Friday, April 19, 2019

Sex Discrimination & LGBT Discrimination: When are they the same? (Updated 4/22/19)

On Wednesday, the Eighth Circuit heard oral arguments in Horton v. Midwest Geriatric Management, yet another case addressing whether sexual orientation discrimination is a form of sex discrimination prohibited by current EEO law. With the Supreme Court's having also decided take up this issue, I thought I'd make a few observations.
  • "Sex" is whether you're male or female: The standard legal argument advanced by advocates and the EEOC does not contend that a person's sexual orientation is his "sex." Rather, treating someone differently based on his sexual orientation necessarily entails treating him differently based on his sex (male). To illustrate: if you fire a man who is sexually attracted to men, but not a woman who is sexually attracted to men, then you are treating the former worse for being male.
  • Not all forms of sexual orientation discrimination are sex discrimination: The standard legal argument only gets you so far. Sexual orientation discrimination is not sex discrimination at the macro level. For example, if a policy disproportionately excludes women compared with men, that could constitute unlawful sex discrimination even if the employer did not intend to discriminate. However, if a policy disproportionately excludes gay men and lesbians compared with heterosexual men and women, that would not constitute sex discrimination because members of one sex are not being treated better than members of the other sex.
  • No one can explain why single-sex bathrooms aren't unlawful: The standard argument is difficult to reconcile with sex-specific dress codes and facilities.  Since no one seems up to questioning these practices, the challenge is to explain why it is unlawful not to hire a gay man for being gay, but it is still lawful to allow women, but not men, to wear make-up. Until this issue was raised by the Trump administration, it was essentially ignored. One response is that sex-specific facilities and dress codes do not really treat men worse than women or vice versa, even though they treat the sexes differently.  In other words, separate but equal is ok. This is the approach of the Second Circuit in Zarda. In the context of sexual orientation discrimination, that's well and good, but we see the problem when we consider gender identity. If it's ok to prohibit men but not women from wearing make-up, then why is it not ok to prohibit a transgender woman from wearing make-up? In Harris Funeral Homes, the Sixth Circuit recognized the problem with the separate-but-equal approach and refused to adopt it, yet the court said it was ducking the question of sex-specific dress codes. That just can be. If it's unlawful sex discrimination to prohibit a transgender woman from wearing make-up, then it must follow that it is unlawful to prohibit a non-transgender man from wearing make-up. No one has come up with a satisfactory resolution, but so far, courts have played along.
  • Transgender bathroom access is out of reach: If it's lawful to require men and women to use separate bathrooms, is it nonetheless unlawful to require a transgender woman to use the men's room, at least while she still has male genitalia? In Whitaker, the Seventh Circuit thought so, but only because it assumed that gender identity equals sex. As discussed already, the standard argument that sexual orientation or gender identity discrimination is covered as sex discrimination does not interpret the term "sex" to mean anything other than male or female. If a transgender woman is denied access to the women's bathroom, however, she is treated differently from a non-transgender woman, so the discrimination is not based on her status as female. If this is a form of "sex" discrimination, that must be because an individual's gender identity is her sex. 
Ultimately, the Supreme Court will have to decide to what extent sexual orientation or gender identity discrimination constitutes "sex" discrimination. To stand any chance of prevailing, LGBT advocates will have to devise a more coherent legal framework. 

Update: On Monday, April 22, 2019, the Supreme Court agreed to decide whether Title VII prohibits sexual orientation discrimination or gender identity discrimination.  The gender identity case is EEOC v. Harris Funeral Homes. My recent post about that decision is here. The sexual orientation cases are Bostock v. Clayton County Board of Commissioners and Zarda v. Altitude Express.  My most recent post about Zarda is here. There's a good chance we won't see decisions until the end of next June, which will be perfect timing for the decisions to be a major issue in the 2020 presidential campaign.

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, March 31, 2019

Equal Pay Day 2019: A Contrary View

Dena & Darin are paid the same wages
in cat food for keeping the bed warm.
April 2, 2019, marks "Equal Pay Day," intended according to the National Committee on Pay Equity to symbolize "how far into the year women must work to earn what men earned in the previous year." Unfortunately, this milestone is grounded in a fundamental misperception or perhaps even deliberate misrepresentation -- that it accurately reflects the sex-based disparity between men's and women's pay. As explained by Claudia Goldin, a leading expert on the pay gap, most of the difference is attributable to nondiscriminatory factors, such as the choice of many women to enter professions that pay less but provide more temporal flexibility.

Last week, the House of Representatives passed the Paycheck Fairness Act, which would amend the Equal Pay Act. The bill stands almost no chance of passing the Senate and becoming law in the foreseeable future. The EPA applies to workers of the opposite sex performing the same job in the same establishment. An employer cannot pay such workers different wages unless it can show that the wage disparity is based on a factor other than sex. The Paycheck Fairness Act would, among other things, limit the circumstances under which an employer could justify a wage disparity between opposite-sex workers. An employer could no longer defend itself merely by showing that it did not discriminate against a worker because of sex and would have to show it was necessary to pay one worker more than another.

The pay gap between men and women has been highlighted recently by the lawsuit of women soccer players against the U.S. Soccer Federation. In my view, the EPA likely does not apply to such a claim of sex-based pay discrimination since the law is limited to employees who work in the same "establishment." Generally, an establishment refers to a distinct physical place of business. It can sometimes be applied more broadly. But in this case, that doesn't seem appropriate. Male and female soccer players don't compete alongside or against one another, and instead compete on separate single-sex teams. Comparing male and female soccer players is like comparing minor league and major league baseball players. 

Women soccer players have also alleged sex discrimination under Title VII of the Civil Rights Act of 1964, which is not limited to employees within the same establishment. Unlike the EPA, however, a Title VII claim generally requires evidence of discriminatory intent, and that can be hard to muster. Still, the women soccer players' pay discrimination claim may largely be tried in the court of public opinion, so appearances of fairness are what may matter most, not whether women soccer players are actually victims of sex discrimination.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Sunday, March 24, 2019

Lewis v. City of Union City: Raising the Bar for Discrimination Plaintiffs

In Lewis v. City of Union City, No. 15-11362 (Mar. 21, 2019) (en banc), the Eleventh Circuit has adopted a new legal standard that will likely make it much more difficult for plaintiffs to prevail in intentional discrimination cases under Title VII of the Civil Rights Act of 1964 and other EEO laws. In the view of the Eleventh Circuit, absent direct evidence, a plaintiff establishes a prima facie case of discrimination only by presenting evidence that the employer treated her worse than others outside her protected class who are similar to her in all material respects. By making the plaintiff identify from the get-go someone who is similar to her in all material respects, the plaintiff will effectively have to eliminate any good reason for treating her less favorably. In other words, she'll have to prove a negative.

The Eleventh Circuit's decision is an interpretation of the Supreme Court's 1973 decision in McDonnell Douglas v. Green, the most important decision in all of EEO law. In 1999, the Eleventh Circuit noted in Wright v. Southland Corp. that the McDonnell Douglas decision was intended to make it somewhat easier for a plaintiff alleging discrimination to prevail without having to rely solely on the "traditional" framework for establishing causation. Thus, in McDonnell Douglas, the Supreme Court held that a plaintiff can establish a prima facie case, or presumption, of discrimination. In Lewis, the Eleventh Circuit has eliminated any advantage that a plaintiff might have in relying on McDonnell Douglas, by making it much harder for a plaintiff to establish a presumption of discrimination.

Given how out of step the Lewis decision is, it may not be long for this world. Still, the Eleventh Circuit may not be alone in perceiving McDonnell Douglas as an unjustified boon to plaintiffs. Justice Gorsuch has argued that the framework it established should be abandoned. So even if the Eleventh Circuit got it wrong, some Justices may at least think that it was on the right track.

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, December 1, 2018

My Childhood Dream of Becoming Fed Chair Has Been Dashed

To my dismay, I learned recently that I'm unqualified to be the next chief of the Fed. No, it's not my lack of any background in economic policy. Rather, at 5-foot-3, I'm simply too short. Janet Yellen, who is the same height as me, apparently suffered the same fate when President Donald Trump deemed her too short to head up the Fed. While we don't know exactly how tall you do have to be, we do know that Jerome Powell's approximate six-foot stature was enough. So, boys and girls, eat your Wheaties, and your dream of one day having the ability to send stocks soaring or diving with only a few inscrutable words may come true.

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.

Illinois Expands Equal Pay Protections -- But Only for "African-American" Employees

Earlier this week, the Illinois legislature overrode Republican Governor Bruce Rauner's veto, thereby expanding the state's equal pay legislation to prohibit pay discrimination against African-American employees. The reason for Rauner's veto? The bill didn't go far enough. As explained in Rauner's veto statement:
The intent of this legislation is to put into place enhanced statutory mandates which would hold employers that engage in unlawful pay and wage practices against African-Americans accountable. However, wage discrimination is not limited to African-Americans, and other racial and ethnic groups are suffering similar harms in their employment. They, too, are subject to unequal compensation and salaries and are equally deserving of relief. I would be remiss if I did not extend the substantial benefits granted African-Americans under this bill to all racial and ethnic protected classes.
Thus, Rauner stated that he would approve of legislation prohibiting wage discrimination based on "race, color, national origin, or ancestry."

Despite the Illinois legislators' presumably good intentions, Governor Rauner's concerns have merit. The wage gap between the baseline of white men and other protected groups is often cited as the basis for equal pay legislation, but African-American men earn more than Hispanic men. By that measure, legislators should be more concerned about wage discrimination against Hispanics. And even if discrimination against white men is relatively uncommon, legislators generally recognize that race and sex should be neutral factors, so discrimination against white men should be no less unlawful than discrimination against African Americans.

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, July 26, 2018

TallBear v. Perry: Are Redskins fans racially harassing their Native American coworkers?

A few years ago, the name of the Washington, D.C. professional football team, the "Redskins," became the subject of a national controversy, and President Obama even entered the fray by urging that the team's name be changed. Things take a while to work their way through the court system, but now we finally have a case where someone has brought an EEO claim based on the use of the name. In TallBear v. Perry, No. 17-0025 (DLF) (D.D.C. July 24, 2018), Jody TallBear alleged that she was subjected to unlawful racial harassment by her repeated exposure to the Redskins name and logo. Rejected the claim, Federal District Court Judge Dabney Friedrich accepted at "face value TallBear's claim that the use of the Redskins name is deeply hurtful to her," but concluded that EEO law "does not require the country's employers to stand aggressively on one side of [a] public debate by banning employees from referring to their local professional football team by name in the workplace." Friedrich further noted that a reasonable person would not conclude that the coworkers were using the term as a racial slur, and while the term may offend some individuals, it continued to be commonly used to refer to the Washington football team.

In my view, Judge Friedrich reached the right conclusion. The question is whether a reasonable person would perceive the conduct as racially hostile, and key to this determination is social context. In other words, it is not enough that the complainant have personally been offended. Her offense must have been reasonable. Moreover, the conduct must have been serious or frequent enough that it made it more difficult for her to do her job. Importantly, this is judged from the perspective of a reasonable person in the complainant's shoes, which means a reasonable person of the same race. 

Although the intent of coworkers in using a term is relevant, it is not dispositive. For instance, if a white worker jokingly uses the n-word, that might mean that the term is less offensive, but it's still a racial slur. The term "redskins," however, clearly does not fall into the same category as the n-word. Tellingly, in the midst of the debate about the Redskins' name two years ago, the Washington Post conducted a poll, which revealed that 90% of Native Americans are not bothered by the Washington Redskins' team name. So unlike the n-word or the c-word, it seems unlikely that the r-word can reasonably be considered offensive on its face -- at least, for now. In 10 or 20 years, though, who knows?

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, July 25, 2018

Ayissi-Etoh v. Fannie Mae: Judge Kavanaugh on the N-word

In the questionnaire that Judge Brett Kavanaugh completed for his nomination to the Supreme Court, he identified the EEO case of Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013), as one of the ten most significant cases in which he participated. In this racial harassment case, Placide Ayissi-Etoh alleged that a company executive subjected him to unlawful racial harassment, which included calling him the n-word. The lower court concluded that the alleged conduct was not enough for Ayissi-Etoh to have reasonably perceived his work environment as hostile. The three-judge panel unananimously reversed. And Kavanaugh wrote a separate concurrence to emphasize that even a single occurrence in which someone is called the n-word can result in unlawful racial discrimination.  He explained that "[n]o other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans."

Kavanaugh's selection of this case as one of the most significant of his career is an interesting choice. This case breaks no legal ground, and Kavanaugh's concurrence merely underscores a point raised in the main opinion, which he also joined. Kavanaugh nonetheless felt compelled to write separately to discuss the historical and social context in which discrimination claims must be evaluated. As I noted in a prior post, Kavanaugh's concurrence in Ayissi-Etoh is particularly notable in the #MeToo era. Kavanaugh may not always agree with the legal arguments advanced by litigants, but he is able to empathize and place himself in someone else's shoes -- which just may be the most important qualification to serve on the Supreme Court.

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.