Volume 3 Mustang Journal of Law and Legal Studies (2012)
MUSTANG JOURNAL OF LAW AND LEGAL STUDIES VOLUME 3 (2012)
EDITOR-IN-CHIEF William T. (Will) Mawer Dean, School of Education and Behavioral Sciences Southeastern Oklahoma State University
SENIOR ADVISORY EDITOR Marty Ludlum Assistant Professor of Legal Studies College of Business University of Central Oklahoma
The Mustang Journal of Law and Legal Studies is an Official publication of Mustang Journals, Inc., PO Box 2193, Edmond OK 73083 www.MustangJournals.com Print ISSN: 1949-1751 Online ISSN: 1949-1743 Listed in: Cabell’s Directory
Copyright to the contests of the articles published herein is retained by the respective authors. Copyright to the design, format, logo and other aspects of this publication is claimed by the Mustang Journals, Inc. The views expressed herein are to be attributed to the authors and not to this publication, Mustang Journals, Inc., its officer, the editors, or any named college or university. The material appearing in this publication are for information purpose only and should not be considered legal advice or be used as such. For a specific legal opinion readers must confer with their own legal counsel.
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From the desk of the Editor-in-Chief. . . .
This is the third volume of the Mustang Journal of Law and Legal Studies, an official publication of Mustang Journals, Inc. The Journal is being published in hardcopy and electronically on the Mustang Journal’s web page at http://www.MustangJournals.com.
All articles that appear in this volume of the Mustang Journal of Law and Legal Studies have been recommended for publication by the Reviewers/Advisory Editors, using a double, blind peer review process. A personal thanks is extended to the Reviewers/Advisory Editors for all their hard work and dedication to the Journal. Without their work, the publication of this Journal would be impossible.
This is my second year as Editor-in-Chief, and I wish to express my sincere thanks and appreciation for all the support, encouragement, assistance and advice throughout this year. I would like to further express appreciation to Marty Ludlum of the University of Central Oklahoma, for his efforts in coordinating the entire process. The publishing of this journal is an intense educational experience which I continue to enjoy.
Congratulations to all our authors. I extend a hearty invitation to submit your manuscripts for the future issues of Mustang Journals.
To further the objectives of Mustang Journals, Inc., all comments, critiques, or criticisms would be greatly appreciated.
Again, thanks to all the authors for allowing me the opportunity to serve you as editor-in-chief of the Journal.
William Mawer Editor-in-Chief Mustang Journal of Law and Legal Studies www.MustangJournals.com
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Our Advisory Editors
Mustang Journals could not exist without the hard work and timely effort of our peer reviewers. Mustang Journals is seeking scholars willing to volunteer. Mustang Journals recognizes the importance of the peer review process in shaping the reputation and credibility of the journal and the individual papers. Reviewers will be expected to review no more than three papers a year. If you would like to become a peer reviewer, please contact us at [email protected]
Mustang Journals wishes to thank our Peer Reviewers.
Dr. Jennifer Barger-Johnson, Legal Studies, U. of Central Oklahoma
Dr. Linda Barton, Marketing, Brenau U. (GA)
Roger Chao, Ethics, Curtin University, Australia.
Dr. Michael D. Chatham, Accounting, Radford University
Steven I-Shuo Chen, Business & Management, National Chiao Tung U., Taiwan.
Dr. Wanda J. Corner, Management, Walden U. (GA)
Dr. Shivakumar Deene, Business Studies, Central U. of Karnataka, India
Dr. Aikyna Delores Finch, Management, Strayer U. (CA)
Dr. Darrell Ford, Legal Studies, University of Central Oklahoma
Dr. P. Ganesan, Marketing, Mburabuturo School of Finance & Banking, Rwanda
Dr. Andrew S. Griffith, Accounting, Iona College, New York.
Dr. David Hartmann, ISOM, University of Central Oklahoma
Dr. Randal Ice, Finance, University of Central Oklahoma
Z.E. Jeelani, Business Studies, Islamic U. of Science & Technology, India.
Dr. Stellina Jolly, Legal Studies, Punjab University, India.
Dr. Stuart MacDonald, Legal Studies, University of Central Oklahoma
Michael Machiorlatti, Economics, Oklahoma City Community College
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Dr. Bashar H. Malkawi, Intl. Trade Law, Hashemite U., Jordan
Dr. William Mawer, Dean, School of Education & Social Sciences, Southeast Oklahoma State University.
Dr. Ngboawaji Daniel Nte, Rivers State U. of Education, Nigeria.
Mohammad Nurunnabi, Accounting, Edge Hill University, UK.
Dr. William L. Quisenberry, Management, Ottawa U. (KS).
Vijayan Ramachandran, Management, Oklahoma City Community College
Dr. Suresh Reddy, Management, Vivekananda C. of Comp. Sciences, India
Dr. David Ritter, Business Law, Texas A & M - Central Texas
Amir Mohammad Sayem, Research Methods, Bangladesh Institute of Social Research
Karen Sneary, Business, Northwest Oklahoma State University.
Dr. Cathy Taylor, Management, Park University, Missouri
Dr. Lee Tyner, Management, University of Central Oklahoma
Dr. L. Vijayashree, Dept. of MBA, PES School of Engineering, Bangalore
Dr. Zulnaidi Yaacob, Management, University Sains Malaysia.
If you are interested in serving as an Advisory Editor,
please contact us at [email protected]
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Table of Contents Mustang Journal of Law and Legal Studies Volume 3 (2012)
Title . . . . . 1 Editor’s Notes . . . . . 3 Advisory Editors . . . . . 5-6 Table of Contents . . . . . 8
Employment Discrimination: An Empirical Study of Individuals’ Reactions to Offensive Workplace Conduct Alix Valenti and Lisa Burke . . . . . 10
Artists “Under Pressure”: Copyright Issues in Popular Music Katrin C. Varner and Eric V. Varner . . . . . 31
Attention Deficit Disorder And Attention Deficit Hyperactivity Disorder: Their Impact On American Law Schools As Organizations And On Administration’s Policy Formulation To “Reasonably Accommodate” Law Students According To Applicable Federal And Case Law Randall Robbins and Simpson Goodman . . . . . 43
The Effect Legal Representatives have on their Client’s Perceptions of Procedural Justice and Expected Outcome in Mediation Kevin Farmer . . . . . 56
Tipping the Scale of Equity: Police Entry Clifford Fisher and Erik Lisak . . . . . 75
Media Law and Ethics: An Examination of the Tort of Defamation Under Nigerian Law applying the Common Law Perspective Michael C. Oqwezzy . . . . . 83
Public Employee Pensions and Social Security: You may not be able to get both Deborah Combs and Kitty Campbell . . . . . 103
Does Better Corporate Governance and Legal Framework Result in Ethical Behaviour of Firms in Emerging markets? An Examination using Partial Least Square Estimation S. Sreejesh . . . . . 112
Announcements for Mustang Journals and Conferences . . . . . 131
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EMPLOYMENT DISCRIMINATION: AN EMPIRICAL STUDY OF INDIVIDUALS’
REACTIONS TO OFFENSIVE WORKPLACE CONDUCT
Alix Valenti University of Houston-Clear Lake [email protected]
Lisa Burke University of Tennessee at Chattanooga [email protected]
Abstract
The purpose of our study was to determine, in employment cases where courts previously ruled in favor of employers, whether prospective plaintiffs would find certain workplace conduct sufficiently offensive to take internal or external grievance actions or to quit their jobs,. Specifically, 140 individuals were surveyed and responded anonymously to five fact-laden scenarios, based on actual cases of race, sex, religion, and age discrimination in the workplace. The respondents indicated whether they would file an internal or external grievance or quit their jobs either immediately after the offensive conduct or after the egregious behavior escalated. The results suggest that certain forms of workplace behaviors are more likely to be viewed as discriminatory than others and by certain types of individuals.
I. Introduction Discrimination in the workplace continues to present challenges for both employees and employers. Employees often confront egregious conduct by others in the workplace associated with their protected class, and employers attempt to avoid potential liability under regulatory protections, given employees’ increased awareness of their workplace rights. Yet, we know little about prospective plaintiffs’ views on how courts tend to rule in employment discrimination cases. Further, despite numerous federal and state laws protecting employees against employment discrimination, plaintiffs have generally not been successful in pursuing their claims against employers. In two studies over a ten-year period, two researchers found that federal courts and juries find for the plaintiff in fewer than 15 percent of employment discrimination
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cases (as opposed to 51 percent in non-employment cases).1 Further, these authors report that employers are usually victorious in bringing or defending against an appeal in these cases. Other legal scholars have noted courts’ “seeming hostility” to employment discrimination claims.2 In view of these findings, we question whether the courts’ apparent preference for employers reflects the broader societal view of employment discrimination. In this study, we developed five scenarios of discrimination, based on actual court cases involving some of the more commonly protected classes including race, sex, religion, and age discrimination, and then asked a sample of university students (where the majority had more than one year of work experience and more than 30% had management experience) to indicate their reactions to the facts in each case. To describe our research investigation, the paper is organized as follows: we first discuss discrimination in general, highlighting specific claims involving race, sex, religion, and age, followed by a review of retaliation and constructive discharge. We then discuss our method, the survey instrument, and the results of our empirical test. Implications for legal practitioners conclude the paper.
II. Employment Discrimination Discrimination cases in the workplace are based on allegations of either disparate treatment of disparate impact. Disparate treatment occurs when the employer treats some people less favorably than others because of their protected characteristic or membership in a protected class. Proof of discriminatory motive is critical although it can in some situations be inferred from the mere fact of differences in treatment.3 Since plaintiffs rarely have direct evidence to prove discriminatory intent, they generally rely on circumstantial evidence to raise the inference that the differential treatment was illegally motivated. When proving disparate treatment through circumstantial evidence, the plaintiff must establish that a discriminatory objective was applied in a promotion, discipline, discharge, or other employment decision. Statistical proof is permissible to show a pattern or practice of discrimination and thus establish discriminatory intent.4 Once a plaintiff’s prima facie case has been proven, the burden shifts to the employer to establish a legally justifiable defense to the action. Employers may then raise a lawful motive, such as the bona fide occupational qualification (BFOQ) defense, to show that a practice may exclude an entire class of protected persons for justifiable reasons, such as safety or efficiency, although race may never constitute a BFOQ. Disparate impact cases arise in situations where the employer does not intend to discriminate but its policies or practices have the effect of negatively affecting a protected class of persons. Disparate impact cases involve what appear to be facially neutral employment actions that nevertheless have an adverse impact on a protected group.5 The principle distinction between disparate-impact and disparate-treatment cases is that, in the former, a plaintiff does not
1 Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429 (2004); Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse, 3 HARV. L. & POL'Y REV. 103 (2009). 2 E.g., Alicia Luke, Employment Discrimination Litigation: Social Science Evidence and a Solution for the Problem of Presumptions, 29 TEMP. ENVT’L. L. & TECH. J. 75, 84 (2010).
3 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). 4 Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977). 5 Martha Chamallas, The Market Excuse, 68 U. CHI. L. REV. 579, 599-600 (2001).
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have to establish a discriminatory intent on the part of the employer.6 Typically the claim arises when a job requirement or selection test is imposed in order for an applicant to be hired or promoted to a higher level position. The employer must then demonstrate that the requirement or passing the selection test is a business necessity and reasonably related to the job.7 However, a plaintiff may still prevail if he or she can demonstrate the existence of an alternative business practice which could achieve the same result in a less discriminatory manner. Regardless of the basis of the discrimination claim, plaintiffs must first establish a prima facie case of disparate treatment or disparate impact. This is established by showing that the plaintiff belongs to a protected class and that the employer engaged in conduct that adversely affected the plaintiff. Once the plaintiff has established a prima facie case, the burden of proof then shifts to the employer to present a nondiscriminatory and legitimate business-related explanation for its decision.8 The plaintiff then has the opportunity to prove that the employer’s proffered explanation was merely a pretext for discrimination.9 A. Discrimination Based on Race Title VII prohibits discrimination based on race, and in 2010 race was the second most common form of discrimination claim.10 “Race” describes many groups including African American, American Indian or Alaskan Native, Native Hawaiian or Pacific Islander, Asian, White, and Hispanic or Latino. A Gallup poll conducted in 2005 found that 15 percent of all workers perceived they had been subjected to discrimination based on race; over 31 percent of Asians reported incidents of race discrimination, with 26 percent of African-Americans reporting incidents.11 In addition, 42 U.S.C. § 1981 provides an additional basis for a claim when the discrimination is intentional and is based on race, color or national origin. Victims of race discrimination often pursue their remedies under section 1981 because it involves fewer administrative procedures than Title VII, does not cap damages, allows for unlimited back pay awards, and has a longer statute of limitations. Employment discrimination claims based on race are raised in a variety of contexts including termination, failure to hire or promote, and racial harassment. In employment action claims, such as a failure to promote claim, the plaintiff must establish a prima facie case showing that he or she applied for a position, that he or she was qualified for the position, that he or she was denied the position, and that the position remained open until it was given to an employee of another race.12 Since direct evidence of discriminatory intent is generally difficult to present, plaintiffs must rely on circumstantial evidence sufficient to
6 Charles A. Sullivan, The World Turned Upside Down?: Disparate Impact Claims by White Males, 98 NW. U. L. REV. 1505, 1513 (2004). Some legal scholars question whether language in Ricci v. DeStefano, 129 S. Ct. 2658 (2009) signals an affirmative defense giving employers immunity from unintentional discrimination claims if they were not aware that their actions were discriminatory at the time they took them. Joseph A. Seiner & Benjamin N. Gutman, Does Ricci Herald a New Disparate Impact?. 90 B .U. L. REV. 2181 (2010). 7 Washington v. Davis, 426 U.S. 229 (1976)). 8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 9 Tex. Dep’t of Cnty. Affairs v. Burdine, 450 U.S. 248 (1981). 10 U.S. Equal Employment Opportunity Commission. Charge statistics from the U.S. EEOC for FY1995 through FY2010, available at http://www.eeoc.gov/eeoc/statistics/enforcement/ charges.cfm) (hereinafter referred to as EEOC charge statistics). 11 H. JOHN BERNARDIN, HUMAN RESOURCE MANAGEMENT: AN EXPERIMENTAL APPROACH (McGraw-Hill 5th ed. 2009). 12 Aulicino v. New York City Dept. of Homeless Servs., 580 F.3d 73 (2d Cir. 2009).
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infer that discriminatory intent motivated the employment action. Circumstantial evidence may include suspicious timing, ambiguous statements, behavior or comments directed at persons in the protected class, and evidence that similarly situated employees outside the protected class received systematically better treatment.13 A plaintiff’s superior education and experience, together with incidents of prejudicial treatment can be sufficient to establish an inference that promotion of a white person instead of a black employee was racially motivated.14 Similarly, in a failure to hire claim, the prospective employee must show that he or she was equally qualified as the applicant who was hired for the position. In Cowan v. Unified School District,15 the court found that the decision to hire a white basketball coach was not racially motivated as the successful white candidate had record of 250 wins and 34 losses in 12 years as head coach at another high school, had coached in four state championships and ten league titles, and had won numerous teaching and coaching awards. Discrimination based on race may also established by proving that the employer or its employees created a hostile work environment.16 Verbal intimidation, ridicule, and insults based on race may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII.17 To be actionable, the challenged conduct must be sufficiently severe or pervasive as to create an environment that a reasonable person would find hostile or abusive considering all the circumstances.18 Factors to be considered include: the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or merely an offensive utterance, and whether it unreasonably interferes with an employee's work performance.19 Conduct in the workplace that could be labeled as “harassment” will not fall within the purview of Title VII, however, if (1) it fails to affect a term, condition, or privilege of employment or (2) it is not based on a prohibited discriminatory animus.20 Further, to establish a viable racial harassment claim, the plaintiff must present “more than a few isolated incidents of racial enmity.”21 Simple teasing, offhand remarks, or the occasional utterance of a racial epithet will not be sufficient to establish a hostile work environment.22 Evidence of “routinely [made] racist remarks,” however, may be sufficient to raise a fact issue to prevent a summary judgment for the employer.23 B. Discrimination Based on Sex Title VII prohibits employers from discriminating against any person with respect to hiring, firing, or with respect to compensation, terms, conditions, or privileges of employment because of such person’s sex. In addition, the Equal Pay Act of 1963 requires that male and female employees performing the same work for the same employer receive the same pay. In
13 Burnell v. Gates Rubber Co., 647 F.3d 704, 709 (7th Cir. 2011). 14 McCullough v. Real Foods, Inc. 140 F.3d 1123 (8th Cir. 1998). 15 501, 316 F. Supp. 2d 1061 (D. Kan. 2004). 16 Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007). 17 Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000). 18 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). 19 Harris v. Forklift Systs., Inc., 510 U.S. 17, 23 (1998). 20 Trujillo v. Univ. of Colo. Health Sci. Ctr., 157 F.3d 1211, 1213 (10th Cir.1998). 21 Jones v. Barnhart, 349 F.3d 1260, 1268 (10th Cir.2003). 22 North v. Madison Area Assoc. for Retarded Citizens-Dev. Ctrs. Corp., 844 F.2d 401, 408-09 (7th Cir.1988). 23 Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000).
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1978, Title VII was amended to expand the prohibition against discrimination because of sex to include pregnancy, childbirth or related medical conditions. In recent years, the steady increase of educated women and a growing need for dual income families has brought many women to a traditionally male workplace. Women and men comprise almost equal amounts of the modern day workforce, but men still dominate the higher ranking and decision making positions in companies, which can be attributed to prevailing perceptions that women lack managerial ability, are less effective leaders, and have fewer attributions for organizational successes.24 Consequently, VII claims based on sex discrimination account for approximately 30 percent of all Title VII complaints to the EEOC.25 In order to prevail in a discrimination action the plaintiff must show that the employer’s action or decision adversely affected a term or condition of employment. In Shackelford v. Deloitte & Touche, LLP,26 the court held that plaintiff’s denial of training was not actionable because she could not show that the training would affect her employment status, benefits, or responsibilities. Further, plaintiffs in a sex discrimination claim must also be able to show that similarly situated male employees received benefits that were not available to female employees.27 Similarly situated requires that the plaintiff demonstrate that she is similarly situated to the male employee in all relevant respects, not necessarily in every respect.28 In Merritt v. Old Dominion Freight Line, Inc.,29 the court noted that while no single piece of evidence proved discrimination, but that the evidence taken in its entirety was sufficient to establish that the plaintiff’s termination was based on a sexually stereotyped work environment. An exception to the prohibition against sex discrimination arises if there is a BFOQ based on sex. While the BFOQ defense also exists for religion and national origin claims, it is most commonly raised in sex discrimination suits.30 The employer has the burden of showing that this qualification is necessary for the successful performance of the job, such as a female actor to play a female character, or for privacy concerns of customers.31 Female gender was found to be BFOQ for correctional and residential unit officer positions at female prisons, since exclusion of males from such positions was reasonably necessary to normal operation of facilities; the BFOQ materially advanced the security of the prison and the safety and privacy rights of inmates.32 It is not sufficient that the employer allege that female employees are simply preferred by customers, for example to justify a preference for hiring only women flight attendants.33 Similarly, a BFOQ will not exist solely because the employer’s policies are intended to benevolently protect women from seemingly dangerous jobs.34
24 Jenny M., Hoobler, Sandy J Wayne, & Grace Lemmon, Bosses’ Perceptions of Family – Work Conflict and Women’s Promotability: Glass Ceiling Effects, 52 ACAD. MGT. J. 939 (2009). 25 EEOC Charge Statistics, supra note 10. 26 190 F.3d 398, 406-07 (5th Cir.1999). 27 Martin v. Gen. Elec. Co., 187 F. App’x 553 (6th Cir. 2006). 28 Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796 (6th Cir.1994). 29 601 F.3d 289 (4th Cir. 2010). 30 Katherine Manley, The BFOQ Defense: Title VII's Concession to Gender Discrimination, 16 DUKE J. GENDER L. & POL’Y 169 (2009). 31 Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996). 32 Everson v. Mich. Dep’t of Corrections, 391 F.3d 737 (6th Cir. 2004). 33Wilson v. Southwest Airlines Co., 517 F. Supp 292 (N.D. Tex. 1981). 34 Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991). An exception to the general rule that safety cannot be the basis of a BFOQ is found in Dothard v. Rawlinson, 433 U.S. 321 (1977), where
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Sexual harassment is a form of discrimination that the Supreme Court has recognized as a violation of Title VII.35 Two types of sexual harassment are actionable: quid pro quo where a work benefit is offered in exchange for sexual favors and hostile work environment.36 In order to prevail on a quid pro quo claim, the plaintiff must show that some tangible employment action was the result of the alleged harassment.37 While a hostile environment claim does not require evidence of a tangible employment action, the sexual activity, including touching, jokes, remarks, and other behaviors, must create a hostile or abusive work environment impeding the victim’s ability to perform his or her job.38 Isolated incidents or mere uncivil conduct are generally not sufficient to establish a hostile work environment;39courts will consider the frequency and intensity of the offensive conduct.40 The actions and comments complained of must be sufficiently severe and pervasive and must be directed at the victim or observers of the conduct because of sex.41 In Faragher v. City of Boca Raton42 and Burlington Industries, Inc. v. Ellerth,43 the Supreme Court set the standard for holding an employer liable for sexual harassment. An employer is strictly liable for quid pro quo harassment by a supervisor or if the supervisor’s harassment results in a tangible employment action (e.g., the employee is fired or is denied a promotion). Otherwise, for most hostile environment claims, the employer may raise an affirmative defense that it exercised reasonable care to prevent and correct any offensive behavior and that the employee failed to use the procedures established by the employer to remedy the problem. It has been suggested that as long as an employer has policies and procedures in place and takes appropriate actions when a complaint is filed it will be difficult for a plaintiff to prevail; on the other hand, if the court determines that the initial incident was insufficiently severe to be actionable, the employee will not be able to establish a cause of action even if the incident is reported.44 In addition, courts have looked at the impact of workplace culture on hostile workplace environment claims and have suggested that in certain industries,
the Supreme Court allowed a safety-based BFOQ due the "peculiarly inhospitable" environment of prisons, characterized by a "jungle atmosphere" and "rampant violence. Id. at 334-35. 35 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). 36 29 CFR § 1604.11(a). 37 Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th Cir. 2000). 38 29 CFR § 1604.11(a)(3); Shepherd v. Comptroller of the Public Accounts of Tex., 168 F.3d 871 (5th Cir. 1999). 39 Indest v. Freeman Decorating, Inc. 164 F.3d 258, 265 (5th Cir. 1999). 40 E.g., Kaytor v. Elec. Boat Corp., 609 F.3d 537 (2d Cir. 2010). 41 Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264, 132 P.2d 211 (2006). 42 524 U.S. 775 (1998). 43 524 U.S. 951 (1998). 44 Evan D.H. White, A Hostile Environment: How the "Severe or Pervasive" Requirement and the Employer's Affirmative Defense Trap Sexual Harassment Plaintiffs in a Catch-22, 47 B.C. L. REV. 853 (2006). In Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157 (5th Cir. 2007), the employer was able to avoid vicarious liability due to its policy on sexual harassment, its training program, and its prompt action following plaintiff's formal complaint, even though the court found the supervisor’s behavior sufficiently severe or pervasive to create a hostile environment.
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women must expect that they will be subject to a certain amount of harassment and voluntarily subject themselves to such treatment by electing to work in such environments.45 C. Discrimination Based on Religion The majority of cases involving religious discrimination stems from an employer’s failure to reasonably accommodate an employee’s religious beliefs. Title VII covers not only an employee’s faith, but also personal religious practices or observances, expressions of beliefs, and “moral and ethical beliefs as to what is right and wrong . . . .”46 One of the most common reasonable accommodations requested by employees is the scheduling of work days to avoid working on days of religious observance. In this respect, the employer and employee should attempt to develop a mutually agreeable solution; however, the employer does not have to provide the accommodation most preferred by the employee as long as a reasonable accommodation is offered.47 Moreover, the employer is not required to make an accommodation if it would cause undue hardship, such as a significant cost.48 Plaintiffs have also alleged failure of religious accommodation when an employer’s grooming standards are inconsistent with religious garb. In order to establish a prima facie case of religious discrimination the employee must have a sincere religious belief that conflicts with an employer’s dress code, inform the employer of the conflict, and must have been disciplined for failing to comply with an employer’s rule. Then the burden of proof shifts to the employer to show that an accommodation would cause undue hardship to the company or that a reasonable accommodation was offered and rejected by the employee.49 Employers will prevail if they can show that the dress and grooming requirements are necessary for health or safety or that making an accommodation would create an undue hardship.50 For example, in a case where a female worker wished to cover her hair with a khimar while on duty, based on requirements of her Muslim faith, the court agreed with the employer, a police department, that wearing religious clothing could interfere with effective law enforcement and that there was a legitimate reason for enforcing uniform appearance standards.51 On the other hand, in EEOC v. Alamo Rent-A-Car,52 the court held that allowing an employee to wear a head veil while serving customers would not unduly burden the employer. D. Discrimination Based on Age Older people are subject to age discrimination based on stereotypes about their ability to perform, and as a result, older people who lose their jobs often find it difficult to find new employment.53 While the Age Discrimination in Employment Act (ADEA) is intended to prohibit this behavior, age discrimination is perhaps one of the most difficult types of
45 Christopher Massaro, The Role of Workplace Culture Evidence in Hostile Workplace Environment Sexual Harassment Litigation: Does Title VII Mean New Management of Just Business as Usual?, 46 N.Y.L SCH. L. REV. 349 (2003). 46 29 C.F.R. § 1605.1 (2010). 47 Ansonia Bd. of Educ. v. Philbrook, 476 U.S. 60 (1986). 48 Trans World Airlines, Inc. v. Hardison, 423 U.S. 63 (1977). 49 Tanya Marcum & Sandra J. Perry, Dressed for Success: Can a Claim of Religious Discrimination Be Successful, 61(4) LAB. L.J. 184 (2010). 50 Kalsi v. New York City Trans. Auth., 62 F. Supp. 2d 745 (S.D.N.Y. 1998). 51Webb v. City of Philadelphia, No. 05-5238, 2007 WL 1866763, at *4 (E.D. Pa. June 27, 2007). 52 432 F. Supp. 2d 1006, 1011 (D. Ariz. 2006). 53 D. Aaron Lacy, You Are Not Quite as Old as You Think: Making the Case for Reverse Age Discrimination under the ADEA, 26(2) BERKELEY J. EMP. & LAB. L. 363 (2005).
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discrimination to prove.54 The ADEA was passed in 1967, four years after Title VII, and its language is sufficiently dissimilar to lead courts to interpret its legislative intent differently, especially after Title VII was amended. The ADEA provides that an employer shall not “refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”55 In order to be protected under ADEA, the worker must be at least 40 years old.56 However, unlike claims arising under Title VII, an age discrimination claimant must show that age was the “but-for” cause of the employer's adverse decision.57 Thus, employers have generally prevailed in lawsuits claiming age discrimination as long as they can offer any non-age related reason for their actions. For example, poor performance, internal reorganizations (e.g., downsizing), or non-compete issues have all been viewed as legitimate reasons for an employer’s actions that adversely affected an older worker, thus defeating the age discrimination claim.58 When an employee was laid off in a reduction in force and the employer presented evidence that the employee lacked certain computer skills, the court determined that a reason other than age was the basis for his dismissal.59 In fact, a plaintiff’s burden to prove age discrimination appears to be greater in a reduction in workforce situation. Thus, evidence consisting solely of the age of the terminated employee and age of the man who replaced her was insufficient to establish age discrimination.60 Similarly, a terminated employee was not able to establish that the employer retained younger workers in the same position or otherwise failed to treat age neutrally in implementing a reduction in force, thus defeating the employee’s age discrimination claim.61 Based on these decisions, employers are often able to successfully raise defenses that so strongly correlate with age that they appear to be thinly veiled covers for discrimination.62 Even if an employee can show he or she was similarly situated, the employer will prevail if it can articulate a legitimate, non-discriminatory reason for its action.63 Legitimate, non- discriminatory reasons may include poor performance reviews and customer and co-worker complaints.64 For example, in Jones v. National American University,65 the evidence was sufficient to support a university's failure to promote 56-year-old employee to director of admissions position on the basis that she lacked management and marketing experience. A plaintiff generally cannot prevail simply by showing that he was better qualified (i.e., more experienced) than the individual who received the position he wanted. Further, the determination
54 Ann Marie Tracey, Still Crazy After All These Years? The ADEA, the Roberts Court, and Reclaiming Age Discrimination as Differential Treatment, 46 ALSB AM. BUS. L.J. 607 (2009). 55 29 U.S.C. § 623(a)(1) (2006). 56 Id. § 631(a). 57 Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009). 58 Balderston v. Fairbanks Morse Engine Division of Coltec Indus., 328 F3d 309 (7th Cir. 2003); Jetter v. Knothe Corp., 324 F3d 73 (2d Cir. 2003). 59 McGrath v. Lockheed Martin Corp., 48 F. App’x 543 (6th Cir. 2002). 60 Blankerts v. Gladieux Enterprises, 197 F. Supp. 2d 956 (N.D. Ohio 2002). 61 Gonzalez v. Black & Decker, 193 F. Supp. 2d 419 (D.C.P.R. 2002). 62 Judith I. Johnson, Reasonable Factors Other Than Age: The Emerging Specter of Ageist Stereotypes, 33 SEATTLE U. L. REV. 49 (2009). 63 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). 64 Brennan v. Tractor Supply Co., 237 F. App’x 9 (6th Cir. 2007). 65 608 F.3d 1039 (8th Cir. 2010).
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of “qualification” is at the discretion of the employer. Thus, in Simmons v. Boeing Co.,66 even though the plaintiff had worked for the employer for 20 years, its promotion of a younger employee who held an advanced degree and a professional certification was deemed not to be discrimination. The plaintiff had claimed that her years of experience should have been taken into account in the determination of who received the promotion. However, the court determined that Boeing’s policies clearly stated that “education is valued more highly than experience and every year of education entitles an interviewee to two years of experience credit.”67 III. Retaliation In addition to prohibiting acts of discrimination in the workplace most anti-discrimination statutes also contain a provision barring retaliation against the employee. For example, Title VII provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.68 In order to present a prima facie case of retaliation a plaintiff must prove (1) that he engaged in protected activity under Title VII or another statute; (2) that the employer was aware of this activity; (3) that the employer took adverse action against the plaintiff; and (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.69 In determining whether the plaintiff met the burden of proof with respect to the third requirement, the U.S. Supreme Court, in Burlington Northern & Santa Fe Railway Co. v White,70 stated that “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Although the Supreme Court’s standard for retaliation cases is different from what the plaintiff must prove to establish discrimination, many courts continue to require employees to show that they suffered some economic loss due to the retaliation.71 In Fuentes v. Postmaster General of United States Postal Service,72 the appellate court stated that the term “adverse employment action” includes only “ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.” In cases where the adverse employment action takes the form of rude conduct and an otherwise hostile work environment, the circuits are generally in agreement that such behavior falls into the definition of “petty slights, minor annoyances, and simple lack of good manners” that the Burlington Court expressly characterized as non-actionable.73 Thus, claims of retaliation tend to require a showing of some tangible harm,
66 No. 5:05-CV-28, 2006 WL 2644913 (M.D. Ga. Sept. 14, 2006), aff’d, 251 F. App’x 647 (11th Cir. 2007). 67 2006 WL 2644913, at *7. 68 42 U.S.C. § 2000e-3(a) (2006). 69 Cifra v. G.E. Co., 252 F.3d 205, 216 (2nd Cir. 2001); McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991). 70 548 U.S. 53, 68 (2006). 71 Sykes v. Pennsylvania State Police, 311 F. App’x 526, 529 (3rd Cir. 2008). 72 282 F. App’x 296, 301 (5th Cir. 2008). 73 548 U.S. at 68.
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such as loss of employment, reduction in pay, or a significant change in employment circumstances.74 In addition, the plaintiff must also establish causality between the making of a complaint and the adverse employment action. Causality can be established if there exists direct or other non circumstantial evidence.75 For example in Patane v. Clark,76 the plaintiff testified that she had overheard her supervisor conspiring to drive her out of her job and that another professor, to whom she reported, issued a negative performance review, constantly monitored her actions, and picked up her telephone. Thus, there was a sufficient causation between the complaint and the adverse action despite a one-year gap between the complaint and the retaliation. Absent direct evidence, however, it is often difficult to prove causality unless the proximity is “very close.”77 For example, the Tenth Circuit held that three and one half months between the EEOC charge and denial of tenure was too much time to establish causation by temporal proximity alone.78 Creation of a retaliatory hostile work environment may be illegal if it is so pervasive that it would amount to constructive discharge79 which is discussed in the next section. IV. Constructive Discharge Constructive discharge occurs when an employer creates intolerable working conditions, forcing an employee to quit. As a result, the employee’s departure is not considered an actual voluntary quit; rather the resignation is viewed as being coerced because the employee feels forced to quit.80 Thus, a constructive discharge is treated as an actual discharge meeting the definition of an ultimate employment action required for a discrimination claim and to a lesser extent a retaliation claim,81 as well as to preclude an affirmative defense under Faragher.82 The constructive discharge doctrine has roots back to the 1930’s when the National Labor Review Board (NLRB) viewed a constructive discharge as a termination and held employers liable for the employee’s departure because they created or allowed work conditions to precipitate the employee’s quit.83 The NLRB, in 1936, coined the term constructive discharge when they found an employer deliberately coerced or forced employees to resign when the employer stationed police officers to watch over those employees who showed interest in the union; such employer actions violated the Wagner Act according to the NLRB.84 Over the years,
74 Alix Valenti, Burlington Northern & Santa Fe Railway Co. v. White: Are Plaintiffs More Successful in Litigating Retaliation Claims? 11(2) ALSB J. EMP. & LAB. L.146 (2009) (hereinafter referred to as Valenti). 75 Vance v. Chao, 496 F. Supp. 2d 182, 186 (D.D.C. 2007). 76 508 F.3d 106 (2d Cir. 2007). 77 Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001); Summers v. Winter, 303 F. App’x 716, 720 (11th Cir. 2008); Pittman v. Gen. Nutrition Corp., 515 F. Supp. 2d 721, 737 (S.D. Tex. 2007). 78 Meiners v. Univ. of Kansas, 359 F.3d 1222, 1231 (10th Cir. 2004). 79 Jones v. Fitzgerald, 285 F. 3d 705. (8th Cir. 2002); Alix Valenti & Lisa A. Burke, Post-Burlington: What Employers and Employees Need to Know about Retaliation, 22(3) EMP. RTS. & RESP. J. 235 (2010). 80 Robert J. Paul, & Kathryn Seeberger, Constructive Discharge: When Quitting Constitutes Illegal Termination, 23(2) REV. BUS. 23 (2002) (hereinafter Paul & Seeberger); Mary-Kathryn Zachary, The Real World of Work and Aggrieved Employees, 69(10) SUPERVISION 21 (2008) (hereinafter Zachary). 81 Paul & Seeberger, supra note 80. 82 Jaros v. LodgeNet Entertainment Corp., 294 F.3d 960 (8th Cir. 2002). 83 Alexis C. Knapp, Driving Them Away – The Employee Who Quits in Response to Harassment, 6(2) HOUS. BUS. & TAX L.J. 282 (2006) (hereinafter Knapp). 84 Id.
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even the NLRB raised its standard for constructive discharge in terms of the employer’s motive and the timing between employer actions and the employee’s departure. The essential element of a constructive discharge claim, according to most courts is the “intolerability test,” meaning that the employer created a work condition so intolerable that a reasonable person would have felt forced to quit.85 While some courts have additionally applied a deliberateness test to prove the element of intention on the employer’s part,86 others only require evidence that the employer knowingly permitted the conditions to exist. For example, in Goss v. Exxon Office Systems87 a saleswoman was verbally harassed by her boss about her plans to have children, and after returning from sick leave as a result of a miscarriage her sales territory was taken away and replaced with a less profitable territory. When she objected, Goss was told to either accept the lesser assignment (i.e., a tangible employment action) or resign. Consequently, the court concluded Goss was constructively discharged, without a finding of specific intent on the part of the employer. 88 Courts typically expect more than an employee’s simple claim of unpleasant work conditions; in other words, the frequency and severity of the employer actions are considered.89 Further, the courts have noted that a claim of constructive discharge must involve conduct that is more extreme than is required to prove a hostile work environment.90 Beyond the nature of the employer’s actions, courts will also closely examine potential reasons behind any change in work conditions and the timing of events. Courts will generally rule in favor of the employer if the employee quits before trying to resolve the issues with the employer. For example, in Duncan v. General Motors Corp.91 the court concluded the plaintiff did not give the employer a reasonable opportunity to work out the problem with her supervisor before she submitted her resignation; Duncan had resigned and filed an EEOC complaint prior to submitting her written allegations to General Motors and prior to General Motors’ initiation of any corrective action.92 To assess reasonableness, courts consider whether the employee continues working and makes attempts to remedy the working conditions,
85 Paul & Seeberger, supra note 80. 86 Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999); Knapp, supra note 83; Paul & Seeberger, supra note 80. 87 747 F.2d 885 (3d Cir. 1984). 88 Id. at 888; see Gerald E. Calvasina, Richard V. Calvasina & Eugene J. Calvasina, Harassment – Constructive Discharge and the Affirmative Defense, 6(2) J. LEGAL, ETHICAL, AND REG. ISSUES 23 (2003) (hereinafter Calvasina). 89 Knapp, supra note 83. 90 Johnson v. Rumsfeld, 238 F. App’x 105 (6th Cir. 2007). In Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 167 (5th Cir. 2007), the court noted the following as evidence that a reasonable employee would feel compelled to resign: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement, or continued employment on terms less favorable than the employee's former status (citing Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)). Even evidence of racial harassment by the plaintiff’s supervisor was not sufficient to state a claim of constructive discharge under the Fifth Circuit’s standard. Nassar v.Univ. of Tex. Sw. Med. Ctr. ___ F.3d ___, 2012 WL 745296 (5th Cir. 2012). 91 300 F.3d 928 (8th Cir. 2002). 92 Calvasina, supra note 88. See also Williams v. Barnhill’s Buffet, Inc., 290 F. App’x 759 (5th Cir. 2008).
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thereby giving the employer a chance to respond and make corrections.93 In Dornhecker v. Malibu Grand Prix Corp.,94 a court found for the employer on the basis of the employer’s response alone because the president responded to the alleged victim within 12 hours of the incident. Similarly, in Jackson v. Arkansas Department of Education., Vocational and Technical Education Division,95 the court found no constructive discharge when the employer immediately activated its harassment policy to investigate the plaintiff’s complaint and to prevent the offending party from repeating the behavior. In Pennsylvania State Police v. Suders,96 the Supreme Court tackled the following question: is a constructive discharge, where an employee quits in response to alleged (intolerable) harassing conditions, equivalent to a tangible employment action? Essentially, the court responded “not necessarily.”97 The Court held that an employer may invoke an “affirmative defense” in a constructive discharge claim that involves supervisory harassment unless a supervisor’s tangible employment action precipitated the constructive discharge,98 such as a demotion, salary cut, or reduction in job responsibilities to menial or degrading work99 This case was a win for employers as automatic (vicarious) liability could be avoided for employers who exercise reasonable care in responding to hostile environment claims. In Suders, the Court also made clear that the standard for proving constructive discharge is higher than the standard for proving hostile work environment harassment,100 which means that employee plaintiffs have to show work conditions are more egregious than one-time, offensive discriminatory behavior.101 For example, in harassment constructive discharge cases, the courts may also attempt to determine if the embarrassment (caused by the harassment) was daily and unavoidable and had a severe affect upon the employee’s reputation.102 Subsequent to the Suders decision, where employees allege a constructive discharge, despite offensive employer behavior over time, employers have generally been successful in defeating the claim. For example, in Zedeck v. Target,103 the court found for the employer saying essentially that the work environment, while unpleasant, was not so intolerable that a reasonable employee would have had no choice but to resign.104 Other plaintiff’s constructive discharge cases have been weaker and thus more understandably resulted in summary judgment for the employer. For example, in Torrech-Hernandez v. GE,105 the plaintiff alleged he was terminated from his position as plant manager, or subject to constructive discharge, based on his age. However, the appellate court determined it was clear that the employee voluntary resigned his position (i.e., made a free choice) since the employee initiated the talks that lead to his resignation. The plaintiff employee also conceded he expressed a desire to leave the company in exchange for a severance package. Thus, the court concluded that an employee’s subjective
93 Knapp, supra note 83. 94 828 F.2d 307, 310 (5th Cir. 1987). 95 272 F.3d 1020 (8th Cir. 2001). 96 542 U.S. 129, 140 (2004). 97 Knapp, supra note 83, at 308. 98 Jonathon A. Segal, I Quit! Now Pay Me, 49(10) HR MAG. 129 (2004) (hereinafter Segal). 99 Calvasina, supra note 88. 100 Knapp, supra note 83 ; Segal, supra note 98. 101 Knapp, supra note 83. 102 Calvasina, supra note 88. 103 No. 07-60364-CIV, 2008 WL 2225661 (S.D. Fl. May 29, 2008). 104 Id. at 14; see Zachary, supra note 80. 105 519 F.3d 41 (1st Cir. 2008).
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interpretation that his/her continued employment would be uncomfortable or demeaning and lead to demotion or termination does not constitute constructive discharge. Similarly, a mere transfer of shift assignment or dissatisfaction with a work conditions will not rise to the level of intolerable work conditions to support a finding of constructive discharge.106 More recently, in Trierweiler v. Wells Fargo Bank,107 the court concluded the plaintiff failed to demonstrate intolerable working conditions and failed to provide her employer a reasonable opportunity to remedy the situation. V. Research Question Based on the preceding review of the case law in these three areas it appears the standards for establishing discrimination, retaliation, and constructive discharge are quite high and that courts are continually reticent to find employers liable in such cases, which leads to the research objective of the present study. We attempt to determine whether potential plaintiffs (i.e., from the perspective of respondents in our study) find certain behavior by employers as grounds for filing an internal or external grievance or as grounds for quitting. If most respondents would file a grievance because they think the treatment is sufficiently egregious, then we can surmise that courts' recent decisions are likely to be perceived by workers as unfairly ruling in favor of employers in actions based on discrimination, retaliation, or constructive discharge. And if so, it would be reasonable to advance that the elements of employment-related claims should be revisited by legal scholars and the courts to bridge the gap between aggrieved workers’ perceptions and court conclusions of fair treatment in the workplace. VI. Method To test individuals’ reactions to acts of discrimination, we developed five written scenarios based on a combination of federal cases in which the district court granted the employer’s motion for summary judgment (and the decision was affirmed when the case was appealed to the court of appeals), that is an “employer win.” Each scenario was focused on a specific type of discrimination: age, race, religion or sex, (with one for sex discrimination and one for sexual harassment). Each written scenario had two parts: the first part described actions on behalf of the employer, the supervisor, or another employee, which involved conduct that could be described as discriminatory from a legal standpoint against an employee. After reading the first part, respondents were then asked whether, based on the actions described, they would: complain to the Human Resource Department, file a complaint of discrimination to the EEOC, or quit their job. A Likert Scale from 1 to 4, Strongly Disagree, Somewhat Disagree, Somewhat Agree and Strongly Agree, measured respondent reactions. The second part of the written scenarios told respondents to assume they had made a complaint, and that after making the complaint the discrimination worsened or other adverse employment actions took place, simulating potential workplace retaliation. Respondents were then asked whether they would have avoided making the first complaint if they knew that they would be punished because they had complained, or whether they would have felt compelled to quit their job, thus tapping the constructive discharge concept. The instrument was first piloted using students in an undergraduate legal studies class who were working on a research project involving sexual harassment and who recommended some changes to enhance the clarity of the written scenarios.
106 E.g., Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th Cir. 2001); Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). 107 639 F.3d 456, 460 (8th Cir. 2011).
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The instrument, which was approved by each university’s human subjects committee, was given to undergraduate Principles of Management students in a state university in the southeast and to undergraduate and graduate Organizational Behavior students in a state university in Texas. Students were told that participation in the anonymous survey was entirely voluntary, that results would be reported in aggregate, and that participating (or not) would have no effect on their grade. In total, 140 usable surveys were returned. More than 80 percent of the respondents were between age 21 and 30, with 12 percent over the age of 40. Approximately 54 percent were males and 75 percent were undergraduate students. Over 75 percent of the students had at least one year of work experience, and over 30 percent of respondents reported having at least one year of management experience. VII. Results We first examined whether, in general, respondents would report any of the five workplace incidents to their Human Resources Department or to the EEOC. Overall, the mean for making a complaint to HR was 3.17, while the mean for filing a complaint with the EEOC was 2.67, thus indicating that individuals were more likely to pursue internal (as opposed to external) remedies across the five discrimination situations. A one-way ANOVA comparing whether students would report the discrimination to HR or the EEOC also indicated that there are significant differences in respondents’ willingness to file a grievance depending upon the type of case (F(4,695)=36.630, p<.000; F(4,695)=37.833, p<.000). Tukey’s HSD was used to determine the nature of the differences. This analysis revealed that respondents were less likely to report discrimination based on age or religion and most likely to report incidents of sexual harassment (internally and externally). Tables 1 and 2 contain means and the Tukey significance statistics. Insert Tables 1 and 2 about here We then turned to the issue whether any of the demographic variables would affect a person’s decision to file a complaint either internally to HR or externally to the EEOC. Model estimation using regression analysis showed that only sex (with female coded as 1) significantly predicted the likelihood of making a complaint with HR, indicating that females are more likely to file an internal discrimination grievance. Older respondents and individuals with managerial experience were less likely to state that they would make a complaint, although the coefficients for these variables were not statistically significant. We then investigated whether demographics affected the student’s response to the various types of discrimination, anticipating that older respondents would react more strongly to the scenario involving age discrimination, females would react more strongly to the scenarios involving sexual harassment and sex discrimination, and that managers would be less likely to file a complaint in any situation as they are likely to embrace an “employer-perspective” on organizational issues. Separate regressions were estimated for each type of discrimination (see Table 3), and we found that differences existed across the scenarios and with respect to different demographic factors. As predicted, when the type of discrimination involved a female employee being denied training together with the supervisor’s obvious preferential treatment of male subordinates (i.e., sex discrimination), female students indicated that they were significantly more likely to make a claim with their HR department or with the EEOC, and were more likely to quit. However, the sex of the respondent did not affect the response in the sexual harassment or any of the other scenarios. Management experience, as expected, was negatively related to making a complaint in the religious, race, and sex discrimination cases. However, counter to
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what we anticipated, age was negatively related to making an external complaint to the EEOC in the age (and sexual harassment) cases. Insert Table 3 about here
A. Retaliation Findings The survey question regarding retaliation emanated from the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v White,108 which set the standard for determining whether a materially adverse employment action had taken place to dissuade a reasonable worker from making or supporting a charge of discrimination. Specifically, we asked respondents whether they would have avoided making the original complaint if they knew that unfavorable actions would occur as a result in their working conditions. Less than 30 percent of the students agreed or strongly agreed (and only 9 percent strongly agreed) that they would not have complained about the initial behavior if they knew that making a complaint would consequently aggravate their work situation. These results suggest that individuals in general would not be dissuaded from making their original complaint based on subsequent employment actions they encountered in their working conditions. When the mean for each type of discrimination was examined, the mean for sexual harassment was the lowest (1.45), suggesting that continued sexual harassment after making the original complaint would not have dissuaded the employee from making the original complaint. This highlights individuals’ particular disdain for workplace sexual harassment. In the case regarding age discrimination, where, after the complaint, the employee’s job title was changed (but not salary) and performance ratings were lower, the mean for the response to the retaliation question was the highest, but still only at 2.46, indicating a fairly neutral reaction among the respondents. Using regression analysis, we also tested whether any group of respondents (e.g., based on sex, age, and experience) found the subsequent actions to be retaliatory (see Table 3). The results reveal that only work experience was significant in the model, suggesting that more experienced workers were less likely to agree that the subsequent actions would have dissuaded them from making a complaint in the first place. This finding suggests that workers with more years of general work experience are more likely to persist in their negative response to original discriminatory actions despite adverse actions they may endure after filing the grievance. B. Constructive Discharge Findings To test whether individuals might raise a constructive discharge claim, we looked to whether they indicated they would quit after the discrimination or after the retaliation. In only 20 percent of the cases did the respondents report that they agreed or strongly agreed (5.7 percent for strongly agreed) that they would quit after the first discriminatory behaviors. After the retaliation, the number more than doubled to 13.57 percent, where the student strongly agreed that he or she would quit, and 42 percent where the student agreed that he or she would quit. The difference between the means of the two variables was significant at p<.001. Regression models suggested respondents with more management experience were less likely to feel like they were forced to quit both after the original discrimination and after the retaliatory event, while females and respondents with more overall work experience were more likely to quit after the retaliation. This finding that individuals with management experience tended to disagree with the statement that they would quit may suggest that non-management workers are more willing to leave an organization after they experience discrimination or retaliation and thus more likely to ultimately
108 548 U.S. 53 (2006).
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file a constructive discharge claim. Given the findings here regarding females and constructive discharge, and the fact that many of the plaintiffs in the constructive discharge cases in our literature review were female, future researchers could investigate whether constructive discharge claims are generally brought by females. If so, why do females more so than males feel “forced to quit” in such workplace situations? VIII. Discussion The purpose of our study was to determine whether the community in general would find workplace conduct to be unfair and offensive under circumstances where courts had previously ruled that such conduct did not constitute illegal discrimination. In cases involving race or sex discrimination, including sexual harassment, respondents generally found the actions to be sufficiently offensive to warrant a complaint to the HR department. Not surprisingly, race and sex discrimination are two of the more common types of discrimination claims currently filed.109 Thus, we propose that workers would generally find courts’ decisions favoring employers in race discrimination, sex discrimination, and sexual harassment cases as unfair to employees. Put simply, to answer our opening research question – most workers would likely feel that courts are “getting it wrong” at least in race, sex, and sexual harassment cases. Respondents in our study, however, appeared to be less sensitive to the scenarios involving age or religious discrimination. We speculate that since the average age of our sample was under 30, such respondents may not be as sensitive to the age issue as they are to other forms of discrimination that are more salient to them. Finally, in classroom discussions (that the first author has had with students during class) about religious discrimination scenarios, students generally agree with employer practices of prohibiting the wearing of jewelry including religious medals as long as the ban is reasonable and uniformly applied to all employees. This was particularly true in our study’s findings with respect to the respondents who had managerial experience; they were more likely to disagree with the filing of a complaint either with Human Resources or the EEOC in the religious discrimination scenario. Several demographic differences among the respondents in our study were revealed with respect to reactions to the five types of employment discrimination. In the case of outright sex discrimination, females were more likely to make a complaint or quit after retaliation. This finding was anticipated; however, one might expect that females might also be more concerned with the scenario involving a male manager’s sexual harassment of his female subordinate. The difference in the means between males and females’ likelihood to file a complaint in this situation was not statistically significant (Complain to HR, Female: 3.78; Male: 3.62; Complain to EEOC, Female: 3.38; Male 3.29). The lack of differences in this latter scenario may be explained by recent reports that the number of harassment cases claiming female-on-male or same-sex harassment is increasing,110 thereby making both sexes comparably disturbed by and sensitive to sexual harassment in workplace situations. Age and management experience variables were also significant in several of the analyses, and in all cases the relationship between the predictor variable and the likelihood of taking action was negative. Older workers and managers may have longer tenure with a single employer and thus have developed a certain amount of organizational loyalty that could deter them from making a complaint against their employer or quitting. They might have enjoyed more satisfying experiences during their tenure of employment, which could also increase
109 EEO Charge Statistics, supra note 10. 110 Society of Human Resource Management, Nontraditional Workplace Harassment Lawsuits Increasing, HR WK. (May 23, 2011).
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commitment.111 Managers are more likely to identify with their employers and support employment actions, which can explain their neutral reactions to discriminatory behaviors. In addition, older workers may be more concerned with keeping their jobs (i.e., to support their dependents) and, therefore, less likely to take actions that could be perceived as jeopardizing their careers. Conversely, years of overall work experience was, in general, positively related to filing a complaint or quitting, further suggesting that an experienced rank and file worker may have less tolerance for unfair workplace treatment. Respondents’ answers to the question about retaliation can be interpreted as meaning that subsequent adverse actions would generally not have dissuaded them from making their original complaint. In other words, even if employees experience retaliation, they are generally not regretful of making their original complaint. This is an interesting finding because while retaliation claims have risen dramatically over the years,112 and are now the type of claim most frequently filed with the EEOC,113 evidence does not indicate that plaintiffs are necessarily winning these cases.114 Our findings confirm some legal analysts’ position that the Burlington decision may actually make it more difficult for plaintiffs to win retaliation cases because the very fact that they filed the retaliation claim proves that they were not dissuaded from making a complaint in the first case.115
111 Sylvie Guerrero & Oliver Herrbach, Manager Organizational Commitment: A Question of Support or Image?, 20 INT’L J. HUM. RES. MGMT. 1536 (2009). 112 Michael Higgins, OK, Your Move ...: Workers and Bosses Get Caught up in Chess Game of Bias Charges, Retaliation, EEOC Complaints, 85(5) A.B.A.J. 26 (1999); Martha Neil, A Trap for Employers: Retaliation Actions Are on the Rise in Employment Discrimination Cases, 91(8) A.B.A.J. 20 (2005). 113 EEOC charge statistics, supra note 13. 114 Valenti, supra note 94. But see David L. Hudson, Back at Ya: Employee Retaliation Claims Play Big before the High Court, 97(6) A.B.A.J. 21 (2011), who suggests that, contrary to its general pro-business reputation, the Supreme Court appears to favor plaintiffs in retaliation actions. For example, in Thompson v. North American Stainless LP, 131 S. Ct. 863 (2011), the Supreme Court ruled 8-0 that a third party can recover for retaliation based his relationship to an employee who filed a discrimination complaint. In addition, shortly after the Burlington case was decided by the Supreme Court several scholars commented that the decision would be a boon to plaintiffs in retaliation cases. Erwin Chemerinsky, Workers Win in Retaliation Case, 43 TRIAL 58 (2007); Eileen Kaufman, Other Civil Rights Decisions in the October 2005 Term: Title VII, IDEA, and Section 1981, 22 TOURO L. REV. 1059 (2007); Ramona L. Paetzold, Supreme Court's 2005-2006 Term Employment Law Cases: Do New Justices Imply New Directions? 10 EMP. RTS. & EMP. POL’Y J. 303 (2006). 115 Mary Newman, Burlington Northern & Santa Fe Railway Co. v. White: The Scope of Retaliatory Actions and a Legal Catch-22, 30 HARV. J. L. & GENDER 519, 529 (2008). In Sykes v. Pa. State Police, No. 07-1494, 2008 WL 901969 (3rd Cir. Apr. 4, 2008), the Third Circuit, in finding for the employer, noted that none of the alleged conduct deterred the plaintiff from her “vigorous and repeated use of all available means to supplement, expand, and pursue allegations of discrimination to Human Resources, to her union representatives who filed grievances on her behalf, to the Bureau of Integrity and Professional Affairs, and to the EEOC.” Id. at *2. See also Anderson v. Gen. Motors, No. 08-2540, 2009 WL 237247 at *4 (3d Cir. Feb. 3, 2009); Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2007).
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Respondents were also asked whether they would find discriminatory conduct so objectionable that they would quit their jobs. In general the respondents’ reactions were that they would not quit their jobs after the initial discriminatory act. However, after they experienced perceived retaliation, the likelihood of their intention to quit increased. It is difficult to conclude that the reason for this response was that the action was not so intolerable that they would be forced to quit. Given the overall public’s lack of confidence with recent economic conditions and associated job insecurity, it may be that the community in general will tolerate rude and even illegal behavior in the workplace in order to keep their jobs. On the other hand, if the employer takes adverse action against an employee for complaining about illegal behaviors, an employee may become so incensed as to terminate employment. VIII. Conclusion and Implications for Legal Practitioners Our study was prompted by previous research suggesting that courts appear to have been siding with employers in discrimination lawsuits. Based on responses provided by 140 respondents, it is submitted that the broader community of workers and prospective plaintiffs generally disagrees with case outcomes being generated by our judicial system. In three out of five cases, respondents felt that the events described were serious enough to warrant a complaint to the Human Resources Department or the EEOC. Further, in 40 percent of the cases, respondent perceived retaliatory actions by the employer after making a complaint sufficiently egregious to force them to quit their jobs. While the overall trend of the courts in deciding in favor of employers in discrimination cases is not likely to change, we conclude that the average person in our society would probably disagree that the conduct depicted in our five scenarios, particularly regarding race or sex discrimination or harassment, is legal or fair and, consequently, disagree with courts’ decisions in many actions based on discrimination, retaliation, or constructive discharge. If prospective plaintiffs view their experiences in the workplace as unfair and illegal and expect that the court system will render a decision that will compensate them for their losses, it becomes difficult for counsel to explain why a court is not likely to agree with their assessment. Even more difficult to explicate is the likelihood that the court will dismiss the plaintiff’s complaint on a summary judgment motion, preventing the plaintiff’s having his or her day in court. Perhaps the elements of employment-related claims should be revisited by legal scholars and the courts to bridge the gap between aggrieved workers’ perceptions and court conclusions of fair treatment in the workplace. Regardless, the challenge for employment law practitioners is that they must be sensitive to the feelings of their clients while at the same time acknowledge that, in the majority of cases, the client has little chance of success. This study will be useful to attorneys who empathize with their clients’ frustration and can share the present study’s findings that many other lay observers would find their employers’ actions objectionable.
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Table 1: Student Would Complain to HR: Means and Significance Levels Using One-Way ANOVA
Case Mean Multiple Comparisons: Significance Levels Case 1 Case 2 Case 3 Case 4 Case 5 1. Age 2.7643 - 2. Race 3.4214 .000 - 3. Religion 2.6643 .850 .000 - 4. Sex 3.3071 .000 .777 .000 - 5. Sexual Harassment 3.6929 .000 .049 .000 .001 -
Table 2: Student Would Complain to EEOC: Means and Significance Levels Using One- Way ANOVA
Case Mean Multiple Comparisons: Significance Levels Case 1 Case 2 Case 3 Case 4 Case 5 1. Age 2.0786 - 2. Race 2.7071 .000 - 3. Religion 2.3500 .107 .012 - 4. Sex 2.9000 .000 .416 .000 - 5. Sexual Harassment 3.3286 .000 .000 .000 .001 -
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Table 3: Effects of Demographic Factors on Student Responses: Significant Regression Coefficients and Standard Deviations
Religious Race Sex Age Discrimination Discrimination Sexual Harassment Discrimination Discrimination Scenario Scenario Scenario Scenario Scenario Student would complain to Human Mgt Exp -.632** Mgt Exp -.587** Age -.937* Sex .375** Resources (.222) (.262) (.402) (.130) Experience .493** Experience .515* (.187) (.245) Student would file complaint with Age -.928* Mgt Exp -.584** Age -.975* Mgt Exp -.502** Sex .346* EEOC (.445) (.223) (.428) (.226) (.164) Mgt Exp -.651** (.218) Student would quit job before Mgt Exp -1.117*** Mgt Exp -1.27** Mgt Exp -.549** retaliation (.372) (.377) (.188)
Student would quit job after Experience .566* Experience .584* Experience .512* Sex .417* retaliation (.273) (.266) (.244) (.178) Student would not have made Experience - .731** complaint after retaliatory action (.273) *p<.05 **p<.01 ***p<.001
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ARTISTS “UNDER PRESSURE”: COPYRIGHT ISSUES IN POPULAR MUSIC
by
Dr. Katrin C. Varner
Dr. Eric V. Varner
Introduction
Since the very beginnings of Western music, composers and performers have borrowed liberally from each other’s work. Many of the greatest Western composers have borrowed from folk songs, from more contemporary music sources, and from each other. Sir Edward Elgar, the British composer of the commencement classic, “Pomp and Circumstance,” used a melody from Mozart’s “Prague” Symphony as the basis for the composition of his famous “Enigma Variations”; Bela Bartok was renowned for basing many of his symphonic works on the folk melodies of his native Hungary; and noted contemporary composer Michael Daugherty has quoted themes from country singer Johnny Cash in his violin concerto, “Fire and Blood”. Even the national anthem of the United States, “The Star-Spangled Banner,” which is credited to Francis Scott Key, was not in fact written by him. He merely supplied his own lyrics to a pre-existing melody – in this case, a bawdy drinking song, “To Anacreon in Heaven", which is, ironically enough, English in origin.1 This liberal use of the material of others was an inherent and accepted part of compositional technique throughout most of the history of Western music. In order to learn composition, for example, a student would take well-known song, remove the bass line, and write in another that also worked with the implied chord structure. Following this, the original melody would be removed, and another superimposed over the new bass line. This practice resulted in stunningly similar-sounding works, which by today’s standards would almost certainly land the composer in legal trouble. Nevertheless, this educational practice was by no means restricted to no-talent hacks; Beethoven himself was known to have employed this technique, both as an educational and compositional tool. These sorts of borrowing practices have occasionally resulted in fits of temper in the world of Western music2; on the whole, however, composers accepted the use of their ideas by others as inevitable. Not so today. Given the rise of intellectual property law over the past century or so, songwriters and composers are much more sensitive regarding issues of attribution and permission, not to mention the collection of royalties. The primary purposes of copyright law are to reward the author3 for his work and to stimulate other authors to create new works.4 If songwriters and composers could make unlimited use of existing
1 http://www.infoplease.com/ipa/AO194015.html 2 French composer Leo Delibes was once introduced to a suspected plagiarist, “Monsieur Le Dieb,” meaning “thief.” CLIFTON FADIMAN, THE LITTLE, BROWN BOOK OF ANECDOTES (Little, Brown and Company) (1985).
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works, the argument goes, they would have little incentive to create new works of their own; the progress of art would stagnate. The minimum threshold one must attain in order to secure a copyright is to produce “an original work of authorship fixed in a tangible medium of expression.”5 In the realm of music, this would apply to any tune, lyric, or rhythmic pattern that has been either recorded electronically or written down. Any pop or rock song or any rap would meet this standard provided that it is original to the author and demonstrates some “intellectual endeavor with a modicum of creativity.”6 When someone besides the copyright owner creates a new work which makes use of all or part of the pre-existing work without securing the permission of the copyright owner, he may be liable for copyright infringement. In order to make a prima facie case of copyright infringement, the copyright holder must show the following: (1) That he has ownership of a valid copyright; (2) that the defendant has copied the plaintiff’s copyrighted work; and (3) that, as a result of the copying, the defendant’s work is substantially similar to the plaintiff’s. There are, however, a number of defenses to this claim that the defendant may assert. Alleged infringers may claim that the copying was unintentional, or that it constitutes a recognized exception to copyright law, such as parody. New technologies such as sampling sometimes raise new questions about the parameters of copyright law. In this paper, we will discuss a number of well-known cases involving issues of copyright infringement in the world of popular music.
Parody: Roy Orbison v. 2 Live Crew
One exception to the law of copyright infringement is parody. A parody is “a literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule.”7 The law has traditionally treated parody differently from other types of infringement, despite the fact that parody often relies on the liberal use of existing source material. One case that addressed the question of parody and to what extent it provides a defense for the alleged infringer was Campbell v. Acuff-Rose.8 Acuff-Rose Music, owners of the copyright for Roy Orbison’s famous rock ballad “Oh, Pretty Woman” sued the members of the rap group 2 Live Crew, whose rap song “Pretty Woman” shares many features with Orbison’s. Both songs begin in the same meter, two-four, and have snare drum hits on every beat. The first half of what is known as an antecedent/consequent phrase, or “question
3 In the realm of copyright law, the term author is used to denote many different types of artist: composer, lyricist, poet, novelist, choreographer, photographer, sculptor, painter, architect, etc. 4 “The Congress shall have power…To promote the Progress of Science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. Art. I, § 8. 5 Copyright Act of 1976, § 102(a). 6 Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340, 111 S. Ct. 1282, 113 L.Ed.2d 358 (1991). Short, generic phrases, such as “Put Tab A in Slot B,” are generally not protected as they fail to meet this threshold. In Feist, the plaintiff sued for copyright infringement when the defendant copied information from his published phone directory in order to produce a phone directory of his own. The court found that mere lists of names and numbers published in alphabetical order did not demonstrate the creativity and originality needed to secure copyright protection. 7 http://dictionary.reference.com/search?q=parody 8 510 U.S. 569 (1994).
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and answer,” played on the guitar follows this non-melodic opening. The rising eighth- note motive is repeated twice, and is “answered” following the third repetition, at which point, the time signature changes to common time. The sum effect is an eight-note, eighth-note motive in arch form, a line which rises, then falls.
This short motive is present throughout the song, and may be considered one of the song’s two main themes. It serves later as an instrumental chorus. In creating his own arrangement of the song, Luther Campbell of 2 Live Crew inserts a stereotypical turntable flourish in between the first three repetitions, a heavy bass drum on every other beat, and more repetitions of the five-note consequent motive. Those are the only substantial differences in the introduction of his version. In the body of the two versions, the chorus and verse, we see the first real musical differences. Roy Orbison sings his lyrics over a piano, drum set, and guitar.
2 Live Crew uses only a drum kit or, more likely, “Rap Pattern Number 5” from an electronic keyboard. And while Orbison uses more traditional backup singers, Luther Campbell does a conventional rap-style call and response between himself and the rest of his band. This lack of active, pitched instrumentation does not, however, substantially differentiate the one from the other. The melody of “Oh, Pretty Woman” is a four-note patter of b-c#-b-a, followed by a response of c#-b-b-a-c#. With slight variations, these two short phrases, along with the opening motive, form the melodic basis of the song. The rhythmic pattern of the text of “Pretty Woman” is also much the same as in “Oh, Pretty Woman.” There is a quarter-note rest after “Pretty woman,” and the pattern of “walking down the street” is the same in both versions: Two eighth-notes, a quarter-note, and two eighth-notes. As the verses go on, small upbeats are inserted or withdrawn as needed to accommodate 2 Live Crew’s lyrical differences: “Bald-headed woman, you got a teeny weeny afro” has more syllables and necessitates a more rapidly moving rhythmic pattern than “Pretty woman, I don’t believe you.” Popular songs generally have what is known as a “bridge” and this one is no exception. In the bridge, the key typically modulates up a fifth to highlight the last verse and chorus, and to signal the end of the song. Roy Orbison’s “Oh, Pretty Woman” is unusual in that it does not change key during the bridge, but beforehand. This change is not surprising given the less than typical verse structure of his song. When the bridge
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finally arrives, there is a substantial crescendo (increase in volume) before the recapitulation of the main theme at the end of the piece. 2 Live Crew’s version embodies a more typical verse-chorus structure, and there is a bridge before the last verse, signaled by an extended solo on a turntable in which a vinyl record is “scratched” back and forth to produce various audio effects. This solo, since there is no pitched melody, is roughly equivalent to the more standard key-change. Both songs end suddenly, after more repetitions of the melodic arch-form first heard in the introduction. Musically speaking, 2 Live Crew’s song “Pretty Woman” is nothing more than a rap-influenced cover of Roy Orbison’s classic. If not for the lyrical parody, there would be no question of copyright infringement. The melodic basis of both songs is exactly the same; the rhythmic patters of the text are the same, as is a substantial part of the text itself. In fact, one can readily imagine Luther Campbell coming up with his rather second-rate version in some dingy karaoke bar when his monitor stopped working. Despite these similarities, Campbell argued that “Pretty Woman” does not infringe on Acuff-Rose’s copyright because it is a parody; the intention of the song is “through comical lyrics, to satirize the original work”9; that the song “‘quickly degenerates into a play on words, substituting predictable lyrics with shocking ones’ to show ‘how bland and banal the Orbison song is.’”10 A unanimous Supreme Court found in favor of 2 Live Crew, declaring “Pretty Woman” to be a parody of “Oh, Pretty Woman” and therefore not an example of copyright infringement. In his opinion for the Court, Justice David Souter explained that, but for the parodic nature of 2 Live Crew’s work, the song contains more than enough similarities to the original to make it an infringement.11 Nevertheless, parody has routinely been seen as an important art form, worthy of protection, despite its tendency to rely heavily on existing, copyrighted works. Parody differs from other forms of copying in a number of ways. A parodist will, for instance, typically identify the borrowed work, recognizing that his audience is unlikely to understand the humor of his parody without the association made with the original. Attribution, however mocking in tone, is nevertheless provided. Plagiarists, on the other hand, wish to conceal any connection to their source for fear of discovery. Parodies are also unlikely to be confused with their source material; they typically contain large stylistic differences from the original, as with “Pretty Woman.” Despite the similarities of the two songs, the bawdy lyrics of the parody and the rapping style of Luther Campbell’s vocal delivery make it extremely unlikely for a listener to confuse it with Orbison’s song. Parody, the Court said, is much like another category of fair use: criticism. The literary, music, or film critic may, without receiving the permission of the copyright owner, reproduce portions of the work he is reviewing in order comment on it. The argument is that the critic provides a benefit to society by commenting or “shedding light” on the work in question.12 The parodist provides a similar service, using humor rather than simple commentary to make his point. This process of using parts of the original work in a new way so as to comment upon it is the heart of parody; if the alleged
9 Id., at 571. 10 Id. 11 Id. 12 Id., at 579.
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“parody” has no connection to the original work, it is not protected.13 According to the Court, “Pretty Woman” comments on Orbison’s song by “juxtapos[ing] the romantic musings of a man whose fantasy comes true, with degrading taunts.”14 In doing so, 2 Live Crew criticizes the “naïveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”15 One may well question whether Campbell’s “commentary” on the “bland and banal” nature of Orbison’s song is truly a legitimate parody or simply an after-the-fact attempt to rationalize a lack of original songwriting ability. The Supreme Court, however, indicated that the standard for achieving parody status is quite low; and also that “whether parody is in good taste or bad does not and should not matter to fair use.”16 Relying on the words of Justice Oliver Wendell Holmes, the Court remarked that: [I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.17 It seems unlikely that anyone would accuse Luther Campbell and 2 Live Crew of being geniuses who have invented a new artistic language, but the Justices’ point is well-taken. Courts are and should generally be reluctant to make artistic judgments, confining their opinions to matters of law. As a matter of law, the Court found “Pretty Woman” to meet the necessary requirements of parody.
Subconscious Copying: The Chiffons v. George Harrison
The next case involves the song “He’s So Fine,” recorded originally by The Chiffons, and “My Sweet Lord,” written by George Harrison. “He’s So Fine,” recorded in 1962, is a short, catchy rock tune in a style known as doo-wop18. The melody consists of two short motives. The first is a three-word, four-note phrase, which is repeated four times in succession, with slight rhythmic variations. There is also an anticipation of the
13 “If…the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly.” Id., at 580. 14 Id, at 583. 15 Id. 16 Id., at 582. 17 Id., at 582-583, quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 18 “A style of pop music marked by the use of close harmony vocals using nonsense phrases, originating in the US in the 1950s,” http://oxforddictionaries.com/view/entry/m_en_us1241559#m_en_us1241559
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resolution on the third word:
This phrase is musically unique in that, despite it being the first part of an antecedent/consequent phrase, one would expect it to resolve to the tonic, do.19 It does not do so. The second motive is another short phrase, which is also repeated four times:
It is this second, consequent phrase that supplies the anticipated resolution to tonic, although it is given one octave above. This setting up of expectation, as in the first motive, and then fulfilling or delaying the expectations of the listener, as in the second, is at the very heart of good compositional technique. Between statements of the two themes, there is a rather simplistic lyrical interlude, “Doo-lang/doo-lang/doo-lang.” George Harrison’s “My Sweet Lord” is in all-important musical points exactly the same song. There is the same three-word, four-note motive to open the piece, which is also repeated four times.
In between the four repetitions, there is the same “doo-lang” interlude, followed by the same five-note phrase resolving to tonic, an octave above, just as in “He’s So Fine.”
19 For example, in both “Oh, Pretty Woman” and “Pretty Woman” the antecedent phrase does just that.
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In both versions there is the insertion of a small grace note in the second statement of the second theme. Such grace notes are common in popular songs, as well as in classical music, when there are lyrics to be dealt with; the extra notes (or sometimes the lack of them) are used to cover extra syllables in different verses. Both songs have the same harmonic prograssion, although George Harrison’s version is transposed to a different key. There are also similar uses of percussion and background instrumentals, which is not surprising given the striking similarities of the two works. Musically speaking, there is then no significant difference between the two versions, barring the occasional use of grace notes to accommodate differing lyrics. Having two different texts to the same song would not have been unheard of a hundred years ago, as with the aforementioned “Star-Spangled Banner” or the popular song “John Brown’s Body,” perhaps better known as “The Battle Hymn of the Republic”, with lyrics by Julia Ward Howe (or, for those stalwart sons of the Confederacy, “Glory, Glory to Georgia,” with lyrics by Hugh Hodgson). In today’s society, however, this sort of borrowing is no longer tolerated per se. The borrower must receive the permission of the copyright owner. The question raised in this case involves the second element of copyright infringement: the copying itself. In order to make a prima facie case of infringement, the plaintiff must show that the defendant has copied the plaintiff’s copyrighted work. But what if the copying was not done deliberately? In the entire opinion, Harrison is never accused of consciously stealing the melody of “He’s So Fine”; in fact, the court goes out of its way to emphasize how accidental the copying was: “It is apparent from the extensive colloquy between the Court and Harrison covering forty pages in the transcript that neither Harrison nor [his musical collaborator Billy] Preston were conscious of the fact that they were utilizing the ‘He’s So Fine’ theme.”20 When writing “My Sweet Lord”, Harrison chose a particular combination of notes because he found them pleasant. He found them to be pleasant because he knew subconsciously that they had been used successfully in the past, even though he did not consciously remember it.21 (Harrison admitted that he was familiar with “He’s So Fine” and acknowledged its similarity to “My Sweet Lord.”22) It is certainly common for songwriters to find snippets of tunes floating around in their minds and ideas for songs often come from seemingly mysterious sources, from flashes of inspiration. Harrison no doubt believed the melody for “My Sweet Lord” to have had such a source. One can
20 Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177, 180 (1976). 21 Id., at 180. 22 Id., at 179, 180.
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easily understand how Harrison or any songwriter could easily and innocently mistake a previously-heard tune for one created in his own mind. Unfortunately for George Harrison, however, whether the copying is conscious or not is irrelevant. One can easily image the ease with which plagiarists could defend their acts if all that were necessary was to claim that the copying was done subconsciously, by accident. The court, while sympathizing with Harrison, nevertheless decreed that “My Sweet Lord” was “the very same song”23 as “He’s So Fine” and that Harrison was liable for infringement.
Sampling: Queen and David Bowie v. Vanilla Ice
Sampling is a common practice in today’s popular music world and, indeed, the genre of music known as hip-hop would scarcely exist without it. One of the more famous examples of the use of what is known as sampling comes to us courtesy of David Bowie, Queen, and that rather infamous icon of white rappers everywhere, Vanilla Ice. Sampling involves the taking, or sampling, of various snippets of material from other songs, and either altering them electronically, or simply pasting other tracks over the snippet. From this practice we have such hits as “Wild, Wild West” by Will Smith, in which a new melody is superimposed over an old Stevie Wonder song, “I Wish.” There is also Eminem’s hit song, “Stan,” which consists of a rap superimposed over the song “Thank You” by Dido. Such borrowing is not new, nor is it exclusive to electronic, over- produced studio tracks. The entire structure of rock and roll is based on the same blues chord progression, I-IV-V-I, and literally thousands of early (and contemporary) rock songs share the exact same harmonic structure. One well-known example from the early era of Rock ‘n Roll is the striking similarity between the Beach Boys’ “Surfin’ USA” and Chuck Berry’s “Sweet Little Sixteen.”24 In this particular example, the song “Ice Ice Baby” uses a brief, one measure sample from the song “Under Pressure,” written and performed by Queen and David Bowie. The sample, which is no more than a bass line, consists of a rather pedantic two- pitch theme over the rhythm, in common time, of three eighth-notes, two sixteenths, and two eighths, followed by a beat of rest:
While the implied harmonic progression sol-do is the basis of Western harmony, its repetition in such a particular brand of rhythm is unique and easily falls under the
23 Id., at 181. 24 An amusing juxtaposition can be found at: http://www.youtube.com/watch?v=le51jB37Fro
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umbrella of intellectual property. In addition to the basic motive, there is a two-note piano motive, every other bar, on beats 4 and 1, along with an occasional hand-clapping sound in the background. Vanilla Ice’s song, “Ice Ice Baby,” uses the identical opening phrase, albeit in a different key, with the same rhythm, and even goes so far as to use a similar-sounding bass guitar. The only difference is that there is a pick-up eighth-note inserted before the start of the pattern, where “Under Pressure” has a full beat of rest. The same hand- clapping gesture is present, although the piano motive is not.
Although both of these motives have superficial differences between them (“Ice Ice Baby” uses maracas, for instance), they are in fact the essential motives of both songs, and provide the “hook” which draws in the listener and makes the song what it is. In a rather famous television rebuttal25, Vanilla Ice made an argument to the effect that the insertion of his one pick-up note made all the difference, proving that the two motives were completely different. That is rather like arguing that a new coat of paint changes the ownership of a car. Such insignificant cosmetic changes mean little when dealing with the fundamental motive of song.
Similar Sounds: Huey Lewis v. Ray Parker, Jr.
Lastly, we come to an example of possible copyright infringement involving two songs that merely sound similar: Huey Lewis and the News’s “I Want A New Drug” and Ray Parker, Jr.’s “Ghostbusters.” This is probably the least obvious and most arguable case for infringement due to the inherent subjectivity of what “sounds the same.” Musical convention dictates that many songs will follow the same basic formal structure (such as marches, waltzes, or rock ballads) and use similar chord structure (the aforementioned blues progression). To convey certain emotions, Western music itself has agreed on certain patterns: Descending minor seconds convey sorrow and grief26; drum rolls convey a sense of expectation or excitement; and trumpets have martial connotations27. Without these conventions, composers could not effectively communicate to the listener, and Western music would be the less for it. Coming back to the example, the song “I Want a New Drug” by Huey Lewis and the News was a popular pop hit in the mid-eighties. Shortly after the success of this song, Ray Parker, Jr. released his hit song, “Ghostbusters” for the movie soundtrack of the same name. Interestingly, Huey Lewis had apparently been approached by producers
25 Behind the Music: Vanilla Ice (VH1Television broadcast, Mar 28, 1999). 26 Examples include “Crying Time” by Ray Charles and “Dust in the Wind” by Kansas. 27 Consider the military’s use of bugle calls.
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of the film to record a title song himself, but turned down the offer28. Huey Lewis apparently detected a great deal of similarity between the songs, although the matter was eventually settled out of court. Musically, the question of whether of not “Ghostbusters” constitutes infringement is open to debate. The two songs do not share the same melody, (indeed, “Ghostbusters” has no melody at all, in a strict melodic sense) the instrumentation is different, and the subject matter of the lyrics is completely different.29 The similar portion in question is a one-bar phrase near the beginning of both songs. This particular motive, which carries throughout both works, has a bass, guitar, and synthesizer background. Both songs are in common time and share a similar rock drum pattern. The guitar and synthesizer music over this drum pattern shares a similar arch form, rising and then falling melodically. The melodic motive outlines an arpeggio, which then descends on beats three and four. Both songs have similar, but not identical, beats one and two. “I Want a New Drug” does not use the arpeggio as the main melody, and it can only faintly be heard in the background. It starts on the tonic note, rises up in the triplet figure, and repeats the tonic again on beat two, one octave higher.
“Ghostbusters” has a double statement of the tonic note on beat one, followed by a rising triplet figure on beat two.
It is beats three and four where the similarity is most obvious. Both songs present a descending two-note motive, in a heavily accented manner. Also, while beats one and two are fairly “busy” rhythmically, beats three and four consist of only one note per beat. Were an argument to be attempted that this constitutes copyright infringement, the plaintiff would rely primarily on the third element of the prima facie case: As a result of the copying, is the defendant’s work substantially similar to the plaintiff’s? In order to be substantially similar, the work of course need not be identical. If that were the case, then a plagiarist would only have to change one or two things about his work to escape liability. What is more important than the total similarity of the two works is whether a
28 Behind the Music: Huey Lewis (VH1 television broadcast, Feb. 4, 2001). 29 Some sample lyrics from “I Want a New Drug” include: “I want a new drug/One that won’t make me sick./One that won’t make me crash my car/Or make me feel three feet thick.” Contrast this to the lyrics of “Ghostbusters”: “When there’s something strange/In your neighborhood/Who you gonna call?/Ghostbusters!”
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listener is likely to associate one work with the other, or whether the two works are likely to be confused with each other. In other words, would a person listening to “Ghostbusters” hear the song and think he was hearing “I Want a New Drug”? Or might he hear “Ghostbusters” and have it make him think of “I Want a New Drug”? If so, a case for infringement could be attempted. This particular case presents a fairly weak argument for copyright infringement. The songs do share some traits, but it is difficult to determine whether the similarities are the result of copying or if they are merely examples of traditional musical convention. Once again, the question is rather subjective and the case never did go to court. It really is up to individual listener to decide.
Conclusion
Popular music in the United States today is based on a fusion of European harmony and African rhythm. This blending of idioms began in the Deep South with Negro spirituals, and progressed through early jazz, Dixieland, swing, and blues, among other genres. Rock and roll, an old sexual euphemism, is simply up-tempo (fast) blues, sanitized for white audiences by pioneers such as Elvis Presley and Bill Haley. Almost all blues (and therefore rock) is based on the same basic chord progression: I-IV-V-I, usually in a repeated, twelve-bar structure.30 Obviously, variations are possible, but this basic pattern lends itself to a certain “sound.” As such, to untrained listeners, many early rock and roll songs sounded more or less the same. As popular music evolved through the 1960s and 70s, however, more and more variety was to be heard, although the same Blues Progression could still be heard in the music of artists such as The Beatles31, Cream32, and Fleetwood Mac.33 Thus, with a limited choice of harmonic variation, and a certain homogeneity imposed by risk-averse record companies and by the expectations of listeners, artists are bound to produce similar-sounding material. These similarities may be no more substantial than the similarities in most of the waltzes of Johann Strauss or the marches of John Philip Sousa (which were widely imitated at the time of their composition), but intellectual property was not such an issue then, nor was there nearly as much money involved. As popular music has evolved from a tradition of folk tunes sung around the campfire into a multi-billion-dollar business, copyright holders have become much more sensitive to their rights as property owners. Nevertheless, in a medium so dependent upon convention, similarities will inevitably occur. In order to protect themselves from litigation, it is important for musicians to have some understanding of how copyright laws affect them and the songs they write.
30 This progression is in fact known as “Blues Progression.” 31 “Can’t Buy Me Love” 32 “Sunshine Of Your Love” 33 “Dust My Broom”
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42 Volume 3 Mustang Journal of Law and Legal Studies (2012)
ATTENTION DEFICIT DISORDER AND ATTENTION DEFICIT HYPERACTIVITY DISORDER: THEIR IMPACT ON AMERICAN LAW SCHOOLS AS ORGANIZATIONS AND ON ADMINISTRATION’S POLICY FORMULATION TO “REASONABLY ACCOMMODATE” LAW STUDENTS ACCORDING TO APPLICABLE FEDERAL AND CASE LAW
Dr. Randall Robbins, Mississippi College
Mr. Simpson Goodman, Mississippi College
Abstract
Attention deficit disorder and attention deficit hyperactivity disorder are two of the most commonly diagnosed development disorders and learning disabilities. In the United States, 6.4% or slightly over one million students are afflicted with these conditions. ADD and ADHD can continue on through the individual’s postsecondary education and thus, impacting their ability to academically compete effectively with their peers. The purpose of this investigation focuses on the experience of the American law student battling these learning disabilities in an already challenging educational environment. Further investigation will be given to the response and effort provided by the law school administration to reasonably accommodate students with these conditions.
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INTRODUCTION
With the expanded research and advances in modern psychology and psychiatry, American physicians and clinicians have been better equipped to spot, diagnose, and treat developmental disorders and learning disabilities. Great efforts have been made to educate the general public as to what these are and how to recognize the symptoms because so many from previous generations have suffered silently or been written off as ‘bad students’ or ‘behavior problems.’ (Lehrer, 2009). As such, the identification practices have been made available to most Americans. Teachers, parents, and counselors are encouraged to identify and promote seeking testing and treatment for any range of developmental disorders and learning disabilities (National Institute of Mental Health, 2008). With the numbers of students with these diagnoses increasing, the U.S. Congress, the Courts, and American law schools have had to pass legislation, handle disputes, and implement new school programs to accommodate students with these diagnoses. As a result, law schools have had to closely scrutinize and, in many cases, alter or create policies regarding the treatment, support, and accommodation for students with special needs. This has lead to dissention amongst faculty regarding educational methodology, mistrust and frustration between students, professors, and administration, as well as disputes which rise to the level of the courts. Law schools have been the institutions most resistant to change in pedagogy given the profession’s long-standing reliance on traditional approaches such as the Socratic Method, one comprehensive written exam per course, and grading systems that grade students in comparison versus individual merit. (Christensen, 2008). These practices have long been shown to create additional burdens on students with developmental disorders or learning disabilities. (Christensen, 2008). Despite the research, many law professors cling to what they know: tradition. This strict adherence has led some schools into litigation with students. (Nealon, 1997). As a result, law schools have implemented new guidelines to alter some of the harsher practices in law school education. They now have academic support departments and personnel; it has become a common practice for students to receive altered testing conditions, alternative assessment approaches, and extended time for assignments. (Buhai, 1999). With so many policy implications affecting all levels of law school administration, faculty, staff, and students, it is necessary to take a closer look at how the boom in diagnosing developmental disorders and learning disabilities impacts the policy and procedure of a profession so steeped in tradition and resistant to changing time-honored practices.
RATIONALE FOR INVESTIGATION
Of the developmental disorders and learning disabilities known to science today, attention deficit disorder (ADD) and attention deficit hyperactivity disorder (ADHD) are some of the most commonly diagnosed. (Christensen, 2008). Of the 16.5 million undergraduate students in the United States, 6.4%, or slightly over a million students are afflicted with ADD or ADHD.
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(National Center for Educational Statistics, U.S. Department of Education, 2002). Despite these numbers being generated from undergraduate samplings, science knows that these issues continue on in students during postsecondary education which makes them still relevant to law students battling these conditions. The purpose of this investigation concerns the experience of American law students today battling hurdles in an already challenging educational experience. The legal profession is bound by tradition and many working within it strongly follow the same principles and practices used for generations. However, as science has progressed and American society has changed its view and approach to students with learning differences, law schools have remained behind the curve in adapting modern approaches and policies to assist these students. In particular, many law professors are hesitant to deviate from the way that they were instructed and some of the more generationally advanced professors refuse to acknowledge a different way of instruction. This stand-off between legal institutions and those that comprise them has lead to legislation, litigation, and frustration to all parties involved. As the numbers show, this problem is not going away; it is growing. One positive fact is that law schools have implemented changes and an increasing number of professors are adapting their pedagogy and assessment to better level the playing field between students with developmental disorders and learning disabilities and those that do not. There is an increased awareness in law schools concerning these issues, but it remains largely in the background in the day-to-day operation of many law schools. Students feel embarrassed to mention or declare their particular issue even to administration. A growing number of students are resentful towards others whom they believe are “faking it” to get an advantage. In particular, ADD and ADHD are widely viewed by peers as a sort of “cop out.” In the eyes of many, it is an easy way to get performance-enhancing drug and extra time to take exams and complete assignments. The legal environment is highly competitive and draws a number of type-A personality types who are all vying for the coveted A’s and high rankings. This in turn creates an environment where cut- throat tactics and a forced lack of sympathy can become normalized. Although this is not the case in many schools, a large number still find students struggling silently and even failing because of a lack of confidence in coming forth with their disabilities and a fear of judgment by professors and fellow students alike. As a result, the issue of how law students with developmental disorders and learning disabilities are treated is still largely in need of further investigation. This review will attempt to take a closer look at how the rise in students being diagnosed with ADD and ADHD has influenced law schools as organizations, in particular, the managerial and interpersonal aspects of reacting to and dealing with this influx of diagnosed students and the vague laws that are supposed to guide them in doing so.
REVIEW OF LITERATURE
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The research for this paper was conducted using a variety of source types and professional perspectives ranging from law review articles and student experiences to legal cases and journals devoted to legal education. This section will attempt to review, analyze, and synthesize the information gleaned by the author after investigating several different studies conducted by researchers. The layout of the literature review will consist of three sections: (A) background information on the developmental disorders of ADD and ADHD, (B) the major relevant laws and case law dealing with accommodations of students with these issues in the law school setting, and (C) approaches taken by law schools and law faculty to implement accommodation rules and guidelines for students with ADD and ADHD.
Background Information on ADD and ADHD
ADD and ADHD are generally grouped in with learning disabilities, despite being classified by psychology and psychiatry as development disorders. The two are “neurologically- based conditions that are characterized by inappropriate levels of distractedness, inattentiveness, and impulsiveness.” (Jolly-Ryan, 2005). It is important to recognize that these characteristics being present in a person alone are not enough to determine the diagnosis of these disorders; in order to determine the presence of a disorder, one must look as to how these symptoms manifest themselves in the person’s life. (Boyle, 2006). Particular interest is given to the level that ADD and ADHD impact the individual’s functioning in everyday life such as school, work, and social interactions. (Smith, 1999). According to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV-TR), the following criteria have been laid out to be used by professionals in diagnosing ADD and ADHD in individuals. There are two tracks in the DSM-IV’s criteria: inattention and hyperactivity-impulsivity. Each track has its own criteria, both require the presence of the symptoms for at least six months, and that they must be at a point of being disruptive or inappropriate for the developmental level of the individual. (National Alliance against Mandated Mental Health Screening and Psychiatric Drugging of Children, 2010). In the inattention type, the following symptoms are present: (1) often does not give close attention to details and makes careless mistakes, (2) trouble keeping attention on tasks, (3) does not seem to listen, (4) often does not follow instruction, (5) trouble organizing, (6) avoids activities requiring significant mental focus for an extended time, (7) often loses things, (8) easily distracted, and (9) forgetful of even routine, daily activities. (American Psychiatric Association, 2000). Similarly fashioned, hyperactivity-impulsivity is indicated by the presence of the following factors: (1) often fidgets or squirms in seat, (2) often gets up when not appropriate, (3) often feels restless, (4) trouble enjoying activities quietly, (5) seems “on the go” or motorized, (6) talks excessively, (7) blurts out answers before listening to the full question, (8) has trouble
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with patience, and (9) often interrupts or intrudes on others’ conversations. (American Psychiatric Association, 2000). Depending on which cluster of factors the person has more of, there are two diagnoses: ADHD, predominately inattentive type or ADHD, predominantly hyperactive-impulsive type. In addition, there are some individuals who possess a range of factors from both clusters, and they are diagnosed as ADHD, combined type. (American Psychiatric Association, 2000). It is also important to keep in mind that the vast majority of law students with these diagnosed disorders are still highly functioning, and they although they score lower than many against whom they are compared, they still score well and above-average. (McKinney, 1993). This presents yet another challenge in developing treatment plans and reasonable accommodations for these students because they are still highly functioning and are generally able to compete successfully in the law school arena, but they require slight modifications of the norms in order to be have a fighting chance to compete against their peers. ADD and ADHD are theorized to have been caused by a combination of underlying genetic predispositional factors, environmental factors, and brain injuries. (National Institute of Mental Health, 2008). The combination of two or more of these factors had been linked to the diagnoses. However, there is not exact reason why it is caused and what can account for the prevalence. ADD and ADHD are usually treated with either one of two or a combination of both forms of treatment: medication and/or behavioral therapy. (Fiore, 1993). ADD and ADHD are commonly treated with stimulant medications such as Adderall or Ritalin. It is not exactly known why these medications work, but low doses of amphetamines, or speed, actually affect the neurotransmitter nor-epinephrine and its precursor, dopamine. (National Institute of Mental Health, 2008). Medication is most effective when combined with behavioral therapy that focuses on changing behaviors and developing habits that can overcome symptoms of the disorders. However, the majority are treated with stimulants prescribed by anyone from a family practitioner to a psychiatrist. (The MTA Cooperative Group, 1999).
Relevant Law Dealing with Reasonable Accommodations for Law Students with Diagnosed ADD or ADHD
As science progressed in understanding these disorders and society’s views on them changed with increased education and awareness, the United States Congress decided to act by passing two major pieces of legislation, which have affected how law schools deal with accommodating students with ADD and ADHD. The first of the two major was the Rehabilitation Act of 1973, which “protects individuals with disabilities from discrimination in programs or activities at colleges, universities, or other post-secondary institutions receiving federal funds.” (Rehabilitation Act, 1973). The second major piece of legislation was the Americans with Disabilities Act of 1990 is a civil rights law that prohibits discrimination against persons with disabilities, which includes
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students, in education, housing, and public entities. (Americans with Disabilities Act, 1990). These two pieces of legislation have served as models for many countries around the world. According to these statutes, as they have been interpreted by the courts, a person is disabled if “he or she has a physical or mental impairment… [that] must substantially limit him or her in one or more major life activities… [which] includes “learning” according to federal regulations.” (Betts v. Univ. of Virginia, 1999). In terms of education, a person is not considered disabled unless his ability to learn is “significantly restricted,” in comparison with others. As a result of the range of disorders and disabilities and the spectrums within each one, Congress appeared to have intentionally left the language of statute vague in order to allow the courts to interpret the statute. The courts have declared that the statutes should be applied on a case-by- case, individualized basis because a one-size-fits-all solution is not likely to work in this context. (D’Amico v. New York State Bd. of Law Examiners, 1993). In following the laws as they have been interpreted and applied, law schools are approaching these vague but federally required accommodations on an individual basis. Law schools are allowing professors to assess needs and allowing the schools to determine appropriate accommodations for students without “going too far,” in order to place ADD/ADHD students on a level field with their peers. (Boyle, 2006). Because every student with a disorder or disability is mandated to have an individualized plan for education and assessment, it is impossible for the courts to determine and oversee determinations made in each case. In fact, the First Circuit explicitly declined to make a brightline test or rule concerning accommodations and instead limited its ruling to the specific facts of that case. (Wynne v. Tufts University School of Medicine, 1992). Law school professors and administrators are left with this task. The schools must make an effort to balance the reasonable requests for accommodations made by students with the requirements of the program with whether or not the accommodations would cause a serious disruption or alteration of the program. As such, many schools begin by requiring students to present medical evaluations and diagnoses with prescribed accommodation requests before reviewing and official request. The officials in charge of accommodations then evaluate the reports and evidence and decide what is reasonable and the level of impact the accommodations would have on the academic programs. Officials and professors are required to make those accommodations which are deemed reasonable in light of the balancing test. The courts have also gone so far as to make case law that requires schools to state teaching to learning styles and that “the fourteenth amendment can, and should, serve as a basis for a discrimination suit when a school fails to take into account students’ individual learning styles.” (United States v. Texas, 1972). As such, schools must make sincere and careful efforts in making determinations regarding students with needs for special accommodations as a result of a qualifying disorder or disability covered by the Americans with Disabilities Act.
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Organizational Efforts to Make Reasonable Accommodations by Law Schools for Students with ADD or ADHD
Given the litigious nature of American society, many law schools are more motivated to go against tradition and make accommodations that are reasonable for students. The never- ending balancing test of the program requirements with what makes a level playing field for a disabled student will continue to be an issue for law schools attempting to preserve the important element of competition while also desiring to comply with legislative and judicial directives from the federal government and court system. In developing policies for administration and professors, law schools should to take a two-pronged approach to reasonable accommodations: (1) a focus by professors themselves on the diversity of student learning types within their respective classes and (2) develop a list of reasonable accommodations used in more common request scenarios. Many law schools have begun to administer written tests that measure the strength of different learning styles of incoming students. (Boyle, 2006). The professors are then able to use the results to attempt to tailor their lessons, educational media, and teaching style to best accommodate the majority of their students. Professors are able to restrict the amount of lecturing and use more visual aids, such as PowerPoint. Professors and students should communicate regarding the realized strengths and weaknesses in a student’s learning styles. Through communication and understanding, the two most directly-affected parties are able to mitigate confrontation, issues, and poor grades. In many cases, minor adjustments and small additions to routines can help alleviate many of the issued presented by ADD or ADHD. (Smith, 1999). As research has shown, many students do not come forward with their disorder or disability for fear of being stigmatized, being able to reduce problems in the classroom may boost confidence and help students to overcome hurdles presented by their disorders before having to reduce to more unconventional or invasive alternative accommodations, such as different assessment methodology and testing environment alteration. (Christensen, 2008). A short list of the more common recommendations for altering teaching style versus granting special accommodations are as follows: (1) Guide students though indentified individual learning difficulties; (2) Clearly post administrative rules in course syllabi or manuals; (3) Schedule breaks for long classes or lecture periods; (4) Have rubrics in writing as well as expressed orally; (5) Provide assistance in developing cues when memory recall is required; (6) Vary activities and assignments to incorporate kinesthetic or tactile elements; (7) Provide visual aids; (8) Be responsive to student requests and provide plentiful feedback; (9) Consider alternative instructional methods; (10) Provide models for students to use as a guide for work to be completed. (Boyle, 2006).
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In addition to these classroom-level approaches, the law school as an organization has shifted its approach. Many schools now offer writing workshops, support personnel for tutoring services, and academic support departments and programs that address everything from organizational skills and how to brief a case to more advanced topics like bar exam preparation and scheduling classes to best fit a student’s needs and desires. Returning to the heart of the discussion, the issue still lies in what accommodations, other than those listed above, to allow students to use given their ADD or ADHD diagnosis. Many students receive extra time on exams, extended deadlines for assignments, note-taking assistance, auditory devices, and computer usage to type notes and/or exams. (Christensen, 2009). Schools and professors must be willing to accommodate these needs as well while still protecting the sanctity of the specific academic program and specified learning objectives
MANAGERIAL IMPLICATIONS FOR LAW SCHOOL ADMINISTRATION
Given the expressed need for groups within an organization to cooperate and communicate in order to work harmoniously and efficiently, law school administrators must work diligently to facilitate and encourage these groups to interact. Professors need to work with students; both of those groups need to work collaboratively with academic support personnel, who all three must work under the guidance and policy of the administrators of the law school. In this particular arena, facilitating the dynamics between these groups can be challenging. As discussed previously, law schools are rooted in tradition, and many of today’s law professors are still deeply attached to the “old way” of doing things, i.e. education as it was originally performed without much regard for modern trends and discoveries. Furthermore, the relationship between student and professor in law school is intentionally made to be more distant and less informal, which is a large distinction from many undergraduate programs. In law schools, the air of authority, respect, and ‘pecking order’ can reign supreme in the 1L, or first- year law student, classrooms. In addition to the professors’ desire to adhere to old principles, the matter is further complicated by the sheer number of students that law professors teach coupled with their professional requirements. Many law professors are working towards tenure or serve on outside boards, committees, have private practices, or are sitting judges. (Meet the Faculty, 2010). All of these are further compounded by the realities of the schedule and time commitment to all classes for a law student in addition to the necessary difficulty-level, as one function of law schools as gate-keepers is to weed out students who seemingly cannot succeed in the profession. In order to manage this problem, the author of this investigative report recommends the following approaches to facilitating student accommodations balanced with the necessary rigors of a legal education: (1) Develop strong, central academic support programs including legal reading comprehension and legal researching/writing assistance to all students, but especially those with identified disorders such as ADD or ADHD. Senior administration must be vigilant in vesting
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sufficient authority to the academic support department while also catering to the fact that a professor, in the classroom, may be in the best situation to make determinations regarding the need of a specific student in his or her class. With an academic support program, students can be screened, evaluated, and individualized plans put in place without placing additional burdens on students or professors. By having an independent group tasked with this job, it may reduce tension between students and professors, provide an objective solution to any issues that may arise, and it allows a neutral party to hear grievances and/or concerns. (2) Develop and require education and training for professors of law, both those on tenure tracks and adjunct faculty members. In many cases, adjunct faculty do not receive the same pedagogical training that professor may. In these instances, it would be helpful for administration to develop programs or bring in outside consultants to provide professors with additional information and research, as well as relevant case law and statutes, to help reinforce the changing tides in legal education as well as to help them to learn effective ways to make accommodations to understand the reasoning behind them. Many law professors are suspicious and skeptical of diagnoses of learning disabilities or disorders, especially of ADD and ADHD, as they are relevantly new and often-times diagnosed later in a student’s life. (Hensel, 2008). (3) Develop fora where older law students who have learning differences can mentor and work with incoming law students who share the same struggles to share strategies and offer tips on how to develop tactics to succeed without extensive assistance from the school. The students can have regular meetings and even conferences with professors and/or academic support personnel to attempt to bridge gaps in understanding and facilitate more independence on the part of the student as he or she prepares to head out into a professional world where there will not be accommodations or academic support personnel. It is essential that the element of training students to become self-sufficient and learn to work independently are added to the tools used by law schools to best prepare students.
CONCLUSION AND PROPOSED FUTURE RESEARCH
American law schools today face a unique climate. With many external factors affecting the internal workings of legal education, the profession has been slow to adapt to the changes. After the implementation of several federal laws including case law that interprets and applies those laws, law schools had to make changes and begin to allow more accommodations to assist students with diagnosed disorders or disabilities. With an increasing prevalence of ADD and ADHD diagnoses, with over a million undergraduate students diagnosed with one of the disorders, the problem is literally staring law school administrations in the face. Today, more and more students go on to post-secondary schooling. With the increased numbers come increased issues and a more varied set of problems, disabilities, and backgrounds. Where many are skeptical of these diagnoses, they are, by law, not allowed to ignore them or write them off as illegitimate. Many schools have acted proactively to reduce problems and to facilitate learning by disabled students, but many on the inside of those organizations are
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resistant to the changes and feel that altering the traditions of the old and respected profession of law is unacceptable. Law schools have come a long way in recognition and accommodation of learning disabled students. With an increased awareness of the problems, schools are allowing reasonable accommodations for students and they are doing so in a manner that preserves the students’ integrity and the integrity of the academic programs. By allowing certain students extra time, the ability to type an answer versus write it, or even to sit at the front of the classroom, minimal burden is placed on the school or the professors to accommodate these needs. Further testimony can easily be uncovered that supports the assertion that one who possesses a learning disability or disorder can go on to lead a happy and successful life both professionally and personally. These students are not sub-par or less than intelligent; they learn differently and with a little extra effort can succeed with minimal disadvantage.
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BIBLIOGRAPHY
1. Americans with Disabilities Act of 1990, Changes made by the ADA Amendments Act of 2008, (Public Law 110-325), January 1, 2009. 42 U.S.C. § 12101, et seq.
2. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.
3. Betts v. Univ. of Virginia, 1999 No. 97-1850, 1999 U.S. App. LEXIS 23105 at *19 (4th Cir. 1999.)
4. Boyle, Robin. "Law Students with Attention Deficit Disorder: How to Reach Them, How to Teach Them." John Marshall Law Review. 39.349 (2006): 349. Print.
5. Buhai, Sande. "Practice Makes Perfect: Reasonable Accommodation of Law Students with Disabilities in Clinical Placements." San Diego Law Review. 36.137 (1999).
6. Christensen, Leah. "Law Students Who Learn Differently: A Narrative Case Study of Three Law Students with Attention Deficit Disorder (ADD)." Journal of Law and Health. 21.45 (2008).
7. Christensen, Leah. “Legal Reading and Success in Law School: Law Students with Attention Deficit Disorder (ADD).” Selected Works of Leah Christensen. August 2009.
8. D’Amico v. New York State Bd. of Law Examiners, 813 F.Supp.217, 221 (W.D.N.Y. 1993).
9. Fiore, Thomas. "Exceptional Children." Educational Interventions for Children with ADHD. 60.2 (1993): 29. Print.
10. Hensel, Wendy. "The Disability Dilemma: A Skeptical Bench and Bar." University of Pittsburgh Law Review. 69.637 (2008): 637-656.
11. Jolly-Ryan, Jennifer. "Disabilities to Exceptional Abilities: Law Students with Disabilities, Nontraditional Learners, and the Law Teacher As a Learner." Nevada Law Journal. 6.116 (2005): 116. Print.
12. Lehrer, Jonah. "ADHD and Time." The Frontal Cortex. Science.com, 12/14/2009. Web. 20 Apr 2012.
13. McKinney, James. "Exceptional Children." Exceptional Children: Methods, Diagnosis, Testing. 60.2 (1993): 7. Print.
14. Meet the Faculty. 2010. Mississippi College School of Law.
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15. The MTA Cooperative Group. A 14 month randomized clinical trial of treatment strategies for Attention Deficit Hyperactive Disorder. Archives of General Psychiatry, 1999;56: 1073- 1086.
16. National Center for Education Statistics, U.S. Department of Education, Profile of Undergraduates in U.S. Postsecondary Institutions: 1999-2000 (Statistical Analysis Report) 2002.
17. Nealon, Patricia. "BU Loses Suit Brought by Students: Judge Chastises School for Policy on Learning-disabled." Boston Globe [Boston] 16 08 1997. Web. 19 Apr. 2012.
18. Rehabilitation Act of 1973, (Public Law 93-112, 87 Statute 355, enacted September 26, 1973), Codified as 29 U.S.C. § 701.
19. Smith, Kevin. "Disabilities, Law School, and Law Students: A Proactive and Holistic Approach." Akron Law Review. 32.1 (1999).
20. "The Truth Behind ADHD." National Alliance against Mandated Mental Health Screening and Psychiatric Drugging of Children. National Alliance against Mandated Mental Health Screening and Psychiatric Drugging of Children, 2010. Web. 20 Apr 2012.
21. United States Government. Department of Health and Human Services - National Institutes of Health - National Institute of Mental Health. Attention Deficit Hyperactivity Disorder (ADHD). Bethesda: National Institute of Mental Health, 2008. Web.
22. United States v. Texas, 466 F.2d 518 (5th Cir. 1972).
23. Wynne v. Tufts University School of Medicine, 976 F.2d 791, (1st Cir.1992).
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55 Volume 3 Mustang Journal of Law and Legal Studies (2012)
THE EFFECT LEGAL REPRESENTATIVES HAVE ON THEIR CLIENT’S PERCEPTIONS OF PROCEDURAL JUSTICE AND EXPECTED OUTCOME IN MEDIATION
Kevin Farmer, J.D., Ph.D. Associate Professor Management & Human Resources Department California State Polytechnic University, Pomona Email: [email protected]
ABSTRACT
Does the presence of a legal representative in mediation affect the client’s perception of procedural justice as well as the likelihood of reaching a settlement? A scenario-based, quasi- policy capturing study involving a hypothetical, court-ordered mediation of a landlord-tenant dispute was administered to undergraduates. Different approaches legal representatives can take in dealing with clients were manipulated, as were the stakes involved and client liability, to gauge the effect of representative approaches on perceptions of procedural justice, expected outcome and satisfaction with the representative. In sum, results demonstrate that legal representation has a significant, positive effect on a client’s perception of procedural justice, without regard to stakes and guilt, and, more particularly, that Facilitators—representatives who empower their clients to directly negotiate with their opponent and provide advice—foster the highest perceptions of fair process, likelihood of settlement and satisfaction with the representative. INTRODUCTION
This investigation focuses on a relationship hallowed by American jurisprudence in a dispute resolution context borne of modern necessity. In the United States, the deeply rooted faith in the assistance of counsel is a tenet of our Constitution for those accused of crimes1 and constitutes a bedrock principle of federal labor law for those union members who are prone to disciplinary action at the hands of their employers.2 Among non-unionized employees, leaders in the field of Alternative Dispute Resolution (“ADR”) support their right to representation. The Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship, adopted by a growing number of public and private employers, stipulates that employees who participate in ADR should have the right to be represented by a spokesperson of their choice.3 The assumption is that representation enhances fairness.4 Some
1 U.S. CONST. amend. VI. 2 National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 260-64 (1975). 3 DAVID LIPSKY, RONALD SEEBER & RICHARD FINCHER, EMERGING SYSTEMS FOR MANAGING WORKPLACE CONFLICT 44-46 (2003). 4 See generally KARL SLAIKEU & RALPH HASSON, CONTROLLING THE COSTS OF CONFLICT: HOW TO DESIGN A SYSTEM FOR YOUR ORGANIZATION (1998); JOHN DUNLOP & ARNOLD ZACK, MEDIATION AND ARBITRATION OF EMPLOYMENT DISPUTES (1997).
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employers go so far as to include in their employee benefits package a budget for retaining counsel when statutory claims are in issue.5
Beginning in law school, lawyers are ingrained with their role as litigators who take and advance positions on behalf of their clients—training that ill serves them in mediation.6 Mediation represents an attempt to urge individuals to directly resolve workplace conflicts quickly, efficiently and with minimal damage (especially when ongoing relationships are involved). Some contend that counsel contribute to the legalism of mediation7 and, by implication, tend to undermine its goals. The argument is made that mediation requires seamless party dialogue rather than skirmishes between combatants. Guided by constructs drawn from organizational justice research, this investigation seeks to determine what effect the type of representation provided to clients has on their perceptions of fair process, the likelihood of reaching a settlement and satisfaction with the representative in mediation.
BACKGROUND
Historically, clients rely on lawyers in litigation to zealously formulate issues, gather and organize facts as well as present evidence with the avowed purpose of defeating an opponent.8 An effective attorney is a “friendly champion”9 who can neutralize a power gap between the parties—as is often the case in disputes between employees and their managers.10 In ADR, however, consensus replaces victory.11 Although legal education has historically focused on adversarial dispute resolution, several law schools have begun offering courses to train future lawyers in ADR.12 Many new lawyers are more likely to take courses in ADR but there is no evidence that their training has transformed how they interact with their clients in mediation practice.13
5 See LIPSKY et al., supra note 3 at 84. 6 L. Randolph Lowry, Preparing your client … for mediation, 50 DISPUTE RESOLUTION J. 30, 34 (1998). 7 See generally MAX ZIMNY, WILLIAM DOLSON & CHRISTOPHER BARRECA, LABOR ARBITRATION: A PRACTIAL GUIDE FOR ADVOCATES (1990). 8 Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L. J. 713, 715-716 (1983). 9 John Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 MICH. L. REV. 1485, 1486 (1966). 10 See LIPSKY et al., supra note 3 at 193. 11 CHRISTOPHER MOORE, THE MEDIATION PROCESS 430-431 (3d ed. 2003). 12 C. Michael Bryce, ADR Education From a Litigator/Educator Perspective, 81 St. JOHN’S L. REV. 337, 339 (2007). “Lawyers should also be trained on the range of advocacy skills needed, and the benefits of various dispute resolution options. Currently, even if they think of mediation, many lawyers believe they can handle the negotiations just as well themselves, or that mediation will just not work. That may be because they do not understand or appreciate the listening and communication, bridge-building, and trust- enhancing skills that a good mediator can bring to the table.” Benjamin Read, What Would You Change About Mediation? 65 DISPUTE RESOLUTION J. 62, 65 (2010). 13 Law students are introduced to elements of mediation such as commencing the hearing, information gathering, defining a negotiation agenda, creating flexibility in negotiations and meeting with parties and representatives. Bryce, supra note 12 at 345. However, there is no indication that they are sensitized to changing the nature of their representation of clients from traditional advocacy to facilitative support.
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There is a paucity of research dealing with the role lawyers should adopt in working with clients in mediation. Traditionally, attorneys in mediation were viewed as being in control of their clients.14 When representatives actively negotiate on behalf of their clients concern arises over the friction between their training versus the goals of mediation Lawyers who serve as advocates develop arguments and accumulate supporting evidence with the aim of presenting singular outcomes that couch settlement options in distributive, zero-sum terms.15 In contrast, successful mediations often hinge upon cooperative and integrative decision-making. Some contend that the different demands of litigation and negotiation can make the lawyer a liability to the mediation process.16
More recently, a contingent view has emerged. Representatives can limit their engagement to rendering advice such as recommending negotiation strategies, estimating settlement ranges or describing relevant legal precedent.17 Representatives who provide advice but do not serve as surrogate negotiators may actually decrease adversarial tendencies18 as the expanding mediation programs sponsored by the EEOC and U. S. Postal Service demonstrate.19 Representatives who assist clients during mediation can help transform the client’s story into causes of action and defenses for which the law provides a remedy.20 Some ADR professionals contend that representatives who adopt the role of counselor and focus their skills inward to enhance the client’s mediation experience enhance the mediation process and improve the outcome.21 This stream of thought recasts the representative as a consultant, teacher, coach and reconciler.22
A limited empirical base supports the counselor model over the advocate model in mediation. In an ethnographic study involving divorce lawyers in Maine who participated in
Furthermore, ADR courses in law school are of no help to non-attorneys in dealing with principals who request their representation in mediations (e.g., shop stewards, co-workers). Thus, while law school courses are a step in the right direction, evidence of the most effective approach for lawyers (as well as non-lawyers) in dealing with clients in mediation is called for. 14 See generally KARL SLAIKEU, WHEN PUSH COMES TO SHOVE: A PRACTICAL GUIDE TO MEDIATING DISPUTES (1996). 15 See Moore, supra note 11 at 150-151. 16 See Leonard Riskin, Mediation and Lawyers, 43 OHIO ST. L. J. 29 (1982). 17 See Mori Irvine, Some ‘Do’s’ and ‘Don’ts’ of Mediation Advocacy. 58 DISP. RESOLUTION J. 45 (2003); Kenneth Kressel, THE PROCESS OF DIVORCE: HOW PROFESSIONALS AND COUPLES NEGOTIATE SETTLEMENTS (1985). 18 See Harold Abramson, Problem-solving Advocacy in Mediations, 59 DISP. RESOLUTION J. 56 (2004). 19 See Peter Keppler, The EEOC’s Alternative Dispute Resolution Program: A More Civil Approach to Civil Rights Issues, 24 REV. BUS. 38, 41-42 (2003); Lisa Bingham, Kiwhan Kim & Susan Raines, Exploring the Role of Representation in Employment Mediation at USPS, 17 OHIO ST. J. DISP. RESOLUTION 341, 372-376 (2002). 20 John Conley & William O’Barr, RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE (1990). 21 See Keppler, supra note 19; Kressel, supra note 17. 22 See Lowery, supra note 6 at 35-36. See also KENNETH CLOKE & JOAN GOLDSMITH, RESOLVING PERSONAL AND ORGANIZATIONAL CONFLICT (2000).
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court-mandated mediation, the authors reported that attorneys did not act as spoilers.23 In that study cases in which parties were represented settled at rates comparable to those in other jurisdictions (where lawyers do not attend mediation sessions) and produced firmer settlement agreements. In another study, represented parties were found to have insisted on procedural safeguards more often and to have won their cases before administrative agencies to a greater degree than unrepresented parties.24 Lastly, in a student experiment subjects were found to prefer relaying information to mediators directly.25
THEORY AND HYPOTHESES
This investigation tests the effect different representative approaches have on a client’s perceptions of instrumental and value-expressive models of procedural justice.26 It also seeks to gauge the strength of the relationship by testing the effect of the stakes involved as well as the client’s liability. Lastly, the representative’s approach is evaluated for the effect it has on the likelihood of settlement and satisfaction with one’s representative. A model that traces the hypothesized effects of the predictor variables, and potential moderating variables (i.e., stakes and guilt for procedural justice), on the dependent variables is depicted in Figure 1.
STAKES INSTRUMENTAL PROCEDURAL JUSTICE
VALUE EXPRESSIVE REPRESENTATION GUILT PROCEDURAL JUSTICE
OUTCOME
REPRESENTATIVE SATISFACTION
Figure 1
23 Craig McEwen, Nancy Rogers & Richard Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995). 24 William Popkin, The Effect of Representation in Nonadversary Proceedings—A Study of Three Disability Programs, 62 CORNELL L. REV. 989 (1977). 25 Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution, 10 PSYCHOLOGY, PUB. POL’Y & L. 211 (2004). 26 The instrumental and value-expressive models of procedural justice are drawn from the field of social psychology and have been prominent themes in the burgeoning organizational justice literature. See Debra Shapiro & Jeanne Brett, What is the Role of Control in Organizational Justice? HANDBOOK OF ORGANIZATIONAL JUSTICE 155-178 (Jerald Greenberg & Jason Colquitt eds., 2005). These constructs are explained more fully below.
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Representative Approach and Instrumental Procedural Justice
The pivotal predictor variable created for this investigation is representation. That variable has three levels: Advocate, Facilitator and the unrepresented (the control group). The distinction between Advocate and Facilitator is suggested by stable patterns in the negotiation behaviors in attorneys described by Williams as competitive and cooperative.27 Advocates manifest the competitive role and are dominating and forceful—the classic courtroom champion. In contrast, the Facilitator level is akin to the cooperative archetype that seeks to facilitate agreements and caters to a client’s needs in a supportive manner.
Procedural justice represents the perceived consequences of the fairness of a process or person.28 Fair procedures have been found to matter as much, if not more, than fair outcomes. Process control provides the basis for the instrumental model of procedural justice (“IPJ”).29 It holds that a procedure or person is perceived to be fair when the disputant is allowed to submit evidence and argument in hopes of influencing the outcome.30 Most people are never parties to lawsuits and, thus, have little personal knowledge of the judicial process. When they become parties they are apt to find the process stressful. While mediation helps alleviate the stress of a courtroom the tension never disappears. Thus, when individuals are involved in litigation and their case is assigned to mediation (as is portrayed in the scenarios tested in this investigation), they are exposed to a novel, somewhat threatening process. In order to reduce anxiety, they are likely to take actions that they believe will give them greater control over the process. If so, when individuals are able to directly negotiate with the other side or interact with the mediator they are maximizing process control. For represented parties, it is anticipated that those represented by Facilitators will perceive greater control over the mediation than those represented by an Advocate because the client is the one acting and, thus, exercising control. Accordingly, the Facilitator enables the client to maximize IPJ.
27 GERALD WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT 22-24 (1983). 28 See JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS (1975); E. ALLAN LIND & TOM TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988); Jerald Greenberg, Reactions to Procedural Injustice in Payment Distributions: Do the Ends Justify the Means? 72 J. APPLIED PSYCHOLOGY 55 (1987). 29 Jason Colquitt, Donald Conlon, Michael Wesson, Christopher Porter & K. Yee Ng, Justice at the Millennium: A Meta-Analysis of 25 Years of Organizational Justice Research, 86 J. APPLIED PSYCHOLOGY 425 (2001). 30 See Jason Colquitt, On the Dimensionality of Organizational Justice: A Construct Validation of a Measure, 86 J. APPLIED PSYCHOLOGY 386 (2001); Donald Conlon, Some Tests of the Self-Interest and Group Values Models of Procedural Justice: Evidence From an Organizational Appeal Process, 36 ACAD. MGMT. J. 1109 (1993).
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Hypothesis 1
(A) Representation will have a main effect on perceptions of instrumental procedural justice; (B) Perceptions of instrumental procedural justice will vary from highest to lowest levels of Representation in the following order: By those represented by a Facilitator, by those represented by an Advocate and by the unrepresented.
Representative Approach and Value-Expressive Procedural Justice
As empirical research on procedural justice moved from courtrooms to conference rooms researchers expanded the scope of process control by using “voice” in its place.31 Voice represents the expression of an employee’s or customer’s complaints—the ability to “kick up a fuss” rather than quit or change brands.32 Folger, citing Hirschman, equated voice with process control.33 The expression of an individual’s thoughts and feelings has come to be known as the value-expressive model of procedural justice (“VPJ”).34 That model holds that when one’s views are expressed and taken into consideration by the decision-maker, the individual experiences positive feelings that, in and of themselves, are ends independent of the outcome.35 Parties value the chance to vent even if they know that their thoughts and feelings will not influence decisions.36 The argument has been advanced that the cathartic effect, as well as the content of a client’s personal account, are important in the context of dispute resolution generally37 and mediation in particular.38
In most disputes the client is the only one with a motive to express personal values. Representatives lack a non-instrumental motive to speak because their personal interests are not
31 See Robert Folger, Distributive and Procedural Justice: Combined Impact of ‘Voice’ and Improvement on Experienced Inequity, 35 J. PERSONALITY & SOC. PSYCHOLOGY 108 (1977). 32 ALBERT HIRSCHMAN, EXIT, VOICE AND LOYALTY: RESPONSES TO DECLINE IN FIRMS 30 (1970). 33 See Folger, supra note 31. 34 See Shapiro & Brett, supra note 26. 35 Debra Shapiro & Jeanne Brett, Comparing Three Processes Underlying Judgments of Procedural Justice: A Field Study of Mediation and Arbitration, 65 J. PERSONALITY & SOC. PSYCHOLOGY 1167 (1993) 36 See Lind & Tyler, supra note 28; Tom Tyler, Conditions Leading to Value-Expressive Effects in Judgments of Procedural Justice: A Test of Four Models, 52 J. PERSONALITY & SOC. PSYCHOLOGY 333 (1987). 37 See Shapiro & Brett, supra note 26; Conley & O’Barr, supra note 20. 38 Jacqueline Nolan-Haley, Proper Honoris Respectum: Lawyers, Clients, and Mediation, 73 NOTRE DAME L. REV. 1369 (1998).
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in issue. Thus, if an Advocate takes over talks with the other side or mediator he or she is interfering with the client’s value-expressive speech. Under those circumstances, the client would probably report lower VPJ than a party who is unrepresented. Unrepresented parties are free to say as much or as little as they like about their thoughts and feelings. However, if clients are accompanied by a Facilitator they should be more expressive knowing that they have someone by their side that can warn them if their comments undermine their ability to reach a settlement. In effect, the Facilitator is a verbal bodyguard whose mere presence should embolden clients to fully express themselves. It is anticipated that Advocates will quash VPJ because of its lack of utility to their goal in negotiating a favorable settlement. If so, clients represented by Advocates would report the lowest VPJ.
Hypothesis 2
(A) Representation will have a main effect on perceptions of value- expressive procedural justice. (B) Perceptions of value-expressive procedural justice will vary from highest to lowest levels of Representation in the following order: by those represented by a Facilitator, by the unrepresented and by those represented by an Advocate.
Potential Moderators: Stakes and Guilt
Two variables were tested to gauge the strength of the effect representative approaches could have on the perceptions of the two models of procedural justice: stakes and guilt. Stakes reflect the magnitude of potential loss. Guilt embodies the likelihood that the client will be liable. These variables are hypothesized to moderate the relationship between representation and IPJ as well as between representation and VPJ. Their inclusion is justified for two reasons. First, the seminal procedural justice research of Thibaut and Walker manipulated both variables in experiments involving different ADR formats.39 Second, expectancy theory40 provides a theoretical platform for predicting that the relationship between representative approach and a client’s speech during mediation will be affected by the stakes involved as well as the client’s guilt.
When the magnitude of potential loss is high or a person believes him- or herself to be blameless, the relationship between representation and IPJ is affected because one could reasonably anticipate that the client’s desire for counsel to direct negotiations will intensify in order to improve the negotiating strategy. Logic dictates that an individual would welcome the assistance of a representative to better articulate arguments or coach the individual to negotiate
39 See Thibaut & Walker, supra note 28. 40 VICTOR VROOM, WORK AND MOTIVATION 320-324 (1964).
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so as to achieve a more favorable settlement. If so, those represented by Advocates or Facilitators should report higher IPJ than those who are unrepresented. Conversely, where stakes are low, a person may well conclude that a representative adds little instrumental speech because a negative outcome (e.g., impasse) is not threatening. In that event, the disputant is likely to be motivated to engage in direct talks because the alternative to a settlement may well be considered trivial. If so, those represented by Facilitators or the unrepresented should report higher IPJ than those represented by Advocates.
Furthermore, where the individual perceives him- or herself to be liable, his or her reliance on a representative’s negotiation skills should intensify. Most culpable individuals are likely to welcome a representative’s input in the pursuit a discounted settlement. If so, those represented by Advocates or Facilitators should report higher IPJ than those who are unrepresented. In contrast, those who perceive themselves to be innocent are more likely to be interested in speaking for themselves in an effort to clear the air. Given the fact that mediation has no forced outcome, those who are innocent but fail to persuade the other side can simply walk away. In that event, those who are represented by Facilitators are likely to report higher IPJ than those represented by Advocates or the unrepresented.
Stakes and guilt are also expected to have a moderating effect on VPJ. When stakes are high the magnitude of the potential loss looms as a threat. Represented clients may be less motivated to speak from the heart because of the cautionary advice they receive from representatives. Guilt should have an even stronger impact. Where the client’s guilt is unambiguous it is reasonable to expect that representatives will be more likely to either circumvent expressive speech or carefully monitor what the client says out of fear that an admission is uttered that can be used against the client in the event the case winds up in court.
Advocates will almost certainly aim to muzzle clients out of fear that the client’s expression of inner feelings and emotions will undercut efforts to negotiate a discount from a large claim or any discount where one’s guilt is clear. Facilitators stand by to warn so it is anticipated that the client will speak his or her mind with greater confidence knowing that the representative is ready to protect his or her interests. Clients of Facilitators should be emboldened to speak even more than the unrepresented who have no one to advise them.
Hypothesis 3
(A) Representation will interact with stakes and guilt in explaining the variance in instrumental procedural justice. (B) Representation will interact with stakes and guilt in explaining the variance in value-expressive procedural justice.
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Expected Outcome
Generally, the joint value of a settlement is the outcome most valued in mediation.41 However, no outcome is posited in the scenarios used in this investigation since their inclusion would have been speculative.42 Instead of asking subjects to commit to a hypothetical outcome they were asked a more probing question: Do you think it is likely that you will agree on a settlement that you can live with?
Clients are more likely to negotiate enduring settlements because of their representative’s vigilance. One-sided offers from the other side should be identified as such and, with some bargaining, reduced because the client has another, often expert, point of view. In administrative proceedings, representatives have been found to heighten their clients’ knowledge of procedural rights and help them achieve favorable results.43 Higher settlement rates have been reported in a nationwide mediation program involving statutory claims at the U.S. Postal Service.44 Representatives are poised to render advice that would probably help clients identify the results that are most important to them (e.g., money damages or a simple apology) and use their influence to enhance their client’s ability to negotiate a favorable settlement. Unrepresented parties have no such leverage. Thus, the mere fact that a party is represented should increase the perceived likelihood that the disputant will settle on terms perceived to be favorable. This result is especially true in cases where a power disparity exists between the parties. Representation of the prone tends to minimize the gap.
Representative approach is also likely to influence predicted outcome. Facilitators support direct client control while Advocates usurp it. Cognitive dissonance theory holds that individuals strive to maintain consistency among simultaneously held cognitions and when they fail to achieve consonance experience psychological discomfort.45 Dissonance is particularly apt to occur after an important decision has been made. Personal responsibility arises when an individual has a choice among alternatives, commits to a decision (i.e., one that cannot be revoked or disavowed) and suffers aversive consequences.46 When clients are in control they become cognitively accountable for the consequences of their actions. The positive feelings that flow from direct process control would probably be associated with positive feelings for the outcome of the process. If so, those represented by Facilitators, the clients with higher control, should expect higher outcomes. In contrast, those represented by Advocates abdicate control over negotiations. In those relationships control and the predicted outcome become
41 Donald Conlon, Henry Moon & K. Yee Ng, Putting the Cart Before the Horse: The Benefits of Arbitrating Before Mediating, 87 J. APPLIED PSYCHOLOGY 978 (2002). 42 Giving subjects the terms agreed to would also defeat the goals of the investigation since the result would undoubtedly influence subjects in their perceived value of representation. 43 See Popkin, supra note 24. 44 See Bingham et al., supra note 19. 45 Leon Festinger, A Theory of Social Comparison Processes, 7 HUMAN RELATIONS 117 (1954). 46 Gerald Sande & Mark Zanna, Cognitive Dissonance Theory: Collective Actions and Individual Reactions, THEORIES OF GROUP BEHAVIOR 46-69 (1987).
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synonymous for the client. Since Facilitators empower clients to take control that heightened level of control should lead to more positive predictions of the outcome.
Hypothesis 4
(A) Representation will have a main effect on predicted outcome. (B) Among those who are represented, predicted outcome will be higher for those represented by Facilitators than for those represented by Advocates.
Representative Satisfaction
A tenet of organizational justice is that process participation is significantly related to outcome satisfaction.47 One can expect that when a client participates in mediation that participation would have an effect on the predicted outcome. If the experience is positive logic dictates that it would affect satisfaction with one’s representative in a positive manner. If a representative enhances the client’s perceptions of IPJ and VPJ he or she effectuates the client’s meaningful participation in mediation. As earlier hypothesized, the Facilitator is expected to be associated with higher mean scores on both measures because the Facilitator encourages the client’s sense of control and freedom of expression. Conversely, the Advocate would be associated with lower mean scores on both measures because the Advocate takes over all communication during mediation and, therefore, stifles the client’s process participation and expressive voice.
Hypothesis 5
Satisfaction with the Representative will be higher for those represented by a Facilitator than for those represented by an Advocate.
47 Jane Giacobbe-Miller, A Test of the Group Values and Control Models of Procedural Justice From the Competing Perspectives of Labor and Management, 48 PERSONNEL PSYCHOLOGY 115 (1995).
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METHODOLOGY
Research Design and Population
This investigation employs a scenario-based study in which independent variables are manipulated in a design based on policy capturing. Three independent variables (representation, stakes and guilt) were manipulated in a 3x2x2 full factorial design. Participants were asked to read a series of scenarios in which the levels of representation (i.e., Advocate, Facilitator and Unrepresented), stakes (i.e., high and low) and guilt (i.e., guilty and not-guilty) were orthogonally crossed. Responses to the questionnaires that accompanied the scenarios constitute the dependent variables (i.e., IPJ, VPJ, Outcome and Representative Satisfaction). The design is consistent with policy capturing methodology. Policy capturing allows researchers to learn how decision makers use information when making judgments by capturing the policies that drive their decisions.48 Subjects are asked to judge a series of scenarios in which levels of independent variables are manipulated. Policy capturing provides a level of experimental control that permits causal inferences.49
Method of Data Collection and Sample Description
Scenarios and questionnaires were distributed to upper-level undergraduate students at a large public university. Participation was voluntary and those students who elected to do so were given extra-course credit. When documents were distributed to students they were informed that the study concerned justice in mediation. Two hundred and four questionnaires were analyzed. Based on a total class enrollment of 276, the response rate was 74 %. Given the composition of the sample, the realism requirement of policy capturing methodology50 mandated that the scenarios had to be tailored to reflect a situation that would be meaningful for typical college students. Accordingly, the scenarios involved a hypothetical lawsuit by a landlord against a student-tenant arising out of an end-of-semester party that was directed to a court-sponsored mediation program where pro bono counsel was assigned.51 In the represented scenarios, the representative either completely controlled negotiations (i.e., Advocate) or assisted the student-tenant by giving advice and guiding the client’s direct negotiation (i.e., Facilitator). Stakes were manipulated by altering the amount in dispute (i.e., from $300 in the low case to $12,000 in the high case). Guilt was varied by offering facts showing that the landlord was
48 Sheldon Zedick, An Information Processing Model and Approach to the Study of Motivation, 18 ORGANIZATIONAL BEHAVIOR AND HUMAN PERFORMANCE 47 (1977). 49 See Ronald Karren & Melissa Barringer, A Review and Analysis of the Policy-Capturing Methodology in Organizational Research, 5 ORGANIZATIONAL RESEARCH METHODS 337 (2002); Brian Dineen, Raymond Noe & Chongwei Wong, Perceived Fairness of Web-based Screening Procedures: Weighing the Rules of Justice and the Role of the Individual Differences, 43 HUMAN RESOURCE MGMT. 127 (2004). 50 See Karren & Barringer, supra note 49, at 344-347. 51 Copies of all scenarios and questionnaires are available from the author.
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attempting to get the student tenant to pay for neglected maintenance (i.e., the not-guilty condition) in one version with the student intentionally damaging the property (i.e., the guilty condition) in the other. The realism of the scenarios was independently confirmed.52
Measures
Representation: This qualitative predictor variable was effect coded with three levels: unrepresented, represented by Facilitator and represented by Advocate (0, 1, and 2, respectively). For regression analysis, two of the three levels were used as predictor variables (Facilitator and Advocate), each of which was dummy coded (0=no; 1=yes) with the omitted group, unrepresented, serving as the reference.53
Stakes: This qualitative predictor variable was dummy coded (0=low; 1=high). In the low level, the amount in dispute is $300. In the high level, the amount in dispute is $12,000.
Guilt: This qualitative predictor variable was dummy coded (0=not guilty; 1=guilty). In the not-guilty level, subjects were given facts indicating that the tenant had previously requested repairs but that the landlord had done nothing in response. In the guilty level, subjects were given facts indicating their culpability.
Instrumental Procedural Justice (“IPJ”): Three items were adapted for this continuous variable.54 An example is: “Because of my side’s negotiation tactics, the landlord is more likely to understand my position.” The Chronbach alpha calculated for this measure is .81. As with all dependent variables, seven point Likert scales were utilized (anchored by 1, indicating strongly disagree, and 7, indicating strongly agree).
Value Expressive Procedural Justice (“VPJ”): Two items were adapted for this continuous variable.55 The inter-item correlation calculated for this measure is .95.
Representative Satisfaction (“SATISFACTION”): Two items were adapted from measures of mediator and supervisor satisfaction.56 For example, “[My
52 Experts were consulted to evaluate the realism of the scenarios. The Director of the university’s Student Legal Services office concluded that the scenarios were very realistic based on cases his office had handled. In addition, two independent mediators with extensive experience handling housing-related cases concurred. 53 Fred Kerlinger & Howard Lee, FOUNDATIONS OF BEHAVIORAL RESEARCH 223-224 (2000). 54 See Jason Colquitt & Brian Shaw, How Should Organizational Justice Be Measured? HANDBOOK OF ORGANIZATIONAL JUSTICE 113-154 (Jerald Greenberg & Jason Colquitt eds., 2005). 55 See Bruce Barry & Debra Shapiro, When Will Grievants Desire Voice? A Test of Situational, Motivational and Attributional Explanations, 11 INT’L. J. CONFLICT MGMT. 106 (2000). 56 See Lisa Bingham, Mediating Employment Disputes: Perceptions at REDRESS at the United States Postal Service, 17 REV. PUBLIC PERSONNEL ADMINISTRATION 20 (1997); Vida Scarpello & Robert Vandenberg, Satisfaction With My Supervisor Scale: Its Utility for Research and Practical Applications, 13 J. MGMT. 447 (1987).
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Representative’s] skill has made a positive difference in the way the landlord treated me.” The inter-item correlation for this measure is .88.
Predicated Outcome (“OUTCOME”): Subjects were asked to indicate whether they though it likely that they could achieve a favorable outcome (i.e., agreeing to settle) without having to express agreement with a settlement amount.
RESULTS
Most subjects were male (63%), between the ages of eighteen and twenty-two (87%) and Caucasian (70%). Because each subject considered each of the levels manipulated in a full factorial design (3x2x2) the study captured a total of 2,448 observations (204 subjects x 12 manipulations). Statistically this is appropriate because each reaction to the manipulated variables is an independent event.57
Hypothesis 1 seeks to determine whether Representation has a main effect on IPJ. Means for IPJ are expected to vary with the highest level being reported by those represented by Facilitators and the lowest by the unrepresented. Hypothesis 2 aims to make the same determination with regard to VPJ with a different order of magnitude (i.e., highest means reported by those represented by Facilitators and the lowest by those represented by Advocates). An ANOVA was used to examine the main effect of Representation. The finding of this analysis indicates that it does for both dependent variables (IPJ: F=60.13, df=2, p<.001; VPJ: F=642.58, df=2, p<.001) and, thus, Hypothesis 1 (A) and 2 (A) are supported. Means and standard deviations for each dependent variable compared by level of representation are reported in Table 1.
57 Timothy Judge & Robert Bretz, The Effects of Work Values on Job Choice Decisions, 77 J. APPLIED PSYCHOLOGY 261 (1992).
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Table 1: Comparison of Means (and Standard Deviations) of Dependent Variables by Levels of Representation Dependent Variable Facilitator* Advocate Unrepresented IPJ 4.98 (1.08) 4.43 (1.20) 4.45 (1.12) VPJ 5.62 (1.10) 3.45 (1.46) 5.19 (1.29) SATISFACTION 5.06 (1.18) 4.57 (1.33) N/A OUTCOME 4.75 (1.35) 4.18 (1.50) 3.95 (1.49) Mean differences between Facilitator and each of the other levels are significant (p<.001) (adjusted for multiple comparisons using the Bonferroni technique).
With regard to IPJ, while those represented by Facilitators reported the highest means as hypothesized the unrepresented unexpectedly reported slightly higher means than those represented by Advocates. The hypothesized variation in VPJ was found with those represented by Facilitators reporting the highest means and those represented by Advocates the lowest. Therefore, Hypothesis 1 (B) was partially supported and Hypothesis 2 (B) was fully supported.
For Hypothesis 3, linear regression was performed to test for the moderating effects of stakes and guilt on the relationship between representation, on the one hand, and IPJ and VPJ, on the other. Regression results are contained in Table 2.
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Table 2: Regression Results
Dependent Variables
IPJ VPJ
Model: Adjusted R2 .056*** .346**
Model: Intercept 4.600** 5.288***
Standardized Standardized
Independent Variables Regression t Sig. Regression t Sig.
Coefficients Coefficients
Facilitator .214*** 5.458 .000 .134*** 4.091 .000
Advocate .003 .072 .942 -.521*** -15.909 .000
Stakes -.031 -.908 .364 -.012 -.407 .684
Guilt -.094 -2.765 .060 -.050 -1.763 .078
Facilitator x Stakes -.005 -.131 .896 -.009 -.297 .766
Facilitator x Guilt .001 .029 .977 -.002 -.067 .946
Advocate x Stakes .010 .291 .771 .008 .259 .796
Advocate x Guilt -.029 -.813 .416 .004 .124 .902
*** p < .001; ** p < .01; * p < .05
Standardized coefficients in the model indicate the change in IPJ when clients are represented by Facilitators and Advocates compared to the control group (unrepresented). Thus, the presence of Facilitators increases their client’s IPJ by .214 and this difference compared to the unrepresented is significant (t=5.458, p<.001). Advocates do not significantly enhance IPJ compared to the unrepresented (t=.072, ns). With regard to VPJ, the presence of Facilitators increases their client’s VPJ by .134 and this difference compared with the unrepresented is significant (t=4.091, p<.001).58 For IPJ and VPJ, neither stakes nor guilt significantly interact with Facilitator or Advocate and, therefore, neither has a moderating effect. Thus, Hypotheses 3 (A) and (B) are not supported.
58 Interestingly, the presence of an Advocate significantly affects a client’s perceived VPJ albeit in a negative manner as evidenced by a -.521 regression coefficient.
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Hypothesis 4 concerned the main effect of representation on a client’s predicted outcome (i.e., mediated settlement) and, if an effect was demonstrated, whether predicted outcomes are higher for those represented by Facilitators than those represented by Advocates. An ANOVA was used to examine the main effect of representation and yielded a significant, positive effect on predicted outcome (F=66.579, df=2, p<.001). Moreover, the mean for Facilitator (4.75) was significantly higher than the mean for Advocate (4.18). Thus, Hypotheses 4 (A) and (B) are supported.
Finally, Hypothesis 5 concerns a client’s satisfaction with his or her representative. An ANOVA discloses that the mean for Facilitator (5.06) was significantly higher than for Advocate (4.57) (F=63.440, df=1, p<.001). Thus, Hypotheses 5 is supported.
DISCUSSION
The results, tentative though they are in an exploratory study, shed light on the relationship between representation and organizational justice theory as well as having implications for mediation practice.
Theoretical Contributions
The results indicate that representatives have an effect on their client’s process control and value-expression in mediation. Those represented by Facilitators reported significantly higher IPJ than those represented by Advocates. This difference suggests that individuals need to directly exercise control in mediation and do so best with the guidance of a supportive representative. If subjects were content to have a representative assume responsibility for working things out with a hostile, perhaps more powerful opponent, those represented by Advocates would have reported higher IPJ. If they wanted to exercise the highest control by negotiating for themselves, the unrepresented would have reported the highest mean scores. Instead, those who negotiated with the support of a Facilitator perceived the most control. Perhaps it would be more accurate to infer that subjects represented by Facilitators believed they had a more powerful grip on the process.
Significantly, the presence of Facilitators did not muzzle the value-expression of their clients. While Advocates retarded their clients’ speech for its own sake, Facilitators fostered higher levels of VPJ than those who were unrepresented. The unrepresented have free rein to say what they please but those who speak in the company of a Facilitator apparently do so with greater confidence. They can articulate thoughts and feelings unfettered by concerns that speaking from the heart does not damage the pocketbook by undercutting the possibility of a favorable settlement. Client empowerment flows from having an ally (i.e., the only one in a mediation given the avowed neutrality of the mediator) who is looking on with the client’s best interest in mind.
If those represented by Facilitators perceive higher IPJ and VPJ than those represented by Advocates than it logically follows that they would report higher satisfaction with their
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representative. Satisfaction with one’s representative is aligned with the perception of whether the representative nurtures or muzzles the client’s speech. This finding reaffirms a client’s need for direct control in mediation as well as his or her appreciation for the support provided by Facilitators.
Perhaps the most tangible effect of representation concerns its effect on the likelihood that clients will reach a mediated settlement. Settlement, as with instrumental speech, is a complex phenomenon that involves myriad social exchanges. The positive impact of Facilitators can be explained by their expertise and vigilance. They stand by to warn clients of unfavorable or unfair settlement proposals from the other side and generally provide the kind of parochial advice mediators are duty-bound to avoid. One can surmise that they are power equalizers as Bingham and her colleagues59 speculated was true for representatives who mediate statutory claims at the U. S. Postal Service. Moreover, by their mere presence Facilitators serve as witnesses to the exchange process that can hold the other side and mediator accountable for their actions.
Mediation Practice Implications
This investigation implicates mediation practice in at least two respects. First, clients in mediation perceive their negotiations to be more effective, the expression of their values more rewarding and their settlement prospects more encouraging when they are accompanied by a Facilitator. That core finding bodes well for mediation providers to open the door to Facilitators so that they can give aid and comfort to their clients. The fact that mediation is voluntary and non-binding does not detract from its quasi-legal nature. No one questions the value of representation in court. The nascent evidence presented here suggests that representation is important in mediation as well—provided that representatives alter their traditional adversarial approach. Those who are represented are not only more likely to mediate with confidence, if and when they reach a settlement they are less likely to doubt their decision when the smoke clears. Mediations that produce enduring settlements are superior to those that generate settlements whose joint value is dubious.
Second, Facilitators can help mediators maximize their effectiveness. They render advice and can provide moral support in a way that would compromise the neutrality of the mediator. Facilitators would obviate the awkwardness mediators experience when one side, usually the less powerful, turns to ask, “Is this a good deal?” Not only would mediators benefit by being relieved of having to educate and advise disputants they can use representatives in the negotiation process. In many jurisdictions trial judges have long used counsel as “go-betweens” to relay a more objective evaluation of the merits in hopes of persuading clients to compromise. This expert dialogue can improve the quality of negotiations by ensuring that a client’s consent is given only when full disclosure occurs. Ambush tactics in mediation would be reduced when Facilitators standby.
59 See Bingham et al., supra note 19.
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LIMITATIONS AND CONCLUSION
This investigation is hampered by several limitations. First, the artificial nature of the quasi-policy capturing design is problematic. There is a wide gulf between vicariously evaluating disputes and experiencing them firsthand. In addition, the time lag between an injurious event and the mediation of the resulting dispute can, and often does, give rise to a level of frustration in real life that was not captured in this investigation. Thus, even if subjects were inclined to express emotion, for example, simply reading about a dispute rather than living through it may not evoke their feelings much less the desire to express them. No matter how well crafted, scenarios are hypothetical situations that have no lasting consequences on subjects’ emotional or economic well being. Moreover, some aspects of the mediation sessions contained in the scenarios were highly artificial (e.g., complete passivity of the mediator, appointment of pro bono counsel for a relatively minor landlord-tenant case).
Second, the scenarios may not have been sufficiently comprehensive. The allure of a parsimonious model and the desire to avoid fatigue among participants (i.e., adding one variable with two levels would have doubled the number of scenarios) restricted the universe of examined variables and, like all scenario-based studies, rendered the investigation vulnerable to the “omitted variable problem.”60 Clearly, the manipulated variables are not the only ones subjects would like to have considered in assessing the fairness of mediation and likelihood of settlement.
Third, generalizability of the results is questionable. While students have often been utilized in organizational justice experiments61 some contend that they are inherently biased because of their above-average cognitive and verbal skills.62 The subjects investigated here were overwhelmingly young, male, Caucasian and better-educated (as attested by their upper-class standing at a large public university). Results from a study are most likely to be externally valid for similar cases and environments.63 However, students do not often interact with an attorney, are rarely involved in litigation and even fewer participate in mediation.
Notwithstanding its limitations, this investigation prompts a novel assertion: representation in mediation counts and representatives who serve as Facilitators count the most. Those represented by Facilitators reported significantly higher levels of instrumental as well as value-expressive speech. They were most satisfied with their representative and expected to settle their case on favorable terms. Thus, although further research is warranted, the answer to the question posed at the outset should be cautiously answered in the affirmative.
60 See Dineen et al., supra note 49 at 141. 61 See, e.g., Greenberg, supra note 28; Barry & Shapiro, supra note 55. 62 David Sears, College Sophomores in the Laboratory: Influences of a Narrow Data Base on Social Psychology’s View of Human Nature, 51 J. PERSONALITY & SOC. PSYCHOLOGY 515 (1986). 63 DONALD SCHWAB, RESEARCH METHODS FOR ORGANIZATIONAL STUDIES 294-295 (1999).
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TIPPING THE SCALE OF EQUITY: POLICE ENTRY
Clifford Fisher, Purdue University
Erik Lisak, Purdue University
In Barnes v. State of Indiana, the Supreme Court of Indiana ruled that there is no common-law right of man to resist the unlawful entry of police officers into a citizen’s dwelling.1 According to the ruling, Barnes had no right to reasonably resist the unlawful entry of police officers into his residence. Rather, the court suggests that the unlawful entry of police into a residency is best resolved in civil court. Over two centuries ago, the American Revolution began due to the overbearing manipulation and regulation of the colonists by the British government. During the colonial era, James Madison proposed the Bill of Rights to protect against such an unreasonable search and seizure. Today, Madison must be turning over in his grave due to the concession of rights in Barnes v. State of Indiana.
Last year, the Supreme Court of the United States of America ruled that an officer may break into a citizen’s place of residence if he or she believes that evidence is being destroyed.2 In other words, law enforcement has the right to enter a dwelling if he or she hears a “suspicious sound.” While the theory behind this ruling may seem unsettling, the application can be justified. The intention of the ruling coincides with Madison’s Bill of Rights. In the context of the case, the police are given the right to follow a criminal into his or her home. Under the premises of the Bill of Rights these actions are not an unreasonable search and/or seizure because there is probable cause. However, in the trial of Barnes v. State of Indiana, the police did not have a right or duty to enter the Barnes residence. When law enforcement is being given more authority over public health, safety, and morals, we must evaluate whether the loss of our rights as citizens fosters a safer community.
When discussing the legality of the interactions of law enforcement and citizens, it is not uncommon to debate the Fourth Amendment to the United States Constitution. The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”3 Most broadly summarized, the
1 Richard L. Barnes v. State of Indiana, 953 N.E.2d 473 (2011) 2 Kentucky, Petitioner v. Hollis Deshaun King, 131 S. Ct. 1849 (2011) 3 The Constitution of the United States of America
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Fourth Amendment protects citizens from the unreasonable and excessive use of police force and power. The purpose of the Fourth Amendment is to provide for the safety and security of the general public. Under legal precedence, a law enforcement officer can legally frisk a person with less than probably cause.4 However, this is justified in providing safer execution of official police duties. The Fourth Amendment also provides that officers can administer sobriety checkpoints without probable cause.5 While sobriety checkpoints are undoubtedly an invasion of rights, these checkpoints can be justified as reasonable on the grounds of public safety.
In a society where drugs, sex, and crime plague the attention of our media, only subliminally do we evaluate the equity of these events. In its broadest definition, equity is acting in a fair, just, or right manner, when dealing with people. While our legal system is empowered with the duty to enforce equity, it appears that the principle of equity is at times forgotten. Referring to the definition of equity; is it fair, just, or right that legal precedence will encourage law enforcement to break and enter into homes of potentially innocent individuals?6 Furthermore, is it fair, just, or right that citizens do not have the right to reasonably resist this unlawful entry?7
Although the foundation of our legal system relies on the principles of equity, the applications of equity widely differ in the legal community. As stated earlier, our legal system is bound by the duty to uphold the principles of equity. In doing so, courts around the nation interpret and at times overturn the laws put into place by our legislature. Therefore, the written principle of equity by which our legal system makes decisions is put in place through court decisions.
On the other end of the spectrum, equity is a separate field within our legal system. Where codified law refers to written codes and statutes, equity goes beyond the principles of natural law. Natural law can be better described as a universal standard of what is morally, ethically, and reasonably correct. In other words, the principle of natural law is so basic to human beings that it need not be written. Equity is commonly said to “mitigate the rigor of common law.”
Circumstances can provide for situations where common law, precedence developed through court decisions, conflicts with equity. In these situations, an individual can be charged with committing an offense for actions that were made in good faith. At trial, the accused can plead their case using equity as their defense. To summarize, equity can be used as an exception to codified law. While the legal principle of equity is intended to resolve discrepancies in positive law, does it always reach an equitable compromise?
4 Terry v. Ohio 392 U.S. 1 (1968) 5 Michigan v. Sitz 496 U.S. 444 (1990) 6 Kentucky, Petitioner v. Hollis Deshaun King, 131 S. Ct. 1849 (2011) 7 Richard L. Barnes v. State of Indiana, 953 N.E.2d 473 (2011)
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On November 18, 2007, Richard Barnes was moving out of the apartment he shared with his wife. While removing his possessions from the apartment, Barnes and his wife began to argue. During the argument, his wife took the phone and tried to call her sister. In frustration, Barnes took the phone from his wife and threw it against the wall. Shortly thereafter, Barnes’ wife called 911 and told the dispatcher that Barnes was throwing things, but had not struck her. The dispatcher sent out a “domestic violence in progress” message to officers on duty.8
As officers arrived on the scene, Barnes and his wife were in the parking lot of their apartment complex. Barnes began arguing with the police as they tried to get him to calm down. When Barnes returned to his apartment to gather more of his belongings, the two officers followed. After Barnes’ wife entered the apartment, Barnes turned around and blocked the two officers from entering his apartment. It is important to note that neither Barnes nor his wife had invited the officers into their apartment. At this time, officers tried to forcibly enter the dwelling and Barnes resisted by shoving the officer against the wall. In response, the officers tasered Barnes and arrested him. Barnes was charged with battery on a police officer, resisting law enforcement, disorderly conduct, and interference with the reporting of a crime.9
If the police had no right to enter Barnes’ apartment, the only charge that would be pressed against Barnes is disorderly conduct; a disputable accusation brought prior to the police entry. Looking to the facts, Barnes clearly did not invite the officers into his place of residence. Furthermore, Barnes’ wife did not ask the police officers to enter their apartment. We must therefore ask ourselves, did the police have a legal right to enter Barnes’ residence. In a 1980 Indiana Court of Appeals decision, it was ruled that a police officer must be engaged in official duties for a person to be accused of battery on a police officer.10 In other words, was it an “official duty” of the police officers to enter Barnes’ apartment?
In a 2002 case in California, officers were found to have used excessive force in removing protesters from a nonviolent protest in a manner that violated the Fourth Amendment. When protestors refused to give in to police orders, law enforcement used pepper spray on the nonviolent protestors. In the legal case that ensued, it was found that police should not use substantial force against an individual unless the said individual is posing an apparent threat to police and public safety.11 In arresting a peaceful protester, there is no need to inflict any harm upon a peaceful individual. Clearly, the officers’ actions did not align with the best interest of the public.
As in the California case, was it in the best interest of the public to forcefully enter a dwelling in which the police were not invited? Clearly, Barnes was visually angered and upset, but did he pose a reasonable threat to his wife. Remember when the police arrived at the scene
8 See 1 9 See 1 10 Tapp v. State, 406 N.E.2d 296 (1980) 11 Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (2002)
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of a “domestic violence in progress” dispatch, they were able to confront Barnes and his wife outside of their home. At this time, police found both individuals visually upset, but unharmed. Therefore, was it necessary for the police to use excessive force to enter a dwelling for which they did not have a probable cause to enter the home?
Eventually, the Barnes case made it to the Indiana Supreme Court. In his appeal, Barnes argued that the Indiana Court of Appeals erred in refusing to grant his jury instructions. Barnes proposed jury instructions were as follows: “When an arrest is attempted by means of a forceful and unlawful entry into a citizen‘s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.”
The basis for the jury instructions reflected Indiana Code § 35-41-3-2(b) as well as the Fourth Amendment. Indiana Code § 35-41-3-2(b) states:
“A person is justified in using reasonable force, including deadly force, against any other person; and does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.”
Barnes’ actions in attempt to halt the unlawful entry of police into his apartment are grounded in Indiana codified law.
Against codified law and legal precedence, in his summary of the Barnes case Justice David writes, “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Today, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.”12
In other words, if law enforcement ignores your constitutional and statutory rights, you can press charges in a civil suit. Once more, the only defense you have against an unlawful police entry into your home is the ability to file a civil suit. At what point do police powers become too strong? When did America, a nation founded on the principle of standing up for what you believe and fighting for what is right, become a nation where we must cower in the presence of unlawful government authority? As time passes and precedence is formed, are our protections from unreasonable searches and seizures eroding?
As our legal system continues to progress and evolve, there appears to be a trend towards police power in enforcing public health, safety, and morals. After all, we expect our law enforcement to be citizens as well as officials of our communities. However, dire consequences
12 See 1
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can result when law enforcement is given the broad and nondescript power to uphold public health, safety, and morals.
Referring to the Barnes case, the actions of the police officers can be argued to promote public health and safety. Responding to a domestic dispute call, the officers’ intentions were to protect Mrs. Barnes. However, in attempting to prevent a potential threat, the police officers became a threat themselves. While at the scene, the police officers had the opportunity to see Mrs. Barnes uninjured and in good health. Although Mr. Barnes was upset, he had not shown any sign of physical aggression towards Mrs. Barnes. Therefore, the officers acted to prevent a “potential” threat by becoming a forceful threat of their own. If the officers had simply stayed outside Barnes’ apartment, and not made an unlawful entry into the Barnes’ home, it is likely that no one would have been injured and that no charges would have been pressed.
In a nation and states where personal defense is supported through the Second Amendment, giving excess police power could be devastating. In Indiana, one in 15 adults has a concealed carry permit allowing them to carry a handgun. There are over 300,000 adults in Indiana that have a concealed carry permit in their possession.13 If Barnes had been armed with a handgun or another weapon, the actions of the police could have instigated a deadly encounter.
Enraged by the court decision, the citizens and legislators of Indiana have taken action. Amongst other legislation pending, legislators have clarified the ruling of the Barnes case by amending its legislation. The right of a citizen to use force, including deadly force, against any other person illegally entering a person’s dwelling is governed under Indiana Code § 35-41, Indiana’s so called “Castle Doctrine.” The amended bill further defines the rights of citizens in resisting the entry of law enforcement. In other words, if an officer is unannounced or has no official duty in entering a home, a citizen can take forceful action to remove the officer. The amendment also clarifies situations in which a person is not justified in using force against an officer. Situations in which a person is not justified in using force to resist law enforcement include but are not limited to: individuals committing or escaping from the commission of a crime, individuals provoking police action, individuals who reasonably believe that an officer is acting within the scope of his official duty. In a state where the Second Amendment is taken to heart, citizens are once more comfortable with the language of this clarification. The amended bill aims to increase the safety of the public and citizens of Indiana.
As common law and codified law struggle to define the legal entry of law enforcement, the Supreme Court recently decided yet another controversial case. In Georgia v. Randolph, the Supreme Court was forced to evaluate when an officer has been given consent to search a dwelling.14 As noted before, the Fourth Amendment to the Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
13 www2.indystar.com/articles/1/161649-4651-092.html 14 Georgia v. Randolph, 547 U.S. 103 (2006)
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supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under the Fourth Amendment, citizens are protected from “unreasonable searches and seizures.” But what happens when one resident agrees to allow police into their dwelling while another resident is not present? What happens when one resident gives voluntary consent to a search while another resident does not give consent to a warrantless search?
In United States v. Matlock, the Supreme Court decided that in the absence of an occupant, a co-occupant can give voluntary consent to a warrantless search. Any evidence gather during the warrantless search can then be used in the prosecution of the absent occupant.15 Building upon this case, the Supreme Court ruled that “A warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.”16 In other words, the police can conduct a warrantless search of your house through the consent of a stranger believed to be a co-occupant. A police officer must not be correct in his assumption that an individual resides within a dwelling, rather he must simply reasonably believe based upon the circumstantial evidence at the time of the voluntary consent to a warrantless search.
In Georgia v. Randolph, the Supreme Court was forced to determine voluntary consent to a warrantless search. However, in Georgia v. Randolph, one occupant of the dwelling consented to the search while the other disagreed. Having the consent of one occupant, while ignoring the objection of the other, the police entered the dwelling and found controlled substances and drug paraphernalia. Randolph was arrested at the scene for possession of drugs. In the trial, the defense sought to dismiss the evidence gathered by police on the grounds that he had objected to the warrantless search.
The Supreme Court ruled in a 5-3 decision in favor of Randolph, stating, “A physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.” In doing so, the court came dangerously close to undercutting the decisions of United States v. Matlock and Illinois v. Rodriguez. In United States v. Matlock, defendant Matlock was in a squad car nearby, unable to object to the warrantless search. In Illinois v. Rodriguez, Rodriguez was asleep in his apartment when the police entered. In both of these scenarios, the police had the opportunity to seek permission from these individuals and did not. In the majority opinion of Georgia v. Randolph this is justified in writing, “we have to admit that we are drawing a fine line; if a potential defendant with self- interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.”
15 United States v. Matlock, 415 U.S. 164 (1974) 16 Illinois v. Rodriguez, 497 U.S. 177 (1990)
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Looking back to the Barnes case, neither Barnes nor his wife had directly invited the police officers into their home. Regardless of whether the phone call by Mrs. Barnes constitutes an invitation, Barnes, “A physically present co-occupant,”17 refused the entry of police officers. Therefore, under past precedence, the police had no right to enter the dwelling unless they were acting under their official duties.
Taking the Georgia v. Randolph case back to the theme of the paper, was this an equitable decision? As Justice Souter described in the majority opinion, the court has drawn “a fine line.” However, the line appears to be more inequitable than “fine.” In both United States v. Matlock and Illinois v. Rodriguez, the defendant was available for the police to have inquired for a warrantless search. In both of these cases, the police chose not to seek the permission of the occupant. How can this be justified? In the legal community, the concept of what is “reasonable” is often used as the basis in making decisions. For example, in the amended Indiana code it states, “A person is justified in using reasonable force.” Under tort law, juries are tasked with evaluating whether or not an individual’s actions were reasonable. Under these premises, it seems reasonable for the police to make every reasonable attempt to seek the permission of an occupant to enter his or her dwelling.
As the number of cases establishing legal precedence continues to rise, the power of law enforcement is slowly increasing. Due to the increasing power of law enforcement, the protections guaranteed under the Fourth Amendment are slowly but surely decaying. Keep in mind, the protections the people of the United States are losing are some of the same protections that incited the American Revolution. While some argue that the changing times require changing laws, one thing is clear. The empowerment of law enforcement under public health, safety, and morals has diminished the Constitutional protections. As it stands today, citizens are more vulnerable to the power of law enforcement and more exposed to potential criminals than ever before. The compilation of legal precedence has begun to tip the scale of equity in favor of a powerless people. The United States was founded on Constitutional protections and the right to fight for what you believe. As these founding principles erode, the identity of the nation and its people will change. Only time will tell if a vulnerable people is a safe people.
17 See 14
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MEDIA LAW AND ETHICS: AN EXAMINATION OF THE TORT OF DEFAMATION UNDER NIGERIAN LAW APPLYING THE COMMON LAW PERSPECTIVE
Michael C. Ogwezzy Faculty of Law Lead City University, Nigeria [email protected]
Abstract All communicators must be aware of the tort of defamation. The threat of such an action is probably the most serious curb to media freedom in all democratically established nations in the world. The media must be alert of defamatory action at every stage of publishing or broadcasting process. Several factors make the risk of defamation action a particularly serious influence on the media because it is possible to commit the tort even where one is unaware that a person’s reputation is affected by the communication in question. Every person in the chain of the communication may be sued for damages by the claimant. Each person or organisation cherished his reputation so where therefore there is an infraction on the reputation of any person or organisation in consequence of a false publication, such a person may sue for defamation. The justification for recognition of this tort therefore is this: The law in its wisdom insist that words which are capable of leaving a stain on the reputation of an individual or corporate entity should not in the absence of lawful excuse be uttered or published of, as regards such a person or corporation. For the journalist, the publisher and distributors of newspapers, indeed for anyone who earns his living with words, the law of defamation presents one of the greatest perils. The Law exist to protect the reputation of the individual both his moral and professional reputation form unjustified attack. Such an attack may be dealt with either as civil or as a criminal wrong. It is on this background that the author of this paper will examine the tort of defamation under Nigeria Law to see how it strikes a balance between the individual’s right to have its reputation protected and freedom of speech, which implies the freedom to expose wrong doing and that may damage reputations resulting in civil wrong for which monetary damages may be claimed. It is right to state that this article made copious reference to examples and decided cases from different jurisdiction including Nigeria. Keywords: Nigeria, Media Law, Ethics, Tort, Defamation, Damages
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Introduction In all modern democracies including Nigeria, there is a law on defamation which seek to preserve a given reputation or image enjoyed by individuals and corporate organisations1 in the eyes of others or society at large.2 The laws enacted to protect the honour and dignity of the individuals and organisations are based on the premise that false derogatory statements of fact relating to a person or organisation have the capability of altering third parties’ attitudes towards them, thereby causing injuries that could be actionable in a court of law.3 Those injuries may manifest in various forms, such as a reduction in the subject’s social status, interferences with his or her relationships and professional progress, pecuniary harm stemming from loss of employment income or business revenue, and emotional distress.4 Juridical persons are recognized as capable of suffering damages from defamatory publications and are granted the right to sue for them. Although some jurisdictions limit recovery to certain kinds of entities, or for provable economic loss only, although there is a general consensus that business corporation may sue for defamation, or at least have a parallel cause of action for trade libel or commercial disparagement.5 This initiative helps to prove the fact that large organizations may have reputations in the minds of third parties or those who patronise them as distinct from those persons who own or work with them. Organizations build such reputations through hard work, talent, and, possibly, virtuous conduct. Companies with large financial base are believed to maintain high reputations.6 Defamatory utterances, including those pertaining to the quality of products or services, are capable of harming the organization’s reputation, thereby depriving it, at least partially, of the fruits of its labour. This background information on defamation is the bases of this academic inquiry. Brief History of the Law of Defamation The law of defamation is ancient; its root can be traced back several centuries. Initially, the law was an attempt by government to establish a forum for persons involved in a dispute brought about by an insult or by what we today call a defamatory remark. One man called another a robber and a villain. The injured party sought to avenge his damaged reputation. A fright or duel of some kind was the only means of gaining vengeance before the development of libel law. It was obvious that fight and duel were not satisfactory ways to settle such
1 Elad Peled., “Should States have a Legal Right to Reputation? Applying the Rationales of Defamation Law to the International Arena” Brook Journal of International Law Vol. 35:1, 2010 at 119-120 2“The law of defamation embodies the public policy that individuals should be free to enjoy their reputations unimpaired by false and defamatory attacks”. 3 Eric Barendt, What is the Point of Libel Law?, 52 Current Legal Problems 110, 112–15 (1999); Clay Calvert, Harm to Reputation: An Interdisciplinary Approach to the Impact of Denial of Defamatory Allegations, 26 PAC. L.J. 933, 940 (1995); David McCraw, How Do Readers Read? Social Science and the Law of Libel, 41 Catholic University Law Review, 81, 84 (1991); 41 Rodney A. Smolla, Law of Defamation (2d ed. 2009) 1:24 . See also C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa Law Review, 237, 237 (1993); Shawn A. Bone, Private Harms in the Cyber-World: The Conundrum of Choice of Law for Defamation Posed by Gutnick v. Dow Jones & Co., 62 Washington & Lee Law Review 279, 325 n.250 (2005); Elena Yanchukova, Criminal Defamation and Insult Laws: An Infringement on the Freedom of Expression in European and Post-Communist Jurisdictions, 41 Columbian Journal of Transnational Law 861, 863 (2003). 5This is the law, for instance, in Australia, Belgium, Canada, China, England, France, Germany, Hong Kong, India, Italy, Japan, the Netherlands, Russia, Singapore, Spain, South Korea, Switzerland, and the United States. (See Charles J. Glasser, Jr. ed., International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters, and Lawyers 378–79 2006, 271, 280, 3, 21-22, 57, 74-76, 107, 144) 6C.P. Robert, the Social Foundations of Defamation Law: Reputation and the Constitution, 74 California Law Review 691, 693–96 (1986).
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dispute, so government offered to help solve this problem. Slowly the law of defamation evolved. Today the process of going to court to avenge ones honour is highly institutionalised.7 The Nigerian Law of defamation substantially derives from the common law. However, some statutory modifications have been effected through legislations. The local legislations are essentially modelled on the English Defamation Act, 1952. The local legislations on defamation in Nigeria include the following8: the Defamation Act Cap. 492, Laws of the Federation of Nigeria, 1990, the Defamation Law Cap 32 Laws of Western Nigeria, 1959 and the Defamation Law Cap. 33 Laws of Eastern Nigeria, 1963, and the Penal Code dealing with defamation, apply in Northern Nigeria.9 These laws are meant to curtail those working in the mass media. Meaning of Mass Media Several scholars have variously described the mass media as gadgets used to effect mass communication. For example, Defleur and Dennis define the mass media as “devices for moving messages across distance or time to accomplish mass communication.” The issue of application of the term “mass media” to technical devices is crucial to the understanding of the concept. 10In fact, the general acknowledgment of this conceptual fact of the mass media has resulted in the terse submission by Uyo that the mass media, being gadgets used to effect mass communication cannot be practiced. According to him, it amounts to sheer “verbicide” to refer to anyone as a “media practitioner”, because one cannot practice gadgets. He likens the pejorative use of this term to such unthinkable expressions as a “teacher practicing blackboard” or “a doctor practicing stethoscope.” 11Thus, those involved in the operations of the mass media are gatekeepers who are responsible for the purveyance of information in the mass communication process. They are, therefore part of the mass media.12 Mass communication is a process of transmission of information, cultures, opinions, attitudes, etc, to a relatively large, heterogeneous and anonymous audience simultaneously.13 it is observes that “for mass communication to exist, there is need for an intermediate transmitter of information, a mass medium…” In other words, the above assertions by Bitner implies that without the machines that serve as paths or ways of transmission of messages to a large people, communication would otherwise be limited to two people, or a group of people in a face-to-face setting. Invariably, what this mean is that, mass communication cannot take place without a mass medium. The term mass media is often applied to the technical devices through which information, ideas and attitudes are transmitted to many people in their different locations. A simple way to classify the mass media is to group them under print and electronic media. The print media are such media as books, newspapers, magazines, pamphlets, etc that carries a message to the masses by appealing to their sense of sight through printed word. The electronic media on the other hand comprises all the mass media which rely on electric power to get their messages to their audiences. These include radio and audio recordings that appeal to the sense of sound as well as television and cinema
7Don. R. Pember & Clay Calvert, Mass Media Law, New York: McGraw-Hill Inc, 2007 at 164 8Section 3 Defamation Law (1961) and Section 3 Law of Lagos State (1973) Cap 34 also provides that any defamatory words contained in a radio and television broadcast, and any recorded audio-visual material are within the ambit of libel. See also Section 2(1) Law of Western Nigeria Cap 32. 9Aboaba Omotesho, The Law of Tort in Nigeria: Selected Themes, Lagos Malthouse Press Limited, 2009 at 95 10See generally, M.L Defleur, and E.E. Dennis, Understanding Mass Communication. Boston: Houghton Mifflin, 1981 11 A.O. Uyo, Mass Communication Media: Classifications and Characteristics. New York: Civiletis International, 1987. 12 Elo Ibagere , “The Mass Media, the Law and National Security: The Nigerian Perspective”, Kamla-Raj 2010 J Soc Sci, 24(2): 121-128 (2010), p.121 13J.A. Sambe, “Introduction to Mass Communication”, Lecture Monograph 2004, See also C. Osawe, “Social Change”. Unpublished Work, 2007 at 9
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that appeal to both the sense of sound and that of sight.14 Having considered the meaning of mass media, this paper turns to examine the freedom enjoyed by the press in carrying out their constitutional assignments as the watchdog of the society. Press freedom There is a general notion that press freedom is hard to define. While others look at it as “the right to communicate ideas, opinions and information through the printed word without governmental restraint,” the difficulty actually lies in defining the word “press” itself. Is the word, “press” made up of newspapers, magazines, journals or does it include broadcasting and other forms of communication yet dreamt of? Another dilemma in demystifying the concept of press freedom is in the degree of freedom sought or implied in the concept. Press freedom is practically the same thing with freedom of expression which many people believe is the mother of all freedoms. Press freedom connotes a free flow of information and the rights to disseminate information.15 Alabi wrote that Press Freedom “simply means that the press should be allowed to publish without prior restraint.” This, he added, implies that the press should be free to publish or broadcast what it deems fit to the public16. While Onagoruwa, defined Press Freedom as the right of the press to “publish without being subjected to intimidation, threat, molestation or blackmail.” Another notable authority, Aiyar defines Press Freedom as follows: … the right to report facts honestly and faithfully, even if they prove inconvenient or embarrassing to someone.17 It means liberty to interpret the evidence before them according to their (reporters’) independent judgement and journalist’s conscience.18 It is noteworthy that the freedom of expression, which media operators everywhere long for and defend, should necessarily bring with it a sense of responsibility. Being free to do research and report means that they are also answerable for that reporting, because as they are doing it freely, they know what they doing and why. The reporter must avoid conflicts of interest, incentives to report a story with a given slant. This includes not taking bribes and not reporting on stories that affect the personal, economic or political interests of persons and corporate bodies. Private persons have privacy rights that must be balanced against the public interest in reporting information about them. Intrusion and inquiries into an individual's private life without the person's consent is prohibited unless overriding public interest exists. Matters concerning a person's home, family, religion, ethnicity, race, clan, sexuality, political affiliation, personal life and private affairs are covered by the concept of privacy, except where this impinges upon the public interest.19 International Legal Aspect of Press Freedom The following are the international legal bases of Press Freedom applicable in Nigeria: The United Nations General Assembly Resolution 59 (1) of December 14, 1946, states that freedom of information is a fundamental human right and is the corner stone of all the freedoms to which the United Nations is consecrated. Freedom of information implies the right to gather transmit and publish news anywhere, without fetters. While Article 19 of the
14Andrew Asan Ate., “Media and Society” JIL 713 Course guide, Lagos: National Open University of Nigeria, 2008., at 63 Available online at www.nou.edu.ng visited 30 March, 2012 15Andrew Asan Ate., op. cit., at 36-39 16S. Alabi, “Press Freedom: Background, Legal Bases and Constraints” UNILAG Communication Review, 4 (1), 2003 at 53 17R. Aiyar, R., Quest for News, Madras: Macmillan Press, 1979 18 Innocent Okoye., “Media Law and Ethicsy” JIL 713 Course guide, Lagos: National Open University of Nigeria, 2008., at 33 Available online at www.nou.edu.ng visited 30 March, 2012. 19 Catherine Dean, Truth and the Media, Paper presented at Strathmore University 4th Ethics Conference on “Media and the Common Good” 3rd – 4th November 2006 at. 5, 8-11
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Universal Declaration of Human Rights of December 10, 194820, provides that: “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference; and to seek, receive and impart information and ideas through any media regardless of frontiers.” Furthermore, the United Nations in Articles 19 of the International Covenant on Civil and Political Rights of December 10, 196621, pressed home the need for free press by stating that, “everyone shall have the right to hold opinions without interference”, “everyone shall have, the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kind, regardless of frontiers, either orally, in writing or imprint, in the form of art, or through any media of his choice”. At the continental or regional level, the African Union in “Article 9 of the African Charter on Human and People’s Rights”22, stipulates that: “every individual shall have the right to receive information”. “Every individual shall have the right to express and disseminate opinions within the law”. In encapsulating the provisions of these international documents to ensure a Free Press in Nigeria, section 39 of the 1999 Constitution of the Federal Republic of Nigeria, provides that …"every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference”.23 Constitutional Guarantees for Press Freedom in Nigeria The 1960 constitution provided under Section 24 for freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.24 Momoh also observed that: Section 24 of the 1960 constitution became Section 25 of the Republican Constitution of 1963 and formed the major part of Section 38 of the 1989 Constitution, Section 40 of the 1995 draft constitution, and Section 39 of the 1999 Constitution. 25 In order to appreciate constitutional guarantees for press freedom in Nigeria, Section 39 of the 1999 constitution of the Federal Republic of Nigeria26 provides as follows: (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. (2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information and opinions: Provided that no person, other than the Government of the Federation or of a state or any other person or body authorized by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever. In other to further guarantee press freedom, the Constitution in its Fundamental Objectives and Directive Principles of State Policy provides in section 22 as follows: The Press, radio, television and other agencies of the mass media shall at all time be free to uphold the fundamental objectives contained in this chapter (Chapter II) and uphold the responsibility and accountability of the Government to the people.27 This necessitated by the fact that the idea of freedom will not be complete in expression or observance without taking into consideration the role of the press. In the law
20Universal Declaration of Human Rights. Adopted by the GAR. 217A (iii) of 10 December, 1948. UN Doc. A/810, Article 19 21UN International Covenant on Civil and Political Rights G.A.R 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23rd March, 1976, Article 19 22 African (Banjul) Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc CAB/LEG/67/3 rev.5, 21 I.L.M. 58 (1982), entered into force Oct 21, 1986. Article 9 (1)-(3). 23Constitution of the Federal Republic of Nigeria 1999, Section 39. See also Innocent Okoye., op. cit., at 35 24T. Momoh, Nigerian Media Laws. Lagos: Efua Media Associates Ltd., 2002 at 62 25Ibid 26Constitution of the Federal Republic of Nigeria 1999, Section 39(1) and (2) 27 Constitution of the Federal Republic of Nigeria 1999, Section 22
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making process therefore adequate laws should be put in place for the purpose of ensuring freedom and dissemination of ideas.28 Limits to Press Freedom in Nigeria There is no absolute press freedom anywhere in the world. Nigeria which professes to have one of the freest press in Africa has a lot of limitations to press freedom. Sunday argued that press freedom is limited in the overall interest of the society by29: The constitution, the legislature, the courts and the government. It is contradictory to discover that the same constitution which guarantees press freedom takes away the same freedom it gives to media men. The 1999 constitution for instance, has given conditions for expression of freedom. According to this statute book, expression of freedom is subject to any law that is reasonably justifiable in a democratic society. Section 39(3) of the 1999 constitution states as follows: (3)Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society- (a) For the purpose of preventing the disclosure, of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph film; or (b) Imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law. Now this paper intends to examine other limitations on the laws empowering the media to achieve press freedom and this is chronicled by Momoh as follows:30 Section 45(1) of the constitution provides as follows: “Nothing in sections 37, 38, 39, 40 and 41 of the constitution shall invalidate any law that is reasonably justifiable in a democratic society: (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.” The section that affects the media is section 39 which is known to guarantees freedom of expression and freedom to own, establish and operate a medium for imparting information, ideas and opinions to those who are willing to receive them. It is when one looks at the details of the limitations on the exercise of the freedom under section 39 one will discover that media practitioners need to be more serious in investigating the mines that litter the road taken. The media must therefore look at the various laws that have been promulgated in the interest of defence, public order, public morality or public health, and for the protection of the reputation of others which is the law of defamation. Here the author intends to examine the Criminal Code to point out the extent to which the polity has gone in protecting itself against media actions that may that may be opposed to public good. The greatest danger the media faces today is coping with the protection which the laws give to those whose reputation has been called to question. Many media house do not fully appreciate the cost which neglect of this protection can cause the organisation in terms of payment of damages. It is on this note that this paper will examine the tort of defamation which is the epicentre of this article.
Meaning of Defamation Like most other legal subject, there is no single satisfactory definition of defamation. Judges and textbook writers alike have found it very difficult to define this subject with precision. The difficulty is not only the legal one of framing a satisfactory definition of the
28 J.A Yakubu., Constitutional Law in Nigeria Ibadan: Demyaxs Law Books, 2003at 358-359 29O. Sunday,: News Reporting. Lagos: National Open University of Nigeria, JLS 605, 2006, at 115 30T. Momoh, “Journalism Training of Relevance.”Unpublished Seminar Paper Presented at the Nigerian Press Council’s Workshop on October 6, 2007 in Lagos. 2007 at 13-14
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word, but it is also a troublesome issue of policy.31 Lord Atkin in Sim v. Stretch32., said that a defamatory words were words which tend to lower the plaintiff in the estimation of right thinking members of society generally. The statement may lower the plaintiff in the estimation of right thinking people by exposing him to “hatred, contempt or ridicule”. But the statement need not have that effect. Thus it has been held in Youssoupoff v. Metro-Goldwyn- Mayer,33 to be defamatory to impute that the plaintiff had been raped. The fact that the plaintiff was said to have been raped would not have exposed her to hatred, contempt or ridicule but it may have caused people to shun her or to avoid or lose confidence in her. However deplorable the society may feel that this attitude of victim of rape may be, defamation takes people as they are and not as they ought to be.34 In Berkoff v. Burchill,35 it was held that insults which did not diminish a person’s standing were not defamatory, a statement could be defamatory, if it held up the plaintiff to contempt, scorn or ridicule or tended to exclude him from society, even if the statement did not impute disgraceful conduct or any lack of professional or business skill. In considering whether a statement is defamatory regard must be had to all the circumstances of the case. Words must be interpreted in the context in which they were spoken or written.36 Notwithstanding the foregoing, the effort of Baron Parke is commonly regarded as a classic definition of the subject. He said that defamation is a publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. Expectedly, this definition of defamation has been criticised as being too narrow and unduly restrictive. Modern efforts emphasised that a statement only becomes defamatory when it culminates in lowering a person’s reputation or prestige in the eye of the right-thinking members of the society. Such statement may make people shun the persons’ company.37 The Black Law Dictionary defined defamation as the act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault.38 Defamation is a cause of action which according to the 1975 Faulks Committee of Defamation recommended the following definition: ‘the publication of a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally. Whatever the definition is used the following principles are certainly true: (i) The statement which is alleged to be defamatory must be made to someone other than the claimant, - it will not be, defamation to call someone a thief and a liar if no one else hears the conversation; (ii) The statement must be in form of words which tends to do one or more of the following: lower the claimant in the estimation or normal right thinking people, or expose the claimant to hatred, contempt or ridicule, or cause the claimant to be sunned or avoided.39 According to Ese Malemi, defamation is any expression that damages the reputation of another person. Defamation is a publication which damages the reputation of a person without lawful justification. It is false or wrong information about a person that damages the reputation of a person. Thus defamation is the publication of information that lowers a person
31See D.G Cracknell, “Obligations: The Law of Tort” 4th edn, London: Old Bailey Press, 2003, at 312-313 32 (1936) 2 All ER 1237. See also Parmiter v. Coupland & Ano (1840) 6 M&W 105 33(1934) 50 TLR 581 34 See D.G Cracknell, op. cit., 35 (1996) 4 All ER 1008 36 See D.G Cracknell, op. cit., 314 37 Aboaba Omotesho, op. cit., at 96 38 Bryan A. Garner (ed), Black’s Law Dictionary, (West Publishing CO., 7th edn 2000) at 341 39 Peter Carey & Jo. Sanders Media Law, 3rd edn, London: Sweet & Maxwell Limited, 2004 at 37-38
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in the estimation of right thinking person generally.40 P.H Winfield said that: defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of the society generally; or which tends to make them shun or avoid that person.41 Malemi further stated that defamation is the publication of a false statement about a man to his discredit.42 Essentially, defamation is the publication of a statement which lowers a person in the estimation of right thinking members of a society, or which tends to make them shun or avoid the person. Thus defamation is any communication of any information that injures the reputation of a person and exposes him to hatred, ridicule, or damages him in his office, profession, calling, trade, or business.43 A person commits the tort of defamation when he publishes, before a third party, discrediting information about another person. Defamation is any expression that damages the reputation of a person and causes him to be shunned by reasonable members of the public.44 Defamation Per Quod and Defamation Per Se Defamation per quod is a defamation that either is not apparent but is proved by extrinsic evidence showing its injurious meaning or is apparent but is not a statement that is actionable per se while defamation per se is a statement that is defamatory in and of itself and is not capable of an innocent meaning.45
The Essence of the Law of Defamation Defamation or libel, is what lawyers call a tort, or a civil wrong. It is undoubtedly the most common legal problem faced by person who works in the mass media, and often the most troublesome.46 The purpose of the Law of defamation is to protect the good reputation from a person from being damaged by another person. The tort which protect the reputation of a person are libel and slander. Malicious falsehood otherwise known as injurious falsehood protects the reputation of property, especially commercial property. The basis of the tort of defamation is that every person has a right to the protection of his good name and reputation and the good opinion and estimation the public holds of him. The purpose of the law of defamation is to vindicate, compensate and protect the good name and reputation of a person where there has been damage. Thus the law of defamation is designed to protect, compensate and otherwise remedy any injury done to the good name and reputation of a person, and the resultant effect the loss of reputation may have on his person, office, trade, calling or profession.47 Though defamation is any communication that damages the reputation of a person, but not necessarily the individuals character because ones character is what you are, your reputation is what people think you are. Reputation is what the law protects.48 Hence Malemi argued that where a person has no good reputation in respect of what is said, then the law has nothing to protect for him. A person cannot recover damages for loss of a reputation he does not have. Thus it is not every statement that causes damage to a person that gives rise to liability in defamation. For instance, if a person has been convicted for stealing, or perjury, it
40Ese Malami., Law of Torts, Ikeja: Princeton Publishing Co. , 2008 at 409 41Percy H. Winfield., Law of Torts, 5th edn. London: Butterwort, 1950 p.242 42 Scott V. Sampson (1882) 8 QBD 491 at 503, See Atoyebi v. Odudu (1990) 6 NWLR Pt. 157 p.384 SC. See Sketch Publishing Co. Ltd. V. Ajagbe Mokeferi (1989) 1 NWLR pt. 100 p.687 SC 43 See also Walter Greenwood & Tom Welsh., McNae’s Essential Law for Journalists, 9th edn. London: Butterworth’s, 1985, at 99-100. See also Don R. Pember & Clay Calvert, op. cit. at 166 44Ese Malami., op. cit., at 409 45 Bryan A. Garner (ed), op. cit. 46Ibid., See also Don R. Pember & Clay Calvert, op. cit. at 165 47Ibid. 48See also Don R. Pember & Clay Calvert, loc. cit. at 167
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will not be a defamation to call him a thief, or a liar respectively.49 The next issue to be considered is the essential elements of defamation. Essential Elements and Effects of Defamatory Statement The law of the United kingdom just like that of other civilised nations, recognises in everyman a right to have the estimation in which he stands in the opinion of others unaffected by false of defamatory statements and imputations. Defamatory statements may be made in numerous ways. Broadly speaking, if the statement is written or is in any other permanent form, such as a picture, it is a libel; if it is spoken or any other transient form it is with three exceptions, slander.50 It has been settled in a plethora of judicial decisions that there are three basic ingredients of defamation. The Court of Appeal in Nigeria reiterated this in two of its decisions that that the statement claimed must be defamatory, refer to the plaintiff and must be published.51 In terms of effects, a statement is defamatory when it has any of the following effects on a person. When the statement lowers the person in the estimation of right thinking members of a society generally, expose him to hatred, contempt or ridicule, cause other persons to shun or avoid him, discredit him in his office, trade or profession, or injure his financial credit and so forth. Thus any disparaging expression or statement, written, spoken, or made in any other manner, which has any of the above mentioned elements and effects on a person is defamatory in the absence of justification, or legal defence.52 When is a Statement Considered Defamatory in the Right Thinking Members of a Society A statement is considered defamatory when it damages the plaintiff in the minds of right thinking members of the society generally, and not a mere or particular section of the public. Words are considered not defamatory, however annoying there may be to a particular section of the community or within a club or association unless the expression also damages the reputation of the people in the eyes of right thinking members of the society generally. To write or say of a person something that will disparage him in the eyes of a particular section of the community, but will not affect his reputation in the eyes of the average right thinking person is not defamation and it is not actionable in the law of defamation.53 A particular section of the community was defined by the Supreme Court in the case of Egbuna v. Amalgamated Press of Nig Ltd54., as a body of persons who subscribe to standards of conduct which are not those of society generally. The court equally considered the standard of a right thinking members of the society thus: “rule out on the one hand persons who are so lax or so cynical that they would think non the worse of a man whatever was imputed to him, and on other hand those who are so censorious as to regard even trivial accusations if there were true as lowering another’s reputation, or where so hasty as to infer the worst meaning from any ambitious statement... The ordinary citizen... is neither unusually suspicious nor usually naive, and he does not always interpret the meaning of words as would a lawyer, for he is not inhibited by knowledge of the rule of construction. Therefore where a statement is not defamatory in estimation of the right thinking members of the society, it is not defamation. An Unbelievable Statement and Opinion May be Defamatory in Nature
49M’Pherson v. Daniels (1829) 109 ER 448., See Din v. African Newspapers Ltd (1990) 3 NWLR pt.139, p. 392 SC. See Ese Malami., loc. cit., at 409 at 410 50 Walter Greenwood & Tom Welsh., op. cit., at 99 51 Onyejuke v. Anyasor (1992) 1 NWLR Pt.218, p.437, New Nigeria Newspaper Ltd. V. Otteh (1992) 4 NWLR Pt. 237, at 626 52Ese Malami., op. cit., at 410 53Sketch Publishing Co. Ltd. V. Ajagbe Mokeferi (1989) 1 NWLR pt. 100 at.687 SC, See Registered Trustees of AMORC v. Awoniyi (1994) 7 NWLR pt. 355, at 154 SC. 54 (1967) All NLR 27at 28, 31
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In the decision in Theaker v. Robinson.,55 it was held that a statement may be defamatory even though no one believes it. Thus for instance, a defendant was held liable for publishing libel to the Plaintiff’s husband although the husband did not believe the accusations made against the wife. Also statements of opinion or expression may be defamatory when it is wrongful and discredits a plaintiff. For instance an expression of opinion, that a certain company was an alien enemy and would be closed down was said to be defamatory of the company.56 It is noteworthy that in defamation, the general rule is that the words complained of as defamatory must not be meaningless, therefore meaningless words are not defamatory in the strict sense of the law.57 Though a statement may be innocuous on the surface, but be defamatory, to those with special knowledge for were no words so plain that they might not be published with reference to such circumstances and to persons knowing those circumstances so as to have a meaning very different from that which would be understood by thesame words used differently. For example for a newspaper to say of Mr. Smith that he is a socialist is not obviously defamatory; but if the papers readers know that he is a member of the conservative party such a statement might be held to be defamatory because it imputes that he is politically dishonest such a hidden meaning is referred to as innuendo, from the Latin word meaning to nod to.58 The fact that the defendant has an innocent motive is not, therefore, a defence to a defamation action, but by thesame token, the fact that the words are, on the face of it, innocent, does not mean that the statement cannot be defamatory. The words may, on a natural and ordinary interpretation, contain nothing of a defamatory nature but may be defamatory when combined with some extrinsic facts known to the readers of the publication and this is where innuendo arises and it may be false or true innuendo. However a distinction could be drawn between the two. A “false” innuendo arises where the plaintiff alleges that the words, in their ordinary meaning, bear a particular meaning which is discernible without the need for additional evidence. On the other hand, a “true” innuendo arises where the plaintiff has to adduce additional evidence to establish he meaning which he alleges that the words should be given. The distinction is an important one because innuendo must be properly pleaded and proved.59 Component of the Tort of Defamation There are two forms of defamation in English law, libel and slander. The Legal distinction is important because a claimant who brings a libel action does not have to prove that he has suffered any loss or injury as a result of the statement in legal terminology, libel is said to be actionable per se and damage is presumed to have occurred. Slander on the other hand generally requires proof of actual damage, for example that the claimant has lost his job.60 This paper will now examine both components of defamation details. Libel A libel is a defamatory statement made in a visible or permanent form, such as written or printed statements, for instance, in books, newspapers, notes, circular, letter, or by way of effigy, caricature, painting, photograph, film, radio and television broadcast, and any recorded audio-visual material and so forth. Permanence is the distinguishing feature of the tort of libel. In libel, the defamatory statement remains in a permanent form long after publication, and therefore may be referred to by persons in future, and cause damage to the person and or his family, except they are withdrawn, expunged or destroyed by the defendant
55 (1962) 1 All ER 299 CA 56Slazengers Ltd v. Gibbs & Co. (1916) 33 TLR 36 57 Ese Malami., op. cit., at 410-12 58 Walter Greenwood & Tom Welsh., op. cit., at 101 59 See D.G Cracknell, op. cit., 315 60 Peter Carey & Jo. Sanders., op. cit., at 40
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or by the order of the courts.61 It is pertinent to emphasised that libel is not limited to written or printed materials. The defamatory matter may be made or conveyed in any permanent form. For instance, s statue, cartoons, paintings, caricature, graphic signs, pictures among others.62 Criminal Libel Defamation is also a crime. Where defamation tends to breach the peace, arrest and prosecution may follow a defamatory publication. In criminal law, defamation also consists of libel and slander. In criminal law, libel is usually referred to as criminal libel.63 Section 373-380 of Nigerian Criminal Code also provide that criminal libel is a crime 64i.e. where a defamation tends to breach the peace, arrest and prosecution may follow a defamatory publication.65 Similarly, the Penal Code states in Section 391, under Defamation, as follows: Whoever by words either spoken or reproduced by mechanical means or intended to be read or signs or by representations, makes or publishes any imputation concerning any person, intending to harm the reputation of such person, is said … to defame that person.66 Libel is Actionable Per Se and Libel Per Quod A statement that is libellous per se is defamatory on its face. That is the defamation is apparent in the statement. If additional information is required before a statement is defamatory the statement is libellous per quod and the plaintiff must prove special damage, that there was in fact a loss of money before the plaintiff can recover.67 Libel is actionable per se on mere publication. It is however instructive to note that at the outset certain categories of slander are actionable per se and these may be grouped under four sub issues: where the words complained of impute a crime for which the plaintiff can be subjected to corporal or physical punishment. For instance, a statement that a person is an assassin or a murderer was said to be actionable per se because the imputation of the commission of an indictable offence is serious. Words imputing importing a criminal offence are actionable. This is because such accusation is likely to cause other persons to shun and exclude the defendant from the society. In the second group are words that suggest the plaintiff has a contagious or infectious disease such as leprosy, or venereal diseases. In the third group are words that impute unchastely or adultery to a girl or woman. In the fourth group are words calculated to disparage the plaintiff either in office, profession, business or trade. It is actionable per se to say that a solicitor has no knowledge of the law. Also, to say of a merchant that he has nothing but rotten goods is actionable per se.68 In libel per se the plaintiff does not have to prove damage to be able to succeed in his claim, because the law presumes general damage in his favour. However if the plaintiff has suffered any special or particular damage, he may prove it, and recover it in addition to general damage which are
61Ibid., See also Ese Malami., op. cit., at 414 62 Ese Malami., op. cit., at 414 63Ibid., Aboaba Omotesho, op. cit., at 96 64Section 375 of the Criminal code stipulates that any person who publishes any defamatory matter is guilty of a misdemeanor and is liable on conviction to imprisonment, fore knowledge that the offending matter is false attracts imprisonment for two years. Section 376 states: Any person who publishes, or threatens to publish, or offers to abstain from publishing, or offers to prevent the publication of defamatory matter, with intent to extort money or other property or with intent to induce any person to give, confer, procure or attempt to procure, to upon, or for any person, any property or benefit of any. Similarly, the Penal Code stipulates in Section 392, that “Whoever defames another shall be punished with imprisonment for a term, which may extend to two years or with fine or with both” 65Nigerian Criminal Code Act, Cap. C38 Vol. 4, LFN 2004. Sections 370-380, See R v. Wicks (1936) I ALL ER 384. 66Nigerian Penal Code (Northern States) Federal Provision Act, Cap. P3, Punishment of Offences Committed in Northern States, Vol. 13, LFN 2004., section 391 67 W. Watt Hopkins (ed)., Communication and the Law, Northport: Vision Press, 2003 at 99 68Aboaba Omotesho, op. cit., at 97-98
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usually presumed. A plaintiff who establishes libel without proving damages may therefore get at least award of nominal damages.69 Slander Slander is a statement made in a transitory form and not in a permanent form for example speech.70 It is defamation made in a transient form. Slander is usually by words, that is, speech and sometimes gesture which may not be combined with speech, provided there are not recorded in a permanent form. It is settled law that in slander the alleged defamatory words relied upon must be pleaded and proved in evidence. Thus a plaintiff cannot reply different versions of the defamatory words as given by the several witnesses called. Generally slander is not actionable upon mere publication. Slander is only actionable upon proof of damages, unless in the exception were slander operates like a libel. This means that slander is not actionable per se unless it imputes a crime punishable by imprisonment or corporal punishment, allegation that a person is suffering from a contagious or infectious disease which renders the sufferer liable to be orchestrated from the society,71 alleging unchastity in a woman or girl,72 allegation damaging a person in any office, trade or profession carried on by him.73 For a plaintiff or claimant to succeed in a claim for slander apart from the above stated exception must prove some special or particular damage, for instance in Coward v. Wellington,74 loss of employment and financial distress, which was due to slander was held to be special damages. In support of the foregoing position on slander per se, Bowen L.J stated that, “every libel is of itself a wrong in regard to which the law implies general damages.... akin to actions for libel are those actions which are brought for oral slander, where such slander consists of words actionable per se., and the mere use of which constitutes the infringement of the plaintiff’s right. The very speaking of such words, apart from any damage, constitutes a wrong and gives rise to a cause of action. The law in such as case presume...general damages.75 In all cases of libel and in those cases of slander which are actionable per se, the law presumes that the plaintiff’s reputation has suffered some damages, and for this reason the court will award general damages; and if the plaintiff can prove he had incurred actual pecuniary loss as a result of the libel or slander, he will be awarded a further sum by way of special damages. Whereas special damages being based upon proof of actual pecuniary loss, can be quantified with some accuracy, general damages are at large that is the judge is free to make his own estimate of the plaintiff’s loss, taking all the circumstances into account.76 It should be noted that what the ordinary, reasonable and fair minded reader regards as defamatory may change from time to time. According to Peter Carey & Jo Sanders, “it was at one time defamatory to call someone a “German”, that is during both World wars and the tendency, at that time, to denigrate the Germans.77 Further the meaning of words may change over time. To call someone a “gay” thirty years ago meant that the person being described was happy or carefree. Today a different meaning is common and calling someone gay would well mean defamatory in certain circumstances as was decided in the case of Donovan v.
69Ese Malami., op. cit., at 415 70 Peter Carey & Jo. Sanders., op. cit., at 40 71See Bloodworth v. Gray (1844)135 ER, 140. Taylor v. Perkins (1607) 79 ER 126 72 Sheppard v. Wakeman (1662) 83 ER 293, Essien v. George (1962) All NLR 1064, Kerr v. Kennedy (1942) 1 KB 409; 1 All ER 412 73 See the case of Scott v. Sampson (1882) 8 QB 491. Ese Malami., loc. cit., at 415 74 (1839) 173 ER 234, See also Storey v. Challands (1837) 173 ER 476 75 (1892) 2 ECSLR 109. See also the decision in Webb v. Beavan (1883) 11 QBD 609, Simmons v. Mitchell (1880) 6 AC 156 PC. 76 Kodilinye & Aluko, The Nigerian Law of Torts, 2nd edn, Ibadan: Spectrum Books Ltd, 1999 at 287. 77 Slazengers Ltd v. Gibbs & Co. (1916) 33 TLR. 35.
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Logan,78 where Jackson Donovan claimed that calling him a “gay” was defamatory because he had always held himself out as being heterosexual, the statement therefore meant that he was dishonest. Vulgar Abuse under the Law of Defamation For words to constitute the tort of defamation, such words must be interpreted in the context in which there were spoken or written, though it is sometimes said that vulgar abuse is not defamatory but this is not entirely accurate. Much depends on the circumstances in which the words were spoken. The question is where these words slanderous or vituperative?79 In Fields v. Davis,80 the defendant called the plaintiff, who was a married woman, a “tramp”. It was held that the words were not defamatory because they were uttered by the defendant in a fit of temper and were understood by those around as being mere vulgar abuse. Where the words are written, they are not interpreted as mere vulgar abuse because the defendant has time for consideration of the words before writing them and the reader has no way of knowing that the words were merely vituperative rather than libellous.81 A defamatory statement must however be distinguished from a vulgar abuse. Generally, a vulgar abuse is not actionable. A vulgar abuse connotes words, which prima facie are slanderous but uttered as general vituperations.82 In the case of Bakare v. Ishola,83 there was an altercation between the defendant and the Plaintiff; it resulted in a fight where blows were exchanged. In the heat of the argument preceding the exchange of blows the defendant referred to the plaintiff in Yoruba words, which in English language means you are a thief, ex-convict. You have just been released from jail”, The Plaintiff sued, contending that the words used were defamatory of his person. The court in this case took judicial notice of the words used and decided that they were mere vulgar abuses, since they were uttered in the heat of the quarrel. The general rule is that mere vulgar abuse is not slander and thus not defamation. Long age decision in Thorley v. Lord Kerry, Lord Mansfield CJ explained the law clearly thus: “For mere general abuse spoken, no action lies”.84 The question whether the annoying or irritating words are mere vulgar abuse or whether they actually amount to a slander, is a mere fact which has to be decided by the court looking at the circumstances in which they were altered, that is the facts of each case. A lot depends on the culture, way of life and manners of the society in question. Thus every annoying statement, vulgar abuse, or insult is not defamatory and actionable.85 Though where a vulgar abuse alleges a specific act of wrong doing, or accuses, charges or alleges that the claimant committed a specific or particular crime or wrong, then the statement will not be regarded as a mere slander, as the statement may lead to the claimant being shunned by the public, or arrested by the police. The court will hold such vulgar abuse as defamatory whether or not it was said in an atmosphere of jokes or in the heat of anger. Therefore the court will also hold such abuse as defamatory, if they were said intentionally or deliberately in a normal setting free from jokes or fits of anger.86 Though Bruce Stanford, an attorney and libel expert has listed a number of so-called “red flag”, words that courts often consider defamatory in meaning. There are the following: addict, adultery, AIDS, alcoholic, atheist, bankrupt, bigamist, blacklisted, blackmail, bribery,
78 (1991) (April, Unreported) See also Peter Carey & Jo. Sanders., op. cit., at 40 79 See D.G Cracknell, op. cit., 314. 80 (1995) CLY 1543 81 Ibid. 82 Aboaba Omotesho, op. cit., at 99 83 1959) WRNLR 106, (1972) ECSLR 195 84(1812) 128 ER 367 85 Ese Malami., op. cit., at 420 86Ibid., at 421
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cheater, child abuser, drunkard, ex-convict, fraud, gangster, gay, Herpes, hypocite, incompetent, infidelity, infidelity, Jekyll-Hyde, personality, kept woman, Ku Klux Klan, Mafia, mentally ill, Nazi, neo-nazi, peeping Tom, perjurer, plagiarist, prostitute, rapist, scam, scoundrel, seducer, shyster, slacker, stool pigeon, suicide, swindle, thief, unethical, unmarried mother, unprofessional, unsound mind and villain.87
Press Conference and its Implications for the Law of Defamation Whenever there is a press conference and individuals or persons address the press and such individuals make statements about others, there are liable as the originators, publishers, or authors of the defamation, whilst other persons and members of the press if they publish it, are liable for repeating or republishing a defamation. Indeed the maker of the defamatory statement and the persons who further published it are all joint tort-feasors, and may be sued jointly and severally for defamation.88 The same principles applies were a person publishes such information on the internet. Everyone who makes a defamatory statement at a press conference or other public place is responsible for the further publication of the defamatory statement, by another with his authority. Hence a speaker who knows that his words are being reported by the Press for the Public ought to be careful because if he makes any defamatory statement, he expressly or impliedly authorised further publication by the press, and can be together with the press for libel and not merely for slander.89 Therefore the author and the relevant press are jointly and severally liable for a defamation emanating from a press conference. Liability for the publication of a libel emanating from a press conference may arise either from direct participation or express or implied authorisation of republication. This alludes to the fact stated in the abstract of this paper: that where a libellous statement is published in a news media such a newspaper, everyone who has participated in publication is prima facie liable. It is not necessary to prove express authorisation where it is shown that the defendant participated in or procured the publication.90 In another circumstance a request to further print or publish a defamatory matter may be inferred or deemed from a defendant’s conduct of sending his manuscript or item to an editor of a news paper, magazine, or making a statement to the reporter of a newspaper or media or media with the knowledge that the media will be sure to publish it to the public and without making any effort to restrain them from the repetition of such defamation.91 What a Claimant must Prove to Establish a Case of Defamation To succeed in an action for defamation, a person must prove three things about the statement. (a) It is defamatory, (b) Identification or it had been reasonably understood to refer to him and (c) It has been published to a third Person.92 1. Statement must be Defamatory in Meaning The claimant or plaintiff in a case of defamation must focus on the words themselves. There are two kinds of defamatory words. The first consists of words that are libellous on their face, words that obviously can damage the reputation of any person. Words like cheat, thief and traitor are libellous per se, there is no question that they are defamatory. The second kind of words is innocent on their face and become defamatory only if the reader or viewer knows other facts.93 The above implies the natural meaning of the words used and by reason
87Bruce W. Stanford, Libel and Privacy, 4.13 (2nd ed 2002) in W. Watt Hopkins (ed)., at 99 88 See Egbe v. Adefarasin (1987) 1NWLR Pt.47 1 SC 89 Ese Malami., op. cit., at 422 90 Ibid., See also Peter Carey & Jo. Sanders., op. cit., at 38 91Ibid. at 423 92Walter Greenwood & Tom Welsh., op. cit., at 105 93Don R. Pember & Clay Calvert, loc. cit. at 176
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of innuendo. An innuendo means a statement that which the plaintiff complains of and pleads that although the words used are ordinarily not defamatory, when they are taken together with other words or facts known to some people, the statement is defamatory. An innuendo thus has a secondary meaning that point to defamation of the plaintiff. The complainant then urges the court to take the secondary meaning of the words or statement uttered by the tortfeasor to make his claim valid under the law of defamation. An innuendo may be true or false. It is true when the words appear innocent on the face of it; whilst a false innuendo is one were the words used are by necessary implications defamatory.94 2. Identification The plaintiff must be able to prove that the words of which he complains identify him as the person defamed. The claimant must show that the words were published and concerning him. It is no defence that the claimant is not referred to by name if he would be capable of being identified by reasonable person. Many journalist believe that they can “play safe” by not naming the person about whom they are making the defamatory statement, nut such as omission may prove no effective defence. For the plaintiff to succeed, he needs only to satisfy a jury that a reasonable man would take the words complained of to refer to him, and he is home and dry.95 The crux of this requirement is that the injured party must show the court that the allegedly defamatory statement is “of and concerning him, her, or it”. Failing to do this, the plaintiff or claimant will lose the suit.96 In the leading case of Le Fanu v. Malcolmson,97 a newspaper referred to a certain factory in the south of Ireland and alleged that cruelties were practiced on the work people in this factory. No names were mentioned, but the plaintiffs got damages because by reason of the circumstances and description, the factory was identified. In similar decision in the case of Morgan v. Odhams Ltd98, a journalist sued successfully, over an article in the sun newspaper which neither named him nor described him. A person reading the article carefully would have noted various details which were inconsistent with a reference to Morgan. However, the court said ordinary people often skimmed through such articles casually, not expecting a high degree of accuracy. If as a result of such reading, they reached the conclusion that the article referred to the plaintiff, then the identification was proved.99 3. Publication Before the law recognises a statement or comment as a civil libel, the statement must be published. Under the law, publication means that one person, in addition to the source of the libel and the person who is defamed, sees of hears the defamatory material. Just one person is all it takes in addition to the publisher or the maker of the statement.100 Publication is essential to a libel plaintiff case. It is probably the easiest element to prove when the lawsuit involves the media, but legally, the “publication” is a term of art. It occurs when defamatory material is intentionally or negligently disseminated to someone other than the person defamed. In Ostrowe v. Lee,101 a defamatory writing is not published if it is read by no one but the one defamed. Published it is, however as soon as it is read by someone else. The form of publication is irrelevant. Defamatory material can be published in written or spoken form or on computer bulletin boards.
94Aboaba Omotesho, op. cit., at 98-99 95 Walter Greenwood & Tom Welsh., op. cit., at 105-106 96 Don R. Pember & Clay Calvert, op. cit., at 172 97Le Fanu v. Malcolmson (1848), 1 H.L.C. 637 or, Le Fanu v. Malcomson, 1 Clark 637, 664, 9 Eng. Rep. 910, 921-22 (H.L. 1848). 59. 98 (1971) 1 WLR. 1239; (1971) 2 All ER 1156 (HL). 99Walter Greenwood & Tom Welsh., loc. cit., at 106. 100Don R. Pember & Clay Calvert, op. cit., at 169. 101 175 NE 505, 505 (1931).
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While the repetition of a defamatory material generally consist of a new and separate course of action or libel, repetition by the defamed person does not constitute publication. Similarly while each person involved in the publication of defamatory material may be sued, unless the involvement is direct, there is not likely to be liability. News vendors, booksellers, and libraries, for example, are not subject to liability for publishing defamatory material, if they had no reason to suspect that the material was defamatory.102 A person who has been defamed may sue the reporter, the sub-editor, the editor,, the publisher, the printer and the distributor. Though, newsvendor or book seller can usually put forward a defence of innocent dissemination.103 The accurate republication of defamatory statement within quotation mark is automatically a republication. And since accuracy is not necessarily the equivalent of truth, simply reporting what another person has said is no defence except where the neutral- reportage doctrine is recognised. The single publication rule requires a plaintiff to recover all damages suffered from a libel publication in any one edition of a magazine or newspaper in any one edition and the date of publication of an alleged libel is important so that one issue or edition will not raise numerous cause of action.104 Damages as Consequences of Lawsuits in Defamation The essence of law suit in defamation is to claim damages and the damages are awarded to compensate the plaintiff for the injury to his reputation. Damages in defamation cases are compensatory. The primary notion being to place the plaintiff in as good a position, so far as money can do it, as if the matter complained of as not occurred. The duty of the court is to do the best it can to ensure that the sum which it awards will fully compensate the plaintiff for the damage caused by the libel with which it is concerned.105 In all cases of libel and slander the law presumes that the plaintiff’s reputation has suffered some damage, and for this the court will award general damages; and if the plaintiff can prove that he has incurred actual pecuniary loss as a result of the libel or slander, he will be awarded a further sum by way of special damages; being based upon proof of actual pecuniary loss, can be quantified with some accuracy general damages are “at large” that is the judge is free to make its own estimate of the plaintiffs loss taking all the circumstances into account. These include: the extent of the circulation of the newspaper or book in which he libel was published,106 the social and professional status of the plaintiff, the conduct and demeanour of the defendant before and during the trial, including the manner in which his counsel cross-examined the plaintiff or the Plaintiff’s witness;107 whether the defendant persisted in a plea of justification which eventually failed;108 whether the libel was published deliberately and wilfully or merely by mistake or carelessness; whether the defendant made any apology to the plaintiff; and whether there was express malice on the defendants part.109 Where the damages are increased because of the defendant’s malice, persistence in an ill-founded plea of justification, failure to make an apology, insolent or arrogant demeanour or other unacceptable conduct, there are said to be aggravated.110 Damages may be mitigated or decreased on proof of matters such as where the plaintiff’s general bad reputation; whether
102 W. Watt Hopkins (ed)., op, cit, at 101. 103 Walter Greenwood & Tom Welsh., op. cit., at 108. 104Ibid. 105Omo-osagie v.Okutubo (1969) 2 All NLR 175 at 180 106Awolowo v. Kingsway Store (Nig) Ltd 1969 2 All NLR 217 at 267 107Nthenda v. Alade (1974) 4 ECSLR 470 at 480 108Adewunmi v. Oshinowo 1977) 2 CCHCJ 187, at 197 109Kodilinye & Aluko, op. cit., at 286-288. See also J.A Yakubu., Press Law in Nigeria, Ibadan Demyaxs Press Ltd, 1999 at 77 110Ibid
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the plaintiff has already recovered damages or brought action for same or similar libel; whether an apology has already been published or offered by the defendant.111 It is important to state that where the defendant apologies for defamatory statement which he has made, it is not a complete defence to the defamation action but it will have the effect of mitigating the damages for which he is liable.112 Defences under the Law of Defamation An accuse person in any adjudicatory proceeding has a right to defend himself, so is the case of defamation. Some of the defences come within the purview of general defences to tortuous liability. Others are peculiarly the creation of statutes, while others may owe their origin not only to common law but also to statutes. For our purpose we will examine the following defences: Justification, Consent, unintended Defamation, Fair comment, absolute and qualified privileges.113 Justification: the plea of justification simply means that the allegations, which the plaintiff complained of, are true. By this the defendant asserts that although he has truly published the alleged defamatory words, he has spoken or published the alleged defamatory words, he has spoken or published the truth. In Iwuoha v. Okoroike,114 a plea of justification means that the words were true and the plea cover not only the bare statements of fact in the alleged libel, but also any imputation, which the words in their context may be taken to convey. Consent: When a person expressly or impliedly consents or assents to the publication of a matter, which prima facie is true, the defendant will be exculpated from liability. This is the view expressed in the case of Cockson v. Harewood,115 where the court dismissed the matter on the ground that by the plaintiff’s membership of the club, he has impliedly consented to the publication of the matter.116 Fair Comment: The defence of fair comments is always invoked in the courts, especially by the press, and it is one of the defences which is important in setting the limits of free speech in any country. Nevertheless it is a defence which can only be invoked within certain rather rigid confines. In Control Risks Ltd v. New English Library Ltd,117 the defendant must show that the matter to which his statement referred was one of public interest, that his comment was an opinion based upon true facts, that the comment was fair and that it was not made without malice. 118 The basis of this defence is that the statement is a fair comment on a matter of public interest. It is felt that honest criticism ought to be allowed as it is done in any civilised democracies since this is necessary and indispensable for the efficient working of any public institution or office. In other to succeed with this defence, the defendant must prove that: the matter is of public interest; the words complained about the plaintiff are comment; the facts on which the comment if founded or based are true; and the comment on the facts are true. For the comments to be fair it must be based on facts truly stated; it must not contain imputations of corrupt or dishonourable motives on the plaintiff except such imputations are
111See Section 17 of the Defamation Law 1963 112 By virtue of Section 2 of the Libel Act 1843 of England it was provided that where a statement was inserted in a newspaper without accrual malice or gross negligence and the defendant has inserted a full apology for the libel, either before or at the earliest possible moment after the commencement of the action, then the defendant is entitled to rely on the defence of apology. The apology must be accompanied by a payment into court of a sum of money by way of amends. 113Aboaba Omotesho, op. cit., at 103. See also J.A Yakubu., op. cit., 71 114(1996) 2 NWLR Pt 429 at 321, Section 377 of the criminal code makes truth a defence in a charge of defamation 115(1932) 2 KB 478 116Aboaba Omotesho, op. cit., at 104-105 117 (1990) 1 WLR 183 118 See D.G Cracknell, op. cit., 332
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warranted b the facts; It must be the honest expression of the writer’s real intention. Mere or gross exaggeration would not even make a comment unfair.119 Absolute Privilege: This is a complete defence to defamation in cases of proceedings in the Legislative Houses or in a court of law or where public policy demands that persons should be able to have free discussion on issues with absolute freedom without fear in any manner. Statements made by members of the National Assembly during the course if parliamentary proceeding enjoys an absolute privilege. The privilege extends to statements made during debates in the House, to proceedings of the committee and sub-committees of such a committee, but not to statements made by members outside the House.120 Again statements made during the course of judicial proceeding are also the subject of absolute privilege. The privilege is a wide one and extends to statements made by judges, counsel, parties and witnesses during the court proceedings.121 The Courts have taken a wide view of what constitutes a judicial proceeding for this purpose and it has been held to extend to other hearings, such as a military court of inquiry or a professional disciplinary committees such as the Legal Practitioners Disciplinary Committee and the Medical and Dental Practitioners Disciplinary committee in Nigeria. although absolute privileges applies to statements made during proceedings the statement which is the subject of the defamation action must, in some way, be connected with the case. The defendant cannot use the occasion of judicial proceedings to make defamatory statements totally unconnected with the case and then claim absolute privilege.122 In Ojeme v. Punch (Nig) Ltd.,123 it was held that a fair and absolute report in newspaper, or proceedings held before any court exercising judicial authority if published contemporaneously with the proceeding is absolutely privileged.124 Lastly, a communication made by one officer of state to another in the course of his official duties is the subject of absolute privilege.125 The rational behind this protection is said to be that a minister of the state must be free to carry out his duties without fear of being the subject of a defamation action as such statements are considered official communications.126 Qualified Privilege: There are certain types of statements which, although not qualifying for absolute privilege, nevertheless are entitled to what is known as qualified privilege. This protects the maker of the statement from suit in defamation provided that he acted honestly and without malice. It is for the plaintiff to prove that the defendant was actuated by malice. Malice in this context means that the defendant has no honest belief in the truth of his statement.127 Both absolute and qualified privileges protect persons who make defamatory statements in circumstances where the common convenience and welfare of the society is in issue and demands such protection. While absolute privilege is confined to instances stated above, qualified privilege is wide enough to cover all cases where public interest demands that the truth be told.128
119J.A Yakubu., op. cit., 72 120 See D.G Cracknell, op. cit., 325 121 See Royal Aquarium and Summer Winter Garden Society v. Parkinson (1892) 1 Q.B 431 see also Taylor v. Serious fraud Office (1998) 4 All ER 801. (Absolute immunity of potential witnesses and persons investigating a crime. 122 See More v. Weaver (1928) 2 KB 520 123(1996) 1 NWRL Pt.427 at 701 124See section 378 of the criminal code on issues dealing with absolute privilege in a defamatory matter. 125 See Chatterton v. Secretary of State for India (1895) 2 QB 189 126 See D.G Cracknell, op. cit., 327 127 See Horrocks v. Lowe (1975) AC 135 128J.A Yakubu., op. cit., 74
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Conclusion This research paper has shown that despite the freedom guaranteed the press by many democratic nations in the world. This freedom appears to have been denied by the law of defamation thereby making those who work in the mass media to be very careful with what they publish or be made to face the tort of defamation. This tort has actually curtailed press freedom as the journalist have to censor their information and the sources to avoid been caught in the web of tort of libel. It has been observed form the introductory issues raised in the context of this article that the tort of defamation does not only apply to natural persons alone but that juristic persons can also be injured or defamed and the law of defamation will be invoked on whoever is liable. The author of this paper has examined the essential ingredients of the law of defamation from what the claimant must prove to the legal considerations for damages that the court can award. This article also takes a look at defences available to the defendants under Nigerian Law and as it prevails in other common law jurisdictions. Though freedom of the media is an essential element of democratic development as enshrined in the constitution of Nigeria under sections 22 and 39 of the 1999 Constitution and as it is in other constitutional democracies in the other countries of world but the tort of defamation appears to be a limitation to this freedom considering the avalanche of litigations and damages claimed as a result of the offences of libel and slander.
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102 Volume 3 Mustang Journal of Law and Legal Studies (2012) PUBLIC EMPLOYEE PENSIONS AND SOCIAL SECURITY: YOU MAY NOT BE ABLE TO GET BOTH
Deborah Combs* Kitty Campbell**
I. INTRODUCTION This paper explores and identifies when state and public employees qualify to receive Social Security benefits and State pension benefits. The reason for this research are: 1) many friends and family throughout the U.S. are reaching retirement age, and 2) these same friends and family have questioned why their benefits are being reduced or 3) why they are not qualified to receive any Social Security benefits. Research disclosed that there is significant variation between states and the receipt of Social Security benefits. Also, public employees hired before March 31st, 1986 may be prohibited from receiving Medicare coverage, again dependent upon the state.
II. UNDERSTANDING SOCIAL SECURITY COVERAGE AND THE PUBLIC EMPLOYEE Unlike workers in the private sector, not all state and local employees are covered by Social Security. Some are covered only by their public retirement pension program; some are covered by both public pensions and Social Security; and some are covered by Social Security only.
When it began, the Social Security program did not include any of these employees. Over the years, the law has changed. Most employees have Social Security protection because their states and the Social Security Administration entered into special agreements called “Section 218 agreements.” Others are covered by a federal law passed in July 1991 when Social Security was extended to state and local employees who were not covered by an agreement and were not members of their agency’s public pension system.
Except for workers specifically excluded by law, employees hired after March 21, 1986 also have Medicare protection. States may also obtain Medicare coverage for workers not covered for Social Security who have been continuously employed by the same state or local governmental employer since before April 1, 1986.
Those workers covered for Social Security under a Section 218 agreement are automatically covered for Medicare. State and local government employees who are covered by Social Security and Medicare pay into these programs and have the same rights as private sector workers. Each state has a designated official, called the State Social Security Administrator, who is responsible for the state’s Section 218 agreement.
III. RELATIONSHIP OF SOCIAL SECURITY AND PUBLIC EMPLOYEES RETIREMENT SYSTEMS
Social Security and Medicare coverage for state and local government employees is unique because these employees are covered through a Section 218 Agreement between the State and the Social Security Administration or under the mandatory
103 Volume 3 Mustang Journal of Law and Legal Studies (2012) provisions of Federal law (Federal-State Reference Guide). When the Social Security Act was originally enacted in 1935, public employees were excluded from coverage. This exclusion, lasting from 1935 to 1950, resulted from unresolved legal questions regarding the power of the federal government to tax state and local governments. In 1950, the United States Congress amended the Act and beginning in 1951, states were allowed to enter into voluntary agreements with the federal government to provide social security coverage for their employees who were not covered under a public retirement system. These federal-state arrangements are called
“Section 218 Agreements” because they are authorized by Section 218 of the Act. Specifically, Sec. 218 [42 U.S.C. 418] (a) (1) of the Social Security Act states the following:
The Commissioner of Social Security shall, at the request of any State, enter into an agreement with such State for the purpose of extending the insurance system established by this title to services performed by individuals as employees of such State or any political subdivision thereof. Each such agreement shall contain such provisions, not inconsistent with the provisions of this section, as the State may request.
According to the Federal-State Reference Guide, all 50 states, Puerto Rico, and the Virgin Islands have Section 218 Agreements. Most state employees participate in Social Security, although the coverage varies from state to state. The major exceptions are state employees of Alaska, Colorado, Louisiana, Maine, Massachusetts, Nevada, and Ohio.
A significant amendment to Section 218 went into effect on April 20, 1983, stating that public employees could opt out of Social Security coverage prior to this date. After that, any state employer that entered into a Section 218 agreement must continue under Social Security regardless of any other retirement plans that might become available.
Section 218 was further amended on April 1, 1986 in regard to Medicare coverage. Public employees who were not in “continuous employment” with their employer since March 31, 1986, became subject to mandatory Medicare. Employees hired on or after this date are also mandatorily covered for Medicare, unless specifically excluded by law.
On July 2, 1991, all state and local government employees who were not covered by a public retirement system or a Section 218 agreement became subject to mandatory Social Security and Medicare coverage.
Once a state has entered into an agreement with the federal government regarding Social Security coverage for state employees, the agreement cannot be terminated unless the governmental entity is legally dissolved. The Duration of Agreement in Section 218 ([42 U.S.C. 418] (f)) states that “No agreement under this section may be terminated, either in its entirety or with respect to any coverage group, on or after the date of the enactment of the Social Security Amendments of 1983.”
104 Volume 3 Mustang Journal of Law and Legal Studies (2012) Key dates in determining Social Security benefit coverage of public employees is as follows:
o January 1, 1951 Beginning this date, states could voluntarily elect Social Security coverage for public employees not covered under a public retire- ment system by entering into a Section 218 Agreement with Social Security. o January 1, 1955 Beginning this date, states could extend Social Security coverage to employees (other than police officers and firefighters) covered under a public retirement system. o July 1, 1966 Beginning this date, employees covered for Social Security under a Section 218 agreement are automatically covered for Medicare beginning July 1, 1966. o April 20, 1983 Beginning this date, coverage under a Section 218 Agreement cannot be terminated unless the governmental entity is legally dissolved. o April 1, 1986 Employees hired on or after this date are mandatorily covered for Medicare, unless specifically excluded by law. For state and local govern- ment employees hired before April 1, 1986, Medicare coverage may be elected under a Section 218 Agreement. o January 1, 1987 Beginning this date, State Social Security Administrators were no longer responsible for collecting Social Security contributions from public employers or for verifying and depositing the taxes owed by public employers, Since that date, public employers pay Federal Insurance Contributions Act (FICA) taxes directly to the Internal Revenue Service (IRS) in the same manner as private employers. o July 2, 1991 Beginning this date, most state and local government employees became subject to mandatory Social Security and Medicare coverage, unless they are (1) members of a public retirement system, or (2) covered under a Section 218 Agreement. o March 2, 2004 Social Security Protection Act of 2004 (Public Law 108- 203) was enacted, including provisions (1) requiring public employers to disclose to newly hired public employees that they are earning retirement benefits not covered by Social Security; (2) closing the Government Pension Offset loophole (see Chapter 11); and (3) allowing Kentucky and Louisiana the option to provide a divided retirement system.
IV. MEDICARE
As stated above: Section 218 allows states to voluntarily participate and enter into an agreement with the Social Security Administration. Once these agreements are in place then each state can enter into voluntary agreements with subdivisions to provide coverage. The cost remains the same for the states as it does for all other employers There are four ways for the Social Security and Medicare coverage of public employers:
105 Volume 3 Mustang Journal of Law and Legal Studies (2012) o States and their political subdivision may extend FICA coverage to services performed by their employees through voluntary Section 218 Agreements. o For services performed after July 1,1 1991, all state and local government employees, with certain exceptions, not covered under a Section 218 Agreement or by a public retirement system are mandatorily covered by FICA. o The public employer retirement system must be a qualifying retirement system as defined by 26 CFR §31.3121 (B)(7)-2 and Revenue Procedure 91/40-. Mandatory FICA, under Section of the Act, was enacted by the Public Law 101-508. State and local government employees hired after March 31, 1986 are mandatorily covered for Medicare unless specifically excluded. o Medicare coverage for state and local employees hired before April1,1 1986, who are members of a public retirement system, has availability through a voluntary Section 218 Agreement (NCSSSA State Administrator Handbook, December 2000.)
Section 218. [42 U.S.C. 418] (a)(1). States that any state that request the Commissioner of the Social Security Administration can enter into an agreement for the purpose of extension of the insurance system established by this title. Not included as a “state” are the District of Columbia, Guam, or American Samoa. Included are 50 states, Puerto Rico, Virgin Islands, and interstate instrumentalities.
At the option of the state, Section 218 Agreements, may include or exclude the following services. Services in elective position, services in part-time positions, service in positions paid on a fee basis, agricultural labor, student services, services of elections workers and officials, if the remuneration paid is less than the threshold amount established by the state’s agreement.
Recently, the Supreme Court held that medical residences are subject to FICA taxes. On January 22, 2011, the court asserted that medical students who work more than 40 hours per week as residents are not eligible for the FICA student tax exemption. Under Section 3121 (b)(10), wages are not subject to FICA taxes if the services are performed for a school, college, or university and such services are performed by a student who is enrolled and regularly attends classes as such school, college or university. The IRS (Treas. Reg. Sec. 1.1321 (b)(10)-2(d)(3)(iii)) provides that an employee whose normal work week is 40 hours or more is considered a full-time employee.
Those positions covered by retirement systems will not impair the making of an agreement. The employee is deemed “eligible” for the purposes of coverage by such a retirement system and was a member of said system. All employees who are covered under the same retirement system before, during, or after such date will be eligible. Nothing currently listed extends this coverage to any policeman’s or fireman’s position. Except by the request of the state or by request of the state to be
106 Volume 3 Mustang Journal of Law and Legal Studies (2012) excluded, states that have dual request for employee groups are Alaska, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Washington, Wisconsin, and Hawaii. A political subdivision includes counties, cities, townships, villages, school districts, special districts and other similar governmental entities. If employees are paid by Title III funds, in the states of Florida, Georgia, Minnesota, North Dakota, Pennsylvania, Washington, or Hawaii, and if the state desires, a separate retirement system.
Once the agreement is entered into it may not be terminated, in its entirety or with respect to any coverage group, on or after the date of the enactment of the Social Security Amendments of 1983. State agreements can be modified.
The present Social Security and Medicare rates are:
Social Security Rates 2010
Employee Employer Social Security Medicare Social Security Medicare
Rate 6.2% 1.45% 6.2% 1.45% Salary Cap $106,800 None $106,800 None
Social Security Rates 2011
Employee Employer Social Security Medicare Social Security Medicare
Rate 4.2% 1,45% 6.2% 1.45% Salary Cap $106,800 None $106,800 None
V. Conclusion
The research began and ends in an attempt to provide the current information of those exempt from the Social Security requirements, define Section 218 clarify what States have Section 218 agreements and information on the current Social Security rates and caps placed on salaries.
Those employees that retire from the federal system are sometimes confused why they will receive no Social Security or Medicare benefits. Especially those employees leaving the federal system of retirement that is seeking employment in the private sector to gain access to another retirement plan. These employees have to be employed a sufficient number of quarters by an organization that pays both the Social Security and Medicare systems to be eligible for Social Security benefits. If these
107 Volume 3 Mustang Journal of Law and Legal Studies (2012) employees never have substantial income, they will never see the return of the monies that they have paid into the Social Security and Medicare system. Upon retirement these persons discovered when preparing to retire that they are not eligible to receive both Social Security and federal retirement benefits.
The Social Security benefits that they should received is reduced by the federal retirement benefits that are received. This is known as the “Windfall Elimination Provision” Medicare benefits may or may not be received based on the quarters that have been paid into the account. The reduction in these benefits can be reduced by 50%. This percentage will not be reduced if they have 30 or more years of substantial earnings. Substantial earnings by year are provided by the Social Security Administration. For the current year 2011, substantial earnings are $19,800 dollars. The second table provides the percentage based on the number of years of substantial earnings, to complete the required calculation.
Even though most federal employees opted out of the system voluntarily, their education of what that means is sometimes lacking. This is the moment that it is discovered that they will not receive both even though they have worked very hard to obtain both.
VI. RESEARCH RESULTS BY STATE:
State t Notes State Social Security Medicare Retiremen Alabama X X Alaska X Divided referendum voting in some political subdivisions Arizona X X X Only state agencies covered under ASRS Arkansas X X Except certain volunteer fireman and members of Legislature California X X Colorado X X X SS Excludes State Employees Connecticut X X
108 Volume 3 Mustang Journal of Law and Legal Studies (2012) Delaware X X Florida X X Some before 1970 do not have SS Georgia X X Hawaii X X Idaho X X Illinois X X X Indiana X Iowa X X X SS excludes part-time elected officials Kansas Kentucky X X Louisiana X Mandatory Medicare only after 1986 Maine Maryland Massachusetts Michigan X X Minnesota X X X SS Excludes state troopers – Medicare after 1986 Mississippi X X Missouri X X 218 excludes those covered by Public School Retirement system Montana X X Nebraska X X Nevada New Hampshire New Jersey New Mexico X X SS Excludes state police and corrections New York X X
109 Volume 3 Mustang Journal of Law and Legal Studies (2012) North X X Carolina North Dakota X X Ohio X Medicare mandated for those hired after 1986 only Oklahoma X X X SS joined by an entity by entity basis Oregon X X Pennsylvania X X Rhode Island X X South Carolina South Dakota X X Tennessee Texas X X Utah X X Vermont X X Virginia X X Washington X X West Virginia X X Wisconsin X X Wyoming X X
*Assistant Professor, Accounting & Finance, Southeastern Oklahoma State University ** Professor, Marketing and Management, Southeastern Oklahoma State University
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DOES BETTER CORPORATE GOVERNANCE AND LEGAL FRAMEWORK RESULT IN ETHICAL BEHAVIOUR OF FIRMS IN EMERGING MARKETS? AN EXAMINATION USING PARTIAL LEAST SQUARE ESTIMATION
Sreejesh S Assistant Professor, Marketing & Strategy IFHE University, IBS, IFHE Campus Hyderabad, India. 501 504, Email: [email protected],
Abstract
Ethics is an all pervasive subject of business, but its presence is rarely observed and measured in matters of corporate governance. From ethical point of view, the aim of corporate governance should be to ensure that certain moral standards are maintained and obeying the legal system while dealing with both external and internal governance decisions and covers all the stakeholders. However, the the reality is that the companies are centered on efficient governance mechanism at the cost of non- investor stakeholders and working for shareholder profitability and firm’s short term financial value. Relatively little is known about the impact of legal and governance framework on ethical behaviour of firms in emerging markets. In this context, the study provide a deteailed framework and a model for analysing how the governance and legal framework have an effect on the ethical behaviour of firms in 21 emerging markets. The findings of the study suggest that the corporate governance and legal framework does have an impact on ethical behaviour of firms in emerging markets. The results also suggest that firms operating in these countries tend to have a direct relationship with legal system and ethical behaviour and negative relationship with corporate governance and ethical behaviour.
Keywords Corporate Governance, Ethical Behaviour, Legal Framework, Emerging Markets
1 Introduction
Promoted by the accounting and financial scandals in the developed and developing world, an array of research has conducted all around the world that primarly concentrated on identifying and analysing the relationship between a firm’s governance practices and its operating and financial value maximization. At the same time, another stream of research centered on the analysis of how the differences in financial stucture and legal systems have an effect on the firm level corporate governance proactices(e.g. Klapper and Love 2004). All these attempts seem to suggest that good governance boost the market valuation of companies by improving their financial performance, reducing the risk that boards will make self-serving decisions, and generally raising investor confidence. Indeed, the surveys conducted in emerging economies showed the evidence that institutional investors will pay as much as 28 percent more for the shares of well governed companies in emerging markets1. This compelled the companies in emerging markets as in the developed markets, to adopt strict corporate-governance practices and adhere to legal framework are being rewarded by institutional investors. This raises a fundamental question that “does this financial value motivated corporate governance and leagal framework resulting in ethical behaviour? Especially in emerging markets”.
1 See Paul Coombes and Mark Watson, “Three surveys on corporate governance,” (2000),The McKinsey Quarterly, Number 4 special edition: Asia, revalued, pp. 74–78.
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The above mentioned question could be best analysed through a recent “ India’s Enron”scam-Satyam Computer Services Ltd(Satyam) . In 2008, the company’s revenue surpassed US$ 2 billion and won many prestigious awards in corporate governance. In September 2008, the company also won Glodon Peacock Award for corporate governance excellence for the second time from World Council for Corporate Governance. In 2008 December, the company witnessed a scam of $1.4billion that had severely shaken its stakeholders and global business community as a whole. This corporate failure shows a lesson that this over motivated financial value driven governance would lead to unethical practices. Therefore, there have been a need to balance the legal framework, governance and ethical practices among corporates. Based on the research agenda and fundamental question discussed above, this study examines whether and how a country’s corporate governance and its legal system impact the firm’s ethical behaviour of firms in that country. The study do not derive any hypotheses in this paper, instead we explore four research questions:
Question 1: Does the determinants such as auditing and reporting standards, efficacy of corporate boards, protection of minority shareholder’s interest and strength of investor protection in the country having an impact on overall corporate governance of firms in that country?
Question 2: Does this overall corporate governance of firms in that country should affect the ethical behaviour of firms in that country? If it having an impact how does this effect prevails in these emerging economies, positive or negative?
Question 3: Does the legal system in these emerging economies, individually impact ethical behaviour and overall governance and its determinants?
Question 4: Does the legal system and overall governance of firms in these emerging economies, jointly impact ethical behaviour?
The remainder of the study is organized as follows. Section 2 summarizes the literature related to the field of corporate governance, legal framework and ethical behaviour. Section 3 describes the data used to explore the research questions. Section 4 presents the empirical model and discusses the findings. Section 5 presents the conclusions and implications for the study.
2 Literature review
In order to better understand the research gap, the paper will first review the major streams of literature that contribute to the relationships (ethical, legal and governance) in the study. Thus following is a literature review of two major areas: Corporate Governance and Ethical Behaviour and Legal Framework and Corporate Governance
2.1 Corporate governance and ethical behaviour
Ethical behaviour of firms have been considered as an important aspect in business success(Arjoon 2005) and sound governance practices. However, sometimes the displays of moral and ethical behaviour are not the purpose of good and sound governance practice, but are necessary enablers to accomplish the strategic objectives. Nevertheless, business ethics is pobably as old as business itself, but only recently some companies have started initiatives for the implementation of sound ethical codes of conduct and considered as part of company agenda(Fleege and Adrian 2004). This inclusion of sound ethical codes of conduct as part of company agenda, which had been motivated by strategic objectives helps to achieve two main stream of activities:(a) processes, rules and regulations by which the company directs, administers and controls the business operations for the efficiency of its
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operations and services and (b) economic and business policies for maximising returns that go in servicing its stakeholders. Bondy et al., (2004) stated that the adoption of sound ethical practices helps the companies to preserve or legitimate a reputable public image and prevent public criticism. The well structured and designed code of conduct helps to prevent wrongdoings and promote the following(Cleek and Leonard, 1998; Fleege and Adrian,2004);(a) honest and ethical behaviour within and outside the firm which helps to handle actual or apparent conflicts of interest in personal and professional relationships;(b) helps the firm to follow or act in compliance with applicable government laws, rules and regulations;(c) an increase in social responsibility and (d) helps to develop a good and properly developed corporate culture.
There has been different theories in ethical and governance literature which explains the reasons behind the creation and acceptance of ethical practices. The fundamental theories in this cateogory are: Stockholder theory, legitimacy theory, and stakeholder theory;
(i) Stockholder theory
According to this throry “Companies are only responsible to shareholders and all employee actions should be aimed at maximizing shareholder value without breaking the law”(Fleege and Adrian 2004; Hasnas 1998). Therefore, the crux of this theory is that the organizations main moto to follow ethics and ethical practices is to satisfy its stockholders.
(ii) Legitimacy Theory
Legitimacy theory based on creating a generalized perception that the actions and activities of the organization are appropriate (legitimate) within a given social system. According to this throry companies are continually attempting to ensure that their operations live up to the standards of the societies where they do businesss, making a code of thics an appropriate mechanism for letimating corporate behaviour(Luis Rodriguez 2009).
(iii) Stakeholder Theory
Stakeholder theory attempts to describe, prescribe and derive alternatives for corporate governance that include and balance a multitude of interests. According to this theory an organization may adopt ethical practices to satisfy all its stakeholders. This theory argues that corporations are repsonbsible not only to investors, but also to all its non-investor stakeholders.
2.2 Legal framework and corporate governance
The extant literature shown evidence for the relationship between legal framework and corporate governance in emerging markets. A major destructive force behind the further development of many emerging markets is the lack of regulatory protection against minority shareholder wealth expropriation-especially in the instanc of corporate takeovers(Parisi et al. 2009). Legal system prevalent in the country or quality of the legal protection to the minority shareholders can be categorized in to two: (1) statutory provisions(de jure protection), and (2) and the extent or degree to which the statues are enforced( de facto protection) (Dahya et al. 2008, p. 80). La Porta et al., (1998) stated that the differences in legal system or legal protection of investors among countries might be a better predictor of the ownership differences. The protection of minority shareholders would help to improve the performance and valuation of firm’s shares(Shlefer and Vishny 1997). Shlefer and Vishny, (1997) further contented that there are two most efficient approaches to improve or instil good corporate governance practices and empowering investors: (a) either through legal protection,
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in which better governance can be achieved through governmental regulation (b) or through ownership by large minority investors with significant control rights, in which better governance can be achived through the market forces. La Porta et al., (1997, 2002) also support that a stronger form of legal environment protect the financier from expropriation by the entrepreneur. This stringent legal environment tends to increase the efficiency of corporate governance via adopting good auditing and accouting practices and strengthening the board strurcture within the internal governance mechanism and reduce agency problems in companies with a diluted ownership(Pitelis 2004).
DATA DISCRIPTION
The study uses two differnt data sources to create a unique and comprehensive data set to examine the relationship of corporate governance, legal system and ethical behaviour. First,the study take advantage of original and rich country leval data from the The Global Competitiveness Report,conducted by World Economic Forum in FY 2010. Report features a record number of 139 economies, and thus continues to be the most comprehensive assessment of its kind. The report contains a detailed profile of each of the economies featured in the study as well as an extensive section of data tables with global rankings covering over 100 indicators. The constructs used in this study are from “The Executive Opinion Survey:The Business Executives’ Insight into their Operating Environment” of the report. In order to achieve a sample of sufficient size to be included in the dataset, the Forum’s Centre for Global Competitiveness and Performance works closely with a network of over 150 Partner Institutes that administer the Executive Opinion Survey in their respective countries. They are chosen because of their capacity to reach out to leading business executives as well as their understanding of the national business operating environment. The Partner Institutes are, for the most part, recognized economics departments of national universities, independent research institutes, or business organizations. Most questions in the Survey ask respondents to evaluate, on a scale of 1 to 7, one particular aspect of their operating environment. At one end of the scale, 1 represents the worst possible situation; at the other end of the scale, 7 represents the be the best. For the second source of data collection the study followed GMI International, which covers corporate goverance rating of all the companies in the world. (See Table 1: Construct Measurement)
Table 1: Construct Measurement Construct Scale Source Efficiency of Legal Framework The Global How efficient is the legal framework in your 1 = extremely inefficient; 7 = Competitiveness Report country for private businesses in highly efficient 2010, World Economic challenging the legality of government Forum actions and/or regulations? Ethical Behaviour of Firms The Global How would you compare the corporate Competitiveness Report ethics (ethical behaviour in interactions with 1 = among the worst in the world; 2010, World Economic public officials, politicians, and other 7 = among the best in the world Forum enterprises) of firms in your country with those of other countries in the world? Strength of Auditing and Reporting The Global Standards 1 = extremely weak; 7 = Competitiveness Report In your country, how would you assess extremely strong 2010, World Economic financial auditing and reporting standards Forum regarding company financial performance? Efficacy of corporate boards 1 = management has little The Global How would you characterize corporate accountability to investors and Competitiveness Report governance by investors and boards of boards; 7 = investors and boards 2010, World Economic directors in your country? exert strong supervision of Forum management decisions Protection of Minority Shareholders’ The Global
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Interests Competitiveness Report In your country, to what extent are the 1 = not protected at all; 7 = fully 2010, World Economic interests of minority shareholders protected protected Forum by the legal system? Strength of Investor Protection The Global Strength of Investor Protection Index On a 0–10 (best) scale Competitiveness Report 2010, World Economic Forum
Overall Governance Rating Governance On a 0-10 (best) scale GMI International, 2010 Rating Index
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3 Countries considered
Emerging Markets covered by GMI has been considered for the present study, the list of selected countries as follows: Brazil, Chile, China, Colombia, Czech Republic, Egypt, Hungary, India, Indonesia, Malaysia, Mexico, Morocco, Peru, Philippines, Poland, Russia, South Africa, South Korea, Taiwan, Thailand and Turkey. In the overall governance rating South Africa showed high rating, Poland and India possessed the second and third positions respectively. In ethical behaviour Chile showed highest rating and followed by Taiwan and Malaysia (For detailed understanding of the constructs used in the study see Figure 1 to Figure 7).
Figure 1 Governance Score 7 6 5 4 3 2 1 0
Source: GMI International, 2010
Figure 2: Ethical Behaviour 6 5 4 3 2 1 0
Source: The Global Competitiveness Report 2010, World Economic Forum
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Figure 3: Strength of Auditing and Reporting Standards 7 6 5 4 3 2 1 0
Source: The Global Competitiveness Report 2010, World Economic Forum
Figure 4: Efficacy of Corporate Boards 7 6 5 4 3 2 1 0
Source: The Global Competitiveness Report 2010, World Economic Forum
Figure 5: Minority shareholder's interest 6 5 4 3 2 1 0
Source: The Global Competitiveness Report 2010, World Economic Forum
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Figure 6: Strength of Investor Protection 10 8 6 4 2 0
Source: The Global Competitiveness Report 2010, World Economic Forum
Figure 7: Efficiency of Leagal Framework 5 4.5 4 3.5 3 2.5 2 1.5 1 0.5 0
Source: The Global Competitiveness Report 2010, World Economic Forum
4 Methodology
The present study apply PLS structural equation modeling (SEM) to estimate the theoretical model using the software program SmartPLS( Ringle, Wende and Will,2005). Many of the extant literatures suggested, PLS (Wold, 1975) as the suitable method for estimating complex models. This suggestion was based on the grounded argument that other widely acceptable techniques that is used to estimate the relationship among the latent variables, especially co- variance based SEM introduced by Joreskog (1973) is exemplified by many available software programs, including LISREAL (Joreskog and Sorbom 1993), AMOS (Arbuckle 1994), EQS (Bentler 1995) and Mplus (Muthen and Muthen, 1994) makes more strict assumptions on the data. At the same time, Fornell & Bookstein (1982) suggested two main problems associated with co-variance based SEM technique: (1) improper solutions (i.e. solutions outside the admissible parameter space).The term improper solution describes to
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several possible problems with model estimation, ranging from model non-convergence to invalid values for parameter estimates. Non-convergence in estimation occurs when the maximum likelihood process cannot find a minimum fit function. Usually the estimated model does not converge because of very serious mistakes in how the model is specified. Hsu et al. (2006) suggested several reasons for improper solutions (a) The theory is wrong; (b) the data are inaccurate; (c) the sample size is too small; or (d) covariance structure analysis is not appropriate for the analysis task (Fornell & Bookstein 1982; Gerbing & Anderson 1987); (2) and factor indeterminacy. Therefore, PLS was considered to be the suitable technique for general SEM purposes, there are several reasons for the wide spread use of PLS for measuring customer satisfaction, these are; (i) PLS does not based on any strict assumptions about the data, especially the assumption of normality (Ferreira 2010) (ii) PLS is best suited for predictive purposes (Chin 1998; Ferreira 2010); (iii) It will be more efficient in small sample size as well; (iv) and it avoids the indeterminacy problem (Hulland1999; Ferreira 2010); (v) working with both formative and reflective indicators (Ferreira 2010).
Wold (1966) was the first person who introduced the idea of partial least squares in psychometric literature through his famous book “Estimation of principal components and related models by iterative least squares”. However, the application of this in path models with latent variables has been published by World in 1979 and then the main references on the PLS algorithm are World 1982, 1985(Tenenhaus et al. 2005).
Partial Least Square method is a two step procedure:
In the first step, latent variables scores are computed using the PLS algorithm. In this, a measurement model is conducted using the measurement variables to their own Latent variable and this measurement model is also known as outer model, which can be expressed as: Yj=λyjηj+εj…………………………………………………………………(1)
Here Yj is the column vector of centred manifest variables and ηj dependent latent variable. In the second step, OLS regressions are running on the latent variables scores for estimating the structural equations. This is called structural model or inner model, because a structural model is running related some endogenous latent variables to other latent variables. If η be the column vector consisting of p endogenous latent variables, and ξ a column vector consisting of q exogenous latent variables, the structural model connecting to vector η to the vectors η and ξ can be written as:
η = βη + Γξ + ζ………………………………………………………………(2)
Here β is a zero-diagonal p x p matrix of regression coefficients, Γ a p x q matrix of regression coefficients and ζ a centred random vector of dimension p.
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Table 2: Structural Parameter Estimates Determinants Paths Path Coefficients T-values Auditing & Reporting Standards Ethical Behaviour Of Firms 0.273989*** 8.965624 Efficacy Of Corporate Boards Ethical Behaviour of Firms 0.085268*** 2.530100
Efficiency Of Legal Framework Ethical Behaviour Of Firms 0.622658*** 19.185348
Efficiency Of Legal Framework Auditing & Reporting Standards 0.599140*** 25.198806
Efficiency Of Legal Framework Efficacy Of Corporate Boards 0.648329*** 36.822762
Governance Of Firms Ethical Behaviour Of Firms -0.202004*** 7.202775
Shareholder's Interest(Minority) Ethical Behaviour Of Firms -0.133978*** 3.273644
Strength Of Investor Protection Ethical Behaviour Of Firms 0.050990*** 3.362208
Auditing & Reporting Standards Governance Of Firms 0.002468ns 0.048816
Efficacy Of Corporate Boards Governance Of Firms 0.355883*** 7.068335
Efficiency of legal framework Governance of Firms -0.658130*** 10.945360
Efficiency of legal framework Shareholder’s Interest 0.813633*** 105.522550
Efficiency of legal framework Strength of Investor Protection 0.436072*** 16.668897
Shareholder's interest(minority) Governance of Firms 0.485070*** 8.199997
Strength of Investor Protection Governance of Firms 0.206833*** 9.832842 *** Significant at the p<.01 level. ** Significant at the p <.05 level. ns: not significant
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Table 3: Total Effects* Total effect T statistics Auditing & reporting standards Ethical behaviour of firms 0.273491*** 8.860839 Auditing & reporting standards Governance of firms 0.002468ns 0.048816 Efficacy of corporate boards Ethical behaviour of firms 0.013378ns 0.443534 Efficacy of corporate boards Governance of firms 0.355883*** 7.068335 Efficiency of legal framework Auditing & reporting standards 0.599140*** 25.198806 Efficiency of legal framework Efficacy of corporate boards 0.648329*** 36.822762 Efficiency of legal framework Ethical behaviour of firms 0.743418** 60.118263 Efficiency of legal framework Governance of firms 0.058941ns 1.316718 Efficiency of legal framework Shareholder's interest(minority) 0.813633*** 105.522550 Efficiency of legal framework Strength of investor protection 0.436072*** 16.668897 Governance of firms Ethical behaviour of firms -0.202004*** 7.202775 Shareholder's interest(minority) Ethical behaviour of firms -0.231964*** 5.040486 Shareholder's interest(minority) Governance of firms 0.485070*** 8.199997 Strength of investor protection Ethical behaviour of firms 0.009209ns 0.508691 Strength of investor protection Governance of firms 0.206833*** 9.832842
*Total effect = Significant direct+ indirect effects, *** Significant at the p<.01 level, ns: not significant
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5 Empirical results & discussion
The empirical tests (via PLS) examine the association between the corporate governance, legal framework and ethical behaviour of firms in emerging markets. Table 2 reports the result of research questions 1 to 3 and Table 3 shows the result of research question 4. Question 1: Does the determinants such as auditing and reporting standards, efficacy of corporate boards, protection of minority shareholder’s interest and strength of investor protection in the country having an impact on overall corporate governance of firms in that country?
In accordance with the research question 1, the coefficient on magnitude 0.002468, the path coefficient of auditing and reporting standards to governance is statistically insignificant (t value =0.048816). The other determinants such as efficacy of corporate boards (Beta Coefficient =0.355883, t value =7.068335), protection of minority shareholder’s interest (Beta Coefficient =0.485070, t value=8.199997) and the strength of investor protection (Beta Coefficient =0.206833, t value=9.832842) is found to have significant effects and indicates that these determinants positively associated with corporate governance of firms in these countries. Question 2: Does this overall corporate governance of firms in that country should affect the ethical behaviour of firms in that country? If it having an impact how does this effect prevails in these emerging economies, positive or negative?
Here, the study considered the path coefficient from overall corporate governance to ethical behaviour of the firm (See figure 8). The result of the analysis shows that ( Beta Coefficient= -0.202004, t value= 7.202775) is significant and indicates that country’s firms corporate governance (exogenous variable) exerts a negative pressure on ethical behaviour(endogenous variable) of firms in these countries. Question 3: Does the legal system in these emerging economies, individually impact ethical behaviour and overall governance and its determinants?
Given our SEM with the seven variables, the study has to analyse other seven important path coefficients to test for the significance, such as the legal framework on ethical behaviour, legal framework on overall governance and legal framework on governance determinants(See figure 8). These results indicates that the path coefficient of legal framework on ethical behaviour (Beta coefficient=0.743418, t value=60.118263) is significant and positive, and legal framework on overall governance (Beta coefficient=0.058941, t value=1.316718) is insignificant. The other path coefficients such as legal framework on auditing and reporting standards (Beta coefficient =0.599140, t value=25.198806), efficacy of corporate boards (Beta coefficient =0.648329, t value=36.822762), minority shareholder’s interest (Beta coefficient=0.813633, t value=105.522550) and strength of investor protection (Beta coefficient= 0.436072, t value=16.668897) found to have significant impact. Question 4: Does the legal system and overall governance of firms in these emerging economies, jointly impact ethical behaviour?
Given these findings, the study further explore how these two (legal framework and governance) together influence the ethical behaviour of firms in these countries. For evaluating that objective, the study considered the total effect (Total effect = Significant direct+ indirect effects) of these dimensions on ethical behaviour of firms (See Table 3). The results of the study shows that the joint impact of legal and governance of firms in these
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countries on ethical behaviour of firms is significant and positive (Beta coefficient=0.743418, t value=60.118263).
The results of the study showed that rule based corporate governance system will lead to negative repercussions on the ethical behaviour of firms in emerging markets. This is evident from the fraud at Satyam Computer Services. For supporting this argument Capelli et al. (2010) stated that in the case of Satyam as in the case of Enron had a relatively strong set of independent nonexecutive directors and followed SEBI standards for rules-based governance compliance, including the composition and boardroom experience and expertise. The moral story from this fraud is that rule based corporate governance system, focused on only shareholder value maximization does not guarantee ethical behaviour of firms, therefore focus should be on both rule and value based (stakeholder orientation) governance system as in the case of Infosys Technologies Limited (Infosys) 2 in India.
2 Infosys was one of India’s largest and most famous software companies and provided a range of Information Technology (IT) consulting and software services to leading global organizations. Infosys was involved in customized software development, Internet consulting, application development and offshore software services.
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Figure 8: Framework of Legal and Governance System on Ethical Behaviour of Firms
Source: Prepared by the author
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Table 4: Rating and Descriptive Statistics by Country
Auditing & Efficacy of Minority Effectiveness Governance Ethical Reporting Corporate Shareholder’s Investor’s Of Countries Score Behaviour Standards Boards Interest Protection Legal Framework BRAZIL 3.91 3.5 4.8 4.5 4.4 5.3 3.5 CHILE 2.13 5.6 5.6 5.1 4.8 6 4.6 CHINA 3.37 4.2 4.8 4.4 4.8 5 4 COLOMBIA 3.94 3.9 4.3 4.7 4 8.3 3.4 CZECH REPUBLIC 3.94 3.6 5.1 4.8 4 5 3.3 EGYPT 3.94 4.1 4.8 4.4 4.6 5.3 3.5 HUNGARY 3.94 3.3 5.4 4.5 4.1 4.3 2.8 INDIA 4.54 3.9 5.1 4.5 4.5 6 4.2 INDONESIA 3.14 3.5 4.6 4.7 4.6 6 3.9 MALAYSIA 4.21 4.7 5.4 5.2 5 8.7 4.4 MEXICO 2.43 3.6 4.7 4.1 4.1 6 3.4 MOROCCO 3.94 3.8 4.2 4.6 4.5 3 3.9 PERU 3.94 3.6 4.8 4.7 4.4 6.7 3.1 PHILIPPINES 3.94 3.0 4.6 4.7 4.1 4 2.8 POLAND 5.11 4.2 5.1 4.5 4.5 6 3.1 RUSSIA 3.9 3.3 3.8 4.1 3.2 5 2.8 SOUTH AFRICA 6.09 4.5 6.4 5.8 5.6 8 4.7 SOUTH KOREA 3.93 4.1 4.3 4.2 3.8 5.3 3.2 TAIWAN 3.84 4.9 5.4 5 4.8 5.3 4.1 THAILAND 4.2 3.8 5.1 4.5 4.6 7.7 4 TURKEY 3.62 3.7 4.4 4.2 3.9 5.7 3.4 Mean 3.904 3.942 4.890 4.628 4.395 5.838 3.623 SD 0.80938 0.603798 0.573502 0.401426 0.503464 1.42037889 0.581296 Skewness 0.320547 1.102585 0.590627 1.255219 -0.01844 0.39498817 0.27572 Kurtosis 2.814219 1.608627 1.245107 2.446498 1.35311 0.17432947 -0.90037
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6 Conclusion & implications
The basic objective of corporate governance structuring is to motivate and control executives and employees to retain fair business practices and effectively utilise various resources to maximise efficiency of a business for economic, moral and environmental benefits of the stakeholders. In this globalized environment, the task and duties and style of corporate governance must also change with it, but this change must have direction as well as a path, that will lead to best ethical practices and behaviour. However, without proper ethical guidance, the governance would lose its direction and purpose of selecting right path and fail to create value for the company and its stakeholders. Therefore, the ethical behaviour is essential for selecting the path and executing the right action through this path and applicable to and covers both external and internal corporate governance mechanism.
In the modern globalised consumer driven market era the definition and practice of governance has changed in a drastic way. Different from traditional concept of corporate governance, in which good governance was considered to be an interaction of three forces: the board, the management and the stakeholders, today’s practice of corporate governance is a multifaceted concept with focus on investor and non-investor stakeholders and centred on fair practices, moral responsibility towards actions and damages and welfare of the society and environment. The change of traditional corporate management to today’s corporate governance has given ethical perspective of approaching long term gains, considering society, customers, stakeholders and environment. Working for such an integrated framework, the organisations should focus on the following areas:
• Work with honesty, integrity and trustworthiness which helps to create ethical behaviour • Propagation and maintenance of transparency and accountability in operations inside and outside the organisation, which include the internal and external corporate governance mechanisms, especially duties, rules, process and procedures related to work and services to members in the organization or other stakeholders. • Protection of the rights and interests of stakeholders, which include investor and non- investor stakeholders of the organization which helps to create confidence of stakeholders over company actions. • Apply ethics of care in terms of protecting the environment and ensure the wellbeing of society and nation.
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7 References
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130 Volume 3 Mustang Journal of Law and Legal Studies (2012)
Call for Papers 2013 Mustang International Academic Conference
Las Vegas, Nevada on February 21-22-23, 2013
Held at the Monte Carlo Resort Hotel on the Strip!
The Conference will provide a friendly and supportive environment for new and established academicians an opportunity to share their research and works in progress with members inside and outside their disciplines.
The Conference and the Journals invite submissions in all business and social science disciplines, including accounting, anthropology, business, finance, communication, criminology, cultural studies, economics, management, international business, marketing, history, political sciences, psychology, sociology, social work, business ethics, and business law, in all areas domestic and international. Pedagogy, case studies, teaching notes, book reviews, cross-disciplinary studies, and papers with student co-authors are especially welcome.
The Conference is affiliated with our six peer-reviewed journals:
The Mustang Journal of Management and Marketing,
The Mustang Journal of Accounting and Finance,
The Mustang Journal of Business,
The Mustang Journal of Law and Legal Studies, and our two NEW JOURNALS:
The International Journal of Social Science Research, and
The International Journal of Economics and Social Science.
All accepted presentation will be published in the Conference Proceedings!
Top 3 Papers will receive a Distinguished Paper Award!
Students receive a discounted registration!
Deadline for Submission is January 15, 2013
Conference website: http://www.MustangJournals.com
Submit an abstract for quick review to [email protected]
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Call for Papers
The Mustang Journal of Accounting & Finance
Call for Papers: We are now accepting submissions to Volume 3 of the Mustang Journal of Accounting & Finance. The deadline is May 1, 2013. All submissions undergo a blind, peer- reviewed process. The ISSN is 1949-1794 print and 1949-1786 online. The MJAF is listed in Cabell's Directory and Ulrich's Directory, and is available in full text on Ebsco Host as well as on our website.
The scope of this journal is the discussion of current controversies and trends in all fields of accounting and finance, both teaching and practice, in both the domestic and international sphere.
Papers are welcomed which use original research, add to existing theory, or discuss pedagogical innovations developed for the classroom. Innovative research ideas which span discipline areas or which incorporate other nations or cultures are especially encouraged. In addition, we welcome case studies, teaching tips, book reviews, and multi-disciplinary papers.
The Editor of MJAF is Dr. David Ritter, CPA, JD, and DBA, Texas A&M University - Central Texas.
The Mustang Journal of Accounting & Finance had its premiere issue in 2011.
To submit, email your submission to [email protected]
132 Volume 3 Mustang Journal of Law and Legal Studies (2012)
Call for Papers
The Mustang Journal of Business & Ethics
Call for Papers: We are accepting submissions to volume 4 of the Mustang Journal of Business & Ethics. The deadline is May 1, 2013. All submissions undergo a blind, peer-reviewed process. The ISSN is 1949-1735 print and 1949- 1727 online. The MJBE is listed in Cabell's Directory and Ulrich's Directory, and is available in full text on Ebsco Host as well as on our website.
The scope of this journal is the discussion of current controversies and trends in all fields of business, including accounting, finance, management, ethics, marketing, and economics in both the domestic and international sphere. Papers are welcomed which use original research, add to existing theory, or discuss pedagogical innovations developed for the classroom. Innovative research ideas which span discipline areas or which incorporate other nations or cultures are especially encouraged. In addition, we welcome case studies, teaching tips, book reviews, and multi-disciplinary papers.
The editor of MJBE is Dr. Marty Ludlum, Legal Studies department, the University of Central Oklahoma.
The Mustang Journal of Business and Ethics was started in 2009. Past authors have been from 25 universities and 12 countries.
To submit, email your submission to [email protected]
133 Volume 3 Mustang Journal of Law and Legal Studies (2012)
Call for Papers
The Mustang Journal of Law and Legal Studies
Call for Papers: We are accepting submissions for volume 4 of the Mustang Journal of Law and Legal Studies. The deadline is May 1, 2013. All submissions undergo a blind, peer-reviewed process. The ISSN is 1949-1751 print and 1949- 1743 online. The MJLL is listed in Cabell's Directory and Ulrich's Directory, and is available in full text on Ebsco Host as well as on our website.
The scope of this journal is the discussion of current controversies and trends in all fields of law and legal studies in business, including the domestic and international spheres. Papers are welcomed which use original research, add to existing theory, or discuss pedagogical innovations developed for the classroom. Innovative research ideas which span discipline areas or which incorporate other nations or cultures are especially encouraged. In addition, we welcome case studies, teaching tips, book reviews, and multi-disciplinary papers.
The Editor of MJLL is Dr. Will Mawer, Dean of School of Education, Southeast Oklahoma State University.
The Mustang Journal of Business and Ethics was started in 2009.
Past authors have been from 25 universities and 12 countries.
To submit, email your submission to [email protected]
134 Volume 3 Mustang Journal of Law and Legal Studies (2012)
Call for Papers
The Mustang Journal of Management & Marketing
Call for Papers: We are accepting submissions to volume 2 of the Mustang Journal of Management & Marketing. The deadline is May 1, 2013. All submissions undergo a blind, peer-reviewed process. The ISSN is 1949-176x print and 1949-1778 online. The MJMM is listed in Cabell's Directory and Ulrich's Directory, and is available in full text on Ebsco Host as well as on our website.
Papers are welcomed in all areas of management and marketing which use original research, add to existing theory, or discuss pedagogical innovations developed for the classroom. Innovative research ideas which span discipline areas or which incorporate other nations or cultures are especially encouraged. In addition, we welcome case studies, teaching tips, book reviews, and multi- disciplinary papers.
The interim editor of MJMM is Dr. Marty Ludlum, Legal Studies department, the University of Central Oklahoma.
The Mustang Journal of Management & Marketing had its premiere issue in 2012.
To submit, email your submission to [email protected]
135 Volume 3 Mustang Journal of Law and Legal Studies (2012)
International Journal of Economics and Social Science International Journal of Social Science Research
All submissions to the IJESS and IJSSR undergo a blind, peer-reviewed process. Papers are welcomed in all areas of the social sciences, including anthropology, communication, criminology, cultural studies, economics, education, history, human geography, political science, psychology, sociology, and social work which use original research, add to existing theory, or discuss pedagogical innovations developed for the classroom. Innovative research ideas which span discipline areas or which incorporate other nations or cultures are especially encouraged. In addition, we welcome case studies, teaching tips, book reviews, and multi- disciplinary papers. The International Journal of Economics and Social Science and the International Journal of Social Science Research will have their inaugural issue in early 2014. Submissions are accepted now. To submit, email your submission to [email protected]
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