My Thoughts on the Weiss Resignation

You may have heard that Bari Weiss has not-so-quietly resigned from her position at the New York Times. Her publicly-posted resignation letter is a wide-spanning critique of the culture at the Times and what she takes to be a narrowing of the bounds of acceptable opinion and intellectual curiosity.

I have a few thoughts, in no particular order of importance:

• I have never been particularly impressed with the bulk of Bari Weiss' work, or her general "cancel culture/fearlessly asking the questions" oeuvre. I've often found it to be lazy, self-satisfied, and/or hypocritical. I don't think she has a coherent theory distinguishing "criticism" (good) from "cancellation" (bad), and most damningly, I don't think she seems to even recognize that there's a tension here that appears to be resolved in a partisan way (my retort is criticism, yours is cancellation).

• That said, Weiss is not even close to the only major political pundit who embodies these vices. The degree to which she nonetheless became, for many, the public avatar of those sins always made me uncomfortable, because it always felt like it was tied up to her identity as a prominent Jewish woman. Call it misojewny, call it antisemisogyny, but it stunk.

• The eagerness with which people bring up Weiss' college escapades (she participated in projects which exposed the allegedly anti-Israel/antisemitic practices of several professors at Columbia, where she was a student) is a bit to gloating in nature for my tastes (again, many public figures have done things while in college that are not fully thought out or perfectly-tailored to keep a pristine PR file). However, consistent with my above sense that Weiss lacks a theory distinguishing "good" versus "bad" critical counterspeech, she isn't helped by the fact that she hasn't to my knowledge even seriously grappled with the tension in this issue close to her heart. A more thoughtful participant in these debates might have drawn upon her experience seeking to "cancel" figures for alleged antisemitism to be more sympathetic to other actors who seek to "cancel" figures for alleged racism. Weiss did not usually extend that sympathy, and so the juxtaposition is going to reflect poorly on her.

• In her letter, Weiss claims that the terms which describe what happened to her are "unlawful discrimination, hostile work environment, and constructive discharge. I’m no legal expert. But I know that this is wrong." She is, indeed, no legal expert. The conduct she describes in the letter -- whether it is "wrong" or not -- would be very unlikely to sustain a legal complaint for unlawful discrimination, hostile work environment, or constructive discharge. 

• Weiss' confusion is in line with something I've noticed from many conservative observers of anti-discrimination law. They wildly underestimate how high the barriers are to winning a discrimination claim -- probably because they're ideologically committed to the notion that minorities get their discrimination claims rubber-stamped (when the reality is such claims are overwhelmingly rejected by the courts, often before reaching a jury). So when they experience something that is in the family of discrimination, they assume that (a) it must be illegal ("if these whiny minorities are winning, surely my very real pain and trauma must present a winning case too!") and (b) if it isn't treated as illegal, that must be because of some latent anti-conservative(/white/male/whatever) bias, rather than the normal functioning of a legal system they generally endorse.

• On the other hand, if we step away from the legal aspect of it all I think few of the people mocking Weiss' contention that the environment at the Times had gotten so toxic that she had to resign take the same view when members of other minority groups write of toxic environments in their workplaces that end up driving them out of prestigious jobs. Surely, we on the left are familiar enough with, and historically expressed enough sympathy towards, this style of claim such that the current sneering mockery -- LOL, someone claims that coworkers being mean to them made working at their job impossible -- rings hollow. Of course, many of those sympathetic to Weiss would be derisive of claims of this sort when made by members of other minority groups. Hypocrisy, as always, is a double-edged sword.

• Weiss situates her initial hiring as an effort by the Times to understand Trump voters, and I've seen several writers lamenting her departure defending her presence along that line -- that it's important to have voices like her available to liberals because, after all, almost half the country backs Donald Trump. This argument is a bit odd, though, since Weiss was not herself a Trump-backer either. I've alluded to this problem before in relation to how one justifies hiring "conservative" voices at mainstream newspapers -- is the goal to reflect the views that are held by a large portion of the populace, or is the goal to legitimate certain views which are thought to present genuinely important and worthy contributions to public debate? Weiss' defenders effectively are claiming the former as a defense against the latter -- even if Weiss' opinions aren't objectively all that worthwhile, it's important to hear them lest liberal NYT readers silo themselves off from views which carry support in a considerable swath of the country. But the issue with Weiss is that she doesn't actually reflect the modal example of a pro-Trump opinion in American politics -- the modal pro-Trump perspective would level opinions far more grotesque than anything Weiss ever produced. Ironically, Weiss was hired by the Times because she misrepresents the average content of contemporary conservative viewpoints by giving them a patina of liberal plausibility that makes them more palatable to a liberal audience. Actual conservatives right now scarcely bother with the patina.

Federal Court: "Jewish" Isn't a Race Under Title VII

Last year, I wrote about a federal court opinion in Bonadona v. Louisiana College, addressing whether Jewishness is a "race" for purposes of Title VII litigation. The question rarely comes up, because Title VII also protects against religious discrimination, and so Jews suing on basis of antisemitism typically just use that as their statutory hook. But Bonadona involved a Jewish-born convert to Christianity, who was nonetheless allegedly denied a position at a Christian university on the basis of his "Jewish blood" (yes, that phrase exactly). So he couldn't claim religious discrimination -- he was Christian, just like his would-be employers -- but the reference to "Jewish blood" certainly smacks of an employer who viewed (and disparaged) Jewishness as a race.

The decision last year concluded that Jewishness is, or at least could be, a race for Title VII purposes. But it was actually only a magistrate's recommendation, and a few days ago the district court judge apparently overruled that recommendation (via) and decided that Title VII categorically does not provide protections to Jews as a "race" because Jewishness was not understood to be a race in 1964 (I say apparently only because the court's opinion does not mention or discuss the magistrate's recommendation in any way).

This lack of discussion is disappointing, since the magistrate's opinion raised some issues that I think are worthy of discussion but get no attention in the relatively sparse treatment offered by the district court. The latter's analysis begins and ends with the (for what it's worth, uncited) declaration that Jewishness wasn't viewed as a race in 1964, and so consequently the statute could not have been intended to encompass Jews (at least, as a race). This distinguishes the Bonadona case from other precedents which found Jewishness was a race for the purpose of Section 1981 litigation -- Jewishness was seen as a race in the 1860s, but wasn't by the 1960s.

To me, though, this analysis isn't persuasive, and smacks of a sort of vulgar textualism (what in the constitutional context is sometimes called "original expected applications originalism") that is just wrong as a matter of fundamental legal interpretation. The right question -- even from an originalist/textualist vantage -- isn't whether Jews were (by everyone? the majority? themselves?) viewed as a race in 1964 (or 1866). It's whether, under the prevailing understanding of "race" that would have dictated meaning in 1964, Jews are being viewed as a race now (either generally, or in the particular fact pattern at issue).

For example, suppose that in the mid-1970s, a race of human mole people emerged from beneath the earth and sought to integrate into above-ground human society. Though they're biologically human, they have their own distinct customs and practices, and are physiologically distinguished by their dark blue skin. In the United States, they are quickly assimilated into normative American race politics (e.g., White supremacists hate them, some people are nervous about allowing them into their children's public schools, a network of stereotypes about them quickly entrenches itself, and so on). Are they a "race" for Title VII purposes? It'd be weird to answer "no" because in 1964, "moleman" (not yet having been discovered) wasn't recognized as a race. Rather, the question is, given what "race" was understood to have meant in 1964, whether the manner in which the mole people are being treated corresponds to a racial category. If the answer is "yes", then they're a race for purposes of the statute. If not, then they're not.

The reason we have to stretch to a hypothetical about "mole people" is that it's quite hard, under prevailing contemporary understandings of race, to imagine a clear cut example of a new race being "discovered". In reality, while race is not a static concept, social groupings don't move into or out of the category all at once. In the case of Jews, for example, sometimes we've been viewed as a race and other times not, and even within a discrete time period some people have viewed us as a distinct race and others not. White supremacists today still discriminate against Jews on racial, not (just) religious, grounds, even though many other people do not view Jews as racially distinct. That was probably equally true in 1964. It seems very odd to say that discrimination that is both expressly described by the perpetrators and acutely experienced by the victims as occurring on racial grounds is nonetheless not on basis of "race" because ... what, exactly? Jews aren't "really" a race? There isn't a metaphysical  or biological reality to race, other than how it's performed -- the act of treating a group as racially distinct is all there is to race-ing a group.

Consequently, I'd suggest that, at minimum Jews are a race for Title VII purposes in cases where the discriminatory treatment they experience is racialized. The markers of racialized treatment -- which I think had purchase in 1964 -- are things like viewing ones personal character or human value as dictated by one's biological ancestry, assuming sweeping similarities across a wide range of character traits based on perceived physiological or genetic similarity, viewing the group as one which has the potential to degrade or "pollute" the gene pool, perceiving membership in the group as per se (or at least highly suggestive) evidence for all individual members that they are congenitally incapable of integrating with others not-like-it, and so on. Admittedly this may not be amenable to being nailed down  with precision-- but that fuzziness is probably why Title VII doesn't attempt a definition of "race" (if it were as simple as "the groups that were generally classified as races in 1964", then the statute could have easily just given that list). To a large extent, when it comes to whether a particular group is being viewed as a race, "we know it when we see it".

Does the above rule -- where one is a race when one's discriminatory treatment is racialized -- cover all cases of antisemitism? Not necessarily. Someone who refuses to hire a Jew because "they don't worship the same God I do" is engaging in religious discrimination, but that sort of statement does not on its own evince a view of Jews as a distinct racial group. One can imagine a range of cases that get grayer and grayer as you approach the middle, but refusing to hire someone because of their "Jewish blood" seems to sit pretty comfortable on the far side of the spectrum.

And this, I think, represents a more faithful application of the original understanding of the word "race" in Title VII than the casual inquiry given by the District Court. It is unlikely that the drafters of the Civil Rights Act thought of themselves as protecting certain ahistorical and immutable categories of "races" that existed from the depths of antiquity and would persevere endlessly into the future. By 1964, when we had started abandoning the view of race as a biological reality and instead treated as a sociological category, a "race" for Title VII purposes is a group that is treated as a race in cases covered by the statute.

Philadelphia Police Department Sued for Antisemitic Discrimination

Two Philadelphia police officers are suing the department, alleging antisemitic discrimination.

In a nice bit of "THIS is what a Jew looks like!" communal pluralism, the Latina Jewish officer is the one making note of "jokes" about blowing up Israel and alleging retaliation for trying to take Rosh Hashana off, and the White (Russian) Jewish officer is the one who got hit with threats of deportation.

Hurray for Jewish diversity!

Federal Court: "Jewish" Can Be a Race Under Title VII

Last week, a federal court in Louisiana handed down a very interesting decision in Bonadona v. Louisiana College, concerning whether "Jewish" could be a racial category for purposes of Title VII litigation.

The "is Jewish a race" question is notoriously nettlesome (oh boy is it nettlesome), but it generally can be skirted in law because most anti-discrimination statutes which have race as a protected status protect religious identity as well. But Bonadona managed to tee up the question with possibly the most perfect set of facts imaginable.

Joshua Bonadona was born Jewish to a Jewish mother, but converted to Christianity while playing football at a Christian college and is now a practicing Baptist. After graduating, he applied for a job as a football coach at his alma mater, only to be rejected at the last stage because the college President (he alleges) objected to his "Jewish blood." Yup, "Jewish blood."

So on the one hand, we have a case where the plaintiff has to make a racial rather than a religious discrimination argument because he's not religiously Jewish. And on the other hand, we have alleged statements by the defendant that frame the antisemitism in the most racialized way imaginable. In his Racism: A Short History, George Frederickson excavates how the very concept of race had its origins in the idea of limpieza de sangre -- "purity of blood" -- which was used to discriminate against Jewish converts to Christianity in the wake of the Inquisition. Bonadona's case seems to be a lineal descendant of that fusion of religious and racial antisemitism directed at formerly-Jewish Christians.

The court ended up concluding that Jewish could be a racial identity under Title VII. Certainly that seems right to me under these facts. In Shaare Tefila Congregation v. Cobb, the Supreme Court concluded that Jewishness should be considered a racial identity for the purpose of Section 1981 claims, as (regardless of its status today) Jewishness would have been considered a racial identity when the statute was passed in 1866 (a companion case reached the same conclusion for Arab identity; interestingly, this conclusion -- that Jewishness was a race in 1866, but might not be today -- was precisely how Jewish amici at the time urged the Court to resolve the "is Jewish a race" question).

The court here correctly noted that Cobb doesn't conclusively establish that Jewish is a race for all times or all purposes. But it does indicate that race is as it does, and that rather than coming to some conclusive scientific or sociological determination of whether Jewish "really" is or isn't a race, the better move is to analyze when/how Jewishness has and does operate in practice as a racial identity. The court concluded that much of the history of antisemitism in America has taken on a racialized frame (Bonadona's allegations represent a particularly striking example), and hence Jewishness can be legitimately be characterized as a race in seeking to remedy that discrimination.

One question that remains open is whether "Jewishness" should always be considered a racialized identity even in circumstances where the form of the alleged antisemitism isn't as blatantly racialized as it was alleged to be here. That I'm not entirely sure about. On the one hand, if one side of the "race is a mutable and fluid concept" coin is that we should accept the existence of racialized antisemitism even in circumstances or eras where Jewishness is not typically thought of as a "race", then the other side of that coin has to be that in other circumstances the concept of race will mutate and flow such that even genuine antisemitism won't be conceived or experienced in racial terms. On the other hand, I'm not sure what utility there is in such fine-grained slicing and dicing, particularly given that I believe anti-discrimination laws should be broadly construed to effectuate their remedial purposes and few would argue that combating antisemitism -- of whatever kind -- is not among those purposes.

The court's analysis, on my quick read, suggests that it thinks Jews should always have access to race discrimination claims under Title VII. But that really wasn't at issue here and, again, in most cases that don't have these (oh-so-perfect) facts it won't generally come up.

UPDATE: This was a magistrate's report and recommendation, and the District Court ultimately declined to adopt it -- instead concluding that Jews are not covered by Title VII's "race" provision. I wrote about that decision here.

Preemptive Strikes in Antidiscrimination Law (Or: Why You Need a Union!)

Last week, the Eighth Circuit Court of Appeals decided the case of Hales v. Casey's Marketing.

Lauren Hales was an eighteen year old employee working the graveyard shift at Casey's General Store. At 1:45 AM, a customer came in and starting making sexually suggestive comments towards her. In an attempt to avoid the man, Hales stepped outside to take a cigarette break. The man followed her, blocked the entrance to the store, and continued making sexual remarks.

Hales, who had previously been sexual assaulted, told the guy to "back off". The customer replied "what are you going to do about it?", at which point Hales extended her cigarette to ward him off. Instead, the customer stepped towards Hales, burning his arm on her cigarette in the process.

The next day, the customer complained to a Casey's manager that Hales had burned his arm. The next time Hales reported to work, a manager asked her if "anything out of the ordinary" happened on her previous shift. She forthrightly reported the cigarette incident, but said she had done it in self-defense.

Hales was then terminated.

She sued, alleging sexual harassment and retaliation -- and the Eighth Circuit just rejected both of those claims. The harassment claim failed because the customer's conduct wasn't "severe or pervasive" enough to constitute sexual harassment as a matter of law (the Eighth Circuit apparently hasn't decided whether a company can be held liable for harassment done by a customer, but it assumed for sake of argument that it could). The retaliation claim was rejected because it was filed too late, but apparently the district court had also indicated it should fail because Hales was not engaged in protected activity under Title VII.

Here's the thing: I'm not sure this decision is wrong as a matter of (current) law. The "severe and pervasive" threshold necessary to make out a harassment claim is extremely (I'd say ludicrously) high, and I know of no case law which addresses self-defense steps as a form of "opposing" harassment in the workplace.*

But even if the case "rightfully" lost, all that demonstrates is that antidiscrimination law -- even when "correctly" applied -- isn't sufficient to protect vulnerable workers (even from discrimination).

In fact, the structure of antidiscrimination law in many ways encourages employers like Casey's to act in precisely this fashion -- terminating employees who are the victims of sexual harassment (whether by customers or coworkers) as a "preemptive strike" before they're able to put together a legally cognizable claim of discrimination. Even if one doesn't think that antidiscrimination law should expand to create liability for a single case of customer harassment, there's surely something perverse about it allowing (or even encouraging!) a young woman to be fired because she refused to tolerate a customer harassing her.

When I read this case, it reminded me of one of the very first employment discrimination cases I read which got me hot under the collar -- Jordan v. Alternative Resources Corp. In that case, Jordan -- in accordance with company policy -- reported a coworker who, while watching news coverage that two Black criminals had been arrested, exclaimed "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them."  His supervisor took decisive action ... against Jordan: changing his work hours to less desirable times, making derogatory comments towards Jordan, and then -- within a month of the initial complaint -- firing Jordan. Jordan sued, claiming his termination was retaliation for filing his complaint.

Title VII only protects against retaliation if you're opposing an act covered under Title VII. In Jordan, the Fourth Circuit concluded that the single racist remark Jordan reported could not alone have sufficed to create legally actionable harassment (again, not being "severe or pervasive" enough to qualify), which means he was not "opposing" covered conduct, which means that his company was not retaliating against him as a matter of law (even though, again, company policy required that Jordan file his complaint).

Jordan argued that his complaint should have been protected because it covered action that, if left unabated, would have eventually ripened into unlawful harassment. The court refused to make the extension, and the result is an obvious Catch-22: Jordan has to report conduct that is not "yet" harassment in order to obey company policy (and preserve a potential future harassment claim), but he can be retaliated against for filing the reports.

But there's a deeper problem in the incentive structure this rule creates: As soon as an employer begins to observe incipient harassing conduct that has not (yet) risen to be legally actionable, it probably should terminate the victim before a sufficient record of wrongful conduct accumulates.** If the employee is reporting the bad conduct, then so much the worse for them -- they're showing themselves to be the sorts who stand up for themselves and so may be more likely to file a discrimination complaint.

Consider how this dynamic might have played out in Hales' case. Suppose the manager knew that one instance of customer harassment of this sort against Hales would likely not be enough to create any legal liability for Casey's. But if it happened again to Hales, or multiple times, then Casey's may well be on the hook. What are the options? Well, one is to take concrete steps to protect Hales from this predatory customer (e.g., banning him from the store) and harassment more generally. But that's difficult, and maybe expensive, and it alienates a customer! So option two is just to fire Hales. If you fire her now, the legal case is nipped in the bud. Problem solved.

And make no mistake: this set of perverse incentives will fall heaviest on the most vulnerable employees. It is entirely predictable that the employees most likely to be subjected to repeat instances of sexually aggressive, harassing conduct are young, those working overnight shifts, racial minorities, gender-nonconforming, and the like (Hales met at least the first two of these). Hence, it is these employees who are most likely to be -- and be perceived as -- potential "repeat victims". And that means they are the most likely to encounter "preemptive strike" discrimination -- a form of employment discrimination that does not just avoid legal accountability, but in many ways is the product of the (exceptions to) antidiscrimination law itself.

So the obvious reform is to make clear that Title VII retaliation protections extend to cases of opposition to sexual or racial misconduct even where the practices would not themselves (yet) rise to being independently legally actionable.

But it's also the more straightforward case that what Hales really needed here was a union. It is very difficult to craft legal rules which do not create some sets of bad incentives or which a clever employer cannot game to their advantage. Given who writes laws (political elites) and who interprets them (legal elites), these unanticipated consequences are unlikely to be randomly distributed -- they will track the usual lines of social power and advantage.

Hence, what Hales really needs is someone whose job it is to be in her corner, a body which can protect her from such arbitrary employer action in the particular case even when the general law couldn't shield her. In other words, she needs a union.

* Retaliation jurisprudence generally envisions "opposition" to mean something like reporting the conduct to company officials or public authority officials. Nonetheless, I'd be inclined to say that physically resisting harassment in the workplace should qualify as "opposing" that conduct. But there remains the separate problem illuminated by the Jordan case: where the conduct "opposed" does not alone suffice to create a "severe and pervasive" hostile work environment (as it almost never will in the first instance), then no action by the employee -- whether it's filing a report or physical resisting her harasser -- would be covered under anti-retaliation protections.

** A similar dynamic sometimes emerges in the labor law context, where employees are protected insofar as they engage in "concerted action". On face, this gives employers who see the potential for emergent concerted labor action an incentive to fire the source employee before any organization can begin. But unlike in the discrimination-retaliation context, both courts and the NLRB have concluded that such "preemptive strikes" also violate labor law, even where they come before any conduct that itself would qualify as "concerted action" and even where they successfully preclude any such action from later manifesting.

Employers Don't Make Passes ....

A new, very depressing study finds that women applying for jobs are penalized (compared to men) for getting good grades in college. Basically, employers value competence in men but likability in women, and so they reward men for getting better grades (associated with competence) while viewing high-achieving women with skepticism (assuming they're less likable). The effect is strongest among women majoring math, because of course it is.

Ugh, ugh, and ugh.

Sunday Roundup: Jan. 25, 2015

Just because I'm a big Jewish media star doesn't mean that I don't have time for the little people my loyal readers. Here are some stories I've found interesting that have crossed my browser.

* * *

A powerful story about a lesbian couple in Oklahoma planning their (suddenly legalized) wedding.

I honestly have no idea how someone who presumably identifies as a progressive can write this without it being immediately, blaring, obvious that it is identical to conservative mockery/dismissal of racism claims. Someone get the author a copy of Darren Lenard Hutchinson's Racial Exhaustion, stat.

Interesting piece (to me, at least!) by David Roberts on the proposed Exelon/Pepco merger.

An Israeli Druze student was beaten by a Jewish mob who overheard him speaking Arabic. The student, who recently finished his service in the IDF, had been posted at the Presidential Residence and received a call of support from Israeli President Reuven Rivlin.

As much as "WhatAboutTheMenz" annoys me, no Ruby Tuesday's, you can't just restrict posted bartender positions to women.

Torgerson's Twilight

"There is no 'discrimination case exception' to the application of summary judgment." Torgerson v. City of Rochester, 643 F. 3d 1031, 1043 (8th Cir. 2011) (en banc).

For many years, 8th Circuit precedent held that courts should be reticent to grant summary judgment against plaintiffs in discrimination cases, because so much of the inquiry depends on inference. See, e.g., Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999) ("Summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim...."); Peterson v. Scott County, 406 F.3d 515, 520 (8th Cir. 2005) ("Summary judgment should seldom be granted in employment discrimination cases because intent is often the central issue and claims are often based on inference."). In Torgerson, the Court en banc rejected that rule and instead declared -- correctly, in my view -- that there is no special standard of summary judgment applicable to discrimination cases.

Earlier this week, the 8th Circuit en banc issued an opinion in Johnson v. Securitas Security Services USA, Inc. (Bye for the majority; Smith, with Melloy and Kelly, dissenting). The case is a seemingly run-of-the-mill age discrimination case. Indeed, for anyone crying foul over Halbig going en banc in D.C., this case provides an excellent illustration of en banc review occurring "whenever judges feel like it." The majority in Johnson does not assert the existence of any circuit split, or the need to overturn prior panel precedent, or the need to announce a significant change or clarification of discrimination law. This was (in the majority's mind, at least) simple error correction, nothing more.

Still, I think Johnson encapsulates a lot of what is wrong with how the courts (or at least the 8th Circuit, with which I am most familiar) approach discrimination claims. In particular, to me it emphasizes that the Eighth Circuit's employment discrimination precedents have already fallen out of line with Torgerson's mandate. It seems clear that there remains a discrimination exception to normal summary judgment rules. The only difference is that, instead of applying a special standard favoring plaintiffs, now the court has constructed discrimination law to improperly advantage employers.

The universal standard for summary judgment, applicable to employment discrimination claims and civil claims generally, is well-established. The court asks if the evidence, viewed in the light most favorable to the non-moving party and granting all reasonable inferences in favor to the non-moving party, creates a "genuine issue of material fact" such that a trial is necessary. Basically, the question is whether, if all reasonable factual disputes (and inferences derived thereto) are resolved in favor of the non-moving party, could that party win? If the answer is "yes", then summary judgment is inappropriate -- a jury should be the one to decide. In other words, at summary judgment the court does not ask how it, in its own independent judgment, would rule. It only is determining whether a reasonable jury could decide in favor of the non-moving party. In discrimination cases, this inquiry often comes down to how the courts appraise what sorts of evidence could allow a jury to reasonably infer that unlawful discrimination occurred.

This standard is well-known and well-trodden territory. It is also, I suggest, entirely incompatible with how the Eighth Circuit handles discrimination cases.

Take the treatment of "comparator analysis." Comparator analysis is simply the attempt by a plaintiff to present an inference of discrimination by comparing how he or she was treated to a similar employee who younger (or white, or male, or whatever). The Johnson court, citing well-worn Eighth Circuit case law, describes the standard for comparator analysis thusly:

[T]he test for whether someone is sufficiently similarly situated, as to be of use for comparison, is rigorous. See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012), cert. denied, 133 S. Ct. 1252 (2013). “[Johnson] must show that [he] and the employees outside of [his] protected group were ‘similarly situated in all relevant respects.’” Id. (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005)). “[I]ndividuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000))

Every time I read this standard, I'm shocked anew. The same supervisor, the same standards, the same conduct, under the same circumstances -- but different outcomes. If one can establish that, the casual observer would probably find that to be remarkably powerful evidence of discrimination. Or, in the Eighth Circuit, one has just enough to squeak past summary judgment.

In JBS USA, LLC v. Ridout, 716 F.3d 1079 (8th Cir. 2013), an Eighth Circuit panel tried to restore at least a semblance of sanity to comparator review. Quoting the Seventh Circuit, it observed that the "similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone." Taken literally, the orthodox comparator standard would exclude evidence where the other employee had engaged in objectively worse behavior (in Ridout, the comparison was between yelling on a loud factory floor versus hanging a mock KKK hood on the locker of a black employee). But Ridout also tried to drill down to the right way of viewing comparator evidence:

[T]he ideal comparator will match the characteristics of the plaintiff employee in as many respects as possible. While no employee is a precise clone of another, the probative value of comparator evidence will be greatest when the circumstances faced by the putative comparators are most similar to the plaintiff's. Where evidence demonstrates that a comparator engaged in acts of "comparable seriousness" but was disciplined differently, a factfinder may decide whether the differential treatment is attributable to discrimination or some other cause. (citations omitted)

What Ridout was trying to get at, I think, was the unremarkable proposition that the probativeness of a prospective comparator is a sliding scale. The more similar the comparator is to the plaintiff, the more persuasive the evidence it is. A perfect comparator would be remarkably persuasive. As the circumstances diverge, it becomes less persuasive. A decent but non-ideal comparator -- say, with the same supervisor and standards, with similar but not identical conduct in different circumstances -- well, one could argue either way. The company would argue that the conduct was materially different and the distinguishing circumstances explain the differential outcomes. The employee would contend that they are similar enough such that a jury can infer that discrimination (rather than the distinguishing characteristics) really motivated the hostile treatment. That sort of debate is precisely what we have juries for.

Of course, at some point if the situations are distinct enough it isn't really evidence at all. But the rule we have is Wonderland -- smoking gun evidence is the minimum threshold, decent-but-not-perfect evidence would be summarily rejected by any rational jury. This is nothing but a special discrimination exception to general summary judgment standards.

A similar double-standard is evident in how the court treats its obligation to view "the record as a whole." Johnson raised a variety of different arguments for why discrimination might be inferrable from the evidence:

For the reasons we have already discussed, the separate aspects of the record Johnson focuses on in his specific arguments do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination. Johnson’s argument regarding the record as a whole is merely an amalgamation of the arguments we have already found unavailing.

As the dissent observes, the majority's analysis here "compartmentalizes" these arguments, finds them individually unpersuasive, and then "summarily dismisses Johnson's contention that the record as a whole contains questions of material fact." Again, this seems completely inconsistent with how summary judgment should be applied in civil cases. It is obvious that pieces of evidence, individually insufficient to create a genuine issue of material fact, can do so in tandem (or in "amalgamation") with one another. It is precisely this mistake that caused the court, in Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir.1997), to caution that alleged instances of discrimination (there in the harassment context) should not be "carv[ed] into a series of discrete incidents."

Indeed, if we examine other cases predicated on circumstantial evidence (which is what an indirect discrimination case really is), this becomes even more obvious. In a suit for wrongful death, simply noting that the defendant had exchanged harsh words with the victim a week before she was stabbed is hardly enough to create a genuine dispute of material fact whether he caused her death. Evidence that the defendant was skilled with knives similarly would be insufficient on its own, as would evidence that he was in the neighborhood at the time of death. But amalgamated together, these individually-insufficient evidentiary arguments very well could send a case to a jury. In no other context would a court reject that sort of argument simply by referencing the individual insufficiency of its constituent parts.

It is possible that the real moral of this story is that, as a Seventh Circuit panel recently suggested, it is time to abandon to the McDonnell Douglas test altogether. If a plaintiff adduces evidence which could give rise to an inference of discrimination, and the defendant offers an alternative explanation that provides a legitimate defense for its action ... we have a dispute of fact. There's no reason to have a special set of hoops for plaintiffs to jump through before a jury gets to do its job. But whether such a drastic reform is necessary or not, even within the confines of McDonnell Douglas it is hard to assert with a straight face that courts are applying the same summary judgment standard as they do for other forms of civil litigation. There is once more an "employment discrimination" exception to summary judgment doctrine. The only thing different is the beneficiary.

Normal Identities

Via Amp at Alas, a Blog, I see a column up by Jonathan Rauch that opposes efforts to pass expansions of employment discrimination protections to gays and lesbians. He argues that such laws are emblematic of "victim" politics -- gays needing protection -- rather than "responsibility" politics, whereby gays actively seek to take on public responsibilities. Gay marriage and service in the military are examples of the latter.

I would never deny the continuing and often harsh reality of anti-gay discrimination, especially for kids. And I would agree with anyone who points out that allowing gays to sue discriminators in federal court is fair and reasonable. (Federal antidiscrimination law, after all, already protects other groups, like Christians, that endure far less social hostility.) But at this point, the right to file federal lawsuits is unlikely to make a big difference in gay people’s lives, and the 1970s civil rights model has become a warhorse in need of retirement.

The next Congress should be the second since 1994 when ENDA is not introduced — this time because gays ourselves have decided to move on. A country of gay spouses and parents and service members and veterans is a country of gay citizens, not gay victims. Ten years after Goodridge is a good time to recognize and celebrate that change.

As Amp points out, this puts the cart way, way before the horse. It reeks of someone who lives in a climate where gays really have made huge strides towards acceptance, without regard for people living in locations where anti-gay prejudice still looms large and really does affect employment (and housing) opportunities. That being said, I think I understand the theoretical impulse here, and perhaps can explain it in a way that explains why it can't apply to gays and lesbians at this stage in the political game.

Take two of my identities: I am Jewish, and I am (former) high school athlete. One of these two identities enjoys protections through anti-discrimination law, and one does not. One of these two identities also is one where I feel concerned about my status as a full and equal member of the polity, while the other elicits no such anxiety.

It may seem odd that the identity that enjoys greater legal protection is also the one whose position feels more fraught. Indeed, the vast majority of our identities garner no specific formal legal protection whatsoever. And it's not because they are not the subject of regulation, even controversial regulation, either. Athletes can face significant regulations (such as mandatory drug tests, or heightened academic requirements), and they may have strong views about the propriety of these ordinances. Lawyers (to take another example) face a massive array of regulations governing their conduct and certainly have no qualms about arguing over them. These arguments, however, occur without the backstop of any formal legal regime recognizing specific protections against unfair treatment for the identity. We fight these battles with nothing more than the normal tools of politics.

Yet this thought does not fill most of us with dread. To the contrary, it strikes us as utterly unremarkable. It is normal that most of our identities will be regulated and protected through nothing more than the normal channels of political and social dialogue. The need for something like anti-discrimination laws suggests a particular aberration from this norm -- recognition of a particularly dangerous or fraught area of controversy where the normal rules cannot be trusted.

For this reason, it is wrong to view the end-game of anti-discrimination work as the enactment of a robust array of legal protections. As one jurist put it, anti-discrimination laws "acknowledge—rather than mark the end of—a history of purposeful discrimination." Hernandez v. Robles, 7 N.Y.3d 338, 388-89 (N.Y. 2006) (Kaye, C.J., dissenting). Or to quote myself:

If one only has protections because one devotes every spare vote, dollar, resource and minute to secure them, one can hardly be said to be an equal. Equality comes when equality is normal — so normal, that you don’ t have to be perpetually on your guard to defend it. So normal that it wouldn't occur to anyone to try and take it away.

What Rauch is trying to get at is the securing for homosexuality the status of a "normal identity" -- one in which their equality is so natural that it need not be remarked upon, and where the natural flow of social and political channels will regulate matters of sexual orientation in a manner which, if not agreed upon by all, at least is not viewed as something extraordinary.

Needless to say, we are not there yet. And Rauch makes a huge mistake by jumping the gun. Indeed, part of being a normal identity is that one can insert yourself into the political process and secure benefits (same as other groups do as a matter of course), so it is antithetical to the notion to throw up barriers to a group's particular political ambitions. That is to say, it is not necessarily the case that a "normal identity" never receives protective measures, it is simply that if they do so it isn't seen as any more remarkable than, say, dairy farmers gaining legislative protections -- we might debate about it or oppose particular proposals, but it is not viewed as a high stakes deviation from politics-as-normal.

In sum, I see the appeal of Rauch's endpoint. He's just wrong to force the issue.

A Few Thoughts on Today's Race-Related SCOTUS Cases

The Supreme Court released three race/discrimination decisions today. The most prominent, Fisher v. University of Texas, also turned out to be the least meaningful -- the Court just remanded to the 5th Circuit to properly apply the strict scrutiny test. The second, Vance v. Ball State University, narrowed the definition of who is a supervisor for purpose of Title VII harassment claims. Finally, in University of Texas Southwestern Medical Center v. Nasser, the court tightened the causation requirements for retaliation claims made under Title VII. Some scattered thoughts below:

* Everybody thought Fisher would be a death knell for affirmative action. Instead, we got a very narrow decision that remanded to the 5th Circuit. I'm fine living to fight another day. And Justice Kennedy continues to confound -- he has yet to uphold a race-conscious affirmative action program, but he has also steadfastly refused to write an opinion closing the door to them entirely.

* Justice Scalia has been on the Supreme Court since 1986. Justice Thomas has been on the Supreme Court since 1991. Both have been the Court's highest profile exponents of constitutional "originalism," and both have also been the Court's primary cheerleaders for a "colorblind" constitution. Yet in all their years on the Court, these two good ships have yet to cross paths. Both Justices wrote concurrences in Fisher (Thomas' was more substantive), and that streak remains intact: Neither Justice has yet attempted to render an originalist justification of constitutional colorblindness.

* Part of Nasser's justification for the heightened causation requirement is the Court's worry about frivilous lawsuits, which the Court wants to see dismissed at summary judgment (pp. 18-19). This is infuriating on several levels. First, I'm not convinced there is any higher risk of frivilous filings in the retaliation context as in anywhere else. As I've argued earlier, there are good reasons to believe that persons do not bring discrimination cases unless they have a strong suspicion that they have been unjustly terminated. Second, there is a fair amount of evidence that people (judges included) are in fact too prone to dismiss discrimination claims as unwarranted because it interferes with their desire to view the world as just. This risk is amplified when there are other factors which could (but do not necessarily) explain the adverse decision (see the work of Katie Eyers on this).

Third, the problem of frivilous lawsuits shouldn't really be affected by this decision because the type of evidence which could support a jury verdict that an unlawful motive contributed to an adverse employment decision is no different than that which could support a verdict that it was the but-for cause of the decision. Once evidence is presented that retaliation was "on the mind" of the decision-maker, it is seemingly for the factfinder to decide how much of a role that factor played vis-a-vis other potential justifications for the adverse action. Nor will plaintiffs be able to self-regulate, because informational asymmetries prevent them from knowing their claim is precluded by a but-for cause defense. A plaintiff has only a limited ability to divine what is truly on the mind of her employer or detailed personnel records providing a basis for comparison. What an employee knows, generally, is (1) the fact of a discrimination complaint, (2) the response of the employer (presumably negative), and (3) the fact of the adverse action. In other words, she can know with some degree of certitude that her initial complaint was on the mind of the decision-maker when the alleged retaliatory decision was made, but has little knowledge of whether it was a but-for cause. Hence, we're likely to see more cases filed that end up being nowhere near the legal dividing line between good and bad cases, not because of plaintiff bad faith, but because of asymmetrical knowledge.

Pryor Restraint, Part II

What is going on in Birmingham? I just wrote a post about how Judge Bill Pryor, known as one of the more conservative judges on the 11th Circuit, keeps on joining surprisingly liberal opinions (I attributed this to the presence of a friend of mine who is currently clerking for him). And here is another one, perhaps the most shocking of all, since it flatly reverses an opinion by the same panel.

The case is one I commented on before, centering around whether calling a Black employee "boy" is evidence of racial animus in an employment discrimination case. The 11th Circuit had previously ruled "no", and was reversed by the Supreme Court. Then on remand, it answered "no" again (with respect to the facts of this case), and remanding the case for a new trial. And now, the trial having been completed again, with another verdict for the plaintiff, the 11th Circuit has finally caved, vacating its last opinion and upholding the verdict (save for the punitive damage award).

The New York Times observes that the opinion of the court reads more than a little begrudging (Pryor did not author this opinion), taking it upon itself to chastise an amicus brief by a group of civil rights leaders and concluding that the "verdict could have gone either way, and it went Hithon's way." But still, wow. It's rare to see a panel reverse itself like this, and a serious pattern with Pryor is emerging.

The question is whether it will continue without my secret agent in his chambers. Only time will tell.

Just Why Do We Have Employment Discrimination Laws?

A provision in President Obama's proposed American Jobs Act would prohibit employers from discriminating against prospective employees on the grounds that they are currently unemployed. This is in response to reports that some companies are limiting job openings by explicitly turning away job-seekers who are not currently employed elsewhere.

In the Washington Post, Charles Lane takes aim at the proposal, with a hearty concurrence from Jonathan Adler. While I don't have a strong opinion yet on the provision itself (having just learned of it), I have to say I find Lane and Adler to be very unpersuasive critics. Both, in my view, give a short-shrift to the purposes that underlie employment discrimination law -- narrowing its ambition in ways that would not just obviate the need for an "unemployment discrimination" provision, but many other anti-discrimination provisions they claim to support.

Lane makes the case that for some firms in some cases, it is perfectly rational to discriminate on basis of immediate past employment history. For example, a company might prefer a candidate who is up to date on current trends in the industry versus one who would need time to get up to speed. Consequently, we should be reluctant to "assign malicious intent without a lot more specific information", and trust the market to punish firms that do discriminate in an inefficient manner.

Lane's argument could be (and sometimes is) used against all employment discrimination laws (if it's really irrelevant, the market will solve, otherwise, it's rational market choice and should be left alone). Adler at least makes an effort to preserve some of them by analogizing to racial discrimination, where, for much of our nation's history, a company who attempt to hire in a non-discriminatory fashion would be beset by boycotts, intimidation, and violence. Even though racial discrimination is inefficient and race is not relevant to job qualifications, it would persist because no company could break from the status quo and hire racial minorities without incurring huge costs. Employment discrimination laws are justified in such cases to solve a first mover problem (and, notably, companies would prefer such a law to be in place for that very reason).

The first problem with this distinction is that it probably doesn't apply today -- it seems unlikely that in 2011 a company which did hire Blacks would face a coordinated campaign of violence and intimidation as a result -- which means it is hard for Adler to avoid arguing that employment discrimination law as a whole has passed its prime and should be repealed (which maybe he does think, I don't know). But in any event, the second, larger problem is that it doesn't even touch on a different rationale behind employment discrimination laws: that certain sorts of appraisals should be restricted even where they're arguably relevant, either because they're morally inappropriate or because we believe whatever efficiency gains might exist from a free market system are outweighed by the damage done to the discriminated-against group member and general American values of inclusion.

The obvious example on this front is discrimination on basis of disability. One clearly can think of many cases where disability is relevant in an employment decision; and far more where it is isn't so clearly irrelevant so as to demand an inference of "malicious intent". Nonetheless, we bar it anyhow, both because we think the harms it imposes upon the disabled outweigh whatever efficiency gains would manifest from an open market, and because we've made an assessment that such discrimination is morally suspect as a general rule. The ADA, of course, has not been an economic catastrophe -- whatever economic losses it has created by barring "efficient" discrimination we appear happy to absorb as a cost for a more inclusive American society.* Meanwhile, we don't have the ADA because we think employers are malicious -- this is the misleading strawman that tells us that for their to be discrimination, there must be some villain cackling about how much he hates minorities. Not at all -- we often have anti-discrimination laws not because there are evildoers who need to be warded off, but rather because there is a maldistribution of opportunity in our society that we view as unfair.

Now, one element of disability discrimination law (indeed, most employment discrimination provisions -- race is a notable exception) is that if an employer actually can prove that the disability is relevant to bona fide occupational qualification (BFOQ), then that is a valid affirmative defense. So we don't even ban this sort of "efficient discrimination", we just force employers to back it up. This defense apparently is incorporated into the proposed unemployment discrimination provision. Indeed, it appears that provision is stricter still -- barring such discrimination only when it was the sole rationale for the employer decision (thus giving a pass to "mixed motive" cases, where employment status was one reason among others for the employer's decision).

Lane recognizes these caveats but darkly warns that they'll be "endlessly litigated before settled case law emerged" and thus will act as a deterrent to company hiring (Adler concurs). This is unlikely: as noted, the provisions parallel already extant statutory rules in Title VII. Far from being a judicial blank slate, it overlays itself upon anti-discrimination rules that are quite settled and well-known to HR professionals -- they stand out only in that they track the weakest threads of contemporary anti-discrimination law. It would be difficult to imagine a new regulation that would be more easily absorbed by the business community. Adler's assumption that companies will simply avoid hiring people at all for fear of being sued under the new provision seems more than a little melodramatic.

* It is also possible that there is a separate sort of first mover problem being solved here, where it was irrational for any one firm to recalibrate itself to be inclusive towards the disabled but a net utility boost could come once we unlocked the potential of a hitherto underutilized segment of our society. One thing that I think capitalism does very well is that it is adaptable to varying sets of constraints: when a new restriction is imposed, firms don't throw up their hands and give up, they look for new ways to create wealth and utility consistent with the new regime.

French Connection

A new study reveals intense bias against French Muslims of Senegalese descent in the French job market (and a milder one against Christians of Senegalese descent). The study was modeled off the famous Are Emily and Greg More Employable than Lakisha and Jamal? study, which revealed similar (racial) biases in American labor markets. However, this topic is considerably less-studied in France because of that nation's near-fanatical devotion to "colorblindness" and the pure secular state. As this study pointedly demonstrates, that policy is an abject failure.

Bedroom Antics

Thanks in part to pressure from New York AG Andrew Cuomo, American Eagle will stop discriminating against trans employees by dropping a requirement that employees wear "gender-specific clothing". Great news, you say? Well, you're not the FRC (thank God):

"ENDA, what might be more appropriately called 'The Cross-Dresser Protection Act,' takes the bedroom into the workplace and unfairly burdens employers to know about their employee's sexual lives. This major expansion of federal power over the workplace places an unnecessary burden on small businesses and local communities.

First, as Vanessa notes, this reveals absolutely nothing about any employee's "sexual lives". Knowing that an employee is trans (or a "cross-dresser") doesn't say anything about one's sexual practices (including whether one is gay, straight, or bi). It's the FRC that is sexualizing this, not anybody else.

But even taking the FRC's misguided analysis at face value, what it boils down to is that employers will be "burdened" by the knowledge that someone that they talk to might be ... having sex? Having teh gay sex? Whatever it is, I'm not sure how this abstract knowledge rises to the level of cognizable harm.

Domination

A new study indicates that women in supervisory positions are most likely to experience sexual harassment at work. This is counterintuitive to the popular view that sexual harassment is most often perpetuated against women who are in marginal positions, exploited by superiors who can dangle their livelihoods in front of them. Rather, as the study authors indicate:

“This study provides the strongest evidence to date supporting the theory that sexual harassment is less about sexual desire than about control and domination,”said Heather McLaughlin, a sociologist at the University of Minnesota and the study’s primary investigator. “Male co-workers, clients and supervisors seem to be using harassment as an equalizer against women in power.”

Via. Score one for the second-wave.

2,000 Words

The story of the respective passages of the Partial Birth Abortion Ban, and the Ledbetter Fair Pay Act, as told in two pictures.

"Robinson Rule" Followup

Apropos my post a few weeks ago on the dearth of Black coaches in NCAA football, the Sports Law Blog has a fascinating post delving into even more detail and giving some excellent context to the situation (via).

One interesting factoid was that, of the seven Black coaches in the NFL (out of 32 total positions), four of them were listed by players as among the top five coaches they'd like to play under (Tony Dungy (1st place); Lovie Smith (2nd place); Herm Edwards (4th place); and Mike Tomlin (5th place)). There are several ways to interpret this data, but my intuition would simply be that -- even in the NFL, which has made strides at diversifying its coaching ranks -- if Black coaches want to get and keep a position, they better rock peoples socks off. There is no room for average when you're African-American.

Civil Rights Roundup: 10/09/08

Your daily dose of civil rights and related news

It's election time, and you know what that means: illegally keeping eligible voters off the rolls!

Polling places may not have the resources to handle the expected crush of voters this election.

The Supreme Court is examining whether employees who cooperate in discrimination and harassment cases, but are not the complaining parties themselves, are protecting via anti-retaliation provisions.

A federal appeals court has blocked the release of 17 innocent men being detained at Guantanamo, pending a hearing by that court.

Not only was the torture regime developed at Guantanamo exported to American prisons, but some officials worried that the tactics used domestically were actually "harsher" than those at our Cuban base.

High fuel prices mean its harder to run school buses. Not running buses means kids only go to their neighborhood schools. Neighborhood schools lead to school resegregation. Resegregation means students suffer.

An Iowa resident crossed into Nebraska to take advantage of the state's extremely broad "safe haven" law, abandoning her 14 year old daughter to state authorities.

A federal judge is urging immigration authorities to hold off deporting a man until his civil case against the Boston Police concludes. The man served 19 years in prison for rapes that he did not commit.

Another immigration raid, another town torn asunder.

The Cook County (Chicago) sheriff has ordered his deputies to cease evicting people, arguing that many of the evicted are renters who have done nothing wrong -- victims of landlords whose properties are being repossessed.

The Ohio Supreme Court has rejected an appeal by a death row inmate arguing he's too fat to be executed. The argument is that his girth will make it too hard to find a vein insuring the execution is done quickly and painlessly.

It's looking as if minority college enrollment is stalling out. In an amazing coincidence, affirmative action efforts have also been stalling out or proactively rolled back in recent years.

Another Virginia paper comes out in favor of re-enfranchising ex-felons.

The Department of Justice has checked -- for now -- efforts by a Georgia county's election officials to investigate the citizenship of voters whom the county had suspicions about.

Civil Rights Roundup: 10/01/08

Your daily dose of civil rights and related news

The former police chief of Gary, Indiana has been found guilty of civil rights violations after kicking a suspect during a raid.

A Michigan commission has thrown out disciplinary charges against a member of the state's board of canvassers who had opposed certifying a initiative that successfully banned affirmative action.

The Supreme Court will not rehear its decision striking down the use of the death penalty in child rape cases.

Large numbers of the House Black and Hispanic caucuses revolted against the failed bailout bill, alleging that it was insufficiently geared to suffering middle and working class voters.

The Justice Department is filing suit against the DC Metro after it allegedly refused to hire an applicant on basis of religion. The complaint alleges that the woman was rejected because her religious requirements demanded she wear skirts, while the uniform requirement for bus drivers is pants.

The federal government is taking over a case where police shot allegedly unarmed Katrina victims on a bridge leading out of New Orleans.

A jury found Eric County liable in a prison rape case.

Illegal immigrant arrests on the Mexican border are way down, but nobody knows if its the result of better deterrence or worsened enforcement.

A private immigration facility hired guards without giving them required background checks, then lied about it.

A fight is breaking out in a tony New York community over whether local Orthodox Jews can construct an eruv, or religious boundary, which would allow them to complete minor tasks on Shabbat. Basically, the boundary allows the Jews to religiously claim they are not going outside, skirting some Sabbath prohibitions.

Three civil rights groups are alleging that disabled students in Hillsborough, Florida schools are being neglected.

The fight to overturn Florida's unique (and atrocious) law prohibiting gay couples from adopting continues to progress through state court. Previous coverage on the local state court ruling here, and on a federal ruling several years ago here.

Civil Rights Roundup Returns! (09/30/08)

Okay, here's the scoop everybody. The civil rights roundup is back. But it will be on a significantly modified schedule. For starters, this is likely the only Tuesday you'll see it, as I have class with only a lunch break straight through from 9:45 - 4 that day. Most days, though, a probably abridged roundup will show up by mid-afternoon.

And with that, away we go!

The trial of a South Carolina state trooper accused of ramming a fleeing suspect with his car has begun.

A group of pastors gave political sermons in an effort to provoke a showdown over whether the IRS can withhold tax-exempt status to religious bodies which engage in political activity.

A prosecutor has been appointed by Attorney General Michael Mukasey to continue the investigation into the US Attorneys firings.

Early voting has been approved in Ohio.

The NAACP claims racial profiling is on the rise in the Seattle area.

Civil rights leaders are targeting Greenbelt, Maryland's at-large election system as diluting the power of Black voters.

A Montana woman whose same-sex partner adopted a child has gained parental rights, a first in Montana.

The Governor of Colorado has come out against the efforts to ban affirmative action in that state.

A Lowell man has plead guilty to hate crimes after beating someone due to his perceived sexual orientation.

A sex discrimination case against major glass manufacturer will move forward after the presiding judge rejected a motion to throw out the case.

Smaller school districts are beginning to encounter the language barrier.

Efforts to register veterans are foundering on a mess of red tape. But maybe they're "phony veterans" anyway?

This Boston Herald story commits the typical universalist fallacy of assuming Whites' views of Blacks, and Blacks' views of Whites are equally groundless.

American Airlines has endorsed the Employee Non-Discrimination Act. And here comes another boycott!