of such an impairment. Besides prohibiting discrimination against people with disabilities, the ADA requires employers to provide reasonable accommodations for such individuals.

Do I have the right to work from home if I’m uncomfortable or fearful of becoming infected by reporting to my job, even if I am not sick? What if I need to work from home to care for my children who are at home because of school or childcare closings?

Generally, there is no legal right to telecommuting or working from home. Employers have the right to decide the terms of employment. Depending on whether working from home is reasonable under the circumstances, such as if you are at a high risk for the coronavirus and your employer deems your job responsibilities can be completed at home, you may have the right to telecommute as an accommodation. Some other possible protections are under the FFCRA, as discussed above, and the Occupational Safety and Health Act (“OSHA”). The FFCRA permits employees to take emergency sick leave to care for a child whose school or day care has closed, or where childcare is otherwise unavailable because of coronavirus protections. In addition, employees may be entitled to up to an additional 10 weeks of leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to bona fide childcare need related to COVID-19. These payments are subject to limits on maximum benefits and more information is available through the Department of Labor (https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave). Further, employees may be protected from retaliation under OSHA in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”: (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.” Each situation is different and OSHA requires employers to take steps to protect employees from “recognized workplace hazards.”

Is my employer required to pay me for time off from work?

Generally, if a company has policies regarding paid leave for those who are forced to take time off in connection with an illness, that policy will dictate the terms of leave. Some states and cities have specific laws that provide employees with access to paid sick leave.

Additionally, The FFCRA allows employees of employers of less than 500 employees to take up to 80 hours of emergency sick leave for qualified reasons, as follows:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

These payments are subject to limits on maximum benefits and more information is available through the Department of Labor (https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave).

Can my employer require me to work from home if I don’t want to?

Generally, employers set the terms and conditions of employment, including work location. Which means that an employer can require employees to work from home due to a reason such as business necessity or health and safety. Nevertheless, an employer may not require that certain people work from home because of a perceived or actual disability if it could be considered discrimination based on a disability.

If my employer requires me to work from home, am I entitled to be paid from that time?

Yes! Working from home should be treated the same as working in the office or on the field. Salaried employees must be paid regular weekly pay and hourly employees are entitled to be paid for all hours worked, including overtime hours.

What happens if my employer lays me off or cuts my hours?

Under the federal Workers Adjustment and Retraining Notification (“WARN”) Act, companies must give affected employees 60-days advanced written notice of the mass layoff, worksite closing, or plant closing. Some states have their own WARN acts. The WARN Act includes a detailed definition of what constitutes a mass layoff:

The employer must have 100 or more full-time employees who each worked more than six of the prior 12 months and averaged over 20 hours a week of work each.

50 or more employees are laid off at a site, and they represent over one-third of the workforce at that site (but if 500 or more employees are laid off at a site, they do not need to meet the one-third requirement).

50 or more employees are let go when a worksite is shut down.

Multiple workforce reductions within a 30-day window are combined into one layoff.

The 90-day rule combines two layoffs that may not meet the threshold individually.

WARN does not cover most government employers.

Remember, if your employer offers you a severance agreement, it is important to consult with an attorney about what rights you may have and what rights you may be giving up by signing the agreement.

Can an employer withdraw an offer letter or employment agreement because of changed circumstances, like the coronavirus?

Generally, an employer can withdraw a job offer for almost any reason, except a discriminatory one (race, religion, gender, etc.). However, most offer letters, even if binding, do not provide much in the way of substantive rights for the employee; and most employment agreements provide that the employment is “at will,” so the employer can fire the employee without cause (even before the employment has started). Under any offer letter or employment agreement, the key issue is whether the employee has any enforceable rights upon termination of employment without cause (e.g., a notice period, severance pay, payment of an accrued bonus, or vesting of deferred compensation).

Can an employer withdraw an unexecuted severance agreement?

Similar to an offer letter or employment agreement, a severance agreement can be withdrawn before it is accepted. Arguably, the employer cannot withdraw during a stated “consideration period” (21 or 45 days under the Older Workers’ Protections Act. But even that is not guaranteed.

Can an employer renege upon a fully executed severance agreement or deny payment to an employee based on economic changes at the company?

Generally, a contractual promise to pay is enforceable, and an employer would be in breach of contract if it if reneges on that promise, absent a material breach by the employee. If an employer fails to honor its obligations under a severance agreement, the employee may be able to sue for breach of contract.

In addition, if a company goes bankrupt and cannot pay agreed-upon severance benefits, the affected employee may be able to file a claim in bankruptcy court. In any event, with respect to plant closings and mass layoffs, employees may be entitled to relief under federal and state laws, like the WARN Act as discussed above.

What if my employer or coworkers are discriminating against me because of my race, ethnicity, or national origin?

Unfortunately, the coronavirus outbreak has resulted in some employees reporting negative treatment from employers or coworkers because of their race, ethnicity, or national origin. This is discrimination, and it’s illegal under federal law and many state and local laws. Discrimination has various forms and can negatively affect your hiring, conditions of employment, compensation, and opportunities for promotion. Some examples include derogatory comments, racial slurs, demotion, and termination. If you have any reason to believe that you are being discriminated against because of your race, ethnicity, or national origin, contact an employment discrimination attorney immediately to understand what options you may have.

WCPFG hope this page provides a useful resource for employees to learn how COVID-19 is affecting various aspects of the workplace. This resource is made available for educational purposes only, to provide general information and not to provide specific legal advice or to establish an attorney-client relationship. Remember, the issues related to COVID-19 are constantly evolving. There have been almost daily changes in the governmental guidance and underlying laws, which can impact the analysis of the legal issues related to COVID-19. As such, this resource should not be used as a substitute for up-to-date legal advice from an attorney.

We will continue to update you about your employment rights and protections. Please be safe and do not hesitate to contact an attorney if you have concerns about your workplace rights.

This information was prepared by Kameron M. Buckner and Brian Clark.

EMPLOYEE RIGHTS AND THE CORONAVIRUS (COVID-19) posted first on https://www.wigginschilds.com/

[duaneodavila]

It Was Never Just About Bathrooms: Volokh’s Experiment

Eugene Volokh proposed a “thought experiment” of the unseemly sort by posing a hypothetical scenario in a brothel.

Let’s assume a country or state in which brothel prostitution is legal (as it is in some Nevada counties and in some European countries). And let’s assume a brothel that caters to many sexual orientations, and as a result has both male and female prostitutes working in it.

A gay man comes to the brothel, and says “I’d like a man to perform oral sex on me”; he’s not picky about the man. They go to the room and start to get down to business — but the gay man realizes that the man is physically a woman.

“Wait, I asked for a man!,” the customer says. “I am a man,” the prostitute says; “I self-identify as a man. And what do you care about whether I have a penis? You’re just asking me for oral sex.” “I don’t care how you self-identify,” the customer says, “I want someone who is physically a man, even if I’m not going to be touching his genitals.” The customer leaves (without paying) and complains to the brothel.

What do you think is the sound answer here?

Forget any factual stretches, and forget the unseemliness of the scenario. A takeaway from the hypo is that issues are raised by accommodating transgender rights that are significantly different than other rights protected under the Civil Rights Act of 1964. One of the “selling” points was that the rights protected were “immutable characteristics.” Gender identification is many things, but not an immutable characteristic.

Eugene offers that the best reaction to his hypo is that the brothel owner be entitled to assign a prostitute based upon the gender preference of the customer. The reason he picked oral sex was to eliminate the bona fide occupational qualification exception; the prostitute’s genitalia weren’t directly involved in the transaction. Still, customer preference in matters of sex would justify discrimination.

Eugene then takes the thought experiment in a more pedestrian direction, medical treatment (the impetus for the thought experiment having been a post involving a pap smear administered by a transgender nurse).

Whether you find Eugene’s hypo a bit far-fetched isn’t the point. The point is that before rushing forward to morph “sex discrimination” into gender-identity discrimination, there are distinctions to be noted and choices to be made.

When government bureaucrats unilaterally imposed the “transgender bathroom” rule under Title IX, it was a brilliant move. Rather than raise the panoply of issues involved in the shift, the idea spread only in the context of bathrooms. It was still controversial, but hardly as controversial as it might have been. Many shrugged and reaction, “Bathrooms? Big deal. I don’t care.”

But as I sought to make clear at the time, it wasn’t merely bathrooms. In addition, it included dorm rooms and hotel rooms for class trips, but this was rarely mentioned. To be fair, it would likely be an extremely rare problem, given that transgender people represent a tiny fraction of the population, and an even smaller fraction under the age of majority.

What Eugene raises, however, is important as we move toward figuring out how to address the issues raised by discrimination against transgender people. There are issues of personal privacy, of sexual agency, implicated by including transgender people under the “discrimination on the basis of sex” rubric. They will be there whether they’re discussed or not, the big difference being that we can either consider them beforehand or wait until afterward to see how unintended consequences play out.

In light of Eugene’s thought experiment, I return to one of my own.

Joe meets Lola, and they take a shine to each other.  Joe asks Lola on a date, and Lola affirmatively consents.  Joe goes back to his dorm, and is subtly informed by his roommate, Enrique, that Lola is quite the excellent sweeper on the college’s men’s curling team.

Joe is confused. He’s a bit slow. So Joe texts Lola and asks, “Lola, are you on the men’s curling team?”  Lola responds, “you bet I am. Can’t wait to see you tonight, dreamboat.”  Joe, never one to miss a trick, replies, “I didn’t know you were a dude. Sorry, but I’m not into that sort of thing.”

Lola is crushed. Joe was so adorable. Lola is now hurt, angry and offended that Joe refused to go on the date solely because Lola was a biological male who identified as a woman. There was no other reason for Joe’s cancelling the date. That’s sex discrimination.

Or to take it in Eugene’s more sordid direction‘s:

And if we were to take the hypo a step farther, get past the date (which went spectacularly well), and ended in Lola’s dorm room, whereupon Joe learned of his mistaken assumption and revoked consent, boom. Same issue.

The point here is to show both the potential for conflicts and the breadth of normal human interaction where they could come into play. And taking this one step further than Eugene, there remains an additional wrinkle to consider.

Even if you’re fine with all this, there will be other people who are not. Whether it’s a matter of personal privacy or sexual agency, the fact that genitalia differ between people is a fact, even if it isn’t their truth. Does your being fine trump other people’s right not to be fine with it? I know, you’re right and they’re wrong, but aren’t they entitled to privacy and agency even if they fail to meet your level of wokeness?

These are the questions raised, but yet to be seriously considered, by extending laws that were enacted to serve the purpose of eliminating discrimination on the basis of sex, when sex had a binary definition, to discrimination against transgender persons.

It is not to say that discrimination against transgender persons is acceptable or shouldn’t be addressed, but to ignore the differences and the distinct issues that will almost certainly arise is to indulge in fantasy law-making. Rather than pretend these issues don’t exist, as too often happens leaving us to ponder how we ended up in this mess, we should consider the problems beforehand.

Copyright © 2007-2017 Simple Justice NY, LLC This feed is for personal, non-commercial and Newstex use only. The use of this feed anywhere else violates copyright. If this content is not in your news reader, it means the page you are viewing infringes copyright. (Digital Fingerprint: 51981395c77d7762065ca2c084b63e47) It Was Never Just About Bathrooms: Volokh’s Experiment republished via Simple Justice

[viralhottopics]

Joe Biden Is A Hero Among Women’s Rights Groups. But It Wasn’t Always That Way.

WASHINGTON Joe Biden will leave a legacy of staunch advocacy for womens rights when he steps down as vice president in a week. He was a leader in passing and renewing the 1994 Violence Against Women Act and has been the chief advocate of the Obama administrations national campaign to combat sexual assault on college campuses.

Those achievements, among others, were no small reason he was awarded the Presidential Medal of Freedom Thursday, the nations highest civilian honor.

Biden touted his role in elevating the seriousness and pervasiveness of sexual harassment in a September 2015 speech, noting that his work dated as far back as 1991: During the Clarence Thomas hearings, one of the things that emerged was the issue of sexual harassment. … It was the thing that no one wanted to touch. I remember saying to my colleagues, This is so much bigger than a single judge.

Advocates say Biden is now one of their strongest champions on issues of violence against women. But they remember a different, more complicated story of Thomas confirmation hearings, where Biden played a less heroic role. As the chairman of the Senate Judiciary Committee in October 1991, Biden was essentially the last line of defense in Thomas nomination to the Supreme Court.

When Anita Hill, a law professor and Thomas former employee, described how he had harassed her by pressuring her to date him and carrying on inappropriate sexual conversations, it was Biden who had the power to make sure her allegations received the consideration they deserved. They didnt, and Thomas remains on the court today as one of its most conservative justices.

In the years since the hearings, there has been much debate over the way Biden handled them. Even those who applaud Bidens more recent work for womens rights regret that he didnt fight harder to defend Hill against the GOP onslaught. In particular, theres still resentment over the fact that other women who could have strengthened Hills credibility never testified.

In some respects, I was deeply disappointed with his performance and with the performance of every member of that Judiciary Committee at the time, said Marcia Greenberger, co-president of the National Womens Law Center. And in fact, I felt devastated by the whole process as it unfolded.

An aide to the vice president pointed to Bidens record on womens rights over the years as what his legacy will be as he steps down.

The VP has been a stalwart champion of women, the aide said. He is the author of one of the most important pieces of legislation aimed at helping survivors of gender-based violence: The Violence Against Women Act (VAWA). He championed it from original drafting to enactment, and has been instrumental in its reauthorization ever since.

But as his career in public office potentially draws to a close or at least enters a new phase Bidens legacy may be best understood as an evolution, from the missteps of the Thomas hearings to his later accomplishments.

If Thats Sexual Harassment, Half The Senators On Capitol Hill Could Be Accused

Even before Hills sexual harassment allegations became public, Thomas was a controversial choice to replace legal titan Thurgood Marshall, the first and only African-American to serve on the Supreme Court.

There were questions about Thomas fitness for the position and whether he truly was, as President George H.W. Bush called him, the best qualified [nominee] at this time. Thomas had worked in civil rights at the Department of Education for one year and then chaired the Equal Employment Opportunity Commission for eight years before Bush nominated him for a seat on the U.S. Court of Appeals for the District of Columbia Circuit in 1990. Bush named him to the highest court 16 months later, on July 1, 1991.

Womens groups expressed concern about Thomas weak record on womens issues and civil rights long before they knew the name Anita Hill. But on Sept. 28, the Senate Judiciary Committee went ahead and voted 7-7 to send Thomas nomination to the full Senate without an endorsement.

Behind the scenes, however, there was far more going on than the public realized. Hill had worked with Thomas for two years, at both the Department of Education and the EEOC. During that time, Hill said Thomas repeatedly tried to pressure her into dating him, talked about the pornography he enjoyed watching and made other sexually explicit comments (including an infamous joke about pubic hair on a can of Coke).

Hill initially planned to stay silent about her experiences, but she started to tell friends what Thomas had done to her after the White House announced his nomination, according to Jane Mayer and Jill Abramson, the authors of Strange Justice, the most in-depth look at the Thomas proceedings. Hill was not some diehard partisan who wanted to take down Thomas, but rather a reluctant witness who felt a duty to provide officials with information that might be helpful.

Word about a woman Thomas had harassed started to reach Senate aides. Eventually, it reachedBiden, just days before the committees planned Sept.28 vote.

According to Mayer and Abramsons account, although Biden later said he recognized from the beginning that Hills accusations were a giant incendiary bomb, he didnt act like they were. [N]either he nor any other senator had spoken to Hill in an effort to draw an independent judgment about her credibility, they wrote.

None of the Senate leaders including Democrat George Mitchell, the majority leader, and Republican Bob Dole, the minority leader saw any reason to delay the committee vote so there could be further investigation.

It wasnt until after the vote, on Oct.6, when the press got ahold of the story and publicly identified Hill, that the members of the all-white and all-male Senate Judiciary Committee in Washington truly seemed to realize what they had on their hands. And even then, many senators didnt seem to know what to do or thought they couldnt stop the nomination from moving forward. Mitchell had already scheduled a vote of the full Senate for Oct.8 at 6 p.m.

They were pretty far along in the process and their position, as I recall it, was that it was too late, said Kim Gandy, who was a national officer with the National Organization for Women at the time. It was disruptive to the process and they had passed that point already, which didnt seem like a good reason to us.

Sen. Howard Metzenbaum (D-Ohio) may have summed up senators reaction to Hills allegations best when he reportedly declared, If thats sexual harassment, half the senators on Capitol Hill could be accused.

There werent many women in Congress at that time just 29 in the House and two in the Senate but they were outraged that Mitchell refused to delay the vote on Thomas. They wanted Bidens committee to reopen the hearings and allow Hill to testify.

What disturbs me as much as the allegations themselves is that the Senate appears not to take the charge of sexual harassment seriously, said Sen. Barbara Mikulski (D-Md.), who was then the only female Democratic senator.

Bettmann/Getty Images

Anita Hill is sworn in before testifying. Hill worked with Clarence Thomas and alleged that he sexually harassed her.

On the day of the scheduled confirmation vote, a number of female House members took to the floor to deliver 60-second speeches in support of Hill. When Rep. Rosa DeLauro (D-Conn.) spoke out and demanded a delay on Thomas nomination, angry male congressmen said her words should be struck from the record and she should be censured for the day. Women across the country flooded the phone lines in the offices of Mikulski and Sen. Nancy Landon Kassebaum (R-Kan.), the only other female senator at the time, calling for a delay.

That same day, seven female House members marched across the Capitol and demanded to talk to Mitchell, who was then in his weekly caucus meeting. The women were barred from entering, until one of Mitchells aides eventually came out and told them hed talk to them.

Rep. Louise Slaughter (D-N.Y.) was part of that historic moment, and told The Huffington Post that they also talked to Biden and demanded Hill be allowed to tell her story. That conversation didnt go well, she said.

He basically said we didnt need to stay because she wasnt going to speak, said Slaughter. No, it was not good. The whole thing was a bad scene.

Under strong public pressure, Mitchell eventually convinced Republicans that without a delay, 10 Democratic senators who had previously said they would vote for Thomas would switch sides.

Biden was under pressure from Republicans as well primarily Sen. John Danforth (R-Mo.), Thomas chief sponsor. Biden initially wanted a two-week delay, but Danforth convinced him that fairness demanded the proceedings to move faster. Biden scheduled Hills testimony for Oct.11, and agreed that the Judiciary Committee would not take another vote before sending Thomas to the full Senate on Oct.15. He also said he would keep questions about Thomas general sexual conduct such as his interest in pornography out of the hearings.

Joe bent over too far to accommodate the Republicans, who were going to get Thomas on the court come hell or high water, Metzenbaum later told Mayer and Abramson.

Biden also handed a major victory to Republicans in agreeing to let Thomas testify both before and after Hill most crucially, scheduling his response to her allegations for 9 p.m. on a Friday, when millions of people were tuned in for their primetime broadcast.

Mark Reinstein/Getty Images

Clarence Thomas was allowed to testify both before and after Anita Hill.

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In her 1997 memoir, Hill said she felt Biden betrayed her in doing so. She wrote that three days earlier, Biden had told her over the phone that she had the option to testify whenever I wish first and last.

What I did not know was that between the phone call and the eve of the hearings, he had given the same assurances to Judge Thomas, she wrote. Nor had anyone informed me how long Judge Thomas might testify or when I could expect to be called.

Biden had originally planned to have Hill close out the hearings. But he gave in to pressure from Thomas handlers, who threatened the Supreme Court nominee would hold a press conference saying he had been denied the opportunity to defend himself.

I must start off with a presumption of giving the person accused the benefit of the doubt, Biden told The New York Times two days before Hill was set to testify. I must seek the truth and I must ask straightforward and tough questions, and in my heart I know if that woman is telling the truth it will be almost unfair to her. On the other hand, if I dont ask legitimate questions, then I am doing a great injustice to someone who might be totally innocent. Its a horrible dilemma because you have two lives at stake here.

The Other Witnesses

Bidens most divisive and perhaps most significant decision was not calling the other three women who could have strengthened Hills allegations against Thomas to testify. While the womens interviews with committee staff were entered into the record, that did not have the same impact as public testimony.

One of the women was Angela Wright, who worked with Thomas at the EEOC. She said Thomas asked her about the size of her breasts, pressured her to date him, commented on the physical appearance of women in the office and showed up at her apartment one night without warning. Unlike Hill, however, Wright said she considered Thomas behavior obnoxious but not sexual harassment.

Wright had complained of Thomas unwanted behavior toward Rose Jourdain, a colleague at the EEOC at the time. As Mayer and Abramson wrote in their account of the trial, Jourdain independently remembered the bra size incident and also recalled Wright telling her Thomas had talked about the sexiness of her legs.

Sukari Hardnett was the third woman. She worked for Thomas at the EEOC after Hill left but said Hills account of his behavior rang true.

Clarence Thomas pretends that his only behavior toward those who worked as his special assistants was as a father to children and a mentor to proteges. That simply isnt true. If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female, she said in her statement, adding, Women know when there are sexual dimensions to the attention they are receiving. And there was never any doubt about that dimension in Clarence Thomass office.

Wally McNamee/Getty Images

Joe Biden was the chair of the Senate Judiciary Committee during Clarence Thomas’ Supreme Court nomination in 1991.

There have been several justifications offered for not having these women testify, with no senator willing to take the blame. Biden and his supporters have pointed the finger at the rest of the committee, Hill and her legal team, and Wright personally.

Biden has maintained that he was eager to hear from Wright, but the committee voted 13-1 against calling her; he was the lone supporter, he said. One of his top aides, however, told Mayer and Abramson that that wasnt true Biden, like the other senators, simply wanted the hearings to be over. Metzenbaum later said he didnt recall such a vote and didnt think Biden was anxious to bring Angela Wright on. Former Sen. Paul Simon (D-Ill.), said he also didnt remember any senators who wanted Wright to testify.

Biden and his top staffers have also said that Hill and her legal team opposed having Wright testify, because Wright did not consider Thomas behavior to be harassment.

They believed that Anita Hills testimony was so strong standing on its own that no matter how good anyone else was, it would be diluted, Biden said in a 1994 interview. It would take away from it.

But Charles Ogletree, a Harvard law professor who was part of Hills legal team, has strenuously denied this claim, calling it absolutely, unequivocally, categorically, and positively false.

Biden has also suggested that Wright didnt want to testify. [T]heres a myth thats grown up that we somehow denied her, Biden recalled in a 2009 interview for Jules Witcovers biography. We had her in town to testify, we expected her to testify, we prepared her to testify; she chose not to testify. She had her own reasons. I dont know exactly what they were. And people say, well, why didnt you have her testify anyway? Well, thats like calling a hostile witness in a case.

Indeed, there is a letter from Biden to Wright dated Oct.13, 1991, in which he stated it was his preference that she testify, but that by the mutual agreement of Wright and the members of the committee, she was released from the subpoena and her interviews would be put in the record instead. Wright signed the letter, acknowledging agreement with its content.

Gil Middlebrooks, Wrights attorney, remembered a slightly more complicated version of events, as he told The Washington Post in 1994. It was true that Wright was a reluctant witness; she didnt want to come forward, and repeatedly pointed out to Senate staffers that they had approached her, not the other way around. But Middlebrooks insisted that Wright was always willing to testify if the committee members truly wanted her to do so.

These people didnt want to hear from us, Jourdain summed up to Mayer and Abramson. Thomass supporters didnt want another woman, especially one with some of the same looks, age, and brains, telling a similar story as Anita Hill. And then, on top of that, shes got a credible backup witness. Nobody wanted to deal with this.

Many Hill supporters also wanted testimony from an expert on sexual harassment, to lend expertise on the subject that was sorely lacking among the men on the committee. Biden said in a 1994 interview that he wanted this to happen, too.

I wanted a panel on sexual harassment to come and testify, so we could put in context what we were talking about, he said. And it was decided by the Hill people that they didnt want that panel to come on. Again, there was a feeling communicated to me secondhand that Anita Hill had won this thing. She had made her case. And I kept saying, wrong, this aint over. I was very disappointed.

Dr. Louise Fitzgerald, a psychologist and academic who had extensively studied sexual harassment, was reportedly ready to testify. Hills legal team said they conveyed her willingness to Senate staffers, but legislators never took them up on the offer. Fitzgerald did not return a request for comment for this story.

I just dont think [the hearing] was designed to really bring out the record, said Susan Deller Ross, who was a member of Hills legal team. The Republicans acted like prosecutors, and the Democrats acted sort of oblivious. So there was no one really ensuring that they actually investigated the issue in depth.

While Biden saw himself as Hills ally albeit one in a tough spot she saw him as someone who ultimately let her down.

There were three women who were ready and waiting and subpoenaed to be giving testimony about similar behavior that they had experienced or witnessed. He failed to call them, she told HuffPost Live in an interview two years ago. There also were experts who could have given real information as opposed to the misinformation that the Senate was giving … and helped the public understand sexual harassment. He failed to call them.

Flatfooted Judgment Calls

Mayer and Abramson characterized Bidens chairmanship of the hearings as made up of a number of flatfooted judgment calls. The Democrats on the committee, they wrote, were in almost total disarray, especially compared with the well-organized Republicans.

There were little moments, like not declaring Sen. Orrin Hatchs (R-Utah) unsubstantiated speculation that Hill had made up her story based on the plot of The Exorcist and a 1988 court case in which a black woman alleged sexual harassment against her supervisor to be out of order. And then there were bigger issues, like having the three additional women testify and giving in to GOP demands on the timing of the hearings and testimony.

The main reason the hearings went the way they did seemed to be the committees desire to move on. But Republicans were also better-prepared. As Maureen Dowd wrote in The New York Times at the time, The Democrats made a pass at figuring out what had happened in the case. The Republicans tried to win. While the Democrats were pronouncing themselves flummoxed by two diametrically opposed stories, the Republicans had already launched a scorched-earth strategy against Professor Hill.

Republicans tapped Sen. Arlen Specter (R-Pa.) as their lead questioner, which Mayer and Abramson reported was a politically genius move on the part of Hatch and Danforth. Specter, a lawyer and former district attorney, had opposed Robert Bork, President Ronald Reagans failed 1987 Supreme Court nominee, and he reportedly didnt think Thomas was all that qualified for the job. So they gave Spector a starring role in the proceedings, which he took up gladly.

As soon as [Specter] saw himself as the star prosecutor, he couldnt resist, Biden told Mayer and Abramson. They knew his personality better than he did.

Hill, meanwhile, had no such advocate among the Democrats. She alone had to deal with accusations that she was an erotomaniac, as well as vindictive, delusional and a liar.

Most evident from the televised Judiciary Committee hearings was the fact that I sat in that hearing room without a patron on the panel. That image still resonates. Anita Hill

Democrats also seemed uneasy about going after Thomas too hard because they recognized there was a racial element at play. Thomas lacked the legal experience and accolades of previous Supreme Court nominees, but Democrats didnt want to make the second black Supreme Court nominee in history seem unintelligent.

The thing that got him approved was that the Democrats were scared to death, Vince DAnna, a member of Bidens team during the Thomas confirmation battle, told Witcover. They just wanted this thing to be over with Lets be done with it; lets vote. Nothing good is going to come from it. There were no profiles in courage on that committee.

Biden, too, has said he didnt think Thomas would have been confirmed if he had been white, calling it a cynical ploy by President Bush.

Thomas was the one in my view engaging in racism, and I not only mean racism in terms of playing the race card, but racism in trying to reinforce the stereotypical notion about black women, Biden told Witcover. That was the sin I dont forgive the guy for, and those who were making his case.

Hill declined an interview for this piece,but her thoughts on Biden were made abundantly clear in her 1997 memoir. On the first page of the first chapter, she described Biden as someone who chooses his words carefully and has a rather remarkable smile a grin that spreads from ear to ear in an instant, disclosing perfectly straight teeth. That isnt meant as a compliment.

Hill recalled an Oct.8 phone call in which Biden tried to convince her he was on her side: The only mistake I made, in my view, is to not realize how much pressure you were under. I should have been more aware. Aw kiddo, I feel for you. I wish I werent the chairman, Id come be your lawyer, she recalled him saying.

But Hill said she feels like she was left out to dry.

Most evident from the televised Judiciary Committee hearings was the fact that I sat in that hearing room without a patron on the panel. That image still resonates, she wrote in a 1995 essay. My sin was not simply that I did not have a patron. Nor was it simply that I rejected patronage offered to me, since none was offered. My initial sin in the eyes of the senators was that I dared to come to the body on my own, that I did not actively pursue patronage at the outset.

Thomas didnt come away with a significantly better impression of Biden, believing that the chair had privately offered him his support only to eventually vote against his confirmation. After Thomas eventually won, Biden reportedly left a very gracious congratulatory message on Thomas answering machine, which was greeted by a less than gracious response from Thomas, according to Danforths book on the hearings.

Up until the end, Biden refused to go after Thomas character even after all he heard from Hill and what he knew of the other womens experiences. Although he voted against Bushs nominee in the final count, he said on the Senate floor, For this senator, there is no question with respect to the nominees character.

I could have brought in the pornography stuff, Biden said in a 1992 interview. I could have decimated him with that. I could have raised and with more legitimacy than what [the Republicans] were doing but it would make a lie of everything I fought for…. To go back and say because the guy was 20 years old and he watched pornography at Yale, that that means that theres a nexis between that and whether or not he spoke of pornography 20 years later? Its outrageous. But compelling.

Twenty years earlier, Biden had lost his wife and infant daughter in a car accident just as he was about to enter the Senate. He was very private about the incident and almost never mentioned it, giving him an understanding about the fact that there are certain issues people just dont want to discuss.

Mayer and Abramson also pointed to Bidens more recent experience during the 1987 confirmation fight over Supreme Court nominee Robert Bork, when the press went after the Delaware senator forplagiarizing a British politicians speech. Reporters dug into Bidens past, unearthing an instance of plagiarism in law school and exaggerations of his academic record. Biden ended up dropping out of the 1988 presidential race over the issue, even though he had been considered a top contender in the Democratic primary. He had little appetite to give others that same treatment.

The Anita Hill Legacy

Biden seemed pleased with his performance in the Thomas nomination hearings in an interview with Mayer and Abramson for their 1994 book, noting that polls showed that as much as 86 percent of the country knew who he was, and a majority of people believed he had been fair.

Thats a highly unusual exposure rate for a senator, he said. Most voters cant name their own senator. But now everywhere I go, I get recognized.

Since then, Biden has admitted the hearings werent perfect.But hes never given a full apology, as many Hill supporters would like him to do.

In 1992, The Washington Post asked Biden whether Democrats should have been more aggressive.

In my gut I regret it, in my intellect I dont, he said. Because it would have made a lie of everything I say I believe.

Hill said in an interview with Time last year that she believed the hearings made it harder to deal with sexual harassment because they influenced how employers would react to sexual harassment, how universities would react to it, and were still trying to dig out from that.

The Senate, instead of reflecting the best practices that had been developed at that point, lapsed into combativeness, she said. The hearings showed people what happens when representatives dont make a real attempt to get to the bottom of issues and to understand how sexual harassment works.

One thing Biden said in his 2015 speech at Ohio State that was absolutely right was that the hearings ignited the country. They certainly galvanized women to action, as a record number ran in the 1992 elections, citing their anger that Hill had faced a panel of white men who seemed to understand so little about what she went through.

Four more Democratic women Barbara Boxer and Dianne Feinstein of California, Carol Moseley Braun of Illinois and Patty Murray of Washington won election to the Senate that year. Twenty new Democratic women were elected to the House, and the pro-choice Democratic group EMILYs List grew from 3,000 to 24,000 members. It was dubbed the Year of the Woman.

The Hill hearing electrified the country, Slaughter recalled. I dont think theres any question about it.

Moseley Braun and Feinstein also took seats on the Judiciary Committee, but not without a misstep by Biden. The chairman hand-delivered a dozen red roses to Boxer with the note, Welcome to the Senate Judiciary Committee. News reports at the time described the moment in highly gendered language that Biden had tried to woo Boxer but was scorned and that Biden was going courting while the new senators were playing hard to get.

Those women havent forgotten Hill and her impact. Boxer, who retired last year after 24 years in the Senate, acknowledged Hill in her farewell speech last month.

Without her, I never would have been elected to the Senate, Boxer said. Anita Hill courageously told her story to the all-male U.S. Senate Judiciary Committee, breaking the silence on this painful issue.

Hill, too, has said she owes a debt of gratitude to the support she received from female politicians at the time.

I will say: if those women from Congress had not marched over to the Senate and demanded a hearing, I do not think it would have happened, Hill told Time magazine last year. That, to me, is leadership. And thats why we need more women in leadership positions. We havent even come close in terms of representation to a critical mass.

In this new session of Congress, Feinstein is the ranking member of the Senate Judiciary Committee the first woman in history to hold that position.

The Cause Of My Life

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Joe Biden made combatting violence against women a central part of his time as vice president.

Bidens mismanagement of the Thomas nomination and Hills allegations is a sharp contrast to the work hes done on womens rights in the years since, particularly when it comes to ending violence against women the cause of my life, as he has called it.

Hes been a really positive ally, and hes opened doors at the White House to these issues in a way that has not existed in my history, said Gandy, who is now president of the National Network to End Domestic Violence.

I cant name another elected official with the national platform that he has who has been any more passionate or any more effective than he has, Greenberger said. I give him a great debt of gratitude for his championing of these issues at the same time that I remain very disappointed with what happened during those Thomas hearings.

One of Bidens most noteworthy accomplishments is the landmark Violence Against Women Act. Biden shepherded that bill through the Senate, leading to its eventual passage in 1994. The law provided a comprehensive national strategy for dealing with the crisis, including increased penalties for offenders, protections for women who come forward, and funding and support for coordinated community response.

Congress has reauthorized VAWA three times since then, including after a tough legislative fight in 2012 and 2013, in which some Republicans opposed including protections for undocumented immigrants, same-sex couples and Native Americans.

The Violence Against Women Act in 1994 was very hard to pass. This was not a slam dunk by any stretch of the imagination, Feminist Majority Foundation President Ellie Smeal said. And [Biden] made it an issue. It wouldnt pass without him, theres no question about it.

Slaughter, one of the original co-authors of the legislation, also praised Bidens work.

Hes a great guy, she said. Hes a real soldier in the field for the Democratic Party.

Even before Obama won the 2008 election, Biden made clear he wanted the administration to combat sexual assault. The vice president created a new position, White House adviser on violence against women, to ensure that the issue continued to get attention.

That was a real turning point, I think, in terms of the attention that the issue would receive at the highest levels of the White House, Gandy said.

Biden has also sought to address the scourge of sexual assault on college campuses a problem that affects 20 percent of women and 5 percent of men, according to a recent Washington Post-Kaiser Family Foundation poll of current and recent college students. Biden toured schools around the country and urged them to change how they deal with violence.

We are the first administration to make it clear that sexual assault is not just a crime, it can be a violation of a womans civil rights, he said in 2011 in a speech at the University of New Hampshire in Durham.

Bidens speech coincided with a letter the Department of Education sent to colleges and universities outlining new guidance about Title IX, the federal statute prohibiting sex discrimination in education programs that receive federal funding. That letter made clear that school administrators had an obligation to act on sexual violence.

If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects, read the Obama administrations letter, which alsothreatened to pull a schools federal funding if the government determined it was not taking steps to address the problem. As of last July, the Education Department had more than 250 ongoing investigations at postsecondary institutions.

In 2014, the White House started a task force to combat student sexual assault and a nationwide campaign to raise awareness. A key part of the strategy was to get men more involved in the efforts, a move away from a culture that so often places the responsibility for sexual assault on women.

He helped bring a lot of men into it, which is also necessary if were ever going to reduce these numbers of sexual assaults on college campuses, Gandy added.

Biden also spoke out forcefully against Trump and his treatment of women during the 2016 election. When audio emerged of Trump bragging about using his celebrity status to grope women, Biden tweeted that what he was talking about was sexual assault.

Im tired of new politicians who want to go to Washington to demean women, Biden said in a speech in Nevada a few days later.

Biden will leave the White House with a far different image than many women had of him in 1991. He is extremely popular in the Democratic Party, able to connect with a wide range of voters in a way that many other politicians envy. There is even talk that he could run for president in 2020.

Womens rights activists say that whatever he does, they hope he stays involved in their fight. Gandy called the Thomas hearings part of Bidens history, but not his legacy, and Smeal said his leadership on womens rights so surpasses what happened in 1991.

I think it takes a big heart and an open mind to evolve, to learn, Greenberger said. And I think that Vice President Biden has demonstrated that in many contexts, but nowhere more clearly than in his strong championing of laws and policies to protect those who have been the subject of sexual assault, sexual harassment, sexual mistreatment.

This story has been updated to include comment from Bidens office.

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from Joe Biden Is A Hero Among Women’s Rights Groups. But It Wasn’t Always That Way.