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Jonathan A. Segal
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As I mourn the loss of Judge Shapiro, I remain unsettled by the Inquirer’s obituary. http://www.philly.com/inquirer/obituaries/20160723_U_S__District_Senior_Judge_Norma_Shapiro__87.html. Because the obituary did not do justice to the Judge who fought so hard for justice, I wrote my own blog about her.

The Inquirer article focused heavily on the ‘famous’ prison overcrowding case. The complexities of the case go beyond a short blog. However, one critical point does need to be made.

Judge Shapiro never set a cap on the number of prisoners as the article suggests. Rather, she simply enforced a settlement agreement that had been reached between the City and the plaintiff class.

While active, the case was highly politicized. Inconvenient facts were ignored by those who focused on the political and not the legal.

Sadly, that happened even on the day of the Judge’s death, when former District Attorney Lynne Abraham said disparaging and untrue comments about the Judge and the case. To be blunt: Ms. Abraham’s comments said nothing about the Judge and everything about her.

I am not a mere bystander. I knew Judge Shapiro well because I had the honor to clerk for her in 1985-1986.

The Judge had a brilliant mind and steely work ethic. As important, her dedication to the rule of law was unwavering, even when mercilessly and unjustly attacked.

A trailblazer, Judge Shapiro had to confront gender bias and much of it was not subtle. But she never complained about it and talked about it only in terms of finding solutions.

The Judge did not let gender bias stop her or define her. She simply crushed it.

As most know, the Judge was the first woman to be appointed as a judge in the Third Circuit. She was a first second to none.

So many women understandably speak of the Judge as a role model. I want to say, as a man, she was a role model for me, too. How lucky I was, as a man, for my first mentor to be such a remarkable woman.

Her brilliance and strength were matched only by her kindness and warmth. To her clerks, she remained a lifelong source of wisdom, encouragement and friendship. We were part of her “judicial family.”

But nothing was more important to the Judge than her real family. She was a beloved grandmother, mother, mother-in-law, sister, wife and daughter.

At the Shiva for the Judge, I had the opportunity to hear her family, particularly her grandchildren, talk about the Judge with such love. She played an integral part in each of their lives. She adored them and they her.

Yes, she was an extraordinary judge. But she also was an extraordinary person devoted to her family and friends.

She asked for very little. She gave so generously of herself.

In Hebrew, there is an expression, Eshet Chayil. It mean a “woman of valor.” The Judge was a woman of valor in every aspect of her life.

May her memory be a blessing to those whose lives she touched. It will be for me.

For those who are interested in learning more about the Judge’s extraordinary accomplishment and her perspective on judging and life, I call your attention to an incredible interview with the Judge by one of Philadelphia’s most accomplished and respected attorneys, Roberta Liebenberg: http://www.americanbar.org/content/dam/aba/directories/women_trailblazers/shapiro_interview_1.authcheckdam.pdf

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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I am pleased to share my latest post to the SHRM blog regarding the sexual harassment lawsuit filed by former Fox Channel Host Gretchen Carlson.

By now, I assume you all have read or at least heard about the sexual harassment lawsuit filed by former Fox Channel Host Gretchen Carlson against Fox CEO Roger Ailes. Since then, at least a half dozen other women have said that they, too, were harassed by Ailes.

When you heard about the allegations, which of the following responses comes closest to your immediate (visceral) reaction:

1. This is but another example of a powerful man abusing his position to engage in vile sexual harassment. We have another serial harasser.

2. Carlson never complained about harassment until her contract was not renewed. This is but another example of someone complaining about harassment after they don’t get what they want.

3. I have no idea. I need to investigate the facts.

If you look at social media or listen to conversations about the case, you will hear a lot of people who “know” it happened or are “certain” it did not. I have not seen or heard too many say, “I have no idea; it needs to be investigated.”

Now, I return to you. If you are like most people, your visceral response was probably 1 or 2. What does that mean?

We hear a lot of talk about implicit bias. Effectively, we are talking about bias of which we may not be aware.

Here, we are talking about a different kind of bias. That is, our initial responses may reflect explicit bias based on our own experiences as employees or as professionals who investigate harassment complaints.

I acknowledge that my emotional response initially was not “3.” Initially, I was suspicious of the allegations based on timing—that would put me in camp #2.

Then, when I heard that there were at least a half dozen other women claiming harassment, my visceral response changed. Carlson spoke out only when she had nothing left to lose and others then spoke out, too. So, that put me in camp #1.

I am grateful that I am aware of my emotional reactions based on my experiences in evaluating harassment cases. If I am aware of my assumptions based on experience (bias), I can consciously avoid them and investigate the facts impartially without such assumptions. That puts me where I belong: camp #3.

Now, I turn to you and ask that you think about your reaction. It very well may reflect your own personal experience in the workplace, as an employee or as an HR professional in receiving and then investigating harassment claims.

It is quite human to learn from and develop assumptions (biases) based on experience. In fact, if our experiences do not inform our instincts, then we have a developmental problem.

But, we need to be careful not to jump to conclusions based on our experiences generally without carefully evaluating the facts of a specific case. Remember, each case is not about the broader societal issue but rather what happened in that particular case.

Think of your visceral reaction (instinct) to this case. That may reflect your bias. Now that you know it, be careful of it when you investigate complaints in your workplace.

Remember, every complainant is someone’s child, parent, partner, sibling or friend.

The same is true of every accused.

Both deserve a prompt, impartial and thorough investigation before conclusions are reached.

 This blog should not be construed as legal advice (or a political opinion).

About Jonathan A. Segal
1167
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .