Sunday, July 21, 2013
Senate Committee Passes ENDA, Which Would Lead to Meritless Litigation and Erode Free Speech
by Hans Bader
A Senate Committee has voted 15-to-7 to approve the Employment Non-Discrimination Act, “a bill that would prohibit employers from discriminating against workers on the basis of sexual orientation or gender identity,” reports the Huffington Post. We previously explained why the bill would encourage meritless litigation through one-way fee-shifting — through the so-called Christiansburg Garment rule — and would undermine free speech about sexual-orientation-related issues in religious bookstores, and within religious broadcasters and newspapers (This is because under it, the courts might allow gay employees who overhear theologically-conservative viewpoints about gay marriage or sexual relations or morality, or are exposed to religious books and commentary in bookstores or radio or TV shows containing such viewpoints, to bring “hostile work environment” claims, as I also explain further below).
More coverage of the bill is provided in The Hill, The Washington Post‘s Plum Line, and Daily Kos.
Although ENDA purports not to include disparate-impact claims, even some courts that construe “hostile work environment” claims as being solely a species of intentional discrimination, i.e., disparate treatment, rather than disparate impact, have nevertheless allowed sexual harassment claims under existing federal laws such as Title VII that really more akin to disparate-impact claims, in that they involved comments or displays that were not aimed at the plaintiff because of her sex, but which merely were overheard by the plaintiff. See, e.g., Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) (en banc)(unanimously allowing sexual harassment lawsuit largely over comments not aimed at the plaintiff, such as offensive radio programs played in plaintiff’s workplace). Based on such logic, an arbitrator in one case allowed a female employee who worked for a broadcaster to collect damages over offensive broadcasts she was exposed to in the course of her job. In another case criticized by civil-libertarians, a college initially found a student guilty of racial harassment for reading a history book about the Ku Klux Klan.
By parity of reasoning, these courts could sharply restrict religious expression about things like gay marriage, sodomy laws, adoption by gay couples, or same-sex unions, that is offensive to gays who overhear it, by interpreting it as a violation of ENDA, even though ENDA purports not to authorize disparate impact claims. Local civil-rights agencies have occasionally charged employers with sexual-orientation harassment for speech that is not even aimed at a gay complainant. For example, an employer was charged with sexual-orientation harassment under Seattle’s gay-rights ordinance partly for listening to Rush Limbaugh on the radio, which offended a gay employee, even though the charges were controversial, to say the least. (While the Title VII rulings I discussed earlier allowing employees to sue over speech not directed at them are dubious as a matter of statutory construction, they are likely to be followed by courts interpreting ENDA, unless and until constitutional objections are successful raised, since ENDA is largely modeled on Title VII.)
This raises First Amendment problems, since such restrictions on religious expression are constitutionally more suspect in the eyes of many judges than bans on sexual expression in the workplace, compare Meltebeke v. BOLI, 903 P.2d 351 (Or. 1995) (voiding religious harassment fine for unintentionally offensive religious speech that created a religiously-hostile work environment as violation of state religious-freedom guarantees) with Robinson v. Jacksonville Shipyards, 760 F.Supp. 1486 (M.D. Fla. 1991) (upholding injunction against pornography in workplace to remedy sexual harassment). In short, hostile-environment claims are likely to be viewed as constitutionally problematic more often under ENDA than under existing federal law.
For a discussion of the broad range of speech that hostile-environment harassment law already reaches, see the writings of U.C.L.A. Law Professor Eugene Volokh, which you can find here and here. Volokh is the author of First Amendment textbooks and is widely cited by American judges and law reviews, including in opinions that have been joined in by every sitting U.S. Supreme Court justice. Courts have occasionally blocked hostile-environment racial or sexual harassment lawsuits over core political speech — like the Ninth Circuit’s decision in Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010), blocking a racial-harassment suit over anti-immigration emails — but generally, the courts have allowed the concept of a “hostile work environment” to reach a broad range of speech, and out of ingrained habit, courts are likely to continue that practice when they interpret ENDA, paving the way for constitutional clashes. (The Supreme Court has never squarely addressed the issue, as Justice Thomas noted in his opinion in Avis Rent-A-Car System v. Aguilar, thus leaving enormous uncertainty in just how far political or religious speech can be restricted in the name of preventing a hostile work environment.)
One common misconception promoted about ENDA is that its exclusion of disparate-impact claims would prevent meritless statistically-based suits against employers saying they haven’t hired enough gay employees on a numerical basis. This reflects the misconception that statistical cases can only be brought under a disparate-impact theory. In reality, gross statistical disparities can also give rise to a lawsuit under an intentional-discrimination theory, too, if the disparity is significant enough, although in such cases, the employer is theoretically allowed to defend itself by giving innocent reasons for the disparity. See International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Even flawed statistical evidence is admissible in the eyes of many courts under the Supreme Court’s 1986 Bazemore decision, and even an innocent employer risks a finding of liability based on sloppy regression analyses that do not include all relevant variables. The possibility of flawed statistical evidence is particularly great under ENDA, because the percentage of gay Americans — unlike the percentage of black Americans — is not subject to precise calculation, and is often massively overstated by the public including (no doubt including judges and jurors).
The possibility of pressure to hire-by-the-numbers cannot be ruled out under ENDA. Activists have already pressured President Obama to mandate sexual-orientation-based hiring goals for government contractors. The Supreme Court’s decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), permits employers to be held liable for “disparate treatment” (not just “disparate impact”) if circumstantial evidence in the form of workplace racial imbalances suggests that the employer is guilty of discrimination. Statistical disparities are treated as creating a “prima facie” case of “disparate treatment” if the racial or sexual composition of the employer’s workforce is at least two standard deviations away from the purported norm. But no one knows exactly what that norm is for sexual orientation. As the leading pollster Gallup notes, Americans tend to vastly overestimate the percentage of the population that is gay. As Garance Franke-Ruta of The Atlantic notes, Americans systematically overestimate the percentage of the population that is gay or lesbian: “‘U.S. adults, on average, estimate that 25 percent of Americans are gay or lesbian,’ Gallup found,” even though “fewer than 5 percent of Americans identify as gay or lesbian.” In short, due to widespread misconceptions about the percentage of gay Americans, ENDA could lead to meritless statistically-based suits against employers under a Teamsters-style pattern-or-practice (or “statistical disparity”) theory.
We share the Senate Committee’s disapproval of prejudice towards LGBT Americans. But if federal lawmakers wanted to help LGBT Americans, they should have focused on repealing their own discriminatory laws against gays and lesbians (we have criticized federal discrimination against gay people in the past, here, here, here, and here), rather than imposing new burdens on American business, which is perfectly happy to hire gay employees, and has a much better record of fairness based on sexual orientation than Congress itself. As we noted earlier, “American business is quite happy to hire gay and lesbian employees, and needs no federal mandate to do so. Virtually all Fortune 500 companies already ban sexual orientation discrimination in their own hiring and firing, and have done so for years.”
Up to half of crimes written off by Scotland Yard
But use insulting language in public -- even to a horse -- and they will be down on you like a ton of bricks
Almost half of all reported crime is being written off by Scotland Yard, figures show, fuelling fears that victims are being ignored.
In some offence categories as many as eight in ten reports are “screened out”, according to figures obtained under the Freedom of Information Act.
Screening out means that while the reported offences are included in official crime statistics no concerted effort is made to investigate them beyond an initial consideration, mainly because officers believe the culprit will not be found.
The Metropolitan Police “screened out” 346,397 reported crimes in 2012/13 – some 45 per cent of all offences.
Some 40 per cent of burglaries were written off, almost a quarter of robberies and 80 per cent of bicycle thefts.
Roger Evans, the Conservative member of the Greater London Assembly, who obtained the figures, said: “It’s a disgrace that the Met Police are refusing to investigate a huge number of acquisitive crimes.
“A victim of crime shouldn’t feel that the police have no interest in them unless you are physically or sexually assaulted.
“Resources are tight; but crimes such as burglary are, in no way, minor. They can have a devastating impact on the confidence and well-being of the victim.
“Moreover, many criminals’ illegal activities escalate each time they get away with it so we are sending out a very dangerous message.”
The figures also showed more than one in ten common assaults and assaults with injury were screen out last year – the equivalent of 11,000 violent attacks.
Some 23 per cent of robberies were written off as were three quarters of car thefts and 85 per cent of thefts from cars.
Mr Evans added: “If you are a thief in London, you can rest assured that over three quarters of your crimes, reported by victims, will be ignored by police.
“With the high availability of CCTV in London there is no excuse for this lackadaisical attitude.
“We need a dramatic shift in the way police see these crimes – they may not be exciting to investigate but they are serious.”
Mr Evans said victims of crimes should be able to appeal to their local safer neighbourhood boards – groups of local volunteers working with local police which come into existence from 2014 – if the police decide not to investigate their crime.
A Scotland Yard spokeswoman said: “It is incorrect that the MPS does not investigate a high number of crimes. The MPS investigates every single allegation of crime that it receives.
“A number of crime allegations will require secondary investigation once the initial investigation is complete.
“The MPS currently conducts secondary investigations in approximately 60 per cent of all crime allegations, as compared to the national average of 45 per cent.
“The MPS is concentrating on improving the quality and rigour of initial investigations in order to improve the service to victims by reducing the need for follow up visits.”
Last year the HM Inspectorate of Constabulary warned that up to one in four incidents completely ignored by the police should have been recorded as a crime.
Separate to “screening out”, forces will also designate some reported offences as “no crimes”, after an initial assessment concludes no crime was actually committed.
However, a study by the HMIC said that, nationally, one in seven "no crimes" was dismissed wrongly but in the worst offending force, the Metropolitan Police, it was as high as one in four.
The weird patriotism the British Left attach to their decrepit health service
Three years ago, at the very moment that he was presiding over the abominations at Mid Staffs – and, as we now know, several other hospitals – Andy Burnham, then Health Secretary, was calling me ‘unpatriotic’ for pointing out the poor performance of the NHS in international league tables.
I mention it, not to have a go at the poor fellow – the rest of the country is already doing that – but to explore the connection between the tendency to shout down any criticism of the NHS and the number of British hospitals which are, as the Keogh Report put it, ‘trapped in mediocrity’. Any organisation that is treated as being beyond reproach is bound in time to become flabby, self-serving and producer-centred. It happened to the mega-charities. It happened to the United Nations. It would be surprising if the NHS were an exception.
In today’s Guardian, Simon Jenkins writes:
"Lobbyists for the NHS have resisted reform by appealing to public emotion since its foundation. It has served them well – especially the consultants."
Indeed. Which is why the NHS remains stuck in the 1940s: an era of conscription, rationing, identity cards and unprecedented government control. It is why, while every other Western European country developed a mixed system of public and private provision, Britain clung to a state monolith. (This, incidentally, was the sixty-year old mistake I once criticised: the decision, wisely opposed at the time by the Conservatives and the BMA, to nationalise private, charitable and foundation hospitals rather than allowing them to form part of a pluralist system.) And it's why all the parties in Britain regard as normal a situation which only Communist parties in Europe support; no mainstream Social Democrats want to adopt a British-style system.
For a fair chunk of the British Left, a state-run NHS is beyond criticism. It is not a question on which different parties may reasonably disagree (‘Stop treating the NHS like a political football!’) Rather, it is seen, as in Andy Burnham’s formulation, or in Danny Boyle’s Olympic opening ceremony, as a test of patriotism. The same people who are quick to deplore the sentiment ‘my country right or wrong’ often take precisely such an attitude to the NHS. They don’t use those words, of course. What they say is ‘Instead of criticising the NHS, why don’t we all work together to improve it?’ But, if you think about it, it amounts to much the same thing.
Supporters of the status quo know that they have powerful human instincts on their side. We are, by nature, change-averse. We seem to be born that way (‘Would you like to try this, darling?’ ‘No!’) Our day-to-day encounters with the NHS are, as they jolly well ought to be in a country as wealthy as Britain, satisfactory, and we don’t want to seem ungrateful by complaining. While the OECD ranks our healthcare system poorly against those of other developed countries, it is by no means the worst in the world. And so we stick with what we know. Indeed, there is a respectable Burkeian argument that our irrational attachment to a familiar institution matters more than a strict calculation of what is the most efficient model.
The trouble is that a general attachment to the status quo has been twisted into a vicious, even violent, intolerance of any suggested alternative. When I pointed out that the NHS fared badly by most international comparisons three years ago, my since-deceased mother was harassed by Left-wing journalists. I suppose I should be grateful that her grave has not been vandalized – as happened to the mother of the woman who drew attention to the barbarities in Mid Staffs.
That, thank Heaven, was an isolated case. But listen to the language habitually used by those opposed to change. Consider the shrill, shouty way in which Labour MPs behaved in the House of Commons during the Health Secretary’s statement yesterday. A foreign observer would not have believed that this was a legislature assembled to debate tragic and unnecessary deaths.
Watch the video below, brought out in response to Andrew Lansley’s modest attempt to bring decisions slightly closer to patients. Or read the comments at the HandsOffOurNHS hashtag on Twitter. They don't constitute a reasoned defence of a state-run healthcare system. Again and again, they assert that ‘evil’ and ‘greedy’ people want to ‘privatise’ the NHS. No one specifies what is meant by ‘privatise’. Do they imagine that the Tories would sell shares in the NHS? Who would be mad enough to buy them?
But, of course, this isn’t about different policy options. It’s about preventing any serious discussion from beginning. And it’s precisely this intolerance of dissent that helped create the horrors at Morecambe, Mid Staffs and the rest. I know that's not how you meant things to work out comrades; but it's what happened.
The British state’s ‘uncivilised’ treatment of volunteers
It is the government’s policy of suspicion towards carers that it is undermining help for older people
Lib-Con health minister Norman Lamb has called for Neighbourhood Watch and other local groups to help care for elderly residents in their area - providing companionship, and help with feeding and washing. Lamb criticised the ‘uncivilised’ abandonment of the elderly, leaving them to live ‘miserable’ and solitary lives.
Yet this ‘uncivilised’ abandonment has been fomented by the state itself. For many years, it has insisted on criminal-records checks on anyone who offers such ‘care and companionship’ to elderly people in their area. This is because elderly people are defined as ‘vulnerable adults’, and anyone offering help is asked to prove that they are not seeking to ‘take advantage’ of their ‘position of trust’.
So it is now commonplace for local organisations going to the houses of elderly people to vet all volunteers. Camden Council in north London has even demanded that elderly people volunteering to telephone other elderly people for a chat be subjected to criminal-records checks. Other volunteers elsewhere are subjected to other procedures built on suspicion - such as the requirement that volunteers driving elderly people to the shops always work in twos, so they can keep an eye on each other.
These checks turn volunteers off, and have led to the collapse of essential support services. One volunteer organisation in Hampshire - which for years had run a local service driving elderly people to the shops - collapsed after the council demanded that the leader run Criminal Records Bureau checks on all volunteers.
So yes, it would be wonderful if people did more to help their elderly neighbours, and yes, the current abandonment is ‘uncivilised’. But if Lamb wants to get to the root of this problem, then he would do well to look at the uncivilised policies propagated by government, which treat help or care as a potential abuse situation requiring strenuous state regulation.
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL. My Home Pages are here or here or here. Email me (John Ray) here.