- Following election results, lawprofs’ idea of persuading SCOTUS to kill state right-to-work laws is looking kinda dead [James Sherk, National Review] Sixth Circuit panel, reversing decision below, says law authorizes Kentucky counties to enact county-wide right-to-work statutes [Lexington Herald-Leader]
- “Congressional Budget Office: Canceling overtime rule would boost family earnings” [Sean Higgins, Washington Examiner]
- “Another Lesson from Bastiat: So-Called Employment Protection Legislation Is Bad News for Workers” [Daniel Mitchell, Cato citing NBER working paper by Gilbert Cette, Jimmy Lopez, and Jacques Mairesse]
- Claim: lawmakers can “give” private employees paid parental leave and “there’s no added cost to employers” [Kate Ryan, WTOP citing views of Montgomery County, Maryland council member Tom Hucker]
- All California janitors must now take training against sexual harassment, on rationale of preventing rape [L.A. Times]
- A “complicated, highly regulated industry”: “Why Are Companies Abandoning On-Site Day Care?” [Rebecca Greenfield, Bloomberg] And: “Childcare costs skyrocket after minimum wage hike passes” [Alyssa Donovan, KXLY; Spokane, Wash.]
We earlier this year noted the New York City Human Rights Commission guidance directing that businesses may be fined if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” Now Eugene Volokh, who wrote about the earlier story, points out a recent Oregon settlement in which pronoun issues (the employee prefers to be called “they”) appeared to play an important part:
The school district agreed to settle the claim for $60,000 “as compensation for actual damages, emotional distress and attorney fees,” and with the district promising to “develop official guidance documents for administrators/staff that address working with transgender staff”; the documents, to be developed together with “TransActive and the District equity team,” will address, among other things, “pronoun usage.” “[V]iolations of the guidance will be grounds for discipline.”
But it is not at all clear, as Volokh notes, that it is respectful of co-workers’ rights to require them on pain of official discipline to employ “highly conspicuous, nonstandard usage.” Should instances of not doing so be defined as “harassment” or “discrimination,” they can bring with them serious legal consequences. Public employers such as school districts do have some legitimate managerial interests which can call for, e.g., standardizing forms of address in their workplace. On the other hand, novel pronoun coinages relating to gender are often praised as a way “to convey an idea about language and how language should be” — put more sharply, to convey particular ideological stances about issues of gender identity. We already know that under current interpretations of First Amendment law, government cannot require ordinary non-political employees on pain of dismissal to affirm propositions such as “Live Free Or Die” or the Pledge of Allegiance. A similar principle might extend — or? — to rules exacting affirmative ideological avowals of other sorts. More: Hans Bader, CEI.
- California appeals court says state’s teacher tenure law doesn’t violate Equal Protection Clause, similar suits pending in NY, Minn. [ABA Journal, Neal McCluskey/Cato, earlier on Vergara case]
- Maryland to local school district: no, families can’t opt out from standardized tests, we might lose federal funds [Jeremy Bauer-Wolf, Frederick News-Post]
- Teachers fearful as disorder spreads in St. Paul, Minn. schools [Joanne Jacobs, background on feds’ role]
- Somerset County, N.J.: “It’s ‘harassment’ for a sixth-grader to criticize vegetarianism to a vegetarian classmate” [Eugene Volokh]
- UK agency reverses decision to downgrade rating of pre-school for not teaching cultural diversity [Guardian]
- Schools have rules, but only up to a point: “NY moves to allow illegal immigrants to teach in public schools” [Malia Zimmerman, Fox News]
Public service posters on the D.C. Metro proclaim the slogan “If it’s unwanted, it’s harassment,” which must have sounded good to someone but is entirely wrong as a legal matter [David Post]
After the Feminist Majority Foundation promoted a Title IX complaint against the University of Mary Washington, primarily based on the public Virginia university’s failure to crack down harder on student use of the independent Yik Yak social media gossip platform, UMW President Richard Hurley in June wrote an unapologetic letter crisply refuting many of the group’s contentions. What do you think happened next? Sponsors amended their complaint to allege that Hurley’s letter itself constituted unlawful retaliation against persons invoking Title IX protection. “The [U.S. Department of Education’s] Office for Civil Rights announced its intent to investigate the university this month.” And now a group of 72 women’s and civil rights organizations, including the respectable American Association of University Women and Leadership Conference for Civil Rights, have “announced a campaign to enlist the federal government in pressuring colleges to protect students from harassment via anonymous social-media applications like Yik Yak.” [Eugene Volokh; Hans Bader; Chronicle of Higher Education; Fredericksburg, Va. Free Lance-Star (Hurley letter)] One thing’s for sure, someone is retaliating against something.
More: Eugene Volokh is out with a don’t-miss followup post analyzing the FMF complaints in much more depth, and noting that Hurley is being charged with retaliation for “engaging in normal public debate”:
Readers might recall the recent attempt to use Title IX to shut down critical speech as retaliation, in the Northwestern University / Prof. Laura Kipnis controversy…. This complaint is yet another such attempt.
The Feminist Majority Foundation, though a publisher of a magazine [Ms.], doesn’t seem to care much about the First Amendment rights of students, or of accused university officials. Its complaint goes far beyond constitutionally unprotected and rightly punishable speech, such as true threats of violence.
Instead, it faults the university for not stopping criticism of feminist arguments and feminist arguers, whether vulgar criticism or other criticism. It faults the university for speaking out, without vulgarities or epithets, in its own defense. And the premise of the complaint thus seems to be that one side of a debate has the right to speak — to condemn and to accuse — but the federal government should step in to stop the other side from responding.
Delivering the 2015 Richard S. Salant Lecture on Freedom of the Press, former ACLU president Nadine Strossen voiced concerns that universities, prodded by the federal government’s Department of Education and its Office for Civil Rights, are become hostile to ideas and expressions that could make students uncomfortable. “Strossen listed numerous examples of repression of academic freedom that have resulted from university sexual harassment policies, including: a sexual harassment investigation against a Northwestern University professor for writing an article that criticized such sexual harassment policies; a U.S. Naval War College professor who was placed on administrative leave for quoting a Machiavelli comment that included the mention of rape; and an Appalachian State University sociology professor who was suspended for showing a documentary that critically examined the adult film industry. At Harvard, Strossen said, a chilling effect is also in place.” She said OCR has threatened to yank federal funding from schools that fail to “enact sexual misconduct policies that violate many civil liberties.” [Shorenstein Center; my 2013 piece]
Fearful of allegations of harassment or other impropriety, some male bosses on Capitol Hill have a policy against taking 1-on-1 closed-door meetings with female staffers, which of course itself probably makes it harder for women to advance and may be illegal. [Sarah Mimms, National Journal] Possibly there is legal safety to be had in not taking one-on-one meetings — or evening events, or travel — with staffers of any gender. Or, like up-to-date cops, maybe they could wear body cameras.
Note also: this 2013 Overlawyered post about a lawsuit charging that an “anti-fraternization” policy at a Texas law firm impeded mentorships and advancement for women, and this 2000 post (scroll to Nov. 1) quoting a New Jersey lawyer: “I have not seen a female client unescorted after-hours since this incident and probably never will again.”
P.S. Catherine Rampell at the Washington Post takes as usual a line at variance with the one presented here (via Amy Alkon: “Feminism Built That!” with reader comments) Note how Rampell presents absurd (A) and (B) rationales for the no-closed-door practice without for a moment considering a third rationale, namely (C) the possibility that different interpretations or understandings of the same words or events will generate career-ending disputes and allegations. Because that never happens, right?
“As a university employee, my personal experience with Title IX has been discouraging, frustrating, alienating. I have been recruited to join complaints against male colleagues, most recently against someone with whom I was friends outside of our workplace. I have, when I refused to be a complainant, been interviewed as a witness. I have, when interviewed as a witness, been grilled over a multitude of conversations and social interactions that took place away from campus, in the company of adults, that I never expected that I would one day have to explain in a formal setting. …
“Title IX doesn’t make me feel safer. It makes me feel paranoid. I can hardly imagine how much more paranoid it makes my male colleagues.” [Tamara Tabo, Above the Law]
Under pressure from federal Title IX enforcers, universities have been weakening the procedural protections for accused students who seek a chance to respond to the charges against them. As a result, cases like that of Yale athlete Patrick Witt will become more frequent. [Boston Globe; my Commentary piece a year and a half ago] A contrasting view: Christina Stoneburner.