DAMNED IF YOU DO, DAMNED IF YOU DON’T: Two weeks ago, Target settled a class-action lawsuit filed by the NAACP Legal Defense Fund for $3.74 million. The claim was that by asking job applicants about their criminal records, Target was discriminating against African Americans and Hispanics, since they are more likely to have a criminal record.

Meanwhile, in response to public pressure, Uber is upping its efforts to check into its drivers’ criminal backgrounds.

Will Uber now become a lawsuit target? Maybe.

This is an area of the law that really jumped the track. The EEOC’s policy is so vague that employers frequently have no idea what they can or cannot do. But more important, declining to hire someone because he has committed crimes isn’t race discrimination. The EEOC is not supposed to have jurisdiction under Title VII unless the employer has discriminated on the basis of race, color, religion, sex or national origin.

Alas, however, the “disparate impact” theory of liability (upon which the EEOC and the NAACP Legal Defense Fund rely) is well-entrenched in the law. For the skinny on how that came to be and why it is a terrible idea, read my Statement on the EEOC’s Criminal Background Check Policy.

(Remember when MLK said he looked forward to the day when his children would be judged by the content of their character rather than their skin color?   Judging job applicants by their criminal record is as close to judging them by the content of their character as we mortals can hope to get. Sure, some people deserve a second chance, but shouldn’t that be up to the employer?)

MORE NAILS IN LIMITED GOVERNMENT’S COFFIN?: Did you know that Congress claims its authority to ban hate crimes based on race or color from the 13th Amendment to the Constitution? That’s the amendment that bans slavery. It’s … well …. kind of a stretch, since, as you may have noticed, hate crimes aren’t slavery.  And Congress wasn’t foolish enough even to claim it enacted the law to keep slavery from returning.

The Supreme Court will likely be asked to address the issue in Metcalf v. United States, a case recently before the U.S Court of Appeals for the Eighth Circuit.  It’s fair to say that these days the 13th amendment is one of the Left’s favorite vehicles for expanding governmental power.

BTW: No, I don’t endorse hate crimes. Indeed, I endorse neither hatred nor crime. But advocates of limited government under the Constitution do not always get to choose their allies.

Also:  Congress claims its authority to ban other kinds of hate crimes on the Commerce Clause.

TODAY IS THE 124^th ANNIVERSARY OF NIKITA KHRUSHCHEV’S BIRTH: Khrushchev was all too willing to assist with Stalin’s infamous purges and was Stalin’s enforcer in Ukraine.   But at least later in life, he came to understand that Stalin was a dangerous maniac. After Stalin’s death, he emerged (hands bloodied) as the Soviet Union’s leader from 1953 to 1964 and pursued a policy of De-Stalinization.

Khrushchev’s grip on power was never as tight as Stalin’s.  On the night of his ouster (engineered by Leonid Brezhnev), he is reported to have told a friend:

“I’m old and tired. Let them cope by themselves. I’ve done the main thing. Could anyone have dreamed of telling Stalin that he didn’t suit us anymore and suggesting he retire? Not even a wet spot would have remained where we had been standing. Now everything is different. The fear is gone, and we can talk as equals. That’s my contribution. I won’t put up a fight.”

Khrushchev is famous for having told a room full of Western ambassadors, “WE WILL BURY YOU!” Instead, he is buried at Novodevichy Cemetery. Brezhnev refused him a state funeral or Kremlin burial. To Brezhnev, he was just an annoying squish.  Take a look at his monument at the cemetery. It’s in black and white–a fitting metaphor for the man.

PREDICTABLE: #HashtagDiplomacyHasn’tExactlySavedTheWorld—It was four years ago today that Boko Haram militants in war-torn northeastern Nigeria kidnapped hundreds of young schoolgirls. A few escaped. And as a result of negotiations with the militants, about a hundred have since been freed. But more than a hundred are still missing. Some are thought to be dead. And there have been many more group kidnappings by Boko Haram.

O CAPTAIN!  MY CAPTAIN!  On this day in 1865, Abraham Lincoln was shot at Ford’s Theatre.

PRONOUN WARS: A self-described radical feminist (of the kind now being called “Trans Exclusionary Radical Feminists” or “TERFs”) is thuggishly attacked by a male-to-female transgender. At the latter’s trial for “assault by beating,” U.K. District Judge Kenneth Grant admonishes the victim to refer to her transgender attacker as “she.” She balks: “I’m used to thinking of this person who is a male as male.”

It is interesting to see that not all feminists are buying into the new thinking (and that indeed there is now a term for those who don’t).  The Left coalition is under considerable strain.

FIFTEEN MINUTES OF FAME SHOULD BE MANDATORY FOR EVERYONE: Gay rights advocates want Illinois schools to be required to teach LGBT history.

SAFE SPACES FOR REASONED DISCUSSION: UCLA law professor Richard Sander visited Middlebury College last week at the invitation of College Republicans. Good for him.  And kudos to the College Republicans for having the intestinal fortitude to insist bringing in a distinguished, conservative speaker with something to say. Conscientious students must not let the campus brown shirts win. If they shout down one speaker who they find offensive, invite three more in their place. The more people outside of colleges and universities hear about it, the better.

Sander is the leading academic researcher on the topic of “mismatch” (though Thomas Sowell coined the term long ago). For a primer on mismatch, try A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students.

THE VIRUS HAS SPREAD TO LAW SCHOOLS:  Students at CUNY Law protest and heckle Prof. Josh Blackman’s lecture on campus free speech.

INTERN NATION: I have a lot of sympathy for students and recent college grads who complain that they shouldn’t have to work for free as interns to order to land a paying job. When I was fresh out of school that was rare. But I would have more sympathy for them if they understood how the over-regulation of the employment relationship is what leads employers to shy away from hiring an inexperienced employee before he or she has served a “try-out period.” “Intern nation” is the result of the fact that it is very hard to fire an employee who turns out to be an uncooperative jerk without risking a lawsuit. Instead of recognizing the problem, Millennials ask for more regulation.

ATTENTION CONSERVATIVE/LIBERTARIAN ATTORNEYS WHO WOULD LIKE TO HELP REIN IN THE VORACIOUS FEDERAL LEVIATHAN: Please pay attention to Roger Clegg’s WSJ Letter to the Editor. He speaketh the truth:

Regarding “Judges Can Check the Administrative State” by Peter J. Wallison (April 6): The best candidates for the kind of judicial action Mr. Wallison calls for are the disparate-impact regulations that federal agencies have adopted, supposedly pursuant to the enforcement of Title VI of the 1964 Civil Rights Act, which bars discrimination on the basis of race, color and national origin in federally funded programs and activities.

That’s because the Supreme Court has ruled repeatedly that this statute bans only “disparate treatment” and doesn’t ban practices that have only a “disparate impact.” …

Here’s something to help you present the legal point. Happy lawsuit!

HAVE 1 IN 5 COLLEGE WOMEN BEEN RAPED?: No, it isn’t true. If it were true, we’d have called out the National Guard long ago. Nor is it true that 1 in 5 college women have been “sexually assaulted.” But the figure gets repeated anyway. But have you ever wondered if there are parents, particularly immigrant parents, out there who believe it and hence discourage their daughters from even attending college?

It happened to my grandmother at the tail end of the White Slavery Panic (and I wrote about it in my essay on “sex-trafficking”). During that unfortunate period in history it was claimed that women were routinely being snatched off city streets and forced into prostitution. I’m sure it happened way too often. But fortunately it wasn’t nearly as common as people were led to believe. Alas, my great grandparents hadn’t gotten the memo. So when my grandmother was granted admission to Radcliffe College (then Harvard’s sister school), they agonized over it for a while, but ultimately told her she couldn’t go. It would be too dangerous. She had to stay on the farm with them until she married.

People who exaggerate the dangers to women aren’t heroes. They are the reason my grandmother had to give up her dreams.

IT’S STILL EQUAL PAY DAY HERE ON THE WEST COAST: And here’s one more reason “wage gap” statistics are highly misleading: Women are more likely to have jobs with high benefits—like government. A study by Dr. Helen Levy of the University of Michigan showed that once you control for health benefits another chunk of the wage gap disappears.

IT’S STILL EQUAL PAY DAY: These figures are a little old (2009) and they are not adjusted for number of hours worked (although the comparison includes only “full-time” workers). But they show something interesting. Childcare is one of the many drivers of the figures. Women (very often by choice) come in and out of the job market during their child bearing and rearing years. Over long periods of time, that takes its toll on women’s salaries. But note that the gap starts to close a little in the post-child rearing years.

• Women 20-24 make 92.9% of men’s earnings.
• Women 25-34 make 88.7%
• Women 35-44 make 77.4%
• Women 45-54 make 73.6%
• Women 55-64 make 75.3%
• Women 65+    make 76.1%

There are many angles to this story.

IT’S EQUAL PAY DAY: When you hear that women are paid 79 cents on the dollar, remember that men are almost 13 times more likely to suffer fatal injuries on the job. Either men are a lot more accident-prone (nope) or they are in more dangerous jobs (yep). The 79 cent figure does not take into consideration that the comparison is not between individuals doing the same job.

IT’S EQUAL PAY DAY: When you hear that women are paid 79 cents on the dollar, remember that while the comparison is between full-time workers, what constitutes full-time work varies. Full-time men work longer hours than full-time women.

• A few years back, when Dr. Diana Furchtgott-Roth compared 40 hours workers to 40 hours workers, she found women make 86% of what men make.
• When she compared 35 to 39 hour a week workers, she found women made 107% of what men make (yes, women made more).

It’s complicated. And this is only one of the complications.

HAPPY HOCKTIDE:  I take my holidays wherever I can find them.

WHAT’S THE MATTER WITH THE NEW YORK TIMES AND THE WASHINGTON POST? Both those newspapers are confused about the Obama-era school discipline policy that Education Secretary Betsy DeVos should disavow.   So says my essay on NRO today.

If you are interested in the school discipline issue more generally (and golly gee you should be, since the country is doomed, doomed, doomed if the federal government can’t even let teachers maintain order in their classrooms), then read The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law.

I AM AWAITING THE SUPREME COURT’S DECISION in Masterpiece Cakeshop v. Colorado Civil Rights Commission—the case about a Christian baker who declined to design a wedding cake for a same-sex wedding. He considered this “participating” in the wedding (but he was apparently willing to sell an off-the-shelf cake to all comers). But I can’t say I am eager for the decision, since this isn’t an easy case, and I prefer a well-considered opinion to a quick one.

Cases at the intersection of religious liberty and anti-discrimination law are rarely easy. The Commission on Civil Rights did a report a few years ago on the topic. I was shocked at the level of hostility to religion among my Commission colleagues.  For example, here is what the then-Chairman had to say:

“The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”

Weirdly, in person, he always seemed like an affable guy. Alas, many otherwise affable guys go off the deep end these days when discussing hot-button issues.

My Statement in that report tried to deal with the broad issue of religious accommodation (and tried to deal with some of the fevered arguments made by those on the Left). The latter task was pretty easy, the former very hard. Maybe it’ll be “a piece of cake” for the Supreme Court … but … I doubt it.

I LOVE A HERO:  David Harris, a landscaper from Oakland, California.

WHEN IS A DIRTY JOKE JUST A DIRTY JOKE?  And when is it sexual harassment under Title VII and its state law equivalents?  Mark Pulliam (and the Texas Supreme Court) try to put the “discrimination” back into “sex discrimination”.

THE GREAT ENGINEER: Happy 212^th Birthday to Isambard Kingdom Brunel, Britain’s engineering giant. I fell in love with an old photograph of this guy when I was in college. Alas, unlike Brunel, I am not am engineering giant and can’t even figure out how to post the photo here without risking the destruction of the entire Instapundit web site. But I can link to it in all its glory.

WANT TO BE A DOCTOR? A SCIENTIST? AN ENGINEER? AN AFFIRMATIVE ACTION LEG UP MAY HURT YOUR CHANCES: A few days ago I overheard a couple of teachers (at least I think they were teachers) talking about how to encourage more minority students to pursue science careers. I almost broke in and told them. Instead, I am telling you: Nowhere is the evidence of the “mismatch effect” clearer than in the area of STEM. Whether it’s an affirmative action preference or a legacy preference, don’t take it if you want to major in STEM. Go to a school where your entering academic credentials put you at least in the middle of the class.

“NO EXCUSES:  THERE IS NEVER A REASON TO CARRY A KNIFE“:   My late (and highly anglophilic) mother-in-law would have been shocked and saddened by the Mayor of London’s bizarre threat to prosecute anyone caught carrying a knife.  Her view was that no gentleman should *ever* be out and about without a knife.  Knives come in handy, you know.

THE BRAVE NEW AGE OF GENDER-NEUTRAL KIDS:  Has anyone looked into whether this is part of a plan to re-elect Trump?