Thursday, February 18, 2016

Rights Collide

In 2004 Howie Day released Collide. His theme is that people are different in their beliefs or feelings. In part, he says "even the best fall down sometimes, even the wrong words seem to rhyme, out of the doubt that fills my mind, I somehow find,  you and I collide." 

We humans have differences, we "collide." It does not necessarily mean any one of us is right or wrong, but the fact is we are, or at least can be, different. Some is perhaps rather superficial (do not talk down my football team, or favorite restaurant). Some of it is perhaps more objectively important to our identities or individual fundamental beliefs.

A recent Internet story caught my eye and made me think of rights and conflict. It references some subjects about which people have definite feelings and perspectives. The following may include statements with which you do not agree, and about which you have ingrained feelings or beliefs. But, it is interesting. 

The headline was A Rape Survivor Speaks Out About Transgender Bathrooms. The author acknowledges that there is no outcome to this debate that will please everyone. As they say, "you can please all of the people some of the time and some of the people all or the time," or something like that. 

Ms. Triller, the author, writes of a deeply personal experience. She shares her life, and suffering, in a way that is admirable. I do not share personal information well in my writing, and I appreciate those who do. Whether it is David DePaolo's sharing of his parents or Bob Wilson's sharing of his pets, I find it compelling when others open themselves in that way. I admire the way they share and relate. 

Ms. Triller describes her experiences as a ten year old. She tells it in a way that is compelling and reveals that there are some very troubled people in this world. Unfortunately, these personalities prey upon the weak and the young. And, they leave behind damage in their wakes. 

She writes her article to address her concern about "progressive" new policies in American society. She notes that in America we are "boldly adopting 'progressive' new locker room policies designed to create equal rights for people who identify as transgender." She expresses her support for equal rights and then warns that "policies (that) allow transgender individuals to use the locker room consistent with the sex they identify as their own, regardless of anatomy," opens the door for "countless deviant men in this world who will pretend to be transgender as a means of gaining access." 

Ms. Triller has a perspective that, like everyone's, is likely influenced by their birth, their upbringing, life experiences and the society around them. There is likely much in us that is "nature" and much that is "nurture." She has "a deep sense of empathy for what must be a very difficult situation for transgender people." But, she finds the systemic elimination of some barriers, like gender-specific restrooms, as a harbinger of probable, or at least potential danger to others. 

This conflict is not new. Certainly, the bathroom issues is a recent iteration of it, but at its core it is not new. We are a free society. At our roots, we recognized that people "are endowed by their creator with certain inalienable rights." At a recent conference, I was surprised to find only one or two, of hundreds of attendees, understood they have rights in America simply because they exist. Most thought they received their rights from the government. Please remember this is false; if you believe someone gave you your rights, you might more willingly allow someone to take those rights away. 

This "rights" discussion all sounds wonderful in an academic sense. Americans inherently display pride in their freedoms. The problem with rights is that it is rare that everyone's each and every right can be provided full respect and protection.  You see, it is likely at times that "you and I collide."

The freedom of the press may collide with my right to privacy. We have recently witnessed business owner's freedom of religion collide with other's right to equal protection and access to public accommodation. Your right to freedom of expression and association (a loud late-night party at your home) might collide with your neighbor's right to quiet enjoyment of her property. Conflicts and collisions are inevitable. The Courts cannot give full protection to anyone in some conflicts, because to do so might provide no protection to someone else. In other collisions, one person or group's right might be interpreted as paramount to someone else's. There is no formula.

In the same context as conflicting individual rights, we periodically see government action, regulations, laws, which collide with individual rights and freedoms. There is a balancing of government powers versus rights, and rights versus rights, and balances are struck. It is a fluid process, and over time the courts reach different conclusions as to which right(s) or power(s) prevail(s) in a particular collision. It is a tribute to America that there is such focus on rights generally; in a multitude of countries people's rights are just not seen as that important.

Ms. Triller makes a case for uni-gender public restrooms. I am certain that others might make a compelling counter-case. My point though is that this illustrates the conflicts that can occur; it also illustrates the passions that can be involved in the debates that ensue. Some passions may be results of life experiences that others have not experienced. Without such first-hand experience, we may have to work harder intellectually to understand the experiences and implications.

In the 1980s Carly Simon released Coming Around Again, in which she reminds us "I know nothing stays the same, but if you're willing to play the game, It will be coming around again." The message, we keep returning to subjects over and over, but when "nothing stays the same" perhaps we need to. 

It is possible that this is where we are with workers' compensation in America? Is workers' compensation today what it was a hundred years ago? A better question might be is America today what it was a hundred years ago? I would suggest that the answer to each is likely "no." Change is all around us. Some of us stop periodically to remember change, but for the most part people are caught up in the day-to-day. 

We see that over the last few years workers' compensation is "coming around again." The injured worker is asking the courts to conclude that the "grand bargain" is just not what it used to be. There are a handful of academics that join the debate periodically. I have not yet heard anyone argue that the "grand bargain" is not what it was when the Supreme Court found workers' compensation constitutional back in 1917. The comparison sought seems instead to always be that comp today is not as beneficial as it was "before" today, not necessarily what it was in the beginning. 

A lot has changed in America in the last 100 years. The workplace is less engaged in manufacturing. That segment has decreased markedly in just the last 40 years. More details of careers diminishing is here. The legal system has changed. Some contend the American tort law system is not what it was before. An oft-cited example is the increasing application of "comparative negligence" instead of "contributory negligence," explained here. Thus, some argue the probability of an injured worker prevailing in a tort claim is higher today, and thus the value of the right to sue that is foregone in workers' compensation is more valuable today than when the "grand bargain" was struck. These are merely examples. 

A lot has changed in workers' compensation in the last 100 years. In most contexts, occupational disease was not compensable in the beginning. The repetitive trauma injury was often not compensable. In the beginning there were no "full wage" replacement provisions for certain workers, or presumptions of compensability for special workers. Some would argue that workers' compensation has been a variety of peaks and valleys in procedure and in substance over the last 100 years. 

An attorney related to me that he explained a variety of such changes in a 2014 interview with ProPublica. He was disappointed that none of his thoughts or suggestions were included when ProPublica published its workers' compensation expose articles in 2015. He contends that the examples above, and others, prove that workers' compensation has added injured worker protections and benefits since the beginning of workers' compensation. 

Thus, there are those who argue that, in various periods since the beginning of workers' compensation, employees enjoyed increases in benefits under workers' compensation. They might argue that the analysis should be whether workers' compensation today measures up to workers' compensation 100 years ago, not comparisons to 20, 40, or 80 years ago. In any context like workers' compensation, there will be different perspectives. I have learned that this is a subject about which people can be very passionate and debates can be heated. 

There are those who see the entire question wrapped in the changes to state safety programs. I had an attorney explain to me their perspective that Florida's legislative deletion of the Division of Safety in the 1990s was an egregious diminution of the "grand bargain." He lamented Florida's failure to protect worker safety, and saw this "unilateral change" as conclusive on the "grand bargain" diminution argument. 

That perspective arguably discounts or ignores that when comp was born, and included that safety element, there was no Federal Occupational Safety and Health Administration (OSHA). OSHA was created in the 1970s back when the 1972 Commission issued its report. In that conversation, there was seemingly no consideration, in the big picture, of whether diminution is fatal without consideration of such other contributions or additions as Federal safety protections.

Perhaps there are other examples of workers' compensation change, addition, diminution, that deserve discussion. "I know nothing stays the same, but if you're willing to play the game, It will be coming around again."

Is there a balancing solution to the bathroom conundrum Ms. Triller perceives? Is there a balancing solution to the workers' compensation complaints? Is there an opportunity today for an open and honest discussion and consideration of where the "grand bargain" actually stands? Can we listen to perspectives about how government actions affect rights of employees and rights of employers, and have a frank conversation of how these all can be balanced for the benefit and protection of all involved? 

Can we appreciate it is likely that anything that benefits any person, group or entity in the conversation will likely be a detriment to someone else? Recognizing that both the employer and employee perspective are affected by workers' compensation, can we find common ground to balance the effect to the mutual benefit and burden of each?

I appreciate Ms. Triller. She wrote an interesting piece that I found heartfelt and informative. I respect that she has a perspective, and can do so while likewise accepting that there are other perspectives. Can we have that kind of expression about the various perspectives regarding workers' compensation, without personal attacks and invective? Isn't it time to try?

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