Wednesday, May 24, 2017

Coker v. Whittington: The Constitution does not protect wife-swapping, at least when it comes to sheriff's deputies

Coker v. Whittington, No. 16-30679 (May 23, 2017), is an interesting case in which the Fifth Circuit held that Bossier Parish, Louisiana, did not violate the constitutional rights of two sheriff's deputies, Brandon Coker and Michael Golden, when it fired them for violating its Sheriff's Code of Conduct by moving in with each other's wife and family before getting divorced from their current wives.

In rejecting Coker's and Golden's claims, the Fifth Circuit distinguished the Supreme Court decision in Lawrence v. Texaswhich struck down as unconstitutional a prohibition against same-sex sexual conduct.  The Fifth Circuit explained that although Lawrence "expanded substantive constitutional rights related to personal sexual choices, [it did] not mandate a change in policies relevant to public employment, where . . . employees necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions." The court also relied heavily on the fact that the public employees in this case were law enforcement officers, who must maintain a certain degree of public credibility:
Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and "notoriously" violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriff's Department and hinder its ability to maintain public credibility. Moreover, these officers' extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker's and Golden's cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies' official conduct. 
The Fifth Circuit also rejected reliance on Obergefell v. Hodges, in which the Supreme Court held that the U.S. Constitution requires the recognition of same-sex marriage, reasoning that "Obergefell does not create 'rights' based on relationships that mock marriage."

Ultimately, it's unclear how much freedom public employers have to fire employees for engaging in constitutionally protected sexual conduct. The court's sweeping statement that public employees "shed some of their constitutional rights" is somewhat troubling. This particular case, however, involves both law enforcement officers and conduct that the court regarded as making a mockery of the institution of marriage. Government employers will presumably have less justification for penalizing employees who are not law enforcement officers and do not interact with the public, and even with respect to law enforcement officers, it seems unlikely, as a practical matter, that employers could punish everyone who engages in premarital sex. Thus, the result in this case may merely reflect the unusual facts.

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.

Tovar v. Essentia Health: Title VII Only Prohibits Sex Discrimination Against Employees

In Tovar v. Essentia Health, No. 16-3186 (May 24, 2017), the Eighth Circuit affirmed the dismissal of Brittany Tovar's claim that she was subjected to sex discrimination in violation of Title VII and the Minnesota Human Rights Act when her employer refused to cover medical expenses related to her son's gender dysphoria. As I discussed in a previous post and the Eighth Circuit confirmed, Title VII only prohibits discrimination against an employee because of his or her own protected status. Thus, even assuming that excluding coverage of expenses related to Tovar's son's gender dysphoria constituted sex discrimination, it constituted sex discrimination against Tovar's son, not Tovar. This is because the result would have been the same even if Tovar had been male. Similarly, as reflected in EEOC's  Questions and Answers on the Pregnancy Discrimination Act, although an employer may not exclude the pregnancy-related conditions of employees, it is not required by Title VII to cover "the pregnancy-related conditions of [non-spousal] dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally." 29 C.F.R. § 1604 Appendix, Q&A 21.

Of course, even if Title VII (or the MHRA) does not provide coverage, that does not rule out the possibility that Tovar (or her son) might have a claim under another federal, state, or local law (like the Affordable Care Act, which prohibits 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 21, 2017

Blatt v. Cabela's Retail: Are transgender individuals protected by the Americans with Disabilities Act?

District Court Judge Joseph Leeson's decision in Blatt v. Cabela's Retail, Inc., No. 5:14-cv-04822 (E.D. Pa. May 17, 2017), is perhaps the first to hold that discrimination based on transgender status may be covered by the Americans with Disabilities Act (ADA). By contrast, numerous courts have held that gender identity discrimination is a form of sex discrimination. Unlike Title VII, however, coverage under the ADA would not merely mean that it is unlawful to treat transgender workers worse than other workers but it also might mean that it is unlawful not to treat them better. This is because the ADA can require the modification of a neutral workplace policy, such as a leave or bathroom policy.

If the ADA provides more protections than Title VII, you might wonder why most of the focus has been on Title VII. The reason is that the ADA has a provision that appears to exclude coverage based on transgender status except in limited circumstances. Section 12211 of the ADA states:
[T]he term "disability" shall not include -

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current illegal use of drugs.
Judge Leeson interpreted the exclusion of gender identity disorders to apply only to the "condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt's gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling." Leeson reasoned:
Beginning with the text of the provision, the exceptions listed in § 12211 can be read as falling into two distinct categories: first, non-disabling conditions that concern sexual orientation or identity, and second, disabling conditions that are associated with harmful or illegal conduct. If the term gender identity disorders were understood, as Cabela's suggests, to encompass disabling conditions such as Blatt's gender dysphoria, then the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct. But under the alternative, narrower interpretation of the term, this anomaly would be resolved, as the term gender identity disorders would belong to the first category described above.
I don't find this analysis persuasive. If the exclusion of gender identity disorders is limited to those that are not disabling, it's not clear why the exclusion of other conditions should not also be limited to instances in which they are not disabling. The language of the statute does not suggest that gender identity disorders should be treated differently. Moreover, if the ADA is so construed, it would mean that the exclusion of gender identity disorders is meaningless. The ADA, as enacted with the gender identity exclusion, only applied to disabling conditions, so limiting the exclusion as Leeson has done so converts the exclusion into a nullity.

Leeson failed to acknowledge the arguments advanced in either a joint amicus brief filed by numerous civil rights groups, including the Gay & Lesbian Advocates & Defenders (GLAD), or in a statement of interest filed by the Department of Justice.

The GLAD brief essentially argues that exclusion of "gender identity disorders" does not apply to "gender dysphoria" since they are not the same thing. In my view, even if this is correct, it does not mean that Blatt's gender dysphoria falls outside the scope of the statutory exclusion. Clearly, the two conditions overlap. Even if the term "gender dysphoria" covers a broader range of conditions than does the term "gender identity disorders," that does not mean that Blatt's gender dysphoria is not also a gender identity disorder excluded by the statute. Indeed, the GLAD brief notes that Blatt was "diagnosed with Gender Dysphoria, also known as Gender Identity Disorder.” The brief also advances policy arguments for coverage of both gender dysphoria and gender identity disorders. In this regard, the brief is not concerned with clarifying what forms of gender dysphoria are covered under the ADA but with advancing an argument for coverage of transgender individuals generally, and like Judge Leeson's interpretation, it effectively reduces the exclusion of gender identity disorders to a nullity.

The DOJ statement of interest makes the best stab at an interpretation of the exclusion that gives it some effect. DOJ focuses on the fact that the exclusion only applies to gender identity disorders not resulting from physical impairments. DOJ argues that the phrase "resulting from a physical impairment" broadly encompasses gender identity disorders "rooted in biology or physiology, even if the precise etiology is not yet definitively understood." DOJ further explains that "[w]hile no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots."

As DOJ notes, if our emerging understanding establishes that all gender identity disorders are established by physical impairments, then that would mean that no gender identity disorders are excluded by the ADA. On this point, I agree with DOJ. It is possible that the exclusion applies to no gender identity disorders at all if, contrary to conventional thinking when the ADA was passed in 1990, all gender identity disorders are rooted in physical impairments.

The problem with this line of reasoning is that all physical impairments and all mental impairments necessarily are the result of some underlying physical cause, such as hormones, genetics, biology, etc. In the EEOC's guidance on psychiatric disabilities, the EEOC states:
The ADA rule defines "mental impairment" to include "[a]ny mental or psychological disorder, such as . . . emotional or mental illness." Examples of "emotional or mental illness[es]" include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.
It is clear that the EEOC considers at least some psychiatric disabilities, such as schizophrenia, to be the result of an underlying mental impairment. If you consult the Mayo Clinic website, however, it states: "It's not known what causes schizophrenia, but researchers believe that a combination of genetics, brain chemistry and environment contributes to development of the disorder." Does this mean that the EEOC is mistaken and that schizophrenia is actually the result of a physical impairment? Of course not, it just means that schizophrenia, like everything else, has a physical cause. The human mind is not a ghost in a machine. Thus, while DOJ rightly points to the statutory language that only excludes "gender identity disorders not resulting from physical impairments," it mistakenly interprets "physical impairments" as encompassing any impairment that has a "physical cause."

It's possible that the interpretations discussed here were driven by the desire to avoid difficult questions about constitutional protections. Blatt has contended that the gender identity exclusion violates her equal protection rights. Under the doctrine of "constitutional avoidance," courts go out of their way to avoid addressing constitutional questions if they can possibly avoid those questions. In this case, however, unless there's a fourth argument out there that's much better than the ones I've discussed, the constitutional question seems unavoidable.

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 19, 2017

Both heritage and hate: Does the workplace display of the Mississippi state flag violate federal EEO law?

Monument to the Defenders of Little Round Top
With New Orleans in the process of removing several Confederate monuments, I figured it was appropriate to highlight a recent case brought by an African American attorney challenging the Mississippi state flag, the only one that still includes the Confederate flag.

In  Moore v. Bryant, No. 60616 (5th Cir. Mar. 31, 2017), the court rejected Carlos Moore's claim that the Mississippi state flag violates his rights under the Equal Protection Clause of the U.S. Constitution, concluding that Moore did not have standing (the right to bring a claim in court) because he had not suffered a sufficient injury. The court noted that, although Moore had alleged that the state flag stigmatizes him, he had not alleged that he had been personally denied unequal treatment.

Moore also tried to establish that he had standing by noting that he encounters the state flag in his work as a prosecutor and that the display of a Confederate flag can contribute to a hostile work environment in violation of federal EEO law. Rejecting this argument, the court explained that under EEO law, exposure to a hostile work environment is sufficient injury in and of itself, whereas equal protection standing requires something more.

Interestingly, while the court rejected Moore's constitutional claim, it opened the door to a potential EEO claim by an African American employee whose exposure to the Mississippi state flag in the workplace arguably contributes to a racially hostile work environment. Even if there are Mississippi laws requiring the display of the state flag, Title VII of the Civil Rights of 1964 preempts state and local laws that "purport[] to require or permit the doing of any act which would be an unlawful employment practice under [Title VII]."

There are numerous cases in which the display of a Confederate flag has been identified as one of the circumstances allegedly creating a hostile work environment. One particularly notable example is the Fourth Circuit's 2004 en banc decision in Dixon v. Coburg Dairy. In that case, Matthew Dixon, a member of the Sons of Confederate Veterans, alleged that the defendant violated South Carolina law by firing him because he refused to remove Confederate flag decals affixed to his personal tool box. An offended employee had complained to management about the decals, and the defendant concluded that the decals violated its anti-harassment policy. The main issue presented in Dixon was a procedural one dealing with whether the case involved a "substantial question of federal law," and therefore, could be removed by the defendant from state court, where Dixon had sued, to federal district court, where the defendant preferred to have the case tried.

Much more interesting than the majority decision is the eloquent concurrence by Judge Roger Gregory, explaining why he believed that the display of the Confederate flag could contribute to a hostile work environment that discriminates against African American workers:

Since the [Civil War], many people, likewise good and decent themselves, have proclaimed the Confederate flags as symbols of pride, of heritage not hate. Mr. Dixon states: "He has a keen interest in his family's geneology [sic].... His ancestors fought and died under the Confederate battle flag for a cause in which they believed." Compl. ¶ 4 (emphasis added). However, we cannot wholly divorce the flying of the flag from the system of beliefs and those practices -- which ... "no society should have sought to defend" -- that undergirded the Confederacy, including racial subordination and slavery. While many Southerners unquestionably embrace the flag, not out of malice or continued belief in racial subordination, but out of genuine respect for their ancestors, we must also acknowledge that some minorities and other individuals feel offended, threatened or harassed by the symbol. Unfortunately, to its supporters at the time of its creation as well as some proponents today, the Confederate flag undeniably represented, and represents, support for slavery, belief in Blacks as an inferior class, and opposition to the Republic. Over the years since the war, some have attempted to divorce the Confederate flags from their intimate connections to these principles of subordination, but for many viewers of the symbol such a disconnect is impossible because of the historical facts and the overwhelming negative connotations which continue to flow therefrom.

Some attempts to disgorge the Confederate flag of its negative content associated with the bleak realities of the Civil War and Jim Crow can be explained by the romanticism of what has been termed "Lost Cause" ideology. Since the war's end, Lost Cause proponents have cast the Civil War as a continuation of the revolution of 1776 -- a noble revolution against a despotic Northern regime, a battle for sovereignty in tune with America's core constitutional principles, clothed in the language of states' rights and Jefferson Davis's pleas for "Southern honor." Yet no matter how noble these proponents of the ideology attempted to make the Lost Cause seem, they have had difficulty divorcing it from slavery, white supremacy and the beginnings of Jim Crow and American Apartheid. . . .

Indeed, many offended by the Confederate flag find more current connections to oppression as the flag became an unfortunate symbol of the South's resistance to integration and equality from the late 1940s through the 1960s. For example, Georgia incorporated the Confederate battle flag into its state flag in 1956 "during a regrettable period in Georgia's history when its public leaders were implementing a campaign of massive resistance to the Supreme Court's school desegregation rulings." South Carolina began flying the Confederate flag above the State Capitol in 1962. Furthermore, much more recently the flag has continued to be associated with racial intolerance.
Against this historical backdrop, it becomes more apparent why co-workers might feel offended, harassed and even threatened by the Confederate battle flag in the workplace, even if those who display the flag do so with no ill will.
Reading Judge Gregory's words, it is impossible not to be moved. Although we may live in a society that values liberty above all else, we also live in a pluralistic society that strives to ensure equality of opportunity for all of its members. The Mississippi state flag is especially troublesome because it does not represent personal expression but institutionalized racism. If federal EEO law can restrict the workplace display of the Confederate flag as a form of personal expression, then surely it can restrict the much more odious government-sanctioned racism of the Mississippi state flag.

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.