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.

Sunday, June 10, 2018

Jefferson v. Sewon America, Inc.: Does Title VII's prohibition against "limit[ing], segregat[ing], or classify[ing]" employees apply to individual claims of disparate treatment?

In Jefferson v. Sewon America, Inc., 17-11802 (11th Cir. June 1, 2018), the Eleventh Circuit addressed the scope of section 703(a)(2) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(2)), which makes it unlawful for an employer to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." The scope of this provision is rarely litigated, so any decision that provides some insight is worth highlighting. The court allowed Jerberee Jefferson to proceed under section 703(a)(1) with her claim that she was denied a transfer because of her race, but refused to allow her to challenge the action under section 703(a)(2), reasoning that the latter provision "applies not to discrete decisions made by an employer directed at an individual employee, but to categorical policies that have a discriminatory purpose or effect."

This analysis strikes me as correct. The Supreme Court has previously described 703(a)(1) as the disparate treatment provision and 703(a)(2) as the disparate impact provision. Consistent with that principle, the Eleventh Circuit, concluded that 703(a)(2) targets policies of general applicability, rather than an isolated instance of disparate treatment, as Jefferson had alleged.

It's not clear whether this limitation will have a practical effect on plaintiffs' ability to bring discrimination claims under Title VII, since the vast majority of claims are brought under 703(a)(1). Taking a cue from the EEOC, however, Jefferson may have alleged violations of both 703(a)(1) and 703(a)(2) because she thought the court might conclude that her transfer was not a materially adverse action covered by (a)(1) but was nevertheless actionable under (a)(2). In EEOC v. AutoZone, Inc., the EEOC argued that any action to limit, segregate, or classify employees because of race or another protected characteristic constitutes a per se Title VII violation under (a)(2). The Seventh Circuit rejected this contention, but it's possible that a different circuit will agree with the EEOC. If so, then the Eleventh Circuit's decision might preclude plaintiffs from challenging some practices that are not actionable under section 703(a)(1) unless they have a disparate impact on a protected class.

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.

Masterpiece Cakeshop v. Colorado Civil Rights Commission: Lessons for Transgender Bathroom Access from Justice Gorsuch's Concurrence

While the Supreme Court's decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n may have offered little insight into how the Court will eventually balance religious freedom and LGBT rights in a future case, the concurrence of Justice Neil Gorsuch may portend the obstacles that plaintiffs could face in prevailing on another important LGBT rights issue -- transgender bathroom access.

For a brief time in early 2017, before Gorsuch was sworn in, the Court was slated to take up that issue in a case brought by high school student Gavin Grimm, a transgender male, but the Court ended up sending Grimm's case back to the lower courts without addressing the merits. A little more than a year later, on May 22, 2018, Federal District Court Judge Arenda L. Wright Allen refused to dismiss Grimm's claim that the Gloucester County School Board's policy of assigning bathroom access based on "biological gender" constituted unlawful sex discrimination under Title IX of the Education Amendments Act of 1972. Before too long, the Supreme Court is likely to once again be facing the thorny issue of transgender bathroom access. Unfortunately for transgender individuals, if Justice Gorsuch's concurrence in Masterpiece Cakeshop is any guide, they will face a daunting challenge.

To establish that a policy of assigning bathroom access on the basis of biological gender constitutes unlawful sex discrimination, whether in the educational context or in the employment context, a plaintiff has to show, first, that discrimination based on transgender status constitutes sex discrimination and, second, that basing bathroom access on biological gender unlawfully discriminates against transgender individuals based on their transgender status. When courts have ruled that a bathroom policy discriminates based on transgender status, they have only considered the first issue, whether discrimination based on transgender status constitutes sex discrimination, and they have neglected the second, merely assuming that a policy like the one adopted by the Gloucester County School Board discriminates based on transgender status. For instance, relying on a Seventh Circuit decision, Judge Wright Allen concluded that Grimm had sufficiently pled sex discrimination in alleging that he was required to use bathrooms not in conformity with his gender identity, thus subjecting him to different treatment than non-transgender students. The flaw in this analysis is readily apparent upon consideration of Justice Gorsuch's concurrence in Masterpiece Cakeshop, which was joined by Justice Samuel Alito.

As explained by Gorsuch, the record showed that Jack Phillips would not sell a cake celebrating a same-sex wedding to anyone, regardless of the individual's sexual orientation. Although he may have been aware that his refusal had the effect of leaving gay men and lesbians underserved, there was no evidence that he refused to serve them because of their sexual orientation. Rather, it was because of his religious objection to same-sex marriage.

Similarly, the Gloucester County School Board assigns bathrooms and other sex-segregated facilities by biological gender, regardless of an individual's gender identity. The effect of this policy, as Judge Wright Allen observed, is to allow non-transgender students to use facilities consistent with their gender identity, but to deny transgender students the same right. In adopting this policy, the school board was presumably motivated by the desire to protect the bodily privacy interests of all students, not to deny transgender students a benefit that is provided to non-transgender students. In other cases, where schools have chosen to allow bathroom access consistent with gender identity, the effect is to require non-transgender students to share facilities with individuals of another biological gender. If the Gloucester County School Board's policy discriminates against transgender students, then don't these alternative policies discriminate against non-transgender students?

A biological-gender bathroom policy also has the effect of allowing gay and lesbian students to share facilities with individuals of the biological gender to whom they are sexually attracted and the effect of requiring heterosexual students to share facilities with other students who are sexually attracted to members of their biological gender. Does this mean that the policy discriminates against heterosexual students, either by not allowing them to share facilities with individuals to whom they are sexually attracted or by violating their right to bodily privacy? If assigning bathroom access based on biological gender discriminates because of transgender status, then it would seem to discriminate no less because of heterosexual status.

As Justice Gorsuch observed: "The law . . . sometimes distinguishes between intended and foreseeable effects. Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge." Although prohibitions against sex discrimination, including Title IX and Title VII, typically fall into the former category, this fact has been largely overlooked in challenges to bathroom policies.

To be sure, an actor's awareness that his action will disproportionately harm members of a protected group, such as transgender individuals, may be evidence that the actor intended to discriminate against members of that protected group. On the other hand, if there is evidence of a nondiscriminatory motive, as there generally will be with respect to a bathroom policy, then the mere fact that an entity took an action in spite of its effects on a protected group will not be enough to show that the entity acted because of the effects on a protected group. The failure to recognize this crucial difference is reflected in the legal reasoning in Judge Wright Allen's decision where she assumes that the Gloucester County School Board's policy necessarily discriminates on the basis of gender identity merely because of its effect on transgender individuals.

Although prohibitions against sex discrimination are typically not limited to intentional discrimination, it seems doubtful that a sex discrimination claim could be based solely on the disparate effects of a policy on transgender individuals. From all appearances, arguments that transgender status discrimination constitutes sex discrimination have been limited to theories of intentional discrimination. And for good reason -- a policy that merely has a disparate impact on transgender (or nontransgender) individuals does not discriminate against males or females. In the view of Judge Wright Allen and quite a few other judges, discrimination based on transgender status constitutes sex discrimination because it is a form of gender stereotyping, akin to discriminating against a man because he is effeminate or a woman because she is masculine. Thus, intentionally discriminating against an individual based on his or her gender identity is sex discrimination because it necessarily means that the individual is treated differently because of that individual's maleness or femaleness. By contrast, even if a practice, such as a bathroom policy, disproportionately harms transgender individuals as a group, it does not necessarily disproportionately harm male bathroom users or female bathroom users, any more than it necessarily disproportionately harms African American bathroom users or white bathroom users.

Equitable arguments may very well favor segregating facilities by gender identity, but it does not follow that a contrary policy violates prohibitions against sex discrimination. If claims challenging bathroom policies are to succeed where it ultimately matters -- before the Supreme Court -- then LGBT advocates would do well to heed Justice Gorsuch's concurrence and grapple with the crucial distinction between intended and foreseeable effects.

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.

Tuesday, May 22, 2018

Epic Systems Corp. v. Lewis: Do agreements to resolve discrimination claims through individualized arbitration proceedings conflict with EEO law?

On May 21, 2018, in Epic Systems Corp. v. Lewis, the Supreme Court held that arbitration agreements providing for individualized proceedings do not conflict with the National Labor Relations Act. Grasping at straws in her dissent, Justice Ginsburg explained that she did "not read the Court's opinion to place in jeopardy discrimination complaints asserting disparate-impact and pattern-or-practice claims that call for proof on a group-wide basis." Although Ginsburg was apparently trying to limit the impact of the decision, it seems doubtful that federal EEO law can be so readily distinguished.

Indeed, the majority relied heavily on its decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which upheld an agreement requiring individualized arbitration proceedings to resolve claims under the Age Discrimination in Employment Act. Like Title VII of the Civil Rights Act of 1964, the ADEA permits disparate-impact claims and pattern-or-practice claims, so if ADEA claims can be subject to individualized arbitration proceedings, there's no obvious reason that Title VII should be any different.

Doing little to further her cause, Ginsburg cited Chin v. Port Authority, 685 F.3d 135 (2d Cir. 2012), which held that the pattern-or-practice method of proof is limited to class actions. That decision, however, also notes that referring to the pattern-or-practice framework as a "claim" is misleading because it is not a "freestanding cause of action." Thus, in Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013), the court relied on Chin in upholding an arbitration agreement requiring individualized proceedings to resolve Title VII claims. The court concluded that an employee has no substantive right to pursue a pattern-or-practice "claim," since that is merely a means of establishing disparate treatment, which is a freestanding cause of action. If an employee is free to pursue a disparate-treatment claim on an individualized basis in arbitration, then the employee has not relinquished any substantive rights in being required to forgo a collective action.

Unlike a pattern-or-practice claim, a disparate-impact claim is a freestanding cause of action. However, contrary to Ginsburg's suggestion, there is no bar to an employee pursuing a disparate-impact claim as an individual. And in fact in Chin the court allowed the private, non-class plaintiffs to proceed with their disparate-impact claims, even though it rejected their attempt to rely on the pattern-or-practice method of proof to establish disparate treatment. To be sure, a disparate-impact claim generally requires proof of discrimination on a group-wide basis, but statistical evidence can also be probative in an individual case of disparate treatment. An agreement to resolve EEO claims through individualized arbitration proceedings does not preclude an employee from presenting evidence of systemic and group-wide discrimination that affects him. It merely prevents him from proceeding with his claim as part of a class. 

If anything, the argument for having a right to bring a collective action is stronger under the NLRA than under federal EEO law. Under the NLRA, some lower courts had relied on the substantive right to engage in "concerted activities for the purpose of . . .  mutual aid or protection" in invalidating agreements to engage in individualized arbitration proceedings. Federal EEO laws, by contrast, may permit collective actions to enforce underlying substantive rights to be free from discrimination, but a collective action is not itself a substantive right.

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, May 18, 2018

Davenport v. Edward D. Jones & Co.: Death to "Quid Pro Quo Harassment"

If ever there were a legal term that deserved to go in front of a firing squad, it's "quid pro quo sexual harassment."

If someone alleges that she was terminated because the new department manager didn't want a woman in his department, then she has alleged sex-based termination. No question. However, if she alleges that she was terminated because she refused to sleep with the new department manager, that's supposedly somehow different, and the situation is labeled quid pro quo harassment. This dichotomy is poppycock. A sex-based termination is a sex-based termination. Labeling the latter as a form of "harassment," whatever that means, rather than as a straightforward termination claim, is not only unnecessary but also confusing. It has resulted in courts mistakenly treating "quid pro sexual harassment" differently from other forms of sex-based discrimination that result in the same kind of challenged action.

In Davenport v. Edward D. Jones & Co., No. 17-30388 (5th Cir. May 16, 2018), Tyanne Davenport alleged that she was denied a bonus because she refused a supervisor's request that she date a male potential client. This claim clearly alleged that Davenport was denied a bonus because of her sex since the request presumably would not have been made of a male subordinate. Unfortunately, however, the district court rejected Davenport's claim, reasoning that the Fifth Circuit does not recognize a quid pro quo claim based on the sexual advances of a third party, only a claim based on a supervisor's advances. Yet the district court presumably would not have had trouble concluding that an employer violates Title VII by refusing to assign a woman to provide services to a client based on the client's known preference that it works only with men.

On appeal, the Fifth Circuit rejected the district court's conclusion that a quid pro quo claim is limited to the sexual advances of a third party, reasoning that the supervisor made the requests and therefore he had engaged in the sexual harassment.  (The Fifth Circuit ultimately concluded that Davenport could not show that she was denied the bonus for rejecting the requests that she date the potential client.) Unfortunately, although the Fifth Circuit rightly disagreed with the district court, its approach nevertheless perpetuates the confusing distinction between quid pro quo harassment and other forms of disparate treatment. The court could have instead simply explained that an employer may not acquiesce in a third party's discriminatory requests, regardless of whether the request is tied to sexual advances.

Even more troubling is the First Circuit's decision in Velázquez-Pérez v. Developers Diversified Realty Corp.,  which the court construed as involving coworker "quid pro quo" harassment. In that case, Atonio Velázquez-Pérez alleged that a human resources manager used her influence to get him fired because he rejected her sexual advances. If the court had properly viewed the claim as one of straightforward termination, then the only question would have been whether the manager's use of official authority caused the plaintiff to be fired. However, because the court instead viewed the claim as one involving quid pro quo sexual harassment, the court applied principles from the hostile work environment context, assuming that the two forms of harassment should be treated the same. Hostile work environment principles generally do not apply when an agent of the employer acts in his official capacity. Not recognizing that, the court concluded that since the manager was not the plaintiff's supervisor, the employer would only be liable if it negligently allowed the manager's actions to lead to the plaintiff's termination. Thus, merely because the plaintiff's termination claim was tied to the rejection of sexual advances, the court applied a lower standard of liability.

So do courts ever get it right?

Thankfully, they do, and a splendid example is the Second Circuit's decision in Gregory v. Daly, penned by Judge Guido Calabresi: 
[A] "quid pro quo" allegation merely makes a factual claim about the particular mechanism by which a plaintiff's sex became the basis for an adverse alteration of the terms or conditions of her employment. Of course, if proven, such behavior manifestly violates Title VII. But it does so because a sexual quid pro quo constitutes a specific and egregious example of an employer taking adverse employment actions that penalize an employee's refusal to comply with a discriminatory condition of employment. And such actions are themselves discriminatory. 
The law does not create separate causes of action for sex discrimination depending on the reason the employer denies a woman a job or a job benefit. It does not, for instance, delineate distinct claims for employers who dislike women, doubt their abilities, demand that they conform to sex stereotypes, or want their policies to reflect actuarial differences between the sexes. What matters, instead, is simply whether an employment action was based on plaintiff's sex. Similarly, there is no reason to create a separate doctrinal category for employers who make women's workplace success contingent on submission to a supervisor's sexual demands. For such a sexual quid pro is just another way in which an employer, in violation of Title VII, makes an employee's sex relevant to an employment decision. 
So sex discrimination violates the law, whether it involves sexual comments that create a hostile work environment, an adverse based on the rejection of sexual demands, or a policy against hiring women into managerial positions. The nebulous concept of "quid pro quo" harassment has created confusion and inconsistency in the application of the law. What's more, treating quid pro quo sexual harassment claims as different from other adverse actions based on sex can make it more difficult for a plaintiff to prevail. This effectively marginalizes and relegates sexual harassment to second class status. Let's hope that, like the Second Circuit in Gregory v. Daly, other courts and practitioners begin to see the light and recognize that the term "quid pro quo" harassment should be abandoned and that such claims should be treated like any other claims of sex discrimination.

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.

Sunday, May 13, 2018

"Special Rights" or "Equal Rights": Should we discriminate against men in order to eliminate discrimination against women?

I was intrigued by a Bloomberg article about lawyer Albert Rava, who specializes in suing organizations that provide benefits exclusively to women, such as a lower admission fee to a social event. When LGBT rights first became an issue, it was often framed as "special rights" vs. "equal rights." We don't have laws protecting every particular group, so in that regard, laws prohibiting sexual orientation discrimination, sex discrimination, or race discrimination are special rights. But these laws don't call for special treatment, merely equal treatment. What Rava has set his sights on, however, really are special rights. Presumably, preferential treatment of women is intended to offset discrimination against them, but is this actually an effective tool for combating sex discrimination? History suggests otherwise.

When Title VII of the Civil Rights Act of 1964 was passed, it was common for states to have so-called "protective laws," which were intended to protect women from certain working conditions, such as hazardous occupations and unreasonable hours of work. The EEOC initially presumed that those laws were consistent with Title VII:
The Commission does not believe that Congress intended to disturb such laws and regulations which are intended to, and have the effect of, protecting women against exploitation and hazard. Accordingly, the Commission will consider limitations or prohibitions imposed by such state laws or regulations as a basis for application of the bona fide occupational qualification exception. . . .  So, for example, restrictions on lifting weights will not be deemed in conflict with Title VII except where the limit is set at an unreasonably low level which could not endanger women[.] 
Pursuant to these protective laws, however, women were denied equal treatment under the guise of providing them protections that men did not need to receive. Soon recognizing the error of its ways, the EEOC reversed course in 1972, concluding that state protective laws are in conflict with Title VII because they "do not take into account the capacities, preferences, and abilities of individual females and, therefore, discriminate on the basis of sex."

The same tension between special rights and equal rights could be seen in the failure to pass the Equal Rights Amendment. Opponents of a constitutional guarantee that women and men be treated the same were concerned that women would be required to fight in combat and would lose other special protections. 

A number of early Supreme Court sex discrimination cases challenged provisions that provided benefits to women but not men, based on stereotyped assumptions about gender roles. In Weinberger v. Wiesenfeld, Ruth Bader Ginsburg, then a law professor, helped secure a unanimous Supreme Court decision invalidating a provision of the Social Security Act that provided survivorship benefits to women, but not to men, based on sex stereotypes of men as breadwinners and women as homemakers and caregivers. 

Unfortunately, some supporters of enhanced federal equal pay protections have apparently forgotten the lessons of the past. The Paycheck Fairness Act, which is supported by the National Partnership for Women and Families, includes a provision to establish a grant program to fund negotiation skills training for women and girls. Aside from the dubious constitutionality of such a provision, should advocates for women's rights be promoting a program that stereotypes women and girls as less willing and capable than men and boys when it comes to negotiating? Such thinking is consistent with the paternalistic state protective laws that the EEOC rejected over 40 years ago as inconsistent with prohibitions against sex discrimination. I can picture Phyllis Schlafly in heaven smiling down on equal pay advocates.

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, May 9, 2018

Bolin v. GM: When is a joint employer liable for a co-employer's discriminatory conduct?

Judge Laurie Michelson's decision in Bolin v. General Motors, No. 16-13686 (E.D. Mich. May 4, 2018), is a helpful illustration of joint employer liability under federal EEO law. In this case, the plaintiffs alleged that the UAW-GM Center for Human Resources could be held liable under the Age Discrimination in Employment Act for the decision by the UAW VP to terminate the plaintiffs' assignment to the CHR, which was jointly created by GM and UAW. CHR contended that the plaintiffs had failed to allege that it was involved in the decision to terminate their assignments to CHR, and the plaintiffs responded that they had sufficiently alleged that CHR, along with GM and UAW, jointly employed them. As noted by Judge Michelson, neither side's argument was exactly correct.

Contrary to the plaintiffs' contention, a joint employer is not vicariously liable for the acts of a co-employer. Joint employer status merely refers to the relationships that multiple entities have with respect to the employees that they jointly employ, not to the relationships that the entities have with one another. Thus, joint employers are only liable for their own actions.

Contrary to CHR's contention, however, a joint employer can be liable for failing to act reasonably to respond to discriminatory conduct by a third pary that it knows or should have known about. In the same vein, an employer can be liable, for example, for failing to act reasonably to respond to sexual harassment by non-supervisory employees or even by non-employees when it knows or should know about the harassment.

One issue where I part ways with Judge Michelson is her suggestion that knowledge of the VP's decision to remove the plaintiffs from CHR could be imputed to that organization because she was a member of its Executive Committee. Considering agency principles, I'm skeptical that the VP's knowledge of her own alleged wrongdoing on behalf of UAW can be imputed to CHR. Consider that a supervisor's knowledge of his own wrongdoing is generally not imputed to an employer. This is for the simple reason that an employee cannot reasonably be expected to report conduct that it is against his own interest to report. Otherwise, an employer would always be strictly liable for supervisor harassment. Similarly, even if the VP had official roles with both UAW and CHR, she should not have been expected to tattle on herself by reporting to CHR wrongdoing she engaged in on behalf of UAW.

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.