Posts Tagged ‘discrimination law’

“Anti-military animus”

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.

November 18 roundup

  • Judge Kozinski ate a sandwich paid for by the ACLU and the National Law Journal and American Bar Association are totally on it;
  • Update: “Ohio court says city can’t use ‘quick-take’ to seize property” [Watchdog, earlier on town of Perrysburg’s effort to seize property in adjoining Middleton Township]
  • Regarding the wildly one-sided attacks on arbitration of late, I’ve noticed that the people who call contractually agreed-to arbitration “forced” are usually the same people who don’t call taxation “forced”;
  • “‘Underground Regulations’ Violate the Constitution as Much as Headline-Grabbing Executive Actions” [Ilya Shapiro, earlier on subregulatory guidance]
  • Reminder: if you’re interested in Maryland policy you should be keeping abreast of my blog Free State Notes;
  • Business litigants battle it out, sugar v. corn syrup [L.A. Times]
  • Obama just backed ENDA-on-steroids Equality Act [Washington Post, earlier, Scott Shackford/Reason (bill would cover not only employment but “housing, lending, jury duty, and public accommodations” while “massively expand[ing] what the federal government counts as a public accommodation,” thus turning into federal cases what are currently local disputes like the Arlene’s Flowers case)]

Massachusetts awards $100,000 to blind barber over firing

Great moments in discrimination law: Joel Nixon, who has been diagnosed with Retinitis Pigmentosa and is legally blind, was fired from his job at Tony’s barber shop in South Easton, Mass. He says he had been giving men’s haircuts for years to customers’ satisfaction but was fired after a 2012 incident “when he tripped over a customer’s legs. Later in the day, he tripped over a chair in the waiting room.” His former employer Tony Morales calls the allegations “a bunch of lies” but “did not appear at numerous hearings and parted ways with an attorney who was supposed to help him.” The Massachusetts Commission Against Discrimination, the state civil rights agency, awarded Nixon $75,000 in lost wages and $25,000 for emotional distress. [Bob McGovern, Boston Herald]

Discrimination law roundup

  • “Requiring Employees to Return 100% Healed Costs Trucking Firm $300K in EEOC Suit” [Thompson’s HR Compliance Expert]
  • Update: Oregon appeals court upholds $400,000 fine judgment against Portland owner who asked transgender club to stop holding meetings at his nightclub [Oregonian, earlier]
  • Fire Department of New York commissioner: yes, we lowered fitness bar so more women could join the force [Matthew Hennessey/City Journal, my take in The Excuse Factory back when]
  • From May: “Oversight of the Equal Employment Opportunity Commission: Examining EEOC’s Enforcement and Litigation Programs” [Senate HELP committee via Workplace Prof]
  • Lengthy HUD battle: 2nd Circuit notes “no finding, at any point, that Westchester actually engaged in housing discrimination” [WSJ editorial, earlier here and here]
  • In 1992 Delaware settled an employment discrimination lawsuit by agreeing to assign prison guards “without regard to the gender of prisoners….A disaster ensued.” [Scott Greenfield on Cris Barrish, Wilmington News-Journal coverage]
  • NYC council speaker pushing “very bad bill to extend special employment protections to caregivers” [N.Y. Daily News editorial]

“Petco won’t sell goldfish to Persians on spring equinox, lawsuit says”

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.

My Newsweek piece on the First Amendment Defense Act (FADA)

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.

Discrimination law roundup

  • 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]

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]