- Go figure: Trump executive order says “Hire American” even as federal law bans job discrimination in favor of American citizens [Jon Hyman]
- Though ADA excludes “gender identity” claims, judge green-lights suit over gender dysphoria [P.J. D’Annunzio, Law.com]
- “UC Berkeley Drops Free Online Videos In Response To Government Threat” [Jane Shaw/Heartland, and thanks for quote]
- “Hostile work environment can be created with one racial slur, 2nd Circuit rules” [ABA Journal]
- Connecticut’s CHRO attracts much higher per capita filings of workplace discrimination than comparable agency in Massachusetts, with complaints from incumbent employees a key growth area [Marc E. Fitch, Yankee Institute; Daniel Schwartz with somewhat different view]
- Missed, from December: Philadelphia could close businesses deemed to discriminate [Tricia Nadolny, Philadelphia Daily News, related earlier]
- “Explore the unthinkable”: invite a speaker whose message makes you uneasy [Walter M. Kimbrough, Chronicle of Higher Education]
- “The Pseudo-Science of Microaggressions” [Althea Nagai, National Association of Scholars via George Leef, Martin Center]
- Imagine setting out to combat the influence of the Greeks and Romans in American life — by vandalizing college fraternities [Jillian Kay Melchior on University of Texas episode]
- Hereditary intelligentsia and self-actualizing graduate study: “Lessons from Mid-Century Soviet Higher Education” [Alex Usher via Tyler Cowen]
- Some resemblances between “get them off campus” campaigns against George Soros in Hungary, Koch brothers here [Alberto Mingardi]
- “Some who in private were sympathetic to Tuvel, felt compelled to join in the attacking mob.” [Kelly Oliver, Philosophical Salon] More on Rebecca Tuvel/Hypatia furor: Jesse Singal/New York, Daily Nous, Jason Brennan (“Personally, I’d say that failing to fully engage critical theory is a feature, not a bug, of the paper.”), commenter on Singal article (“Hypatia herself, the journal’s namesake, was murdered by a mob in the year 415.”).
In blog posts and comments, two residents of a Virgin Islands condominium complex criticized two other residents who were (in line with rights prescribed to them under federal law) keeping emotional-support dogs despite a no-dog rule in the complex. Among other statements, one or the other of the two said dog owners would be “happier in another community,” speculated that “diploma mill” paperwork could certify any canine whose owner cared to claim stress, suggested the complex should “lawyer up” and be prepared to go to court to defend its rule against “known violators,” and proposed the dog owners be “ostracized” by other residents.
The dog-owning residents sued the neighbors, along with the condo association and other defendants. They cited federal legal interpretations, which have since been buttressed by a regulation issued in the Obama administration, that hold it “hostile environment harassment” under the Fair Housing Act to make statements that “interfere” with another’s exercise of rights under the law.
Now the Third Circuit, as part of a decision resolving numerous issues about the case, reversed grants of summary judgment in favor of the two blog writers and ruled that they could properly be sued for damages for creating a hostile environment under the Fair Housing Act. It described as “harassment” various instances of their critical speech and noted that a single instance of harassing speech could give rise to liability under the law. It is not clear whether the parties raised, and the court did not make any gesture toward considering, whether some or all of the statements involved might be protected by the First Amendment, which is mentioned nowhere in the opinion. [Revock v. Cowpet Bay West Condominium Association et al., see relevant section VI, pp. 31-41 of opinion via John Ross, Short Circuit]
As Hans Bader of the Competitive Enterprise Institute has pointed out, the Ninth Circuit in 2000 slapped down federal officials for having investigated Berkeley, Calif. residents who had fought a housing project that they believed would bring mentally ill residents or recovering substance abusers (both protected as disabled under the Fair Housing Act) to their neighborhood. “It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for” having investigated the citizens. That case [White v. Lee] would appear to stand for the proposition that the First Amendment provides robust protection for much speech that criticizes, opposes, and disparages others’ exercise of rights under the Fair Housing Act, and that the speech does not lose protection just because others regard it as retaliatory or discouraging to the exercise of rights.
According to reports last month in the religious press, the owner of a small meat-packing operation in western Michigan left some pamphlets around in the breakroom reflecting his views on same-sex marriage (opposed) and got written up for it by inspectors with the U.S. Department of Agriculture, whose duties, it seems, include spotting and demanding prompt rectification of hostile-environment harassment, in this case consisting of the printed word. [Reformed Free Publishing Association, Gene Veith] And Stephanie Slade of Reason has a big essay on religious liberty, in which I’m quoted, in Jesuit magazine America.
“A borough public works employee who claimed a hostile work environment while struggling with an anxiety disorder has settled his lawsuit against the borough [of Tenafly]. Aaron Perelli will receive $400,000 and will be on paid leave until his retirement date of June 30, according to the settlement agreement reached Jan. 24. In his lawsuit, Perelli said he suffered from agoraphobia, which he said did not allow him to drive long distances to unfamiliar towns or to drive by himself.” Perelli said the borough accommodated him at first, but then the relationship went downhill. [Adam Hochron, WKXW]
- “Labor law in America has reached the absurd point where the NLRB is taking the position that a company can’t tell its employees to have a positive attitude” [Ira Stoll on Trader Joe’s controversy, following on T-Mobile case last April, earlier on predecessor 2014 decision in Hills and Dales General Hospital]
- Judge Janice Rogers Brown, writing for D.C. Circuit, rips NLRB for “abusive tactics and extremism.” orders it to pay employer’s attorney fees [Jon Hyman, David Leishman and Seth Borden, McGuire Woods Labor Relations Today (citing Board’s “nonacquiescence” policy), opinion in Heartland Plymouth Court MI, LLC v. NLRB]
- Quoting John Ross’s Short Circuit: Illinois telephone company “may not have violated the rights of striking worker (who allegedly followed a non-striker onto the highway, cut him off, slowed down, and did not allow him to pass) by firing her, says the D.C. Circuit. Concurring in her own opinion, Judge Millett reprimands the NLRB for long countenancing strikers’ sexually and racially demeaning behavior.” More on Millett’s concurrence in Consolidated Communications v. NLRB: Jon Hyman, and more on the case itself from the U.S. Chamber;
- Also quoting Short Circuit: “After discussions with NLRB, Norwood, Mass. car dealership revises employee handbook. NLRB: The new dress code, which prohibits some employees from wearing ‘pins, insignias, or other message clothing,’ still restricts labor rights. First Circuit: Just so. Dissent: Pity employers who want their employees to look nice. “[T]he Board and the courts have lured businesses into a legal bog.'”
- Congress hasn’t passed ENDA. Will courts approve EEOC’s scheme of cobbling it together virtually from other legal materials? [ABA Journal, Will Baude and more, Eugene Volokh on Seventh Circuit argument]
- California agricultural-labor law creates a right to trespass for union organizers. Help, Ninth Circuit! [Ilya Shapiro and Frank Garrison]
At last month’s Federalist Society National Lawyers Convention, Eugene Volokh debated Deborah Rhode on whether hostile environment law on and off campus often violates the First Amendment. The discussion also got onto Model Rule 8.4 (g), adopted by the American Bar Association a few months ago, which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Can bar disciplinary committees be trusted not to apply this language to politically incorrect expression by lawyers, including in pedagogical settings such as law school and continuing legal education (CLE)? [Josh Blackman, Francis Pileggi]
After students at the University of Wisconsin-Platteville used Facebook to post pictures of themselves in Hallowe’en “Three Blind Mice” costumes, a member of the school’s “Bias Incident Team” turned them in herself to the team, which decided that there was a risk the costume idea “makes fun of a disability.” The pictures have been taken down. “The University of Washington produced a six-minute video last year decrying ‘cultural appropriation’ around Halloween. Off-limits costumes included hula skirts, [straitjackets], sombreros, fake mustaches and martial-arts attire.” [Jillian Kay Melchior, Heat Street] No mention of possible offense to the tail-amputee community. More on bias response teams here.
“Wearing a Gadsden Flag hat to work could be considered racial harassment, according to the Equal Employment Commission, the government body that oversees ‘hostile work environment’ harassment claims.” The EEOC acknowledged that the historical origin of the rattlesnake flag was unrelated to racial matters. The case involved a federal worker, but the EEOC’s jurisdiction extends to the private sector and the principles it expounds are generally applicable there as well. [Andrew Stiles/Heat Street, Eugene Volokh; compare Snopes (alarm premature, EEOC still early in process) and Noah Feldman, Bloomberg View (yes, worth investigating as possible harassment)]
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]