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Hans Bader Archives

No Taxation Without Representation

The Virginia Supreme Court has just struck down a state law empowering unelected regional transit authorities to levy taxes, ruling that it violates the state constitution to delegate to them the legislature's power to tax. The court's ruling is a blessing for homeowners, as I explain in my discussion of the case at OpenMarket.org.

Sexual Harassment: A Strange, Vague "Tort"

On Wednesday, I discussed how the courts can be downright hostile to employers in sexual harassment cases, playing a game of bait-and-switch regarding whether sexual harassment is "intentional," in order to first make it easier to hold them liable and then maximize the damages that plaintiffs can collect. (Earlier, I discussed judicial double standards in harassment cases and judges' indulgence towards plaintiffs' lawyers who seek to inflame juries with prejudicial appeals, and noted that harassment law is being used by courts to restrict a wide array of once protected speech.)

Although the language of the civil rights laws, such as 42 USC 1981a, clearly requires a harassment plaintiff to show discriminatory intent to recover damages, court sometimes do just the opposite. For example, the Seventh Circuit recently insisted that no discriminatory intent need be shown in a harassment case, yet simultaneously claimed that harassment is "intentional" because it is tort-like in nature in Huff v. Sheehan, 493 F.3d 893, 902-04 (2007).

The record-setting $2.5 billion punitive damage award against Exxon for an Alaskan oil spill will likely be trimmed, but not eliminated, judging from the oral argument yesterday in Exxon Shipping Co. v. Baker. Michael Krauss, Jacob Sullum, and Ted Boutros argued earlier against the huge award. Exxon argues that maritime law precedent bars the punitive damages.

Presumed Guilty of Child Abuse

After Washington, D.C.'s Child and Family Services agency snatched the baby daughters of Greg and Juliana Caplan, a judge ordered their return, finding no reason to believe that that they had abused their daughters.

But the D.C. Government is still hounding the Caplans, who have already spent their life savings on legal fees, listing them in its child abuse registry. As Marc Fisher of the Washington Post notes, "Even after the court found for the Caplans, the city offered to end its investigation only if the parents submitted to counseling, anger management classes and unannounced visits from social workers. The Caplans declined the deal."

D.C. Attorney General Peter Nickles says that there should be a presumption of guilt in child abuse cases: "It may very well be that the weight of the evidence supports the Caplans' position," he said. "But the law is skewed properly toward the protection of the child."

Nickles assumes that seizing a child from her parents will "protect" the child. But as I noted yesterday, a child can experience devastating psychological harm from being taken from her parents. In Doe v. Lebbos (9th Cir. 2003), Judge Andrew Kleinfeld's dissent described the tragedy that befell a little girl who was seized from her father as a result of false abuse accusations:

"After being bounced around in the agency and foster parent bureaucracy for over a year, Lacey . . . was 'diagnosed with Post-Traumatic Stress Disorder, hearing voices, and suicidal ideation.' She was put on anti-psychotic medication. She had taken to smearing feces and to other abnormal and highly disruptive behavior. . . what the county did to her to "protect' her apparently destroyed her. Something in this experience, perhaps being ripped away from her father for whom she consistently expressed love during the whole miserable period, perhaps having strangers strip her and search her heretofore private parts, perhaps being put with caretakers instead of her father, amounted to a trauma that was too much for her."

In England, the problem is even worse, since social workers who seize children receive adoption bonuses.

Government Child-Snatching

Earlier, Ted Frank wrote about how government social workers have an incentive to overreact to erroneous allegations of child abuse, and take children away from loving parents, because they reasonably fear that they will be fired if a child on their caseload dies, even if the death was unforeseeable. (The problem is even worse in England, fueled by adoption bonuses). Children seized and placed into foster care often experience devastating psychological harm.

Washington, D.C.'s Child and Family Services agency (where 6 case workers were recently fired after a child died) seized the twin baby daughters of Greg and Juliana Caplan after one was taken to the hospital for bleeding behind the eye.

Not a "Pro-Business" Supreme Court

The Supreme Court is not, as the media claims, "pro-business" in discrimination cases, as I pointed out below. That's buttressed by today's decision against employers in Federal Express v. Holowecki. The Age Discrimination in Employment Act (ADEA) bars employees from suing until 60 days after they've filed a charge of discrimination with the EEOC. That's intended both to provide notice to the employer, and make settlement of the case prior to litigation possible. In Holowecki, the employer never received that notice, because the employee merely filled out an EEOC intake questionnaire, not a formal charge of discrimination.

But the Supreme Court, rejecting the view of at least two circuit courts, held that intake questionnaires qualify as a charge of discrimination, even if the employer doesn't receive notice of the claim prior to suit. It did so even though it admitted that "the employer's interests, in particular, were given short shrift, for it was not notified of [plaintiff]'s complaint until she filed suit." And it so ruled even though the EEOC's former chairman, Justice Thomas, dissented, stating that an EEOC intake questionnaire simply is not a charge of discrimination. The Supreme Court's ruling may or may not have been consistent with the language of the statute, but it certainly wasn't pro-business, depriving businesses of notice of potential lawsuits.

On the other hand, at least it doesn't raise potential First Amendment problems, the way the Court's ruling against business in another discrimination case (Burlington Northern v. White (2006)) did.

I've never understood media claims that the current Supreme Court is a "dream court" for business. On employment law, it tends to be neutral or hostile to business.

An example of an even-handed decision that doesn't favor business is the Supreme Court's decision yesterday in Sprint/United Management Co. v. Mendelsohn. That case, as the Washington Post notes, "may aid those charging bias"" by allowing plaintiffs to rely on "me, too" evidence in some cases. ("Me, too" evidence is where employees claim that they, like the plaintiff, were discriminated against by the company). The Court held that some "me, too" evidence is admissible, and some isn't, taking a stance more favorable to plaintiffs than many circuit courts (although not the Tenth Circuit). The decision strikes me as even-handed, but then, I used to bring discrimination suits. Business groups weren't too thrilled with it (they tried but failed to convince the court to categorically bar "me, too" evidence).

Sometimes, the Court can be downright hostile to business in discrimination cases. For example, in Burlington Northern v. White (2006), it adopted a definition of unlawful "retaliation" that was broader than most lower courts' definition. As I explained at Overlawyered, that not only burdened business, but also raised possible First Amendment problems.

Sexual Harassment Bait and Switch

In sexual harassment cases, many courts play a game of bait and switch with employers. When they want to hold the employer liable, they claim that harassment requires no showing of wrongful or discriminatory intent at all, making the employer liable even for conduct that unintentionally offended the plaintiff, such as speech that the plaintiff overhears and is offended by. But when it comes time to impose or collect damages, they suddenly switch positions and claim that harassment is not only intentionally discriminatory, but willful and malicious.

Neither position is consistent with the language of the civil rights laws, which do require an intent to treat an employee differently based on her gender, but do not require a showing of malice or ill-will. Moreover, getting rid of any intent requirement raises serious First Amendment and Equal Protection problems.

At the AEI event Ted discussed earlier, preemption scholar Michael Greve argued that the Supreme Court's recent decision in Riegel v. Medtronic (Feb. 20, 2008) conflicts with two earlier district court rulings upholding state regulations of vehicle greenhouse gas emissions against preemption challenges. I agree.

In Riegel, the Supreme Court preempted all state law rules, even common-law torts, that contain any "requirement" that "relates to the safety or effectiveness" of FDA-approved medical devices above and beyond those prescribed by the FDA in its premarket approval process. It held that federal preemption provisions should be interpreted as broadly as their plain language mandates, and that common law torts "relate" to safety or effectiveness requirements of medical devices even if they are labeled as general principles of tort law not focused on medical devices in particular. It did not require additional or conclusive proof that Congress had a specific intent to preempt state tort law.

By contrast, the district court rulings upholding state vehicle emissions regulations rely on contrary reasoning. In Central Valley Chrysler Jeep v. Goldstene (2007), a judge upheld California emissions regulations that effectively required higher fuel economy standards, even though a federal law (EPCA) states that no state may "adopt or enforce a law or regulation related to fuel economy standards." In order to do so, the judge deliberately construed the federal preemption provision "as narrowly" as possible, applying a strong "presumption against preemption" that required proof that Congress had a "clear and manifest purpose" to preempt state greenhouse gas regulations. Similarly, Vermont greenhouse gas emissions were upheld only because the trial judge rejected a "simple 'plain wording' analysis" rooted in the language of the statute, and instead required proof of an additional "clear and manifest purpose" on the part of Congress to preempt the state law. Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007).

Earlier, I discussed how judges in the New York area, such as the Second Circuit Court of Appeals, enforce discriminatory double standards in sexual harassment cases and free speech cases that involve sexually explicit materials.

While the liberal Second Circuit has arbitrary politically-correct biases -- like preferring gay porn to straight porn -- judges in more conservative regions can be biased in the opposite direction, countenancing bias against gay people in sexual harassment cases.

For example, in Lockard v. Pizza Hut, 162 F.3d 1062 (10th Cir. 1998), the plaintiffs' trial lawyer inflamed an Oklahoma jury by focusing on the sexual orientation of a Pizza Hut manager, even though it was plainly irrelevant. The manager was not accused of sexual harassment himself, but only of failing to prevent harassment of the plaintiff waitress by male customers. The trial court, amazingly enough, allowed this, claiming that the manager's homosexuality was "relevant to his attitude toward sexual harassment and his inattention to [plaintiff's] complaint." (Why being gay would make someone more indulgent towards sexual harassment by heterosexuals is beyond me). The jury then ruled in favor of the plaintiff. The Tenth Circuit Court of Appeals then upheld the jury verdict against the defendant, claiming that it was a harmless error to admit the manager's sexual orientation.

The Tenth Circuit's assertion that the error was harmless was ludicrous, since it occurred in a close case where many courts would have ruled against the plaintiff. The conduct alleged by plaintiff, although disturbing, was less severe than conduct that other courts have found insufficient to support a jury verdict in favor of a plaintiff. The Sixth Circuit reversed a jury verdict based on worse conduct in Barnes v. Montgomery County Board of Education (1997), claiming the conduct was insufficiently severe or pervasive to constitute actionable sexual harassment -- even though that case involved harassment by a supervisor, not mere customers. (The Supreme Court observed in Faragher v. City of Boca Raton (1998) that abusive conduct by a supervisor can create a hostile environment more quickly than the same conduct by a co-worker, given the supervisor's power over his subordinates).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.