Posts tagged as:

discrimination law

No, that “bake me an anti-gay cake” guy in Denver has no legal case. Now back to real issues [Volokh, our coverage of conflict between bake-my-cake lawsuits and individual liberty]

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Missed this one from the fall: a Texas catering business will pay a fine to the U.S. government for having engaged in “citizenship discrimination.” “Culinaire International unlawfully discriminated against employees based on their citizenship status, the Justice Department claimed, because it required non-citizen employees to provide extra proof of their right to work in the United States. Culinaire has agreed to pay the United States $20,460 in civil penalties, receive training in anti-discrimination rules of the Immigration and Nationality Act, revise its work eligibility verification process, and create a $40,000 back pay fund for ‘potential economic victims.'” Employers face stringent penalties if they ask for too few documents, but that doesn’t mean they’re free to ask for any more than the right number. [Rachel Stoltzfoos, Daily Caller; Bill Watson ("Trying too hard to follow bad laws? That's illegal")] Several related cases, from fifteen years ago, here.

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  • Senate Republicans make noises about reining in runaway EEOC [Roger Clegg, Senate minority staff report, Human Resource Executive Online]
  • Yes, minimum wage increases hurt many low-skilled workers [NBER via Charles Hughes]
  • “Women earn less than men even when they set the pay” [Emma Jacobs, FT, via Tyler Cowen]
  • Just a typical fast food worker, except for happening to have a high-powered P.R. firm representing him [Diana Furchtgott-Roth, Economics21]
  • Aaargh: “Federal judge wants to bury summary judgment for many reasons, but especially because it harms employment-discrimination plaintiffs” [CL&P]
  • “Ideally, someone from Human Resources will join you to meet with the aggrieved employee and inform her that the tree is staying up.” (Well, not up this far into January, but you know.) [Evil Skippy at Work]
  • “But”, sic: “Vermont has some of the most progressive wage-and-hour laws in the country, but low-income workers are still struggling.” [Alana Semuels, National Journal]

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A more balanced treatment than some we’ve seen in the press, including a video interview with Colorado baker Jack Phillips. [New York Times; earlier on forcing small business owners to service weddings against their beliefs here and here].

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Labor and employment roundup

by Walter Olson on November 18, 2014

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The separatism-minded Spanish region of Catalonia has enacted a law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” [El Pais, TheLocal.es] The law includes fines for anti-gay occurrences in the workplace. Advocates defended the shifting of the burden of proof onto the accused to prove innocence as a “positive discrimination measure [that] is already in place for other offenses, such as domestic violence against women, in instances when it is very difficult to prove.” [VilaWeb] (& welcome Andrew Sullivan readers)

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“…Hire others in the same protected group.” [Jon Hyman, Ohio Employer's Law Blog] Wait a minute. Isn’t that discrimination? And if, as Jon Hyman argues with some show of logic, employers have a strong incentive to follow this advice in replacing a dismissed employee given the way courts currently handle bias complaints, should we be disturbed that the law is itself encouraging discrimination?

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September 26 roundup

by Walter Olson on September 26, 2014

  • Was California workers’ comp claim against NFL by former Tampa Bay Buccaneer-turned-P.I.-lawyer inconsistent with his mixed martial arts prowess? [Tampa Bay Times, Lakeland Ledger, earlier and more on California workers' comp and professional football]
  • Salt Lake City’s $6,500 stings: “Secret Shopper Hired to Punish Lyft & Uber Actually Prefers Them” [Connor Boyack, Libertas Institute]
  • Are libertarians undermining public accommodations law? (If only.) [Stanford Law Review, Samuel Bagenstos and Richard Epstein via Paul Horwitz]
  • Why NYC is losing its last bed and breakfasts [Crain's New York via @vpostrel]
  • U.S. continues foolish policy of restricting crude oil and gas exports, time for that to change [David Henderson first and second posts]
  • So it seems the New York Times is now committed to the theory that Toyotas show mechanical unintended acceleration;
  • OK, the future Kansas politician was at the strip club strictly on attorney business when the police arrived. Was he billing? [Politico]

Labor roundup

by Walter Olson on August 28, 2014

  • What’s wrong with the NLRB attack on McDonald’s franchising, cont’d [On Labor, earlier here, here, etc.]
  • Postal union calls in American Federation of Teachers, other public employee unions to kill Staples postal partnership plan [Huffington Post]
  • U.S. Department of Labor uses coercive hot-goods orders to arm-twist blueberry farmers, judges say no [Jared Meyer, Econ21 and Salem Statesman-Journal]
  • “Watch Closely Obama’s Treatment of Unions” [Diana Furchtgott-Roth] “Obama ‘Fair Pay and Safe Workplaces’ Executive Order Will Punish Firms in Pro-Worker States” [Hans Bader, CEI]
  • Judge: massive document request signals NLRB’s emergence as litigation arm, and co-organizer, of unions [Sean Higgins, Examiner] Wobblies on top: NLRB sides with IWW workers over poster claiming eatery’s food was unsafe [Minneapolis Star-Tribune, earlier]
  • Academic debate on union issues already wildly lopsided, union-backed labor history curriculum unlikely to help [Alex Bolt, Workplace Choice]
  • Turning unionism into a protected-class category in parallel with discrimination law is one of the worst ideas ever [Jon Hyman, earlier here, etc.]

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Robert and Cynthia Gifford offer their Liberty Ridge Farm in Schaghticoke, N.Y. as a wedding venue. New York has now fined them $13,000 for politely declining to host a gay wedding. They’ll also have to train their employees in compliance. [LGBTQ Nation, WNYT, Village Voice] Earlier on cakes and more cakes, flowers, photographers, etc. etc. More on this topic: Scott Shackford, Reason.

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  • “Telling Employee He Is ‘Eligible’ For Bonus Not Enough to Create Contractual Obligation” [Chris Parkin/Daniel Schwartz; Connecticut appeals court]
  • Richard Epstein on Obama’s anti-LGBT-discrimination edict for federal contractors [Hoover "Defining Ideas"]
  • D.C. Circuit panel, Janice Rogers Brown writing, strikes down DC tour guide licensing scheme [Ilya Shapiro/Cato, WaPo, Orin Kerr]
  • “Why Progressives Shouldn’t Support Public Workers Unions” [Dmitri Mehlhorn/Daily Beast]
  • “James Sherk of Heritage on Members-Only Bargaining” [On Labor]
  • As discrimination law gradually swallows all else: “Rep. Keith Ellison wants to make union organizing a civil right” [MSNBC]
  • NY Senate committee gives approval to “workplace bullying” law. On thin constitutional ice? [Hans Bader/CEI, earlier]

“Study results in jurisdictions with state-level protections against housing discrimination on the basis of sexual orientation unexpectedly show slightly more adverse treatment of same-sex couples than results in jurisdictions without such protections.” [Samantha Friedman et al., "An Estimate of Housing Discrimination Against Same-Sex Couples," SSRN]

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My first appearance at Cato’s Free Thoughts podcast series at Libertarianism.org, this is feature length — an hour, as opposed to a few minutes as is typical with Cato’s daily podcast. (Direct SoundCloud and YouTube links). The description:

Walter Olson joins Aaron and Trevor for a discussion on the evolution of discrimination law in the American legal system. They talk about common carrier obligations, preferential treatment and employee discrimination suits, the disparate impact of anti-discrimination laws —- especially in hiring decisions —- and the role of law schools and academia in perpetuating this cycle.

I wrote about many of these issues at length in The Excuse Factory, and expanded on the law-school angle in my more recent Schools for Misrule. You can follow our tags for more background on discrimination law generally, disabled rights and the ADA, age discrimination law, and many other topics.

P.S. From David Bernstein, Cato Unbound, 2010: “Context Matters: A Better Libertarian Approach to Antidiscrimination Law

A discrimination-law panel in the state of Colorado has confirmed a ruling that Jack Phillips, a baker of wedding cakes, cannot turn away a gay couple’s request based on religious scruples, and further ruled, quoting the Denver Post, that he is “to submit quarterly reports for two years that show how he has worked to change discriminatory practices by altering company policies and training employees. Phillips also must disclose the names of any clients who are turned away.” [Scott Shackford; CBS Denver]

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  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]
  • “Will ‘Microaggressions’ Make Their Way Into Employment Discrimination Cases? Have They Already?” [Daniel Schwartz]
  • More phone and pen: Obama executive orders will forbid federal contractors from retaliating against employees who discuss pay with colleagues, direct DoL to require compensation data from contractors based on sex, race [AP, White House]
  • List of best and worst states for employee lawsuits (from employer’s perspective) includes some surprises, although California’s status as worst isn’t one of them [Insurance Journal] $20K to fend off suit “for harassment and intimidation by her manager — when the manager was her sister” [Coyote; sequel to "Ventura County blues," on which earlier here and here]
  • Wage/hour activists step up pressure for federal enforcement, more detailed pay stubs to combat off-clock work, alleged misclassification [ABA Journal]
  • “A National Minimum Wage Is a Bad Fit for Low-Cost Communities” [Andrew Biggs and Mark Perry, The American] “Immigration, Eugenics, and the Minimum Wage” [Matt Zwolinski, Bleeding Heart Libertarians]
  • Court decision may amount to end run enactment of something like ENDA minus the legislative compromises and exceptions [Tamara Tabo, and thanks for link to "good reasons" for opposition; a second view from Jon Hyman]
  • “DOL (Department of Labor) Persuader Rule Undermines Attorney-Client Privilege, Attorney Generals Say” [Howard Bloom and Philip Rosen (Jackson Lewis), National Law Review, earlier]

And the curious thing is, they’re from prosecutors. “The prosecutors’ office replaced part-time assistant prosecutors with full-time positions in 2011. Eight of the part-time employees who were replaced sued the city for age, race and/or gender discrimination, The Kansas City Star reported. … The eight former assistant city prosecutors filed their lawsuits individually and alleged different circumstances.” [Claims Journal]

New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”

Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.

P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.

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