Tagged: discrimination

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Privacy: For the Rich or for the Poor?

Some consider the right to privacy a fundamental right for the rich, or even the rich and famous. It may be no coincidence that the landmark privacy cases in Europe feature names like Naomi Campbell, Michael Douglas, and Princess Caroline of Monaco. After all, if you lived eight-to-a-room in a shantytown in India, you would have little privacy and a lot of other problems to worry about. When viewed this way, privacy seems to be a matter of luxury; a right of spoiled teenagers living in six bedroom houses (“Mom, don’t open the door without knocking”).

 

To refute this view, scholars typically point out that throughout history, totalitarian regimes targeted the right to privacy even before they did free speech. Without privacy, individuals are cowed by authority, conform to societal norms, and self-censor dissenting speech – or even thoughts. As Michel Foucault observed in his interpretation of Jeremy Bentham’s panopticon, the gaze has disciplinary power.

 

But I’d like to discuss an entirely different counter-argument to the privacy-for-the-rich approach. This view was recently presented at the Privacy Law Scholar Conference in a great paper by Laura Moy and Amanda Conley, both 2011 NYU law graduates. In their paper, Paying the Wealthy for Being Wealthy: The Hidden Costs of Behavioral Marketing (I love a good title!), which is not yet available online, Moy and Conley argue that retailers harvest personal information to make the poor subsidize luxury goods for the rich.

 

This might seem audacious at first, but think of it this way: through various loyalty schemes, retailers collect data about consumers’ shopping habits. Naturally, retailers are most interested in data about “high value shoppers.” This is intuitively clear, given that that’s where the big money, low price sensitivity and broad margins are. It’s also backed by empirical evidence, which Moy and Conley reference. Retailers prefer to tend to those who buy saffron and Kobe Beef rather than to those who purchase salt and turkey. To woo the high value shoppers, they offer attractive discounts and promotions – use your loyalty card to buy Beluga caviar; get a free bottle of Champagne. Yet obviously the retailers can’t take a loss for their marketing efforts. Who then pays the price of the rich shoppers’ luxury goods? You guessed it, the rest of us – with price hikes on products like bread and butter.

 

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Stanford Law Review Online: Discrimination, Preemption, and Arizona’s Immigration Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

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The Twentieth Anniversary of Employment Division v. Smith

I have just returned from an excellent conference at Cardozo on Employment Division v. Smith, decided 20 years ago. In that case, the Supreme Court held that, with a couple of exceptions, religious observers are not entitled to free exercise exemptions from laws that are both neutral and generally applicable. More particularly, even the sacramental use of peyote did not justify a free exercise exemption from the neutral, generally applicable drug laws banning its use. Previously, religious observers were entitled to a free exercise exemption from a law that imposed a substantial burden on their religious practice unless that law passed strict scrutiny.

The conference request was for short provocative arguments. Here’s mine: it would be perfectly constitutional for the government to condition tax breaks for nonprofit organizations on compliance with anti-discrimination law. In particular, it would not violate the free exercise clause to deny tax exempt status to churches or other religious institutions that argue that their religion requires them to discriminate on the basis of race and sex.

A law denying tax exempt status to nonprofits that invidiously discriminate would easily satisfy the Employment Division v. Smith standard. As long as the law did not target religion, as a law denying tax benefits to religious nonprofits might, and as long as it applies to all nonprofits without exception, so that it can be considered generally applicable, it should raise no free exercise problems.

In fact, the federal government already denies tax exempt status to religious organizations that invidiously discriminate on the basis of race. Indeed, even before Employment Division v. Smith was decided the Supreme Court rejected a free exercise challenge to the IRS’s revocation of tax exempt status of two religious schools, one of which banned interracial dating for religious reasons, and one of which refused to admit black students, also for religious reasons. In Bob Jones University v. United States, the Supreme Court held that the IRS regulation passed strict scrutiny. The policy has since been expanded to cover churches as well.

There is no good reason not to expand this policy to religious organizations that invidiously discriminate on the basis of sex. Just as the government does not subsidize religious institutions including churches that discriminate against blacks, nor should it subsidize those that discriminate against women.

This approach – which allows religious institutions to discriminate but denies them tax benefits – strikes a fair balance between religious freedom and equality. It respects religious liberty because it does not ban churches from fulfilling their religious requirements. But it also promotes equality by refusing to subsidize invidious discrimination, and by ensuring the state does not put its imprimatur on the message that is it acceptable to treat anyone as second class because of their race or sex.

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On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights

NW-Colloquy-Logo.jpg

This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.

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Bizarro Section 1982 and “civil union” — a thought experiment in unequal names

Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property'; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”

This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality.  We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names.  The confusion would be increased if different states chose different new for the new institution parallel to property.  (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately.   The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites.   (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved.  (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.

An unlikely scenario?  This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court.  I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief.  The litigation is about a different institution, though — not property, but “marriage” and its bizarro double, “civil union”.

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23andMe – Has GINA Failed to Live Up to its Promise?

 23andMe is a genetic testing Internet site, which offers testing for over 100 genetic diseases and traits as well as ancestry testing. Many viewed 23andMe as the vehicle, which will bring genetic testing to the masses. It was promoted by “spit parties”  in which attendees spat into a test tube to have their saliva analyzed to produce their genetic profile. Yet, recently the New York Times reported that two and half years after it commenced service 23andMe has not attained its expected popularity. The report tied 23andMe’s lack of popularity to the limited usefulness of genetic information — genetic science’s inability to predict with certainty that a person is going to get sick.

And true, genetic science is all about probabilities. A genetic test can rarely predict with a 100% certainty that a person will incur a disease. I doubt, however, that this limitation is holding 23andMe back. Unfortunately, people are not very good at understanding the statistical results of genetic testing.  If anything, a woman who is told that she has a 60% of getting breast cancer is likely to dismiss the actual statistics and believe she is going to get sick. It is quite unlikely that people decided not to use 23andMe because of the low probabilities that accompany many genetic tests’ results.

Instead, fears of genetic discrimination likely played an important role in 23andMe’s failure to popularize genetic testing. People are afraid that if they undergo genetic testing and receive positive results they may lose their health insurance or their employment. As I have documented, these fears prevail although empirical data shows that genetic discrimination is in fact rare. Consequently, many individuals are inhibited by genetic discrimination concerns and choose not to undergo genetic testing.

Recently, the government enacted a relatively comprehensive federal law against genetic discrimination – the Genetic Information Nondiscrimination Act of 2008 (GINA). An important goal in legislating GINA was to alleviate fears of genetic discrimination. It was hoped that the enactment of a comprehensive federal law will provide a sense of protection and reduce genetic discrimination anxiety.  The failure of 23andMe to attain widespread popularity indicates that at least so far GINA has not been as successful as was hoped in quieting fears and encouraging the use of genetic testing technology.

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Google Earth and Caste Discrimination in Japan

With gratitude to Funmi Arewa for sending me this link, here’s an interesting story from the Times Online about an unexpected area in which Google has found itself in hot water.  In adding information to some modern day maps of Japan on Google Earth, Google engineers overlaid some old maps of Japan on the modern sattelite images.  This effectively shows how some of the old Japanese ghettos relate to modern 21st centry streets.  Unfortunately, it also provides a proxy that effectively allows prospective employers to guess on the ancestry of people who may be applying for jobs and to identify them as likely members of a caste considered as “untouchables” and condemned to the worst positions in the social and cultural hierarchy.  Google did not realize how offensive and problematic this data-driven action could be within Japan.  It’s a great example of how modern technology can clash with deeply ingrained cultural mores.

On another note, this is my last post for Concurring Opinions as I’m heading off tomorrow for my first long weekend vacation in (too) many years!  Thanks so much to Dan and the whole Concurring Opinions crowd for having me.  I hope to visit again sometime.  Happy summer vacation everyone…