Why is the NYT publishing yet another article on the fact that Justice Ginsburg is not resigning from the Supreme Court?

I was a bit surprised to see this article, with a big picture, at the top center of the NYT on-line front page today. It's utter non-news. So what's the point? She did an interview with Adam Liptak, but just last June, we'd heard the same thing, in the pages of the NYT, from Linda Greenhouse.

Let's look at Liptak's article as opposed to the front-page teaser, which says: "Amid calls from some liberals that she step down in time for President Obama to name her successor, Justice Ruth Bader Ginsburg said she was fully engaged in her work." Think about why that is the teaser. But Liptak is writing because he got an interview:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.

So maybe Ginsburg is talking because of political pressure about Obama's appointment opportunities, but I find that hard to believe. She's obviously not talking about that, so it's an editorial insertion, and it's therefore what the NYT editors think will pique the interest of readers. To me, a reader, it seemed really dumb, flaunting the nonnewsiness of the article. Here's another Obama-related insertion:

Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.

In case you didn't know!

So. Onto the substance of the interview:

“I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.

The last two terms... were...  “heady, exhausting, challenging.”

“[I]f it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

What if it's measured in terms of acceptance of the duty to enforce the Constitution? That's a trick question. Answer: It's the same thing! (And that makes this post another occasion for my favorite tag: Paraphrase.)

The article goes on to talk about the Lilly Ledbetter Fair Pay Act of 2009, which was a congressional response to Ledbetter v. Goodyear Tire and Rubber Company, in which Ginsburg dissented. She notes that there were 2 Title VII case this past term, but that Congress is unlikely to reverse them by statute, because, she says, "this Congress doesn’t seem to be able to move on anything," and: "In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area.... So it isn’t good when you have a Congress that can’t react."

Do you see Liptak's sleight of hand there? He went from her characterization of the Court as activist because of its "readiness to overturn legislation," to the idea of legislation overturning a court decision, but Congress can't overturn a decision that "overturns" legislation, and Ledbetter wasn't a case that overturned legislation! Ledbetter was an interpretation of a statute, so Congress was free to amend it and did. To interpret a statute isn't to overturn it. It's to read it, and Congress can change the text if it doesn't like that reading. It's not "activist" to decline to give an expansive interpretation to a statute, which is what Ginsburg wanted in her Ledbetter dissent.

When a statute is overturned because it's inconsistent with the Constitution, you can call that "activist" or you can call that meeting a judicial duty, but you can't go to Congress to get that decision overturned. [NOTE: Congress can initiate a constitutional amendment, and there are sometimes ways to rewrite a statute to solve a constitutional problem. I don't think Ginsburg was referring to that.]

Ginsburg does display some resistance to activism with respect to constitutional rights:

She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.

“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”

The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision.

“I wouldn’t make a connection,” she said.

Hmm. Why not?! I'm guessing it's because Roe v. Wade is already decided. Nothing she can do will change that. The same-sex marriage issue is not yet completely resolved, and she will, in most likelihood, participate. That's a reason to simply refuse to talk about it, but I suspect, in addition to that, she will embrace the right with even more breadth and confidence than the Court in Roe v. Wade accepted abortion. This notion of allowing the difficult matter to be worked out in the political process... she won't make a connection.

***

In my Constitutional Law II exam last spring, written before the Supreme Court's decision in Windsor, I began a question this way (boldface added):

Here’s a section from one of the briefs in United States v. Windsor, the case in which the Supreme Court is considering whether a section of the Defense of Marriage Act is unconstitutional.

The benefits of our federalist system resonate with especial clarity regarding the same-sex marriage debate…

Preemptively short-circuiting the democratic process by announcing only one permissible policy choice by any government under the Constitution destroys these benefits and should not occur unless the Constitution clearly mandates the legitimacy of only one outcome. The Nation's experience in the wake of Roe v. Wade bears this out. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, (remarking that Roe has "sparked public opposition and academic criticism, in part . . . because the Court ventured too far in the change it ordered and presented an incomplete justification for its action). J. Harvie Wilkinson, III, Of Guns, Abortions, and the Unraveling Rule of Law, (observing that Roe "shut down this process of legislative accommodation, polarizing the debate and making future compromise more difficult," leading "[m]any scholars" to comment on the "Roe backlash" and the intense partisan divide that has resulted).

Outrage in the wake of Roe occurred despite increasing public support for abortion and a "marked trend in state legislatures 'toward liberalization of abortion statutes."' Ruth Bader Ginsburg, Speaking in a Judicial Voice (quoting Roe v. Wade); see also Thoughts on Autonomy ("The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting."). But the Court's "[h]eavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Thoughts on Autonomy, supra, at 385-86. Unlike the Court's previous decisions concerning gender classifications, Roe provoked backlash because it "invited no dialogue with legislators" and "seemed entirely to remove the ball from the legislators' court." Judicial Voice, supra, at 1205.

Not only did Roe produce conflict, it was also an ineffective engine of social change. The Court's abrupt adjustment of national policy "may have prevented state legislatures from working out long-lasting solutions based upon broad public consensus." Cass R. Sunstein, Three Civil Rights Fallacies. Professor Sunstein observed that Roe's effectiveness "has been limited, largely because of its judicial source."

Of course, Justice Ginsburg didn't agree with the side that wrote that. She showed — to use her definition of activism, above — a readiness to overturn legislation.

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canning — here. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.

EEOC sues BMW and Dollar General for doing criminal background checks...

... because of the  disparate impact on black people.

The suit against BMW Manufacturing Co. alleges the company disproportionately screened out African-Americans from jobs....

In the suit against Dolgencorp, doing business as Dollar General, the EEOC alleges the company's background-check policy, which looks back 10 years, results in a disparate impact against African-American workers....

The EEOC in April 2012 issued updated guidelines related to employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act. The guidance noted that in the past 20 years a rising number of Americans "have had contact with the criminal justice system" as well as "a major increase in the number of people with criminal records in the working-age population."

According data cited in the EEOC's guidelines, the portion of adults in the U.S. that have served jail terms has risen from 1.8% in 1991 to 2.7% in 2001. By the end of 2007, 3.2% of adults in the U.S. were under some form of correctional control involving probation, parole, prison or jail. Meanwhile, African-Americans and Hispanics are arrested at a rate that is two times to three times their proportion of the general population.

ADDED: What about the disparate impact on men? Maybe the EEOC is OK with that.

"Male train drivers in Stockholm have circumvented a ban on wearing shorts in the summer by coming to work in skirts."

"Uniform regulations by the train company Arriva state that skirts or long trousers are acceptable.
At a meeting last year, drivers were told that shorts were not allowed."

They have given their blessing to the men wearing skirts however.< "To say anything else would be discrimination," Thomas Hedenius, the communications head, told the local Mitti newspaper, cited by the Local website. He added that the regulations were in place so staff looked presentable and tidy, adding that shorts appeared "more relaxed" than a skirt.

Should New York abandon mandatory retirement for judges aged 70?

70 for the highest court, 76 for some lower courts. There's a proposal to change this:

Some within the state’s judicial ranks have questioned [the] bill, saying it unfairly favors the high-level judges on the State Supreme Court and the Court of Appeals. Others counter that forced retirement encourages diversity, as older, white judges retire and are replaced by younger ones from minority groups....

Assemblywoman Weinstein pointed to a case where a “very vibrant” jurist was forced off the bench: Judith S. Kaye, longtime chief judge of the Court of Appeals, who stepped down in 2008 after turning 70.

In an interview, Ms. Kaye said she agreed that the retirement requirement should be changed. “When the age was fixed at 70, we were at a time when it was really old,” Ms. Kaye said. “Today, people are still very sharp and able — they are not statutorily decrepit.”

It was sad to see Judge Kaye needing to retire, but there's something to be said for moving judges along and bringing new people in. Here's the U.S. Supreme Court opinion that interpreted the federal Age Discrimination in Employment Act not to cover state judges. The Court — composed, of course, of judges who themselves could not be forced to retire — noted the rational basis for age discrimination against judges:

The people... have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age... The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment — with its public humiliation and elaborate procedural machinery — serve acceptably the goal of a fully functioning judiciary.

The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them — deliberately — less dependent on the will of the people....

This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials — whose performance is subject to greater public scrutiny, and who are subject to more standard elections — are not. Judges' general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed.

That was written by Sandra Day O'Connor — who retired from the U.S. Supreme Court, after 24 years, when she was 76.

"The Lose the Lads' Mags campaign by UK Feminista and Object is calling on high-street retailers to immediately withdraw lads' mags..."

"... and papers featuring pornographic front covers from their stores. Each one of these stores is a workplace. Displaying these publications in workplaces, and/or requiring staff to handle them in the course of their jobs, may amount to sex discrimination and sexual harassment contrary to the Equality Act 2010. Similarly, exposing customers to these publications in the process of displaying them is capable of giving rise to breaches of the Equality Act."

More here:

"For too long supermarkets have got off the hook, stocking lads' mags in the face of widespread opposition, but this time we have the law on our side," said Kat Banyard, founder of UK Feminista. "Every shop that sells lads' mags – publications which are deeply harmful to women – are opening themselves up to legal action."...

"One woman said to us: 'Those magazines don't do women any favours, they are appalling and demeaning to women, but what can little old me do about it?' Well, employees need to know they don't need to put up with it any more."

A NYT exposé of the "boys' club" at the "Today" show — replete with "Operation Bambi" and what it really means when they say there's a lack of "chemistry."

A great NYT Magazine article, by Brian Stelter (who has an entire book coming out: "Top of the Morning: Inside the Cutthroat World of Morning TV"). Stelter explains why the morning shows are so important to the networks, and why being #1 matters so much. I just want to excerpt some of the imputations of sexism:

Many executives at the network never grasped how profoundly hurt and humiliated [Ann] Curry remained — not just by her televised dismissal but by all the backstage machinations that led to that fateful morning. Curry felt that the boys’ club atmosphere behind the scenes at “Today” undermined her from the start, and she told friends that her final months were a form of professional torture. The growing indifference of Matt Lauer, her co-host, had hurt the most, but there was also just a general meanness on set. At one point, the executive producer, Jim Bell, commissioned a blooper reel of Curry’s worst on-air mistakes. Another time, according to a producer, Bell called staff members into his office to show a gaffe she made during a cross-talk with a local station. (Bell denies both incidents.)...

Meanness.  Women are very sensitive to meanness. It's a show for "created largely for women." But it's "managed mostly by men." As "Today" got into ratings trouble and some were blaming Lauer, "Bell had another culprit in mind: Ann Curry."

So insistent was Bell that Curry was the problem — that she was “out of position,” as he put it in an e-mail to his deputies — that he had been talking about it with friends for months. One morning-TV veteran suggested to him that firing Curry, who had been co-hosting for only about six months at that point, would be tantamount to “killing Bambi.” Undeterred, Bell hatched a careful three-part plan: 1.) persuade Lauer to extend his expiring contract; 2.) oust Curry; 3.) replace her with Savannah Guthrie. According to this source, Bell called his plan Operation Bambi.

Bell, a 6-foot-4 former Harvard lineman, was well liked by his staff. He was considered a straight shooter who would do anything for the sake of the show. (Bell denies using the term “Operation Bambi.”) The coinage, however, was indicative of a few larger truths about morning television. Though it is created largely for women, the business is, even now, managed mostly by men, including those who like to think in terms of war, sabotage and embarrassing James Bond-like names for things they do in the office. 

(If you're watching these season "Survivor," you, like me, may think: Phillip!)

Curry was sad after signing off, but also enraged. When critics blamed a lack of chemistry for her departure, she dismissed it to friends it as a euphemism for something else. “ ‘Chemistry,’ in television history, generally means the man does not want to work with the woman,” Curry was known to have remarked. “It’s an excuse generally used by men in positions of power to say, ‘The woman doesn’t work.’ ”

Mika Brzezinski on Obama's Kamala Harris remark: "It just divides people up to separate them by looks."

Longer quote as transcribed at HuffPo:

I'm sure he meant to pay her a compliment... but quite frankly, it just divides women and it just divides people up to separate them by looks and probably was a little hand-fisted. I just think the whole thing, the whole dynamic about women and their looks puts women under a lot of stress that they don't need. and they should be sort of talked about by their qualities at work, especially when he is introducing someone because she is the attorney general. I actually think, you know, he meant to do -- say something nice. I think he made a mistake.

Did she really say "hand-fisted"? The colloquialism is "ham-fisted." I tried to check, listening to the video at the link, but it went on and on, beginning with a commercial, which I put up with, proceeding through some David Letterman jokes about North Korea, on to introductions of a number of internet-focused male journalists, and then to a presentation of what Obama said about Harris, and I'm still waiting to hear the Mika quote that I can already read, but I actually still care about whether she said "hand-fisted" or "ham-fisted," and then Morning Joe turns to the insipid internet men and asks:

"What did you see on line yesterday?"

I'm all: What did you see on line yesterday? What did you see on line yesterday? What did you see on line yesterday? What the hell am I doing slogging through a video with some guys summarizing what was on line yesterday? Is TV like this now? They don't have commentators opining about what they think. They have little men who pick through Twitter and, essentially, retweet for... who is this for? People who can't find Twitter on their own and need Twitter summarized?! People who think the news is the way the news looked to the people who tweeted about the news the other day" And the only news underlying all of that news is that the President said a pretty lady is pretty?

But like a pretty lady's face, the President's remark has got our attention. (What are we not paying attention to?) And it's something we can all chat about. (What are we not talking about?) And if we don't have anyone to talk to, we can lull ourselves into utter oblivion by listening to Morning Joe's little men repeat the texts of tweets they saw on line yesterday.

That's what I have to say, and you are so far ahead of the Morning Joe-level folks, because you are seeing it on line today.

"Women are less willing than men to make the ethical compromises often required in business."

"Jessica Kennedy of Wharton and Laura Kray of Berkeley report on three studies in a paper forthcoming in Social Psychology and Personality Science."

In the first study, subjects read 14 vignettes describing ethical compromises in a business context. Values seen as sacred, such as honesty, loyalty, or the well-being of others, were traded off for the secular values of money or status. An executive secures a big bonus by using a cheap ingredient in a cancer drug, knowing it will kill some people. A project manager takes credit for the work of a subordinate who stayed late at the office. Subjects rated how objectionable the behavior was, and how much business sense it made. Compared with men, women found the acts more offensive, and said they made less business sense....

This calls to mind the old Supreme Court case Bradwell v. State (1872), upholding the exclusion of women from the legal profession:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life....

The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence.... In the nature of things, it is not every citizen of every age, sex, and condition that is qualified for every calling and position....

Of course, the present-day study leads modern-day thinkers to propose ways to change the workplace so it will align better with the sensibilities of women:

Kennedy recommends that companies implement more ethical training, select people partially on the basis of ethics, and emphasize ethics as a core cultural value when recruiting. “If business organizations take a long-term view of success, they can allow people to value both ethics and achievement,” she says. “This would allow the people within organizations—both men and women—to be more fully human.”

"Lean In, Dad/How Shared Diaper Duty Could Stimulate the Economy."

A NYT Magazine item — worth clicking through for the illustration alone, which is a graphically excellent riff on Rosie the Riveter.

What's the economic theory purveyed in the NYT?

New research suggests that, because it’s primarily women who take advantage of leave and part-time entitlements, work-life accommodations often paradoxically limit career trajectories. 

Ha. This is precisely the point made by critics of the Family and Medical Leave Act, the Clinton Era legislation that was sold as an advancement for women. Senator Nancy Kassenbaum (R — Kansas) said: "Mandating leave will have a negative impact on [employment] opportunities for women... . Employers... will seek to hire workers with lower benefit costs, increasing the pressure to discriminate against women." (139 Cong. Rec. S985 (1993).)

The NYT wheels out a Harvard economist to make the point Kassenbaum made 20 years ago.

“In a regime where anyone can go part time, where it’s hard to get rid of people if they do, employers might sort on the front end and not hire people they think are likely to want to go part time, which usually means women,” said Lawrence F. Katz, an economist at Harvard. “There may be no way a woman can credibly commit to sticking around and not going part time.” The U.S., where these policies do not exist, has the smallest gap between women’s representation in the labor force and their representation in senior management positions.

Except that we do have the Family and Medical Leave Act, and it's hard to imagine getting rid of it. Once a benefit is in place, there are real-live beneficiaries who are going to yell if you try to take it away. Even if it's hurting women, threatening it will be called a war on women.

So what's the solution?

In order to prescribe policies that really allow female workers to “lean in” at work, social scientists are trying to find ones that recast social norms and encourage male workers to “lean in” at home. 

Just change how people think! That should be easy... in the fever dreams of a social scientist.

One area where there seems to be a lot of potential is paternity leave, which still has a stigma in both the United States and Europe. To remedy this bad rap, countries like Sweden and Norway have recently introduced a quota of paid parental leave available only to fathers. 

So! The prescription is outright sex discrimination! Affirmative action for men!

This might not sound like such a big deal...

Uh, yeah, actually it does. It's blatant sex discrimination against women, to be sold as helping women.

... but social scientists are coming around to the notion that a man spending a few weeks at home with his newborn can help recast expectations and gender roles, at work and home, for a long time. 

Oh, the good old social scientists... coming around... Not even a consensus. Just long-headed brooders maundering toward an idea that just might work. Absurd! 

"I’ve seen very few people — myself included — reach the top or even near the top while working full time at home."

"I do not blame job discrimination for blocking my path. I knew what would happen when I made these decisions. I knew there were jobs that, by their nature, were too inflexible for me if I was going to achieve the balance. You can’t cover a war and be there for your children...."

Writes Michael — yes, a man — Winerip.

Does lifting the combat ban for women make it easier or harder to reintroduce the military draft?

Here's a story explaining the new policy change and why it was done.

In the military, serving in combat positions like the infantry remains crucial to career advancement. Women have long said that by not recognizing their real service, the military has unfairly held them back.

No mention of the draft. When I first saw this story, I assumed it meant that it would be much more difficult, in the future, to bring back the draft. I cannot believe that the people would accept forcing women into combat. But now I'm thinking that removing this barrier makes it easier to restore the draft, because women won't really be forced into combat. With neutrally designed physical tests, no woman will be forced. These tests, keyed to what strong men can do, will exclude all but the most fit and motivated woman.

You don't need discrimination against women to filter out all the non-volunteers. And it will be more acceptable to Americans to force men and women into an institution that renounces any formal, express policy of sex discrimination. A male-only draft would raise objections, and a draft that includes women, but puts them in back up positions should be a problem both for women, because they are subordinated, and to men, because they are, because of their sex, more likely to be put in life-threatening positions.

***

I've been thinking about this problem quite a bit over the years as I teach the old Supreme Court case Rostker v. Goldberg, which involved a challenge to the requirement, introduced in 1980, that males register for the draft. The draft itself had ended in 1973, but President Carter thought we should be prepared for the possibility of a draft. He wanted to include both women and men, but Congress made it male only, which was challenged as unconstitutional sex discrimination. The fact that only men would be used in combat was the basis for upholding the discrimination:

In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.

"Men try harder, because they know that women want men who earn more."

"Women don’t because they know that men have different priorities, and because they want to quit the rat-race at some point and have kids, making their tolerance for high debt levels rationally lower."

Says Glenn Reynolds, reacting to this Inside the Law School Scam post about how law school — with its high tuition and iffy job market — is a worse deal for women than for men.

This is getting strangely close to the argument that used to be made for discriminating against women in law school admissions (or for excluding them altogether): Since women are less likely to fully use their legal education, we shouldn't give what could be a man's seat to a woman. Women were suspected of going to law school for ulterior reasons, such as to find a good husband or — crazy ladies! — because they are interested in the topic... intellectually.

"In the case of the male vegetarian, what may look like vegetarian or sexual orientation discrimination is really sex discrimination in the form of gender stereotyping..."

Says the abstract for a law review article titled "Of Meat and Manhood," which has led to a defamation and invasion of privacy lawsuit against the author:

New Jersey banker Robert Catalanello on December 28 sued Zachary Kramer, an associate dean at Arizona State University Sandra Day O'Connor School of Law....

The article cites former employee Ryan Pacifico's 2009 complaint against Catalanello, including a charge that he made numerous derogatory comments equating Pacifico's vegetarianism with homosexuality. "You don't even eat steak dude. At what point in time did you realize you were gay?" he said, according to Pacifico's complaint....

"Catalanello harassed Pacifico not because Pacifico is vegetarian, but because Pacifico was not sufficiently masculine," reads one passage that Catalanello cited. "The key here is that vegetarianism acts as a proxy for effeminacy."

Defamation? Presumably, Catalanello disputes Pacifico's allegations and doesn't like the way Kramer, in at least one part of his article, presents the allegations without saying something like "according to Pacifico's compliant."

Here's the "Meat and Manhood" article. More from the abstract:

[Current doctrine says] that an employee cannot raise an actionable theory of sex discrimination to “bootstrap” protection for an unprotected trait.... By focusing on the male vegetarian case study – which involves allegations of vegetarian, sexual orientation, and gender-stereotyping discrimination – the Article argues that sex discrimination often manifests as other forms of bias.

That is, the law doesn't give special protection to you because you're a vegetarian, but it does let you sue for sex discrimination. So the litigant tries to present anti-vegetarian animus as a matter of gender. That's an interesting problem of employment discrimination law, but think about why the courts don't approve of this "bootstrapping."

(Via Taxprof.)

Firing a woman because you find her "irresistably attractive" is not sex discrimination.

Said the Iowa Supreme Court (unanimously).

An attorney for Fort Dodge dentist James Knight said the decision, the first of its kind in Iowa, is a victory for family values because Knight fired Melissa Nelson in the interest of saving his marriage, not because she was a woman....

Nelson, 32, worked for Knight for 10 years, and he considered her a stellar worker. But in the final months of her employment, he complained that her tight clothing was distracting, once telling her that if his pants were bulging that was a sign her clothes were too revealing, according to the opinion....

Nelson filed a lawsuit alleging gender discrimination, arguing she would not have been terminated if she was male. She did not allege sexual harassment because Knight's conduct may not have risen to that level and didn't particularly offend her, Fiedler said.