- Can Uber survive California law? [Brian Doherty on ruling by state administrative law judge over shortcomings in accessibility; Kristian Stout/Truth on the Market on employee classification and compensation class action] The California Labor Commission’s worker-classification ruling has already killed cleaning-services startup Homejoy [Re/Code via @andrewmgrossman] Plus: Uber communicates satirically with its NYC customers in its battle with Mayor Bill de Blasio [Issie Lapowsky, Wired; related, Josh Greenman; and a new study of Los Angeles users finds Uber X twice as fast and half as expensive as taxis (Mark Kleiman)]
- Needed: RFRA for the prepared-foods aisle? “The Trans-Fat Ban Deals A Blow To Kosher Keepers” [Bethany Mandel, Federalist] Consumption of trans fats has already dropped by 85 percent, and “government doesn’t always know best” [me, Arizona PBS]
- “The U.S. Attorney’s Office might has well have a macro that generates gag orders” [Ken at Popehat on Reason subpoena, earlier here, etc.]
- SCOTUS struck down Ohio’s law banning false campaign speech, Massachusetts’s should fall next [Ilya Shapiro and Gabriel Latner, Cato]
- Roger Pilon on church, gays, and “simple idea that people are free to associate or not as they wish” [now un-gated, Cato/WSJ; related, Ilya Shapiro/Washington Times] More on EEOC’s ENDA-by-fiat attempt [Kent Hoover/Business Journals, Nicandro Iannacci, National Constitution Center/Yahoo (thanks for quoting in both cases); Laura Maechtlen and Sam Schwartz-Fenwick, Seyfarth Shaw; and a Washington Blade interview with EEOC member Chai Feldblum, who supported the ruling]
- More reactions to HUD’s ambitious local-neighborhood-diversity scheme, “Affirmatively Furthering Fair Housing” [Hans Bader, Michael Barone, earlier]
- “Star Of Viral Catcalling Video Is Reportedly Suing For Compensation” [Emma Whitford, Gothamist]
The Oregon Bureau of Labor and Industries, recently in the news for ordering Melissa and Aaron Klein to pay $135,000 for not wanting to make cake for a commitment ceremony, in 2013 ordered the owner of the Twilight Room Annex, a gay-friendly bar in North Portland, to pay $400,000 for disinviting a trans club from meeting at the nightclub on Friday nights after business from other customers dropped off [Oregonian]
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.
Following the furor over RFRA (Religious Freedom Restoration Act) legislation in Indiana and Arkansas this week, I’ve got a new piece in today’s New York Daily News on the emergence of American business as the most influential ally of gay rights. Links to follow up some of the quoted sources: Reuters on Walmart, Tony Perkins/FRC on pieces of silver, Dave Weigel on how public opinion in polls tends to side with the small business owners. I wrote last year on the Arizona mini-RFRA bill vetoed by Gov. Jan Brewer.
On the social media pile-on against a small-town Indiana pizzeria, see also the thought-provoking column by Conor Friedersdorf (more, Matt Welch). Also recommended on the general controversy: Roger Pilon, Mike Munger/Bleeding Heart Libertarians, and David Henderson on freedom of association, David Brooks on getting along, and Peter Steinfels on liberal pluralism and religious freedom.
Relatedly, Cato has now posted a podcast with my critical views (earlier) of the “Utah compromise” adding sexual orientation as a protected class while also giving employees new rights to sue employers over curbs on discussion of religion and morality in the workplace (h/t: interviewer Caleb Brown). For a view of that compromise more favorable than mine, see this Brookings panel.
- “Telling Employee He Is ‘Eligible’ For Bonus Not Enough to Create Contractual Obligation” [Chris Parkin/Daniel Schwartz; Connecticut appeals court]
- Richard Epstein on Obama’s anti-LGBT-discrimination edict for federal contractors [Hoover “Defining Ideas”]
- D.C. Circuit panel, Janice Rogers Brown writing, strikes down DC tour guide licensing scheme [Ilya Shapiro/Cato, WaPo, Orin Kerr]
- “Why Progressives Shouldn’t Support Public Workers Unions” [Dmitri Mehlhorn/Daily Beast]
- “James Sherk of Heritage on Members-Only Bargaining” [On Labor]
- As discrimination law gradually swallows all else: “Rep. Keith Ellison wants to make union organizing a civil right” [MSNBC]
- NY Senate committee gives approval to “workplace bullying” law. On thin constitutional ice? [Hans Bader/CEI, earlier]
It’s not a new idea for reform — I suggested it as my contribution to a book fifteen years ago, it had been kicked around for decades already at that point, England has done it, and we’ve discussed it here. But the route of making progress, as befits our age of anti-discrimination, has been the piecemeal extension of so-called Batson challenges in which it is argued that lawyers used their peremptories to exclude a protected demographic group. The editorialists of the L.A. Times discuss the latest, a Ninth Circuit ruling extending the list of forbidden categories to include sexual orientation.