Is Use Discrimination Unlawful if Customers are Treated Equally?

By Jay Marshall Wolman 

There has been significant commentary in the blogosphere about a recent order out of Oregon allegedly imposing a gag order on a bakery that expressed an aversion to same sex weddings. I’ll leave the First Amendment analysis to Ken White at Popehat and Eugene Volokh as linked above. 

I’m a little more concerned with the order’s analysis of the discrimination claim itself. The Labor Commissioner did not undertake the traditional McDonnell Douglas test for discrimination. Now, this might not be an Oregon requirement, but there was no real analytical framework. This is usually important in determining if the acts were discriminatory. 

This case involved statements by the owners expressing an aversion to making cakes for same sex weddings. Let’s assume the easier case: an express policy against catering such weddings.  Is that unlawful? Why?

The statute prohibits announcing you will deny services “on account of …sexual orientation “.  ORS 659A.409. Technically, and it is unclear anyone argued this, no one is denied service on account of their orientation. Rather, the customers are denied service for the nature of the wedding. In most weddings, parents pay for the cake. This bakery would likely sell a cake to gay parents for their straight son’s wedding and refuse to sell to straight parents for their gay son’s wedding. No paying customers are denied on the basis of their orientation. The statute doesn’t address associational discrimination. Disparate treatment discrimination is not implicated and thus the bakery policy announcement of discrimination against same sex weddings, but not necessarily gay customers, would seem to be lawful. [Arguably, the conduct/person analysis of Elane Photography could suggest that it constitutes disparate treatment, but I believe that the conduct/person distinction is more suited to disparate impact analysis. The New Mexico Supreme Court in that case conflated Constitutional Equal Protection analysis with the statutory interpretation frameworks of disparate treatment and impact.]

The policy clearly has a disparate impact; there’s bound to be a spate of older gay couples now paying for their own weddings. However, the Commissioner did not address disparate impact theory, which may or may not be available under Oregon public accommodation law.  Thus, it may be the right outcome but for the wrong reasons. 

Catcalling is for Genetic Refuse

We are here for one reason — to fuck. The old DNA says “spawn or go extinct.” We may have frolics and detours along the way, to either make the rest of our existence more tolerable, or to make the entire group experience more likely to lead to success — and thus more fuckin’. This explains, to me, nature tossing in homosexuality, despite a lack of immediate reproductive benefit to the species.

So here we are, guys generally want to fuck anything that moves. Women need to be more selective, because they can only be pregnant by one at a time. It makes sense that the boys want to fuck more than the girls, until the girls find a guy that they really wanna fuck, and then they ovulate all over the place. There, life decoded for you.

So lets do an experiment: We have an attractive woman, perhaps wearing attire that is specifically designed to attract male attention. She walks down the street, and she gets all kinds of male attention. Then, she’s all pissed off that guys pay attention.

Fair enough.

I agree that a woman should be allowed to walk around with non-verbal cues that scream “I WANT TO BE FUCKED RIGHT NOW” and still, it is a desirable cultural norm that we don’t actually get to fuck her, nor get to treat her like she’s just there for the fucking (I mean, unless that’s what she wants). Consider me a feminist, I guess.

Now, does she have a right to an existence without hearing guys hoot, holler, and catcall? Meh, maybe. I’m a little on the fence about it.

Which means that I don’t really mind the anti-catcalling crowd exercising its First Amendment right to protest and criticize this practice. I just think they’re making everyone dumber with their approach.

But, sorry to mansplain it ladies, you’re doing it wrong.

The only time I’ve ever experienced anything like catcalls was when I was in my early 20s, walking through a neighborhood full of Brazilian transsexual hookers in Rome. I’m pretty sure that they were not being sincere about yelling “ciao bello” at me, so much as they just wanted me to spend 20,000 Lire on a blowjob. ‘Course, it didn’t piss me off, because I saw the logic in it. If a guy wants a blowjob more than he wants 20,000 Lire, it helps to know who would rather have 20,000 Lire than a mouth that doesn’t have someone’s dick in it.

Simple commercial speech.

Ok, so that’s not even remotely the same thing.

But, I still want to offer my assistance to the anti-catcalling crowd.

Catcalling pisses me off too. Why? Because I know it bothers women. I got a wife, a daughter, and a mom. Don’t fucking bother them, or I’ll punch you.

But, lemme cocksplain it for any man who still doesn’t get it.

Dude, you are correct. She would not be dressed like that if she did not want to attract male attention. It might SEEM irrational for a girl to put on a miniskirt and fuck-me heels, and then act all pissy if guys notice. There are two reasons that “you don’t dress like that to avoid attention, bitch” doesn’t work as an argument.

ONE: Women are allowed to be irrational. Yes. They are nucking futs. The sanest, coolest, most awesomest girl in the world will tell you that. Their system gets flooded with fucked up hormones on a regular basis, and they’re biologically supposed to be pregnant like 17 times in their lifetime. Now, you’re trying to fit THAT into modern society? Good luck making that work. They’re allowed to be crazy, because by all rights, they ought to be the ones running through shopping malls with machine guns. The fact that they just refuse to make any sense to your mind is pretty blessed mercy. Call it a win and move on. (And ladies, thank you).

TWO: Even though they’re allowed to be, THEY ARE NOT BEING IRRATIONAL, you dumb fucks. Because you know what? She is dressed like that to attract attention, just not from you, you lowlife prole piece of shit motherfucker. Ok? Do you now understand?

Yes, she’s wearing tight jeans to accentuate the shape of her ass because she wants a guy to notice that she has a nice ass. She’s wearing a short skirt because she wants a guy to notice. Or whatever she did to make herself look hot, she did do that because on some level, she does want a penis to come running after her, with its life support system (the man) attached to it.

BUT NOT YOU.

Yes, she’s looking to get fucked, but NOT BY YOU.

How do I know that?

Lets start by looking at the “harassment.” I use that term loosely, because it seems somewhat untethered from its actual meaning, sometimes. It applies to “get over here and suck my dick, whore!” (which in my humble opinion is clearly harassment) to “good morning” (which is not). But, see rule #1. She’s allowed to think it is harassing, even if all you say is “good morning.” She gets to feel how she wants to feel. If you don’t get that, you ain’t getting laid, because you’re a douche.

Yes. Exactly. You are ugly physically, mentally, and emotionally to this girl. EXACTLY. So now fuck off.

Yes, it makes her an uptight bitch if “good morning” makes her ass pucker in fear and anger. She’s allowed to be an “uptight bitch.” Because you know what “uptight bitch” actually means? She’s an uptight bitch TO YOU. You can bet your life that if the kind of guy she wanted, and she’s been looking for, said “good morning,” he could separate her from her panties in 4 hours or less. If she turns up her nose, all that says is “you are not that guy, get over it. Find someone at your level, because I am way the fuck above it.” She doesn’t “deserve” to consider herself to be better than you? Fuck you. You don’t get to decide that. It’s her vagina. Her standards. If her standards are unrealistic, she will figure that out. But no matter how low her standards go, she will never fuck the guy who catcalls her.

Never. IT NEVER WORKS, DUDE.

Now how about something a little less innocuous, but not awful. “Hey baby!” That’s one that some guys might try. Or whatever, insert catcall here. It doesn’t matter. Because if you have to resort to catcalling, by definition, you’re a shitty choice. You’re a bad mate choice. You’re not likely to be able to provide a comfortable life, good parenting assistance, or even interesting conversation in between bouts of coitus. You’re genetic refuse. Go jerk off into a sock until you figure out how to be worth more, dipshit.

I repeat: IT NEVER WORKS, DUDE.

In other words, yes, she has lovely plumage. You’ve strutted your stuff, and in 2 seconds, you communicated 4 billion years of evolutionary information to that woman’s ovaries — “THIS IS A BAD MATE, MOVE ON.”

IT NEVER WORKS.

And THAT is the message that you need to get out there, if you’re trying to end this kind of thing. Yes, yes, I know that every fucking Dworkinite out there wants this to be about the political construct of the phallocracy, or some other dumb shit. No. Its not about oppression. It is not about anything else but this very simple equation: These guys are doing what they believe is most likely to maximize their chances of putting their penis in that woman’s vagina. Somehow, they think that this will work. Guys would smear chipmunk feces on their faces if they thought it would get them laid. The ad campaign needs to be “IT DOES NOT WORK – IN FACT, IT ENSURES THAT YOU WILL NOT GET LAID!” There. Done.

Caveat: catcalling can sorta work – for bystanders. Its a great conversation starter. Dipshit says “hey, nice cunt” or something like that. Then, you look over and her and say “if that works, give me a chance to come up with something just as clever, ok?” She laughs. Dipshit leaves. You have just been dealt an inside straight. You take it from there.

You’re not going to elevate the social consciousness of the catcalling dumbass. They’re just stupid.

Stupid. Genetic. Refuse.

Their DNA is supposed to be left on the cutting room floor of life’s epic film. So, ladies, either just let that happen, or if you really want to convince guys to cut it out, you gotta speak to them rationally. Because guys are, if nothing else, rational, when it comes to getting laid. If they think it can work, they’ll try it. If they know it won’t work, they won’t do it. That’s the missing message.

You’re welcome.

Mayer Brown, shame on you. (日本、ストライサンド効果へようこそ)

The offensive statue.
Photo Courtesy of Melissa Wall, Ph.D. under a creative commons license.

Every law firm gets confronted (on a pretty regular basis) with the question: “should I put my name on this?”

That soul searching comes into play when you wonder, “is this honorable?” You know when it is, and when it isn’t.

I’m not talking about representing a client that you know is guilty — they deserve a defense. I’m not talking about representing a really evil client — because there might be an important legal issue in play.

I’m talking about when you do something truly disgusting.

That bar is pretty low. Despite the lawyer jokes, I have encountered few lawyers who have ever even approached that line.

If a law firm takes on the Nazi party as a client, in furtherance of some greater good, I do not look down on them. Nobody should. Represent a child pornographer? I can see plenty of justification there. There is almost no cause that doesn’t have some justification.

But, sometimes you gotta say “no.” Or, at least if you say “yes,” you must do so with class and dignity.

For example, if you represent a child molester, that is ok. You take it on from the point of “I may not condone what my client did, but he has a right to a defense.” But, if you put in your pleadings “the kid had it coming to him, he just looked so fucking sexy in that altar boy outfit,” well then… you are a dishonorable and filthy-taint-licking-piece-of-shit.

Ok, got that? That is the bar you need to step over. It doesn’t take strong leg muscles.

I’m sort of disappointed that I have to draw that distinction for anyone. But, I come to you with proof that this lesson is actually necessary.

Mayer Brown brings you this masterpiece— a lawsuit where they are trying remove a memorial for World War II “comfort women” from a public park. You see, it “offends” some of their clients. The cause itself is a bit slimy, but how they’re going about it qualifies them as “the least honorable law firm in the world.”

For those of you who do not know what the “comfort women” were — they were about 200,000 women (some say as many as 400,000) who were forced into working in whorehouses for Japanese soldiers during World War II. (source)

Many were abducted, and some were barely in their teens. “I was taken at the age of 11,” one former sex slave Kim Young-suk said.(source)

As you can imagine, these women were not terribly pleased with this treatment. And, wouldn’t you know it, but some of them are still all harping on the past.

The few surviving comfort women, all in their 80s and 90s, cry foul.

“I was walking along the side of the road when I was captured and taken away,” says Ok-Seon Yi.

It was 1942, and Japanese and Korean soldiers grabbed her and threw her in the back of a truck. Her family never knew what happened to her, she said, and gave her up for dead. She spent three years at a military brothel in China. She was 15.

She’s 87 now and lives in a home for survivors like her outside of Seoul. She’s tiny, with white hair, frail and quiet — until the subject turns to Japan.

She shakes her fist. “The Japanese government are thieves,” she says. “They’re trying to rewrite history.

“They have no right to take away my honor and dignity,” she adds.

She says she’s thankful for the memorials in the United States, and says America is the only country that can right the historic wrong. (source)

So in comes Mayer Brown to try and put and end to this outrage. Not the outrage of forcing a couple hundred thousand girls and women to suck the cocks of filthy imperial soldiers, mind you — but the atrocious conduct that happened in the City of Glendale, California. You see, the City of Glendale has done something awful — it put up a memorial to the “comfort women.”

“They were raped maybe 10 times a day. On weekends, as many as 40 to 50 times a day. The majority of them were teenagers,” says Phyllis Kim, who as part of Los Angeles’ Korean-American Forum helped bring the statue to Glendale. “There are victims who are still alive, and waiting for an apology.” (source)

This little statue does not sit well with… well, lets scratch our heads for a minute about that, shall we? Who are Mayer Brown’s “clients” in this lawsuit?

Two of the plaintiffs are Japanese-Americans who live in Glendale. The third plaintiff is an “organization” called “GAHT-US.”

Plaintiff GAHT-US Corporation (“GAHT-US”) is a non-profit public benefit corporation organized under the laws of the State of California. The purpose of GAHT-US is to provide accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role. (Complaint at Para. 7)

Well, if we look for GAHT-US (The “Global Alliance for Historical Truth”), what do we find? We find that it is a corporation that someone created on February 6, 2014. After 14 days of legal existence, this lawsuit was GAHT-US’s first act — well after slapping up a web page.

This “Global Alliance’s” address is 1223 Wilshire Boulevard #613. That’s a UPS Store.

The world headquarters of GAHT-US

Ok, so with that illustrious organization out of the way, lets look at the two people that they managed to get to stand up for this noble cause…

As a Glendale resident of Japanese heritage, [Michiko Shiota Gingery] believes the Public Monument presents an unfairly one-sided portrayal of the historical and political debate surrounding comfort women…” (Complaint at 2).

The other Plaintiff, Koichi Mera, had similar gripes. I do see their point. I mean, on one side you have all these women who were kept in sexual slavery and essentially gang raped for 4-5 years. But, where is the side of the poor Japanese soldiers who had to fuck them? What of them? Have you ever had to fuck a woman who was captive and crying? I mean, think of it? Those poor Japanese rapist soldiers. The fact that nobody thinks of the other side in this discussion is really distressing. Bravo, Mayer Brown, Bravo.

Additionally, the Plaintiffs are upset because the monument offends them. They “would like to use Glendale’s Central Park,” but they now avoid the park because they are offended by the Public Monument’s pointed expression of disapproval of Japan and the Japanese people.(Complaint at 2, 4)

Guess what? I bet the City of Glendale actually loves Japan and the Japanese People. Aside from the fact that they seem to have a disproportionately large number of scat porn enthusiasts (second only to Germany), and this little “comfort women” thing, the Japanese are a-ok by me. For fucks’ sake, they gave us Godzilla. After being the only country to ever get nuked into the stone age, they staggered around for about 18 months, and then they kicked the entire world’s ass at technology, amassing wealth and power on a level that it took 17 Italians to equal the productivity and innovation of one Japanese high school girl with a Hello Kitty purse.

But yes, we all have our blemishes — and government-organized mass rape is a pretty bad one.

So if the consequence of such a sick-as-fuck act is that there’s a bronze statue in the corner of some obscure park 10,000 miles from the nearest piece of Japanese territory, I think that’s pretty fair.

Ok, so their clients are offended and rich, (I presume the rich part). The complaint has at least some rational points. They seem frivolous, but not completely off the wall. One part of the complaint discusses how this memorial interferes with the foreign relations between the United States, Japan, and South Korea. (Complaint at 14). I’m not saying it is a supportable argument, as Boos v. Barry, 485 U.S. 312 (1988) seems to dispense with the key point here. In that case, a D.C. ordinance sought to suppress speech that might chafe foreign powers. This is a little different, since it is private citizens trying to suppress governmental speech, but the core of the matter is the same — smooth foreign relations are not a sufficient justification to suppress speech.

The complaint also makes one rational argument –That the monument went in without the proper procedure being followed before the Glendale City Council. (Complaint at 16). I have to agree with this one (if it is true) — cities should not be engaging in ultra vires acts. And, the complaint could have made those arguments, stating that the complaint was brought reluctantly. Or, just lay off the victims, but make the dull legal points.

But no.

No.

Instead, Mayer Brown put its name to gems like this:

During World War II and the decade leading up to it, an unknown number of women from Japan, Korea, China, and a number of nations in Southeast Asia, were recruited, employed, and/or otherwise acted as sexual partners for troops of the Japanese Empire in various parts of the Pacific Theater of war. These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute. (Complaint at Para. 14) (emphasis added)

You know… “whores.” They just “acted as sexual partners.”

I mean, lets just call them what they really were, BATTLE SLUTS!!!

Right now, my face is figuratively bright red and in searing pain from the epic facepalming that I am imagining doing to myself.

The complaint reads like a who’s who of hypocritical trash. Yoshikazu Noda, the poor mayor of Higashiosaka, Glendale’s sister city is quoted as saying that the installation of the monument was “an extremely deplorable situation and the people of Higashiosaka are hurt at a decision made by [Glendale] city to install a comfort woman monument.” (Complaint at Para. 38).

Awwww… does it hurt, Noda? Can you describe the pain? Is it anything like being kidnapped, and then being raped repeatedly, every day, for four or five years? Does it hurt like that? Or just like when you step on a Lego brick in the middle of the night — because that, I tell you, absolutely fucking smarts.

The Plaintiffs want the monument removed and kept off of any and all public property in Glendale, and of course, they want money. (Complaint at 17).

I will give them some credit — at least the complaint did not call for all the remaining comfort women to be rounded up and shipped off to Manzanar.

Despite that small bit of tactful omission, I have never seen anything this dishonorable with a law firm’s name attached to it. I’ve seen dumber shit. I’ve seen more frivolous shit. I’ve seen more unethical shit. But, never seen anything this foul or shameful with a law firm’s name attached to it.

The silver lining in this? Mayer Brown’s abject stupidity and dishonorable behavior will bring their clients into complete disrepute (which they deeply deserve), and will educate more people than ever on the history of the “comfort women.” The “comfort women” have already won this battle – and they aren’t even really on the field.

Don’t let the bastards get you down, “Comfort Women”… Mayer Brown just made your critics into complete laughingstocks.

UPDATE: Looks like Popehat is pissed off about it too

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me. (source)

First Amendment vs. Disabilities Act

(From Charles Platt) Is this a real threat, or just posturing? The ADA has already been extended far beyond the areas in which is was first designed to apply. I can certainly imagine regulations compelling web sites to be “equally accessible” to the disabled. Discussion here.

Talking to your kids about gay marriage

I used to have neighbors in Flori-duh, whose argument (to me anyhow) against gay marriage was “what am I supposed to tell my kids?”

Louis CK had a funny reply to that.

“It doesn’t have ANY effect on your life. What do you care? People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say ‘How am I supposed to explain to my child that two men are getting married?’ I dunno, it’s your shitty kid, you fuckin’ tell ’em. Why is that anyone else’s problem? Two guys are in LOVE but they can’t get married because YOU don’t want to talk to your ugly child for five fuckin’ minutes?”

The issue came up with my daughter, yesterday. Age 4.

She asked what I was reading. I told her, “an article about a Supreme Court case” – 5 questions later, and it was time to make something up, or just tell her, and see if she got it.

I brought up one couple we know who are legally married (and happen to be my son’s “godfathers”). I told her “they are married, like mama and daddy, because they love each other.”

“Oh” she said.

I then told her about our cousin and his boyfriend of 25 years – who we also refer to as “cousin.” I said “they love each other just as much, but they are not allowed to get married, because they live in Las Vegas, which is in Nevada.”

“Oh. That’s not fair.”

There… conversation had. That wasn’t so hard.

Iowa bar faces discrimination claim over bar-dancing policy

By J. DeVoy

An admittedly portly University of Iowa undergrad, Jordan Ramos, is accusing a local nightclub for refusing to let her dance on the bar.  Simultaneously, if she had danced on the bar, fallen and been injured – she would almost certainly have sued the bar anyway.  Either way, it is a frivolous claim.  And, hopefully, a victory for the establishment, the Union Bar, on a motion to dismiss in either circumstance.

Jordan Ramos was denied the opportunity to stand atop a bar platform and dance for onlookers.  In Las Vegas, nightclubs hire go-go dancers for this specific purpose.  In Iowa City, the bars apparently take what they can get and even allow walk-ons.  Ramos was denied the opportunity to scale the bar and dance atop it in March.  When she returned to the bar in April, she once again was denied access to a dancing platform:

“[A bouncer] said, ‘You’re not pretty enough and you’re pregnant.’ I said, ‘I can tell you with 100 percent certainty that I am not pregnant.’ He then looked at my stomach and said, ‘You obviously are.’ They knew I was not pregnant; it was there way of calling me fat without having to actually say it,” Ramos said. (source)

Surely no woman inside a nightclub has ever lied; nor has pregnancy ever been the subject of untruth.

I do wonder if Ramos and any lawyer pursuing the claim will be sanctioned by a court if it is filed.  The story raises a serious question as to whether she knows she had no claim against the bar:

Ramos approached the Human Rights Commission in Iowa City, but the organization told her they could not do an investigation because size discrimination is not illegal by law, Ramos said. (source)

If Ramos tells her attorney about the commission’s finding and he/she was aware of it at the time of filing suit, there’s a good argument for sanctions against Ramos and even her attorney.  Even if filed pro se, Ramos’ action will force the bar to mount a defense and research why weight discrimination by a private company (even one offering a place of public accommodation) is not unlawful in Iowa – a few thousand dollars that can and should stay in the venue’s hands.

Who emboldened Ramos to do this stupid shit?  Certainly not a lawyer, who like the Human Rights Commission would have done some research and seen that Iowa law does not outlaw size discrimination.  No, it was a social work professor – someone who, true to the maxim, could not do social work, and thus opted to teach it instead:

A social work professor at the University of Iowa told Ramos to return to the bar.

“She told my friends and I to go back and see if the same thing happens and to try to get them to say aloud ‘I am not allowing you up because of your size,’” Ramos said. (source)

Sorry, dipshit; being “othered” is not a cause of action.  This subthread to the story is another vignette justifying my intense dislike for social workers along with teachers as the scylla and charybdis of useless public sector jobs, leading hundreds of millions of dollars in public funds to a useless demise.

Every few years one of these disputes arise, and yet “face policies” persist.  There are several reasons for this, the first being that state laws cannot reasonably adapt to subjective categories of discrimination such as “size” the way they can to objective standards like race, national origin and religion – making it difficult, if not impossible, to outlaw these other forms of discrimination.  Additionally, they work.  Why do people wait for hours and pay hundreds of dollars to get into Marquee, XS or Haze?  Is it because they’re letting John and Jane Q Public in the door with flip-flops, unflattering clothing and an unseemly gait? Hint: No.  Keeping out average people is a way to maintain exclusivity and charge supracompetitive prices for an utterly forgettable experience, converting admission to the venue into intangible social capital.

Unfortunately, the outcome of drunken people dancing on elevated surfaces normally is injury.  While the bar may or may not be liable for the injuries dancers suffer from their activities, it’s easier to avoid litigation that will cost far more than this motion to dismiss to find out the contours of this responsibility.  There are a number of facts that point in both directions, such as bouncers regulating who may or may not dance, as well as the provision of flat surfaces amenable to dancing (and the accepted practice of patrons doing so).  While an imperfect policy, the bouncers did what they could: Screening for people who appeared to have the litheness and balance to dance without causing themselves injury.

Under California law, the venue’s actions arguably would be expressive conduct – the setting, enforcement and expression of a policy put in place for patron safety and bar profitability under Cal. Code of Civil Procedure § 425.16.  A suit based on Ramos’ claims could face dismissal under California’s anti-SLAPP statute, and leave the aggrieved student to pay the bar’s legal fees – as she should.  Iowa, however, has no anti-SLAPP statute at all.

As for Ms. Ramos, perhaps she should go to the gym before the courthouse.  The world is not a nice place, and not every ugly duckling matures into a graceful swan.  I do not complain about “discrimination” at the hands of bodybuilding competitions because I’d be laughed off the stage in spite of the time I spend in the gym.  Her disappointment in life – and I believe there will be lots of it, given her seemingly hypersensitive leap to litigation in this instance – is not actionable.

EDIT: Re-reading the articles, I see there is no claim that a lawsuit has been filed, no reference to a case, and no docket number provided.  Apparently there is no active litigation.  So – why is this news?

Are Topless Photos Worth $50,000,000?

The lawyer for Sheriff’s Deputy Krystal Rice seems to think so.  Click here and here to see for yourself.

Nutshell version:  while a cadet, a superior officer convinces her to let him take risque photos, which he promises will only be used for official business in investigating sexual predators.  While she should have been tipped off when he claimed he was storing them on a 3 1/2″ floppy disk in 2004, not 1994, she nevertheless consented.  Lo, and behold! He shared the photos and hit on her.  She claims defamation of character, IIED, and some nebulous respondeat superior breach of duty claim.  Umm, who blew the Title VII sexual harassment deadline?  Or, heck, how about a 1983 claim? I see no immunity defense, so that should have been pleaded.

Maybe the attorney came on late and wants to stay in state court, so I’ll give the benefit of the doubt, but I’m not buying the $50m damages.

Sometimes, I think the courts should create a new defense of “Really? You really thought that? Really?”  Yes, he took advantage of her and acted inappropriately, but she should have seen this coming.

When Disabilities Compete

Gentlemen, start your engines.  The city of Indianapolis is facing a lawsuit arising from competing disability claims.  In one corner, a person using a service dog to help them with their disability (while the typical scenario is the seeing-eye dog, apparently this is a paprika-sniffing dog).  In the other, a person with a dog allergy. 

The Americans with Disabilities Act (along, likely, with the Indiana state law equivalent), in a nutshell, requires employers to not discriminate against employees in the terms and conditions of their employment on the basis of a disability, so long as the employee can perform the essention functions of their job with or without reasonable accommodation.  Here is where it gets sticky.  Let’s first assume both employees in question are disabled within the meaning of the statute, which they likely are as they suffer from physical impairments (exposure to specific allergens) that substantially limit a major life activity (e.g. anaphylaxis preventing breathing in severe reactions).  Using a service dog or preventing dogs in the workplace are both likely reasonable accommodations.  Problem is, these are mutually exclusive accommodations.

Of course, there is an escape clause:  employers are not required to make an accommodation, even if reasonable, if it otherwise would impose an undue hardship.  Here, if the dog-allergy employee (DAE) is valuable, the employer could state that it would be an undue hardship to permit dogs as it would cause the loss of services of the DAE.  It is an affirmative defense that the employer would have to prove, though it may be conflated with the reasonableness of the paprika-allergy employee’s (PAE’s) request.  Also, employers are not required to provide the most reasonable accommodations, or the best reasonable accommodations, but rather one of the list of possible reasonable accommodations.

In the choice between DAE and PAE, the employer is free to choose DAE.  However, the inquiry does not end there.  The city apparently offered her only her job w/o dog or unpaid leave, neither of which are reasonable.  What about a transfer of position or location that could accommodate both?  Cities are usually sufficiently spread out to permit such an accommodation, so long as there is no conflict with civil service laws or collective bargaining agreements.  So, PAE may yet have a case; in the meantime, she should be eligible for unemployment benefits.

Also, who knew?  Paprika is everywhere!

Feminist War of 2012

By Tatiana von Tauber

I’m embarrassed to be an American woman with witness to the current state of the Union.

Being a woman is without a doubt the most difficult process of becoming I’ve ever undertaken especially since I began my role as a mother 14 years ago. Nothing prepares you for the experience of motherhood better than truth and so I feel the same about the future of young girls in America.  There are many I know who were totally lost in the wake of the conservative pool of stupidity in the days of GWBush and his side’s abstinence education policies in American schools.  There is an entire generation of kids who are completely misinformed about birth control and sex because of religion.

More and more I feel battered by having the feeling women were given erotic beauty for reproductive purposes – that selfish gene – and then, as though being whores weren’t enough, women were thrown into the immature flatlands of male needs where they were then expected to create synthesis. However, a bit of a power struggle later, women became those to not only seduce, but birth, nurture and support an entire family, if not society yet be given “jump for the carrot” freedom on body parts – by the very men they birthed!  How did America come to be like this? If American politics continue to enter the domain of a female’s sex life,  America has little to offer women of the next generation.

I’m drained from realizing Congress is really a bunch of men who can’t get their heads out of the female genitalia.  If they don’t pay to get in one they pay for others to stay out of one!  For the men who are playing around with this issue, women are only a piece of ass and little more, except maybe for their little girls who are a piece of ass for the boy next door. For women who support recent attacks on female rights in the name of being faithful to a God, I have no words, only disgust.

Reproductive rights, the womb, women’s health – all of it has to do with the absolute power this birth right gives to women; and patriarchy has never been stronger in modern America! As an American I am so appalled at this downfall of this great nation – that the womb and its ownership, the vagina and a woman’s health are on the table of political discussion rather than the real issues that need immediate attention, it all makes me want to throw up on Congress.

The bottom line to all this rhetoric is this: women have the power to veto men through sex and men don’t like that. Thank you Dr. Leonard Shlain for helping me understand this through your wonderful work, Sex, Time and Power (may you rest in peace) but how about a little help down here with the rest of the blind folks, eh?

The last time I checked, my kidney belonged to me and nobody could force me to do anything specific with it.  The main reason the womb is different is because it controls males’ sex lives.  The fact that women are under attack, in America, in 2012 stuns me.

Here’s my contribution to the debate: “Feminist War of 2012”.  I designed this back in 2007 or so and struggled with a proper title.  The Image just found its perfect match and almost sadly, its perfect time.

"Feminist War of 2012", ltd. ed. Giclee, 13"x19" by Tatiana von Tauber

Bonus material to chew on: 

Speaking of controlling women, this is an example of how women get screwed by men and the baby fantasy and how media uses them to make money to help glorify the chaos and continue the cycle.  See Kate Gosselin, mother of 8 now.

Great post and kick ass quote: The Body Politic, “This campaign needs more women and less gynecology” – Virginia Heffernan

Muslim judge in Pennsylvania limits 1st Amendment

From Charles Platt

A judge in Pennsylvania who just happens to be of muslim faith informed a plaintiff that the 1st Amendment doesn’t necessarily give you the right to “p people off.” The plaintiff had worn a “Zombie Mohammed” costume in a public parade in Mechanicsburg, thus enraging a muslim observer who ran forward and tried to choke the man until police intervened. Charges of harassment, filed against the muslim for trying to choke the demonstrator, were dismissed by the muslim judge. Details here.

First Amendment trumps Equal Opportunity Employment

Today, the Supreme Court in Hosanna-Tabor Church v. EEOC  issued a unanimous ruling on the First Amendment.  While this blog regularly celebrates the Freedom of Speech clause, the decision focuses primarily on the Free Exercise Clause and, to a lesser extent, the Establishment Clause.

In a nutshell:

1. Church had 2 types of teacher–lay and ministerial.
2. Ministerial teacher develops disability and takes leave of absense; replaced by lay teacher.
3. Church rules normally prioritize ministerial teachers, but when this teacher tries to get her job back, she is denied.
4. She becomes insubordinate and complains of an ADA violation.
5. She is terminated.
6. Teacher sues the church for retaliation against her for making an ADA claim.
7. Supreme Court says church wins.

Assuming there was blatant retaliation, the church still wins.  Why?  Because if the government were to tell a church they couldn’t fire a particular minister, that would prevent a church from freely deciding who gets to spread the gospel and who doesn’t.  To its extreme, though excepted specifically in Title VII, if the government had the power to dictate who a church could fire, it could prevent the Pope from defrocking an American Bishop who pronounces the Shahada and converts to Islam.  Basically, the 1st Amendment lets a religion freely decide who gets to be a minister, even if the reasons for hiring or firing are otherwise abhorrent to society.  If you don’t like it, you are free to change religions.  Or declare the person who did the firing a heretic and stone them.  Either way.

Your morning after screw

By Tatiana von Tauber

And if Obama had two boys?

I’m deeply disappointed by the recent decision to eliminate easier access to the so called morning after pill by girls 17 and under. I fully get where Obama gets his mindset from. I’m a parent of 2 girls, one 13 and very pretty.

Obama’s decision to side with Health and Human Services Secretary Kathleen Sebelius who overruled scientists at the Food and Drug Administration was a poor one. While he’s coming from a good place, may be a good father and honorable in doing what he thinks most parents would want, he just missed to boat of doing what’s actually in the best interest of young girls rather than what’s in the best interest of a parents’ wish for young girls.  As far as HHS Secretary Kathleen Sebelius, may you have bad traffic and no easy access parking the entire holiday season!  And I mean that.

Nothing, and I mean, nothing is more important to me as a female than ensuring other females have rightful ownership of their reproductive system no matter what their age.  Without our womb, society can’t get very far. It’s the most powerful tool women have and thus, the rest is repeat history. 

State of the female union

The majority of young girls – exampled as 11 and 12 year olds for the poor reasoning labeled “common sense”  which aided the elimination of this pill over the counter,  aren’t that young often enough to discredit the good of the pill to older girls. It blatantly discriminates.  

While it would statistically occur perhaps, the numbers would be small to have  little girls, basically,  just head over to the supermarket by the condoms isle and buy a $50 pill.  This is so ludicrous that you have to be an idiot to side with it if not for political reasons. AND, if young girls did do that, then bravo for them taking pro-active measure to fix their screw up. 

Who to trust when adults don’t give you all the facts?

I have never seen an influx of pro-lifers opting to fund, house or care for the millions of unplanned children of the world.  embryos are great in utero.  They’re fresh potential to mold.  Religion needs followers and governments need taxes.  Someone has to produce human beings at all costs.

“The FDA did not have the data to support a decision of this magnitude,” said Rep. Joe Pitts, R-Pa. “The secretary pointed out obvious deficiencies in the research and acted in the interest of young girls.”

Really?  Of this magnitude?  This pill has been used for decades in Europe and the issue of great magnitude is the subtle and sly attempt to strip females of what has always been rightfully theirs. 

How to Fix this?

Here’s a suggestion then which truly does act in the interest of young girls:

How about yearly comprehensive sex education for boys and girls in the pubic school system mandated by federal and secular standards, not state.  In GA my daughter met several young girls who actually believed they could get pregnant from kissing!  This is sick in a country which claims such global superpower. 

What about introducing reasonably easy access to free or reduced priced condoms or birth control to under aged girls  instead of empty promises of abstinence whilst a nice hard cock stands to seduce.  Perhaps if we reframe the way we view sex and morality the morning after pill can be marketed as an “Oops! Did you miss your birth control pill last night? We understand the heavy responsibilities a vagina and womb bring, so we’re here to help. Plan B.  Here for you when Plan A bombs.” However, because it’s also used and known as an abortion pill, everything changes. 

If God was so intelligent, why didn’t he make it so menses began at 18?  If God can allow pre-teen girls to get a period, the intent is quite frankly, for them to reproduce.  The morality stick should be poking God himself, not our young females. It’s sickening that taxpayers fund government salaries and research to pay for morality treatments as we hush science, logic and individual freedom.

The Aroma of Tacoma Smells Like a Can of STFU.

Back in 2009, Washington State Governor Christine Gregiore signed SB 5688, the so-called “Everything But Marriage” act. Source. Shortly thereafter, a group of concerned citizens calling themselves Protect Marriage Washington got enough signatures to place a referendum challenging the bill. Protecting marriage from what, exactly, remains a mystery but Imma call them “The Protectors” anyway. No word on if they have capes with an Xed-out picture of two guys holding hands. Anyway, shortly after Washington Secretary of State Gary Reed determined the signatures were valid, he received a public records request under Wash. Rev. Code §42.56.001 for the names and addresses of the 137,000 signatory Protectors. The Protectors didn’t like that one bit and asked for a preliminary injunction to prevent Secretary Reed from complying with the request. They are trying to say that disclosing their names and addresses violates the First Amendment because referendum petitions are political speech and the resulting harassment they would (allegedly) receive would stifle that speech. This case wound its way all the way to the Supreme Court. Here’s the Opinion: Doe v. Reed.

Boiled down, the Protector’s main gripe is that the government’s interest in preventing voter fraud and the integrity of the electoral process pales in comparison to the stifling of their first amendment rights because the public records request was made to harass them for their political views. The Big Dogs didn’t buy it. Justice Stevens’ concurrence sounded a little like “Why the hell are we even here?” so that was a treat.  But the Nine did recognize that disclosure requirements could stifle speech in some cases and even allowed for an exemption if there is a “reasonable probability that the disclosure would result in threats or harassment.” They didn’t address whether the request was unconstitutional as applied to this particular petition, so the parties got sent packing back to the District Court in Tacoma to figure it out. Both promptly filed motions for summary judgment. Source.

The Protectors tried to convince the Court that they should be afforded the disclosure exemption because their paltry 137,000 signers are a minority party akin to the NAACP in 1958 or the 60 member Socialist Party in 1976.  Really Protectors? Really? Anyway, Judge Settle disagrees. And even if the Protectors could be granted minority status, they still would have had to produce…uhm….oh yeah. Evidence. But, awshucks, they couldn’t come up with anything to show that they had experienced harassment, threats, or reprisals due to their involvement with the referendum. Oh-did I mention several of the Protectors posted YouTube videos, had television and radio interviews, stood on street corners with signs, testified before the Washington State Legislature, collected signatures in front of Wal Mart and Target, put signs in their front yards, had bumper stickers on their cars, and published articles about their anti-gay position? Yeah, they did that. But we need to protect their anonymity because they might be harassed because of this stupid petition.

Look, part of being a junk yard dog for the First Amendment means that sometimes I have to defend speech I find repulsive. For what it’s worth, I think the Protect Marriage folks are bunch of hate-spewing morons. They seek to stifle the speech of those opposing a view they willingly cram down our throats and then hide behind the very Amendment they kick in the nuts when it comes to other people’s naughty bits. BUT- If they could have come up with evidence showing a probability that they were being harassed, threatened, and harangued to the point they were fearful of expressing their view, I would argue in favor of exempting them from disclosure.  But the Protector’s evidence of harassment consists of testimony that shows a pastor got a call from a *gasp* transgender woman. The horror! Another Protector got flipped off one day *shudder*! One guy even got called a homophobic bigot. The shame! No one was fearful to testify in the case. No one is being clubbed. No one is being swept down the street by fire hoses. The worst they could show is that sometimes the Protectors are called “assholes” and told that their platform “is a bunch of shit”. Well, if the shoe fits, Cinderella…

For the Record … Anti-Mormonism is not “bigotry” (neither is any other anti-religious sentiment)

James Fallows over at the Atlantic says, “Just for the Record: Anti-Mormonism Is Bigotry Too.”

No. No it is not.

Fallows sums his position up:

To be against Mitt Romney (or Jon Huntsman or Harry Reid or Orrin Hatch) because of his religion is just plain bigotry. Exactly as it would have been to oppose Barack Obama because of his race or Joe Lieberman because of his faith or Hillary Clinton or Michele Bachmann because of their gender or Mario Rubio or Nikki Haley because of their ethnicity. (source)

If a candidate believes in trickle-down economics, and you are against him for his beliefs, that isn’t bigotry. That’s looking at his views, realizing that they are incompatible with logic, and dismissing him because he’s an idiot.

If you are against someone for being Hispanic or Black, that’s bigotry. The color of someone’s skin doesn’t necessarily say anything about their beliefs or how they will behave.

But being against someone for what they believe, that’s not bigotry. That’s being a rational person. And there is no way I want someone leading my country if they believe that some snake oil salesman found magic gold tablets, that only he could see, and read some magic words from it, and discovered that people should wear magic underwear. I am perfectly comfortable with someone who believes that having dinner at my house, or even teaching my kids, and marrying my sister, but I don’t trust them with the nuclear launch codes.

That’s not bigotry. A Mormon can change his views, if he wants to.

Marco Rubio can’t wake up tomorrow and say “y’know, I’m sick of being Cuban. I think I’ll be Irish now.” Hating on him for being Cuban — that’s bigotry.

Don’t mistake this for a post singling out the Mormons. Their beliefs are no different than those of any other cult. If you believe in a magic space zombie Jew, you’re not rational enough to be president either. At least not in my eyes. Islam? It doesn’t have any edge over Mormonism or Christianity.

The analysis gets a little tricky with Jews (sigh, doesn’t it always). You have to figure out if you’re dealing with a secular Jew or a religious one. Sammy Davis Jr. would have been unqualified to be President in my eyes, not because he was black, but because he believed that there is a magic space man who, after creating heaven and earth, decided that he didn’t want people to eat bacon, but he did want people to cut the tips off of little boys’ penises. Albert Einstein, Carl Sagan, and Golda Meir were qualified to run things. Joe Lieberman? Fuck no.

If you believe in some magic voodoo shit, good for you. If it works for you, believe it. I don’t care if you believe in a magic pink monkey that flies out of the ass of whales with a blue bucket on its head singing show tunes.

If you believe in such things, you still might be the coolest guy in the world. I would fight with everything I have to protect your right to believe in those things — no matter how I feel about them. I might even want to be best friends with you. I have friends who believe in some of the goofiest shit ever, from Orthodox Jews to Christians to Muslims, and I even think I have a Scientologist in there somewhere. Being religious is no disqualification from being on my good side.

But there’s no damn way I’d vote to let them run the country — not until they wake up from their self-imposed delusion.

If you disagree, you’re in good company. My view is totally screwed. I doubt we’ll ever have an openly-Atheist president. Not until there is a revolution.

As an Atheist, I don’t call that “anti-Atheist bigotry.” If you wouldn’t let me run things because I don’t believe in goblins, it doesn’t make you a bigot. It just makes you disagree with something that I have chosen to believe (or not believe, as it were).

That’s not bigotry.

Well wrap me up in semen and diamonds and lick me

by Tatiana von Tauber

Supermodel Naomi Campbell is insulted at being compared to Cadbury’s Dairy Milk Bliss chocolate as in this ad. She’s considering legal action at its racist tone.

If Cadbury’s Dairy Milk Bliss were white chocolate and compared to a white supermodel, I wonder if racism would come into the interpretation zone. Sexism might as who doesn’t love to lick chocolate and we could interpret that white chocolate subtly refers to creamy semen giving a whole new meaning to “milk bliss”. Interpretations are something interesting aren’t they?