Thursday, March 16, 2017

Clark v. Top Shelf Entertainment: When is it sexual harassment to ask a topless dancer to show you her breasts?

Clark v. Top Shelf Entertainment, No. 3:16-cv-00144 (W.D.N.C. Mar. 13, 2017), is a thoughtful decision by District Court Judge Max Coburn Jr. that provides guidance on when an "exotic dancer" can allege sexual harassment for being asked to reveal her breasts. In this case, Asia Clark, who had signed an agreement to perform "clothed and topless," alleged that she was sexually harassed by a supervisor. 

In evaluating Clark's claim, Coburn explained:

[I]n a typical employment situation, an employer asking a female employee to reveal her breasts would be a textbook case of sexual harassment . . . . Where, however, the occupation of plaintiff is that of an exotic dancer that bright line becomes blurred. While the employer can certainly instruct the exotic dancer to remove her top in relation to her duties as an adult entertainer, that ability does not give the employer license to demand that the employee remove her top simply for his own personal gratification.
Clark alleged that a supervisor "constantly harassed her 'to remove her top and show him her breasts, because he thought they were "pretty"' and he did so 'nearly every time she worked'"; that the supervisor demanded that she show him her breasts outside the view of customers; and that some dancers were allowed to perform clothed.

Coburn rejected the employer's contention that it was merely enforcing the employment agreement. Although the agreement stated that Clark would perform topless, it did not enable the employer to "dictate that she go topless at the will of her supervisors." Read in the most favorable light, Clark's contention was that she was asked "to re
move her top for personal, prurient interests," and therefore, she could proceed with her sexual harassment claim.

As Coburn indicated, a topless dancer could not base a sexual harassment claim on sexual conduct that was necessary for her to perform her job duties. 
I recently watched the movie "The Graduate," and there's a scene in a strip club in which a dancer is wearing pasties with tassels, and she twirls the tassels in opposite directions. In a typical workplace, a woman might be able to allege sexual harassment if men stared at her breasts. But if your job calls for you to use your breasts to entertain customers, then you can't object to customers who stare at them during a mesmerizing exotic dance routine. I couldn't find a clip of this scene, but here's a how-to video if you want to learn to nipple tassel twirl, and apparently it's a skill that even men can learn. (The video has shirtless men, but the female instructor remains clothed.)

So the point is that a topless dancer is protected against sexual harassment, but generally cannot base a claim on sexual conduct that she should reasonably expect to be a normal part of doing the job. 






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, March 14, 2017

Evans v. Georgia Regional Hospital: The stereotype that gay men have sex with other men "disregard[s] the diversity of experiences of gay [men]" -- WTF?!


In Evans v. Georgia Regional Hospital, No. 15-15234 (Mar. 10, 2017), a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit voted 2 to 1, holding that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. The decision is not particularly surprising, given that this is what courts have been holding for over 50 years. What is particularly notable, however, is the peculiarly reasoned concurrence of Judge William Pryor.

Pryor concedes that it is unlawful to discriminate against an individual for not conforming with gender stereotypes. However, he faults the EEOC, which filed an amicus brief, and the dissent for stereotyping gay men and lesbians. And how, according to Pryor, are the EEOC and the dissent improperly stereotyping gay men and lesbians? They do so by assuming that gay men have sex with other men and that lesbians have sex with other women. These stereotypes "disregard the diversity of experiences of gay individuals." Yes, ladies and gentlemen, the EEOC should be faulted for ignoring the experiences of gay men who have sex with women and lesbians who have sex with men.

And where does Pryor get such ideas? First, he cites controversial articles advocating the view that being gay is a choice, and then he cites an amicus brief filed in the Supreme Court same-sex marriage case, Obergefell, by "same-sex attracted men and their wives," which argued against the recognition of same-sex marriage. Yes, there was actually such a brief.

So in Pryor's view, discriminating against a woman because she has sex with another woman is not sexual orientation discrimination because heterosexual women also have sex with other women. In the same vein, I'm sure he thinks that prohibitions against same-sex marriage do not discriminate against gay men and lesbians because they apply to everyone. Otherwise, we would be stereotyping gay men and lesbians by assuming that they would prefer to marry individuals of the same sex.

Although Pryor's reasoning strikes me as wacky, the EEOC is guilty of the same crime. In the 2011 federal sector decision in Veretto v. Donahoe, the EEOC stated that "Title VII's prohibition of discrimination does not include sexual preference or orientation as a basis." Nonetheless, the EEOC found that the complainant had alleged sex stereotyping, which is covered by Title VII:

[The complainant] alleges that he was subjected to a hostile work environment because CW1 learned that he was marrying a man. He has essentially argued that CW1 was motivated by the sexual stereotype that marrying a woman is an essential part of being a man . . . .
Thus, like Pryor's concurrence in Evans, the EEOC took the position in Veretto that discrimination against someone for acting in a stereotypically gay manner is distinct from discrimination based on sexual orientation, which is not covered by Title VII. The EEOC's heart may have been in the right place, but a what-the-fuck argument is still a what-the-fuck argument, notwithstanding good intentions.

In 2015, the EEOC abandoned the reasoning in Veretto, concluding in Baldwin v. Foxx that sexual orientation discrimination is sex discrimination covered by Title VII "because it is necessarily based on gender stereotypes."

It will be interesting to see whether the EEOC files an amicus brief supporting a rehearing by the full Eleventh Circuit, criticizing Judge Pryor for the very reasoning that the EEOC relied on in Veretto. That would essentially be the pot calling the kettle black.

As a final point, I'll note that Pryor was rumored to be the first choice to fill the Supreme Court vacancy left by Scalia's death. So for those who are troubled by Neil Gorsuch, be thankful Trump bypassed Pryor. In the Trump Administration, bad is the new good, and horrible is the new bad. Let's keep things in perspective.





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, March 11, 2017

In the Trump Administration, No Man-Made Climate Change But Long Live Cold Fusion

Hot Fusion
As you may have heard, concerned citizens have been flooding the Environmental Protection Agency with non-stop calls denouncing Administrator Scott Pruitt's rejection of climate change science. Fear no more, I think I have a solution, which lies in harnessing the insights of science skeptics.

Back in 2000, the EEOC issued a notorious decision regarding the Patent Office's termination of an employee allegedly for believing in cold fusion. Cold fusion is a purported means of generating energy through nuclear fusion at room temperature rather than at the millions of degrees normally required in the core of a star. The EEOC concluded that terminating an employee based on his cold fusion beliefs was possibly unlawful religious discrimination:

[C]omplainant argues that "[d]iscrimination against a person on account of his beliefs is the essence of discrimination on the basis of religion…." Therefore, complainant contends, his beliefs in cold fusion are protected.
. . .
"In determining which beliefs are protected under Title VII, the Supreme Court has held that the test is whether the belief professed by a complainant is sincerely held and whether it is, in his own scheme of things, religious." Moreover, in defining religious beliefs, our guidelines note that "the fact that no religious group espouses such beliefs … Will not determine whether the belief is a religious belief of the employee…."
In the instant case, complainant argues that his unconventional beliefs about cold fusion and other technologies should be viewed as a religion and therefore protected. Complainant claims he was terminated and denied the opportunity to be rehired because of religion, which embodies his cold fusion beliefs. Therefore, under the applicable law noted above, we find that the agency improperly dismissed complainant's claim of discrimination for failure to state a claim.
Now, I don't deny that unconventional beliefs can be "religious," but a belief is not religious merely because it is unconventional. Rather, it may be religious despite its being unconventional. But the initial question is whether a belief is religious, and the EEOC failed to answer that question. 

Such reasoning -- or lack thereof -- would ordinarily have been grounds for criticism. But no more. The EEOC's paean to unscience was prescient in anticipating a world in which climate change is not caused by humans and autism is caused by vaccines. A world of alternative facts in which all beliefs have equal validity.


We humans may not have caused climate change, but we can fix it. With cold fusion. And a few perpetual motion machines. So move over scientists, it's time for mystics, astrologers, and witch doctors to have their chance to shine.






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, March 1, 2017

Will Gloucester County School Board v. G.G. be the next Bowers v. Hardwick?

Not surprisingly, as reported on Scotusblog.com, the parties in Gloucester County School Board v. G.G. have not been deterred by the Trump administration's rescission of guidance addressing transgender bathroom access and have urged the Supreme Court to decide whether Title IX of the Education Amendments Act of 1972 requires the defendant to allow Gavin Grimm, a transgender boy, to use the boys' bathroom at his school.

Only a few days ago, I wrote this detailed post explaining the fundamental flaws in the arguments advanced on behalf of Grimm. Briefly, Grimm's counsel assumes the answer to the central question in this case: Is Grimm a boy or a girl when it comes to using the bathroom? The argument advanced by Grimm's counsel is, essentially, that Grimm gets to use the boys' bathroom because he's a boy. This is the fallacy of "begging the question," a form of circular reasoning.

Today, as advocates ask the Supreme Court to take up the newest issue of LGBT rights, the Court has a 4-4 conservative-liberal split, with one of the conservatives (Anthony Kennedy) siding with liberals in some significant cases. Grimm's counsel is urging the Court to proceed with the current schedule with oral arguments on March 28. If that schedule is kept, the case would be heard by an 8-member Court because confirmation hearings for Judge Neil Gorsuch do not begin until March 20. The defendant, on the other hand, has asked the Court to delay the case so that the Trump administration can provide its views, and presumably, so that Gorsuch is more likely to be on the Court by the time the case is heard.

The Grimm case must be placed in historical context.

In 1986, in a 5-4 decision in Bowers v. Hardwick, the Supreme Court upheld the constitutionality of a Georgia law that authorized a prison sentence of up to 20 years for a single act of sex between two consenting adults of the same sex, even in the privacy of a home. It took 17 years for that decision to be overturned in Lawrence v. Texas, in which Justice Kennedy wrote: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." 

In 2015, in Obergefell v. Hodges, Kennedy again pulled through for LGBT advocates in recognizing a constitutional right to same-sex marriage. Although Obergefell was a landmark decision in the struggle for LGBT equality, it was hardly groundbreaking. When it was issued, numerous courts had already recognized a right to same-sex marriage. And still, advocates did no better than a 5-4 victory at the Supreme Court.

The Court is historically a conservative institution. It tends not to lead the way when it comes to social progress. In contrast to when the Court took up the issue of same-sex marriage, there is almost no case law favoring transgender bathroom access. If the Court were to rule in Grimm's favor, it would truly be groundbreaking.

The hope may be that Kennedy will once again pull through for LGBT advocates. In contrast to Lawrence and Obergefell, however, the Grimm case does not require the Court to interpret the Constitution, which speaks in terms of broad principles of equality, justice, and human dignity, but rather to interpret specific statutory language proscribing certain forms of discrimination. And not to beat a dead horse, but advocates have not even provided a sound legal argument for ruling in favor of transgender bathroom access. 

Sure, the Grimm case may turn out to be the transgender equivalent of Brown v. Board of Education. But by almost every objective measure, it is much more likely to be the transgender equivalent of Bowers v. Hardwick








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, February 26, 2017

Transgender Bathroom Access: Why LGBT Advocates Would Do Well to Go Back to the Drawing Board (Addendum 2/28/17 discussing G.G. brief)

Although LGBT advocates have roundly criticized a recent Trump administration Dear Colleague Letter for backtracking on the issue of transgender bathroom access, the administration was justified in faulting the rescinded guidance for lacking "extensive legal analysis" and for failing to explain how the guidance is "consistent with the express language of Title IX." I don't dispute that those favoring transgender bathroom access have the moral high ground, but sometimes it is not enough for the force to be with you. You also need a sound legal argument.

Unfortunately, rather than being deterred by the rescission of the guidance, the parties appear to be proceeding full steam ahead in Gloucester County School Board v. G.G., in which a transgender boy, Gavin Grimm, is seeking access to the boys' bathroom at his high school. As discussed below, the legal analysis in the rescinded guidance -- a Department of Education opinion letter dated January 7, 2015, and an Obama administration Dear Colleague Letter dated May 13, 2016 -- is deeply flawed. Because the rescinded guidance tracks the analysis adopted by counsel for Grimm and by LGBT advocates, I think advocates would do well to use this opportunity to go back to the drawing board.


Sunday, February 19, 2017

The Curious Case of the Racist Bisexual Harasser

Imagine that Jane is sexually harassed by her bisexual supervisor, John. He threatens to fire her if she does not have sex with him. Has Jane been subjected to discrimination because she is female? The answer is no, because John is bisexual, and he therefore might have targeted Jane's male coworker with sexual advances. Thus, in Holman v. Indiana, the Seventh Circuit affirmed the dismissal of a sexual harassment claim filed by a married couple who alleged that their joint supervisor directed sexual proposals at both of them.

But suppose that John, though bisexual, is only sexually attracted to African Americans, and he propositioned Jane, in part, because she is African American. Meet the racist bisexual harasser. His conduct does not discriminate based on sex, but it does discriminate based on race.

Friday, February 17, 2017

The State Secrets Doctrine: The "Unfortunate Burden" Borne on "Behalf of the Entire Country"

As you might have guessed, the state secrets doctrine protects against the disclosure of state secrets -- "military matters which, in the interest of national security, should not be divulged." In Abilt v. Central Intelligence Agency, No. 15-2568 (4th Cir. Feb. 8, 2017), that doctrine was the undoing of covert agent Jacob Abilt -- not his real name -- who alleged that the CIA unlawfully discriminated against him based on his disability, including by canceling his assignment to a warzone.