The insurance policy had excluded coverage for injuries arising from “illegal use of alcohol,” but a Sixth Circuit panel ruled that since the 22-year-old’s actual consumption of the alcohol hadn’t been unlawful — though his decision to operate a dirt bike while intoxicated afterward was — the exclusion did not apply. Back to the drawing board on contract language for the insurer [John Agar, MLive; Lowell, Mich.]
- Sixth Circuit ruling breaks new ground in disturbing ways: employer can be sued under Fair Housing Act if it withdraws job offer based on disapproval of accepted applicant’s public position on a housing controversy [Linkletter v. Western Southern Financial Group Inc.; Chiodi]
- A request from blogger Coyote: he’s looking to interview folks who run 10-40 employee firms [details]
- “Massachusetts is just one of six states that prohibit employers from donating to candidates while allowing unions to donate,” and the only one that prohibits employers from administering a PAC [Paul Craney and James Manley, Commonwealth Magazine]
- California voters sought to fix gerrymandering in races for state and federal office, but omitted to address the county level. Guess what’s happening now? [AP] No one is really fooled by Maryland legislature’s pledge to reform redistricting if five (5) nearby states all agree to enact exactly the same reforms [Nancy Soreng and Jennifer Bevan-Dangel, Washington Post; Rachel Baye/WYPR and related audio, legislation]
- D.C. should concentrate on deregulating hotel and apartment provision, rather than try to choke off AirBnB. [David Alpert, Greater Greater Washington, rounding up various views] “California will audit Airbnb hosts for racial discrimination” [ABA Journal, Guardian]
- Securities class action settlements continue steep rise [Harvard Corporate Governance Project]
Judge Jeffrey Sutton, writing for a Sixth Circuit panel, reverses a Tax Court ruling in an opinion beginning thus:
Caligula posted the tax laws in such fine print and so high that his subjects could not read them. Suetonius, The Twelve Caesars, bk. 4, para. 41 (Robert Graves, trans., 1957). That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting? The Internal Revenue Code improves matters in one sense, as it is accessible to everyone with the time and patience to pore over its provisions.
In today’s case, however, the Commissioner of the Internal Revenue Service denied relief to a set of taxpayers who complied in full with the printed and accessible words of the tax laws. The Benenson family, to its good fortune, had the time and patience (and money) to understand how a complex set of tax provisions could lower its taxes.
And taking issue with the IRS Commissioner’s decision to disallow the use of two Congressionally approved devices, the Roth IRA and DISC (domestic international sales corporation), in a way said to trigger the so-called substance-over-form doctrine:
Each word of the “substance-over-form doctrine,” at least as the Commissioner has used it here, should give pause. If the government can undo transactions that the terms of the Code expressly authorize, it’s fair to ask what the point of making these terms accessible to the taxpayer and binding on the tax collector is. “Form” is “substance” when it comes to law. The words of law (its form) determine content (its substance). How odd, then, to permit the tax collector to reverse the sequence—to allow him to determine the substance of a law and to make it govern “over” the written form of the law—and to call it a “doctrine” no less.
- Uh-oh: “40% of Millennials OK with limiting speech offensive to minorities” [Pew Research, Cathy Young on Twitter (“OK, NOW can we stop the ‘naww, political correctness isn’t a threat to free speech, it’s just about courtesy’ spin?”)]
- Breezy but informative guide to why Schneiderman & Co. might hope to find, amid the general rule that the First Amendment protects business speech about public policy, an exception/ loophole for business speech about public policy when it affects securities [Matt Levine, Bloomberg View; earlier on climate speech investigations here, etc.]
- “Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)” [Popehat on Michigan case of Bible Believers v. Wayne County, Dearborn protesters threatened with arrest for “disorderly conduct” arising from prospect of violence against them]
- Discrimination law: “Can Office Depot be forced to print flyers that it disapproves of?” [Eugene Volokh; compare Hands On Originals case in Kentucky]
- Scary: UK’s Muslim Council calls for controls on UK press coverage of Islamic issues [Ben Flanagan, Al-Arabiya] Prominent Labour MP says he would have “no problem” with reintroducing blasphemy laws [National Secular Society]
- Cook County sheriff sent letterhead takedown demands to Backpage.com over sex ads, but Supreme Court has looked askance at informal you’d-better-not-publish-this pressure by government [Ilya Shapiro and Randal John Meyer, Cato]
- Portland, Ore. police department “encourages the reporting to law enforcement” of “offensive language used on social media” even when not illegal. It does? [Charles Cooke]
An 8-5 decision from (these days) one of the nation’s more liberal circuits in EEOC v. Ford Motor Company:
The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford’s papers andpractices—and Harris’s three past telecommuting failures—backed up its business judgment.
Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against her for bringing the issue to the EEOC’s attention. The district court granted summary judgment to Ford on both claims. We affirm.
- Lefty argument du jour: government benefits for working poor subsidize low-wage employers. Oh? [Adam Ozimek via Tyler Cowen] Similarly: Tim Worstall; Michael Strain, WaPo; Coyote;
- “OSHA’s Latest Reporting and Recordkeeping Mandates: More Burdens with Few Benefits” [Eric J. Conn, Washington Legal Foundation]
- “EEOC: New York City owes underpaid minority female employees $246 million” [NY Daily News, NY Post (“de Blasio administration offered no evidence to contest the charges, the commission said”), Jon Hyman]
- Will the Trans-Pacific Partnership (TPP) trade deal require countries to adopt minimum wage laws? [Simon Lester, Cato]
- House hearing on Obama executive order blacklisting contractors over labor violations in unrelated areas of their business, or at subcontractors [witnesses and testimony, Walberg statement, press release, video, SHRM]
- Sixth Circuit retaliation decision confirms need for kid-glove handling of employees who file discrimination complaints [Jon Hyman]
- Spontaneous protest doesn’t come cheap: SEIU spent $24 million in 2014 on fast food/retail wage movement [WLS Chicago 7]
I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is
all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.
The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.
For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.
- Labor Department wants to shut down consignors-as-volunteers consignment-sale business plan [Bloomberg BusinessWeek, Sean Higgins/Examiner]
- Operating Engineers Local 17: “Legality of union violence at heart of court case” [Buffalo News]
- Alternative to “Ban the Box”: revisit extent to which old convictions stay on the books [Eli Lehrer; Baltimore Sun on municipal proposal]
- Human capital investment by women has narrowed gender pay gap, desire for time flexibility crucial in explaining what remains [Tyler Cowen on Claudia Goldin paper]
- Carl Horowitz on UAW push to organize VW in Chattanooga [Capital Research Center]
- Seyfarth Shaw’s 10th annual Workplace Class Action Litigation Report [Seyfarth, Daniel Fisher]
- Sixth Circuit: transfer can count as adverse action even when employee had previously requested it [Jon Hyman]
Dividing 11-5: “Plaintiffs who failed in their state worker’s compensation claim cannot sue their employers and their medical experts under federal civil racketeering laws, the en banc 6th U.S. Circuit Court of Appeals has ruled.” [Jackson et al. v. Sedgwick Claims Management et al., PDF; Miller Canfield; Business Insurance; Steven Schwinn, Constitutional Law Prof Blog]
A Sixth Circuit panel declines to strike down a state law under which public schools will no longer withhold union dues from teachers’ salaries. The Michigan Education Association had claimed that Public Act 53 interfered with its First Amendment right to speak. [David Shepardson, Detroit News]