Automaker BMW in Spartanburg, S.C. began conducting criminal background checks on logistics workers and dismissed about 100 existing employees under guidelines that “excluded from employment all persons with convictions in certain categories of crime” not distinguishing misdemeanor from felony or recent from long-ago convictions. About 80 percent of the dismissed employees were black, and the EEOC sued, saying that because the application of the check program had a disparate impact, BMW was obliged to, but had not, properly validated its policy in detail for “business necessity.” A federal judge declined to dismiss the case and BMW has now agreed to pay $1.6 million and offer jobs to 56 discharged employees as well as up to 90 who had applied but not been hired under the policy. [Judy Greenwald, Business Insurance via Jon Hyman] The EEOC in recent years has led a crackdown on employer use of criminal background checks.
New at Politico Europe, my piece on the Equal Employment Opportunity Commission complaint by a Muslim flight attendant, covered here last week, who doesn’t want to serve alcohol (“scruples about screwpulls”) and what, if anything, it has in common with the Kim Davis case. (As a direct legal matter, not much.) I reference the EEOC v. Star Transport case:
Here’s the thing: The EEOC has already sided with Muslim employees who wish to avoid handling alcohol….If Charee Stanley or a future counterpart someday wins the right to bob and weave through the passenger cabin, handing out only beverages that meet with her spiritual approval, she’ll have this record of Congressional posturing to thank.
Surprisingly or otherwise, the pressure for federal law to become more indulgent toward private employees’ demands for religious accommodation — thus turning cases like Stanley’s into more likely winners — has come both from liberal lawmakers like John Kerry and Hillary Clinton and from conservatives like Rick Santorum and Bobby Jindal.
Related: “No one should have to choose between their career and religion,” proclaimed Stanley’s lawyer. Really? No one? Ever? [Andrew Stuttaford, Secular Right] My Cato colleague Ilya Shapiro on why West Coast florist Barronelle Stutzman is far more deserving of martyr status than Kim Davis (my two cents, leading to GoFundMe “campaign not found”). And dear #kimdavis meme-slingers: be advised that Dallas judges are under no legal obligation to do weddings [Taylor Millard, Hot Air]
- 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]
After a period of foreshadowing and rumor, the Equal Employment Opportunity Commission has now gone ahead and ruled that employment discrimination on the basis of sexual orientation is forbidden under existing federal civil rights law, specifically the current ban on sex discrimination. Congress may have declined to pass the long-pending Employment Non-Discrimination Act (ENDA), but no matter; the commission can reach the same result on its own just by reinterpreting current law.
It’s not the commission that gets to have the final say on that, however; it’s the federal courts. And there is a fair trail of precedent, including circuit court authority, rejecting the proposition that sex discrimination in this setting can be stretched to cover sexual orientation discrimination. Against that, it will be argued that some recent case law has nonetheless drifted toward the idea; more important, judges will be asked to defer to the EEOC in its (new) expert opinion.
But it’s not easy to think of an agency to whose views federal courts nowadays give less deference than the EEOC. As I’ve noted in a series of posts, judges appointed by Presidents of both political parties have lately made a habit of smacking down the commission’s positions, often in cases where it has tried to get away with a stretchy interpretation of existing law. See, for example, the Fourth Circuit’s rebuke of “pervasive errors and utterly unreliable analysis” in EEOC expert testimony, Justice Stephen Breyer’s scathing majority opinion in Young v. U.P.S. on the shortcomings of the EEOC’s legal stance (in a case the plaintiff won), or these stinging defeats dealt out to the commission in three other cases.
- Supreme Court grants certiorari (as Cato had urged) in Friedrichs v. California Teachers Association, on First Amendment rights of individual public employees against unions, potentially major sequel to Harris v. Quinn (our coverage) and Knox v. SEIU (our coverage). More: Jason Bedrick, Cato;
- More First Amendment: On same day, high court says Texas can turn down Confederate-flag license plates but that town of Gilbert, Ariz. impermissibly took content into account in regulating roadside signs [Lyle Denniston; Eugene Volokh on Gilbert and earlier, and on license plates] Ilya Shapiro has a wrap-up of other end-of-term cases;
- Paging judicial-independence buffs: study finds Obama stands out for aggressive comments on pending SCOTUS cases [W$J via Jonathan Adler]
- Abercrombie v. EEOC followup (earlier): If Thomas’s dissent has the courage of its convictions, maybe it’s because he was longest-serving chairman in EEOC history [Tamara Tabo] “SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case” [Jon Hyman] Yes, employers can still have dress codes, but read on for the caveat [Daniel Schwartz]
- “Illinois Uses Racial Preferences for No Good Reason,” Seventh Circuit take note [Ilya Shapiro and Julio Colomba, Cato]
- Feds can refuse to register a “disparaging” trademark. Consistent with the First Amendment? [Shapiro, Cato]
- More from Ilya Somin on anniversary of eminent domain Kelo v. New London decision [one, two, more]
I’ve got a new post up at Cato about the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores Inc. The Court’s 8-1 ruling on fairly narrow grounds in favor of the headscarf-wearing claimant isn’t very surprising, for reasons I explain in the piece. The ruling could expose employers to more liability, particularly of the sued-if-you-do, sued-in-you-don’t variety, since it encourages employers to pry into employees’ religious views or adopt stereotyped views about what their religious scruples should be presumed to be. Still, eight Justices were content to resolve the dispute on relatively dry statutory interpretation grounds, with only Justice Clarence Thomas interested in interrogating the law at a more fundamental level. (Why, he wonders, is equal treatment based on non-religious considerations now considered “intentional discrimination” based on religion?)
P.S. More coverage: Daniel Fisher, Daniel Schwartz, Philip Miles. (More: Marci Hamilton.) And when might a National Review author favor limiting private employers’ liberty? When it’s a religious discrimination case.
For a seasonal posting in Park City, Utah, Ruby Tuesday invited only female associates to apply as servers, citing a wish not to require males and females to room together in the company-provided housing it had lined up (and no doubt swayed at least in part by legal risks to which it would be exposed by doing so). Expensive lesson: in a settlement with the EEOC, it will pay $100,000 to two male servers who say they wanted a summer assignment at the resort. [Daily Times]
- NLRB ruling: calling one’s boss “nasty m___f___” can be protected labor advocacy for which dismissal is unlawful [Pier Sixty LLC; Michael Schmidt, Cozen O’Connor, Jon Hyman]
- “Declining Desire to Work and Downward Trends in Unemployment and Participation” [Tyler Cowen]
- Public sector union negotiations need sunlight [Trey Kovacs, Workplace Choice]
- “Is Non-Pregnancy a BFOQ [Bona Fide Occupational Qualification] for Exotic Dancers?” [Philip K. Miles III, Lawffice Space]
- “EEOC Issues Long-Awaited Wellness Program Rules” [Daniel Schwartz]
- Following New York Times investigation, Gov. Andrew Cuomo cracks down on employment at nail salons, and that will hurt immigrant workers [Alex Nowrasteh, New York Post; Elizabeth Nolan Brown/Reason and more, New York Times “Room for Debate”]
- President Obama keeps promoting myths about Lilly Ledbetter case [Hans Bader, CEI; Glenn Kessler, Washington Post; earlier]
- Mach Mining v. EEOC: unanimous SCOTUS, Kagan writing, agrees courts can hold EEOC to legal duty of pretrial conciliation, but prescribes narrower review than employer asked, with no commission duty of good-faith negotiation [Maatman et al; earlier on case here, here, and here; earlier from me on EEOC record of frequent losses in court]
- New “ambush election” rules: “Your Privacy Has Just Been Compromised, Thanks To Obama’s NLRB” [Labor Union Report]
- U.K. controversy parallels ours: “Banning unpaid internships will harm, not help, the disadvantaged” [Andrew Lilico, IEA]
- “U.S. signed agreement with Mexico to teach immigrants to unionize” [Sean Higgins, Washington Examiner]
- Another view on bias-law “Utah compromise” [Dana Beyer, Huffington Post; my critical view]
- Advice to employers: “OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA.” [Jon Hyman]
- “CA: Failing to Pay Prevailing Wages May Be Intentional Interference with Prospective Economic Advantage” affording competitors a cause of action [Garret Murai via TortsProf]
An 8-5 decision from (these days) one of the nation’s more liberal circuits in EEOC v. Ford Motor Company:
The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford’s papers andpractices—and Harris’s three past telecommuting failures—backed up its business judgment.
Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against her for bringing the issue to the EEOC’s attention. The district court granted summary judgment to Ford on both claims. We affirm.