"Francis A. Miniter"
attglobalZZ.net> wrote in message
news:460db321@kcnews01...
>> No. I write about those who do.
>
>
> Interesting. Books, articles, or what?
No comment.
>>>>The defendant settles in order to avoid the expense of a lawsuit.
>>>Usually not, in fact.
>> Are you suggesting most meritorious cases go to trial?
> Yes. Partly out of arrogance on the part of the corporate defendants
> who figure that they can outspend the plaintiff.
I'll take your word for the ratio. That is at odds with the course of civil
litigation generally, but a brief Google search turned up no specific data.
>> It doesn't have to be a party. The EEOC investigates the charges ---
>> about 30,000 per year (of the 80,000 or so filed; the rest are
>> dismissed as "no cause"), disrupting the employer. Of those which it
>> finds have "reasonable cause," it proposes mediation.
> The EEOC and its state counterparts do two things: (1) they provide a
> low-cost, fast investigation of the merits of a case, at the probable
> cause level - and prior to the probable cause hearing they will attempt
> an hour or two of mediation; (2) if the case is meritorious and if the
> complainant does not choose to remove the matter to [federal] court,
> then they provide a low cost, streamlined administrative court for
> trying the case. No dilatory depositions, and trial in less than nine
> months (in Connecticut, at least).
You just confirmed what I said, i.e., that the EEOC is very much involved.
> I do a lot of this stuff and I have yet to see more than a very small
> handful of cases where public interest organizations - whether public or
> private - get involved. Far more likely, and still a rare event, is
> funding of counsel by a group like the NAACP on a case that it believes
> has national merit.
In the area with which I'm most familiar, "fair housing," NGOs and
publicly-subsidized law firms represent virtually all plaintiffs. I'd like
to see stats on their relative role in EEO cases. Since the EEOC has already
done most of the work, I can see how it may be smaller.
>>>> If any employee believes she has a cause of action for
>>>>being subjected to a "hostile work environment," let her bring a tort
>>>>action, at her own expense, and produce some common law arguments
>>>>supporting it.
> That is what is happening, except that there is no federal common law;
> the action is brought pursuant to the federal bar on discrimination and
> the jurisdiction of the federal court is based on the existence of a
> federal question under 28 U. S. Code Sec. 1331.
Ever wonder why there is no federal common law? HINT: it is because federal
courts are not courts of general jurisdiction. Plaintiffs with tort
complaints belong in state courts. But for an inane and unconstitutional
federal statute, those would include allegations of "damages" from dirty
jokes.
>> The loss of income is not the damage she is alleging. She is alleging
>> being damaged by an off-color joke or a rude comment. *That* is the
>> damage she needs to prove, and that she needs to mitigate.
> No court would expect her to have to mitigate that.
Not under current law, obviously.
> Mitigation goes to monetary loss only.
Exactly. Which is why, if a claim of "hostile work environment" cannot be
translated into a monetary loss, then there is no basis for a tort action.
The plaintiff would have to seek some kind of equitable remedy (and prove
she was entitled to it).
> Your argument would be a boon for the employer-
> violator by ridding it of the person it wants to get rid of.
Now, now. He does not wish to get rid of the employee (until she sues him).
> No, that
> will not go. The employer has to ameliorate the situation. Not vice
> versa.
Begs the question.
>> OK morally speaking, or OK pragmatically speaking? Certainly "yes" to
>> the former, but usually "no" to the latter. If someone sticks a gun in
>> your ribs and declares, "Your money or your life," you will usually be
>> wise to hand over the money.
> The executive - especially this one - does little in that regard. It is
> left to private parties.
The EEOC and HUD are part of the Executive Branch.
>> Oh, rubbish. The two statutes name the same defendant class, namely,
>> "any person who, under color of any law, statute, ordinance,
>> regulation, or custom,
>
> Those words mean a public official. It is not at all the same defendant
> class as that covered by the 1866 statute. As early as 1871, the courts
> had made it clear that public officials did not come under the 1866 law.
> That is why the 1871 law was passed.
The above quote was from the 1866 act. In full:
"SEC. 2. And be it further enacted, That any person who, under color of any
law, statute, ordinance, regulation, or custom, shall subject, or cause to
be subjected, any inhabitant of any State or Territory to the deprivation of
any right secured or protected by this act, or to different punishment,
pains, or penalties on account of such person having at any time been held
in a condition of slavery or involuntary servitude, except as a punishment
for crime whereof the party shall have been duly convicted, or by reason of
his color or race, than is prescribed for the punishment of white persons,
shall be deemed guilty of a misdemeanor . . ."
1871 Act:
"Every person who under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, Suit in equity, or other
proper proceeding for redress . . ."
>> The 1875 Civil Rights Act attempted to bar private discrimination in
>> "public accomodations." It was struck down by the Supreme Court on the
>> ground I just mentioned --- that the 14th Amendment does not reach
>> private discrimination, and that Congress therefore has no power to
>> legislate in that area. That decision settled that issue with respect
>> to the 1866 and 1871 Acts (if there ever was one).
>>
>
> Can you give me a case cite? I can assure you there are thousands of
> opinions on the 1866 and 1871 laws interpreting them as I say. Take a
> look at the West Annotated U. S. Code. The headnotes for sections 1981
> and 1983 take up one full volume.
> The 1964 legislation was enacted because the courts had been giving a
> narrow interpretation to Sections 1981 and 1983, which set forth general
> principles only. Congress basically said, "We are going to clarify for
> you what we think those two paragraphs were intended to mean. We are
> also going to provide an expedited way for the vast majority of claims
> to be decided without flooding the courts."
Nonsense. The "narrowness" had nothing to do with "general principles." It
had to do with the plain words of the 14th Amendment, which holds that "nor
shall any *State* deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws." There is no authority whatsoever there to regulate
private conduct.
The 1964 Act was grounded on the Interstate Commerce Clause, not the 14th
Amendment, simply because the Courts had long ago ruled that the 14th did
not extend to regulating private conduct. So they cooked up another pretext,
one so far-fetched that it would never have occurred to the drafters of the
1875 law.
http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964
The Supreme Court bought that specious pretext in Heart of Atlanta Motel v.
US (379 U.S. 241).
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0379_0241_ZS.html
It you give it some thought, it may strike you just how bizarre that
perambulation is. The Constitutional provisions which were clearly adopted
to redress the evils of slavery could not reach private discrimination. Yet
100 years later, the Court can decide that the commerce clause, which has
nothing to do with discrimination or slavery, is up to the job.
If you can accept that contrivance with a straight face you have no sense of
humor.
