Saturday, December 16, 2017

Fallon v. Mercy Catholic Medical Center: Is the Title VII requirement that employers accommodate religion unconstitutional?

In Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, the Third Circuit affirmed the dismissal of Paul Fallon's claim that he was subjected to religious discrimination when he was terminated because he refused to receive a flu shot. The Third Circuit agreed with the district court that Fallon's beliefs regarding the flu vaccine, while sincere and strongly held, were not religious in nature and therefore not protected by Title VII of the Civil Rights Act of 1964. In rejecting Fallon's claim of religious discrimination, the court required Fallon to establish that his views were part of a comprehensive belief system about "fundamental and ultimate questions having to do with deep and imponderable matters." In my view, this narrow test is inconsistent with controlling Supreme Court precedent and EEOC guidelines, and under such a narrow interpretation, Title VII would violate the Establishment Clause of the U.S. Constitution.

Guided by the doctrine of "constitutional avoidance," courts strive to interpret statutes so as to avoid conflicts with the U.S. Constitution. When courts have interpreted statutory protections for religious beliefs and practices, they have therefore been mindful of potential violations of the First Amendment's prohibition against establishment of religion.

Reflecting these principles, the EEOC's Guidelines on Discrimination Because of Religion "define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." This definition, in turn, is based on the Supreme Court's decisions in
United States v. Seeger, 380 U.S. 163 (1965), and Welsh v. United States, 398 U.S. 333 (1970), which looked at statutory protections for religious conscientious objectors under section 6(j) of the Universal Military Training and Service Act. That provision explained that "religious" beliefs means beliefs "in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." In Seeger, the Supreme Court held that "[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition."

The Third Circuit rejected Fallon's contention that religious beliefs include "moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views." Instead, the court insisted that Seeger and Welsh require that the individual claiming protection do more to show that a belief "occup[ies] a place parallel to that filled by God in traditionally religious persons," namely that the views are part of a comprehensive belief system about "fundamental and ultimate questions having to do with deep and imponderable matters."

This interpretation of Seeger and Welsh is untenable. In Welsh, the Supreme Court stated:

If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual "a place parallel to that filled by . . . God" in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a "religious" conscientious objector exemption under § 6 (j) as is someone who derives his conscientious opposition to war from traditional religious convictions.
Thus, it is clear that deeply held moral and ethical beliefs are considered "religious" because those beliefs in and of themselves occupy a place in the life a non-religious person parallel to that of God in the life of a religious person. There is no further requirement that the beliefs be part of a comprehensive belief system about "fundamental and ultimate questions having to do with deep and imponderable matters." Significantly, many moral and ethical beliefs are merely a matter of common sense. It seems pretty obvious that it's wrong to punch someone in the face without provocation, and you can believe that strongly without reference to an underlying belief system regarding profound questions about the nature of the universe.

To be sure, the Third Circuit's test may be useful in evaluating whether a belief is religious even though it has nothing to do with morality or ethics. For instance, if someone claims that he has a religious belief that he must refrain from wearing green pants, then protection may depend on whether the belief is part of a broader belief system related to deep and imponderable matters.

In the context of sincerely and deeply held ethical or moral beliefs, however, the imposition of further requirements runs the risk of violating the First Amendment's prohibition against establishment of religion. The constitutional concerns that drove the Supreme Court's interpretation of the statutory exemption for conscientious objectors were made explicit in Judge Harlan's concurrence in Welsh:  
[H]aving chosen to exempt, [Congress] cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment.
If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source. The common denominator must be the intensity of moral conviction with which a belief is held. Common experience teaches that among "religious" individuals some are weak and others strong adherents to tenets and this is no less true of individuals whose lives are guided by personal ethical considerations.
In Fallon's case, it's not obvious that his objection to the flu vaccine was grounded in his own personal moral or ethical beliefs, so he might not have prevailed even under the correct test.

On the other hand, as I discussed in this prior post, I think that coverage of purely moral or ethical beliefs may be especially significant for vegetarians and vegans who believe that it is morally wrong to exploit animals. If a court properly applies Seeger and Weber and the EEOC's guideline, it should be quite easy for ethical vegetarians and vegans to establish coverage under Title VII. If the statute protects a vegetarian who objects to eating meat based on a passage in the Bible, then surely it must also protect a vegetarian who has strong moral objections to killing and eating animals.

Protecting individuals' religious practices may be commendable, but not at the expense of violating the Constitution.

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, December 12, 2017

En Banc Oral Argument in Rizo v. Yovino: Sometimes, the way to do a good job is to do a bad job

Earlier today, the Ninth Circuit, sitting en banc, heard oral argument in Rizo v. Yovino, in which it is considering the extent to which prior salary can be used under the Equal Pay Act to justify a wage differential between a man and a woman doing the same job. Nominally, the issue that the court was supposed to look at is whether prior salary can be the sole factor under the Equal Pay Act, and in prior posts (here and here), I've pointed out that this case isn't an appropriate vehicle for answering that question because the defendant did not rely solely on prior salary. But that turns out not to have mattered because it became clear during the oral argument that it is all or nothing: either prior pay is a factor other than sex under the Equal Pay Act or it is not. It makes no difference whether it is the sole factor.

Strikingly, it was not the skill of the advocates that revealed the potential problem with relying to any extent on prior pay but rather Ninth Circuit judges who repeatedly questioned the coherence of the positions they were arguing. If reliance on prior pay is impermissible, as it was contended, because doing so perpetuates sex-based wage disparities, then it makes no difference whether prior pay is the only factor that is used to set a new employee's starting pay. The Equal Pay Act does not allow an employer to base pay on sex even if sex only plays a small part.

The EEOC, however, represented by Barbara Sloan, stuck to its guns, taking the peculiar position that prior pay can be considered by an employer but can't make a difference in how much someone is paid. As one of the judges noted, the EEOC was advocating an "interesting" position that "it's ok to utter the words, but they can't mean anything." Trying to clarify the EEOC's stance, Sloan argued that if an employer really needed a particular employee, then it could agree to match his prior salary, and in such a case, the employer would be relying on the need, not the prior salary. But if that is so, then it's not at all clear why the EEOC is objecting to what the defendant is doing in this case, because the defendant relied on prior salary, in part, to set pay so that it could recruit employees with the promise that they would get a 5% pay raise over what they are currently making.

Here, the judges by and large found the arguments advanced by Rizo and the amici supporting her to be lacking. Nevertheless, the EEOC and equal pay advocates may very well get not only what they have asked for but more. And this must be especially frustrating to Shay Dvoretzsky, who represented the employer, since that outcome, which seems likely to me, will not be because of any failure on his part but on the part of opposing counsel.

The lesson? Sometimes, the way to do a good job is to do a bad 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.

Wednesday, December 6, 2017

EEOC v. Catastrophe Management Solutions: Rejecting an applicant for having dreadlocks is not race discrimination

After a really long delay, the Eleventh Circuit finally denied the EEOC's request for rehearing by the full court in EEOC v. Catastrophe Management Solutions, No. 14-13482. As I discuss in this prior post, I think the panel was right in rejecting the EEOC's claim, which goes too far in contending that discrimination based on a race-linked characteristic is inherently a form of race discrimination.

As noted in Judge Beverly Martin's dissent from the denial of rehearing, the Supreme Court has recognized that discrimination based on stereotypes is prohibited, such as treating a woman adversely based on sex stereotypes. What Judge Martin overlooks, however, is that there still must be some differential treatment between protected groups. So if an employer treats assertive women less favorably than assertive men based on the stereotype that women should not be assertive, then the employer has engaged in sex discrimination even though assertiveness is not an immutable characteristic. On the other hand, if an employer disfavors all assertive employees, then it has not treated women worse than men, or vice versa, so it has not engaged in sex discrimination.

Likewise, in this case, the EEOC has not contended that the defendant has singled out black employees with dreadlocks for worse treatment than white employees with dreadlocks, so the Eleventh Circuit rightly rejected its claim.

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, December 1, 2017

Lauderdale v. Illinois Dep't of Human Services: Relying on prior salary to set pay within a range is ok, at least in the Seventh Circuit

In Lauderdale v. Illinois Department of Human Services, No. 16-3830 (Nov. 30, 2017), the Seventh Circuit rejected Marybeth Lauderdale's claim that she was paid less than a male employee in violation of the Equal Pay Act where the defendant set her pay based, in part, on her prior salary. Notably, Lauderdale's claim is very similar to the one brought by Aileen Rizo in the Ninth Circuit against a public school system. Both of their starting salaries were set at the low end of a pay range because of their prior salaries. Both of them, however, received substantial pay increases over their prior salaries so that their starting salaries were within the designated pay range. The difference between the two cases is where they brought their claims. In the Seventh Circuit, prior pay is recognized as a legitimate basis for setting pay under the Equal Pay Act, absent evidence that discrimination led to lower prior wages. In the Ninth Circuit, the issue remains opens as to the extent to which an employer can rely on prior pay but will soon be decided by the full court in an en banc rehearing.

In my view, the "salary range" approach, utilized by the defendants in both Lauderdale and Rizo -- in which an employer does not unrestrictedly base a new employee's pay on his or her prior salary but instead uses prior salary to set pay within a pre-determined range -- is the most reasonable and balanced approach to using prior salary to set a new employee's starting pay. As I explained previously:
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 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. . . . 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. 
In Rizo, the Ninth Circuit will be deciding whether prior salary can ever be the sole factor in setting pay. I don't think the salary range approach relies solely on prior salary in setting a new employee's pay -- another factor is the pre-determined salary range -- so I'm dumbfounded as to why the Ninth Circuit is even entertaining Rizo's claim. No one is contending that prior salary cannot be any factor in setting pay, only that it can't be the sole factor.

To be sure, under the salary range approach, although prior salary is not the sole factor in setting pay, it may nevertheless be the sole factor for part or even all of the pay disparity between two individuals, including with respect to both Lauderdale's and Rizo's claims. But it would be going too far to contend that prior salary must not be the sole factor not only for setting pay but also for a pay disparity between male and female employees. If prior salary can't be the sole reason explaining all of a salary disparity, then it obviously also can't be the sole reason explaining part of a disparity. Which means that prior salary really can't be any factor at all in setting pay. As noted, federal agencies place some limited reliance on prior pay in setting the pay of new employees, so the elimination of all reliance on prior pay would hamper federal sector recruitment. Not even the EEOC or equal pay advocates support such an extreme position. 

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, November 29, 2017

Digital Realty Trust, Inc. v. Somers: So judges don't make law after all -- sort of anyway

The oral argument in Digital Realty Trust, Inc. v. Somers highlights the extraordinary presumption applied by a court that Congress means what it says when it enacts a statute. And in so doing, it lends some credence to the oft-repeated claim that judges don't make law. In Digital Realty Trust, the issue is whether the Dodd-Frank Act prohibits retaliation against a whistleblower who has only reported internally about a potential violation of securities law. As written, the act seems not to apply to such individuals and to require reporting to the Securities and Exchange Commission, but that leads to an "anomalous" result because it means that an individual who reports internally is not protected if he has never filed a report with the SEC but is protected if he filed a report many years ago about an entirely different matter. Such an "anomaly," however, does not appear to be enough to allow a court to ignore clear statutory language. As suggested by Justice Ginsburg, a court is bound to apply the statutory language as written unless the result is not merely anomalous but also absurd. And here, it does not appear that anyone was arguing that the result -- even if, in Justice Kagan's words, "[i]t's odd; it's peculiar; it's probably not what Congress meant" -- reached the point of being absurd.

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, November 24, 2017

Harrison v. Procter & Gamble Distributing: Is the denial of a raise an adverse action?

In Harrison v. Procter & Gamble Distributing LLC, Case No. 1:15-cv-514 (S.D. Ohio Nov. 17, 2017), District Court Judge Timothy Black reached the bizarre conclusion that the denial of a raise is not an adverse action and therefore not covered by Ohio state law prohibiting disability discrimination. Judge Black reasoned that an adverse action requires an adverse change in the conditions of employment, and therefore, the maintenance of the status quo is not covered. Although Beth Harrison brought her claim under state law, Judge Black relied on federal EEO law, so his reasoning is not limited to claims brought by Ohioans.

Plainly, Judge Black is wrong. The failure to hire someone is not a change in the terms of employment, but no one would dispute that EEO law prohibits the failure to hire someone for discriminatory reasons. Similarly, providing a raise to a non-disabled employee but not to a disabled employee because of the latter individual's disability is obviously covered. The issue under EEO law is whether you would have been treated better if you were another race or sex, or, as in this case, you did not have a disability. Failing to provide an employment benefit to an individual is no less adverse than taking away an employment benefit. 

Some flaws in legal reasoning are subtle, but not here. Judge Black's mistake is a doozy.

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, November 16, 2017

The Limits of Comparing Transracial and Transgender Status

Wanting to provoke thought, a coworker of mine sent around links to recent articles in USA Today (here and here) discussing two individuals who identify as "transracial." Both were born white but now identify as another race. As far as EEO law is concerned, the answer seems quite simple: discrimination against someone because he identifies as transracial can be regarded as race discrimination since you're basically treating someone adversely based on racial stereotypes. More complicated is the use of the term "transracial." A number of commentators (see, for example, here and here) have questioned whether that term, with its implicit comparison to transgender status, is really an appropriate label. I have similar misgivings.

Consider what it means to be transgender: an individual's innate mental sense of sexual identity is not aligned with that individual's assigned sex at birth, which typically reflects the individual's sexual anatomy. As a result, there is a mismatch between two innate sex-linked characteristics. An individual's race, however, while it may be grounded in some innate physical characteristics, is not grounded in any innate mental sense of racial identity.

The result of failing to recognize that gender identity is innate can be seen in the unfortunate life story of David Reimer. An identical twin boy, Reimer was raised as a girl, based on medical advice, after his penis was accidentally destroyed during a circumcision. Despite gender reassignment from male to female at a very young age, Reimer retained an innate gender identity as male, and when he learned from his parents about his gender reassignment, he decided to assume a male gender identity, changing his name from Brenda to David. Reimer, of course, was not transgender, but his story illustrates the point: whether someone is transgender or not, that individual has an innate sense of his or her gender.

If there were a racial analog to gender identity, then someone with the physical attributes of a particular race would typically have an innate sense of being a member of that race. Most individuals who have the physical characteristics associated with being Asian would therefore have an innate mental identity of being Asian. This means that a non-transracial Asian child raised in a non-Asian environment would feel out of place, even if he had no familiarity with Asian culture. He wouldn't have to have experienced what it means to be Asian because it would be innate.

Undoubtedly, someone may have a mental sense of racial identity, but it would strictly be the product of socially constructed norms and depend on the society and culture in which he lives. A black person living in the United States has a different racial identity from a black person living in Nigeria. Unlike with gender, there cannot be a mismatch between two innate aspects of race. Someone may not identify with the socially constructed racial identity of his own race, and in that respect, the individual might consider himself transracial. But this if fundamentally different from the way in which someone is transgender.

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.