Saturday, June 17, 2017

When do parental leave policies discriminate against fathers?

Just in time for Father's Day, the ACLU and the law firm Outten & Golden have filed a high-profile EEOC charge on behalf of J.P. Morgan Chase employee Derek Rotondo, who alleges that his employer's parental leave policy discriminates against men. The charge alleges that, pursuant to his employer's policy, primary caregivers are given up to 16 weeks of paid leave immediately following the birth or adoption of a child whereas non-primary caregivers can only get two weeks of paid leave. Rotondo further alleges that the employer presumptively treats fathers as non-primary caregivers and only treats a father as a primary caregiver if the mother has returned to work or is medically incapable of caring for the child. In Rotondo's case, he could not qualify for either of those exceptions because his wife, as a teacher, was off for the summer, and she was recovering well from childbirth, so she could not be considered medically incapable of caring for their newborn son.

Rotondo's charge presents a fairly straightforward claim of sex discrimination, alleging that assumptions about primary caregiver status are grounded in sex stereotypes about childcare responsibilities. This stereotype also arguably disadvantages women by presuming that men are society's breadwinners and that women should be more willing than men to take time off from their professional lives to raise a family.

Primary caregiver policies are not facially sex-discriminatory, but as suggested by Rotondo's allegations, their enforcement may be driven by sex stereotypes. Given such stereotypes, male employees also may assume that they cannot be primary caregivers or may fear that they will be stigmatized for wanting to share parental responsibilities on an equal basis. More generally, primary caregiver policies have been criticized as promoting the outdated notion that a child has one main parent. Although the ACLU has targeted J.P. Morgan Chase's particular leave policy because it has allegedly been enforced in a discriminatory manner, it's a good bet that the organization has all primary caregiver policies in its crosshairs.

A significant wrinkle that has been overlooked is that even if women and men should be entitled to the same amount of parental leave, an employer may provide women with leave to recuperate following childbirth. If an employer provides female employees up to 16 weeks of leave after giving birth, that period really includes both pregnancy-based leave and parental leave. If men are also given 16 weeks of leave following the birth of a child, that leave is solely parental leave. Some countries with generous parental leave policies, such as Denmark, Belgium, and Hungary, provide women with an exclusive period of leave following childbirth (see this article). Following that period of recuperation, leave is more evenly divided between fathers and mothers. As suggested by such policies, it may not necessarily discriminate against men if women get more leave than they do following the birth of a child.

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, June 12, 2017

Loving v. Virginia: The Analogy Between Interracial Marriage and Same-sex Relationships

Today marks the 50th anniversary of the Supreme Court's decision in Loving v. Virginia, which struck down a state law prohibiting interracial marriage as a violation of the constitutional right to equal protection. Although the state argued that its law was permissible because it applied equally to all races, the Court disagreed:
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."
Courts and the EEOC have extended this logic to conclude that sexual orientation discrimination is a form of sex discrimination. Just as discrimination based on conduct between members of different races is race discrimination, discrimination based on conduct between members of the same sex is sex discrimination. Thus, in Hively v. Ivy Tech Community College, the Seventh Circuit rejected the dissent's contention that sexual orientation discrimination is not sex discrimination because it treats the members of both sexes equally:
. . . Loving shows why this fails. In the context of interracial relationships, we could just as easily hold constant a variable such as "sexual or romantic attraction to persons of a different race” and ask whether an employer treated persons of different races who shared that propensity the same. That is precisely the rule that Loving rejected, and so too must we, in the context of sexual associations.
To be sure, Virginia's prohibition against interracial marriage was also grounded in perceptions about white supremacy. But as the Seventh Circuit noted in Hively, the Supreme Court concluded that miscegenation laws are inherently "repugnant" to the constitutional guarantee of equal protection, "even assuming an even-handed state purpose to protect the 'integrity' of all races."

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, June 9, 2017

A 21st Century Civil Rights Issue for the Trump Administration: Topless Female Lifeguards (Updated)

An article in today's Washington Post suggests a great opportunity for the Trump Administration to be at the vanguard of the fight for civil rights. The Post reports that Ocean City has instructed beach patrol employees not to approach women who are sunbathing topless -- at least until the Maryland Attorney General can weigh in. The question presented here is whether allowing men to go topless but not allowing women the same privilege is sex discrimination. And if female sunbathers should have the right to go topless, then so too should female lifeguards.

Jeff Sessions and the Trump Administration should step up to the plate. Why should female lifeguards not have the same rights that male lifeguards have? What better way for the administration to give the lie to the misperception that it caters to the interests of white men than by taking to task municipalities that suppress the rights of female employees? From what I've seen of the tv show Baywatch, those tops really slow women down. So women will be freer and more lives will be saved. A win-win.

Update: On June 15th, two attorneys in the Maryland Attorney General's Office advised Ocean City of their view that interpreting laws against indecent exposure to prohibit women from going topless does not violate equal protection guarantees under the U.S. or Maryland Constitution. From what I can tell, this boils down to a prohibition against exposed female nipples. I recently learned from my primary news source, "Wait Wait ... Don't Tell Me!", about "side boob," and in doing research for this post, I've learned that there's also "underboob," so throwing in regular old cleavage, that just leaves out the nipple.

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 8, 2017

Villa v. Cavamezze Grill: When can an employer be liable for firing someone it believes fabricated a report of sexual harassment?

Villa v. Cavamezze Grill, LLC, No. 15-2543 (4th Cir. June 7, 2017), is an important new decision addressing when an employer can be held liable under Title VII of the Civil Rights Act of 1964 for firing someone that the employer believes has falsely reported sexual harassment.

In this case, Patricia Villa, a lower-level restaurant manager, alleged that an employee she had supervised, Judy Bonilla, told her that the restaurant’s General Manager, Marcelo Butron, had offered to promote Bonilla in exchange for sex. Villa contacted Rob Gresham, the Director of Operations, and relayed what Bonilla had allegedly told her, and she also told Gresham that she suspected that another former employee, Jessica Arias, had quit because Butron had made the same offer to her. After investigating the allegations, the employer concluded that Villa had made everything up, and it fired her.

The Fourth Circuit rejected Villa's claim that she was fired in retaliation for reporting sexual harassment. The court reasoned that a plaintiff bringing a Title VII retaliation claim must prove that “the desire to retaliate was the but-for cause of the challenged employment action.” Thus, it is not enough that the plaintiff's conduct have caused the termination. The employer must also have been motivated by retaliatory animus, rather than merely the desire to discipline an employee for what the employer honestly believed was misconduct.

The EEOC, by contrast, argued in its amicus brief that "[a] jury should resolve retaliation claims where (1) an employee has engaged in protected activity under the opposition clause of Title VII's anti-retaliation clause . . . ; (2) the employer claims that it took adverse action because the employee fabricated allegations of unlawful activity; and (3) there are disputed issues of fact as to the evidence on which the employer relied or the adequacy of the employer's investigation."

As I see it, neither the Fourth Circuit nor the EEOC has it exactly right. Although I agree with the EEOC that the Fourth Circuit's approach may be too narrow, the EEOC's alternative is muddled and provides insufficient guidance. The EEOC suggests that a jury should resolve a retaliation claim when the adequacy of the employer's investigation is at issue, but the EEOC does not explain how the jury is supposed to resolve the claim. Presumably, there must be some guiding legal principles, but if so, the EEOC does not identify them.

In my view, an alternative grounds for liability could be an employer's negligence. If someone alleges unlawful discrimination, the employer has a responsibility to respond in a reasonable manner to that complaint. If the employer fails to act reasonably and, as a result, takes an adverse action based on the honest but unreasonable and mistaken belief that an employee lied about alleged discrimination, then a plaintiff should be able to establish employer liability for retaliation based on the employer's negligence. Holding an employer liable under such circumstances is akin to holding an employer liable for sexual harassment by a coworker where an employer honestly but unreasonably believed that no harassment occurred because it failed to conduct an adequate investigation.

In this case, however, I don’t think the alleged facts support potential employer liability based on negligence. The evidence showed that the employer spoke with Bonilla and Aria, and they both denied that they were sexually harassed by Butron. The employer also spoke with a witness who allegedly overheard Bonilla tell Villa about Butron's harassment, and the witness denied that Bonilla made such an accusation.

It is true, as the EEOC notes, that there were factual disputes about the adequacy of the investigation, such as the failure to question the alleged harasser and the lack of a harassment policy, but neither of those possible shortcomings seems relevant to why the employer believed that Villa had lied. Take the failure to interview the alleged harasser. The employer interviewed the alleged victim, and she denied that the harassment occurred. Although Bonilla stated in her deposition that she had in fact told Villa that Butron had sexually harassed her, she also stated that she had lied to Villa about the offer. Thus, even if the employer had interviewed Butron, that almost certainly would not have affected its determination that Villa had lied since he obviously would not have admitted to misconduct that never occurred.  Similarly, it’s not at all clear how the lack of a harassment policy could have affected the employer’s determination that Villa lied.

In the end, negligence may be a viable theory for holding an employer liable for retaliation, but it's hard to fault the court for not adopting that position when neither the plaintiff nor the EEOC argued in its favor. Moreover, even if such a theory were available, it seems unlikely that it would have affected the outcome.

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, June 2, 2017

Jones v. Fransen: The Reasonable Dog Standard

Although not an EEO case, I couldn't resist doing a post on Jones v. Fransen, in which the Eleventh Circuit dismissed a negligence claim against Draco, a police dog. Here are some highlights:
In history and literature, the name "Draco" has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word "draconian." Draco Lucius Malfoy, of course, is Harry Potter's perpetually maleficent rival in the Harry Potter literary series.
And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court's denial of Defendant-Appellants' motion to dismiss Draco.
. . .
Jones . . . alleged in his complaint that "Officer K-9 Draco of the Gwinnett County Police Department" was liable for negligence in his individual capacity. We are not persuaded.
Georgia has codified the tort of negligence. And under the express terms of Georgia law, only a person may be held liable for breaching a legal duty . . . . 
Not surprisingly, [the Georgia law] we use to determine the meaning of words used in Georgia's tort statutes[] does not define the word "person" to include dogs. 
Quoting the Seventh Circuit, the court noted the numerous imponderables that would arise if it allowed a suit against a dog:
Was [the dog] served with process? Did he retain as his lawyer [the same attorney] who purports to represent all . . . defendants? Was [the dog] offered the right of self-representation ? What relief does [the plaintiff] seek from a dog -- [the dog's] awards, perhaps?
And my favorite: would it be necessary to ask how a reasonable dog would have acted in Draco's position?

Sometimes "the law is a ass" because it gets things woefully wrong. Here, I can't complain about the court's conclusion. Draco will get to keep his pension. And sure, this is an entertaining case. But c'mon, did it really require three full pages for the court to make light of the situation and explain what any five-year-old (human) would know -- that you can't sue a dog?

So my verdict in this case, if the court were on trial: ass.

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 31, 2017

Whitaker v. Kenosha Unified School District: Denying bathroom access based on gender identity is sex discrimination

In Whitaker v. Kenosha Unified School District No. 1 Board of Education, No. 16-3522 (May 30, 2017), the Seventh Circuit ruled that the defendant subjected Ashton Whitaker, a 17-year-old transgender boy, to sex discrimination in violation of Title IX of the Education Amendments Act of 1972 when it denied him access to the boys' bathroom. As far as I know, this is the first federal court of appeals to hold that denial of bathroom access consistent with gender identity is a form of sex discrimination, so this decision is a BIG DEAL. Although Whitaker's claim was brought under Title IX, the court's analysis relies heavily on Title VII precedent, so the same reasoning should be transferable to the employment context.

Unfortunately, as I see it, the court's reasoning reflects the same flawed interpretation of the Supreme Court's decision in Price Waterhouse v. Hopkins that has been previously advanced by LGBT advocates. I've criticized those arguments at length (including here), so I won't bother doing so again in this post. The reasoning in Whitaker is particularly problematic since in the recent decision in Hively v. Ivy Tech holding that Title VII prohibits sexual orientation discrimination, the Seventh Circuit interpreted Price Waterhouse as concluding that sex stereotyping merely involves discrimination on the basis of the "victim's biological sex (either as observed at birth or as modified, in the case of transsexuals)" -- in other words, treating a masculine biological man better than a masculine biological woman.  For Price Waterhouse to provide support for bathroom access based on gender identity rather than biological sex, it obviously must say something more than that it is unlawful to treat biological men better than biological women. 

Although I think there are potentially compelling arguments for transgender bathroom access, they're not the ones that so many others are so tickled by.

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 30, 2017

Rizo v. Yovino: The Need for a Coherent Approach to Relying on Pay History

Following up on my prior post on Rizo v. Yovino, this new post focuses on the recently filed briefs supporting rehearing by the full Ninth Circuit Court of Appeals. Rizo presents the issue of whether prior pay standing alone can be a defense under the Equal Pay Act. In other words, if a man and a woman are doing the same job and one of them is paid more than the other, can an employer ever justify the pay discrepancy by merely pointing to the higher-paid worker's prior salary? A three-judge panel of the Ninth Circuit held that prior pay standing alone can indeed be sufficient to justify a pay discrepancy under the Equal Pay Act. In requesting rehearing, Aileen Rizo contends that the panel decision should be rejected because it allows for the perpetuation of past pay discrimination and because it conflicts with the decisions of two other courts of appeals.

This post looks primarily at two amicus briefs, one filed by the EEOC and a second filed by a coalition of civil rights groups. While I agree that there are compelling reasons for restricting consideration of prior salary, the arguments advanced by the EEOC and by the civil rights coalition are confusing and fail to provide a coherent and workable solution. Rather, the EEOC and the coalition indiscriminately attack any consideration of pay history. To try to shine some light on this issue, this post discusses a possible solution that allows for the consideration of prior pay while also recognizing the risk of perpetuating pay discrimination.

It is important at the outset to distinguish the factors that an employer relies on in setting pay from the factors that ultimately result in a pay discrepancy between two individuals. For example, suppose XYZ Employer extends job offers as sales associates to a man and a woman (Darin and Dena) with similar qualifications and offers them each an annual salary of $75,000. Both applicants try to negotiate for higher pay. Darin is currently earning $65,000 while Dena is earning $85,000. Based on the applicants' salary histories, XYZ raises its salary offer to Dena to $88,000, but it keeps its offer to Darin at $75,000. Both applicants accept XYZ's offer. Under these circumstances, XYZ relied on prior salary and qualifications in setting Darin and Dena's starting salaries, but the sole reason that it ended up paying Dena more is her salary history.

So if we assume that prior salary standing alone is not a defense under the Equal Pay Act, does that mean that XYZ is out of luck because prior salary is the only reason that it has decided to pay Dena more than Darin, or does XYZ have a potential defense because it looked at both prior salary and qualifications when it set Dena and Darin's pay?

It is clear that the Rizo panel believed that the latter is the right way to view the issue:

[W]e do not see how the employer's consideration of other factors would prevent the perpetuation of existing pay disparities if . . . prior salary is the only factor that causes the current disparity. For example, assume that a male and a female employee have the same education and number of years' experience as each other, but the male employee was paid a higher prior salary than the female employee. The current employer sets salary by considering the employee's education, years of experience, and prior salary. Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary. In this example, it is prior salary alone that accounts for the pay differential, even though the employer also considered other factors when setting pay. If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified.
In contrast, the civil rights coalition contends that the Rizo panel misconstrued the question of law that was presented on appeal: "The question was not whether prior salary can be the only factor considered by an employer in setting pay, but rather, if it can be the only factor that caused the gender wage differential, even if other factors were considered at the front end."

In my view, the Rizo panel is correct for several reasons. First, the civil rights coalition stands alone in contending that the pay discrepancy, rather than merely the pay-setting decision, must be based on more than salary history. Neither the EEOC nor Rizo has challenged the panel's framing of the issue. For example, in Rizo's petition for rehearing, she criticizes the practice of relying on prior pay as the sole basis in "setting compensation." The EEOC's amicus brief is even clearer. The EEOC acknowledges that prior salary can be an Equal Pay Act defense even if it is the only factor that causes a wage disparity, as long as it was not the only factor that was considered in setting pay. As the EEOC explains: "Factors such as education and relevant experience ordinarily are not gender-based. To the extent the employer actually considers such factors -- rather than merely paying lip-service to doing so, as the panel's example suggests -- it dilutes the relative importance of prior pay in the decision."

Second, as the EEOC notes, the purpose of requiring factors in addition to salary history is to dilute the importance of salary history and to minimize the potential for perpetuation of any sex discrimination. If an employer sets pay by looking at prior pay along with other factors, the reliance on prior salary cannot somehow become deficient merely because there is subsequently an opposite sex worker who is being paid less solely because of her pay history.

Third, if no part of a pay discrepancy can be based on salary history alone -- even if salary history was not the only factor considered in setting pay -- then that means, in reality, that salary history can never be any factor at all in setting pay. As the civil rights coalition argues in its amicus brief, "[P]rior salary should only be accepted as [an EPA defense] if the wage difference can be explained or supported by some other factor." As support, the coalition brief cites an example in the EEOC Compliance Manual in which the EEOC endorses reliance on prior salary where it accurately reflects an employee's ability and job-related qualifications. In such circumstances, however, the employer is merely basing pay on an employee's qualifications and is not basing pay on salary history in a meaningful way.

Thus, the coalition's argument that a pay differential, rather than merely a pay-setting decision, cannot be based solely on prior salary is really an argument against any reliance whatsoever on salary history. There may very well be reasonable arguments for prohibiting any consideration of salary history. However, that is not the position that the coalition purports to advance. Instead, the coalition presents a disingenuous argument that superficially supports a limited reliance on prior salary but in reality attacks any reliance on prior salary.

So if the EEOC concedes that prior salary can be a defense as long it is not the sole factor in setting pay, does that mean that there are clear circumstances in which the EEOC believes an employer can rely on prior salary in setting pay? Hardly. Even though the EEOC's approach appears to be more flexible than that of the civil rights coalition, the EEOC nonetheless appears loathe to identify any circumstances in which prior salary can be given any real weight in setting pay. As already noted, the example from the EEOC's Compliance Manual does not suggest that prior pay can play any meaningful role in setting an employee's pay and instead suggests that prior pay is only a permissible consideration to the extent it reflects job-related qualifications.

Luckily, the solution may be staring us right in the face. It is almost certainly impossible for an employer to determine with pinpoint accuracy the market value of a particular job and an employee's qualifications. There will always be some range of what can be considered reasonable pay for an individual with particular qualifications to perform a particular job. In my view, therefore, a reasonable and balanced approach to considering prior pay in setting a new employee's starting salary is for an employer to (1) establish a pay range for a new employee based on the position being filled and the applicant's qualifications and (2) then use salary history to set the new employee's pay within that range. For the sake of brevity, I refer to this below as the "salary range" approach.

For example, in North v. United States, the court upheld a salary discrepancy between the plaintiff, a female attorney hired at the GS-14 level by the Department of Education, and a man who was also hired as a GS-14 attorney. The court concluded that the pay disparity did not violate the Equal Pay Act because it was based on the male attorney's "superior" qualifications and prior salary. Although the plaintiff also had superior qualifications -- meaning that she and the male attorney were both considered "highly qualified" for the position -- her starting salary exceeded her prior salary, so her pay was set at the lowest step of the GS-14 pay grade. The male comparator's salary, by contrast was set at the highest step of the GS-14 pay grade (almost $30,000 above the lowest step), and even at that rate, he made less than in his previous job.

The salary range approach is consistent with the recently introduced Paycheck Fairness Act, H.R. 1869, which would amend the Equal Pay Act to restrict employers' reliance on salary history. The civil rights coalition characterizes this bill as prohibiting employers from "seeking or relying on salary history," but I think that is incorrect. Specifically, the bill provides that it is unlawful for an employer to "seek from a prospective employee or any current or former employer the wage history of the prospective employee, except that an employer may seek to confirm prior wage information only after an offer of employment with compensation has been made to the prospective employee and the prospective employee responds to the offer by providing prior wage information to support a wage higher than that offered by the employer." Thus, although the bill prohibits employers from requiring applicants to disclose their salary history, it does not prohibit employers from relying on salary history in setting pay when salary history is voluntarily disclosed by applicants, and the bill contemplates that salary history will be used by applicants to negotiate for higher pay. Moreover, like the pay range approach discussed above, the bill requires an employer to make an initial assessment of an appropriate starting salary for a new employee.

This is not to say that the salary range approach should necessarily be considered a sufficient defense to an Equal Pay Act claim in all cases. In the Ninth Circuit, an employer must establish that its asserted defense "'effectuate[s] some business policy' and that the employer 'use[s] the factor reasonably in light of the employer's stated purpose as well as its other practices.'" Certainly, there could be instances in which an employer has acted unreasonably in using prior salary to set starting pay within a range, such as where the range is unreasonably large.

On the other hand, if employers have no freedom to pay some new employees more than others based on prior salary, employers may have difficulty competing for the best employees. As the EEOC suggests, consideration of other factors along with prior salary dilutes the effect of reliance on prior salary and reduces, but does not eliminate, the potential for perpetuating pay discrimination. The salary range approach is an imperfect compromise, but in my view, it strikes a reasonable balance between the interests of employers and employees. Given that the federal government follows this procedure in setting pay, it hardly seems fair to fault private sector employers for following suit. Sadly, however, in this if-the-President-does-it-it's-not-illegal era that we live in, fairness may be too much to expect.

Curiously, in Rizo, although the parties apparently do not dispute that the defendant relied solely on prior salary in setting pay, I disagree. The salaries of Rizo and the higher-paid male math consultants were based on level 1 of the management pay scale, which in 2009 had 10 steps ranging from $62,133 to $81,461. The defendant set a newly hired math consultant's pay at the step that corresponded to the employee's prior salary, plus a 5% raise. While the defendant apparently relied solely on prior salary in setting a new employee's salary within the level 1 range, starting salary was limited by that range. Thus, although the plaintiff's prior salary was only about $52,000, the defendant set the plaintiff's pay at the lowest step, which was considerably more than a 5% raise. The pay-setting procedure followed in Rizo largely mirrors the approach in North. The one significant difference is that in Rizo the defendant relied on prior pay in setting any new employee's salary within the applicable range. In North, by contrast, the defendant relied on prior salary only if an applicant had "superior qualifications." My point here is not that the pay procedure followed by the defendant in Rizo was necessarily lawful, but rather that like the one at issue in North, it did not involve a pay-setting decision that relied solely on prior salary. Nonetheless, it's possible that at this late stage, it may be too late for the defendant to point this out.

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.