Lawsplaining Scott v. Napolitano, the federal court ruling holding that my employers really are creepy-ass crackers

IANAL, etc. But still. Holy shit.

Scott v. Napolitano  is an obscure 2010 employment discrimination case in which a federal judge for the Southern District of California ruled that the Department of Homeland Security violated the rights of a security officer by firing him for refusing to answer a series of overbroad questions about his history of mental health disorders and treatments. That is, it’s an obscure case to normal laymen, but if one is in the personnel business, one should have at least a basic understanding of the facts of the case, i.e., that DHS, an agency that is normally given wide latitude to fuck around because #NEVERFORGET and, well, why the hell not, intruded into the general psychiatric history of an employee and got its ass benchslapped. The relevance of this case to personnel managers in the private sector is don’t do that because even DHS gets into hot water for getting so creepy with the help. You know, they might be, gee, expected to keep up with the gist of don’t-ask-your-employees-this-here-question court cases. Or maybe they’re too useless to do anything but human resources. I dunno.

(NB: This is not a very relevant ruling for genuinely small businesses. People who are actually running their own businesses and doing their own personnel management are too busy to process employees’ 47-item medical history questionnaires. Besides, if their businesses are viable, they’re too sensible to think up something so hideous. So if you’re a small business owner who’s receiving alarmist trade literature about how Scott v. Napolitano is another noose of government red tape that will strangle your life’s work, rest easy: you’re just being concern-trolled by managerial-class business lobby wankers again. Nothing unusual about that, sad to say.)

Remember the question I was asked about whether I had ever received “psychotherapy” (sic)? One of the questions that got DHS into trouble in Scott v. Napolitano was, “Have you ever been treated for a mental condition? (If yes, specify when, where, and give details.)” Another benchslappable question was this syntactical gem: “Have you or do you currently experience any of the following: psychiatric/psychological consult, episodes of depression, periods of nervousness? Please specify.” (Remember, this was written by the US federal government. It’s just another name for the things we do together.) In my employer’s defense, sort of, at least I was only asked about “nervous breakdown” and “extreme nervousness.” But, to paraphrase Starr Report victim Slick Willie Clinton, it depends on what the definition of extreme breakdown is. Also, the questions I was asked were not “limited in time,” and Judge Moskowitz, dare I say, would probably agree with me that my employer’s HR department, being in the business of finding roustabouts to prune the pear tree, “cannot satisfy its burden of establishing that the inquiries were ‘no broader or more intrusive than necessary’ to accomplish its goal of ensuring that Plaintiff could still safely do his job.” Or, in layman’s terms, what I said on the couch when I was sixteen has fuck-all to do with what I’m able to accomplish on the ladder at thirty-two.

Nobody who is socially attuned to other people and willing to make decisions based on normal social cues has the least bit of use for dipshit questions like these. There are usually warning signs before someone faints and falls off a ladder; there usually are not warning signs before someone slips and falls off a ladder, which is the more realistic prospect, but whatever, because here’s an unsettling list of rare neurological conditions that could cause you to fall if a slippery sheen of black ice on the rungs or just plain bad luck in footing doesn’t do the trick. This is why God knows who in the office needs to know if I have St. Vitus Dance. I couldn’t say exactly what it is without looking it up, so I probably don’t have it, but my not being afflicted doesn’t make it any of their business.

Do these idiots not trust their crew bosses to notice the signs that a subordinate is, like, totally not doing well with saws and ladders and stuff? Orchard work requires good coordination and mechanical aptitude. No one with a serious ongoing neurological affliction would be able to make it through a field training lesson without his boss noticing that something is seriously amiss. This is basically a moot point, anyway, since it’s just about impossible to find anyone with serious neurological difficulties or physical impairments who applies for work as an orchard grunt. “Yeah, I have the shakiest hands and wobbliest legs you ever saw, so let’s see if I can’t get a job wielding loppers and and a folding saw from three feet up a ladder all the live-long day in ten-degree wind chills. The breeze is always invigorating for those of us who go through life in a never-ending Parkinsonian tremor.” This just doesn’t happen. If it did, the blatant inability to safely do the job would be a firing offense because tools and ladders would go flying in a matter of seconds.

Joint pain is even less of a problem. If an employee is able and willing to work through the pain at a pace that his bosses consider adequate, they’ll let him work through the pain. Should he be more cautious about repetitive stress when his body is telling him to take it easy? That’s his problem, not his bosses’. Many crew bosses and growers are perfectly happy to give physically deteriorating slowpokes some slack on productivity standards if they’re obviously hardy, stoical troopers, especially if the work really needs to be done, which is probably why they were hired in the first place. Medical history questions about bones that ain’t as young as they once were probably weren’t thought up by the farming kind; they’re an HR thing.

Medical history questionnaires have nothing to do with agricultural operations. This pear pruning gig isn’t my first ride in this rodeo. I’ve worked for several other commercial farming operations. The standard recruiting procedure for growers and contractors who are interested in filling vacancies, as opposed to whining in farm lobby journals about how it’s impossible to fill vacancies,  is for the applicant to send a cover letter, and maybe a resume, in response to a help wanted ad, and then for the grower to call or write back to schedule an interview, which is often more of a pre-orientation about what work needs to be done than an interrogation about the applicant’s cultural fit and career goals, with the upshot being that work starts tomorrow morning at seven. Sometimes, it’s an open call to show up at the start of business with I-9 documents. Unless the hiring managers are dead-weight wankers, they won’t have the time to give an applicant the third degree about his background or his five-year plan. The interview process at the orchard where I’ve been working was basically a field orientation followed by a job offer with a start date as soon as I wanted, which in my case was the next morning. The HR “due diligence” bullshit, both undue and a sorry excuse for diligence, is dead weight that was grafted onto an otherwise functional operation, likely enough by Volvo Dude. I don’t know what anyone’s intentions were or are in implementing this intrusive employee intake regime, but it doesn’t really matter. Good intentions simply are not enough to justify background investigation questions that violate both common decency and a standing federal court precedent.

This is an important thing to understand about Scott v. Napolitano. It was not a judicial outburst of overbearing, boneheaded positive law. James Scott seems to have had a severe, debilitating psychiatric disorder. He was on medical leave for over a year, but afterwards he returned to work and stayed on the job until he was fired. It’s very unlikely that he was malingering. The problem with the medical history questions that DHS fired him for not answering was that they were not relevant to his immediate fitness for duty. They had to do with all sorts of extraneous, prejudicial matters. One of these questions asked, “Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past years for other than minor illness? (If yes, give complete address of doctor, hospital, clinic, and details.)” Don’t hate; it’s just our government at work.

At least they didn’t ask for the complete address of the healer. An acquaintance once told me about a time when he was camping out on the beach in Bolinas and got into a belligerent argument with another homeless guy, “and I’m not going to lie to you, shovels were about to fly,” until a pint-sized Indian medicine woman showed up out of nowhere and mumbled quasiverbal incantations while doing hand jive, bringing peace upon both of them. Home is where they lay down their heads, and where Milton Street lays down his. I’m more agnostic about the credibility of this story than about the 100% certainty that its teller enjoys psychosis and a formal thought disorder. This dude, who is totally Froot Loops, is a good example of the kind of people who seek recourse to “healers.” Lifehack: clinicians with recognized qualifications and measurable positive treatment outcomes do not generally advertise themselves as “healers.” Also, clinics are not a subset of “other practitioners,” although maybe they are at DHS; this is, after all, an umbrella bureaucracy that considers the Border Patrol a law enforcement agency, not the rogue quasistate bandit militia that it mostly is.

Demanding to be told whether an employee has recently seen “healers, or other practitioners” is unreasonable. Judge Moskowitz got this right. The natural law argument at play here is that this line of questioning is deranged, needlessly intrusive, irrelevant to the operational safety of the organization engaging in it, and antisocial. This is a case in which positive law, as determined by a federal court in consideration of equity, statute, and judicial precedent, dovetails excellently with natural law.

A concrete way of looking at this is that this is why the medical history questionnaire I’ve been asked to fill out gives me the willies in a way that the objectively dangerous practice of riding around on dangerously steep farm driveways perched atop the side wall of a pickup bed does not. I lived within forty miles of Harrisburg from the age of ten to the age of 24, and I got to know a number of local rednecks. Being stupid with guns and trucks was a culturally acceptable practice in their circles. It shouldn’t have been, since it had a way of getting people blown away by some yahoo with a deer-induced boner or hurled into a tree in a traffic accident, and since it inflicted the atrocity of the “second week of deer camp” song on the public, but it was.

As tragic as this recklessness could be, it was never really a serious breach of the social order. In a weird functional sense, it was not really lawless. These people had a basic respect for public order and decency, even if they had a really fucked up way of showing it. Most of them would never, ever have asked another person point-blank if he had ever been under psychiatric care. Maybe they would if they were drunk, but in that case the consensus would be that good manners aren’t necessarily a high priority for those who are lost in the sauce. Dutch Country rednecks are pretty good at taking the outbursts of known assholes with a grain of salt and understanding that the foul-tempered fuckhead speaks only for himself. I came to get along pretty well with some of these people at a time when I was under psychiatric care for bipolar disorder, and my entanglement with the First World Problems mental health community was never an issue because the rednecks never thought to ask about it. Shit, I was never even really country by temperament, nor did I especially pretend to be, and most of the rednecks didn’t have a problem with that, either. For most of that time, I was the more standoffish one.

I pretty much understand rural Pennsylvanians culturally, even if I don’t grok how they came to be that way. I know the subcultures. Broad, unbidden questions about another person’s psychiatric history, or even about another person’s history of serious physical health problems, are so culturally inappropriate in every rural Pennsylvania subculture I’ve ever interacted with and most urban Pennsylvania subcultures that they might as well be asked by space aliens. Not asking such questions out of the blue is considered a matter of not trying not to be an asshole. These people understand that there are assholes in this world, but they don’t suppose that an asshole represents anyone but himself.

Human resources departments are another matter entirely. Just look at that name: their goal in life is obviously to serve man. Wow Such Cookbook Much Yum. They’re a predatory caste, akin to the police. That’s why they demand that those under their authority answer intrusive medical questions and admonish them to answer truthfully, on pain of firing and adverse employment references. In many subcultures, this sort of tyrannical behavior would get their asses kicked by vigilantes operating with universal peer support.

One of the proofs that America is a society of pseudoentrepreneurial milquetoasts and bullshitters and not a society of genuine entrepreneurs is that employers are able to get away with asking irrelevant personal questions of employees that would get their asses righteously whupped in most bars. This aggression can only be undertaken in unnatural power imbalances that are enforced through iniquities of positive law. Inappropriate and irrelevant interrogation of job applicants is a significant operational inefficiency. This is why small, independent employers rarely engage in that sort of bullshit; they need every bit of efficiency they can achieve to have a hope of staying solvent. As a rule, dedicated human resources operations are parasitical. They’re staffed and run by political operators with few or no core business competencies. They’re dead weight in an organization of any size.

Any organization carrying that sort of dead weight can expect to be undercut by leaner competitors. But this assumes a free market, which in the American political context it totally LOLZOZLOZLOLZO. This is another proof that we’re a sorry-ass herd of milquetoasts and bullshitters: our economy is shot through with bizarre, baroque Rube Goldberg regulatory capture schemes, and we believe the received wisdom that it is a free market. How’s business in that Amway distributorship, you dashing entrepreneur? Bo Bice must be proud of you, son! We believe that small businesses are the engines of entrepreneurship and the soul of the country, and that we are a high-trust society, and then we submit to drug tests and background checks of a sort that no high-trust society would ever propose and no self-respecting yeomanry would ever tolerate. We assume that we’re getting what Jefferson preached, while by most objective measures we are getting what Jefferson practiced. If American labor had any real leverage, these slavedriving corporate social controls would fail because companies imposing them would incur destructively high employee turnover rates and attract a destructively poor applicant pool. These outrageous degradations are only viable in a rigged market full of strategically placed recruitment bottlenecks.

Management wants the rest of us to be a bunch of spineless, contemptible milquetoasts. We’re more manageable that way, and the productivity losses incurred through the recruitment of a god-awful pool of timid yes-men can be offset by imposing regulatory capture rackets on competitors through the sheer corrupt force of positive law. Slaves are no fun when they’re uppity, after all. No, massa, they ain’t. And being free to leave a company, truly free to leave without the threat of passive-aggressive retaliatory interference from a former employer or imminent financial ruin, would be a bit much freedom for us little people. Pharaoh wants us to believe that we’ve reached the promised land, but he doesn’t want us to see the real thing off on the horizon. But this is America. Pharaoh is our buddy, and there is no Pharaoh.

George Carlin was right. There is just enough bullshit to hold this country together.

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