From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Equal protection dead end? 3.
Organization: Who, me???
Date: Mon, 28 Dec 1992 00:36:13 GMT

In article <34556@rnd.GBA.NYU.EDU> smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias) writes:
>In article <1992Dec22.164717.26839@rotag.mi.org> kevin@rotag.mi.org
>(Kevin Darcy) writes: 
>
>>>You claimed that equal pay for identical pay claims presumed
>>>discrimination.  
>>
>>I don't recognize that gibberish. It's certainly not anything _I_ claimed.
>
>You most certainly did.  

Read it again, moron: "equal PAY for identical PAY". What the hell does
that gibberish mean? Pay for pay?

>I am not going to go and find it because you are a well-known net liar.  

And that fabricated reputation relieves you of the requirement to back up
your accusations of lying???

Given that you completely botched your original claim ("pay for pay", indeed),
I think you owe me an apology for calling my denial a "lie".

Are you an honorable man, Stephen? Can you honestly and forthrightly admit
your mistake?

>I am busy, somewhat lazy, and will stand
>on my net reputation plus people's own recollections of what they
>read.

If your "reputation" is all you have to hide behind, then I predict you'll
have only a temporary respite, if things continue like this.

>>It was about discrimination, Stephen. You should have read it more
>>closely.
>
>A quote about discrimination is not the same as a quote about equal
>pay for identical work.

Are you trying to tell me that "equal pay for identical work" has nothing
to do with trying to combat discrimination??? What are you trying to pull
here?

>>>You are making an ass of yourself, Kevin.  
>>
>>And you're starting to sound really shrill, Stephen.
>
>You are making an ass of yourself: (1) You claimed that equal pay for
>identical work presumed intent.  

I said "probably", Stephen. Then I considered the fact that maybe the laws
were consciously written to relieve the claimants of the burden of proving
intent. As it happens, that's how most of the Equal Opportunity laws are
written. As for whether there is really a substantive difference between:

	X is guilty of discrimination if a discriminatory effect can be
	proven

		and

	We presume that X has a discriminatory intent, if X can be proven to
	have generated a discriminatory effect

is a purely abstract, academic point.

Whether one can generalize from the specific case of EMPLOYMENT discrimination
to discrimination in general, is of course a highly debatable question too.

>(2) You post a case addressing a
>different form of discrimination where intent is required in an
>attempt to refute my claim that no proof of intent is required in
>equal pay for identical work cases.  

	1) When dealing with one form of discrimination, the law frequently
	   borrows concepts and principles from cases dealing with other 
	   forms of discrimination. Why should I be held to a higher standard
	   of "relevance" than, e.g. the Supreme Court?

	2) The specific quotes I posted contained some GENERIC references to
	   pronouncements about discrimination, that applied equally to 
	   sex discrimination, as they would to race discrimination, religious
	   discrimination, or whatever

	3) In any case, you didn't read the posted case very well. Weren't
	   you under the impression that _Hernandez v. New York_ was a housing
	   discrimination case, until I corrected you? <snicker>
	    
>(3) You deny you said (1).

Wrong. What I denied was a completely mistyped ("pay for pay") account of what 
I actually said. You compound your error.

>>>Equal pay for identical
>>>work cases do not require showing discriminatory intent.  
>>
>>Perhaps not, due probably to conscious efforts to write the laws in such a
>>way as to relieve the claimants' burden of proof, but most discrimination
>>claims DO require a showing of discriminatory intent. 
>
>Now you finally seem to get it.  That was exacly my point.  The
>construction of claimants' burden of proof is entirely arbitrary.

Whoa! Wait a minute here! Since when does Equal Protection have anything to
do with Equal Opportunity claims? You're mixing Constitutional issues with
issues of ordinary Congressional legislation here. The "equal pay for equal
work" issue is NOT a Constitutional issue, as far as I can tell.

So, I _really_ hope you're not planning to generalize from "equal pay for
equal work" to anything to do with Equal Protection, Stephen, such as
trying to defend abortion rights under Equal Protection. EP claims *DO*
require a showing of intent, a la _Hernandez v. New York_, or, more
generically, _Washington v. Davis_, which is a landmark precedent in this
area.

Once again, you are displaying your naivete about the different areas of
jurisdiction, the different standards of proof, the different operating
principles that all co-exist in "the US legal system". The ERA was attempt
to proscribe sex discrimination at the same Constitutional level as other
forms of discrimination. It was not ratified. Therefore, discrimination on
the basis of gender, while punishable in certain areas, e.g. employment, 
under the aegis of the EEOC and its enabling legislation, it is still 
permissible in many other areas where race discrimination, religious
discrimination and other forms of discrimination are Constitutionally
disallowed. Many state constitutions, however, have the equivalent of an
ERA, so the lack of a federal ERA isn't quite so obvious to the common man
(or woman :-).

>This type of claim about our legal system is at the core of critical
>legal theory.  If burdens of proof are arbitrarily constructed and
>effect is sometimes sufficient, ...

But not for Equal Protection claims. Therefore, your original claim is full 
of shit.

>>Since you are the one 
>>attempting to generalize from "equal pay for equal work" to other forms of 
>>discrimination, the burden is on you to show that the generalization is
>>valid, i.e. that the intent-neutrality of "equal pay for equal work" is
>>the rule, rather than the exception. 
>
>I brought up equal pay for identical work in the context of countering
>your claim that intent was always required in discrimination cases.
>You were wrong.  Why not admit and move on?

Because your whole thesis seems to be that there is some sort of Constitutional
Equal Protection that can be mustered to protect abortion rights. That is 
simply not true, as I have demonstrated. For the EEOC to fine employers for 
violating "equal pay for equal work" claims is worlds apart from establshing
an abortion right on Equal Protection grounds.

>>I have given counter-examples where 
>>discrimination claims DO require a showing of intent. I have put the ball
>>back in your court. Now it's up to you to go the distance with your claim.
>
>I have made my claim quite clearly from the start.  I find
>discriminatory effect to be a compelling enough proof to warrant
>a presumption of improper discrimination.  I have labelled this
>improper discrimination misogyny.  Feel free to reject the claim that
>effect is proof enough to draw my conclusion.  But you can no more
>`prove' that it is not then I can claim to `prove' that it is.  I
>guess people will just have to read our arguments and draw their own
>conclusions.  

I have shown your "proof" to be irrational. That is sufficient. If you
still cling to the notion that your "proof" is rational, why don't you
respond to the crazed sniper example, i.e. a crazed sniper fires into a
crowd, and kills more women than men; is the crazed sniper a misogynist?

							- Kevin