- Federal judge Wolf mulls appointing special master to investigate possible fee fraud in class action against State Street Bank [Boston Globe]
- Two lawyers start fighting on an airplane over a shared armrest, and it makes the papers [New York Post]
- Philly proposes mandatory sensitivity training for owners, employees of 11 gay bars [Philadelphia Commission on Human Relations report via Heat Street]
- Finally, some constraints on Mississippi Attorney General and longtime Overlawyered favorite Jim Hood? [Mississippi Business]
- One view of emergent controversy: “The Case Against National Injunctions, No Matter Who Is President” [Samuel Bray, LawFare, more from same author]
- “Court To Review Target’s $10M Customer Data Breach Settlement” [Consumerist; Minneapolis Star-Tribune; Ted Frank’s Center for Class Action Fairness is objecting]
- In or near Kansas? I’m speaking next week in Topeka at a Washburn University School of Law conference on the future of employment law [Feb. 23, details]
- “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]
Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”
Rejecting the view of the Equal Employment Opportunity Commission (EEOC), a three-judge panel of the Seventh Circuit has ruled that Congress not having enacted a measure such as the Employment Non-Discrimination Act banning sexual-orientation discrimination, plaintiffs cannot deduce the existence of such a ban from other elements of federal law. [Chris Geidner, BuzzFeed; Marcia McCormick, Workplace Law Prof] I saw this coming last year when the EEOC declared, on what did not seem strong legal grounds, that the previous federal court consensus that there is no implied ban had been effectively overridden by intervening case law.
The Church of Anti-Discrimination, most confident of sects, will settle for nothing short of full establishment: under a California court settlement, ChristianMingle.com, which bills itself as the largest online Christian dating site, has agreed to establish search options for men seeking men and women seeking women. Two California men had sued under the state’s expansive Unruh Civil Rights Act. Owner Spark Networks, which admitted no wrongdoing, “agreed to pay each plaintiff $9,000 each and $450,000 in attorneys’ fees to the two men’s lawyers.” [Jacob Gershman and Sara Randazzo, WSJ Law Blog] At Patheos, David Smalley, who describes himself as a pro-gay atheist activist, says the episode is based on too broad a definition of public accommodation; declining to offer a particular service is not the same as offering it to the public but turning down some customers. “Since when can the government tell us what products or services we must offer to future customers? Every atheist, every liberal, and every business owner needs to fight for Christian Mingle’s rights to offer the products or services they choose, even if we disagree with their practices or philosophy behind it all.”
I’ve posted previously this year about the growing trend toward disrupting and shouting down political opponents’ rallies and events. It’s worth mentioning that much of the disruption, notably from activists claiming to speak in the name of the group Black Lives Matter, is actually more against political allies than against opponents. On Sunday BLM’s local chapter disrupted Toronto’s annual gay pride celebration — which trustingly had invited BLM to lead the celebration — with a list of demands including no longer allowing law enforcement to have floats in the parade. I’ve compiled a new Storify telling what happened next. More: Jamie Kirchick, L.A. Times.
Following the most lethal terror attack on U.S. soil since 9/11, I will set law and policy aside for this post.
Omar Mateen of Fort Pierce, Fla., known to the FBI as an Islamic State sympathizer and twice the subject of previous investigations, entered Orlando gay nightclub Pulse around 2 a.m. Sunday morning heavily armed and killed 50 persons after taking hostages. Authorities called his attack “well organized and well prepared”; Mateen had firearms training and according to reports had been scoping out gay clubs in the area before the attack.
As in two earlier attacks on American soil — those against a cartoon exhibition in Garland, Texas, and in San Bernardino, California — Mateen used contemporaneous public media (in this case, a 911 call) to pledge his allegiance to the leadership of Islamic State. As Rukmini Callimachi notes in today’s New York Times, this follows a protocol announced by Islamic State for independent fighters acting in sympathy with IS. A few hours later an Islamic State news agency hailed Mateen as an IS fighter, effectively accepting his pledge of allegiance.
The group’s head has urged followers in the West to act without prompting or coordination, selecting targets and employing attack methods in line with instructions published by IS. For example, IS has recommended capturing hostages and holding them in a sealed off space, which makes it likely that a prolonged siege situation will develop for maximum media interest, and that the attacker will die in an eventual police operation, reducing the likelihood of intelligence debriefing following a capture. As at the Bataclan in Paris, the passage of a long period before police rescue arrives tends to augur poorly for victims’ chances of survival.
The instructions-for-lone-wolves model is intended precisely to obviate the need for IS to know of or direct its supporters’ actions in advance. “The fact that there is no link back to the core is *by design* and is intended to protect the organization in an age of surveillance,” writes Callimachi on Twitter.
If you weren’t thinking of Gay Pride Month in a major American tourism city as a likely target for murderous jihadist attack, you should be. As Karol Markowicz writes on Twitter, “Just like it wasn’t a random ‘bunch of folks in a deli in Paris’, let’s not pretend it was a random bunch of folks in a club in Orlando.” If you’re gay, Islamic State’s ideology wants to kill you, even more than it wants to kill unbelieving Westerners in general. For us in America after today, that’s no longer the stuff of distant headlines.
Last summer I was a panelist in New York City when the law firm of Fried Frank hosted its 15th annual Michael R. Diehl Civil Rights Forum, on the topic of “Balancing Liberties: The Tension between LGBT Civil Rights and Religious Exemptions.” It’s now been posted online. Other participants included Marci Hamilton (Cardozo Law School and private practice) and Rose Saxe (ACLU). Of the three, I was the panelist who defended the broadest legislative scope for exemptions based on conscience and religious scruple from laws of otherwise general applicability. Jesse Loffler moderated.
Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]
Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]
Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.