Saturday, October 14, 2017

Meritor Savings Bank v. Vinson: Three Decades Later

In the wake of the seemingly endless stream of news reports about the egregious sexual harassment experienced by many women while on the job, the Washington Post has this profile about Mechelle Vinson, a bank teller who was sexually harassed by her boss and took her case all the way to the Supreme Court in 1986. Thanks to her fortitude, the Supreme Court recognized for the first time, in Meritor Savings Bank v. Vinson, that employees are protected against discrimination not only with respect to the economic benefits of employment but also as to their work environment. 

In the Post's profile, Vinson described being sexually assaulted by her boss and threatened with termination if she rejected his sexual advances. Before Vinson made it to the Supreme Court, however, the district court judge astoundingly rejected her sexual harassment claim on the grounds that she had voluntarily engaged in sexual relations with her supervisor. Disagreeing, the Supreme Court explained that the district court should have instead asked whether Vinson had indicated by her conduct that her supervisor's sexual advances were unwelcome, not whether she had involuntarily had sex with him. Thankfully, the Supreme Court did not conclude that sexual harassment only violates EEO law if a victim is raped.

The Supreme Court should have also agreed with the court of appeals that Vinson's testimony about her "dress and personal fantasies . . . had no place in this litigation." Unfortunately, the Supreme Court concluded that evidence of Vinson's "sexually provocative speech or dress . . . [was] obviously relevant" in evaluating whether Vinson regarded her supervisor's advances as welcome. Today, I think most of us would agree with the court of appeals -- the way a woman dresses or speaks doesn't show whether she welcomes sexual conduct by male coworkers. So that's some progress, I guess.

Lately, much has been made of the disagreements between the EEOC and the Department of Justice as to the scope of the protections under the EEO laws. Meritor is an even more peculiar case in which the EEOC essentially disagreed with itself. In Meritor, the EEOC took a position contrary to the position it had adopted a few years earlier in its sexual harassment guidelines regarding when an employer is liable for harassment by a supervisor. The reason for the change? As with the current dispute with DOJ, the result was likely political. The EEOC's earlier more employee-friendly position was adopted during the Carter Administration, whereas the latter position was adopted during the Reagan Administration. The EEOC is an independent agency, but the President nominates the Chair. And who was the Chair when the EEOC advanced a narrow theory of liability contrary to its own guidelines? None other than Clarence Thomas. A few years later, when Thomas was nominated for the Supreme Court, Anita Hill accused him of having sexually harassed her while she worked for him at the EEOC. The world is full of interesting coincidences.

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, October 10, 2017

Discrimination Based on Intersex Status

On October 5, 2017, the Washington Post published an excellent article on the intersex rights movement. The term "intersex" refers to individuals with physical characteristics that do not fit the traditional binary distinction between male and female. Although EEO cases involving allegations of intersex discrimination are extremely rare, I think a strong case can be made for coverage under Title VII, which is generally understood to prohibit discrimination against someone for being male or for being female. In some respects, there is a stronger argument that Title VII covers intersex discrimination than that it covers sexual orientation or gender identity discrimination. Coverage of the latter is primarily based on the theory that sex discrimination includes not only discrimination against men and women generally but also discrimination more narrowly against men and women who do not conform to sex stereotypes. Coverage of intersex discrimination, by contrast, is a straightforward case of discrimination based on an individual's maleness and/or femaleness.

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, October 5, 2017

DOJ concludes that Title VII does not prohibit gender identity discrimination

On October 4, 2017, Attorney General Jeff Sessions issued a DOJ memo taking the position -- and reversing an Obama Administration position -- that Title of the Civil Rights Act of 1964 does not prohibit discrimination based on gender identity, reasoning that Title VII only prohibits decisions based on sex stereotypes that result in disparate treatment between men and women and does not prohibit practices, such as sex-specific dress codes, that take account of sex but do not impose a greater burden on one sex than the other. This position should not be particularly surprising because it is consistent with what DOJ argued in its amicus brief in Zarda v. Altitude Express.

As discussed in my most recent post, Harris Funeral Homes has adopted the same interpretation of Title VII's sex discrimination prohibition in defending its claim against the EEOC. Although numerous courts have held that Title VII prohibits gender identity discrimination, they have reached that conclusion without reconciling it with settled precedent that allows employers to treat the sexes differently under certain circumstances, such as in requiring sex-specific dress codes. DOJ's position grapples with that precedent by construing Title VII's protections narrowly.

To be sure, DOJ can be faulted for taking a position that limits the protections afforded American workers. Nevertheless, it has raised legitimate arguments that have been overlooked for years and that should have been refuted long ago by LGBT 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.

EEOC v. Harris Funeral Homes: If sex stereotyping is unlawful, then why is it ok to require female employees to wear dresses?

On Wednesday, October 4, 2017, the Sixth Circuit heard oral argument in EEOC v. Harris Funeral Homes in which the EEOC has alleged that the defendant fired Aimee Stephens, a transgender woman, after learning that she would be transitioning from male to female. According to the defendant, it terminated Stephens because she refused to wear traditionally male attire as required by its dress code. The EEOC, by contrast, contends that the defendant did not fire Stephens for refusing to comply with its dress code but for being transgender. Based on the questions asked by the three-judge panel, the court regards this distinction as crucial. As discussed below, I strongly disagree. In my view, the EEOC's and the defendant's competing characterizations as to why Stephens was fired are essentially a distinction without a difference.

The distinction drawn by the parties and the panel members rests on two lines of precedent: one upholding sex-specific dress codes and grooming policies and a second prohibiting sex-based stereotyping.  In Price Waterhouse v. Hopkins, the Supreme Court explained: 
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"
By the time Price Waterhouse was issued in 1989, courts had widely concluded that sex-specific dress codes do not violate Title VII unless they impose unequal burdens. For instance, requiring men and women to wear sex-specific business attire would probably not violate Title VII because it would not impose a greater burden on one sex than another. By contrast a policy that allows men to dress casually but requires women to wear business attire would likely violate Title VII because it imposes a greater burden on women. Despite this longstanding and widespread precedent, the Supreme Court did not address the potential impact of the Price Waterhouse decision.

Because of these competing lines of precedent, the EEOC and Harris Funeral Homes dispute how the facts in this case should be characterized. In my view, however, these two lines of precedent cannot be reconciled, and this can be readily seen in Smith v. City of Salem, in which the Sixth Circuit allowed a transgender individual to proceed with a claim of sex discrimination. In Smith, the court stated: 
After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.  
Yet some courts have held that this latter form of discrimination is of a different and somehow more permissible kind. For instance, the man who acts in ways typically associated with women is not described as engaging in the same activity as a woman who acts in ways typically associated with women, but is instead described as engaging in the different activity of being a transsexual (or in some instances, a homosexual or transvestite).  Discrimination against the transsexual is then found not to be discrimination "because of . . . sex," but rather, discrimination against the plaintiff's unprotected status or mode of self-identification. In other words, these courts superimpose classifications such as "transsexual" on a plaintiff, and then legitimize discrimination based on the plaintiff's gender non-conformity by formalizing the non-conformity into an ostensibly unprotected classification.
Such was the case here:  despite the fact that Smith alleges that Defendants' discrimination was motivated by his appearance and mannerisms, which Defendants felt were inappropriate for his perceived sex, the district court expressly declined to discuss the applicability of Price Waterhouse.
As reflected in the above discussion, the premise that discrimination based on transgender status constitutes sex discrimination rests on the underlying assumption that treating a man who "wear[s] dresses and makeup, or otherwise act[s] femininely" is sex discrimination. Under the sex-specific dress code cases, however, it's perfectly ok to treat men who wear dresses differently from women who wear dresses. So something has to give.

The answer, I suggest, is either to interpret Price Waterhouse more narrowly so as to reconcile it with the dress code cases or to reject the sex-specific dress code cases as having been wrongly decided. As Harris Funeral Homes has contended, Price Waterhouse can be read as only prohibiting sex stereotyping that results in unequal burdens on a particular sex. In particular, the Supreme Court observed in Price Waterhouse: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind." If Price Waterhouse is interpreted as only applying to sex stereotyping that places women or men in a catch 22, then there is no conflict with the dress code cases. Under this interpretation, it would not be unlawful to discriminate against transgender men and women (or gay men and lesbians) so long as one sex is not treated worse than the other sex.

The alternative, of course, is to reject the sex-specific dress code cases. If, pursuant to Price Waterhouse, sex discrimination includes treating an aggressive woman worse than an aggressive man, then it would seem to follow that sex discrimination also includes treating a man who wears traditionally female attire worse than a woman who wears traditionally female attire. Even more fundamentally, a strong case can be made that the dress code cases are inherently flawed. They carve out sex-specific dress codes and grooming policies on the grounds that hair length, for instance, is not an immutable characteristic or a fundamental right. This reasoning, however, is utter nonsense as Title VII is not limited to differential treatment between protected classes with respect to fundamental rights and immutable characteristics. For example, it is unlawful to fire a woman who engaged misconduct but not a man who engaged in similar misconduct, even though misconduct is not related to fundamental rights or immutable characteristics.

Based on the oral argument, I suspect that the court will rule for the EEOC. Although numerous courts have concluded, based on Price Waterhouse, that discrimination based on transgender status effectively constitutes sex discrimination, they have largely overlooked the tension between Price Waterhouse and the dress code cases. Here, at last, a court has a chance to reconcile these competing lines of precedent. If the Sixth Circuit sweeps that issue under the rug, then even if the EEOC scores a victory, it will largely be a hollow one. After all, if an employer may not fire a transgender woman for being transgender but may fire her for not wearing a dress and make-up, that won't make the workplace very welcoming for most transgender workers.

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, September 27, 2017

The Zarda Oral Argument: Politics, Bathrooms, and Hair Length

DOJ and the EEOC are play-fighting, how adorable!
On September 26, 2017, the Second Circuit heard oral argument in the en banc rehearing in Zarda v. Altitude Express, in which the full court is considering the question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The advocates (all six of them) were well prepared, and they addressed a number of issues that have not been raised previously. This post looks briefly at three of these issues: 1) the EEOC's and DOJ's conflicting interpretation of Title VII; 2) sex-segregated bathrooms; and 3) and sex-based grooming standards.

Politics:In this case, the EEOC and DOJ are on opposite sides of the fence when it comes to whether Title VII prohibits sexual orientation discrimination. Some members of the court pressed DOJ's representative, Mooppan Hashim, regarding how DOJ came to adopt its position, and Hashim respectfully begged off. To my mind, there is little doubt that the election of a Republican President was a key factor in DOJ's decision to reject the EEOC's position. On the other hand, the EEOC's decision to interpret Title VII as protecting sexual orientation discrimination was almost certainly no less political. At oral argument, the EEOC's representative, Jeremy Horowitz, could offer little explanation for why the EEOC took over 50 years before finally concluding that sexual orientation discrimination is covered by Title VII. Without question, the EEOC, like DOJ, was influenced by the political winds, and it was finally safe in 2015 for the EEOC to adopt an interpretation of Title VII that had been staring it in the face for decades.

None of this, however, is to fault the EEOC or DOJ. The question of whether Title VII covers sexual orientation discrimination is not an easy one, and there are reasonable arguments on both sides. In the absence of an obviously correct legal interpretation, political considerations are fair game.

Notably, DOJ has also taken the opposite position as the NLRB in a case currently before the Supreme Court involving agreements to resolve disputes through individual arbitration.

Bathrooms: In arguing that the EEOC's literal application of a but-for test is mistaken, Hashim and the court-appointed amicus Adam Mortara pointed to the example of bathrooms. The EEOC has contended that sexual orientation discrimination is sex discrimination because but for the victim's sex, he or she would not have been treated adversely. In particular, if a man who is sexually attracted to men is treated worse than a woman who is sexually attracted to men, then but for his sex, he would have been treated better. Hashim and Mortara note that sex-segregated bathrooms violate Title VII under the EEOC's but-for test, so if sex-segregated bathrooms are lawful, then the but-for test must be overinclusive, meaning that some actions that would not have been taken but for the victim's sex do not violate Title VII.

In response, Horowitz distinguished bathrooms as involving a trivial matter while sexual orientation involves a fundamental right, namely the right to marry and engage in intimate conduct with the person to whom you are sexually attracted. Here, I think Horowitz has confused two different issues: the kinds of employment actions covered by Title VII and the subset of a protected class that is protected against discrimination. As Horowitz noted, bathroom access may be relatively trivial, and therefore, discriminatory bathroom access may not be covered by Title VII since it might not constitute an adverse action. If so, then requiring gay men to use different bathrooms from heterosexual men would not violate Title VII, regardless of whether sexual orientation discrimination implicates a fundamental right. Moreover, contrary to what the EEOC has contended in the past, it would not violate Title VII to require a transgender woman to use the men's room.

If single-sex bathrooms are lawful, then what gives? The answer, I think, is that men and women are not similarly situated with respect to bathroom access. Mainstream American society continues to believe that bathroom usage implicates privacy concerns that require sex-segregated bathrooms. Thus, barring women from using the men's room does not discriminate against men because men and women have different genitals. Similarly, in Bauer v. Lynch -- although I disagree with the decision -- the court concluded that treating men and women differently with respect to the number of push-ups required to pass a physical fitness test did not discriminate based on sex because men and women are not similarly situated with respect to upper body strength. By contrast, when it comes to a typical employment decision, like hiring or promotion, there is nothing that distinguishes men from women in general or that distinguishes gay men from heterosexual women or lesbians from heterosexual men that would justify treating them differently.

Grooming requirements: As noted by some members of the court, there is case law allowing employers to adopt sex-based grooming standards, such as allowing women, but not men, to have long hair. This is where the issue of fundamental rights is relevant. In a line of cases sometimes referred to as "sex plus," courts have held that it is unlawful to discriminate against someone based on sex plus another characteristic. For example, in Phillips v. Martin Marietta, 400 U.S. 542 (1971), the Supreme Court held that Title VII prohibits an employer from treating men with preschool-age children better than women with preschool-age children. If an employer adopts sex-based grooming standards, then it is engaging in a form of sex-plus discrimination because it is treating an individual adversely not merely, for instance, because he is a man but because he is a man with long hair. In upholding such a requirement, some courts have reasoned that sex-plus discrimination only covers discrimination based on sex in combination with a fundamental right, such as childrearing. In my view, the sex-plus cases are flawed. If an employer fires a woman who engages in misconduct but not a man who engages in similar misconduct, we don't ask whether engaging in misconduct is a fundamental right, so it makes no sense to ask that question when sex is combined with a factor like hair length.

As Horowitz pointed out, sexual intimacy has been recognized as a fundamental right by the Supreme Court, so sexual orientation discrimination is distinguishable from the cases addressing sex-based grooming standards. The same may not be true of discrimination based on transgender status, however. Some courts, along with the EEOC, have concluded that discrimination based on transgender status constitutes sex discrimination because it is grounded in sex stereotypes. But if dressing a certain way is not a fundamental right, then under the sex-plus theory, treating a man who dresses femininely differently from a woman who dresses femininely would not be unlawful.

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, September 26, 2017

Severson v. Heartland Woodcraft: Seventh Circuit holds that multimonth leave of absence is outside the scope of the ADA (Updated 9/28/17)

In Severson v. Heartland Woodcraft, Inc., No. 15-3754 (Sept. 20, 2017), the Seventh Circuit held that a multimonth leave of absence lies beyond the scope of the Americans with Disabilities Act. The court reasoned that a "reasonable accommodation" is limited to a measure that enables an employee to work; an individual who needs extended medical leave cannot work, and therefore, he is not protected by the ADA.

In this case, Raymond Severson had exhausted his entitlement to 12 weeks of leave under the Family and Medical Leave Act, and he requested additional leave of two to three months while he recovered from back surgery. Rejecting Severson's denial of accommodation claim, the court explained: "[A] long-term leave of absence cannot be a reasonable accommodation . . . [because it] does not give a disabled individual the means to work; it excuses his not working."

Although the court broadly rejected any reasonable accommodation claim challenging the denial of long-term leave, the court seemed to be particularly troubled by the EEOC's failure to impose any constraints on the length of the leave requested. In the EEOC's view, long-term medical leave qualifies as a reasonable accommodation if it is (1) of a definite and limited duration; (2) requested in advance; and (3) likely to enable the employee to do his job when he returns. In rejecting this view, the court stated that the EEOC mistakenly equates a "reasonable accommodation" with an "effective accommodation," which transforms the ADA into a "medical leave statute -- in effect, an open-ended extension of the FMLA."

To my mind, the Seventh Circuit's position is a harsh and narrow interpretation of the ADA. And indeed, it appears to be an outlier, judging by the many cases cited by the EEOC from other circuits.  But the EEOC's position may lie at the other extreme in failing to provide any limitation on the length of leave that can potentially qualify as a "reasonable" accommodation. This is not to suggest that the two- or three-month extension that Severson had requested was unreasonable, but as a matter of common sense, I would think that at some point the length of medical leave requested by an employee may be so long as to be inherently unreasonable. 

Update (9/28/17): In reading commentary on the Severson decision, I was surprised to learn that the Tenth Circuit, in a decision by then-Judge Neil Gorsuch no less, reached the same conclusion about an employee's right to long-term leave as a reasonable accommodation. In Hwang v. Kansas State University, the court concluded that an employer is not required to provide employees with more than six months of sick leave as a reasonable accommodation. The court explained:

. . . [R]easonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work. 
. . .
[I]t's difficult to conceive how an employee's absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang's is a terrible problem, one in no way of her own making, but it's a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work -- not to turn employers into safety net providers for those who cannot work.
Although Hwang is a Rehabilitation Act case, the same reasoning applies to the ADA, and in fact, the Tenth Circuit discusses at length the EEOC's ADA guidance.

Hwang is significant because it shows that Severson, even if it represents a minority view, may not be that much of an outlier. Oddly, the Seventh Circuit never cited Hwang in its Severson decision, nor did the EEOC cite Hwang in its amicus brief.

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.

Saturday, September 23, 2017

Edge v. City of Everett: The Attack on Bikini Baristas

Baring a bit too much anal cleft, methinks.
On September 11, 2017, in Edge v. City of Everett, a group of women filed a lawsuit challenging the constitutionality of two ordinances adopted by the City of Everett, Washington, targeting bikini espresso stands. In case you aren't familiar with these establishments, they're drive-through coffee stands at which customers are served by women dressed in bikinis. The lawsuit alleges, among other things, that the laws violate baristas' First Amendment right to freedom of expression and their Fourteenth Amendment right to equal protection. The equal protection claim rests on the contention that the ordinances discriminate against women based on their sex.

The first ordinance merely expands the existing lewd conduct ordinance to prohibit exposure of the "bottom one-half of the anal cleft" or "more than one-half of the part of the female breast located below the top of the areola."

More interesting is the second ordinance, which requires that employees of "quick-service facilities" wear clothing that covers the "upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of legs below the buttocks, pubic area, and genitals)." The city subsequently issued guidance further explaining that the ordinance requires that workers wear at least either shorts or a skirt, and a tank top.

The plaintiffs' First Amendment claim rests straightforwardly on the personal expression restricted by the ordinances, which not only require certain forms of clothing but also limit other forms of expression such as the display of tattoos.

On the other hand, while my expertise is admittedly with statutory EEO law, not the U.S. Constitution, the equal protection sex discrimination claim strikes me as a bit of a stretch. Unlike federal EEO law, such as Title VII of the Civil Rights Act of 1964, the U.S. Constitution only applies to intentional discrimination and does not apply to policies that were adopted for neutral reasons but that disproportionately exclude members of a particular group. Here, there seems to be little evidence of intentional discrimination against women, except possibly the fact that the ordinances seem to affect only women. The council apparently adopted the quick-service facilities ordinance to address the perceived "proliferation" in sex crimes associated with bikini barista stands, and even if the ordinance may be overkill, the council's decision to use a sledgehammer to kill a fly does not mean that it discriminated against bikini baristas because of their sex.

In addition to free expression and equal protection claims, the plaintiffs have thrown in a vagueness challenge. In this amusing article from Reason, the lead plaintiff explains that she's not sure what "anal cleft" means, but she thinks it refers to the part right above the butt crack. As for me, I'm pretty sure it means the butt crack itself, since the ordinance only prohibits exposure of the lower half of the anal cleft. This limitation ensures that plumbers and Homer Simpson will be off the hook. The plaintiffs' complaint also alleges that the lewdness ordinance requires women to cover up three-quarters of their breasts, but as I read the ordinance, women are allowed to leave almost three-quarters of their breasts uncovered -- only half of the breast below the top of the areola has to be covered. So maybe this confusion shows that the ordinance is indeed vague.

I'm not much of a coffee drinker, but I'm a big fan of free expression, so I'm rooting for the baristas.

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.