A coda to our discussion of religious exemptions?

According to the Washington Post, the Executive Order signed by President Obama to prohibit workplace discrimination against gay, lesbian, and transgendered employees who work for federal contractors (and discussed by Mr. Torvik here) does not contain any religious exemptions for employers who think employing  a gay, lesbian, or transgendered person violates the employer's religious beliefs. In reality, I suspect the issue is more accurately hiring since until today this kind of discrimination by federal contractors was not prohibited.

I hope and that the distinction Mr. Torvik (and others) make between the Hobby Lobby case and employment discrimination. I suppose we will find out in about a year.

Hobby Lobby & Discrimination, part 2

Following up on our earlier discussion (wherein sparks flew), I thought I'd direct your attention to this open letter sent by 50 law professors to President Obama, urging him not to carve out a religious exemption to his expected executive order banning discrimination against gays among federal contractors. It is quite persuasive, and worth a read.

Notably, the law professors' first argument is that Hobby Lobby in no way compels this kind of exemption:

[T]he Supreme Court's opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors. Both actions were predicated on the Court’s belief that the government could fully realize its compelling goals of furthering women’s health and equality through other means – because it could arrange for alternative contraception coverage for affected employees, who then would suffer no harm as a result of an employer exemption. By contrast, there is no such alternative here. Exempting religious employers would harm LGBT employees and it would frustrate the Administration’s compelling interests in providing equal rights and protection against employment discrimination for LGBT people, particularly in taxpayer funded situations.

This is essentially the same point made by Professor Althouse, which sparked our discussion.

For the contrary view, see this earlier letter from the Institutional Religious Freedom Alliance. As the law professors' letter notes, however, the IRFA letter cites no authority for its core assertion that religious employers are "free under Title VII to maintain a conduct standard that reflects their religions’ sincerely held beliefs, which include deep convictions about human sexuality." Instead, Title VII merely allows "religious organizations" to prefer people of their own faith in hiring.

Happy 50th birthday to the Equal Pay Act.

The Equal Pay Act turns 50 today. With certain exceptions the act outlaws employers using sex as a reason to pay employees differently when the jobs held by the members of the opposite sex requires equal skill, effort, and responsibility, and which are performed under similar working conditions. According to this, at the time the act was passed women were only getting paid about 59% of what men got paid. That figure has risen to 77% as of 2011. While progress has been made, a pay gap exists

Blame the Lawyers?

Tim Pernetti, the athletic director at Rutgers, has resigned for failing to fire Mike Rice, the school's basketball coach, after seeing a video of him brutalizing and belittling the team's players during practice. 

Any sane person with authority over "Coach" Rice would have fired him on the spot, and Pernetti has deservedly lost his job for his insane failure to do so. But he's going down swinging, and his target is lawyers:

As you know, my first instincts when I saw the videotape of Coach Rice's behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals, and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.

I will assume for a moment that this is true, because I have heard stories of similar bureaucratic nonsense—particularly in public universities and other public employment settings. Mike Rice had an employment contract. He could not be fired at will; Rutgers needed good cause to fire him. So lawyers and "human resources professionals" were going to have to review any decision to terminate, and in my experience they follow a rote, unthinking "process." According to Pernetti, they followed that process and prevented him from firing Rice because it was a "first offense" (as he said when the video first became public) and therefore "university policy would not justify dismissal."

I don't know anything about Rutgers's "university policy," but obviously that initial interpretation of the policy was wrong because Mike Rice has now been fired (for the same behavior) and no one at the university is complaining anymore that the conduct doesn't justify dismissal. (I guess they're all too busy running for cover to complain.) So maybe Pernetti has a legitimate beef against those lawyers and HR "professionals." In a remotely just world, they'd all be next in line with their resignation letters.

What's really going on here is that people are way too afraid of legal disputes, even ones that are objectively frivolous. If Mike Rice had been fired back in December, he would have gone to a lawyer, and the lawyer would have sued Rutgers alleging a breach of contract and an unlawful termination. In all likelihood, that lawsuit would have been a loser—objectively frivolous, in my opinion—but you just never know. Even sure-winner lawsuits are expensive, time-consuming, and embarrassing. So we avoid them at all costs.

But, oh the costs! How many kids took a fastball to the face from Mike Rice so that Rutgers could avoid a frivolous lawsuit? How many kids had to stand there while Rice spewed spit and shouted "you are a fucking faggot!" at them so that Rutgers could avoid a lawsuit?

Too many, obviously. This is what happens when cowards and idiots conspire.

In the end, this whole affair goes in as entry number 3,254 on my list of "Reasons I'm Glad I Don't Live in New Jersey."

Mike McQueary sues Penn State.

His complaint is here. 

PolitiFact Wisconsin on Wisconsin's "Equal Pay" repeal

The fact-checkers at PolitiFact Wisconsin have been busy shooting down claims by Wisconsin Democrats that Scott Walker and his allies have repealed equal pay protections for women.

First, back on March 12th, PolitiFact addressed Rep. Cory Mason's claim that the bill being repealed ensured "that women cannot get paid less than a man for doing the same job." It charitably labeled that claim "mostly false."

Second, today PolitiFact checked gubernatorial candidate Kathleen Falk's assertion that the repeal makes it so a woman can't do anything about pay discrimination. That claim is labeled "false."

Of course, the Gillette-Torvik Blog has debunked these claims more than once. Indeed, back in February we specifically called out false statements by both Falk and Mason. For some reason, however, Falk and Mason were unchastened by the Blog's reporting. It remains to be seen whether PolitiFact has any more clout.

I am inclined to believe that the so-called "Republican war on women" is a sham

Wisconsin governor Scott Walker signed a number of bills yesterday, including a bill that repeals a bill passed just three years ago that goes by the name of the "Equal Pay Enforcement Act." That bill had increased the kinds of damages allowable in employment law cases under Wisconsin state law. Now Wisconsin is back to the employment law regime that it had in place for the sixty-five or so years before 2009. So Walker has sent Wisconsin employment law back to the dark days of the early Obama years.

As I previously explained in a couple of posts, many people have mistakenly claimed that this bill eliminates the requirement of equal pay for women in Wisconsin, or that it eliminates the enforcement mechanism of the equal pay law. That is false. This bill has nothing to do with equal pay, and nothing specifically to do with discrimination against women. It applies to all employment discrimination claims.

This mistake is surely caused by the curious title of the bill being repealed, the "Equal Pay Enforcement Act," which calls to mind the federal "Equal Pay Act" which does enshrine the principle of equal pay for equal work. But the federal Equal Pay Act and the Wisconsin Equal Pay Enforcement Act actually had nothing to do with each other, and equal pay for equal work remains the law in Wisconsin.

Still, if you search for commentary today on Walker signing the repeal bill, you will find much false rhetoric that Walker has somehow repealed the principle of equal pay for equal work in Wisconsin, or that this bill is a step back for women's rights. For example, Democratic candidate for governor Kathleen Falk says Walker has "turned back the clock for women across Wisconsin."  Again, he's turned the clock all the way back to the bad old days of 2009.  

As I mentioned in a comment to my earlier post, it seems to me what's going on here is a pointless partisan volleyball match. Democrats passed a pointless bill to appease their constituents back in 2009, and Republicans have more or less pointlessly repealed it to please their constituents now that they're in power. Side out. The bill was unnecessary, but it was probably unnecessary to repeal it. My own preference is for fewer pointless laws, so I don't have a big problem with what the Wisconsin Republicans have done.

What I do kind of have a problem with is the "war on women" rhetoric surrounding this. Democrats have made this a rallying cry for their 2012 campaign. This is one supposed front in the alleged war, and it's the only one I've taken the time to investigate. And when I did, I found that I was being shamelessly lied to. I am therefore inclined to believe that all of the "war on women" rhetoric is false.

More on Wisconsin's Mythical Repeal of its Non-Existent "Equal Pay Act"

This morning I posted about how Wisconsin Assemblywoman Kelda Helen Roys from Madison falsely stated that the Republican-controlled Assembly had voted along party lines to repeal Wisconsin's non-existent "Equal Pay Act."

In my original post I charitably assumed this was a mere mistake. But I now believe it's a concerted campaign to distort what the Republicans have actually done. Why? Because other Democrats are spreading the same lie. For example, Racine Assemblyman Cory Mason:

Every time I think this legislative session could not possibly get any stranger or more shocking, my Republican colleagues do something else to surprise me. On February 21st, in a stunning move, Assembly Republicans voted to repeal Wisconsin’s Equal Pay Act. That's right, instead of passing bills to create jobs, Assembly Republicans repealed the law that ensured that women cannot get paid less than a man for doing the same job.

Both of the emboldened statements are false. As noted in my previous post, what the Assembly Republicans voted to repeal was Wisconsin's "Equal Pay Enforcement Act," which actually just allowed additional monetary remedies under preexisting substantive law, and did absolutely nothing to "ensure[] that women cannot get paid less than a man for doing the same job." Pointedly, even if Governor Walker signs the repeal, equal pay for equal work will still be the law of Wisconsin (and, perhaps more importantly, the law of the entire United States).

So I'm no longer willing to give the benefit of the doubt and assume that these are just mistakes. I'm now convinced that this an orchestrated campaign by Wisconsin Democrats to purposefully sow confusion. It's shameful.

In Assemblyman Mason's own immortal words, "Are you for real?"

UPDATE:

As anonymous notes below, Governor Scott Walker has signed the repeal bill.

A brief reply to Mr. May, or Blawg War III

As Mr. Gillette points out, Mr. May has a thoughtful post responding to my earlier piece about his attack on Wisconsin and all things holy. It's worth a read. I have only a couple of things to say in response.

Mr. May admits, as he must, that employment laws have costs to employers. But he argues that "taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired." I don't think that's right. The argument is that these laws do impose costs, and therefore can theoretically increase unemployment by increasing how much every employee costs an employer on average. So my point is only that it's not silly, as Mr. May said it was, to justify repeal the Equal Pay Enforcement Act as a pro-jobs bill.

But that is not to say either that the repeal will create jobs or that all regulations must be repealed in order to have an optimal labor market. Instead, some regulations will be a net gain, some will be a net loss, and some will impose real costs but be worth it for other (e.g., moral) reasons. Ultimately, there's a balance to be struck, and different people will have different opinions on where to strike it. The Republicans are trying to push it one way, and the Democrats are trying to pull it the other way. But neither party can ignore that one of the variables potentially at stake in that push-and-pull is jobs.

Mr. May makes one other argument that I think misses the mark. He says, "One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place." This is in fact false, simply because there are non-meritorious discrimination claims. In such cases, the employer has no choice but to pay the attorneys fees and costs to fight the claim, even though the employee was never actually discriminated against.

That said, I can see why Mr. May would make that argument because, as far as I know, he has never handled a non-meritorious claim. And I doubt he ever will.

Wisconsin v. Minnesota Blawg War Smackdown Round II

Nick May replies here to Mr. Torvik's argument as to why Wisconsin employers should be allowed to do whatever they want whenever they want because they are job creators (I'm paraphrasing).

Wisconsin v. Minnesota Blawg War Smackdown

Speaking of Wisconsin, Minnesota, and Minnesota legal blogs, our pal Nick May has an entertaining and informative post over at his excellent Minnesota Employment Law blog entitled, "Another Reason Minnesota is Better Than Wisconsin." That said, I am now going to tear it to shreds.

A Gillette-Torvik Conversation™: End employment discrimination against the unemployed?

TORVIK: Mr. Gillette, what is your take on this aspect of Obama's new jobs bill proposal:

Ending Discrimination Against the Unemployed:   Recent reports have highlighted companies that are increasingly expressing preferences for applicants who already have a job. Specifically, some companies are posting job listings that include language such as “unemployed candidates will not be considered” or “must be currently employed” or “must be employed within the last 6 months.”  The exclusion of unemployed applicants is a troubling and arbitrary screen that is bad for the economy, bad for the unemployed, and ultimately bad for firms trying to find the best candidates. This is particularly true at a time when so many Americans have found themselves out of work through no fault of their own. New Jersey has passed legislation to address this practice, and members of Congress have also introduced legislation. The President’s plan calls for legislation that would make it unlawful to refuse to hire applicants solely because they are unemployed or to include in a job posting a provision that unemployed persons will not be considered.'

I understand the sentiment, but it seems like a bit of a hornet's nest to me. Currently firms work hard not to ask questions about "suspect classifications" to prevent any claim that someone wasn't hired on such a basis. But an employer has to ask about employment history!

GILLETTE:  Are you saying that the proposed claim is problematic because one can eliminate potential liability on a failure-to-hire racial discrimination claim by not asking about race (setting aside that some things, like zip codes, correlate strongly to race) but that an employer cannot similarly eliminate potential liability on a failure-to-hire- the-unemployed claim because they need to know job history?  If so, I don’t really see that as a problem with the bill.

Retaliation claims are not the same as discrimination claims.

As Madison.com reported back in May, a federal jury found for the plaintiff/employee on a wrongful termination claim against the Madison Area Technical College. Dr. MichaelDubin, a history professor at the college, claimed that he suffered religious discrimination based on religion as well as retaliation for opposing unlawful discrimination.

As the Courthouse News notes, Dr. Dubin, who is Jewish, was apparently called --among other things--a "litigious Jew" by his supervisor. However, the jury verdict was solely on the retaliation claim as the religious discrimination claim was dismissed on summary judgment. This should not lead the reader to conclude that it is okay to call people litigious Jews. It is not.

As the summary judgment order makes clear, the religious discrimination claim failed because Dr. Dubin's religion was not known to the people who made the decision to terminate him. Since they didn't know his religion, the folks who terminated him couldn't have decided to terminate him because of his religion. They did however, know that he had complained about discriminatory comments.

They jury, apparently persuaded by the fact that Dr. Dubin was the only professor to complain about discriminatory comments and also the only professor (out of 18) on a probationary period who was not hired at the end of the probation period, found for the doctor on his retaliation claim.

In addition to seeking back pay and emotional distress damages, Dr. Dubin also sought reinstatement at the college. As a reinstatement is an equitable remedy, the court gets to decide whether to grant reinstatement. Judge William Conley decided to grant reinstatement this week. He also affirmed the award of lost wages (plus prejudgment interest) and lowered the emotional distress damages award to reflect the fact that emotional distress damages on federal religious discrimination claims are capped at $300,000. In other words, Dr. Dubin won just about everything he could have expected to win at trial.

What should one take away from this case? First, terminating employees shortly after they make discrimintion complaints is a bad idea. Second, just because a discrimination claim is found to lack merit, does not necessarily mean that a retaliation claim will also lack merit. As this case makes clear retaliation claims are seperate and distinct from discrimination claims and can lead to a completely different result.