Credit Where It's Due: German Law Protects Gays in the Workplace

WorkplaceDiscrimination

A few days ago I pointed out the weak provisions of the German non-discrimination law on housing discrimination. It's only fair, though, to point out that the same law does prohibit discrimination in the workplace based on sexual orientation (g). It's still very difficult to prove a case and win damages in Germany based on the AGG, but at least the principle is there.

The US Congress has tried to enact the same protections many times over in a bill called the Employment Non-Discrimination Act, but failed. You need the House of Representatives and the Senate to pass the bill, and the President to sign it. So far, all three of those stars have not yet lined up in the right constellation, so the bill is not yet law. Many states have passed laws prohibiting discrimination against gays in the workplace, but 29 states still allow it.

I suspect a federal law might actually pass in the next 5-10 years. All you would need to do is get 10-15% of Republicans to vote for it and you would have it. (You would also need a Democratic President, of course.) I can't believe I'm saying this, but I think the change on this issue has been so dramatic in the last few years that getting 10-15% of Republicans is just possible.


Housing Discrimination There and Here

Yesterday the U.S. Supreme Court decided Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case about the Fair Housing Act, a law passed by Congress in 1968 to combat housing discrimination:

De jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races…

In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968….

The question before the court was whether the FHA can be used for claims of ‘disparate impact’ – that is policies that have the result of affecting minorities and whites differently, even though there is no proof that the policymakers’ intention was to discriminate on the basis of race. The specific case here involves a federal rent-subsidy plan (Section 8) for poor families. The plaintiffs claimed that Texas agencies were contributing to residential racial segregation by steering minority Section 8 recipients to areas that were already disproportionately minority. The Plaintiffs had no proof that this was being done intentionally, so sued under disparate impact. The Supreme Court held that since most other American anti-discrimination laws can be used in this way, so can the FHA:

Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies.  The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.

So the United States already had a nationwide law prohibiting private housing discrimination in 1968, and has interpreted both it and similar laws to cover even discrimination that occurs unintentionally.

Let’s turn to Germany. German jurists will point out that the Article 3 of the German federal constitution (the Grundgesetz) prohibits racial discrimination on the part of the state, and that this provision can, in limited circumstances, be applied to transactions between private parties (the idea of so-called Drittwirkung). In practice, however, this possibility is practically irrelevant and is rarely-used. This is one reason the EU constantly prodded Germany to adopt a comprehensive, modern anti-discrimination law. Germany resisted until finally, in 2006, it adopted what’s known as the Allgemeines Gleichbehandlungsgesetz (AGG) or Equal Treatment Law. It was originally known as the Anti-Discrimination Law, but the title had to be watered down.

So what are the housing-discrimination provisions of the AGG? Here’s a short website (g) from a law firm that explains things pretty well. The main provision outlaws discrimination by private landlords on the basis of “race, ethnic ancestry, sex, religion or worldview, disability, age, or sexual identity”. Gosh, that sounds mighty progressive, you might be saying.

But actually, there are quite a lot of exceptions! For instance, if you’re renting a portion of the residence you currently occupy, you aren’t bound by the AGG at all. Seems reasonable enough. But then we get to a rather bigger loophoole: the so-called ‘small landlord’ exception. This provides that the full terms of the AGG do not apply to any landlord who puts on the market fewer than 50 residences. If you own 49 rental properties and are thus a ‘small landlord’ (!!), you are not permitted to discriminate on the basis of race or ethnic ancestry, but you can discriminate on all the other grounds as much as you want. Only when you rent more than 50 residences does the AGG apply in full force.

But wait, there’s more! Turns out there’s a loophole even here: a landlord may refuse to rent to someone in order to preserve ‘socially stable residential population structures’ and to preserve ‘balanced cultural relations’, whatever that means. Ironically, this provision of the law sells itself as an anti-discrimination measure: to prevent large concentrations of foreigners in a certain area, a landlord can refuse to rent to foreigners who wish to come there and live. Of course, the landlord then has to subsidize the rent of the foreigners he discriminated against so they can pay four times higher rent to live in the white part of town. Oh wait, no he doesn’t.

Also, if you want to sue a landlord for damages, you must do so within a 2-month limitations period, which is awfully short. Plus, without access to landlords’ documents through court-ordered discovery, you may have a hard time proving your case.

The doomsayers predicted a wave of litigation after the AGG was passed, but it never happened. Critics call the AGG a paper tiger (g) and have routinely called for it to be strengthened.

Germans take almost-sensual pleasure (g) in denouncing the ‘pervasive racism’ of American society. But the American legal system offers far more powerful tools for combating racial discrimination than Germany does.* In Germany, legal innovations that have long been the law of the land in the USA are still fiercely opposed by all but the most left-wing parties.

 

Continue reading "Housing Discrimination There and Here" »


Headscarf Wearer Wins in US Supreme Court

A perennial chestnut of my comparative-law seminars is the treatment of Muslim women who wear headscarves in the USA and Germany. So my news ticker let me know that a woman named Samantha Elauf just won her case before the Supreme Court, in an 8-1 decision, the New York Times reports. From a Cornell Law School summary: 

In 2008, seventeen-year-old Samantha Elauf, a self-proclaimed practicing Muslim, interviewed for a Model position at an Abercrombie Kids store in Tulsa, Oklahoma.During her interview, Elauf wore Abercrombie-style clothing and a black hijab—a religious headscarf. The assistant manager interviewing her, Heather Cooke, did not confirm Elauf’s religion but “assumed that she was Muslim.” During the interview, Cooke did not ask Elauf about her headscarf and Elauf did not bring it up. Although Cooke thought Elauf was a good candidate, Cooke asked her supervisor if wearing a headscarf was permissible and whether the headscarf could be black. The supervisor escalated this question to the district manager, Randall Johnson, who declared that Elauf’s headscarf violated the Look Policy and Elauf should not be hired. Cooke claims that she informed Johnson that Elauf wore a headscarf for religious reasons but Johnson denies this claim.

On September 17, 2009, the Equal Employment Opportunity Commission (“EEOC”) filed a Title VII action in theUnited States Northern District of Oklahoma (“district court”) alleging that Abercrombie rejected Elauf because she wore a hijab and then failed to make a religious-based exception to its Look Policy. The district court ruled in favor of the EEOC, reasoning that Elauf’s wearing of the headscarf coupled with Cooke’s knowledge that Elauf wore the headwear as part of a religious belief provided sufficient notice of the need for a reasonable religious accommodation, awarding the EEOC $20,000 in compensatory damages.

The issue here was narrow. Since 1964, there has been no debate that a private company cannot refuse to hire someone based on their religious belief or core religious practices. If the company believes there may be a conflict between the employees’ religion and job requirements, the company must first try to find a reasonable accommodation. Simply refusing to hire someone on the basis of their religion is illegal. The only question in this case was whether Elauf told her employer she wore a headscarf for religious reasons.

The court held she didn’t need to prove this, since any reasonable employer would at least suspect that a female wearing a headscarf is probably doing so for religious reasons. Thus even the reliably conservative Justice Antonin Scalia called this case ‘easy’. Justice Clarence Thomas was the only dissenter, hie thinks that (1) because Abercrombie & Fitch had a general policy that its employees can’t wear ‘caps’; and (2) a headscarf is a kind of cap, therefore A & F was simply applying a neutral policy to every job applicant, and wasn’t discriminating.

Decision in .pdf form is here for you law nerds.


Why Does the Reunification Treaty Foreclose Greek Reparations?

The issue of war reparations to Greece is becoming more mainstream in Germany, as Reuters reports some leading SPD and Green figures cautiously suggesting that Germany should re-open the question of reparations.

One of the standard responses of German conservatives (and many Germans who would never consider themselves conservatives) is that the treaty of German re-unification, the so-called 2 + 4 treaty of 1990, forecloses the issue of Greek reparations. But I have yet to see an actual argument showing this -- generally there's just a bunch of hand-waving about how it was all settled in 1990, Greece 'accepted' this outcome back then, which now means it's irresponsible for Greece to try to reopen this can of worms. Frankly, the only convincing argument I've read is Helmut Kohl's statement that Germany caused so much suffering during World War II that any reparations sum that might be at all proportionate would bankrupt Germany for all eternity.

I've looked, but have yet to find any argument about why the 1990 treaty should affect Greece's reparations claims, except for the suggestion that since Germany only officially 'surrendered' to the four Allied powers in 1990, only these countries could legally claim reparations. But I don't really understand that reasoning, either.

Can anyone point me to something convincing? 


Bleg: Help me Catch a Cannibal Murderer!

WARNING: A confessed murderer and cannibal is on the prowl in Japan! Here's an interview with him:

Everyone knows who he is, actually. In fact, he's a minor celebrity. So I really want you to help me catch an article about a cannibal murderer. 

The cannibal murderer is Issei Sagawa, a soi-disant Japanese intellectual who killed and ate a woman in Paris in 1981. This is what happened to him afterward, according to you-know-who:

Sagawa's wealthy father provided a lawyer for his defense, and after being held for two years without trial Sagawa was found legally insane and unfit to stand trial by the French judge Jean-Louis Bruguière, who ordered him held indefinitely in a mental institution. After a visit by the author Inuhiko Yomota, Sagawa's account of the murder was published in Japan under the title In the Fog. Sagawa's subsequent publicity and macabre celebrity likely contributed to the French authorities' decision to deport him to Japan, where he was immediately committed to Matsuzawa hospital. Examining psychologists there all declared him sane and found sexual perversion was his sole motivation for the murder. Because charges in France had been dropped, the French court documents were sealed and were not released to Japanese authorities. Consequently Sagawa could not legally be detained in Japan. He checked himself out of the hospital on August 12, 1986, and has remained free. Sagawa's continued freedom has been widely criticized.

So, on the surface we have not only a miscarriage of justice, but also quite possibly an example of two different legal cultures defining legal sanity in different and interesting ways. Just the sort of thing that really rings my bell.

Which brings me to the next mystery: an online law journal that seems to have published only a few issues, then vanished! Here is a citation to an article about Sagawa:

  1.  Morris, Steven (September 20, 2007)."Issei Sagawa: Celebrity Cannibal"New Criminologist, the On-line Journal of Criminology (New Criminologist). Archived from the original on June 14, 2011.[dead link]

As you can see, the link is very dead indeed. To add to the mystery, the New Criminologist started a Twitter account (under the logo Vitam Impenderi Vero) which then mysteriously died after only 4 tweets. The journal's online presence seems not just to have gone dormant, but been deliberately erased. Shoved down the memory hole, if you will!

Can anyone find this article for me? As a bonus, can anyone explain what happened to New Criminologist? 


New Documentary on Jens Soering

This is a new German documentary about Jens Soering, the German national who was convicted of a 1985 double-murder and sentenced to life imprisonment in Virginia, where he still is. Here are two trailers, the first in German, the second in English.

Soering's case has a long and complex history. While in England, he fought extradition to the state of Virginia on the grounds that it would violate European human rights law for Britain to extradite Soering to Virginia to face the possibility of capital punishment. The European Court of Human Rights agreed in Soering v. UK. Virginia dropped its demand for the death penalty, Soering was returned, convicted, and now is in prison for life.

He initially confessed to the crime and fled the country. He now claims he's innocent of the crime, but I haven't really been convinced by anything I've read so far. The documentary looks intriguing, I'll post any thoughts as soon as I've seen it.

This is the first and last time I will ever put a trigger warning on this blog, but these videos contain brief shots of crime scene photos with mutilated human bodies, so be advised. 


Bleg: German News Coverage of Failures of German Justice

I am working on an op-ed piece and perhaps an article about journalistic coverage of the German criminal justice system which I hope to publish on paper, in German, in some German newspaper.

The subject is going to be what I perceive to be the imbalance in German-language coverage of the American criminal justice system versus the German criminal justice system. That is, German-language newspapers are full of coverage (of widely varying quality, much of it error-filled) about Trayvon Martin, Michael Brown, American death row inmate X or Z, but rarely cover problems in the German criminal justice system. Before asserting this, I want to try to make sure it's true!

So what I am looking for is articles in the German-language press by Germans which deal with potential justice problems in courts in German-speaking countries including:

(1) wrongful convictions;

(2) racial, ethnic, or religious disparities in conviction rates or sentencing;

(3) allegations of racial or ethnic or religious bias among German prosecutors and professional or lay judges;

(4) interviews with prisoners currently serving prison sentences in Germany who claim that they are completely innocent of the crimes of which they were convicted; and/or

(5) detailed examinations of systemic problems in German criminal justice or prisons, things such as underfunding, outdated regulations, disproportionate penalties, or the use of unreliable evidence.

I'm interested, in particular, in well-researched studies or in-depth reportings, not just stories like 'this lefty activist claims he was convicted only because the judge was a right-winger and we lefty activist journalists of course totally believe him and feel no need to research the allegations any further!!' There's a lot of that about in Germany, and it's generally justly ignored.

Also I'm not super-interested in stories about the RAF, which I consider to be an irrelevant side issue. I'm interested in well-considered stories about why random anonymous criminal Achmet got 4 years in prison for the exact same crime that random anonymous criminal Detlef got 2 years for.

Thanks in advance for any links in comments.


US Department of Justice: No Charges for Michael Brown Shooting

After an exhaustive analysis of all the evidence surrounding the Michael Brown shooting, the U.S. Department of Justice concludes (as I predicted long ago) that federal charges against Darren Wilson aren't justified, since his story of what happened is supported by the evidence and provides him with a defense:

Witness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence, are otherwise not credible because of internal inconsistencies, or are not credible because of inconsistencies with other credible evidence. In contrast, Wilson’s account of Brown’s actions, if true, would establish that the shootings were not objectively unreasonable under the relevant Constitutional standards governing an officer’s use of deadly force. Multiple credible witnesses corroborate virtually every material aspect of Wilson’s account and are consistent with the physical evidence.... The only possible basis for prosecuting Wilson under Section 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never punched and grabbed Wilson at the SUV, never struggled with Wilson over the gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Not only do eyewitnesses and physical evidence corroborate Wilson’s account, but there is no credible evidence to disprove Wilson’s perception that Brown posed a threat to Wilson as Brown advanced toward him. Accordingly, seeking his indictment is not permitted by Department of Justice policy or the governing law.


The Boston Globe Praises My Book

A little blatant self-promotion here. Katharine Whittemore in the Boston Globe just began a round-up of seven books about capital punishment and life sentences with this punchy, but essentially accurate, abstract of my book's argument:

Why has Europe ended the death penalty, but we’ve still got it? The conventional answer trades on cultural divides: America is an immature cowboy nation, racist and trigger happy, while Europe is more measured, mature, and its societies, chastened by two world wars, are understandably keen to avoid further violence. They’re enlightened; we’re philistine. Germany, in fact, got rid of capital punishment in 1949 and Britain in 1969. Before I read today’s books, I’d vaguely guessed that the Germans acted in revulsion at their Nazi past, and the British embraced the moral revolution of the Sixties. I was flat wrong; in both cases, the people overwhelmingly supported the death penalty. But their leaders coolly, blatantly overruled them.

“Ending the Death Penalty: The European Experience in Global Perspective” (Palgrave MacMillan, 2010) helped me, like no other book, to understand the worldwide evolution of the ultimate punishment. When Andrew Hammel, a professor of American law at the University of Düsseldorf, asked European jurists and pols why they’ve succeeded where we’ve failed, he constantly heard this refrain: Americans are naïve to think public opinion must change before the law changes. That’s because the “desire to see murderers executed is a basic drive of human nature, one which only the most educated are able to overcome.”

So that’s their strategy: an elite fait accompli. There are long roots here, for the earliest calls for diminishing the death penalty came from European philosophers invited by European monarchs to put their ideas into practice. Voltaire was pivotal and so was Italian jurist Cesare Beccaria, whose 1764 landmark treatise, “On Crimes and Punishments” (Beccaria, 2013), remains powerful reading today and had a marked influence on Thomas Jefferson and John Adams. Beccaria found it immoral and illogical to treat brutality with brutality: “Murder, which [judges] would represent to us as a horrible crime, we see practised by them without repugnance or remorse.’’

In our era, when those on death row in the United States are in for heinous crimes only, we forget that the state once killed for far less. In 19th century Britain, you could die for some 200 transgressions, including vagrancy and “theft from the premises of a calico printers.” The march toward abolition was a slow one, steadily scratching offenses off — but it was basically a top-down process. Such condescension is a nonstarter in our more populist, pluralist society where 63 percent of Americans favor the death penalty. Eastern European countries had similar stats but, in order to join the European Union, they had to end the practice. The responsive structure of American politics guarantees, for now, it’s here to stay.


That $23.6 Billion Florida Tobacco Verdict is Meaningless

Both the BBC and the German media (g) have reported on the $23.6 billion verdict a Florida jury handed down against R.J. Reynolds tobacco company for damages she suffered after her husband died of lung cancer. The jury found that R.J. Reynolds had purposely concealed the addictive and harmful nature of smoking. Most of the $26 billion is in punitive damages, which can be awarded in Florida if the jury finds that "[t]he defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."

These sorts of stories come out a few times a year, and are always covered by the German media. They serve an important function for the German journalistic class: they instruct obedient German news consumers that the American jury system is a crazy lottery in which ignorant, envious bumpkins are given free rein to milk large corporations on behalf of other ignorant, envious bumpkins.

By implication, therefore, these stories support the Panglossian narrative of German superiority. After all, am deutschen Wesen soll sich dereinst die Welt genesen -- the German way will heal the world. There are no juries in German civil trials, nor are there any punitive damages in the American sense. German judges award damages according to fixed schedules, and the amounts are smaller than American courts.

To apply the necessary corrective: No, the tobacco company will of course never have to pay the $23.6 billion verdict. An appeals court, following rules laid down by the American Supreme Court, will reduce it to a tiny fraction of that size. Punitive damages awards are extremely rare in American courts, and usually modest in size. A recent study sums up the situation:

Contrary to popular myth, punitive damages are rarely awarded.

  • In 2005, the most recent year studied by the U.S. Department of Justice (DOJ), punitive damages were awarded in only 5 percent of civil cases where plaintiffs prevailed at trial.

        ...

Most punitive damage awards are modest in amount.

  • In 2005, the median overall punitive damage amount awarded to plaintiff winners in civil cases was $64,000.15 The median punitive damage award for all tort cases was $55,000.16
  •  In 76 percent of the 632 civil trials with both punitive and compensatory awards, the ratio of punitive to compensatory damages was 3 to 1 or less.

...

Of the 45 states that allow punitive damages in this country, at least one-third have enacted some form of cap, or limit, on the ability of judges and juries to award punitive damages. Over 30 state legislatures have made it more difficult for injured consumers to prove punitive damages by raising the standard of proof required for awarding them. Several states order victims to pay a portion of punitive damages into state-designated funds. Other states require or permit bifurcated trials where the injured person is forced to essentially try a case twice, first proving liability and second, arguing the size of the award. And in some states, juries are prevented from deciding the amount of a punitive damages award -- only the judge is permitted do that.

That's been today's corrective to the German media.