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]
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.”
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.
“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.
- NLRB to brass: please don’t sell workplace data to telemarketers or use it to “harass” or “rob” employees [Joe Perticone, IJ Review]
- “Direct evidence must … wait for it … exist to matter in a discrimination case” [Jon Hyman on Butler v. Lubrizol, Ohio Court of Appeals]
- “Cries of ‘blacklisting’ as administration cracks down on contractors” [Lydia Wheeler/The Hill, Connor Wolf/Daily Caller, Public Citizen (supportive; proposals also attack pre-dispute arbitration), earlier here and here]
- Fast food: “The fix is in on Cuomo’s wage-fixing panel” [Ashley Pratte, Washington Examiner; Diana Furchtgott-Roth, Economics 21]
- Another perspective on working in a nail salon [Tyler Cowen, earlier pushback on New York Times investigation]
- Annals of “wage theft”: hired Ferguson protesters say they’ve been stiffed out of pay promised by ACORN successor [American Thinker]
- “Can [an Employer] Lawfully Prohibit Secret Recordings in the Workplace?” [Jarad Lucan, Connecticut School Law]
“A coalition of more than 60 Asian-American groups filed a federal discrimination complaint against Harvard University, claiming racial bias in undergraduate admissions.” A chance to find out how serious the university establishment, federal agencies, and the courts are about norms of non-discrimination [Bloomberg, Eugene Volokh on Bill Clinton 1995 comment, Razib Khan/Unz]