Supreme Court’s “Retaliation” Decisions Raise New Obstacles for Employers

Irvine, CA--In two recent decisions, the Supreme Court has determined that blacks and over-40 workers may sue for "retaliation" under federal employment discrimination laws.

In the case of CBOCS West, Inc. v. Humphries, a Cracker Barrel restaurant manager was fired for leaving the store safe open overnight. He sued for retaliation, alleging he was really being punished for having previously complained about racial discrimination against a fellow employee. The Supreme Court decided that the Civil Rights Act of 1866 allows such a retaliation claim. In the other case, Gomez-Perez v. Potter, the Court held that the Age Discrimination in Employment Act grants older workers a similar right to sue.

"These decisions erect new obstacles to rational employers whose goal is to market good products and services," said Thomas Bowden, an analyst at the Ayn Rand Institute. "Most Americans think discrimination laws simply stop irrational employers from making decisions based on race, age, or sex when those factors are irrelevant to performance. In fact, however, such laws burden all employers by jacking up the costs and risks of hiring the so-called protected classes, such as minorities, women, and disabled or older workers.

"Any employer who disciplines, demotes, or fires a protected worker must be prepared to prove, to the government's satisfaction in a court of law, that the decision stemmed entirely from legitimate business reasons. Given the huge number of employment decisions made every day, the costs associated with maintaining evidence of those decisions' validity are staggering.

"A protected employee can file a charge of discrimination with little or no evidence. Then the burden of proof--along with attorneys' fees, lost employee work time, and the risk of large monetary awards, including punitive damages--falls on the employer. Predictably, therefore, employers end up giving preferential treatment to members of the protected classes.

"Outlawing retaliation clothes the protected classes in yet another layer of legal insulation. An employee whose bad performance puts him in danger of discipline or discharge need only make a complaint of discrimination as a 'pre-emptive strike.' Now if his employer fires him, he can cry 'retaliation' and drag his boss into court, without further evidence of wrongdoing.

"The ever-present threat of discrimination and retaliation suits prevents rational employers from acting on their own best thinking about who is most fit for a job. Congress should address the continuing injustice of laws that encourage irrational discrimination in the name of preventing irrational discrimination.

"The best weapon against irrational discrimination is a free market, in which those who act on their stupid prejudices are shunned and lose out on talented minority, female, or older employees. The solution is not to make hiring such employees a nightmare."

Video: Thomas Sowell on Economic Facts and Fallacies

Peter Robinson speaks with Thomas Sowell about his new book Economic Facts and Fallacies in which Sowell exposes some of the most popular fallacies about economic issues. Sowell takes on the conventional thinking on a wide swath of America's economic life, from male-female economic differences to income stagnation, executive pay, and social mobility to economics of higher education. In all cases he demonstrates how economics relates to the social issues that deeply affect our country.

Link

Woodstock’s Legacy: The Rise of Environmentalism and the Religious Right

In 1969 Ayn Rand's Ford Hall Forum talk, "Apollo and Dionysus," addressed the nearly simultaneous events of Woodstock and the first lunar landing. Employing Greek mythology's god of the sun and god of wine, she compared the awe-inspiring accomplishments of NASA's Apollo space program to the famous three-day concert that has come to exemplify the counterculture of the 1960s and the "hippie era." Almost four decades later, Dr. Brook, president and executive director of the Ayn Rand Institute, reflects on her words and explores the implications of how American culture since Woodstock has valued individualism relative to collectivism and civilization relative to primitivism.

Who: Yaron Brook, president and executive director of the Ayn Rand Institute

What: A Ford Hall Forum talk that will consider how the opposing forces of reason and emotionalism have manifested themselves in American culture in the four decades since Woodstock, with special focus on the rise of religion and environmentalism. A Q&A will follow.

Where: Old South Meeting House, 310 Washington Street, Boston, MA

When: Thursday, May 8, 2008, from 6:30 p.m. to 8:00 p.m.

The public and media are invited. Admission is FREE.

Yaron Brook is president and executive director of the Ayn Rand Institute and is a contributing editor to The Objective Standard. A former finance professor, he has published in academic as well as popular publications. He is frequently interviewed in the media and appears weekly on the new Fox Business Network to debate and discuss current economic and business news. His columns and opinion-editorials are published on forbes.com and in many major newspapers. Dr. Brook lectures on Objectivism, business ethics and foreign policy at college campuses, community groups and corporations across America and throughout the world.

Social Engineering and Taxes

Yaron Brook has an excellent op-ed on Life and Taxes in Forbes:

Your taxes are overdue, if you're just reading this now. But the fact is that every day is April 15 for Jane and John Smith, America's most tax-savvy couple.

They awaken in their highly mortgaged house (interest deduction), make breakfast for their adopted child (tax credit and exemption), then drive their hybrid cars (more tax credits) to work. John, at his office, signs a contract for solar energy panels (tax credit), but he turns down a promotion that would launch the couple into a higher tax bracket. Meanwhile, across town, Jane signs an application to get historic preservation status (tax credits) for her office building.

Back home that evening, the Smiths write a few tax-deductible checks to charities and then discuss where to put their savings--into a tax-free retirement account, or a start-up business whose income would be taxed at the highest marginal rate? Just before sleep, their thoughts drift to energy-efficient appliance credits and carbon-emission taxes.

Since it's an election year, the presidential candidates are busy figuring ways to add still more carrots to the tax code--so that the Smiths will become still more entangled in a tax policy that fears and distrusts the goals that individuals would select if guided only by rational self-interest.

Tax policy works by attaching financial incentives to a long list of values deemed morally worthy. If you want to maximize your wealth come tax time--and who doesn't?--you must look at the world through tax-colored glasses, "voluntarily" adjusting your behavior to suit social norms and thereby qualifying for tax breaks. In this way, the social engineers of tax policy preserve the impression that you're exercising free choice, while they're actually dispensing with your reason and your judgment.

As an example, consider the choice between buying and renting a home. In a free market, a dollar paid in rent is equivalent to a dollar paid for mortgage interest. But when the federal government offers a mortgage interest deduction--based on some alleged need for an "ownership society"--then each purchase dollar saves a few pennies in tax that a rental dollar does not. So the path to wealth maximization suddenly veers away from renting and toward home ownership.

Over the past century, such social engineering has inflated the nation's tax laws to an estimated 66,000 pages of statutes, regulations and rulings. [...]

Read the rest here.

Ben Stein’s “Expelled” Gets an F

Irvine, CA--Today Ben Stein's anti-evolution documentary, Expelled: No Intelligence Allowed, opens in theaters. The film claims that advocates of "intelligent design"--the view that life is so complex it must be the product of a "higher intelligence"--are the persecuted victims of a "scientific establishment" dogmatically committed to evolution.

"The premise of Expelled is that proponents of 'intelligent design' have been shunned, denied tenure, and even fired because of a conspiracy to quash the scientific evidence supporting their theory," said Dr. Keith Lockitch, resident fellow at the Ayn Rand Institute. "But the truth is: there is no evidence supporting their theory. Intelligent design is completely devoid of any positive scientific content, and consists of nothing more than a religiously motivated attack on evolution. To the extent intelligent design advocates are facing obstacles in academia it is because they are not doing real science: they haven't been 'expelled' they have flunked out of the scientific community, just as a faith healer would flunk out of medical school.

"Observe that intelligent design advocates have pumped millions into publicity-seeking, rather than appealing to scientists with facts and logical arguments. They have spent more time at Christian 'apologetics seminars' than scientific conferences, and have attempted to use the courts to force schools to teach their ideas. Now they are hoping to dupe the movie-going public with a film that misrepresents Darwin's theory and the array of facts that support it--just as the makers of Expelled misrepresented the nature of the film in order to bamboozle respected evolutionary scientists into participating in it.

"Intelligent design advocates will do anything to advance their views--except science.

"The reason for that is simple: doing science has never been their goal. Their goal is to make biblical creationism appear scientific in order to skirt the constitutional ban on religion in public schools. Contrary to the film's claims, the real dogmatists are not the defenders of Darwin, but the religiously motivated advocates of intelligent design."

Defender of Civilization: Andrew Bostom

Those interested in cutting to the truth about the Islamic Totalitarian threat that is descending upon—and arising among—all of us should pay special attention to the works of Andrew Bostom. His blog is a must-read, and his articles in The American Thinker are not to be missed.

Bostom's major works are The Legacy of Jihad: Islamic Holy War and the Fate of Non-Muslims (Prometheus, 2005) and The Legacy of Islamic Antisemitism: From Sacred Texts to Solemn History (Prometheus, 2008). The latter (to be released next week) promises the same profound expertise and virtuous commitment to the truth as found in the former. His works are required reading for anyone who wants to understand the nature of jihad and the hostile attitudes of Muslims toward Jews throughout history.

Dr. Bostom is not a scribbler. He is a scientist, and he approaches his subject with the meticulous loyalty to facts and evidence that define a man of reason. His works do not merely present his conclusions; they detail how his conclusions accurately reflect the relevant facts and available sources. In an article three years ago, for instance, he took on the widespread Muslim claim that "jihad" refers to some kind of "inner struggle" as against external war. In historical terms, "it is a complete crock" he wrote to me in an email—and his article "Sufi Jihad?" shows us why.

Bostom cites a series of Sufi thinkers—the ones who are supposed to favor the spiritual meaning of Islam rather than the violence of the creed—to show that these mystics were in fact dedicated to violence. To take the most important: Al-Ghazali (1058–1111), a towering figure in Islamic thought, a Sufi Muslim who followed the Shafi'I school of Islamic jurisprudence, and an allegedly non-violent man, wrote this of jihad:

[O]ne must go on jihad (i.e., warlike razzias or raids) at least once a year . . . one may use a catapult against them [non-Muslims] when they are in a fortress, even if among them are women and children. One may set fire to them and/or drown them . . . [if one of them] is enslaved, his marriage is [automatically] revoked. . . . One must destroy their useless books. Jihadists may take as booty whatever they decide . . . on offering up the jizya [the tax levied on the dhimmis, the subjugated peoples], the dhimmi must hang his head while the official takes hold of his beard and hits [the dhimmi] on the protruberant bone beneath his ear . . . their houses may not be higher than the Muslim's. . . . They [the dhimmis] have to wear [an identifying] patch [on their clothing], even women, and even in the [public] baths . . . [dhimmis] must hold their tongue. . . . [cited in Kitab al-Wagiz fi fiqh madhab al-imam al-Safi'i, Beirut, 1979, pp. 186, 190–91; 199–200; 202–203. English translation by Dr. Michael Schub.]

Some today claim that "jihad" means some kind of contemplative inner struggle, that non-Muslims under Muslim rule enjoy equal protection under the law, that there are no slaves in Islam, that non-Muslims need not wear an identifying patch to single them out, or that there is respect for civilians in Islamic thought. But to make this claim, one must disagree not merely with a modern commentator. One must repudiate the most authoritative Islamic mystic since the founding of Islam.

Such is the value of Dr. Bostom's contribution. He has done the heavy lifting required to bring these kinds of sources to us and to show—not merely by the force of his own conclusions, but in the words of such Islamic authorities themselves—the intellectual origins of the war against the West today.

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