Coyote Blog

From Atlas Shrugged:

Dr. Ferris smiled. . . . . ."We've waited a long time to get something on you. You honest men are such a problem and such a headache. But we knew you'd slip sooner or later - and this is just what we wanted."

[Hank Reardon:]  "You seem to be pleased about it."

"Don't I have good reason to be?"

"But, after all, I did break one of your laws."

"Well, what do you think they're for?"

Dr. Ferris did not notice the sudden look on Rearden's face, the look of a man hit by the first vision of that which he had sought to see. Dr. Ferris was past the stage of seeing; he was intent upon delivering the last blows to an animal caught in a trap.

"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now, that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."

Here is the same thing, Obama Administration style

Major U.S. corporations have broadly supported President Barack Obama's healthcare reform despite concerns over several of its elements, largely because it included provisions encouraging the wellness programs.

The programs aim to control healthcare costs by reducing smoking, obesity, hypertension and other risk factors that can lead to expensive illnesses. A bipartisan provision in the 2010 healthcare reform law allows employers to reward workers who participate and penalize those who don't.

But recent lawsuits filed by the administration's Equal Employment Opportunity Commission (EEOC), challenging the programs at Honeywell International and two smaller companies, have thrown the future of that part of Obamacare into doubt.

The lawsuits infuriated some large employers so much that they are considering aligning themselves with Obama's opponents, according to people familiar with the executives' thinking.

"The fact that the EEOC sued is shocking to our members," said Maria Ghazal, vice-president and counsel at the Business Roundtable, a group of chief executives of more than 200 large U.S. corporations. "They don't understand why a plan in compliance with the ACA (Affordable Care Act) is the target of a lawsuit," she said. "This is a major issue to our members."

At the exact same moment, one branch of the Administration is encouraging an activity that another branch is working to criminalize.

I have been reading of late some histories of Germany in the 1930's, with a particular emphasis on racial laws and policy.   Over time the expanding bans on Jewish participation in the economy and society as well as preferences given to non-Jews for government jobs led to some practical problems, including:

• What percentage of Jewish blood made one Jewish?  The Nazis messed around with this problem a long time, in part because of Hitler's absolute reluctance to get involved in such details.  Was it one grandparent?  Three grandparents?
• How does one test for such things?  In the thirties, there was an boom in geneology research in Germany, as everyone raced around trying to figure out what evidence was sufficient to establish someone's race

It would be nice to think we put this kind of thing to bed, but here we are in the 21st century running around trying to answer the exact same questions

• Does 1/32 Cherokee blood make Elizabeth Warren the member of a protected group?  Does 1/8 black blood mean George Zimmerman is not a racist?
• We are building infrastructures to make rulings on race.  I found this story amazing

This story reminded me of the 1980s case of the twin red-haired Boston firefighters who claimed to be black, based on a photo of a great-grandmother and alleged oral history. While I remembered that they had gotten fired for their alleged fraud, I didn’t remember this detail:

Under current rules, said [general counsel to the state personnel office] Ms. Dale, candidates who say they are members of minority groups are judged by appearance, documented personal history and identification with a minority community. Disputes over claims of minority status are resolved by the Department of Personnel Administration.

 And indeed, there eventually was a two-day administrative hearing, in which the hearing officer determined that the twins failed all three criteria, and thus were not black. A judge upheld the ruling, finding that the twins had claimed minority status in bad faith.I have to admit being under the impression until now that as a legal matter, minority status was an in issue of self-reporting. But at least in the Massachusetts Civil Service system, one can get fired for “racial fraud.”

• Every year, in the name of some sort of racial harmony, I have to sit down and report to the government on the race of each of my employees.  For 364 days a year I can ignore the race of my employees, but one day a year the government makes me wallow in it.  Here are part of the instructions:

Self-identification is the preferred method of identifying the race and ethnic information necessary for the EEO-1 report. Employers are required to attempt to allow employees to use self-identification to complete the EEO-1 report. If an employee declines to self-identify, employment records or observer identification may be used.

Where records are maintained, it is recommended that they be kept separately from the employees basic personnel file or other records available to those responsible for personnel decisions.

Race and ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins.

I am told we are trying to create a society free of racism, but the results sure look a lot like racism to me.

I am increasingly convinced that contradictory regulations that make it impossible even for people of goodwill to be in compliance are a feature, not a bug of the current system.

…Common sense dictates that any medication that carries with it a warning that it “may cause drowsiness” or that the patient should “use caution” if operating machinery may pose a risk in the workplace. It is for this reason that many employers adopt a policy requiring employees to self report the use of prescription pain killers. This is especially important in potentially dangerous workplaces such as manufacturing and construction.

In a recent action that defies common sense, the Equal Employment Opportunity Commission has taken the position that such policies are unlawful under the Americans With Disabilities Act. The ADA prohibits an employer from conducting “medical inquiries” without a business reason to do so. In EEOC v. Product Fabricators, Inc., an action in federal court in Minnesota, the EEOC required a manufacturing employer to abandon its policy of encouraging employees to inform supervisors if they are under the influence of narcotic pain killers such as Vicodin. The EEOC took the position that an employer cannot ask about prescription pain killer usage unless it has “objective” evidence that an employee is impaired on the job.

This places employers in a very difficult position….

Walter Olson also has comments at the link.

Frequent readers of this blog will know that I am a strong supporter of open immigration, and have substantial problems with how we are effectively criminalizing poor people looking for work. 

However, it is perhaps most important to defend the free speech of people with whom one disagrees.  A while back, my employee accidentally sent a private email from his private account expressing opinions about stronger defense of the border and enforcement of immigration laws (opinions that run counter to my own) to a government employee with whom we interact fairly frequently.  The government employee's first impulse was to threaten that our company may be liable under anti-discrimination laws for such speech, but to their credit quickly agreed that it was inappropriate for a federal employee to take any action based on private speech.  But that first, initial reaction was interesting.

It seems a professor here in the Phoenix area is facing sanction for similar reasons.

The case involves Walter Kehowski, a math professor at Glendale
Community College"”part of the Maricopa County Community College
District (MCCCD) system"”who e-mailed a single Thanksgiving message to
the entire MCCCD community. On the day before Thanksgiving, Kehowski
sent an e-mail
containing the text of George Washington's "Thanksgiving Day
Proclamation of 1789" over the district's "announcements" listserv.
Kehowski had found the Proclamation on Pat Buchanan's blog, and included a link to that webpage in his e-mail. That citation would have dire consequences.

 

Within weeks, five MCCCD employees complained that Kehowski's
e-mail was "derogatory" and "hostile" because the link he'd included"”if
you decided to open it"”led to a page where Buchanan also posted his
opinions of immigration. MCCCD soon held an Initial Assessment
of the complaints, and decided that since Kehowski's e-mail was not
work-related but rather expressed a "social comment," he had violated
MCCCD's e-mail policies, which limit e-mails to work-related
information. MCCCD reacted on March 9 by forcing Kehowski to cease
teaching, placing him on immediate administrative leave, and
recommending that he be terminated....

MCCCD has also found Kehowski guilty of violating the Equal Employment Opportunity policy.

Again we have government sanctioning speech based on its content, a definite no no, particularly since there was a pretty clear precedent for other people using the email system ant that particular listserv to pass on social commentary without sanction.  Its clear, though, that many in the college's community found the speech somehow in violation of discrimination laws.

However, this is the irony I find amazing:  State, Federal, and Maricopa County law require that businesses discriminate against undocumented aliens.  I can be fined and sent to jail for not discriminating against them.  Maricopa county, which runs this particular community college, employs a sheriff that revels in anti-immigrant rhetoric that probably runs more extreme than even Pat Buchanan and who prides himself on how many illegal immigrants he has rounded up this week (he.  In this context, how can it be illegal to advocate for enforcement of current law?  How can it be illegal to advocate for policies aggressively pursued by your own employer? 

Any viewpoint in speech needs to be tolerated, but I find it especially odd that government institutions are unable to tolerate speech that upholds what is essentially the official position of the government.