Regular readers know that the EEOC has brought a number of lawsuits where evidence of discrimination is shaky, and that the courts have responded by ruling against them. The EEOC received more bad news today. In an opinion authored by Judge Debra Ann Livingston, the Second Circuit has dealt the EEOC a loss in EEOC v. Port Authority of New York and New Jersey. The panel, comprised of Judges Livingston and Droney and Judge Pamela K. Chen (E.D.N.Y., sitting by designation) affirmed the district court’s dismissal of the EEOC’s complaint. The district court had determined, and the Second Circuit agreed, that the EEOC had failed to proffer sufficient evidence that pay differentials between male and female attorneys employed by the Port Authority of New York and New Jersey violated the Equal Pay Act. Judge Livingston writes:

To support its claim that the attorneys performed “equal work,” the EEOC pled broad facts concerning the attorneys’ jobs (such as that the attorneys all have “the same professional degree,” work “under time pressures and deadlines,” and utilize both “analytical” and “legal” skills) that are generalizable to virtually all practicing attorneys. The EEOC did not, however, plead any facts particular to the attorneys’ actual job duties. (Opinion at 2-3)

Judge Livingston notes that the specific duties of each position are vital to evaluating a claim under the Equal Pay Act because “Congress rejected statutory language encompassing ‘comparable work’ to instead mandate equal pay for ‘equal work on jobs the performance of which requires equal skill, effort, and which are performed under similar working conditions.”29 U.S.C. § 206(D)(1);  see Brennan v. City Stores, Inc., 479 F.235, 238 (5th Cir. 1975) (quoting 109 Cong. Rec. 9197-98 (1963)) (Opinion at p. 17). If an Equal Pay Act claim fails to provide the specifics of the jobs in question, it is impossible to determine if the jobs are “substantially equal”. And in this case, the EEOC failed to provide such specifics.

[T]he EEOC alleged that the Port Authority required all of its nonsupervisory attorneys to have similar “experience, training, education, or ability,” bar admission, and the capacity to call upon “problem‐solving and analytical skills” as well as “professional judgment.”    However, such bland abstractions –untethered from allegations regarding Port Authority attorneys’ actual job duties – say nothing about whether the attorneys were required to perform “substantially equal” work.  Thus, the EEOC’s complaint provides no guidance as to whether the attorneys handled complex commercial matters or minor slip‐and‐falls, negotiated sophisticated lease and financing arrangements or responded to employee complaints, conducted research for briefs or drafted multimillion‐dollar contracts.  The EEOC asserts that such allegations are unnecessary because “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill.’”    Appellant’s Br. at 29.    But accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model.  Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”  See Twombly, 550 U.S. at 555.

Nor does the EEOC’s table purporting to compare claimants and comparators bolster its claim.    As the district court noted, the comparisons drawn appear superficially random, and rightly so: as the EEOC acknowledged, the table simply juxtaposes claimants and comparators whose “combined” bar admission and service dates are separated by no “more than ten years” – a full decade of difference in experience. (Opinion at 23-24)

You can read the entire opinion here.

Will the Supreme Court take up the cause of disparate impact in housing once again?

To recap briefly: disparate impact liability was born in the employment discrimination context. It permits an employer to be sued for using employment practices that have an adverse or disproportionate effect on one particular racial group unless justified by business necessity, even if the employer did not intend (either consciously or subconsciously) to discriminate based on race or other protected characteristics. But critics of disparate impact argue that virtually all employment practices have a disproportionate effect on one or another protected group. Disparate impact liability means that just about every employer in the country is constantly at risk of a lawsuit.

Because disparate impact also leads some employers to change hiring, firing, or promotion practices to get the right racial percentages, some – including Supreme Court Justice Antonin Scalia –  have questioned whether disparate impact is constitutional under the Equal Protection Clause. The Court’s “resolution of this dispute [in Ricci v. DeStefano, the case at hand],” Scalia wrote, “ merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?… If the Federal Government is prohibited from discriminating on the basis of race, then surely it is also prohibited from enacting laws mandating that third parties. . . whether private, state, or municipal—discriminate on the basis of race.” Disparate impact provisions in effect mandate third parties to discriminate on the basis of race by putting a racial thumb on the scale by often requiring employers to evaluate the racial outcomes of their hiring policies and to make decisions about how to structure employment procedures in light of those outcomes.

In spite of these powerful criticisms, the Obama administration has been aggressive in pursuing disparate impact cases. Russlyn Ali, a former assistant secretary of education for civil rights, once said that “disparate impact is woven throughout civil rights enforcement in [the Obama] administration.” The administration has thus enthusiastically exported disparate impact liability to new contexts –including housing. One problem is that it is less than clear that the Fair Housing Act – the main federal statute outlawing racial discrimination in housing – is actually a disparate impact statute. The issue has made it to the Supreme Court twice already in the past four years. On both occasions, the Court granted certiorari – only to find that the Department of Justice had settled the case before the Court heard it.

Despite DOJ’s efforts, disparate impact liability under the Fair Housing Act is before the Court once again in a petition for certiorari in Texas Department of Housing v. The Inclusive Communities Project. As the petition puts it (p. 12), “The questions presented in this petition are indistinguishable from the questions on which this court granted certiorari in Gallagher and Mount Holly.” If the Court thought that certiorari was appropriate in these two cases, then it should also be appropriate in this one.

Resolving the question right now, rather than later, is important because nearly any government or landlord action can potentially trigger disparate impact liability. As the petition for certiorari notes, the State of Texas administers almost two dozen housing programs, and many of the other forty-nine states operate similar ones. Most do not have perfectly proportional racial effects. Similarly, nearly any criterion that a landlord might use to determine who gets to rent an apartment or that a lender uses to figure out mortgage eligibility will have an adverse effect on some group. To be sure, some government programs like Texas’s may deserve criticism because they disproportionately hurt the poor and racial minority individuals that they are intended to help. But the Fair Housing Act was never intended to address such concerns, and the policy debate about them should thus instead take place in a different context.

Could Scalia’s “evil day” be here”? Or — to continue Ms. Ali’s metaphor – could the tapestry that the Obama administration has so carefully unwoven be about to unravel?

Today, President Obama’s nominee to head the Justice Department’s Civil Rights Division, Debo Adegbile, withdrew his nomination and announced that he is returning to private practice. The Senate blocked Adegbile’s confirmation in March in large part because he once represented Mumia Abu-Jamal, who was convicted  30 years ago of murdering a Philadelphia police officer. As I watched the nomination controversy unfold, I confess I was disappointed to see some loose conservative rhetoric suggesting that it is inherently wrongful to represent criminals accused of killing police officers. In my own view, there is nothing inherently troubling about an attorney representing a defendant charged with a heinous crime within the framework of the law. What is more problematic, however, was that the evidence that a wrongful conviction happened in this particular case is so weak.

Instead, I might have liked to see some of Adegbile’s stronger statements in favor of racial discrimination in college get additional public attention. As I noted at the Federalist Society’s Executive Branch Review blog a few months ago, “Adegbile was also counsel of record on an NAACP LDF brief filed in the Fisher v. University of Texas case, which vigorously defended the University of Texas’s use of race in admissions. This brief arguably went somewhat further in defending preferences than does Grutter v. Bollinger, including a section that is titled “Excluding race from individualized review would demean many students’ individual dignity” which notes that ‘Taken to an extreme, a purely race-neutral holistic process could result in a form of viewpoint discrimination.’ While Grutter holds that universities may constitutionally use race in admissions in certain circumstances, it is not commonly interpreted to hold that a university’s choice not to use race is harmful to students’ dignity or that a race-neutral process might result in viewpoint discrimination.”

I expect that I will probably disagree on some matters with whoever Obama’s new nominee to head the Civil Rights Division is. That’s what happens when the political party with views closest to my own loses a national election. Still, many plausible Democratic, liberal or progressive nominees would not go quite as far as Adegbile in stating that race-neutral admissions are harmful to students’ dignity and might result in viewpoint discrimination. Let us hope that this withdrawal leads Obama to nominate a Civil Rights Division leader who is a little more moderate on these matters.

As a teaser in an earlier post, I mentioned that I was reading an interesting new book by the Wall Street Journal’s Jason Riley titled Please Stop Helping Us:How Liberals Make It Harder for Blacks to Succeed. The subtitle does not exactly hide the ball. And while perhaps other examples could be found, Riley addresses clearly and comprehensively several important areas of public policy in which liberal or progressive policies have hurt the interests of African-Americans.

For example, Riley offers an excellent summary of the considerable historical evidence that the first minimum wage laws were often adopted with the explicit goal of harming African-Americans. (Trigger warning, for those who appreciate that sort of thing: appalling citations about the bad history of a public policy popular with progressives to follow.) Riley writes:   “We don’t need to guess what politicians were thinking when they moved to implement when they moved to implement federal minimum-wage laws and Davis-Bacon statutes [which protect the wages and employment of union workers in the building trades]… During hearings, Representative William Upshaw of Georgia sympathized with Bacon, noting that ‘the real problem that you are confronted with in any community with a superabundance or large aggregation of negro labor…. Alabama Representative Miles Allgood recounted the story of a ‘contractor from Alabama who went to New York with bootleg labor. This is a fact. That contractor has cheap colored labor that he transports, and he puts them in cabins, and it is labor of that sort that is in competition with white labor throughout the country.’ He further quotes George Mason University Law School Professor David Bernstein, noting that “Testimony by union representatives [in favor of Davis-Bacon laws] reveals a definite racial element to their support.”

Today’s supporters of minimum wage laws, thankfully, do not generally share the minimum wage’s early supporters’  ugly racial motivations. But, as Riley documents, there is nonetheless considerable evidence that minimum wages continue to disproportionately price low-skilled African-American workers out of the market.  As he puts it: “The best anti-poverty program is not the minimum wage. Rather, it’s a job, even if it’s an entry-level one…. Reducing the number of entry-level jobs keeps people poor by limiting their ability to enter or remain in the workforce, where they have the opportunity to obtain the skills necessary to increase their productivity and pay, and ultimately improve their lives.”

Riley also does a good job summarizing the considerable evidence that school choice programs benefit African-American children, by creating competition and giving families more options that may better suit their children’s needs. As he notes, these programs may be particularly beneficial to black children stuck in failing public schools in poor neighborhoods. Strong as Riley’s education chapter was, it might have been even better if he had discussed the Obama administration’s discipline initiative intended to end racial disparities in discipline. As discussed at some length in the statements of Gail Heriot and Todd Gaziano in this U.S. Commission on Civil Rights report, there is little evidence that these gaps are caused by bias against students of color. It is instead much more likely that they result from differing rates of misbehavior between racial groups. The discipline initiative may therefore have the unintended consequence of encouraging teachers to discipline students of color less than they otherwise might, leading to more chaotic classrooms in inner-city schools and thus ironically making it more difficult for better-behaved minority students to obtain good education.

Regular New American Civil Rights Project readers are probably well-acquainted with  “mismatch” research, which shows that students who receive large racial preferences in college or law school admissions learn less than they would if they had attended institutions where their credentials are closer to the median student’s. Mismatch problems are not race-specific; legacy students, or students who receive preferential treatment in admissions because a close relative attended that university, have also been shown to suffer from the ill effects of mismatch. But, because large racial preferences in admissions are widespread, mismatch is of special concern in the racial context. Riley’s book does an excellent job summarizing the available empirical research into mismatch and explaining why it suggests that large racial preferences need to be scaled back. I am perhaps biased, though, because Riley cites favorably this report on which several New American Civil Rights Project members worked in their capacities as members of the U.S. Commission on Civil Rights.

If there is one section of the book that left me with more questions than answers,  it is Riley’s discussion of the War on Drugs. Riley does a good job debunking overblown claims that the War on Drugs’s racially disparate stem from intentional discrimination by racist police or judges.  At the same time, he shys away from stating a firm conclusion about whether continuing the War on Drugs really is in the interest of African-Americans. For example, he argues that high incarceration rates disproportionately benefit law-abiding residents of inner-city communities by keeping the worst offenders off the streets. But he does not engage with the possibility that drug prohibitionism has made these neighborhoods more violent in the first place; as Harvard University’s Jeffrey Miron puts it, “Prohibition drives drug markets underground, thereby generating violence and corruption. Participants in black markets cannot resolve their disputes with courts and lawyers, so they resort to violence instead.” Nor does Riley respond to claims that high incarceration rates have contributed to the breakdown of the African-American family. I should note that I oppose drug prohibitionism mostly for reasons unrelated to race, and Riley may not. Still, I hope to see him wrangle more with some of these questions in later editions of this book or in future writings.

The Independent Women’s Forum has published a new anthology of essays titled Lean Together: An Agenda for Smarter Government, Stronger Communities, and More Opportunity for Women.  To quote from a summary available on the website: “Lean Together presents a better vision for America: Smaller government, stronger communities, a vibrant economy, and more opportunity for women and men alike. It covers a wide range of issues from childcare and early childhood education, to the workplace, food and agriculture policy, health care, poverty, technology, and more.

LEAN TOGETHER puts forth a positive agenda in which republican ideals of limited government, virtue, and self-improvement are re-imagined.  It offers concrete policy solutions to challenges that face our country and especially women and their families that will rein in the progressive state, streamline government, and strengthen our economy.”

At a moment at which Republican, conservative, or libertarian-leaning politicians are often carelessly accused of waging a “War on Women,” the message that free market policies are good for women is an extremely important one. Lean Together does an excellent job  summarizing the case for the benefits of free markets and limited government for women. The debunking of misleading statistics about the gender wage gap and discussion of how this gap results more from individual choices than from bias or discrimination is particularly useful. Although much of the content of the book may not necessarily seem revolutionary to professional policy wonks, it is an admirably comprehensive survey of conservative and libertarian thinking on domestic policy and gender. I wish I had had a resource like this one when I was a college student or intern just starting to learn about the power of these ideas.

That said, the book is not perfect. One, I am not a fan of the title, which I fear may potentially undermine the book’s effectiveness. It is hard to avoid wondering if Lean Together is meant to play off the title of Facebook COO’s Sheryl Sandberg’s best-selling Lean In,  a combined memoir and self-help book that was the ship that launched a thousand op-eds about feminism last year. When I first saw ads for  Lean Together,  I  questioned whether if it was intended to be an anti-matter version of Lean In. But as far as I can tell, it isn’t. Lean Together is a  policy tome, whereas Lean In is about how women should modify their individual behavior to be more successful at work (indeed, some feminists have criticized Sandberg for focusing too much on what women could ourselves do differently and not enough on what government should do to help women.)  Positioning Lean Together as the anti-Lean In may unfortunately reinforce the unfair stereotype that libertarian and conservative feminists necessarily oppose the ambitions of women like Sandberg.  I do not, and from what I can tell, the contributors don’t either.  I would therefore have preferred something like Please Stop Helping Us as a more accurate summary of the book’s contents, although admittedly another interesting recent book happens to bear that title (one about which I hope to have some thoughts up very soon.)

 Lean Together is most successful as a primer on domestic economic policy, but somewhat less successful in taking on cultural questions.  Eleven of its twelve chapters are essentially devoted to answering questions beginning with “What should government do?”, such as “What should government do about health care?” or “What should government do about corporate income marginal tax rates?” In the twelfth and final chapter, there is an abrupt switch to a discussion about “Restoring American Culture and the Family,” which suddenly delves into questions beginning with “What should individuals do about X?” or “What should civil society institutions do about Y?” The relationship between culture and politics is a complex one, and Lean Together bites off a bit more than it can chew by devoting just a single chapter to it near the end of the book.

Finally, there are some important examples of ways in which liberal or progressive public policies have backfired against women’s interests that are not covered here and that perhaps should have been. The Department of Education’s interpretation of Title IX, which bans sex discrimination in federally funded educational institutions, leads some such institutions to channel funds into sports that women don’t want to play and away from extracurricular and academic activities that female students would prefer instead. There is also some evidence that this mis-interpretation of Title IX in the athletic context has led to sex discrimination against women in college admissions. Over-broad interpretations of federal sexual harassment law may lead some male bosses and professors to fear mentoring talented young women. And largely unfounded moral panic over “rape culture” on college campuses and sexual assault in the military may lead some women to forego challenging educational or career opportunities.

UPDATE: I edited this post (Sunday night, 9/7) to fix a syntax error.

I recommend to all interested readers who live in the Washington, DC area (and to those  just passing through this coming Tuesday) what promises to be a fascinating discussion of “Civil Rights in the United States” sponsored by the Civil Rights Practice Group of the Federalist Society, the Heritage Foundation, and the Cato Institute.

The free conference will be held at the Mayflower Hotel — 1127 Connecticut Avenue, N.W., Washington, DC 20036 — from 9:00 a.m. to 3:45 p.m. this Tuesday, September 9, 2014.

Here’s the agenda (you can register here):

Disparate Impact and the Rule of Law: Does Disparate Impact Liability Make Everything Illegal?
9:00 – 10:20 a.m.
State Room

Disparate impact liability—or holding an actor liable for actions that have a disproportionate effect (disparate impact) on a particular race, sex, national origin, or religion—was invented by the Equal Employment Opportunity Commission during the Johnson administration as a strategy for stepping up the fight against employment discrimination. The Supreme Court eventually adopted this theory of liability in the employment context in the controversial case of Griggs v. Duke Power, 401 U.S. 424 (1971). Congress later incorporated it into the employment context in the Civil Rights Act of 1991. The Obama administration has eagerly embraced disparate impact liability: Administration officials have applied it to new areas, like housing, education and credit. Disturbingly to some, these officials have also arranged settlements in lawsuits headed to the Supreme Court that appeared likely to result in decisions limiting the doctrine’s reach. Because nearly every employment, education, housing, or lending policy has a disproportionate effect on some protected group, the recent growth of disparate impact means that virtually any such policy may be deemed illegal. Panelists will discuss whether and to what extent disparate impact’s metastasis thus threatens traditional principles of the rule of law and whether it is consistent with statutory law and the Constitution.

• Mr. Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
• Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
• Prof. Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and the Director of the Center for Civil Rights, University of North Carolina Law School
• Moderator: Mr. John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Racial Preferences and Promoting Diversity: Are These Policies Taking Us in the Right Direction?
10:30 – 11:50 a.m.
State Room

The Obama administration is widely perceived to be an avid proponent of racial preferences. As Attorney General Eric Holder said in 2012, “The question is not when does [affirmative action] end, but when does it begin.” Several landmark pieces of legislation that President Barack Obama has signed into law—primarily on other topics, such as the Dodd Frank Wall Street Consumer Protection and Reform Act and the Patient Protection and Affordable Care Act—have expanded racial preferences in federal hiring, contracting, and at regulated entities. The president has also issued multiple executive orders and related instructions that aggressively seek to expand the numbers of women and minorities in the federal workforce. The Obama administration’s response toFisher v. University of Texas, 133 S. Ct. 2411 (2013), which directed courts to use strict scrutiny in analyzing whether admissions policies are narrowly tailored to achieve universities’ diversity goals, may be another such example. After Fisher, officials at the Departments of Education and Justice produced guidance documents that have been read to assure colleges and universities that they could continue using large racial preferences in student admissions. This panel will explore this proliferation of racial preferences and the likely effects of such policies. Among other things, panelists will discuss evidence that racial preferences in education do more harm than good to their intended beneficiaries, resulting in fewer under-represented minorities going on to high-status careers. The panel will also discuss efforts to protect women and minorities from ill-defined “harassment” as a means of maintaining diversity in the workplace and on campuses—and how these efforts may raise First Amendment concerns and create perverse incentives to discriminate against persons who are perceived as likely to view innocent or trivial workplace and campus interactions as harassment.

• Mr. Hans Bader, Senior Counsel, Competitive Enterprise Institute
• Prof. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
• Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution
• Moderator: Dr. Roger Pilon, Vice President for Legal Affairs, B. Kenneth Simon Chair in Constitutional Studies, and Director, Center for Constitutional Studies, Cato Institute

The Future of Voting Rights
12:00 noon – 2:00 p.m.
Chinese Room

The Supreme Court’s ruling in Shelby County v. Holder, which disabled Section 5 of the Voting Rights Act, has led some advocates (including the White House) to argue that voting rights are in peril. But other experts say these fears are wildly overblown and that Shelby County confirms that circumstances have changed dramatically for the better. They argue that Section 5’s federal “preclearance” regime can no longer be justified given that the systematic disenfranchisement of the Jim Crow era has disappeared—racial disparities in voter registration and turnout are gone, especially in previously covered jurisdictions—and that we should focus on actual instances of racial discrimination (as well as election administration). After all, Sections 2 and 3 are still very much in place, although Section 2 has been interpreted to require racial gerrymandering in a way that benefits both major parties but harms American democracy. This panel will discuss the state of voting rights today, including the Justice Department’s enforcement actions, proposed legislation in Congress, voter-ID laws, felon voting, and related issues in the states.

• Mr. David H. Gans, Director, Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center
• Mr. Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
• Mr. Hans A. von Spakovsky, Senior Legal Fellow and Manager, Civil Justice Reform Initiative, The Heritage Foundation
• Moderator: Mr. Michael Barone, Senior Political Analyst, the Washington Examiner

Passion and Prudence in the Political Process: The Debate Over Federal Civil Rights Policy
2:10 – 3:45 p.m.
State Room

Emotions sometimes run high in the public debates over race and gender issues. Some claim that public passions can obscure facts and result in ill-considered policy. Many observers have bemoaned the public rhetoric surrounding the recent events in Ferguson, Missouri as more inflammatory than constructive. Another example can be found in criticism over President Obama’s use of a misleading, or at least contestable, figure in his 2014 State of the Union address: “Today, women make up about half our workforce. But they still make 77 cents for every dollar a man earns. That is wrong, and in 2014, it’s an embarrassment. A woman deserves equal pay for equal work.” But equal pay for equal work has been the law since 1963, and some researchers have questioned whether the pay gap exists in reality to the same extent it does rhetorically. Are similarly emotional arguments being used in the debates over sexual assault in the military, hate crimes, and harassment and bullying in public schools? This panel will explore the concerns over this problem and its policy consequences.

• Ms. Diana Furchtgott-Roth, Senior Fellow, Manhattan Institute for Policy Research
• Ms. Lara S. Kaufmann, Senior Counsel & Director of Education Policy for At-Risk Students, National Women’s Law Center
• Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
• Moderator: Mr. Robert Barnes Supreme Court Correspondent, The Washington Post