Thursday, August 31, 2017

Why I Feel Sorry for Ivanka Trump

On August 29, 2017, the Office of Management and Budget ordered the EEOC to suspend its plans to require employers to report pay data, and Ivanka Trump seems to be getting all the blame. She issued a public statement endorsing the OMB's move and ever since has essentially been painted as a traitor to her sex (see, for example, here and here). I don't usually feel sorry for any member of the Trump family, but here, I think Ivanka Trump is being treated unfairly.

Forcing employers to fork over pay data may conceivably make some contribution toward rooting out pay discrimination, but as with any government regulation, the burdens imposed on employers have to be weighed against their potential benefits.

Under the EEOC's pay data proposal, employers with at least 100 employees would be required to report aggregate pay data by sex, race, and ethnicity for each of 10 broad job categories, including "professionals," "craft workers," and "service workers." By contrast, the Equal Pay Act, which is the leading federal statute prohibiting sex-based wage discrimination, requires precise comparisons between workers performing the same job. It's not clear what relevance, if any, statistical evidence about aggregate pay differences between workers who merely perform jobs within the same broad job category will have for determining whether particular workers doing the same job are paid differently because of sex.

The EEOC's pay data proposal also would require employers to report pay based on W-2 income rather than base pay. As noted by the EEOC, pay discrimination may not be limited to the base pay rate at which employers pay workers in different protected groups but also may arise with respect to supplemental pay, such as overtime, shift differentials, and bonuses. As examples, the EEOC points out that higher commission income may reflect higher performance, but it also may reflect discriminatory assignments based on race, ethnicity, or sex; similarly, differences in overtime pay may reflect discriminatory overtime assignments based on sex-based stereotypes about family responsibilities. To be sure, differences in supplemental pay may be the product of discrimination, but if that is the exception, then the mere existence of such differences may provide little evidence of underlying discrimination in a particular case. The EEOC has severely limited resources and can't afford to expend them following up on every scintilla of evidence of discrimination. The limited value of the pay data that would be provided under the EEOC's proposal may be little better than taking a shot in the dark.

So is it possible to be against the EEOC's pay data proposal but still against sex-based wage discrimination? Of course it is.

Like Ivanka Trump, the current Acting Chair of the EEOC, Victoria Lipnic, is on record as opposing the EEOC's pay data proposal, based on the burden it would impose on employers and the limited utility of the data. Lipnic is widely respected by both employers and employee rights advocates, being seen as a consensus builder. Lipnic has worked closely with Democratic Commissioners, including with Commissioner Chai Feldblum on the Select Task Force on Harassment. Notably, however, the EEOC adopted its pay data proposal by a 3-2 vote, without support from Lipnic or any other Republican. Despite OMB's halt of the pay data proposal, Lipnic has reaffirmed the EEOC's commitment to combating pay discrimination. And I think few question her sincerity.

Unlike Lipnic, Ivanka Trump may still have to earn the trust and respect of equal pay advocates. Nevertheless, she shouldn't be faulted for taking a perfectly reasonable position. Until then, I will continue to feel sorry for Ivanka Trump.

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, August 30, 2017

Rizo v. Yovino: En Banc Rehearing Granted

The full Ninth Circuit Court of Appeals has agreed to rehear the case of Rizo v. Yovino, which presents the issue of whether prior salary standing alone can ever be a factor other than sex justifying a pay discrepancy under the Equal Pay Act. While I acknowledge that there may be reasonable arguments that prior salary -- because it may be tainted by sex discrimination -- cannot be a sufficient basis standing alone to defend against an EPA claim., I can only lament the fact that no one in this case has noticed that the plaintiff's salary was not based solely on her prior salary. The defendant set the plaintiff's starting salary at the low end of a predetermined range. Had the plaintiff's salary been based solely on her prior salary, she would have made far less. So the plaintiff's salary was based in part on her prior salary, but it was also based in part on the defendant's determination of an appropriate salary range for the plaintiff's position. Whether prior salary alone can be a defense to an EPA claim may very well be an important question but this case is not an appropriate vehicle for answering it.

For more, see my prior posts here and here

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, August 25, 2017

Edwards v. Nicolai: Is firing someone for being "too cute" unlawful sex discrimination?

In Edwards v. Nicolai, a New York state appeals court held that Dilek Edwards stated a sex discrimination claim under the New York City Human Rights Law and the New York State Human Rights Law based on her allegation that she was fired by Wall Street Chiropractic and Wellness because one of the co-owners, Stephanie Adams, believed that the other co-owner, her husband Charles Nicolai, was sexually attracted to Edwards. In reaching this conclusion, the court distinguished other cases involving admitted consensual affairs. In those cases, other courts had rejected employees' claims because their terminations were based on their own behavior. Here, by contrast, the plaintiff had not acted inappropriately, and she was fired based merely based on the perception that Nicolai was attracted to her.

On its face, the Edwards court's reasoning seems to make sense, but upon further consideration, this case is hard to distinguish from those previously rejected by other courts. As noted in Edwards, other courts have rejected claims in which a termination was based on spousal jealousy where there was an admitted consensual affair. In Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902 (11th Cir. 1990), the court clearly thought it irrelevant, however, whether the fired employee had actually engaged in an affair. The appeals court stated that the district court had "wisely refrained from attempting to reach any definitive factual conclusion as to whether [the] affair was real." Rather, the mere perception that the employee was engaging in an affair rendered her termination outside the bounds of EEO law. As reflected in Platner, what matters is the motive of the allegedly biased individual. Whether that individual was correct does not affect whether he was motivated by discriminatory bias.

In Edwards, it doesn't appear that the plaintiff was fired because she was perceived to have been engaged in an affair. But if it's not unlawful to fire someone because she is believed to be engaging in an affair, it would seem to follow that it's also ok to fire someone because of the concern that she might become engaged in an affair in the future.

The real problem here is that the spousal jealousy line of cases may not be legally sound.

It is settled that if an employee is denied a job benefit because she rejects sexual advances, the denial was based on her sex. As explained by the Supreme Court in Oncale v. Sundowner Offshore Services, if a male supervisor makes sexual advances toward a female subordinate, it is reasonable to assume that the advances would not have been made to someone of the same sex, and were therefore motivated by the subordinate's sex. Since the supervisor's motivation in making the sexual advances is what matters, it follows: (1) if an employee is denied a job benefit because she submits to sexual advances, the employee was denied the benefit because of her sex; (2) if an employee is granted a job benefit because she submits to sexual advances, the employee has received a benefit because of her sex.

Based on (1) above, it follows that the spousal jealousy cases have been wrongly decided. If a supervisor has engaged in a sexual affair with another employee, he has done so, in part, because of the employee's sex. Any adverse action based on the affair would likewise be based on the employee's sex.

Based on (2) above, it also appears that courts have mistakenly rejected claims in which employees have complained when coworkers have received benefits as a result of sexual favoritism.  Where an employee is granted a job benefit, such as a promotion, because she is engaged in a consensual sexual affair with a supervisor, courts have uniformly held that other employees denied the same benefit have not been subjected to sex discrimination, reasoning that sexual favoritism disadvantages men and women alike. But this conclusion seems mistaken. If, for example, a male supervisor grants a promotion to a female subordinate because she is having a sexual affair with him and the supervisor would not have engaged in a sexual affair with another man, then the female subordinate has been treated favorably because of her sex. And qualified male employees who were denied the promotion have been treated unfavorably because of their sex.

So in the end, I see little reason for treating spousal jealousy cases differently depending on whether the plaintiff engaged in a sexual affair, but there's the more fundamental problem as to whether the spousal jealousy line of cases -- as well as sexual favoritism cases -- are legally sound.

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, August 17, 2017

White v. Office of the Cook County Public Defender: Can you establish disparate impact without an expert?

In White v. Office of the Cook County Public Defender, No. 14-cv-7215 (N.D. Ill. Aug. 14, 2017), Federal District Court Judge John Blakely rejected the disparate impact claim of Patrick White on the grounds that he failed to establish a prima facie case of disparate impact. Given the disparities between the rates at which men and women were promoted and the number of individuals involved, I think White should have been able to proceed with his claim.

White alleged that the process for promotion to Grade IV Assistant Public Defender, which was based on interview scores assigned by a board composed of three women, had a disparate impact on men. There were 15 positions available for immediate promotion, and the board interviewed 18 minimally qualified male applicants and 18 minimally qualified female applicants. The 15 positions were awarded to 11 women and 4 men. The board identified 4 additional applicants -- two men and two women -- for future promotions when more slots became available.

No matter how you slice it, these figures seem sufficient to establish a prima facie disparate impact claim. Judge Blakely rejected White's claim based on the "exceedingly small sample size." The sample size, however, was not that small, and the disparity in the promotions rates between men and women were large. Here, the board selected 13 out of 18 women for immediate or future promotion, but it selected only 6 out of 18 men. The promotion rate for men (.33) was less than half that for women (.72). It is true that such a disparity in promotion rates might not have been sufficiently probative if there had been significantly fewer applicants or selectees. Similarly, if the two-to-one disparity had been less extreme, then, absent a larger sample size, the plaintiff's evidence might not have established a prima facie case of disparate impact.

Although Judge Blakely faults White for failing to submit expert evidence, he also notes that there is no formal requirement that he do so. A simple Google search reveals multiple sources that provide tests for evaluating whether a disparity is statistically significant, meaning whether it is unlikely to arise by chance. A particularly easy test to apply is the chi-squared test (see, for example, here and here), which is endorsed by the EEOC's Compliance Manual Section on Compensation Discrimination. If the test reveals the likelihood of a disparity arising by chance to be less than 5%, the EEOC and most courts consider that sufficient to establish a prima facie case of disparate impact.

In this case, you could compare only the men and women selected for immediate promotion or you could compare the men and women selected for either immediate or future promotion. The first comparison reveals that the probability of the disparity is only .018, and the second comparison reveals a probability of only .019, both of which are well below the threshold of .05. Given the absence of any formal requirement that a plaintiff present expert evidence in order to establish a prima facie case of disparate impact and the simplicity of evaluating the statistical evidence in this case, I would think this one of those cases where expert evidence is not needed.

On the other hand, White may have been required to do more than merely present evidence of statistical disparities. Even if he was not required to submit expert evidence, he may have been required to have at least explained the application of the chi-squared test or some other statistical tool for establishing a prima facie case based on his statistical evidence. It is not apparent that White did so. What we're left with then is the rejection of a disparate impact claim that probably should not have been rejected -- at least on the grounds that there was no prima facie case -- but it's not clear who's to blame.

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, August 15, 2017

Ortiz-Diaz v. v. HUD: Does Title VII only apply to materially adverse actions?

On August 11, 2017, a panel of the D.C. Circuit reissued its decision in Ortiz-Diaz v. HUD. Previously, the panel had rejected Samuel Ortiz-Diaz's claim that he was subjected to an adverse action based on his race and national origin when he was denied a lateral transfer, reasoning that an employer's action is not materially adverse unless supported by a record of "objectively tangible harm" and that "purely subjective injuries" are not enough. 

As I discussed in this prior post, I believe the court's refusal to consider subjective injuries is inconsistent with the Supreme Court's decision in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). Because the transfers Ortiz-Diaz requested would have moved his duty station closer to his wife's, I think the court should have taken that into consideration in determining whether it was reasonable for him to have viewed the transfer denials as adverse.

In the reissued decision, as in the original, the panel did not consider subjective injuries, but it nonetheless concluded that Ortiz-Diaz had alleged that the transfer denials were materially adverse. The court explained that Ortiz-Diaz had alleged and presented evidence that he was denied a transfer away from a racially biased supervisor and that a lateral transfer away from the supervisor would have improved his career prospects.

What is most interesting about the new decision is the court's strong disapproval of the D.C. Circuit requirement that a plaintiff establish material adversity. Each of the panel members filed a separate concurrence arguing that a lateral transfer should be considered per se actionable, regardless of whether it is materially adverse. Specifically, Judge Judith Rogers contended that the D.C. Circuit should recognize that any transfer denied because of race or another protected characteristic is covered by Title VII; Judge Brett Kavanaugh contended that transferring an employee because of race "plainly constitutes discrimination with respect to 'compensation, terms, conditions, or privileges of employment'" under section 703(a)(1) of Title VII; and finally Judge Karen Lecraft Henderson contended that the defendant's transfer program could qualify as a "privilege" of Ortiz-Diaz's employment.

The thing is, the rejection of a materiality requirement would be inconsistent with the Supreme Court's decision in Burlington Northern. There, the Court explained that Title VII's retaliation provision is limited to "materially adverse actions":
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace."
The requirement of material adversity would apply no less to someone alleging discrimination based on race (or color, sex, religion, or national origin) than it would to someone alleging retaliation. Indeed, if there is a difference, then coverage is broader as to retaliation claims, not the reverse.

Although the concurrences in Ortiz-Diaz would have you believe that the D.C. Circuit's requirement of material adversity is an outlier position, that is not at all the case. So far as I know, this is the position of every court of appeals. Given the substantial body of case law requiring material adversity, including at the Supreme Court level, any hope that the materiality requirement will be abolished seems little more than a pipe dream.

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, August 12, 2017

Shultz v. Congregation Shearith Israel of NYC, Spanish & Portugese Synagogue: Can an employee sue for discriminatory termination if the employer rescinds the action before it is effective?

In Shultz v. Congregation Shearith Israel of NYC, Spanish & Portugese Synagogue, No. 16-3140-cv (Aug. 10, 2017), the Second Circuit held that Alana Shultz could pursue her claim that she was fired because of her pregnancy, even though the defendant rescinded the termination decision before it became effective.

The Second Circuit's decision is grounded in Supreme Court precedent addressing when an employee's termination claim accrues (or arises) and triggers the filing period for bringing a claim. 
Pursuant to that precedent, an employee's termination claim accrues when she is notified of the termination, even if the termination is effective at a later date. This means that the time frame for challenging the termination starts when the employee receives notice. In some cases, the time frame could even expire before the termination is effective.

Because an employee's termination claim accrues when she receives notice, the Second Circuit disagreed with the lower court's conclusion that a rescinded termination decision does not constitute an adverse action:
If the claim accrues at the time of notification of termination, . . . rescission of the notice at a point after the cause of action has accrued cannot eliminate the adverse employment action that has already occurred, and negate an accrued claim for relief. Accordingly, we conclude that the notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination.
Significantly, however, the court noted that the good-faith rescission of a termination decision can affect the damages that a claimant might be entitled to. In this case, despite the rescission of the termination decision, Shultz did not return to work after the original date of her termination. She contended that the defendant's offer of reinstatement was "not a bona fide offer of unconditional reinstatement." Because there was a dispute as to whether the employer's rescission was in good faith, a fact finder would have to determine whether Shultz acted reasonably in rejecting the defendant's offer to reinstate her.

In closing, the court noted some potential limits of its holding. The court noted, for instance, that in some cases the time between a notice of termination and its rescission could be so short that the termination would be de minimis. As an example, the court noted that an impulsive "You're fired" followed by an immediate revocation would present different circumstances from the ones in this case. Here, the defendant did not rescind the termination for two weeks, during which Shultz "had ample time to experience the dislocation of losing her employment at a particularly vulnerable time, undertake the effort of retaining counsel, and inform the Congregation that she was going to file suit."

While this distinction makes sense to me, I'm a little surprised that the court also appears to have limited its holding to rescinded terminations. It is true that a termination may impose more harm than other adverse actions, and therefore, it might be easier to establish an adverse action with respect to a rescinded termination than with respect to another kind of rescinded adverse action. Still, the court seems to have gone further, viewing the distinction between terminations and other adverse actions as one of kind rather than merely degree: 
A notice of termination is unlike other types of actions that an employer may take towards an employee in that it announces the complete termination of the employment relationship. To put it mildly, "[e]ven under the most optimal circumstances ․ termination of an employee is likely to give rise to bad feelings and anxiety."
To illustrate, the court points out that it has held that a rescinded counseling letter does not constitute an adverse action. But the court fails to acknowledge that a counseling letter very well might not constitute an adverse action even if it is not rescinded. So while a termination decision might be distinguishable from a counseling letter, there's less reason to distinguish it from other employment decisions that are clearly materially adverse, such as demotion, failure to promote, or denial of a pay raise. If someone has to hire an attorney and threaten to sue, I don't see why it should generally matter what kind of an adverse action is involved.

A final observation I have is that the court's holding may not apply to the federal sector. Federal employees are covered by regulations adopted by the EEOC, which provide that the time frame for challenging a personnel action, such as a termination, starts when the personnel action is effective. Thus, contrary to in the private sector, a federal sector claim appears not to accrue until the challenged action's effective date. If that is so, then based on the reasoning in Schultz, it would seem to follow that a federal sector action that is withdrawn before its effective date is not an adverse action.

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, August 8, 2017

Cooper Tire & Rubber Co. v. NLRB: The NLRA Takes on Title VII and May the Best (Better) Statute Win

In Cooper Tire & Rubber Co. v. NLRB, 16-2721 (Aug. 8, 2017), the Eighth Circuit upheld a decision by the NLRB that Cooper Tire violated the National Labor Relations Act by firing an employee for making racist statements while on the picket line. This case has received a lot of attention because it has been seen by some as pitting an employer's competing obligations under Title VII of the Civil Rights Act of 1964 against its obligations under the NLRA. As discussed below, even though the court upheld the Board's decision in this case, it cautioned the Board not to go too far.

Cooper Tire fired Anthony Runion for statements he allegedly made while on the picket line. On January 7, 2012, he allegedly yelled, "Hey, did you bring enough KFC for everybody?" and "Hey anybody smell that? I smell fried chicken and watermelon." He directed the comments at a van carrying replacement workers as it crossed the picket line. When he made the statements, Runion's hands were in his pockets, and he made no overt physical movements or gestures. Although other picketers heard the statements, there was no evidence that the replacement workers heard them. The next month, when Cooper Tire began recalling workers who had been on strike, it fired Runion for the picket line statements.

The court explained that firing an employee for picket line misconduct is an unfair labor practice in violation of the NLRA unless the alleged misconduct "may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Substantial evidence supported the Board's conclusion that Runion's statements were "not violent in character, and they did not contain any overt or implied threats to replacement workers or their property." Runion also did not engage in threatening or intimidating conduct toward the replacement workers. Thus, the court deferred to the Board's determination that Cooper Tire violated the NLRA by firing Runion.

Although the court upheld the Board's determination, it "agree[d]" with a concurrence in a D.C. Circuit decision that suggested that the Board should be careful not to cross the line:
We have cautioned the Board before against assuming that the use of abusive language, vulgar expletives, and racial epithets between employees is part and parcel of the vigorous exchange that often accompanies labor relations. . . . [T]he Board's decisions seem in too many cases . . . oblivious to the dark history such words and actions have had in the workplace (and elsewhere). . . . To be sure, employees' exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But Board decisions' repeated forbearance of . . . racially degrading conduct in service of that admirable goal goes too far.
For whatever reason, the court apparently concluded that the Board had not crossed the line in this case, but the court opened the door to the possibility that it might reject Board decisions protecting other forms of racist conduct. 

As for Cooper Tire's obligations under Title VII, the court concluded that, even if Cooper Tire had an obligation to take some action against racist conduct on the picket line, it did not have a "legal obligation to fire Runion." On the other hand, if, as the court suggested, some forms of racist conduct might be outside the bounds of NLRA protection, then an employer might be free to fire an employee when it did have an obligation to do so to comply with Title VII. If so, there would not be any conflict between the NLRA and Title VII.

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.