marty.lederman at comcast.net
Tue Dec 6 14:03:19 PST 2005
But the schools that impose the policies are completely indifferent as to whether the military's reason is a good one, a bad one, etc. Their antidiscrimination rules would exist even if "Don't Ask; Don't Tell" were never enacted -- and those rules would apply to all employers, even if the military did not discriminate. Moreover, my point in the sentence you quote was correct -- if the antidiscrimination norms have a disparate impact on the military, it's because (i) the military is a large employer; and (ii) it's one of the only large employers in the nation that continies to (openly) discriminate against gays and lesbians. I hope it's not necessary for me to explain that "Don't Ask; Don't Tell" isn't a function -- not a necessary function, anyway -- of being "military in nature." Almost all militaries do not so discriminate.
----- Original Message -----
From: Scarberry, Mark
To: conlawprof at lists.ucla.edu
Sent: Tuesday, December 06, 2005 4:54 PM
Subject: RE: Solomon Amendment
Marty writes, "But, of course, such disparate impact is not at all a function of the fact, or correlated with the fact, that the employers are military in nature -- it is, instead, entirely a function of the fact that the military is a large employer and has chosen to discriminate (or, more precisely, that Congress has insisted that the military discriminate)."
That is contestable. As I wrote some time ago to the list, a prohibition on recruiting by organizations whose vehicles do not average at least 15 miles per gallon could be said on its surface to provide "equal access" to the Army, which has simply decided that it should have those big tanks and armored personnel carriers and Humvees that use so much fuel. But of course a military (at least our kind of military) needs such vehicles, and such a rule would have a disparate effect that is a function of the fact that the military employers are military in nature. There is a dispute about whether "Don't Ask, Don't Tell" (or some other policy that also would discriminate based on sexual orientation) is needed for the effectiveness of the military. Colin Powell thinks it is (last time I heard him speak on the subject). Others disagree.
Mark S. Scarberry
Pepperdine University School of Law
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Tuesday, December 06, 2005 1:26 PM
To: DavidEBernstein at aol.com; SLevinson at law.utexas.edu; conlawprof at lists.ucla.edu
Subject: Re: Solomon Amendment
Well, the analogy to the religious accommodation provision in title VII is not entirely inapt, because that accommodation provision is not very fruitfully viewed as an "equality" provision, but is instead best viewed as a case of religious accommodation -- i.e., a preference for religious employees -- except that, in order to avoid constitutional problems, the Court has construed that provision so that it doesn't give religious employees much more than an assurance of equal treatment, rather than exemptions.
The Rehab Act analogy is not very strong, I think. But we've been through this before, back in May. I don't have much to add to what I wrote back then:
The rules proscribed by section 504 have a disparate impact on the disabled in some sense "because" such persons are disabled and the rules are insufficiently attentive to such differences and are crafted based upon an assumption of an "able-bodied" baseline. A university's nondiscrimination rule for recruiter access, by contrast, obviously has a disparate impact on employers who discriminate -- indeed, the whole point of such a rule is to impose disparate treatment on such employers. But I think Sam [Bagenstos] is suggesting something more -- namely, that such a rule has a disparate impact on military employers, as such, vis-a-vis nonmilitary employers. Perhaps so -- because the military is the largest and most prominent employer to discriminate against gays and lesbians. But, of course, such disparate impact is not at all a function of the fact, or correlated with the fact, that the employers are military in nature -- it is, instead, entirely a function of the fact that the military is a large employer and has chosen to discriminate (or, more precisely, that Congress has insisted that the military discriminate). If Congress tomorrow enacted a "Don't Ask; Don't Tell" policy for the Treasury Department, then at that point the universities' policies would begin to have a disparate impact on recruiters for the IRS, as well (as compared to employers that don't enforce tax laws). But that sort of disparate impact seems to be a far cry from the sort that section 504 addresses, no?
[Any] disparate effect [on the military] is the function, not of any "inherent" characteristic of the military, or of the fact that the military is a military, or of any "baseline" assumption about what is "normal" (as in the Rehab Act context, where the employer presumptions are inherently discriminatory), but instead of Congress's own choice to insist that the military discriminate against gays and lesbians -- a choice that Congress itself could reverse tomorrow, if it so wished. [Not the case for title VII and the Rehab Act, I might add.]
(Indeed, the "irony," of sorts, is that Congress has exempted from the Solomon Amendment the one set of schools that actually discriminates against the military because it's the military -- namely, those schools that have a longstanding religious objection to employers that engage in war.)
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