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]

We’re from the government and we’re here to help, part 726,914

The Consumer Financial Protection Bureau (CFPB)’s campaign against disparate impact in car loans is raising costs for some borrowers. Thanks, Sen. Warren! “The results highlight the sometimes unpredictable consequences of attempts to regulate lending practices…. Efforts by the CFPB to police the fairness of auto loans have accelerated in recent years under Director Richard Cordray.” [Morningstar/Dow Jones, W$J]

Workplace religious accommodation, cont’d

A Muslim flight attendant has filed an EEOC complaint against ExpressJet; among her allegations are that the company has not adequately accommodated her desire not to serve alcohol to patrons, even though she says an arrangement under which she handed off that task to colleagues had previously proved workable [CBS Detroit] Eugene Volokh has a lengthy explainer on workplace religious accommodation, and argues that Kim Davis would have had a more colorable legal case had her lawyers filed under Kentucky’s state Religious Freedom Restoration Act (RFRA). And at Cato’s Constitution Day on September 17 I’ll be discussing my forthcoming piece on EEOC v. Abercrombie & Fitch, the hijab-accommodation case.

“Are you showing contempt for this court?” “No, I’m doing my best to hide it.”

“Are you showing contempt for this court?” “No, I’m doing my best to hide it.” Mae West might get away with that attitude but Kentucky clerk Kim Davis can’t, as I explain in my (revised and expanded from last night’s post here) post at Cato. First paragraph:

Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh. If experience is any guide, these lessons will last a lunchtime.

Whole thing here.

Cato’s Constitution Day Sept. 17

Sasha Volokh reminds us to mark our calendars:

Cato’s 14th Annual Constitution Day event will be two weeks from now: Thursday, September 17, at Cato’s offices in Washington, D.C. Here’s a link to the site, so you can register. I’ll be on the 2:15-3:30 panel on “Bizarre State Action”, talking about the Amtrak case that I’ve been involved with — see here for links to my previous blogging on the subject. Tim Sandefur and Adam White will be on that panel with me.

Co-bloggers Jonathan Adler and John Elwood will also be on different panels, as will Walter Olson, Bill Eskridge, and others. Steven Calabresi will give the evening lecture on “Liberty and Originalism in Constitutional Law”.

Schools roundup

A note on Kentucky county clerk Kim Davis

Former Arkansas Governor and presidential candidate Mike Huckabee responds as follows to a federal judge’s contempt finding against Rowan County clerk Kim Davis:

Henceforth when I think of Gov. Mike Huckabee it will be as someone unfamiliar with the legal concept of contempt of court. Gabriel Malor has dissected Huckabee’s enthusiasm for a purported right to defy SCOTUS rulings.

Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). And while the traditional contempt power of the Anglo-American courts does generate various disturbing results — jailing dads for breaking a court order to see their kids, for example — pressure to resign a public office rates, to me, fairly low on the scale.

Speaking for myself, if my lawyers encouraged me to commit contempt of court, I might begin to wonder whose side they were on. Kim Davis’s Liberty Counsel lawyers, of course, were at the center of the extraordinary Miller-Jenkins case, much covered at this site, in which a client not only defied a court order but kidnapped a child along the way. And from Michelle Meyer, professional obligations of lawyers counseling clients re: contempt. (N.B.: Staver says Liberty Counsel “would never counsel a client to violate the law.”)

Plus: As Chris Geidner notes at BuzzFeed, Kentucky does not provide for recall of county clerks or removal by the governor for official misconduct. And Carly Fiorina, grown-up in the room: “when you are a government employee, I think you take on a different role.”

P.S. In general, courts have a range of remedial options when faced with contempt, such as fines. Their discretion is bounded by various factors; for example, they are not supposed to resort to harsher remedies if milder ones would obtain compliance. Many of the comparisons being bandied about, by the way, involve officials who were defying some law but were not themselves personally under a court order not to do so.

A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more of a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”

And: Thoughtful Dan McLoughlin what-goes-around-comes-around on lawlessness, Kim Davis, and the pervasiveness of double standards.

George Will on the Indian Child Welfare Act

“Identity politics can leave a trail of broken bodies and broken hearts… [ICWA treats] children, however attenuated or imaginary their Indian ancestry, as little trophies for tribal power.” George Will (alternate link) on a law I’ve also written about, the Indian Child Welfare Act:

The act empowers tribes to abort adoption proceedings, or even take children from foster homes, solely because the children have even a minuscule quantum of American Indian blood. Although, remember, this act is supposedly not about race….

In final adoption hearings in Arizona, a judge asks, “Does this child contain any Native American blood?” It is revolting that judicial proceedings in the United States can turn on questions about group rights deriving from “blood.”… This is discordant with the inherent individualism of the nation’s foundational natural rights tradition, which is incompatible with the ICWA. It should be overturned or revised before more bodies and hearts are broken.