A response to John Corvino, continued from Part 1
The Game of Risk
The legal line between small businesses and giant corporations is wide and well established, but anti-discrimination cases like the ones in question, all center around small businesses. Why? Could it be that small businesses are easier for states and state regulatory commissions to pick on?
Larger corporations are likely to have a team of lawyers on hand, but independently owned businesses may have none. Without the same legal standing or protections as corporations, when small business owners come under the radar of radical state commissions like Oregon’s Civil Rights Commission, they often fold altogether. Not only are the owners out of a job, they may be financially, reputationally, and creatively ruined. Those business owners have not been “educated” or “taught a lesson to,” their homes and holdings have been forfeit. They have been effectively obliterated from society, just as ancient Inquisitors did to so-called heretics.
As Roger Parloff pointed out in the March, 2017 New Yorker piece, Christian Bakers, Gay Weddings, and a Question for the Supreme Court,
“…From the standpoint of individual liberty, a mammoth corporation, such as Woolworth’s, is different from a mom-and-pop business. The regulatory machinery has been hesitant to tell individuals how to behave on their own premises, no matter how repugnant their behavior may seem. To this day, as Eskridge observes, the federal employment-discrimination laws do not apply to businesses with fewer than fifteen employees, and housing-discrimination laws do not affect owner-occupied buildings with four units or fewer…”
As an independent business owner and contractor, I absolutely value my ability to choose not to work with certain clients for any reason. They may be a pain to work with and a potential liability, and that liability and work outcome are my direct responsibility. I do not get to pass the buck, I do not get to hide in corporate shadows, and I can’t even be fired. Therefore, as any good business owner, I will pick and choose whom I work with very carefully and attempt to further protect myself and clients with fair contracts for us both. But those measures don’t offer protection against rapidly changing (and often unknown) laws or interpretations of them. Small business owners are screwed.
Custom-Made Cakes, etc.
The main difference between a cake bought from the case, versus a custom-made cake via Cake Boss, is the risk and time and talent involved in the creation of the custom cake. If a generic cake gets accidentally dropped on the floor, there may be 5 more just like it in waiting. If a custom cake gets dropped, it’s a potential disaster (the worst part about watching Cake Boss is worrying those big cakes won’t make it to their intended destination in tact!).
It bears repeating that many of those who have won financial settlements against small business owners like bakers and florists, have done so without ever having a contract to begin with for customized creative services. Many cases do not end up in court, but are investigated (which is appropriate), prosecuted with the force of law (not appropriate), and legally penalized by certain state Civil Rights Commissions working independently from impartial judges, lawyers, etc. (really, really not appropriate).
We should not tolerate such behavior, particularly if we fancy ourselves as supporting small businesses. It’s legally outrageous, and sets a frightening precedent for small service providers who cannot always cope with the legal or media outcomes of major lawsuits or “legal” fines.
Bacon or Buttercream?
Some readers might respond to the above, “Well if business owners would only follow the law to begin with, they wouldn’t get in trouble.” Unfortunately, as we saw in part 1, state anti-discrimination laws are interpreted subjectively and, as we will see, are sometimes applied “unevenly.”
Mr. Corvino’s examples of Kosher and vegan bakeries not making bacon cakes or buttercream cakes for anyone (and therefore, no one), is a false dichotomy. Those bakeries have set professional limitations on what they will produce, based on sincerely held beliefs. It would be offensive to knowingly go into a Kosher bakery and ask for a bacon cake, or to ask a vegan baker for a meat pie, though they surely have the technical skills to produce such things. So how is it different when the bakery is a Christian one? Christian bakers also refuse to produce certain products based on sincerely held beliefs, but for them this is reprehensible, because their particular belief is culturally reprehensible.
*I do not necessarily endorse all views contained within this video or within others by Louder with Crowder
In addition to anti-discrimination laws being culturally and judiciously haphazardly applied, I am angry by the underlying societal devaluation of creative talents and skills. It’s not “just a cake,” but a carefully crafted work of art, unless you are buying from a generic, big-box retail store.
It’s not “just photography” or “just a painting,” as if no real heart, imagination, or effort goes into these things. But customers really do know better; they are attracted to artistic works precisely because they are different. Customers can see the difference, and are willing to pay higher prices because of the quality and creativity involved. Not just anyone can make beautiful cakes. Not just anyone can take gorgeous pictures, and not just anyone can fix computers or human hearts. These things require serious investments of time, experimentation, specialized equipment, and education.
So when people imperiously declare that small business owners should “suck it up” and “perform” on command, so long as potential customers throw money at the owner/creator, it is incredibly insulting. It is, in fact, prostitution!
This scene from Les Miserables 25th Anniversary Concert Edition by Universal, shows that even Fantine, an actual prostitute, should still be able to choose with whom she works. The result of her refusal and self-defense, eerily echoes the legal retribution some shop owners have unfairly faced. This clip was taken from my legally purchased, home copy DVD.
Show Your Local Small Businesses Some Love
In general, Americans love funky little shops and hole-in-the-wall restaurant discoveries. They are personable, more welcoming, custom-geared for certain clientele (like my new favorite local bar geared towards gamers, D20), and tend to have higher quality customer service and products. Customers love these places not just for the food or flowers or art (products), but also for the atmosphere (heart). These are places where memories are made with family and friends, as opposed to generic retail stores which supply general goods and public services.
Most anti-discrimination laws, therefore, make no sense when applied to privately owned small businesses. For proof, let’s define the confusing term, “public accommodations,” which has been broadly (and unusually) interpreted by Oregon’s Civil Rights Commission to mean essentially any place “the public” might be. However, according to Wikipedia,
“Title II of the Civil Rights Act of 1964 defines public accommodations as a limited number of facilities which are open to the public. Examples include hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without defining the term “private”.
In other words, privately owned small businesses are not generally considered “public accommodations”.
Coercion and Prohibition Never Work
Lastly, let’s say just a word about prohibition and coercion and how the attempt to legalize something via these hard lines never, ever, ever, ever works. Ever. Even when the cause is noble, like protecting women and children from the abuse or neglect of drunk fathers. Even when parents are seeking to protect their kids from getting addicted to hard drugs, and even when we long to see all people treated the same everywhere because they are people (though you know, that road goes two ways).
Community and education are the keys to societal changes, albeit those things take much longer to implement and see progress. It isn’t as satisfying as exacting a kind of vengeance upon others who share the same ideas with people who may have hurt us, or our friends, or loved ones. But vengeance is not justice, and change only starts with an army of one.
Otherwise, just let our robot overlords rule and program us outright.
*I had no idea when writing this that “Robot Overlords” was a real film. But now I do, and since it features Gillian Anderson (X-Files) and Ben Kingsley, I must watch it.
A response to John Corvino, part 1 of 2. Part 2 is now available here.
I saw Mr. Corvino’s humorously-ended video the other night. He makes a case for anti-discrimination laws in regards to privately owned bakeries and other businesses, and to be honest he had me nodding my head in agreement. Right up until the “teaching = photography” in creative expression part (beginning around 1:41).
As someone who both teaches (tutors) creatively and is a photographer, designer, and writer, I resent his claim as part of a wider attack (or perhaps neglect) against both small business owners and creative types. I get more into that in part 2, but Mr. Corvino highlights another, more insidious problem I want to tackle right off.
It has to do with small business laws, and especially state Civil Rights Commissions, which are at the heart of many of these anti-discrimination cases. Most of these cases are not, in fact, going to trial and being reviewed by impartial judges, they are being “tried” by state Civil Rights Commissions that have granted themselves judicial power and law enforcement (the ability to penalize) without oversight or appeal. And it should terrify you.
3, 2, 1…Contract
A philosophy teacher such as Mr. Corvino, may use creative techniques in the classroom, but he acquired his job via a signed contract to teach a specific curriculum over and over again. He was not hired for his creative expression. That curriculum (or “product”) will not vary much, and in fact it shouldn’t, or Mr. Corvino might be fired for “breach of contract”. If, as Mr. Corvino relates, he chose not to teach certain students, not only would he be discriminating against those students, he would also find himself in “breach of contract” for not teaching them as his voluntarily signed, contractual obligations require.
But a photographer (not talking big-box portrait studios, mind you) custom-designs each session for each client. That photographer is singled out by a client, explicitly for his/her creative expression. The photographer and client would discuss terms, then perhaps, voluntarily enter into a signed contract and work would commence. Hopefully, everyone goes home happy. If not, and a client refused to pay for services rendered, or a photographer tried to take the client’s money and run, you would have a legal case for breach of contract and be potentially entitled to payment (reparations).
State Civil Rights Commissions Violate the Law
Knowing they would have no case because there was no breach of contract, indeed there was no contract, complainants in anti-discrimination cases have been filing for investigations with state Civil Rights Commissions, which, in some states like Oregon, are able to circumvent the Judicial branch entirely as a law unto themselves.
In my state of Ohio, the Ohio Civil Rights Commission description sounds like a good a thing, a great thing, in fact. Building stronger communities is a very important and noble goal, and reaching out through education initiatives, mediation between parties, and investigating claims are all things I agree with. It’s the last part of the last paragraph that disturbs me (emphasis added for clarity),
“The Commission has the authority to demand access to records, premises, documents, evidence or possible sources of evidence, and to record testimony or statements from individuals. Further, the agency has the right to issue Subpoenas, Interrogatories, Cease and Desist Orders, hold Public Hearings, and collect monetary benefits. The Attorney General’s Office, Civil Rights Section, represents the Commission in all matters of litigation.”
A fair case could be made that public funds should be used to ensure and perhaps even prosecute large companies, that wronged individuals would otherwise have no recourse against. It is in the interest of the general public, after all, to ensure fair and equal hiring practices and/or services for all citizens.
Not all states take this tack, for example Michigan’s Department of Civil Rights takes a very hands-off approach,
“The Michigan Department of Civil Rights is an administrative agency representing the interest of the state. During the investigation of a complaint, the Department represents neither the claimant nor the responding party. It represents the best interest of the people of Michigan. Therefore, a complaint is not a lawsuit for the claimant, nor are lawyers provided during the filing or investigative process.”
Colorado, too, seems to help initiate investigations and review them for merit with a recommendation to proceed to court if the claim is found to be valid.
On the other end of the spectrum is Oregon’s Civil Rights Commission, which currently sees itself as an enforcer of laws* in every sense of the phrase; a frightening overreach of power for what is supposed to be a governor-appointed or state-elected, administrative post to investigate claims of discrimination:
“BOLI’s Administrative Prosecution Unit (APU) prosecutes cases on behalf of the Civil Rights Division (CRD) or Wage and Hour Division (WHD) after the Division has concluded its investigation. An investigative case becomes a contested case when the APU or WHD issue a “charging document” alleging that an individual, entity, or government agency, referred to as a “Respondent,” has violated laws that BOLI is authorized to enforce. Contest case proceedings are governed by the Oregon Administrative Procedures Act and administrative rules adopted by BOLI and the Oregon Department of Justice. Some cases referred to the APU are settled or are administratively closed before a “charging document” is issued.
The Civil Rights Division (CRD) enforces laws…
…The Wage and Hour Division (WHD) serves Oregon wage earners by enforcing laws…”
From Oregon’s Enforcing Civil Rights page, “The Cities of…have ordinances prohibiting discrimination. The Civil Rights Division may have a contract to enforce the parts of these ordinances that are not protected under state law, including source of income.”
In a new kind of Inquisition, some state Civil Rights Commissions have given themselves unprecedented power as law enforcers and prosecutors, totally separate from the state’s judicial process.
“BOLI’s [Oregon’s] APU includes case presenters and a Chief Prosecutor, all of whom prepare and present contested cases. The Chief Prosecutor is also the manager of APU. An Administrative Law Judge (ALJ) who is employed by BOLI, but separate and independent of the APU, presides over all contested case proceedings.” – Source
The current head of Oregon’s Labor Commissioner (which oversees the Civil Rights Commission, among other things) is Brad Avakian, a former trial lawyer who has made unsettling headlines elsewhere for his “expanded” views of certain government roles and potential corruption.
Avakian has proudly turned himself, and by extension, his state’s Civil Rights Commission, into judge, jury, and executioner without oversight or ability to appeal, a very unusual program among state and federal Civil Rights Commissions. Oregon’s Response Process page on the Civil Rights Commission site states,
“An administrative hearing is similar to a court hearing and is held before an Administrative Law Judge (ALJ). After the hearing, the ALJ issues a proposed Order to the Commissioner of the Bureau of Labor and Industries. The Commissioner may adopt, reject or modify the Proposed Order. The Commissioner’s Final Order has the same weight as a judge’s decision and may specify specific remedies.” (emphasis added)
In another abuse of the law, parties accused of discrimination in Oregon, have only 14 days to respond to written charges. They must respond in writing, and attach any and all evidence to support their innocence without the assistance of legal counsel.
“Failure to provide a response within the time provided may result in a finding based only on the information provided by the Complainant… (emphasis not mine)
Legal assistance is not required. The investigator is looking for facts, not legal arguments. However, you may wish to discuss the legal issues with an attorney as the investigation progresses, and/or to seek assistance in providing your response. Please be aware that the 14-day deadline for response will not be extended in order for you to seek legal counsel, or in order for your attorney to investigate the claims before making a response. You are responsible for collecting the information and providing a response to the Bureau within the time allotted.” (original emphasis)
To compare, Colorado gives claimants and respondents 30 days in all but housing cases, and has no stipulation against legal counsel. Oregon gives 30 days for parties to respond in civil trial cases. As opposed to the Civil Rights Commission’s steps to avoid or make it impossible to take the time to acquire a lawyer, Oregon’s LegalLinks public information site states,
“In Oregon, the defendant has 30 days to file a paper called an “answer” or “motion” with the court. If the defendant fails to file an answer or motion, the plaintiff may automatically win. Sometimes, the time period to respond to a summons is shorter. If you are served with a summons, read it carefully to determine what action must be taken and when. You should consult with an attorney for advice and assistance in filing an answer to the summons and complaint.”
So what’s the issue with state Civil Rights Commissions? Some have the power right now to totally circumvent the normal judicial system with it’s impartial judges, appeals, and public oversight. There may be several investigators, but there is only one head commissioner. Any monies demanded do not necessarily go to the injured party, but back into the commissions’ coffers. No potential for abuse there, right? Finally, many of these cases regard small business owners, who can’t fight back against injustice and abuse like bigger corporations might. They are easy pickings for abusive government administrators who know how to paint themselves as heroes.
Read Part 2
*While other state Civil Rights Commissions do sometimes use the phrase, “enforce laws,” the surrounding context is not the same as Oregon’s, which maintains a force of law apart from traditional trials and judges and lawyers. See Colorado’s CRC page for example.
**It should be noted, that Colorado’s CRC is currently being reviewed by that state’s Regulatory Reform, according to the CCRC’s own site.
***Oregon also maintains a much broader scope for the phrase “public accommodations” than either Michigan or Colorado, to include privately owned businesses, as opposed to larger retail stores. Ohio’s use of the phrase was not reviewed at this time.