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.