What Do You Think: Is Veganism a Religious Creed?

For our next employment law class, this is one of the issues we’ll take up. A health care worker was offered a job with a hospital system, contingent on being vaccinated. He refused because vaccines use chicken embryos, thus implicating his vegan beliefs. The hospital system withdrew its offer, and he sued. Here is a summary of his complaint:

“As a strict Vegan, [plaintiff] fervently believes that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing and the testing of product safety for humans, and that such use is a violation of natural law and the personal religious tenets on which [plaintiff] bases his foundational creeds. He lives each aspect of his life in accordance with this system of spiritual beliefs. As a Vegan, and his beliefs [sic], [plaintiff] cannot eat meat, dairy, eggs, honey or any other food which contains ingredients derived from animals. Additionally, [plaintiff] cannot wear leather, silk or any other material which comes from animals, and cannot use any products such as household cleansers, soap or toothpaste which have been tested for human safety on animals or derive any of their ingredients from animals. This belief system[ ] guides the way that he lives his life. [Plaintiff’s] beliefs are spiritual in nature and set a course for his entire way of life; he would disregard elementary self-interest in preference to transgressing these tenets. [Plaintiff] holds these beliefs with the strength of traditional religious views, and has lived in accordance with his beliefs for over nine (9) years. As an example of the religious conviction that [plaintiff] holds in his Vegan beliefs, [plaintiff] has even been arrested for civil disobedience actions at animal rights demonstrations. This Vegan belief system guides the way that [plaintiff] lives his life. These are sincere and meaningful beliefs which occupy a place in [plaintiff’s] life parallel to that filled by God in traditionally religious individuals adhering to the Christian, Jewish or Muslim Faiths.”

A California appeals court rejected his argument, concluding:

There is no allegation or judicially noticeable evidence plaintiff’s belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith.

There is no apparent spiritual or otherworldly component to plaintiff’s beliefs. Rather, plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one’s life based on that perspective. While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.

Second, while plaintiff’s belief system governs his behavior in wide-ranging respects, including the food he eats, the clothes he wears, and the products he uses, it is not sufficiently comprehensive in nature to fall within the provisions of regulation 7293.1.

Third, though not determinative, no formal or external signs of a religion are present. There are no: teachers or leaders; services or ceremonies; structure or organization; orders of worship or articles of faith; or holidays.

What do you think? Share your views with me on Facebook.

Earlier this year, Ontario took a more expansive view of this question.

"Creed may also include non-religious belief systems that, like religion, substantially influence a person's identity, worldview and way of life."

….

For example, the policy recommends that a person in a hospital facility who has a creed-based need for vegetarian food be provided with appropriate food by the facility. Other examples include:

•             A university or school would have an obligation to accommodate a biology student who refuses to perform an animal dissection because of her creed.

•             An employer would have an obligation to accommodate an employee who cannot wear an animal-based component of a uniform, like leather or fur, based on his creed.

•             An employer must ensure corporate culture does not exclude a vegetarian or vegan employee, such as holding regular company networking events at a steakhouse, instead of providing additional, inclusive opportunities.

American Revolution, 2016?

If the tone and direction of American politics unnerves you, you’ll be even more concerned when you read about the Three Percenters.

The following is a quote from Political Research Associates, a group that tracks extremists movements in America. It also sheds light on why the Second Amendment is paramount to extremists-- to enable armed resistance to elected government.

The Three Percenters were co-founded in late 2008 by Mike Vanderboegh, who was active in 1990s Alabama militia groups. Vanderboegh has said, “The Three Percent idea, the movement, the ideal, was designed to be a simple, powerful concept that could not be infiltrated or subjected to agents provocateurs like many organizations that I observed in the constitutional militia movement of the 90s.” Along with the Oath Keepers, the Three Percenters are part of a new wave of Patriot movement groups that are successors to the militia movement of the 1990s and have had a dramatic rebirth since the 2008 election of Barack Obama to the presidency.

Ideologically, the Three Percenters are similar to the better-known Oath Keepers, a Patriot movement group of current and former military, law enforcement, and first responders. The Oath Keepers claim to “defend the Constitution,” and interpret this as a commitment to right-wing social and economic views of the kind usually associated with the John Birch Society. The Oath Keepers promote conspiracy theories that claim that the United States is a socialist government intent on disarming the population so that a foreign government can invade. They are committed to a libertarian view of private property that opposes most federal land ownership or restrictions on private use for environmental or other reasons.

Three Percenter co-founder Vanderboegh is well known for his violent rhetoric. In 2010, he called for breaking the windows of Democratic Party offices, and a slew of such attacks followed. He called for armed resistance to Obamacare and has published personal information about the families of legislators who voted for gun control measures....

He also called Oregon Governor Kate Brown and others in the state government “tyrants” and “domestic enemies of the Constitution,” before saying, “this country has long had a remedy for tyrants—a second amendment remedy. So be careful for what you wish for, Madam—you may get it.”

....

Numerous arrests of Three Percenters and those who have shown affinity with them have been documented. 

Allen “Lance” Scarsella, who was arrested in connection with the shooting of five people at a Black Lives Matter demonstration in Minneapolis in November 2015, showed an affinity for the Three Percenters. 

So did Jerad Miller, who was at the Bundy Ranch before he and his wife, Amanda, were involved in a June 2014 ambush of police officers and subsequent shootout that left five dead, including the Millers. 

Three Percenter Brad Bartelt threatened to detonate a homemade explosive on Arkansas State University’s campus in December 2015. 

Bran­don D. Gibbs, who was heavily armed and armored when police arrested him in December 2014 for threatening a city official, also had shown an affinity for the Three Percenters. 

And in 2011, Frederick Thomas was arrested in Georgia as a member of a militia group, which “planned to attack cities including Atlanta with deadly ricin, bomb federal buildings and murder law enforcement officials and others.” 

For more, read here and here. 

If You’re Injured Due to Fright at a Haunted House… Tough Luck

If you pay to visit a haunted house, you assume the risk of injury.

Consider Griffin v. Haunted Hotel, Inc. (2015). A patron proceeded through the various “haunts” and thought the tricks were over when he headed to the marked exit. Wrong. An actor popped out with a real chain saw—minus the actual cutting chain— that was revved-up and swinging toward him. Griffin freaked out, ran, and was injured.

The trial and appellate courts ruled that haunted house patrons assume frightful risks while they engage in the activity. 

Why You Should Be A Video Game Voice Actor!

Pop quiz: Which industry— professional football (NFL) or video gaming—has greater annual revenue?

Okay, you chose video gaming even though you really think it’s the NFL (I would, too).

Last year the NFL brought in about $13 billion in revenue. Video games (just in the U.S.) brought in $26 billion!

Voice actors make about $800 for a 4-hour session. They are represented by a union (Screen Actors Guild, SAG).

Voice actors went on strike to win “residuals” from sales of games with their voices—in other words, they want a piece of that $26 billion pie.

Thanks to my LER student for the heads-up on this interesting story!

Remembering Lou Boudreau, HOF Indian-Cub-Illini

This is a wonderful time to celebrate the life of a great Illini, Cleveland Indian, and Chicago Cub, as told by the Baseball’s Hall of Fame.

If, like me, you miss Lou’s radio/TN voice, here’s a brief clip, reporting a Dave Kingman homer. Click here for brief video.

“This is reaching the top. That’s what we all strive for no matter what profession we’re in. I feel that my life is fulfilled now.” Lou Boudreau on his induction to the Hall of Fame

Lou Boudreau did it all in baseball—he played, managed, and broadcast. He was an excellent defensive shortstop and a punchy hitter. After one game in 1938 and 53 games in 1939, Boudreau became the Indians regular shortstop in 1940, hitting .295, driving in 101 runs, and leading the AL in fielding percentage for the first of ten consecutive seasons.

In 1942, the Indians shocked the baseball world by hiring their 24-year-old shortstop as a player-manager. Boudreau would continue in that role through 1950. In 1946, he devised the “Williams Shift,” sometimes known as the “Boudreau Shift,” placing all of the infielders on the right side of second base and leaving only the left-fielder across the diamond, in an attempt to stop the pull-hitting Ted Williams. Williams obstinately continued to pull the ball, and acknowledged that the shift hurt him. Williams did hit an inside-the-park homer in the game that clinched the 1946 pennant for Boston.

Few players (or managers) ever had a better season than Boudreau did in 1948. “That year, Lou Boudreau was the greatest shortstop and leader I have ever seen,” said Hall-of-Famer Bill McKechnie, a coach with the club. The Indians went 97-58, while Boudreau hit .355 with 106 rbi, a career-high 18 home runs, and struck out only 9 times in 560 at-bats.

The Indians and the Red Sox finished the regular season tied, necessitating a one-game playoff at Fenway Park, in which Boudreau went 4 for 4—homering twice. The Indians went on to beat the Braves in the World Series, and Boudreau picked up the AL Most Valuable Player Award.

Boudreau moved to the Red Sox for the 1951 season, and was a player manager for the club in 1952, his final season as a player. He managed the Sox for two more seasons, before taking over the Kansas City Athletics from 1955-57.

In 1958, he moved to the radio booth for WGN and the Chicago Cubs. In 1960, he was involved in a most unusual “trade,” switching placed with Cubs manager Charlie Grimm. Grimm went up to the radio booth, while Boudreau took over as manager. In 1961, he was back on the airwaves, where he remained with the Cubs until 1988. Boudreau was elected to the Hall of Fame in 1970.

“He had terrific instincts and was a great competitor," said his Hall-of-Fame teammate Bob Feller. “As a player-manager, he became so good that he went as far as calling pitches from shortstop. He was always thinking, always in the game.”

How Clinton Could “Save” Companies from the Death Penalty in Immigration

For employers, the main immigration law is IRCA—the Immigration Reform and Control Act. It requires, for example, that employers verify the eligibility of prospective employees to work. IRCA has a “savings” clause. It means that federal immigration law doesn’t apply to matters ordinarily reserved to states, such as “licensing.”   

Immigration hardliners have spent the past decade exploiting the licensing exception to federal immigration law. Take Arizona, which requires employers to use the federal E-Verify system—and if not, the company, upon its second violation, will be barred from doing business in that state, permanently.

Let’s think about how that might work. Let’s say at one McDonald’s location, a manager fails to use E-Verify and hires an unauthorized worker. McDonalds is subject to state-imposed penalties and must make quarterly reports to Arizona. Let’s say a second violation occurs at another McDonalds owned store.

McDonalds would get the death penalty from Arizona. Remember, to run a restaurant, the business needs approval from a state or local entity. Such is the silent power in exploiting IRCA's licensing exception.

These aren’t my words—they’re used in the court rulings. You might think that a Latino group or labor group sued to overturn the law. 

No. The complainant was the U.S. Chamber of Commerce! This business group argued that the penalty provisions of the law were far too harsh given the nature of the offense—and this penalty scheme could cause large employers to avoid siting work in Arizona.

The Supreme Court, in U.S. Chamber of Commerce v. Whiting, upheld the law as a valid exercise of state power under IRCA.

Why talk about this now? A Clinton victory and Democratic control of the Congress seem possible.

The current election cycle has unleashed powerful anti-immigrant voices. In “red” states, one could foresee more state legislation that ambitiously exploits the federal immigration law to undermine federal policy.

Remove the licensing law, and these anti-immigrant laws fall apart. It’s a straight-forward way to reform immigration law without getting into the tangled politics of comprehensively reforming our very messy and controversial immigration laws.   

Why Alabama and Kentucky Won't Secede Following Clinton Landslide

Suppose current polls hold up, and Hillary Clinton wins by a near-landslide. Further suppose that after the election, Donald Trump refuses to concede and doubles down on his narrative that the voting booths are rigged, thus making Clinton an illegitimate president-elect.

Would Alabama and Kentucky secede from the nation?

Hold that thought for a moment. 

Alabama has the #1 college football team in the nation—not in Alabama, but the nation. Ditto the Kentucky Wildcats for basketball. 

How long could a secession conversation go on without the NCAA weighing in by stating that it is an association of American universities? If a state secedes, it’s no longer in America; and its state university cannot compete in college athletics.

If you’re still reading, we can agree that this is totally absurd … until we think about the on-going transgender-bathroom controversy in North Carolina. 

Now seriously, a year ago could we imagine that a North Carolina law would bar transgender choice of a bathroom, and as a consequence, the NBA would drop Charlotte for the All-Star game, and the NCAA and the ACC would drop North Carolina venues for championships?

A year ago, I would have rated that in the realm of the absurdly improbable.

A lot of unpredictable events in politics and sports have occurred in a short time. Perhaps we’re on a path where people will need to choose between passion for a college championship and remaining in the United States.

Immigration is Now a “Minor” Problem

Kudos to NBC News for highlighting an immigration trend that largely escapes discourse in our elections and news. For more, click here.

Myth: Mexicans are pouring across the border to take jobs, and smuggle drugs and people.

Fact: Since 2012, there has been a surge of minor immigrants fleeing gang violence and disorder. They come primarily from Honduras, Guatemala, and El Salvador. There is now a net outflow (decrease) of Mexicans due to hostility in the U.S. and better economic conditions in Mexico.

Myth: All illegal immigrants evade border patrols.

Fact: Usually, these children turn themselves in immediately to border authorities and request asylum.

Myth: These Central American immigrants are here to take away jobs from Americans.

Fact: They are seeking shelter, education, and a path to U.S. citizenship.

Myth: Donald Trump asserts that the U.S. has 30 million illegal immigrants.

Fact: U.S. immigration officials estimate the figure at 12.2 million, while the Pew Foundation estimates the figure at 11.1 million. In 2014, the combined total of Central American children crossing the border was about 50,000.
Myth: This information is rigged.
Fact: This information is based on estimates, not precise figures, from several organizations that are objective and expert in tracking immigration.

Should Court Deny Unemployment Benefits for Facebook Venting?

Joseph Talbot worked at Desert View Care Center  as a nurse and was discharged due to a Facebook post that Desert View found violated its Social and Electronic Media Conduct Policy 

Talbot posted the following on Facebook:

Ever have one of those days where you'd like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn't have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I'll be greeted by a deluge of insults.

A nursing professor who was one of Talbot's Facebook friends saw the post and e-mailed Desert View the next day to express her concerns about resident safety. Talbot said he was just frustrated and venting.

Talbot was fired and applied for unemployment. Initially, he was approved for benefits. On appeal, the Idaho supreme court denied him benefits.

The majority opinion reasoned: "A person is not entitled to unemployment benefits when “he was discharged for misconduct in connection with his employment.” I.C. § 72–1366(5). The burden is on the employer to prove by a preponderance of the evidence that the discharge was for employment-related misconduct. Employment-related misconduct is (1) a willful, intentional disregard of the employer's interest; (2) a deliberate violation of the employer's reasonable rules; or (3) a disregard of a standard of behavior which the employer has a right to expect of his employees."

The dissenting opinion reasoned that the employer’s social media policy did not apply to off-duty employee comments about patients. The two dissenting justices thought the following language from the company’s media policy was too vague to put Talbot on notice for this particular comment: “As with the conduct expected of employees at their worksite, employees will at all times avoid slanderous, vulgar, obscene, intimidating, threatening or other bullying behavior electronically towards any of the groups identified above or towards other facility stakeholders.”

If You’re a Woman, You’re Probably Not "Leaning” In Like Men Due to Commuting: Some Ideas

Does your employment involve commuting time? Sure (as long as you’re not working at home). A University of Chicago study found labor force participation rates of married women correlate negatively with commuting time. Why did the study focus on married women? Because they are the most likely population to have child-rearing duties.

Common sense validates the study. How many men pass on a job because it has travel, some of it involving long commutes or time from home? Some, certainly. But for moms and moms-in-planning, that’s more problematical.

The study concluded: “married women’s labor force participation decisions appear to be very responsive to commuting times. There is a strong empirical evidence across three decades that demonstrates that labor force participation rates of married women are negatively correlated with commuting time.”

Meghan Walsh’s interesting article, “Commuting: The Real Reason Women Don’t Lean In,” offers good anecdotal evidence to support the Chicago study. She writes: “Commuting disproportionately limits and stresses out women compared to men. From restricting job prospects to requiring aviationlike coordinate plotting, daily travel pressures are wearing women down.”

Could employers improve on this? Maybe. An employer who wants to employ the best female talent might develop some way to allow women to be honest about this fact-of-life, and find solutions that address this interest. Relatedly, an employer might allow a market based solution by paying a premium for employees who choose assignments that involve travel. This would be tricky because it would tend to lower female pay relative to males—but given that young men today are seeking work-life balance more than 30 years ago, it might be worth a try as more men opt for the same choice as women.  

Map of Hate Groups: The “Fringe” Is More Common

For an unsettling experience, visit the "Map of Hate 892 Groups" that is being tracked by the Southern Poverty Law Center. Click here for the map. 

The map is interactive. I clicked by a nearby neo-Nazi group (in Indiana). Here is a sample of its message:

“All non-White immigration must be prevented. We demand that all non-Whites currently residing in America be required to leave the nation forthwith and return to their land of origin: peacefully or by force.”

….

“When … you take a German Shepherd and mix him with a Golden Retriever you have a worthless animal that nobody wants and that isn’t worth anything if you’re trying to breed him or sell him. … [T]hese degenerates that allow their children to race mix and this sort of thing, they’re destroying the bloodlines of both races.” [Picture of the group is below.]

Fired for Sleep Apnea? The Case of an Overweight Truck Driver with a Safe Driving Record

It's okay, according to a federal appeals court ruling (yesterday).

Crete Carrier Corp. employed a driver Robert Parker, who refused a sleep study in 2013 as part of Crete’s safety program. The program requires drivers with a BMI of 35 or greater to have an in-lab sleep study. Parker sued, alleging that the company violated his rights under the Americans with Disabilities Act.

The court noted that employers are authorized under the ADA to conduct medical exams to identify whether employees “can perform job-related duties when the employer can identify legitimate, nondiscriminatory reasons to doubt the employee’s capacity to perform his or her duties.”

The court said: “Crete established… [that] sleep apnea tends to impair driving skills, increasing [drivers’] risk of motor vehicle accidents by 1.2- to 4.9-fold. A sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis,” the judges wrote. “The sleep study requirement is job-related because it deals with a condition that impairs drivers’ abilities to operate their vehicles. It is consistent with business necessity.”

Adding to the court’s conclusion, the Federal Motor Carrier Safety Administration’s Medical Review Board recommended this year that the agency institute a rule to require truckers who meet certain requirements — such as an elevated BMI — to be required to undergo apnea screening.

Do you agree with the ruling?

To jog your thinking, here are some pro and con arguments:

Pro: The ADA allows medical testing of employees, as long as there is a business justification. On occasion, truck drivers who nod off at the wheel are involved in deadly accidents. The employer’s goal is nothing more than safety.

Con: Parker was fired because of a statistical chance that he could cause a fatal accident. But he had a safe driving record—so he was fired for fitting a profile of an overweight person. Other factors may correlate more highly with fatal accidents— for example, poor eyesight, age, time of day, equipment, driving conditions, and others. One implication of the ruling is that thin drivers who haven’t had their vision checked for 20 years are cleared for more driving, while Parker was fired for an assumed condition. Question: If women truck drivers, or black truck drivers, are involved in twice as many fatal wrecks as white males, is it lawful for a company to fire a driver because of the driver’s race or gender? I doubt it but can't be sure.

There’s No Denying Denialism

The Washington Post is featuring a special edition, “Truth or Denial.” Read it, here.

Two main points: 1. At different times in history, people have denied uncomfortable truths. 2. We are in a period of surging denialism.

Here is the timeline:

1633: People reject Copernicus’ view that the earth orbits the sun because the Catholic Church insisted that earth was the center of the universe.

1849: A British writer, Samuel Birley Rownbotham, revives the then-long long repudiated idea that the earth is flat. His writing spawned a movement that led to the Flat earth Society (1956).

1925: Evolution theory is made illegal. Tennessee passed a law that criminalized the teaching of evolution. That led to the conviction of John Scopes.

1945: A Japanese soldier who was sent to fend off Americans in the Philippines was captured. He insisted that the war was not over for the next 30 years when his former commanding officer relieved him of his duties.

1989: Auschwitz denial: A pro-Nazi historian, David Irving, started a “successful” lecture tour wherein he argued that the death camp was a hoax. It has led to a contemporary movement of followers.

1994: Nicotine isn’t addictive, according to seven CEOs of tobacco companies who testified before Congress.

1998: A research article concludes that vaccines cause autism. It turns out the research was based on fraud and conflicts of interest, and many studies have debunked this finding. Still, there is a widespread movement that opposes vaccines on these grounds.

2000: Poverty causes AIDS. South African president Thabo Mbeki denied the scientific proof that HIV causes AIDS.

2004: Iraq has weapons of mass destruction. This was the official position of the U.S. government. Contrary to this fiction, Hans Blix, the lead weapons inspector in Iraq, had said for years that Iraq did not have WMD.

2006: Americans caused the 9/11 attack. Kevin Barrett, a lecturer at the University of Wisconsin, is a leading proponent of this crackpot view.

2015: GMO foods are harmful. This is false, according to numerous studies.

2015: Humans do not cause climate change. Sen. James Inhofe (R. Ok.) testifies that the polar vortex of 2014 disproves what the consensus view of virtually all scientists.

....

2016 (my addition): Our denialist reactions to Trump/Clinton assertions in their campaigns. Yes, Hillary engages in pay-to-play politics; and yes, Donald sexually assaults women.

If you want to share a denial—and if I receive enough—I’ll publish these additional denials. Write to me at m-leroy@illinois.edu.

Is There a Midwestern Girl Look? Appearance Discrimination

That is the question we explore in this week’s cases on sex stereotyping in employment law. Our class coincides with Donald Trump’s suggestion that his accusers were too unattractive to merit his attention. In one case, he said: “Take a look. Look at her. Look at her words. And you tell me what you think. I don’t think so,” Trump said of Natasha Stoynoff, a People magazine reporter who alleged he had “forced his tongue down my throat.”

This offers a glimpse into a growing trend of cases involving employee allegations of “appearance discrimination” framed in terms of laws that prohibit sex discrimination. A case in point is Lewis v. Heartland Inns of America (2010), where a front desk clerk at an Iowa hotel [pictured] was fired because she did not have the “Midwestern girl look.” A federal appeals court ruled that this was unlawful sex discrimination, reasoning that companies “may not base employment decisions for jobs such as Lewis’ on sex stereotypes.” In another case, Lust v. Sealy, Inc. (2004), a different federal appeals court found remarks characterizing conduct of a woman employee as “you’re being a blonde again today” as evidence of illegal sex stereotyping on the job.

But outlawing appearance discrimination is problematical for several reasons. For one, appearance discrimination—or the flip-side, appearance preference—is so deeply engrained in human behavior that economists have measured what they call “beauty capital.” A study in 2002 led by Daniel Hammermesh (“Dress for Success—Does Primping Pay?”) found that “good-looking women, those in the top 35% of women arrayed by appearance, earn roughly 10% more than the large majority of women whose looks are considered average or below.” [If you are wondering, interviewers rated a “respondent's appearance on a 5-point scale using …: (1) Very pretty; (2) Pretty; (3) Average; (4) Below average; (5) Ugly. That, by itself, is a bit hard to accept given its subjectivity and objectification of women.] Our everyday experiences might suggest that this research has some plausibility.

The second challenge in outlawing appearance discrimination is defining what it means. In the wake of Trump’s harsh attacks on the appearance of his accusers, some people have replied that his accusers are attractive. Whatever one might think on this tricky subject, some local jurisdictions have enacted strong appearance discrimination laws.

Santa Cruz has an ordinance that defines unlawful discrimination as including differential treatment based on one’s height, weight, or physical characteristics. San Francisco prohibits weight discrimination. The District of Columbia prohibits discrimination based on personal appearance. Therefore, employers operating in the above mentioned localities must not make employment decisions based on the attractiveness or physical appearance of an applicant or employee. For employers not operating in those localities, there are some important requirements to consider before making employment decisions based on appearance.

Adding to this complexity, norms about appearance are rapidly changing. Some men wear earrings; some women wear their hair in a very short cut; some people have piercings in places that others find distracting; some older people die their hair to remove the gray, while other people wear a rainbow of colors; and some people are transitioning from one sex to another.

Donald Trump’s “locker room defense” has offended some people but also resonated with others. This implies that a significant group of people have old-fashioned, sexist norms about beauty that include crude objectification of women. Others find that any effort to rank attractiveness on the basis of gender is offensive.

It seems odd that courts will be arbiters of these issues—but it also seems inevitable.  

Employers' Regret: No Discussion of Job-Killing Costs in 2016 Election

The U.S. Department of Labor’s June 2016 report on employer costs is troubling. To begin: The wealth disparity in the U.S. has grown substantially, and 13.5% of Americans live below the poverty line. See here, at https://www.census.gov/library/publications/2016/demo/p60-256.html. 

In light of these realities, the Department of Labor employer-cost survey is alarming and surprising (unless you're an employer). Judge for yourself (quoting now from the report) (full report is here): 

EMPLOYER COSTS FOR EMPLOYEE COMPENSATION – JUNE 2016

Employer costs for employee compensation averaged $34.05 per hour worked in June 2016, the U.S. Bureau of Labor Statistics reported today. Wages and salaries averaged $23.35 per hour worked and accounted for 68.6 percent of these costs, while benefits averaged $10.70 and accounted for the remaining 31.4 percent. Total employer compensation costs for private industry workers averaged $32.29 per hour worked in June 2016. 

Total employer compensation costs for state and local government workers averaged $45.14 per hour worked in June 2016. 

Employer Costs for Employee Compensation (ECEC), a product of the National Compensation Survey, measures employer costs for wages, salaries, and employee benefits for nonfarm private and state and local government workers.

Cherry picking for the lowest cost figures, service sector employers were paid an average of $12.67 in total compensation, with $5.11 allocated to benefits (e.g., mandated health insurance).

If there is a Clinton landslide, Democrats will need to wrestle with these job-killing cost issues, while delivering on promises to raise the minimum wage sharply, legislate paid sick leave, and so forth.

Federal Appeals Court on Mike Pence’s Irrational Fear of Syrian Refugees

“The governor of Indiana believes, though without evidence, that some of these persons [refugees] were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented, however; it is nightmare speculation.” So says a recent federal appeals court opinion, written by Judge Richard Posner (appointed by Pres. Reagan).

A federal law allows money to be spent by state agencies to fund social service agencies that assist refugees with resettlement. Indiana has such a program, and funds a private group named Exodus.

But Gov. Pence ordered his state agency not to reimburse Exodus for resettling any Syrian refugees.

The appeals court’s ruling prohibits Gov. Pence and Indiana from this type of discrimination, reasoning:

“He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality. A final oddity about the governor’s position is how isolated it is. There are after all fifty states, and nothing to suggest that Indiana is a magnet for Syrians….”

Here is the court’s summary on the vetting process for Syrian refugees: “all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government…. The process can take up to two years.” Sounds like “extreme vetting” is the current policy.

Anita Hill, Clarence Thomas: Lessons from the “1991 October Surprise”?

Quoting from the October 8, 1991 (25 years ago, to the day) New York Times article (by Maureen Dowd), “The Thomas Nomination: The Senate and Sexism.” Click here for full article.

“Representative Pelosi and other female lawmakers also issued formal statements and petitions to the Senate leaders today urging that the Thomas nomination be re-examined in light of Professor Hill's accusations that, when Judge Thomas was Professor Hill's superior at the Department of Education and the Equal Employment Opportunity Commission in the early 1980's, he first asked her out, and then when she refused, he discussed sexual preferences with her and recounted scenes from pornographic movies he had seen.

"She is not an October surprise," Representative Patricia Schroeder, a Colorado Democrat, said of Professor Hill. "The times they are a' changin' and the boys here don't get it on this issue. They don't really understand what sexual harassment is and it's not important to them. They tried simply to dispense with her in short order. "Why weren't there any questions about his views on pornography by the Senators who had read that F.B.I. report?"

Women contended that the public reaction today of some of the members of the Judiciary Committee showed not only that the men did not give as much weight to the matter as their female counterparts, but that they did not understand the law.”

….

I offer this for all of us to draw our own conclusions. My initial impressions, for what they are worth:

1.       Clarence Thomas was confirmed, notwithstanding devastating testimony by Anita Hill concerning his repeated efforts to coax and coerce her to have sex on the job at the EEOC, the nation’s agency for enforcing sexual harassment.

2.       This was a signal event that caused courts and employers to take hostile work environment claims much more seriously. It was a pivotal moment for the nation.

3.       How much has our nation progressed since October 1991? That is for you and for me to contemplate today and beyond.

What Happened to the “Run Them (Blacks) Down” Law Professor?

Nothing, aside from an investigation and strong condemnation by his employer and a public apology by the professor. For many people, that is enough of a response. It disappoints me.

Here’s my thinking.

In 1919, Justice Oliver Wendell Holmes said in Schenck v. U.S.: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

Twitter allows instantaneous communication. The professor has more than 60,000 followers on Twitter. Many are drawn to his conservative perspective. His message, “Run them over,” was accompanied by a breaking news photo of black protesters unlawfully taking over a Charlotte interstate. See the photo above, and notice the car.

In my opinion, he created a clear and present danger to the protesters—and worse, it was a coded message to incite violence based on race.

The First Amendment protects ideas, even ugly ideas. That is why David Duke is able to spread his message of racial superiority of whites. That’s a rock-bottom awful idea, but it’s not an incitement to violence-- and it's therefore protected by the First Amendment. 

The professor, on the other hand, did incite his followers who were stopped on the interstate to harm these people.

One more observation. The law school could have done much less than fire the tenured professor. He moonlights as a contributor to USA Today (the paper suspended him for a month). Now, however, he has harmed the University of Tennessee’s reputation. One possibility is to deny him approval to moonlight because the university wants no association with his ideas. His tenure rights do not mean he also has a right to do columns for newspapers.

Clinton vs. Trump: What the Election Means for Wage and Hours Laws

Both candidates have fueled their campaigns with populist messages about wealth inequality. The facts back them up. Based on data drawn from the Current Population Survey 1963-2014, the top 10% of family income gradually rose from $139,677 in 1993, $163,139 in 2003, and $159,002 in 2013 (a 13.9% increase from 1993-2013). At the 50th percentile, income was virtually flat over 20 years: $54,971 in 1993, $61,318 in 2003, and falling to $56,971 in 2013 (a 3.6% increase from 1993-2013). For people in the 10th percentile, income was $12,976 in 1993, rising to $14,530 in 2003, and falling to $12,951 in 2013 (a decrease of less than .01%). Credit: Urban Institute (click here).

The official campaign website for Donald Trump states: “Hourly earnings and weakly (sic) earnings are lower today than they were in 1973.”  Except for misspelling weekly, and apart from not explaining that his statement adjusts for inflation, he is correct. He makes no direct policy suggestion to raise wages.

Hillary Clinton is not much more detailed, but her website promises to “make the minimum wage a living wage and fight for equal pay.” Her spelling is correct, however.

As for wage and hour policies, because Trump offers no hint of a suggestion, it’s hard to predict what type of change could occur.

Here is what might be expected if Clinton is elected.

Executive Order on Wage Equality: In January 2016, the Obama administration announced executive action that would require companies with 100 employees or more to report to the federal government how much they pay their employees broken down by race, gender, and ethnicity. It’s plausible that she would go further than requiring reporting of data. Recall that Bill Clinton issued an executive order, applicable to federal contractors that would bar them from doing business with the U.S. government if they hired permanent striker replacements (for more, see my article in Boston College Law Review, located here. Eventually, the order was struck down by the D.C. Court of Appeals. See here for details.
That would not necessarily deter Hillary Clinton from issuing an executive order to the multitude of companies that do business with the U.S.—ranging from selling peanut butter in federally funded school programs to making advanced computer systems for the Department of Defense— to equalize pay across gender, race, and ethnicity.
The goal is worthy but assumes that pay disparity is caused entirely by intentional practices that have disparate effects. The labor market offers fewer African-Americans and Latinos who have advanced degrees, compared to whites. An executive order that simply counts race and ethnicity without adjusting for legitimate human capital factors would not only be impractical but likely cause a leveling of pay that would undermine incentives for acquiring more training and education.

Increase in Minimum Wage: July 24, 2009 was the last time the federal minimum wage was raised under the Fair Labor Standards Act (to $7.25 per hour). Congress seriously considered raising the minimum wage in 2014 when Democrats proposed a rate of $10.10 per hour. A raft of state and local laws have raised the minimum wage. The biggest change since 2014 is Bernie Sanders’ signature success in putting the $15 an hour concept to a test for voters in dozens of primaries. His message played very well, and it therefore seems to set the stage for the next figure taken up by Congress.

Clinton vs. Trump: What the Election Means for Immigration and Employment

The election will not resolve workplace immigration issues, but it will provide major steering currents. The Immigration and National Act of  1965 needs comprehensive reform. That outcome is highly unlikely given the gulf in public opinion and differences in legislative priorities among Democrats and Republicans. The result? State regulation of immigration will grow with anti-immigrant sentiments being expressed in tougher state immigration laws (click on picture for examples). Eventually, the Supreme Court will need to define the increasingly conflicted boundary between federal and state immigration laws. In this respect, the new president's nominees to the Supreme Court could play a pivotal role.

For context, Canada’s and Australia’s immigration laws are magnets for immigrants. Their laws are meritocratic, seeking the best and most accomplished from abroad. State immigration laws in the U.S. are repellents, while federal law is motivated by a hodge-podge of “push” and “pull” values. 

Now consider the “specialty occupation visa” for H-1B visas under federal law. Currently, USCIS is authorized to grant 65,000 general-category visas and another 20,000 under the advanced degree exemption. Because these visas are for three years, and are also renewable for three more years, the annual cap understates the actual employment of these long-term but temporary alien workers. In 2012, there 152,421 H-1B visa-holders. In that year, H-1B workers were concentrated among computer occupations (71,425), engineering (13,247) and medicine (8,434).

Already, a circuit split affects these workers ("circuit split" means that federal appeals courts, arranged in geographic circuits, take conflicting approaches which leads to confusion in the law). 

In Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012), a New York law denied licenses to pharmacists who were working in the U.S. on H-1B visas. This state regulation conflicted with federal immigration law insofar as Dandamudi was lawfully permitted to work in the U.S. The Second Circuit ruled that strict scrutiny applied to the visa-holder’s equal protection claim. The court reasoned that the “statute here, which prohibits nonimmigrant aliens from obtaining a pharmacist's license in New York, is not narrowly tailored to further a compelling government interest.” 

This ruling conflicted with the Sixth Circuit’s decision in League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir.2007) and Fifth Circuit's ruling in LeClerc v. Webb, 419 F.3d 405 (5th Cir.2005). In LeClerc, a Canadian citizen who held an H–1B temporary worker visa was prohibited by a Louisiana regulation from being admitted to the state bar. The LeClerc court applied the rational basis, a permissive test that often leads to dismissal of equal protection claims.

Given the current outpouring of anti-immigrant public opinion, states could enact new and broader occupational restrictions. A vocal segment of the public blames aliens—even lawfully admitted aliens— for job losses and wage suppression. 

Under the LeClerc approach, these nativist restrictions would avoid tough scrutiny. That court looked past any possibility of anti-immigrant policy and concluded: “The State's determination that the easily terminable status of nonimmigrant aliens would impair these interests and their enforcement capacity is not irrational.” Dandamudi’s strict scrutiny approach differs, however, by viewing any law based on alienage as one that could “impermissibly interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of a suspect class.”

The next president's nominees to the Supreme Court will likely choose between these sharply conflicting approaches.

“Bitch” and Sexual Harassment: An Update

In a recent federal court decision in New York, a court ruled a jury could find that an employer’s use of “bitch” could constitute sexual harassment. Maria Valleriani quit as finance manager of a car dealership after she was subject to a torrent a sexist verbal abuse. Examples included: “go take your pills you menopausal bitch,” “stop being a bitch,” “you smell like a French whore,” “you look like shit today,” and “your hair looks witchy.” Worse things were said, too. Valleriani complained of the abuse but nothing changed—so she quit, and later claimed that she was constructively discharged (meaning she was forced to quit by intolerable work conditions). The court said: “Considering the totality of the circumstances, if Plaintiffs allegations are taken as true, a rational juror could find that Plaintiff’s workplace was permeated with discriminatory intimidation and insult to sustain a finding of a hostile work environment.”

More generally, the federal appeals court in Chicago (Seventh Circuit) has said the following about the use of “bitch” at work:

We recognize that the use of the word "bitch" has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law…. We do not hold that use of the word "bitch" is harassment "because of sex" always and in every context … . [T]he use of the word in the workplace must be be viewed in context …. But we do reject the idea that a female plaintiff who has been subjected to repeated and hostile use of the word "bitch" must produce evidence beyond the word itself to allow a jury to infer that its use was derogatory towards women. The word is gender-specific, and it can reasonably be considered evidence of sexual harassment….

Tikkun Olam: Our Babies Will Need to Repair the World

If there is one universal idea in Judaism, it is Tikkun Olam—“acts of kindness performed to perfect or repair the world.” To the babies of our nation and world, we are leaving them a badly torn world. Here is hoping that my grandbaby, Josie (pictured), and all other babies will have the strength, character, and resources to repair the world.

New York Times: “Judges Who Are Elected Like Politicians Tend to Act Like Them”

That’s the headline in this NYT article by Adam Liptak. My research article, “Open for Business: Illinois Courts and Partisan Elections” has similar conclusions based on Illinois experiences. Quoting from the NYT, then my research:

“WASHINGTON — “Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice John G. Roberts Jr. wrote last year in a case from Florida that took a small step toward insulating elected judges from political pressure.

Judges in 39 states face elections, and it is only natural that they might find it hard to take an unpopular position. But Chief Justice Roberts wrote that both appointed and elected judges must ignore public sentiment.

“Politicians are expected to be appropriately responsive to the preferences of their supporters,” the chief justice wrote. “A judge instead must ‘observe the utmost fairness,’ striving to be ‘perfectly and completely independent.’”

He was quoting Chief Justice John Marshall, and it is a fine aspiration. But any number of studies have found that elections can affect judicial behavior.

One released last week, for instance, found that elected judges are less likely to support gay rights than are appointed ones. The effect was most pronounced in cases decided by judges who ran in partisan elections.

Summary of my research article: Illinois suffers from the most partisan system in the nation for electing judges— a system that erodes the independence of courts from politics. I demonstrate that politics, not merit, is the crux of selection for Illinois judges. At every court level, judges must declare as a Democrat or Republican when they first run for office. This allows special interest groups, businesses, labor unions, trial lawyers, and political parties to donate heavily to judicial candidates. As a result, judicial elections in Illinois have become giant magnets for out-of-state campaign donations. I show that some partisan elections mimic influence peddling in legislative elections; and I explain how four major Illinois supreme court rulings bear earmarks of campaign influence from big donors. These problems are magnified by the state’s outdated code of judicial conduct that fails to address the growing influence of money in judicial campaigns. Illinois should follow other states by adopting more stringent campaign regulations, patterned after the revised ABA Model Code, for judges and judicial candidates. More broadly, Illinois should abolish partisan elections and replace them with a non-partisan commission of non-lawyer citizens, lawyers, and judges to select and retain judges on merit.

Trump and Permission to Hate: How Low Will We Go?

A Republican candidate for the Kentucky House posted this picture on his Facebook page, and other hateful messages. The state Republican Party issued a very strong condemnation. “Dan Johnson’s comments and social media posts are outrageous and have no place in today’s political discourse,” a party leader said. “They represent the rankest sort of prejudice present in our society and do not in any way, shape or form represent the views of the Republican Party of Kentucky…. Another party leader said, “I believe it would be the appropriate action on his part to withdraw from the race.” Read more here: http://www.bellinghamherald.com/news/politics-government/article105250681.html#storylink=cpy

Philadelphia Orchestra Musicians on Strike: Here’s Why

This elite orchestra went on strike last night. Here's is what their union is saying:

This strike is not about the musicians' greedy search for ever more money. If it were, we would have gone on strike in 2009, when our salary was reduced by more than 1 percent. We would have gone on strike in 2010, when we absorbed a wage freeze. We would have gone on strike in 2011, when our salary went down by a further 14 percent. We make no apology for wanting to be well compensated when we have devoted countless hours of hard work to achieving a level of musicianship which has placed us at the very top of our profession. To claim otherwise would be disingenuous. But our actions over the past decade clearly demonstrate that we have been willing to continue to play at the very highest level while our salary has greatly declined relative to the pay of other major American orchestras.

The orchestra recently performed in the company of Pope Francis when he visited the U.S. But the orchestra delights in sharing music with underprivileged children in their community. Recently, they toured Mongolia to share in an important cultural exchange with one of the poorest, most remote nations in the world.

Here’s hoping a settlement is reached very soon.