Posts Tagged ‘discrimination law’

New on LGBT issues and the law: religious tax exemptions, Title VII coverage

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.

Discrimination law roundup

  • 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]

Discrimination law roundup

  • 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]

Requiring adult supervision when kids use pool = unlawful discrimination?

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]

No lockable private room for breast-feeding at workplace: $3.8 million award

“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.]

Discrimination law roundup

  • 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]

Discrimination law roundup

  • Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
  • Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
  • “Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
  • New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
  • When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
  • “Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]

Discrimination law roundup

  • New EEOC chief data officer says machine learning algorithms may soon enable agency to predict, and deploy resources against, workplace bias before it happens [Paige Smith, Bloomberg Law]
  • “The BSO, in a statement, defended its pay structure, saying that the flute and oboe are not comparable, in part because the oboe is more difficult to play and there is a larger pool of flutists.” [Geoff Edgers, Washington Post/Allentown Morning Call]
  • Even they can’t comply: “The case was ironic since the commission is charged with eliminating discrimination in Pennsylvania.” [Matt Miller, PennLive, on the Pennsylvania Human Relations Commission’s jury loss in a race discrimination complaint] “Do as they say, not as they do: employees accuse Planned Parenthood of pregnancy discrimination” [Jon Hyman]
  • Fourth Circuit: maybe Title VII doesn’t create a right to swipe files from HR [Jon Hyman]
  • Although libertarians support legalizing marijuana, they should not support laws that bar employers from discriminating on the basis of marijuana use [Jeffrey Miron, Cato]
  • “Why do women earn less than men? Evidence from train and bus operators” [Valentin Bolotnyy and Natalia Emanuel via Tyler Cowen]
  • Minnesota jury orders women’s football team and league to pay $20,000 to transgender applicant turned away [Mary Lynn Smith, Minneapolis Star Tribune]

Employment discrimination law roundup

  • Employee with (per Costco) history of “serious misconduct and insubordination” wins $750K after being fired for speaking at too loud a volume, the result she said of deafness-related difficulty in modulating her voice [Jon Hyman]
  • “Now What? Disciplining an Employee with a Suspected Addiction or Substance Abuse Issue” [Dale Deitchler and Jeffrey Dilger, Littler]
  • ADA: “6th Circuit says full-time work is not an essential function of every full-time job” [Jon Hyman] “So, you want to change the essential functions of a particular job, do you? Let’s talk ADA.” [Eric B. Meyer]
  • “Our group member has a fragrance sensitivity – and we’re supposed to be hugged to check for any scents” [Alison Green, Ask a Manager via Hyman]
  • “Is the sexual harassment “groundswell” starting?” [Robin Shea, Constangy; state agency volume] “Bracing For The Deluge Of EEOC Lawsuits” [Gerald Maatman, Seyfarth Shaw; EEOC filings rise]
  • “Why Doesn’t Diversity Training Work?” [Frank Dobbin and Alexandra Kalev, Anthropology Now; related, Amy Alkon (counterproductive “privilege checking”)]
  • Arbitrator orders Oregon town of West Linn to pay $100,000+ to cop fired after incendiary, racially charged Facebook posts [Everton Bailey Jr., Oregonian]