Posts Tagged ‘discrimination law’

August 19 roundup

  • “Photos of Your Meal Could be Copyright Infringement in Germany” [Petapixel]
  • National Labor Relations Board opts to dodge a fight with college football [Daniel Fisher, Forbes]
  • Governor’s commission charged with recommending new redistricting system in Maryland includes possibly recognizable name [Washington Post, Southern Maryland Newspapers; thanks to Jen Fifield for nice profile at Frederick News-Post]
  • Trial bar’s assault on arbitration falls short: California Supreme Court won’t overturn auto dealers’ standard arbitration clause [Cal Biz Lit]
  • Ontario lawyer on trial after prosecutors say sting operation revealed willingness to draft false refugee application [Windsor Star, more]
  • “Vaping shops say FDA regulation could put them out of business” [L.A. Times, The Hill] Meanwhile: “e-cigarettes safer than smoking, says Public Health England” [Guardian]
  • I was honored to be a panelist last month in NYC at the 15th annual Michael R. Diehl Civil Rights Forum, sponsored by the law firm of Fried, Frank, alongside Prof. Marci Hamilton (Cardozo) and Rose Saxe (ACLU) discussing the intersection of religious accommodation and gay rights [Fried, Frank] Also related to that very current topic, the Southern California Law Review has a symposium on “Religious Accommodation in the Age of Civil Rights” [Paul Horwitz, PrawfsBlawg]

August 5 roundup

  • Makes perfect sense: to make transportation more accessible to its residents, Montgomery County, Maryland orders 20 taxi companies to close down [Washington Post]
  • “New ‘Gainful Employment’ Rule Spells Trouble For For-Profit Law Schools (And Would For 50 Non-Profit Law Schools)” [Caron, TaxProf]
  • “To comply with a twisted interpretation of TCPA, Twitter would have to stop providing certain services altogether.” [Harold Furchtgott-Roth] “New FCC Rules Could Make Polling More Expensive, Less Accurate” [HuffPost Pollster]
  • To draft the unpassable bill: Scott Shackford on the politics and bad policy behind the omnibus LGBT Equality Act [Reason] “So How Can Anyone Be Opposed to Non-Discrimination Laws?” [Coyote] More: Establishment liberalism reluctant to admit it’s changed its thinking on religious accommodation, but that’s what’s happened [Ramesh Ponnuru/Bloomberg View]
  • Update: “Court rejects claim over goat goring in Olympic National Park” [AP, earlier here and here]
  • “I would receive 100 other identical stories [from asylum seekers] with only the names changed.” [The Australian, 2013]
  • “Some protested that DNA testing amounted to a violation of canine privacy because dogs were not capable of consent.” [New York Times on Brooklyn condo dispute via @orinkerr]

Take that, authenticity

Staffers from the New York City Commission on Human Rights comb Craigslist for improper job ads and hit pay dirt when they found one from the Indian restaurant Shalom Bombay seeking an “experienced Indian waiter or waitress.” A judge decided to cut the fine on the owners from $7,500 to $5,000; documents in the case noted the lack of any evidence that the ad had real-world consequences. The restaurant has been out of business for more than a year. [“Indian restaurant fined for trying to hire Indian waiter,” New York Post]

Oregon: bakers’ statements to national media were “unlawful”

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice. Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony. Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.” Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued – and its commissioner agreed – that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail. Check it out [cross-posted from Cato at Liberty].

Similarly today: Ken at Popehat.

July 8 roundup

An observation on the $135,000 cake refusal

Has anyone noted that the “Ferguson syndrome” of ruinously escalating fines for petty violations [covered widely in the liberal press, and here previously], and Oregon’s ordering of a couple to pay $135,000 for not complying with a request to bake a cake (being covered at AP, widely in the conservative press, and here previously, with related], might actually amount in part to the same issue?

P.S. On Twitter, colleague Jason Kuznicki and I discuss the issue a little further. He writes: “Can’t say I agree. Punitive fines are really hidden taxes. The bakery issue is about punishing crimethink.” I respond: “But with sensible damages calculation (i.e. circa zero) the bakery action would lose much of its power to intimidate. Also, there’s debate: are oppressive local fines ‘just’ a revenue abuse (typically our side’s view) or a wider #NewJimCrow? Or to put it yet another way: once you allow oppressive fines, don’t be surprised if they are used to oppress.”

Post-trial maneuvering in a discrimination verdict

In March a San Francisco jury returned a defense verdict in Ellen Pao’s widely publicized sex discrimination suit against Kleiner Perkins. As so often when a lawsuit story sounds over, however, that’s been just the prelude to further wrangling over a possible settlement: Kleiner says Pao has demanded $2.7 million in exchange for not pursuing an appeal, while Kleiner, citing a spurned pre-trial offer that it says triggers the operation of California’s offer-of-settlement law, has asked a court to order Pao to pay nearly $1 million in expert witness fees and other costs. Davey Alba at Wired reports and quotes me on several aspects.

Last week CBS radio quoted me on another high-profile discrimination suit, EEOC v. Abercrombie & Fitch Stores LLC, the headscarf accommodation case:

Just not in frosting

“Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts” [Eugene Volokh] The Lexington Human Rights Commission had ordered employee training for a t-shirt printer that had objected to printing messages it disagreed with, but a Kentucky trial court judge threw out the order citing both the First Amendment to the U.S. Constitution and Kentucky’s version of the Religious Freedom Restoration Act, here applicable to a corporation as defendant since it was an incorporated business that had been the target of the discrimination complaint. Compare the bake-my-cake cases, which have generally come out the other way. And see in the U.K., “Patrick Stewart backs bakery after ‘gay cake’ court battle”: Independent, Telegraph, Katherine Mangu-Ward/Reason.