As we near the time that President-elect Donald Trump takes office, many are opining on the impact that this will have on workplaces.
Trump has made a plethora of promises to corporations: tax cuts; reduced regulations; pro-business leadership in the government enforcement agencies; and repeal of Sarbanes-Oxley, the Dodd-Frank Act and the Affordable Care Act. Employment defense firms are prophesizing decreased government intervention, more leniency from the courts, and significant policy and enforcement shifts, all leading to a dramatic downturn in employment litigation. But is this what the last few weeks have shown us is his effect?
According to the Southern Poverty Law Center's recent study, "The Trump Effect: The Impact of The 2016 Presidential Election on Our Nation's Schools," the "Trump Effect" has had a profoundly negative impact on schools and students. The report said 90 percent of the 10,000 interviewed teachers, counselors, administrators and others who work in schools believe it will have a long-lasting impact. Twenty-five hundred educators described harassment and bigotry incidents, from swastikas graffiti to actual violence. According to the teachers, in schools with a majority of white students, the targeting and harassment has skyrocketed against immigrants, Muslims, girls, LGBT students, kids with disabilities and anyone who was on the "wrong" side of the election.
These incidents are not isolated, but more importantly, they show what is going on in the homes of these children. Each of these children's parents are working in companies—either as management or the managed—and are accepting and spewing this same hate in their own homes, teaching their children it is acceptable. Trump won despite demeaning women, claiming to have engaged in sexual assault, demonizing immigrants, Muslims and black people. Trump's win legitimized hate and legitimized discrimination.
The hate incidents are not limited to the schools. The Southern Poverty Law Center in its study "Ten Days After" documented almost 900 bias-related incidents in the 10 days following the presidential election, 162 of them from the workplace. These ranged from an African-American girl being told, "Now that Trump is president, I'm going to shoot you and all the blacks I can find" to "Go back to Mexico!"; "You know my new president says we can kill all you faggots now"; and "You better be ready because with Trump, we can grab you by the pussy even if you don't want it."
But Trump's win does not overturn the civil rights laws, and he does not claim he will repeal these laws. The United States Constitution still promises equal protection under the law. And the silver lining of a Trump win means that the biases that were once hidden deeply are being flaunted by those biased individuals. Already, our firm is getting calls from workers complaining about situations at work that mirror what is happening in the school systems and society. The new reality is that the workplace is likely to become more permeated by explicit discriminatory conduct and harassment, leading to more—not less—violations of the established laws.
Some may say that, with a Supreme Court filled by the Trump administration, the right to a jury trial will vanish in favor of corporations, and courts will rule more favorably for corporations. Lawsuits will diminish under a Trump administration. And yet, Trump himself has been a party to over 4,000 lawsuits, 75 of them open at the time of his election, according to USA Today.
Trump threatened to sue all the women who accused him of unwanted sexual advances. Trump clearly is a strong supporter of the civil litigation system and the ability for the people to bring their claims to a court of law and to have a jury decide the ultimate outcome. A Trump administration is unlikely to limit this. Instead, it is more likely that we are going to see an explosion of civil rights lawsuits, many with direct evidence of discrimination. And as is always true, bad facts create bad law, and "good" facts create good law. With an expansion of direct evidence, plaintiffs will no longer need to pigeonhole implicit discrimination into an overly dwindled standard set by the courts.
The question will be whether an educated arbitrator or a jury influenced by the Trump Effect will be more likely to enforce our civil rights law. This remains to be seen over the next few years.
But as Judge Nancy Gertner recently wrote in the Boston Globe, "We are not remotely in a post-racial, post-feminist environment. Not by a long shot."