- Do behavioral economists acknowledge policymakers’ own foibles? Not often it seems [Niclas Berggren via Bryan Caplan]
- China, not unlike our own attorney general-environmentalist alliance, is cracking down on the work of what it deems ideologically harmful nonprofits [ABA Journal]
- Barking mad: new ABA ethics proposal would deem it professional misconduct for lawyers to discriminate on various grounds, including “socioeconomic status,” in choosing partners, employees and experts [Eugene Volokh, Sara Randazzo/WSJ Law Blog]
- Virginia still has a law requiring annual safety inspection of your car, and it’s still a bad idea [Alex Tabarrok]
- Court in Canadian province of New Brunswick rules against honoring will that left estate to racist group [CBC]
- From the left, Paul Bland sees Monday’s Supreme Court decision in Spokeo v. Robins as a big loss for business defendants [Public Justice, earlier] Contra: Andrew Pincus, plus more from WLF.
Last summer I was a panelist in New York City when the law firm of Fried Frank hosted its 15th annual Michael R. Diehl Civil Rights Forum, on the topic of “Balancing Liberties: The Tension between LGBT Civil Rights and Religious Exemptions.” It’s now been posted online. Other participants included Marci Hamilton (Cardozo Law School and private practice) and Rose Saxe (ACLU). Of the three, I was the panelist who defended the broadest legislative scope for exemptions based on conscience and religious scruple from laws of otherwise general applicability. Jesse Loffler moderated.
Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]
Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]
Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.
…one of the hottest ideas among lawmakers right now is to ban employers from running credit checks on job applicants. Since 2007, eleven states, as well as Chicago and New York City, have passed such laws….
But a new study from Robert Clifford, an economist at the Boston Fed, and Daniel Shoag, an assistant professor at Harvard’s Kennedy School, finds that when employers are prohibited from looking into people’s financial history, something perverse happens: African-Americans become more likely to be unemployed relative to others….
“Employers have many screening measures to narrow down who they want to hire,” Shoag says. “If you take one away, they’ll put more weight on the others.” … Whatever the new criteria were, they seem to have put black applicants at a disadvantage.
[Jeff Guo, Washington Post “WonkBlog”] Shoag gets the best line of the piece: “This reflects a general movement of legislators monkeying around with the hiring process without thinking about the consequences.” A contrary view: Robert Hiltonsmith and Sean McElwee, US News.
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.