Discriminating Democrats

Several days ago Stuart Buck persuasively argued in a long, detailed, and masterful post that if a private employer had treated a job applicant in precisely the same manner that Senate Democrats treated Miguel Estrada, the rejected applicant would have a very strong case for discrimination under Title VII. Go read it if you haven’t.

After emphasizing that of course Title VII does not apply to judicial nominations, Buck also took pains to point out that a successful Title VII claim does not require evidence that the defendant acted out of any malice or bigotry, only that race was a factor (even, one might say, “one of many factors,” since the diversiphiles are so fond of that phrase) in the decision not to hire.

Today on Volokh Juan Non-Volokh offered a nice, concise summary of Buck’s post:

Stuart Buck adroitly and extensively addresses the question whether the Seante Democrats’ treatment of Miguel Estrada is comparable to the sort of behavior that is illegal when performed by private companies. His conclusion: Had this same pattern of behavior occurred in the private employment context, Estrada would have had a strong case. Note, Buck is not claiming that Estrada’s opponents are bigoted — bigotry, as such, is not required to press a claim under federal civil rights laws — only that equivalent behavior by an employer would likely be actionable under federal law.

Fortunately, neither Buck nor Non-Volokh noted a glaring irony, thus allowing me to make it here: if a private employer in a company covered by Title VII had been caught treating a job applicant the same way the Senate Dems treated Estrada, it is the Dems who would be shouting the loudest that such dastardly behavior was clearly discriminatory, and Jesse Jackson would be in the corporate boardroom the next day threatening boycott unless contributions were made to his favorite charity.

Say What? (2)

  1. David Nieporent November 9, 2003 at 10:22 pm | | Reply

    With “his favorite charity,” needless to say, being himself.

  2. Richard Fliehr November 10, 2003 at 5:43 pm | | Reply

    It’s worse than what John posted. It’s not an employer, bigoted or not, refusing to hire a minority. It’s a hiring committee with 45% or so of the committee refusing to even put the matter to a vote.

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