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]
Discrimination in public accommodations claim: California plaintiff Sam Mojabi alleges in a lawsuit that Petco has a “systematic” practice of suspending sales of goldfish around the time of the spring equinox. Following the circulation of reports that some families celebrate the Middle Eastern spring-equinox new year’s holiday Nowruz, influenced by Zoroastrian traditions, with a display of live goldfish, some store personnel sought to prevent the sale of the fish to Persian/Iranian buyers for fear the animals would not be cared for well after the holiday. [ABA Journal] Ten years ago Britain’s then-Labour government backed off a proposed ban on the awarding of goldfish in a plastic bag as a fairground prize, and more recently an elderly shopkeeper was “given an electronic tag and curfew for selling a goldfish to a 14 year-old” in a sting operation despite a law limiting sales to over-16s.
A bill called the First Amendment Defense Act, or FADA, with many Republican sponsors, would establish a new protected class in discrimination law, enabling what might develop into a major new sector of litigation. It would bestow on advocates of putative traditional family values — but not their opposite thinkers — new legal rights to sue over adverse government treatment of any kind, including the withholding of subsidies, government contracts or indeed any other public action. The protected status would even extend to acts taken as public employees and clothed with official force. It’s an extraordinarily one-sided, wildly impractical set of proposals whose theme, I argue at Newsweek, is not pluralist accommodation but merely to empower one side, when wielding public authority or tax moneys, to engage in a wide range of punitive and coercive measures against their culture war opponents. And that has less than nothing to do with the First Amendment.
Whole piece here. Dale Carpenter at Volokh Conspiracy has some kind words for my piece along with thoughts about the possible constitutional infirmities of the draft bill’s blatant enlistment of government power on behalf of one viewpoint and set of beliefs as against others; he also links to this Christianity Today piece by three leading religious liberty scholars, Richard Garnett, John Inazu, and Michael McConnell, who acknowledge some of the problems with FADA in present form while urging support for a less sweeping measure (“We think the best approach is to tailor FADA to the core area of concern: religious nonprofits.”)
P.S.: Stephen Bainbridge reprints a letter in which I link and summarize some of my recent writing on religious accommodation.
- Another web accessibility settlement from the U.S. Department of Justice, this time Carnival cruise lines [Minh Vu and Paul H. Kehoe, Seyfarth Shaw, my warnings on legally prescribed web accessibility]
- A topic I’ve often discussed: “Has The ADA Broken Its Economic Promises To People With Disabilities?” [Amelia Thomson-Deveaux, Five Thirty-Eight]
- Nebraska meat-packer tried too hard to hire only legal workers, will now pay dearly for asking for too many documents [Department of Justice press release]
- Owing to discrimination, a Colorado couple had to drive a few extra miles to get a cake, and fly 2000 extra miles to get a marriage license. So guess who’s now in legal trouble for inconveniencing them [Jacob Sullum, New York Post] Sen. Ted Cruz sounds as if he might be skeptical of religious discrimination laws as applied to public accommodation, and down that path might be found libertarian wisdom [Scott Shackford, Reason]
- EEOC says University of Denver Law School must pay its female faculty more [Denver Post, TaxProf]
- “Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury” [Seyfarth Shaw; EEOC v. AutoZone, N.D. Ill.]
- Because more coercion is always the answer: France considers ban on “discrimination” against poor [Frances Ryan, The Guardian]
- “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]
Shot: Jury awards Colorado discrimination plaintiff $19,000.
Chaser: “Then, her lawyers filed a motion for attorney’s fees and costs. They requested $575,683.83.”
To learn how it all turned out, follow the link. [Eric B. Meyer, Employer Handbook]
- 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]
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]
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.”
Similarly today: Ken at Popehat.
- You could see this coming: ACLU says its support for RFRA religious accommodation laws no longer applies in discrimination law context [David Bernstein]
- Root causes of violence: California anti-videogame, anti-gun pol Leland Yee cops a racketeering plea after spectacular arms-smuggling sting [Shackford/Reason, plea agreement via Popehat, earlier]
- FDA’s trans fat ban will have litigation implications [Glenn Lammi, WLF] And we mentioned the palm-oil angle earlier: “Why Environmentalists Are Afraid of the FDA’s Attack on Trans Fats” [Jason Plautz, National Journal]
- An economic liberty decision: “Texas Supreme Court overturns licensing requirements for eyebrow threaders” [Houston Chronicle, Carrie Sheffield/Opportunity Lives, Eugene Volokh, David Bernstein on Don Willett concurrence rebuking Lochner-phobia]
- In trial-lawyer-sourced screed against class action reform, reporter David Lazarus seems to imagine bone break cases are currently sued as class actions [L.A. Times]
- NYC taxi commission: OK, we don’t actually need to pre-clear every update of ride-sharing app software [Kristian Stout/Truth on the Market, earlier]
- And thanks for Overlawyered mention: “Are happier lawyers, cheaper legal fees on the horizon?” [Glenn Reynolds, USA Today]