Sunday, March 11, 2007

When Are Exceptions Justifiable?

New information about our brains has the potential to revolutionize the legal system in this country. So says an article in the NY Times Magazine today.

It used to be that only by reason of insanity was a person let off the hook or given a lesser sentence after committing a heinous crime. But consider a man in New York who strangled his wife to death and then threw her body off the 12th story of a building to make her death appear to be suicide. Prior to his trial an MRI indicated he had a brain cyst. The judge allowed the finding of the cyst to be admitted as evidence, but disallowed any statement that such a cyst could turn a person into a killer. Instead of being put behind bars for life, he was charged with manslaughter and given a reduced sentence by the jury.

The same article went on to say that research into our brains has shown that many of our thoughts are written clearly enough for someone to read without our ever uttering a word. WHEW! That’s actually pretty scary. I can envision a whole new genre of law that deals with nothing but evidence gleaned from our brains – neurolaw or something like that.

This whole thing started me thinking about how we treat people with various disabilities in the workplace. I’ve had several of these types of employees over the years – one who was mentally unbalanced, one who was practically paralyzed with back pain and was on heavy-duty narcotic painkillers, one who had a whole battery of related problems that caused him to miss a lot of work, and a fourth who had ADD.

The real issue with these disabled employees is whether we can hold them to the same standards as those who don’t have such problems. It can become increasingly difficult to make work assignments that are commensurate with those given other people at their same grade level because these people often have a track record of turning up absent or not meeting deadlines.

But then if they are given preferential treatment, doesn’t that mean that the other employees are making up for the fact that they can’t perform equally?

It’s a tricky wicket, whether in the legal system or in the workplace, to decide when to recognize a condition that perhaps makes a person different from others in meting out a sentence or in making a work assignment or in evaluating a person’s performance.

All men (persons) might have been created equal, but some become less equal, and the issue becomes how we deal with that inequality. This post contains more unanswered questions than it suggests answers.

Any thoughts?


Anonymous David said...

You raise lots of interesting questions. My pet peeve is related and it concerns the preferential treatment given to kids up to graduate school age if they have some kind of "disability" diagnosis.

Now, if these are "legitimate", I don't have as much of a problem. But, it is my experience that parents are trying to figure out any angle to give their kids an advantage. I know young adults that don't seem to have any learning disability whatsoever and yet are able to take untimed tests.

Our son recently took the CA bar exam and indicated that he was very pressed for time on some of the sections. What a huge advantage it must be to take these tests untimed. It's not just the extra time provided but the absence of stress that results from no time pressure whatsoever.

Who ever heard of this stuff 40 years ago? Now, I'm not saying all of this if phony, but I'm willing to bet that a lot of it is. And, it's just another example of playing the system. And, it puts those kids who don't game the system at a tremendous disadvantage at least until they enter the work force.

Then, I think they have a leg up as they have not been coddled throughout their school years. And, I can't see the new boss saying to little Johnny - "sure, take as long as you want to do this job." Uh-Uh, doesn't work that way in the real world. So, those who've gamed the system may have a rude awakening.

9:37 PM  
Blogger Richard said...

I am typically considered on the pretty far right spectrum on the issue of responsibility. As a general rule, I admit no exceptions.

You were drunk? Too bad, you chose to get drunk.

Caught your spouse in flagrante delicato ? Passion is not an excuse for murder. You are a human, not a mindless brute.

Thsi is likely a consequence of (or perhaps I am drawn to) Stoic philosophy which advocates that we are rational beings always possessed with the capacity of reason. Or, following Sartrian philosophy, "We are condemned to be free."

9:56 PM  
Anonymous Bengal said...

Barbara, take another look at the first three paragraphs of that New York Times article. The case did not result in a jury verdict. Weinstein pleaded guilty to a lesser charge on the morning jury selection was to begin. It is not clear from the article what role, if any, the presence of a cyst on his arachnoid membrane played in plea negotiations between his lawyers and the prosecutors.

The day is probably not too far off when the Transportation Security Administration adds brain scanners to its arsenal of humiliation in the name of fighting terrorism. For the most part, though, I agree with Richard.

For our mutual benefit, may I suggest lighting, er, lightening up by all? How about "The Little Puritans", also in today's Times, for a good, "too true!" laugh?

10:54 PM  
Blogger always write said...

It seems I'm always the first to pooh-pooh a slacker, and yet, during personal trials of my own, I have always depended on the kindness of colleagues. It's hard to put yourself in someone else's shoes and truly understand what constitutes a reasonable expectation for any individual.

12:01 PM  
Blogger Mother of Invention said...

There is a very difficult line to draw between the slackers who milk the kindness and understanding of employers, and the people who indeed really have limitations. I think if the oerson can do a good job with some accommodations, then they should be given the chance. I agree with David, in that giving unlimited time is not the reality of the workforce like it is in school. Kids do get many allowances if they have certain labels of conditions which affect learning. We should teach these kids to deal with the realities of what they should expect in the outside world and how to compensate as much as possible for their particular problem so that they can still do as good a job as anyone else.

I believe that employers should cut some slack for a limited time when employees are going through personal problems and council them or give support if they need more heavy-duty professional aid.

12:45 PM  
Blogger steve said...

the subject is going at several different levels, I'll speak to one level- and I like what "always write " says....
Barbara says "the issue becomes how we deal with that inequality."
In my own personal experience,many years ago I hired a blind Dishwasher... there was a lot of concern from my Superiors, but the end result was that the entire Restaurant began to operate as an even better team than we had been before.. amd the $ wasted on Flatware thrown away and Broken Dishes DECREASED!!!
this doesn't speak owards pleas of insanity, but there are some positive effcts trhat can be had for peoples (including ourselves) handicaps. Give it a chance. Cheers!

2:18 PM  
Blogger Kristin said...

I've heard that I'm (incredibly) demanding. I haven't quite figured that out. I have high expectations of everyone, including myself, but I'm the only one I fault if the work doesn't get done. The funny bit is that my expectation differ depending on the person. I'm great with kids, with people with disabilities. Slackers hate me, though.

4:22 PM  
Blogger Barbara said...

David -- I'm only too familiar with the "extra time" granted many, often upper class, children. One of the first blatant abuses of this was Dan's friend in high school who took the SAT's over a 2-day period and went home and looked up things in between. Makes my blood boil when it is not justified.

Richard -- I tend to agree with you if everyone is on an even playing field. But it becomes a little more difficult to hold everyone to the same standard when some people have real problems.

Bengal -- I think you are right. A brain scan may follow on the heels of a lie detector test in the future. Can you imagine not being hired because your brain disclosed something objectionable about you? Oh, but all in the name of national security, I'm sure...

Haven't had a chance to revisit the NY Times, but I need a little levity so I will do so before it gets recycled.

AlwaysWrite -- You have verbalized my watchword in supervising people. Blindly holding people to the same standard only works for robots, and maybe not always even then. The trick is to balance the needs of the workplace with the needs of the worker -- not always easy. Knowing someone with OCD has been a real education as to how debilitating some not-so-obvious illnesses can be.

MOI -- I pretty much agree with everything you said.

Steve -- And I'll bet all of you who worked with the blind dishwasher had a much better appreciation of what it was like to be blind. Kudos to you for taking a chance.

Kristin -- You and I are just alike. And I can spot a slacker from a long way away. I will go to bat for someone with the real problem, but unwarranted excuses don't work for me.

1:45 PM  

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