Are religious exemptions to discrimination laws, in areas like foster care, adoption, higher education, and government contract compliance, an “assault on LGBTQ rights”? Cato has now reprinted my comments last month for a House Oversight Committee hearing on that subject. The hearing itself (at which I was not a witness) can be viewed here.
The New York City Commission on Human Rights, which not long ago declared an employer or landlord’s use of the term “illegal alien” to be a form of illegal discrimination punishable by a fine of up to $250,000, is now negotiating with companies to obtain legal remedies over promotions and product designs it deems insensitive to protected groups. Among its targets have been fashion lines Prada, Gucci, and Christian Dior, over displays and designs charged with having referenced blackface or “perpetrated Native American stereotypes.” [Vanessa Friedman, New York Times] Robby Soave, Reason:
Prada’s signed agreement with the commission is incredible. The company will put all New York store employees—and company executives in Milan—through racial sensitivity training. Prada will also appoint a diversity and inclusion officer, subject to the commission’s approval. This person will be tasked with “reviewing Prada’s designs before they are sold, advertised or promoted in any way in the United States,” according to the terms of the agreement.
Among the most feared federal regulators, and one created largely through presidential strokes of the pen rather than by Congressional blueprint, is the Department of Labor’s Office of Federal Contract Compliance Programs, or OFCCP. The agency’s investigators go on wide-ranging fishing expeditions seeking evidence of discrimination at large companies, most of which hold federal contracts of one sort or another. “Instead of holding firms accountable when they engage in real discrimination against their employees, the agency has become a government arm for securing high-dollar settlements on dubious grounds.” In its audits demanding large back pay sums, for example, the “government fails to compare like employees to like, and it doesn’t control for perfectly innocent variables that explain pay differences.”
As OFCCP has turned into a combination social engineer and extractor of big-ticket settlements, few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions. But recently two big tech firms have stepped forward as exceptions: Google, in a dispute we wrote about in 2017 on demands for employee documents, and now Oracle, which is suing rather than accept what it considers an unreasonable settlement demand. [Veronique de Rugy, syndicated/Casper Star Tribune; WSJ editorial; Kate Cox, ArsTechnica; Anthony Kaylin, ASE; Pamela Wolf, CCH]
- New federal bill seeks middle ground on LGBT discrimination law and religious accommodation [Kelsey Dallas/Deseret News, “Fairness For All” coalition, sponsor Rep. Chris Stewart (R-UT) on bill] Early criticism from left and right [Daniel Silliman, Christianity Today; Katelyn Burns, Vox] The impulse to get past Culture War enmities is to be praised, even if, alas, some of the bill’s provisions would extend the coercive reach of federal law in ways libertarians would oppose;
- Third Circuit panel, Judge Thomas Hardiman writing, rules in favor of atheist group challenging Pennsylvania county’s rejection of bus ads. Creates split with D.C. Circuit [Charles Gallmeyer, Jurist; Hemant Mehta; Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System]
- “Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings” [Joseph Singer, KNSI (Minnesota); Telescope Media Group v. Lucero] Update on Sweet Cakes by Melissa case in Oregon [Adam Gustafson, Federalist Society; earlier] Federalist Society teleforum on Brush & Nib case [Phoenix wedding calligraphy] with Eric M. Fraser, Jennifer Perkins, and Jonathan Scruggs, and earlier;
- And speaking of which: SCOTUS should resolve “expressive wedding vendor” issue once and for all [Ilya Shapiro and Michael Collins on Cato certiorari brief in (latest stage of) Arlene’s Flowers v. Washington, noting that “Cato is the only organization in the country to have filed briefs in support of both Jim Obergefell (lead plaintiff in the Supreme Court’s same-sex marriage case) and Jack Phillips (owner of Masterpiece Cakeshop)”; earlier]
- Article takes issue with currently popular idea that claims of harm to third parties should routinely defeat claims to religious accommodation [Mark Storslee, University of Chicago Law Review/SSRN]
- “Top Scholars, Diverse Religious Groups Ask SCOTUS to Reconsider Employment Division v. Smith — Again” [Joseph Davis, Becket/Federalist Society on certiorari petition in Ricks v. Idaho Board of Contractors]
On Thursday evening, “at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: ‘religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?’ O’Rourke answered ‘Yes’.” But O’Rourke’s dead wrong as a matter of politics, policy, and law, as I explain Friday post at Cato. I call his proposal “illiberal, anti-pluralist, inflammatory — and unconstitutional under current Supreme Court precedent,” and that’s just getting started. More: Bonnie Kristian/The Week; Charlie Nash, Mediaite (O’Rourke’s comments blasted by writers from across ideological spectrum). And: Dale Carpenter (principle of viewpoint neutrality in tax exemption law was vital to early gay rights movement; arguments O’Rourke uses against conservative Christians now are the arguments used against gays then).
And I’ve also published a new piece at The Bulwark on the legal arguments about whether the 1964 Civil Rights Act’s reference to “sex” should be construed to include sexual orientation and gender identity, a move I call “surprise plain meaning” and which is by no means unprecedented in the Supreme Court’s handling of employment discrimination law. More broadly, I examine and reject the notion that for the Court to ponder these questions is to put anyone’s “humanity up for debate.” Earlier on Bostock, Altitude Express, and Harris Funeral Home here, here, here, and here, and more from Dale Carpenter and Scott Shackford. Scott Greenfield responds.
For those keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated otherwise.
- Supreme Court reconvenes for new term and tomorrow will hear cases over whether Title VII ban on sex discrimination extends to sexual orientation and gender identity [SCOTUSBlog symposium with contributors including Richard Epstein, William Eskridge; Will Baude, Volokh Conspiracy; George Will; earlier here, here, here, etc.]
- New York City Commission on Human Rights declares it a violation of anti-discrimination law to use the term “illegal alien” in workplace, rental, or public accommodation contexts “with the intent to demean, humiliate, or offend a person or persons.” Does it complicate matters that both federal law and the U.S. Supreme Court use “illegal alien” as a neutral descriptive? [Hans Bader]
- Minneapolis passes law restricting landlords’ taking into account of tenants’ past criminal histories, evictions, credit scores [Christian Britschgi, Reason]
- Obama-era Equal Employment Opportunity Commission (EEOC) mandated burdensome pay data reporting by employers. Will courts allow a course correction? [Federalist Society teleforum with G. Roger King and James A. Paretti Jr., earlier here and here]
- Professor who directs social justice center at Washington, D.C.’s American University proposes new federal Department of Anti-Racism that would wield ample power to order everyone around along with preclearance authority over all “local, state and federal public policies”; also “no political appointees” [Politico via Amy Alkon; Kelefa Sanneh, The New Yorker with more on work of Prof. Ibram X. Kendi]
- Late in its tenure, Obama administration began warning Fannie Mae that discouraging some of the riskiest mortgages (>43% debt-to-income) “could be seen as a violation of the Fair Housing Act.” Fannie and Freddie “quickly complied” and brought the punch bowl back out [Damian Paletta, Washington Post/MSN]
- Don’t try to pull a “back where she came from” tirade at a private workplace [EEOC guidance (“potentially unlawful” for employer to allow); Daniel Schwartz]
- “B.C. groin waxing case is a mockery of human rights” [Rex Murphy, National Post] Also from Canada: “Single dad facing Human Rights Complaint for asking the age and gender of a potential babysitter” [Justice Centre for Constitutional Freedoms, related case]
- Canada continued: inquiry on missing and murdered indigenous women “strips the word genocide of meaning” [Jonathan Kay, Quillette]
- More evidence that “ban the box” laws restricting criminal record inquiries “induce firms to engage in statistical discrimination that negatively affects the employment prospects of minorities.” [Peter Van Doren/Cato, earlier here and here]
- Disparate-impact watch: Fifth Circuit rules, over a dissent, that landlords do not violate the federal Fair Housing Act by declining to accept Section 8 rent vouchers [opinion and denial of rehearing en banc (7-9) in Inclusive Communities Project v. Lincoln Properties; earlier here]
- “Agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular.” [David Bernstein]
It’s okay for a condo swimming pool to require adult supervision of children, right? Wrong: “familial status” is one of the many bases for protection under housing discrimination law. As a result, “any rule or policy targeting children is likely to trigger a discrimination accusation or a fair housing inquiry.” To defend it against attack, the condo must be prepared to prove that the rule or policy is both based on a “compelling business necessity” and represents the “least restrictive means” to achieve the stated purpose. You’d think safety might be an adequate reason, but in two cases federal courts in California have found otherwise. Some rules might survive if, e.g., they are based on Red Cross guidelines, but putatively improper motives such as reducing noise or crowd control must not enter into any rationale. Also, policies must permit unrelated companions, rather than just parents, to count as the supervision [Matt D. Ober, Washington Post]
“Federal law requires that you provide breastfeeding moms a room with a locking door–that is not a bathroom–to pump breast milk up until the baby’s first birthday. This is pretty easy in a big office building with lots of space, but not so easy in a firehouse. The law, however, doesn’t make an exception for difficulty, as the [City of Tucson fire department] found out — to the tune of $3.8 million.” [Suzanne Lucas, Inc.]
- Texas Gov. Greg Abbott signs into law two doubtfully constitutional bills applying to campuses an overbroad, subjective definition of sexual harassment, and requiring all college employees to report such conduct on pain of criminal penalty [Tyler Coward, FIRE]
- New York adopts workplace harassment law that’s much more speech-hostile than federal, including a dropping of the requirement that prohibited expression be “severe or pervasive” [Hans Bader; Wiggin & Dana, NLR; Douglas Oldham, Barnes & Thornburg]
- One to watch: SCOTUS will decide standard for proving s. 1981 discrimination claims, in case accusing Comcast of bias in not carrying programming of black network [ABA Journal]
- A thumbs-down review: “The Kamala Harris Plan to Address the Gender Pay Gap,” Cato Daily Podcast with Ryan Bourne and Caleb Brown;
- Even when there’s nothing unlawful about an eviction, city bars landlords from telling tenants they’re being evicted for discriminatory reasons. Laws banning truthful business speech about lawful conduct should trip First Amendment review [Ilya Shapiro on Cato amicus brief in Seeberger v. Davenport Civil Rights Commission]
- Second Circuit withdraws decision that held landlords liable for tenant-on-tenant harassment under Fair Housing Act [Scott Greenfield, earlier]