by Judge Joan Shkane

Carol\'s Crafts

This is a continuing discussion of Legal Myths and Reality because those that are informed are always the most successful.

MYTH: The law prohibits sexual harassment by any and all employers. REALITY: The federal anti-discrimination law, Title VII of the 1964 Civil Rights Act, protects most workers from employer sexual harassment. With that said, it contains a loophole where the personal staff of legislators, judges and other elected state officials cannot sue their employers if they believe they have been sexually harassed. These employees are excluded from the group of covered employees. This was done deliberately by the legislators who passed the law, presumably to avoid being sued themselves.

In the recent past, several state employees have attempted to sue for sexual harassment and their lawsuits have been dismissed. The New York State Legislature is considering a law that, if passed and signed by the Governor, will close the loophole. This will provide protection to state employees.

MYTH: The New York Constitution provides for religious rights protections. Therefore, one cannot be forced to vaccinate his/her children if the refusal is based on religious objection. REALITY: Courts are often called upon to referee between two or more equally valid and strong legal positions. The goal, of course, is to maintain peace in the community.

There are many examples of this. A recent example is the stress between a New York state citizen’s religious rights protections and the State’s police powers. Police powers are designed to protect individuals as well as the community at large. A recent case arose when members of an Amish community did not wish to vaccinate their children against measles and other illnesses. The State requires vaccinations before a child can attend school or daycare. The children, of course, can be home-schooled if certain home-schooling criteria are met. Short of that, the children cannot be admitted to a school where there are other children who could be infected.

The Amish community, as well as other religious groups, argues that their right to practice their religion, which forbids vaccinations, is protected under the New York State Constitution. They state that “God made his children ‘right and good’ and to vaccinate his children is to lose faith in God.” They further argue that “to rely on a manmade solution would be an act of disbelief in the power of our God to heal and protect us.” They, therefore, sued the State, asking that their children be admitted to school without having been vaccinated.

The State argues that the Constitution gives authority to the State to protect the public from health threats, such as communicable diseases. Recent studies show that some diseases, like measles, not only make one ill but also can impair the immune system so that the disease victim’s immune system may not be able to fight off other diseases. The Court was asked to decide between two competing interests, both of which were strongly and honestly held. The Court followed the precedent set by other New York judges. The Court wrote that “a parent may not assert free exercise as grounds for refusing to obtain medical attention for a child as an omission to do this is a public wrong, which the state under its police powers may prevent.” In other words, the public right to be protected from health concerns, especially communicable diseases, overcomes the individual’s right to follow a religious direction. Therefore, in order to return to school, the Amish children, and all children, must be vaccinated. The State still permits a written medical exemption provided by a doctor if there exists a possible medical threat to the child by being vaccinated.

MYTH: Persons accused of child sexual abuse should be able to know who their accusers are, to confront the victims in order to defend themselves. REALITY: A Catholic Order (Jesuits) has challenged the victim’s (plaintiff’s) right to anonymity in child sexual abuse cases. The Catholic Order argues that potential embarrassment to victims is not sufficient grounds to provide blanket anonymity, thereby hiding the Plaintiffs’ identities. The Order also argues that such anonymity violates due process; it denies alleged abusers the right to test the accuracy, memory, and believability of the accuser’s testimony.

The plaintiffs, or alleged victims, argue that for many, sexual abuse has been kept locked away in memories for years and that they have begun to speak out about the crimes because they rely on their identity being hidden. To strip that from the victims would drive them back into hiding, and permit the perpetrators to go undiscovered and unpunished. It would leave the victims with no recourse in the law. More than 900 lawsuits have been filed in New York State since last August when the law went into effect providing the shield of anonymity to the abused. The Court ruled that the plaintiffs should be granted the “protection of anonymity,” but this may not be the last word on the subject.

Lockwood Law


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