Cato files an amicus brief backing a Richland, Wash. florist’s right not to say it with flowers [Ilya Shapiro and Jayme Weber, brief in State of Washington v. Arlene’s Flowers and Barronelle Stutzman, earlier]
President Obama wants to compel many companies to begin reporting salary information to the federal government. Thaya Brook Knight comments.
Correction: The proposal would not require companies to provide the information as part of their own tax filings, but would require them to use the information from employees’ Forms W-2 to compile the required disclosure, which would be made to the EEOC.
Earlier on the pay-gap mythos here (Hanna Rosin, Slate: “You Know That ‘Women Make 77 Cents to Every Man’s Dollar’ Line? It’s Not True.”) as well as past links to articles such as this, this, and this.
A dismissed law professor has won her bid to a hearing before a human rights tribunal on her claim that expecting her to submit work to peer-reviewed journals, which she had failed to do in her 11 years at the University of British Columbia, “is contrary to indigenous oral traditions.” [National Post]
Richard Epstein attempts “an imperfect reconciliation” between the irresistible force of modern anti-discrimination law and the all-too-movable object of free association principles [Law and Liberty]
- Now watch out for the next phase of the “ban the box” effort, which will demand that private employers not be allowed to ask about applicants’ criminal records [Open Society via @georgesoros]
- “We have one restaurant in Seattle, and we probably won’t be expanding there. That’s true of San Francisco and Los Angeles, too.” [Buffalo Wild Wings CEO Sally Smith via David Boaz]
- New York Times reporting vs. nail salons: the video [Reason, earlier] The other Greenhouse effect, in this case Steven: Times “sees the labor beat as having essentially an advocacy mission.” [Adam Ozimek]
- The lawsuits of September: “the EEOC has once again rushed to file a blitz of federal court complaints just under the fiscal year wire” [Matthew Gagnon, Christopher DeGroff, and Gerald Maatman, Jr., Seyfarth Shaw]
- I was a guest on Ray Dunaway’s morning drive time show on WTIC (Hartford) talking about cop fitness tests and the blind barber suit, you can listen here:
- NYC Commission on Human Rights — with an assist from Demos and New Economy Project — runs public ads saying “There’s no evidence that shows a link between credit reports and job performance. That’s why NYC made it illegal to use credit reports in employment decisions.” The “Suburbanist” responds: “We will punish those who depart from our null hypotheses regarding their business. Human rights indeed.”
- What are the biggest legal questions facing employers? “What is work?” and “Who is an employee?” are a start [Jon Hyman]
Of the vast edifice of federal laws that now control the terms of private employment, one of the less discussed is a 1994 enactment called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), under which employees who participate in the military are made a protected class in private employment. Writes Jon Hyman: “An individual claiming discrimination under USERRA need only prove that military service was a ‘motivating factor’ in the adverse action — which may rely on circumstantial evidence (including suspicious timing, statements, or behavior) that creates a ‘convincing mosaic’ from which a reasonable jury could infer discriminatory motive.”
Hyman discusses the recent case of Arroyo v. Volvo Group North America, in which managers expressed admiration but also “frustration” at an employee’s resort to “frequent military leave” in situations where, they believed, her army reserve obligations would have been consistent with taking less time off the job. Eventually it dismissed her on attendance grounds.
Last month the Seventh Circuit overturned a lower court’s dismissal of the case, citing, as “anti-military animus,” managers’ concerns about what they perceived as her overuse of the leave, and its disruptive effects on work. “Animus” as a word here, of course, hardly carries the connotation of prejudice, spite, or hostility that frequently attach to that word. It is more like an confusing leftover from the days when federal employment law made it its chief business to prohibit invidious discrimination, rather than, as now, to enforce affirmative accommodation.
- Judge Kozinski ate a sandwich paid for by the ACLU and the National Law Journal and American Bar Association are totally on it;
- Update: “Ohio court says city can’t use ‘quick-take’ to seize property” [Watchdog, earlier on town of Perrysburg’s effort to seize property in adjoining Middleton Township]
- Regarding the wildly one-sided attacks on arbitration of late, I’ve noticed that the people who call contractually agreed-to arbitration “forced” are usually the same people who don’t call taxation “forced”;
- “‘Underground Regulations’ Violate the Constitution as Much as Headline-Grabbing Executive Actions” [Ilya Shapiro, earlier on subregulatory guidance]
- Reminder: if you’re interested in Maryland policy you should be keeping abreast of my blog Free State Notes;
- Business litigants battle it out, sugar v. corn syrup [L.A. Times]
- Obama just backed ENDA-on-steroids Equality Act [Washington Post, earlier, Scott Shackford/Reason (bill would cover not only employment but “housing, lending, jury duty, and public accommodations” while “massively expand[ing] what the federal government counts as a public accommodation,” thus turning into federal cases what are currently local disputes like the Arlene’s Flowers case)]
Great moments in discrimination law: Joel Nixon, who has been diagnosed with Retinitis Pigmentosa and is legally blind, was fired from his job at Tony’s barber shop in South Easton, Mass. He says he had been giving men’s haircuts for years to customers’ satisfaction but was fired after a 2012 incident “when he tripped over a customer’s legs. Later in the day, he tripped over a chair in the waiting room.” His former employer Tony Morales calls the allegations “a bunch of lies” but “did not appear at numerous hearings and parted ways with an attorney who was supposed to help him.” The Massachusetts Commission Against Discrimination, the state civil rights agency, awarded Nixon $75,000 in lost wages and $25,000 for emotional distress. [Bob McGovern, Boston Herald]
- “Requiring Employees to Return 100% Healed Costs Trucking Firm $300K in EEOC Suit” [Thompson’s HR Compliance Expert]
- Update: Oregon appeals court upholds $400,000
finejudgment against Portland owner who asked transgender club to stop holding meetings at his nightclub [Oregonian, earlier]
- Fire Department of New York commissioner: yes, we lowered fitness bar so more women could join the force [Matthew Hennessey/City Journal, my take in The Excuse Factory back when]
- From May: “Oversight of the Equal Employment Opportunity Commission: Examining EEOC’s Enforcement and Litigation Programs” [Senate HELP committee via Workplace Prof]
- Lengthy HUD battle: 2nd Circuit notes “no finding, at any point, that Westchester actually engaged in housing discrimination” [WSJ editorial, earlier here and here]
- In 1992 Delaware settled an employment discrimination lawsuit by agreeing to assign prison guards “without regard to the gender of prisoners….A disaster ensued.” [Scott Greenfield on Cris Barrish, Wilmington News-Journal coverage]
- NYC council speaker pushing “very bad bill to extend special employment protections to caregivers” [N.Y. Daily News editorial]
The great thing about discrimination-in-public-accommodations law is all the social harmony: barber near Pittsburgh fined $750 by state of Pennsylvania for declining to cut women’s hair [Scott Shackford, Reason]