Sunday, July 15, 2018

Judge Kavanaugh and Federal EEO Law: A Little Something for Everybody

As the Senate weighs whether to confirm Judge Brett Kavanaugh to serve on the Supreme Court, his views on civil rights are likely to be intensely scrutinized. A brief survey of Kavanaugh's decisions for the D.C. Circuit offers some insight into how Kavanaugh might interpret Title VII of the Civil Rights Act of 1964 and other federal prohibitions against employment discrimination. In short, Kavanaugh's EEO opinions offer something for both employers and employees to like -- he can be comfortable with curtailing EEO protections to prevent conflicts with other interests, but he interprets protections broadly when he believes they are supported by the statutory text.

Most worrisome perhaps to potential plaintiffs and EEO advocates are Kavanaugh's dissents in three cases in which the majority ruled for the plaintiff:
  • In Rattigan v. Holder689 F.3d 764 (D.C. Cir. 2012), the majority ruled that, although a court cannot review the denial or revocation of a security clearance, a federal agency can still be liable under Title VII for reports of security concerns that are based on knowingly false information. In dissent, Kavanaugh criticized the majority for "slicing and dicing" and explained that he would interpret Supreme Court precedent as making the entire security clearance process off-limits.
  • In Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, 730 F.3d 939 (D.C. Cir. 2013), the majority ruled that, while the Speech and Debate Clause of the U.S. Constitution prohibits a court from reviewing legislative acts or the motivation for legislative acts, dismissal of the plaintiff's claims of race discrimination and retaliation was inappropriate because it was possible for the plaintiff to establish pretext without requiring the court to probe into protected legislative activity. In dissent, Kavanaugh argued that once, as here, a court has concluded that the defendant's asserted reason involves protected legislative activity, the "case must come to an end." In his view, a plaintiff would not be able to prevail unless the defendant were required to produce evidence of constitutionally protected activities.
  • In Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012), the majority, in an opinion authored by Obama nominee Merrick Garland, held that the Basic Authorities Act did not permit the State Department to exempt an American citizen employed in Paris from the protections of the Age Discrimination in Employment Act. In dissent, Kavanaugh argued that a statutory provision authorizing the State Department to contract with American workers overseas "without regard" to "statutory provisions" relating to the "performance of contracts and performance of work in the United States" unambiguously authorized the State Department to require the plaintiff's retirement at age 65.
These cases share a number of characteristics. In each, Kavanaugh interpreted EEO protections narrowly where there was tension with other authority granting the defendant broad discretion. Unlike the judges in the majority, Kavanaugh was unwilling to adopt complicated legal analyses that preserved EEO rights to a limited extent, opting instead for more straightforward blanket rules that avoid the need to "thread the needle," as he described the majority's approach in Howard.

Kavanaugh also downplayed the impact of limiting judicial review of EEO claims, expressing confidence that plaintiffs would have other adequate mechanisms for pursuing relief. In Howard, for instance, Kavanaugh explained that if the Speech and Debate Clause barred a congressional employee from proceeding in federal court, he or she could pursue an administrative complaint with the congressional Office of Compliance. And in Miller v. Clinton, Kavanaugh dismissed the majority's concerns about exempting the State Department from EEO legislation, observing that the Department is bound by the Constitution. 

Kavanaugh's preference for clear and uncomplicated rules of law is also illustrated by his strong endorsement of the D.C. Circuit's rather idiosyncratic approach to evaluating claims of intentional employment discrimination. Courts of appeals generally will affirm summary judgment for the employer where the plaintiff has either failed to establish a prima facie case or failed to show that the employer's asserted reason for an action is a pretext for discrimination. Recent examples include Kidd v. Mando American Corp., 731 F.3d 1196 (11th Cir. 2013); Jackson v. United Parcel Services, Inc., 643 F.3d 1081 (8th Cir. 2011); and Kulik v. Medical Imaging Resources, Inc., 325 F. App'x 413 (6th Cir. 2009). By contrast, however, writing for the entire three-judge panel in Brady v. Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), Kavanaugh clarified that the judicial focus on whether a plaintiff has established a prima facie case is typically misguided -- once an employer has asserted a nondiscriminatory reason, the district court should focus on the ultimate question of whether the plaintiff has presented sufficient evidence of pretext. Citing Supreme Court precedent dating back to 1983, Kavanaugh criticized litigation regarding a plaintiff's prima facie case as a "largely unnecessary sideshow": "It has not benefited employees or employers;  nor has it simplified or expedited court proceedings. In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial resources."

Despite a preference for bright-line rules in some contexts, Kavanaugh has also advanced more nuanced approaches that reflect the fact-specific nature of EEO claims. In Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013), he joined the court's opinion ruling for the plaintiff in a racial harassment case but wrote separately to stress that a single severe incident of discriminatory conduct can create a hostile environment. Although acknowledging that it is unusual for a single incident to violate EEO law, Kavanaugh pointed out that "saying that a single incident of workplace conduct rarely can create a hostile work environment is different from saying that a single incident never can create a hostile work environment." Citing EEOC guidance, Kavanaugh added that the question is whether the alleged conduct was sufficiently severe or pervasive, not whether it was sufficiently severe and pervasive. And citing Langston Hughes, Alex Haley, and Harper Lee, Kavanaugh concluded that being called the n-word by a supervisor, as the plaintiff had alleged, was sufficient by itself to establish a racially hostile work environment.

Kavanaugh's willingness to interpret EEO law broadly is probably most apparent in his concurrence in Ortiz-Diaz v. HUD, 867 F.3d 70 (D.C. Cir. 2017), where the court held that the plaintiff had sufficiently alleged that he was subjected to a materially adverse action when he was denied a transfer away from a racially biased supervisor to another supervisor who would be more likely to advance his career. Kavanaugh agreed that the alleged transfer denial in that case was materially adverse, but he argued in his concurrence that the circuit should revisit precedent holding that lateral transfers are generally not actionable. In Kavanaugh's view, Title VII prohibits any discriminatory transfer or denial of transfer. Judge Judith Rogers concurred separately to echo Kavanaugh's sentiment about Title VII's coverage of discriminatory transfers.

The views of Kavanaugh and Rogers are outliers -- to say the least -- since the materiality requirement is widely, if not universally, recognized by courts of appeals and the Supreme Court. In an opinion by Justice Breyer joined by every other Justice except Alito, the Supreme Court held in Burlington Northern & Santa Fe Railroad v. White, 548 U.S. 53 (2006), that the retaliation provision of Title VII only prohibits actions that are materially adverse "because we believe it is important to separate significant from trivial harms." Similarly, in his characteristically colorful prose, Judge Richard Posner observed in Williams v. Bristol Meyers Squibb Co., 85 F.3d 270 (7th Cir. 1996), that absent a materiality requirement, "every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."

As can be seen, Judge Kavanaugh has demonstrated that he is not inclined to put his thumb on the scale in favor of EEO rights, particularly when he is weighing them against other interests, such as national security. He trusts that Congress will set things right if it disagrees with how a court has interpreted the law. 

By the same token, however, Kavanaugh is not predisposed to interpret EEO protections narrowly when Congress has enacted statutory language supporting broad coverage. Kavanaugh's concurrence in Ayissi-Etoh, emphasizing that even a single verbal incident of harassment can violate the law, is particularly notable in the #MeToo era. And his interpretation of Title VII's adverse action standard is so broad that it would likely raise red flags if espoused by the nominee of a Democratic President.

EEO law frequently takes a backseat to other civil rights issues when the Senate considers a Supreme Court nominee. But if confirmed, Kavanaugh may soon be facing some of the most important EEO cases to come before the Supreme Court in years. The Court's EEO caseload has exhibited a lull recently, but there are some hot-button issues potentially on the horizon, including whether Title VII prohibits sexual orientation discrimination (Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc)) and whether the Equal Pay Act permits an employer to rely on salary history in setting starting pay (Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018) (en banc)).













This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Friday, July 6, 2018

Does the Constitution protect the freedom to eat one another?

The harrowing story of a Thai boys soccer team trapped in a cave reminds me of my favorite case from law school -- Regina v. Dudley & StephensAdrift on a lifeboat, with little hope for rescue, Tom Dudley and Edwin Stephens killed and ate the cabin boy, Richard Parker. A fourth man, Edmund Brooks, participated in the feast, but apparently never assented to the murder, and he was the star witness for the prosecution. Dudley and Stephens were convicted of murder, but their death sentences were commuted by the Crown to six months in prison. 

Survival cannibalism is also the focus of the well known legal essay, The Case of the Speluncean Explorers, which is styled as a decision by the fictitious Supreme Court of Newgarth. The five Justices must decide whether to uphold the murder convictions of four spelunkers who killed and ate the fifth member of their exploration team after a landslide trapped them underground. (Thankfully, the members of the Thai boys soccer team are being provided food and medical assistance, so they presumably will not have to face this dilemma.) The Justices disagree strenuously about the appropriate legal reasoning and resolution of the case, with two Justices voting to uphold the convictions, two voting to set them aside, and the fifth abstaining.

As we await President Trump's announcement of a nominee to succeed Justice Kennedy on the United States Supreme Court, a great deal of attention has been paid to a number of controversial issues that divide Americans -- abortion rights, same-sex marriage, affirmative action, the death penalty, and gun control. One issue, however, towers above them all, yet has been glaringly absent -- survival cannibalism. 

Thankfully, even though the Thai boys soccer team remains trapped, the rescue team has been able to provide them with food and medical assistance. Still, their story should give us pause and remind us that we cannot take our own comfort and well-being for granted. The day may come when we have to face the unthinkable. And if that happens, we need to have the law on our side. 

So if there should be one litmus test to serve on the Supreme Court, it is surely this: Do you support a constitutional right to survival cannibalism? 








This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.



Wednesday, July 4, 2018

Does discrimination against Confederate Americans violate federal EEO law?

On July 4, 1863, General Robert E. Lee began his withdrawal after a devastating defeat at Gettysburg, Pennsylvania, the sight of the bloodiest battle of the Civil War.

An interesting question that has sometimes been raised in EEO cases is whether discrimination against someone for being a Confederate American is covered by Title VII of the Civil Rights Act. Generally, this has arisen where someone has been disciplined for displaying a Confederate flag. In Storey v. Burns International Security Services, 390 F.3d 760 (3d Cir. 2004), for instance, the court concluded that, even assuming Curtis Blaine Storey was a member of a protected class, he was not fired because of his religion or national origin group but because he refused to cover up or remove Confederate flag stickers while at work.

Although the majority found it unnecessary to address whether being a Confederate American is a religion or national origin, Judge Scirica's concurrence did reach those issues, and it rejected the plaintiff's contentions. More understandable is the Scirica's rejection of claims of religious discrimination, reasoning that the complaint did not "contend that [Storey] displayed the stickers for religious reasons, but 'because he is proud of being a Confederate Southern-American.'"


Less persuasive is Scirica's rejection of the national origin claim. Scirica explained that "national origin" refers to the country where a person, or his or her ancestor's, came from. Citing Supreme Court precedent, Scirica notes that the Confederacy was never an independent nation, and therefore, discrimination based on status as a Confederate American does not qualify as national origin discrimination.

This analysis has some superficial appeal, but it is quite frankly too clever by half. Although you might think "national origin" discrimination is limited to discrimination associated with countries of origin, that is not in fact the case.  National origin" discrimination may be grounded in discrimination against individuals from a particular country, but much more commonly, it will involve discrimination based on ethnicity, such as discrimination against Hispanics or Middle Easterners. The issue, therefore, is whether Confederate Americans can be considered an ethnic group in that same sense.

Even if such discrimination is covered, that would not mean that offensive racist conduct, such as the display of a Confederate flag, would be protected. As I noted in a previous post, the display of a Confederate flag may contribute to a  racially hostile work environment, so an employer would be responsible for addressing it. But if someone is not hired merely because he has ancestors who defended the Confederacy in the Civil War, there's a strong argument that Title VII has been violated. Such situations, I would imagine, are unlikely to arise. And indeed, the majority in Storey noted that the plaintiff was not fired merely for his status as a Confederate American. Nevertheless, courts should be consistent in applying the law and should not reject a claim -- as Scirica may have done -- merely because it is perceived as being distasteful.






This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.





Monday, July 2, 2018

Gardner v. CLC of Pascagoula: When does sexual harassment by a patient with dementia violate federal law?

The case of Gardner v. CLC of Pascagoula, LLC, No. 17-6007217 (5th Cir. June 29, 2018), is worth highlighting because it handles very well the sticky situation where the alleged harasser has limited mental capacity.

The court concluded that Kymberli Gardner, a certified nursing assistant at an assisted living facility, had presented sufficient evidence to show that she was subjected to unlawful sexual harassment by an elderly resident with dementia. As recognized by the court, "workplace law should account for a situation when individuals cannot medically conform their conduct to societal norms"; however, while a harasser's limited mental capacity would be relevant in determining whether a reasonable person would perceive conduct as hostile, there is no categorical bar to sexual harassment claims under such circumstances.

Thus, the court concluded:
Inappropriate comments and incidental contact are sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen. In contrast, the facility must take steps to try to protect an employee once there is physical contact that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.
Here, the alleged harasser's known conduct included physically assaulting a bedridden roommate; sexually assaulting female caregivers by grabbing theirs breasts, buttocks, and private areas; and making lewd sexual comments to female staff and asking them for sexual favors. Gardner, in particular, had reported that the patient would physically grab her and make repeated sexual comments and requests. The court noted that instead of trying to remedy the situation when Gardner complained to her supervisors, they mocked her.

The court observed that in some cases it might not be possible to control a patient's conduct and the nursing home will face the "difficult choice" of either evicting the patient or allowing the harassment to continue. In this case, however, it was not necessary to decide this difficult question because the defendant had not taken steps to remedy the harassment. Gardner had testified that remedial steps taken at other facilities where she had previously worked included requiring two or more caregivers, using medication to control a patient's behavior, or transferring a patient to a more appropriate facility. Particularly telling, in the court's view, was that the defendant eventually transferred the patient to an all-male facility, but only did so after he assaulted another patient, and failed to take such action after female employees complained about sexual harassment.






This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.



What does Justice Kennedy's retirement mean for the future of EEO law?

If you're wondering whether Justice Anthony Kennedy's retirement will have a significant impact on EEO law, the answer is probably no. Despite his reputation for holding the swing vote in close cases, Kennedy has a solidly conservative voting record when it comes to employment discrimination. Since Kennedy joined the Court 30 years ago, it has split 5-4 (or 5-3) in well over a dozen cases under Title VII of the Civil Rights Act of 1964 and other federal EEO laws. And in every close case that split along ideological lines, Kennedy joined his conservative colleagues. These include decisions on the timeliness of pay discrimination claims (Ledbetter v. Goodyear Tire & Rubber Co.), the burden of proof in age discrimination claims (Gross v. FBL Financial Services), the commonality required for class actions (Wal-Mart Stores v. Dukes), and employer liability for racial harassment (Vance v. Ball State University).

Kennedy's voting record on EEO issues is in line with that of Justice Sandra Day O'Connor, who retired in 2006. Like Kennedy, O'Connor was widely viewed as a moderate conservative, but she also consistently voted with conservatives in close EEO cases, on issues such as federalism (Kimel v. Florida Board of Regents), punitive damages (Kolstad v. American Dental Association), disparate impact claims (Wards Cove Packing Co. v. Atonio), and racial harassment (Patterson v. McLean Credit Union). Kennedy joined O'Connor as part of the conservative majority in each of these cases; the latter two were overturned by Congress when it passed the Civil Rights Act of 1991, which was signed by George H. W. Bush. Because O'Connor's and Kennedy's records on EEO law are closely aligned, we can feel pretty confident that even if President Trump takes the unlikely step of nominating a so-called moderate conservative, the Court's approach to EEO law is unlikely to change.

Many advocates of LGBT rights had been hopeful that Kennedy would side with lower courts that have interpreted Title VII to prohibit sexual orientation discrimination. Justice Kennedy's strong support for gay and lesbian rights might have translated into a willingness to read protections against "sex" discrimination broadly. Then again, however, Kennedy's approach to applying abstract constitutional principles, like liberty, due process, and fundamental rights, is not necessarily a good measure of how he would interpret much more concrete terms adopted by Congress that have settled meanings. In the recent commerce clause case of South Dakota v. Wayfair, Inc., Kennedy, writing for the majority, demonstrated a willingness to support judicial action where Congress had failed to step up to the plate. Would Kennedy have felt similarly with respect to Congress's failure for over 40 years to adopt measures to prohibit sexual orientation discrimination? We'll likely never know.









This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.


Thursday, June 28, 2018

Korematsu and Trump's Travel Ban -- NOT the Same

Manzanar Cemetery Monument
In upholding President Trump's travel ban, the Supreme Court rejected Justice Sotomayor's attempt to analogize the case to Korematsu v. United States. That 1944 decision upheld a federal order prohibiting all individuals of Japanese ancestry, including American citizens, from being present in certain areas of the United States, even if they had lived there their entire lives.  As explained by the Court:
The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President -- the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -- to be clear -- "has no place in law under the Constitution." 323 U.S., at 248, 65 S. Ct. 193 (Jackson, J., dissenting). 
Like Justice Sotomayor, some commentators have argued that the majority essentially makes the same mistake as in Korematsu, uncritically accepting the government's contention that a racist policy was justified because of the deference due the Executive branch with respect to national security matters. 

For instance, Joel Fishkin contends on Balkinization that the majority errs in upholding the travel ban because it is facially neutral whereas the Korematsu exclusion order was facially race-based. As Fishkin notes, "The problem with Korematsu was not that it slipped and failed to cloak its racism in the garb of a nominally facially neutral order, focused on nations rather than ethnicities." Obviously, this is true, but the point of the majority decision is not that religious bias necessarily played no role in the adoption of the travel ban, but that there was sufficient reason to believe that the ban was based on a legitimate motive. Thus, the majority explained that it would "uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." 

If the presence of religious bias were all that mattered, then given Trump's numerous bigoted statements, the Administration would have its hands tied, and could not adopt a policy that was clearly in the interest of national security. What matters therefore is not whether the policy was adopted for a bad reason but whether it was adopted for a good reason. The former does not negate the latter. 

The majority noted that the countries covered by the travel ban were purportedly selected by determining whether they had developed minimum standards for confirming the identity of individuals seeking entry into the United States and determining whether they posed a national security threat. The majority-Muslim countries singled out had all been previously identified by Congress or a prior administration as posing security risks. On its face, the question of whether a country has adequate policies allowing the U.S. to vet would-be visitors from that country is a legitimate basis for denying someone entry to the U.S. In Korematsu, by contrast, the Supreme Court upheld a policy that assumed someone was potentially disloyal to the U.S. and therefore a security risk based solely on that individual's Japanese ancestry. You might reasonably disagree with whether the Trump administration sufficiently showed that it adopted the travel ban for legitimate reasons. But the Court unquestionably has not signed off on a facially discriminatory policy on the President's say-so as it did in Korematsu

President Trump, to be sure, is not entitled to a pass for the abhorrent things he has said about Muslims. Recognizing as much, Justice Kennedy observed in his concurrence that, even if the actions of a government official are not subject to judicial review, the official is "not free to disregard the Constitution and the rights it proclaims and protects" and that "the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise." Is this merely wishful thinking when it comes to President Trump? Perhaps, but even if these words are lost on Trump, Justice Kennedy's respectful and hopeful approach to a difficult issue should give pause to those who would draw hyperbolic and inflammatory comparisons to racist policies of the past. Such arguments are likely to do little to advance the debate.













This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.


Wednesday, June 20, 2018

Bell Helicopter Textron v. Barnett: Can someone allege age discrimination based on facts that occurred before he turned 40?

In Bell Helicopter Textron v. Barnett, NO. 02-16-00489-CV (Tex. App. June 14, 2018), a Texas state appeals court affirmed the trial court's judgment for Brian Burnett on his claim that he was fired because of his age, in violation of Texas state law. What's interesting about this case is that the state law only protects workers against age discrimination if they are 40 or older, similar to the corresponding federal statute, but the evidence that Burnett relied on to show that the defendant discriminated against him based on age related to incidents that occurred before he turned 40. In ruling for Burnett, the court concluded that "an employee must show that the employer discriminated 'because of . . . age' and that the employee was at least forty when the ultimate act of discrimination -- the termination -- occurred." In contrast, the dissent concluded that Burnett failed to show that he was treated differently not merely because of his age but because he was at least 40 years old.

Here, I think the majority has the better argument. If someone discriminates against someone based on age, it's almost always going to be based on the general perception that the person is too old, not because the person is too old because he is 40 or older, and wouldn't be too old if he were merely 39. The protected class defines who can recover when treated adversely based on the perception that he is too old and does not require age-motivated bias specifically targeting workers 40 or older.

The dissent also noted that Burnett's supervisor had already decided to fire Burnett before he turned 40. If the supervisor's decision had been enough and didn't need to be approved, then Burnett was arguably fired before he was 40, even if he was notified later. However, it appears that the supervisor needed to consult with HR, so Burnett was not actually fired until a few weeks later after he'd already turned 40.












This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.