Friday, December 30, 2016

Jones v. City of Boston: Does the use of hair samples to test for illegal drug use discriminate against African Americans?

In Jones v. City of Boston, No. 15-2015 (1st Cir. Dec. 29, 2016), the United States Court of Appeals for the First Circuit concluded that African American former police officers had presented sufficient evidence for a jury to find that they were subjected to unlawful race discrimination under Title VII of the Civil Rights Act of 1964 when they were fired or suspended by the Boston Police Department because they had tested positive for cocaine use.

As recognized by the court, the Boston Police Department has a legitimate need to ensure that its officers abstain from drug use. However, in testing for drug use, the Department must minimize any potential discriminatory effects.

Saturday, December 17, 2016

Summers v. Whitis: Title VII, Religious Freedom, and the Nine Circles of Hell

In Summers v. Whitis, No. 4:15-cv-00093-RLY-DML (S.D. Ind. Dec. 15, 2016), District Court Judge Richard L. Young concluded that the Harrison County Clerk's Office did not discriminate against Linda G. Summers based on her religion when it fired her for refusing to process a marriage license for a same-sex couple. Judge Young reasoned that there was "no objective conflict between Summers' duties as deputy clerk and her religious opposition to same-sex marriage."

Although the defendant may very well have acted lawfully, Judge Young's legal reasoning leaves much to be desired.

Thursday, December 1, 2016

Hively v. Ivy Tech Community Coll.: Seventh Circuit seems poised to interpret Title VII as covering sexual orientation discrimination

On November 30, 2016, the Seventh Circuit heard oral arguments in the en banc rehearing in Hively v. Ivy Tech Community College. Based on the questions, it appears likely that the court will conclude that Title VII prohibits sexual orientation discrimination. Although it's not clear what the court's ultimate reasoning will be, most judges were apparently swayed by the straightforward, though formalistic, argument that it is sex discrimination to treat a man who is sexually attracted to men less favorably than a woman who is sexually attracted to men.

Monday, November 28, 2016

Paid Family Leave and the Irresistible Force of Baby Cuteness (Updated 12/20/16 to add kittens!)

As reported in the Washington Post, the D.C. Council is on the brink of passing a law that would require employers to provide up to 11 weeks of paid leave for employees to bond with newborn or adopted children and up to 8 weeks of paid leave to care for an ill family member.

Whatever the merits of the arguments for paid family leave, I can't help but think that the D.C. Council's approach is ass backwards. As noted in the Post article, the law would not require paid leave for self-care. Thus, if Joe Schmo needs to take eight weeks off to take care of his own medical needs, his employer would not have to pay him for his time off. But if Joe's wife, Jane, takes eight weeks off to care for Joe while he is sick, then Jane's employer would have to pay her for her time off.

Sunday, November 20, 2016

The Bisexual Wage and Coverage Gaps

As I discussed in a recent post, courts have been increasingly willing to conclude that the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 encompasses sexual orientation discrimination. Although I agree that discrimination based on homosexuality or heterosexuality arguably constitutes sex discrimination, I don't believe the same can be said for discrimination against bisexuals. 

For example, discrimination against a gay man can be seen as sex discrimination that is grounded in a stereotype that applies to men but not to women, namely that they should not have sex with men. If someone discriminates, however, against a bisexual man or a bisexual woman because each has sex with both men and women, then men and women are being treated the same, so there is no sex discrimination. Thus, even where courts have concluded that Title VII prohibits sexual orientation discrimination, there is a bisexual coverage gap.

Based merely on common sense, I have always assumed that discrimination against bisexuals is exceedingly rare or even non-existent. I can see an employer discriminating against bisexuals as well as gay men and lesbians, but I think it much less likely that an employer would treat homosexual and heterosexual individuals the same yet discriminate against bisexual individuals.

I was surprised, then, to see that a recent study has concluded that bisexual men and women may be subject to pay discrimination that is not faced by gay men and lesbians. The study was authored by Trenton D. Mize, a doctoral student, and published by the American Sociological Association. 

Only time will tell whether discrimination against bisexuals arises with any frequency, but absent new federal legislation, which seems exceedingly unlikely for the foreseeable future, it does not appear that such discrimination is prohibited under federal law.






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 16, 2016

DeJesus v. Washington Post: Does EEO law require an employer to have a reasonable basis for firing someone?

If an employer's asserted reason for taking a particular action is unreasonable, does it follow that the employer has lied about why it took the action? That is one of the issues confronted by the court in DeJesus v. Washington, No. 15-7126 (D.C. Cir. Nov. 15, 2016), in which David DeJesus, who had sold ad space for the Washington Post for 18 years, alleged that he was fired because of his race and age.

Friday, November 11, 2016

Why have courts and federal agencies changed their tune about Title VII's coverage of sexual orientation discrimination?

In EEOC v. Scott Medical Health Center, No. 16-225 (W.D. Pa. Nov. 4, 2016), Judge Cathy Bisson joined the growing chorus of voices among federal courts and executive agencies that have recently interpreted Title VII of the Civil Rights Act of 1964 to prohibit sexual orientation discrimination. It is noteworthy that this newly minted interpretation does not appear to reflect any recent legal developments under Title VII. In fact, for the first 50 years of Title VII's existence, courts and federal agencies had been in unanimous agreement that Title VII does not prohibit sexual orientation discrimination. And recent interpretations to the contrary have relied primarily on the Supreme Court's 27-year-old decision in Price Waterhouse v. Hopkins.

Over the past few years, however, there has been a groundswell of public support for recognizing civil rights protections for gay men and lesbians, exemplified, in particular, by the Supreme Court's decisions on same-sex marriage. The recent change in the interpretation of Title VII closely mirrors this broader societal shift.

Monday, October 31, 2016

Koziara v. BNSF Railway: Proximate causation and why you shouldn't blame the Big Bang if Donald Trump is elected President next Tuesday


Judge Richard Posner's opinion in Koziara v. BNSF Railway Co., No. 16-1577 (7th Cir. Oct. 31, 2016), is a terrific primer on the difference between causation and proximate causation. A finding of legal liability generally requires that a plaintiff establish not merely causation but proximate causation. Essentially, what this boils down to is that not every cause is a proximate cause, and it's only the latter that we care about. 

Sunday, October 30, 2016

Gloucester Cnty. Sch. Bd. v. G.G.: The Supreme Court takes up transgender bathroom access

On October 28, 2016, the Supreme Court granted certiorari in the case of Gloucester County School Board v. G.G., in which Gavin Grimm has sued the defendant school board because he has been denied access to the boys' bathroom. Grimm identifies as male, but was designated as female when he was born. In granting certiorari, the Court agreed to consider two issues: (1) whether courts should defer to an agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the Department of Education, the agency's interpretation of Title IX and 34 C.F.R. § 106.33 should be given effect. The first of these is strictly procedural, so it's quite possible that the Court will resolve the case by merely addressing the deference issue without having to consider the substantive issue of transgender bathroom access. 

Monday, October 24, 2016

Native American Tribes and the Age Discrimination in Employment Act: A Right Without a Remedy

In Williams v. Poarch Band of Creek Indians, No. 15-13552 (11th Cir. Oct. 18, 2016), the Eleventh Circuit affirmed the dismissal of Christine Williams's age discrimination claim against the defendant Native American tribe, holding that the claim was barred by the doctrine of tribal sovereign immunity. As the court explained, "even though the ADEA is a statute of general applicability, and the Poarch Band might be generally subject to its terms, the doctrine of tribal sovereign immunity protects the Poarch Band from suits under the statute."

Saturday, October 22, 2016

Villarreal v. R.J. Reynolds Tobacco Co.: Do Title VII and the Age Discrimination in Employment Act protect applicants against unintentional discrimination?

In Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602 (11th Cir. Oct. 5, 2016), the Eleventh Circuit held that the disparate impact provision of the Age Discrimination in Employment Act, which covers facially neutral practices that have a disproportionately adverse effect on older workers, only applies to employees. Therefore, older job applicants are only protected against intentional age discrimination. Although Villarreal is an ADEA case, its reasoning strongly suggests that applicants are also excluded from protection under the disparate impact provision of Title VII of the Civil Rights Act of 1964.

Sunday, October 9, 2016

Betz v. Temple Health Systems: Sexual conduct is not always based on sex

In Betz v. Temple Health Systems, No. 16-1423 (3d Cir. Oct. 5, 2016), the Third Circuit affirmed the dismissal of Ellen Betz's claim that she was subjected to sexual harassment in violation of Title VII based on her female coworkers' sexually explicit conduct. Betz alleged, among other things, that her coworkers would "regularly 'joke' with each other by licking, groping, making lewd gestures, or pretending to grope each other's breasts and genitals." The Third Circuit agreed with the lower court's conclusion that the alleged facts did not state a plausible claim that the challenged conduct discriminated against Betz because of her sex.

Friday, October 7, 2016

Roberts v. Clark Cnty. Sch. Dist.: Barring a transgender man from all single-sex restrooms is not the same as barring him from just the men's room

In Roberts v. Clark County School District, No. 2:15-cv-00388-JAD-PAL (D. Nev. Oct. 4, 2016), District Court Judge Jennifer Dorsey granted summary judgment to Bradley Roberts, a transgender male police officer, on his claim that he was subjected to sex discrimination when he was denied access to either the women's or the men's restroom and was required to use gender-neutral restrooms.

Thursday, October 6, 2016

Lord v. High Voltage: Is it unlawful to fire an employee because he failed to report harassment immediately?

In Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. Oct. 5, 2016), the Seventh Circuit held in a 2-1 decision by Judge Diane Sykes that Ryan Lord failed to show that he was fired in retaliation for complaining about sexual harassment by male coworkers. Notably, the majority credited the employer's assertion that it fired Lord in part because he failed to report new incidents of harassment immediately, contrary to what he had been instructed to do after previously complaining about harassment. In dissent, Judge Ilana Rovner criticized the majority for upholding a practice that would have a "chilling effect" on the reporting of harassment and that "provides the employer with an end-run around the Title VII retaliation provision."

Wednesday, October 5, 2016

The Onionhead Case: Stretching Title VII While Ignoring the Constitution

EEOC v. United Health Programs of America, Inc. and Cost Containment Group, Inc., No. 14-3673 (KAM)(JO) (E.D.N.Y. Sept. 30, 2016), is an eyebrow-raising case about a workplace team-building program inspired by Onionhead, an anthropomorphic onion. In United HealthFederal District Court Judge Kiyo Matsumoto addressed whether the defendants subjected employees to unlawful religious discrimination in violation of Title VII of the Civil Rights Act of 1964 by allegedly requiring them to participate in their Onionhead program. Judge Matsumoto identified two groups of claims: "reverse religious discrimination claims," which alleged that the defendants imposed their religious practices and beliefs on employees, and "more traditional" religious discrimination claims, which alleged that the defendants discriminated against employees based on employees' own religious beliefs. As discussed below, I believe that Judge Matsumoto erred in allowing claimants to proceed with their reverse discrimination claims.

Sunday, September 18, 2016

EEOC v. Catastrophe Management Solutions: Does prohibiting dreadlocks discriminate against black employees?

EEOC v. Catastrophe Management Solutions, No. 14-13482 (11th Cir. Sept. 15, 2016), is an important new decision addressing the bounds of what constitutes intentional race discrimination under Title VII of the Civil Rights Act of 1964. In this case, the EEOC argued that CMS intentionally discriminated against Chastity Jones, a black applicant, based on her race by refusing to hire her unless she cut off her dreadlocks, which were prohibited by CMS's race-neutral grooming policy.

Monday, September 12, 2016

Making Sense of the Sixth Circuit's Honest Belief Rule

In numerous decisions over the years, including most recently in Richardson v. Wal-Mart Stores, Inc., No. 15-1142 (6th Cir. Sept. 9, 2016), the Sixth Circuit has applied the "honest belief" rule in evaluating whether a defendant intentionally discriminated against a plaintiff in violation of Title VII of the Civil Rights Act of 1964 or another EEO law. Pursuant to the honest belief rule, a plaintiff cannot prevail if the evidence establishes that the employer honestly believed that its asserted reason for taking an action was based in fact, even if it turns out that the employer's belief was mistaken. In Reva, for instance, the court held that the employer's decision to terminate the plaintiff under its coaching policy was protected by the honest belief rule, and therefore, the plaintiff could not prevail on her age discrimination claim.

This post examines the Sixth Circuit's application of the honest belief rule and explains why it appears to be inconsistent with fundamental principles of disparate treatment and of burdens of proof.

Friday, September 2, 2016

Carcaño v. McCrory: Does Title VII prohibit single-sex bathrooms?

In Carcaño v. McCrory, No. 1:16cv236 (M.D.N.C. Aug. 26, 2016), U.S. District Court Judge Thomas Schroeder adopted a novel line of reasoning in concluding that the University of North Carolina would be engaging in unlawful sex discrimination by excluding transgender individuals from single-sex bathrooms consistent with their gender identity. Under Judge Schroeder's reasoning, single-sex bathrooms, even if "separate but equal," presumptively constitute unlawful sex discrimination in violation of Title IX of the Education Amendment Acts of 1972, and therefore, they are only permitted if there is an applicable exception, such as a regulation, allowing for them. Following this reasoning, it would appear that sex-segregated facilities may violate sex discrimination prohibitions under other federal or state laws, such as Title VII of the Civil Rights Act of 1964.

Tuesday, August 30, 2016

The Second Circuit on Coworker Cat's Paw Liability & the EEOC on Absolute Protection of Malicious EEO Complaints


In Vasquez v. Empress Ambulance Service, Inc., No. 15-3239-cv (2d Cir. Aug. 29, 2016), Andrea Vasquez alleged that she was fired in retaliation for complaining about sexual harassment by a coworker. According to Vasquez, she received unsolicited sexual photographs from a coworker and then promptly informed her supervisor. Within a few hours, however, the coworker had learned about Vasquez's complaint against him, and he allegedly provided Empress with false documents purporting to show that Vasquez had solicited him to engage in a sexual relationship. Vasquez alleged that Empress refused to consider any evidence she offered to produce in refutation, and she was immediately fired based on her coworker's fabricated accusations against her.

The court concluded that Empress could be held liable under Title VII of the Civil Rights Act of 1964 pursuant to the "cat’s paw" theory based on the allegedly biased actions of Vasquez's coworker. In a typical cat's paw case, an employer is liable when a biased lower-level supervisor causes a higher-level supervisor to take an adverse action against an employee, even though the higher-level supervisor does not act with discriminatory intent, such as when a manager unwittingly relies on a biased lower-level supervisor's recommendation in deciding to fire an employee. What makes Vasquez unusual is that the biased individual who caused the employer to take the final action was not an agent.

Wednesday, August 24, 2016

Ortiz v. Werner Enterprises: The Seventh Circuit's Muddled Attempt to Clarify Disparate Treatment Analysis


In an opinion by Judge Frank Easterbrook in Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016), the Seventh Circuit discarded the direct and indirect frameworks for analyzing claims of disparate treatment under federal EEO law. The court further clarified that there is no legal requirement that a plaintiff present a "convincing mosaic" of circumstantial and/or direct evidence in order to prevail:
The district court's effort to shoehorn all evidence into two "methods," and its insistence that either method be implemented by looking for a "convincing mosaic," detracted attention from the sole question that matters: Whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had remained the same.
Although it may be difficult to fault the Seventh Circuit for wanting to simplify and streamline the analysis of disparate treatment claims, I don't believe the court's effort is entirely successful. Good riddance to the "convincing mosaic" standard, but the court's rejection of the direct-indirect paradigm confuses me. For one thing, the Seventh Circuit failed to explain the relationship between its new unified approach and the burden-shifting frameworks established by the Supreme Court in McDonnell Douglas Corp. v. Green and Price Waterhouse v. Hopkins. Additionally, the Seventh Circuit neglected to address the different levels of causation that arise in EEO cases, but-for and motivating-factor causation.

Friday, August 19, 2016

EEOC v. R.G. & G.R. Harris Funeral Homes: Religious Freedom, Dress Codes, and Sex Stereotypes

In this prior post, I discussed the conflict between interpreting Title VII of the Civil Rights Act of 1964 to permit sex-specific dress codes and interpreting the act to prohibit discrimination against LGBT individuals as a form of sex stereotyping. In EEOC v. R.G. & G.R. Harris Funeral Homes, No. 14-13710 (E.D. Mich. Aug. 18, 2016), that issue is finally front and center. In Harris Funeral Homes, the EEOC contended that the defendant discriminated against Amiee Australia Stephens, a transgender woman, by not allowing her to wear traditionally female attire to work. The EEOC did not challenge the defendant's sex-specific grooming policy and merely disputed which sex-specific attire Stephens would be required to wear.  As discussed below, this strategy appears to have doomed EEOC's case in the eyes of District Court Judge Sean Cox.

Friday, August 12, 2016

Why Ethical Vegetarianism Is a "Religion" Protected by Title VII


In Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, No. 16-00834 (E.D. Pa. Aug. 9, 2016), Judge Gerald Pappert dismissed Paul Fallon's claim that the defendant violated Title VII of the Civil Rights Act of 1964 by refusing to accommodate his objection to receiving a flu vaccination, because, in Judge Pappert's view, the objection was not based on a religious belief.

In this post, I focus on the implications of Fallon for vegetarianism or veganism that is tied to moral beliefs about the treatment of animals. (In general, vegetarianism is the practice of not eating meat, and veganism is the practice of not eating or otherwise using animal-derived products.) Pursuant to Fallon, if an employee requests an accommodation because of vegetarianism grounded in his own Hindu beliefs, he is protected under Title VII, but if an employee requests the same accommodation based on his own purely secular beliefs that it is morally wrong to exploit animals, then he is not protected by Title VII. In my view, this outcome is plainly inconsistent with EEOC policy and Supreme Court precedent.

Monday, August 8, 2016

Unlawfully Stereotyping Men as Sexual Predators

In Doe v. Columbia University, No. 15-1536 (2d Cir. July 29, 2016), the court vacated the dismissal of a male student's Title IX claim that he was subjected to sex discrimination when the university suspended him for an alleged sexual assault of a female student. The male student alleged that the university accepted his accuser's unsupported version of the facts over his, declined to contact his witnesses, and failed to follow its own procedures designed to protect accused students. The court concluded that the male student had plausibly alleged that the university was motivated by sex bias, because the university had been subjected to criticism for not taking seriously female students' complaints of sexual assault by male students and, therefore, the university was motivated to favor the accusing female student over the accused male student.

Thursday, August 4, 2016

Ortiz-Diaz v. HUD: The Adverse Action Standard and the Reasonable Person in the Plaintiff's Shoes

 In Ortiz-Diaz v. HUD, No.15-5008 (D.C. Cir. Aug. 2, 2016), the court affirmed summary judgment for the defendant on a Title VII claim of national origin discrimination, concluding that Samuel Ortiz-Diaz, a special agent in HUD's Office of Inspector General in Washington, D.C., was not subjected to a "materially adverse action" when he was denied a lateral transfer to a duty station in another city. The court explained 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. The court acknowledged that denial of a lateral transfer might be materially adverse if the transfer would have increased promotion prospects, but Ortiz-Diaz's "bare assertion" was insufficient to establish the requisite harm.

In my view, the court's refusal to consider "subjective injuries," although likely consistent with circuit precedent, is contrary to the Supreme Court's decision in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006).

Saturday, July 30, 2016

Hively v. Ivy Tech. Comm. Coll.: Judicial Restraint and the Recognition of LGBT Protections Under Title VII (Updated 11/30/16)

Update:  On November 30, 2016, the Seventh Circuit heard oral arguments in the en banc rehearing in the Hively case discussed below. Based on the questions, it appears likely that the court will conclude that Title VII prohibits sexual orientation discrimination. Although it's not clear what the court's ultimate reasoning will be, most judges seemed swayed by the straightforward argument that treating a man who is sexually attracted to men less favorably than a woman who is sexually attracted to men is sex discrimination. The only judge who seemed to question this logic was (I think) Judge Diane Sykes, a George W. Bush appointee who has been named by President-elect Trump as a possible successor to Antonin Scalia on the Supreme Court.  


In Hively v. Ivy Technology Community College, No 15-1720 (7th Cir. July 28, 2016), the court held that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. Significantly, Hively is the first federal court of appeals decision to address this question since the EEOC issued an administrative ruling in Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 16, 2015), concluding that sexual orientation discrimination constitutes sex discrimination under Title VII. The court endorsed much of the reasoning in Baldwin, but given unequivocal Seventh Circuit precedent and repeated congressional rejection of legislation that would prohibit sexual orientation discrimination, the court concluded that its hands were tied in the absence of a Supreme Court opinion or new legislation.

As I've discussed in prior posts here and here, I think there are strong arguments that sexual orientation discrimination is a form of sex discrimination, but I still don't disagree that sexual orientation discrimination can be reasonably seen as fundamentally different from other forms of sex discrimination. Unlike the sex stereotyping that may result in discrimination against a woman perceived as aggressive, for example, sexual orientation is widely recognized as a status. Such categories are to some extent artificial, but it is hard to fault judges for declining to end-run congressional authority by finding coverage for sexual orientation discrimination under existing law. In this respect, Hively is a model of judicial restraint.

The Seventh Circuit's reasoning in Hively also suggests that Title VII does not cover discrimination based on gender identity. Some courts, like the Sixth Circuit in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), have relied on the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), to conclude that discrimination based on gender identity violates Title VII because it is a form of sex stereotyping. But as with sexual orientation discrimination, Congress has repeatedly refused to enact protections against gender identity discrimination.  So if the Seventh Circuit was unwilling to defy Congress to protect gay men and lesbians, it may likewise be unwilling to defy Congress to protect transgender individuals.










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 28, 2016

Hussain v. Federal Express: When does stereotyping violate EEO law?

In Hussain v. Federal Express, No. 15-2967 (7th Cir. July 26, 2016), the court held that Shabi Hussain had presented sufficient evidence for a reasonable jury to conclude that she was not promoted to senior manager because of her national origin and/or her sex. In reaching this conclusion, the court relied heavily on evidence that arguably reflected stereotyping based on national origin or sex. In a prior post about a congressional amici brief filed in Christiansen v. Omnicom Group, I discussed why I think EEO law generally covers discrimination based on an employee's failure to conform to a stereotype but does not cover the converse -- discrimination because an employee does conform to a stereotype, e.g., discrimination against a woman because she is not aggressive. I think the Seventh Circuit has made the same mistake in Hussain that the congressional amici made in their Christiansen brief by treating stereotyping as a form of covered discrimination in and of itself, regardless of whether it is actually grounded in discrimination between protected groups.

Friday, July 22, 2016

Cherry v. Siemens Healthcare Diagnostics: Discriminatory performance evaluations, cat's paw liability, and claim accrual

In Cherry v. Siemens Healthcare Diagnostics, Inc., No. 15-1930 (8th Cir. July 21, 2016), the court rejected Farrell Cherry's contention that it should apply the cat's paw theory of liability to his claim that he was selected for a reduction in force because of his race. In a cat's paw case, the final decisionmaker with respect to a challenged employment decision acts without discriminatory intent but he unwittingly relies on discriminatory input from a lower-level supervisor. Cherry contended that the cat's paw analysis applied to his case because, even if the Service Director acted without discriminatory intent, he selected Cherry for the RIF based on discriminatory performance appraisals prepared by Cherry's first-line supervisor. The court concluded that the cat's paw analysis did not apply to Cherry's claim because the first-line supervisor did not actually know, at the time of the allegedly discriminatory performance appraisals, of the planned RIF, and therefore, it was not possible for him to have used the Service Director as a "dupe in a deliberate scheme to trigger a discriminatory action."

Wednesday, July 20, 2016

Is a joint employer liable for the discriminatory conduct of another joint employer?

The term "joint employers" refers to two or more employers that each exercise sufficient control over a worker to be considered his or her employer. This commonly arises when a staffing firm hires a worker and then assigns him to a client that supervises him on a day-to-day basis, but the staffing firm maintains an ongoing relationship with the worker, pays him, and retains the right to discharge him.

Monday, July 18, 2016

Does the refusal to hire an African American man to infiltrate the KKK violate Title VII?

The case of Ritchie v. Napolitano, No. 13-cv-953 (TSC) (D.D.C. July 11, 2016), raises the interesting question of whether an employer is permitted to hire someone of a particular race to engage in undercover operations. Scott Ritchie, a 43-year-old white man, alleged that he was not selected for a transfer to a White House undercover law enforcement unit because of his race. The evidence showed that, in the view of the Secret Service, the unit already had too many white men, and it was necessary for the unit's officers to "be physically and ethnically diverse as they must assimilate into the environment surrounding the White House Complex."

Wednesday, July 13, 2016

Ascribing Societal Stereotypes to Employers: The First Circuit's Guilty-Until-Proven-Innocent Approach to Sex Discrimination Claims

In Burns v. Johnson, No. 15-1982 (1st Cir. July 11, 2016), the First Circuit held that Kathleen Burns, an employee in the Boston office of the Federal Air Marshals Service, had presented sufficient evidence for a reasonable jury to conclude that the office director transferred Burns's international-flight-scheduling duties to a group of male supervisory federal air marshals (SFAMs) because of Burns's sex.

One of the most striking aspects of Burns is the court’s reliance on larger societal stereotypes about sex roles to evaluate the defendant's asserted reasons for reassigning the plaintiff's job duties. The defendant contended that the office director reassigned the flight-scheduling duties in order to foster leadership among the SFAMs. The court concluded that, given societal stereotypes, a reasonable jury could find that the director's consideration of leadership roles discriminated against Burns based on her sex. As the court explained:

Monday, July 11, 2016

Walsh v. N.Y.C. Hous. Auth.: Mixing up McDonnell Douglas & Price Waterhouse

In Walsh v. New York City Housing Authority, No. 14-181-cv (2d Cir. July 7, 2016), the Second Circuit held, in a split decision, that Rita Walsh had presented sufficient evidence for a reasonable factfinder to conclude that the defendant's refusal to hire her for a bricklayer position was motivated in part by her sex. Ultimately, I don't disagree that Walsh's evidence was sufficient for her to survive summary judgment, but I think the majority was mistaken in applying the McDonnell Douglas, rather than the Price Waterhouse, framework.

Friday, July 1, 2016

Christiansen v. Omnicom, pt 2: Is discrimination against a gay man for being too masculine sex discrimination?

A few months ago, I wrote a long post about the district court decision in Christiansen v. Omnicom Group, Inc., addressing the coverage of sexual orientation discrimination under Title VII's sex discrimination prohibition. That case is now on appeal to the Second Circuit, and briefs have just been filed by Matthew Christiansen and by various amici supporting him. Consistent with prior filings, the briefs rely heavily on the argument that sexual orientation discrimination is a form of sex discrimination rooted in sex stereotypes.

At bottom, I agree that sex stereotypes can be used to establish that sexual orientation discrimination violates Title VII, though apparently not for the same reasons that others might believe that to be the case. As discussed in this post, some advocates' analysis of the sex stereotyping issue is wide of the mark, misconstruing the relationship between sex stereotyping and Title VII's underlying prohibition against sex discrimination.

Thursday, June 30, 2016

Does banning the box open the door to increased racial stereotyping?

A recent University of Michigan study provides evidence that the movement to "ban the box" -- remove the checkbox on employment applications asking whether an applicant has a criminal record -- may have the downside of increasing the risk of racial stereotyping. The reason is that, absent evidence that an applicant does not have a criminal record, an individual reviewing a job application may make race-based assumptions about who has a criminal record. Thus, racial stereotypes may lead to a presumption that minority job applicants have criminal records unless there is evidence to the contrary. The Michigan study is consistent with a 2006 study published in the Journal of Law & Economics.

Wednesday, June 29, 2016

Rogers v. Pearland Indep. Sch. Dist.:

In Rogers v. Pearland Independent School District, No. 14-41115 (June 28, 2016), the Fifth Circuit held that the plaintiff failed to establish that he was subjected to race discrimination when he was rejected on two separate occasions for hire as a master electrician. While not particularly interesting on its own merits, this case coincidentally involves a criminal records policy, the topic of yesterday's post, and one within the same state that has sued the EEOC, no less.

In Rogers, the defendant contended that it refused to hire the plaintiff on the first occasion because he had failed to disclose his felony convictions, which the defendant discovered through a background check. On the second occasion, the plaintiff disclosed his convictions, but the defendant again rejected him, this time for having failed to disclose his convictions the first go-around and also for the serious nature of the convictions themselves. 

The plaintiff alleged that the defendant's policy of "excluding from consideration for employment all persons who have been convicted of a felony" had an unlawful disparate impact. However, the court concluded, based on the record, that the defendant's policy did not automatically exclude applicants with felony convictions. Indeed, the defendant had recently hired several employees with felony and misdemeanor convictions. 

The court also rejected the plaintiff's disparate treatment claim on the grounds that he had not identified a similarly situated comparator. The court rejected the plaintiff's attempt to compare himself to a white male who was hired even though he had failed to disclose a felony conviction. The court concluded that the white male was not similarly situated because the defendant's criminal records policy did not automatically bar all felons, and instead took account of the seriousness of an applicant's convictions. The white male's offenses were less serious than the plaintiff's, so the plaintiff could not compare himself to the white male to establish a prima facie case.

The dissent disagreed with the majority's analysis of the plaintiff's disparate treatment claim, reasoning that the white male was an appropriate comparator since the plaintiff was rejected for failing to disclose his criminal record, not the criminal record itself.

Here, I think the dissent has the better argument, at least with respect to the first rejection. If the plaintiff was allegedly rejected for lying about having a felony conviction, then evidence that a white male was hired, even though he had lied about a felony record, would tend to discredit the employer's asserted reason. 





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, June 28, 2016

EEOC's Criminal Records Guidance: Texas v. EEOC & Guerrero v. Cal. Dep't of Corr. (Updated 10/5/16)

On June 27, 2016, the Fifth Circuit reversed the district court's dismissal of the State of Texas's complaint seeking a declaration that the EEOC's Enforcement Guidance on Arrest and Conviction Records violates the Administrative Procedure Act.

Compared with some other federal agencies, like the EPA and the NLRB, the EEOC has rather limited rulemaking authority. The EEOC cannot issue legislative rules under Title VII, so the arrest/conviction guidance does not purport to bind anyone except EEOC staff in carrying out their official duties. This is the most direct way in which the guidance affects employers, as it provides the legal standards under which the EEOC investigates and litigates charges involving potentially discriminatory arrest and conviction policies. Indeed, the EEOC is not even authorized to sue government employers -- that authority lies with the Department of Justice -- so Texas may have a weaker claim, in some respects, than a private employer, which can be sued by the EEOC.


Monday, June 27, 2016

Fisher v. University of Texas & Employer Affirmative Action

The Supreme Court's decision in Fisher v. University of Texas, No. 14-981, likely has quite limited application to affirmative action policies in the employment context. In Fisher, the Court upheld the University's use of race-based affirmative action to promote student body diversity. The Court has long recognized -- since at least the 1977 Bakke decision -- that student body diversity is a constitutionally permissible goal for an institution of higher education. The protection of this goal is grounded in the right to academic freedom under the First Amendment and is entitled to substantial deference. 

In the employment context, by contrast, whether under Title VII of the Civil Rights Act of 1964 or under the U.S. Constitution, it seems doubtful that an employer will be able to justify racial discrimination as a means to promote diversity for its own sake.  

Wednesday, June 15, 2016

Why Title VII May Not Apply to Most English-Only Rules

The application of Title VII of the Civil Rights Act of 1964 to workplace English-only rules continues to generate widespread disagreement, both inside and outside the courts. In this post, I discuss an issue that has been overlooked in evaluating English-only rules -- one that, if addressed, may well lead most courts to conclude that Title VII does not apply to the run-of-the-mill English-only rule.

Monday, May 23, 2016

Green v. Brennan: Timeliness, Constructive Discharge, and the Court's "Difficult Situation" Argument

In Green v. Brennan, No. 14-613 (S. Ct. May 23, 2016), the Supreme Court, in an opinion by Justice Sonya Sotomayor, held that the limitations period for bringing a constructive discharge claim begins to run when an employee notifies the employer of his intent to resign. Thus, even if an employer did not take any discriminatory actions against the employee within the filing period, a constructive discharge claim is timely so long as the announced resignation occurred within the filing period, since the employee's resignation is an essential component of the claim.

While I don't question the Court's reasoning for the most part, I am bewildered by what I'll call the Court's "difficult situation" argument:

Saturday, May 21, 2016

The "R-word": What makes a slur?

The ongoing debate about the name of the Washington, D.C. professional football team raises in my mind the question of what makes a word a slur or an epithet. In my view, the terms "slur" and "epithet" should be reserved for a word or phrase that, on its face, expresses disapproval of the group referenced. The user's animus is therefore expressed in his or her use of the term, so the mere use of a slur can have the power to wound. Failure to restrict the label of "slur" to the instances in which it reasonably applies runs the risk of diminishing the significance of verbal conduct that is truly harmful. If everything is a slur, then nothing is a slur.

Thursday, May 19, 2016

EEOC v. CRST: When are attorney's fees available for defense against frivolous Title VII litigation?


In CRST Van Expedited, Inc. v. EEOC, No. 14-1375 (S. Ct. May 19, 2016), the Supreme Court unanimously ruled that a defendant in a Title VII case can be eligible for attorney's fees as a "prevailing party" even if the defendant does not prevail on the merits. The Court's rejection of the Eighth Circuit's on-the-merits standard seemed almost a foregone conclusion, given the failure by either CRST or the EEOC to defend that standard and given the Justices' skeptical questions and comments during oral argument. In defense of the Eighth Circuit's decision, the EEOC argued, in the alternative, that a defendant is not a prevailing party unless it obtains a ruling that has a preclusive effect (i.e., a dismissal with prejudice). While the Court declined to address this argument since it was raised at the 11th hour, I think the Court's reasoning in CRST effectively pulls the rug out from under it.

Tuesday, May 17, 2016

Employers may be required by NYC law to use gender-neutral pronouns "ze" and "hir"

This is an interesting Volokh Conspiracy post discussing guidance by the New York City Commission on Human Rights advising that employers and others covered under the NYC Human Rights Law are required to use an individual's preferred pronoun, including gender-neutral pronouns such as "ze" and "hir."

In the view of Professor Eugene Volokh:
[Y]ou should feel uncomfortable about people being forced to use "ze," which expresses a view about gender that they might not endorse. And, more broadly, I think we should all feel uncomfortable about government regulators forcing people to say things that convey and support the government's ideology about gender.



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, May 13, 2016

Tovar v. Essentia Health: Does Title VII cover benefits that discriminate against non-employees based on their sex?

In Tovar v. Essentia Health, No. 0:16-cv-00100-RHK-LIB (D. Minn. May 11, 2016), Federal District Court Judge Richard Kyle dismissed the plaintiff's claim that her employer violated Title VII of the Civil Rights Act of 1964 by denying her son health benefits to cover his gender reassignment surgery. Although the court analyzed the issue presented -- at the employer's urging -- as one involving standing, this is first and foremost a coverage issue. The court's rejection of the plaintiff's claim is consistent with the EEOC's Questions and Answers on the Pregnancy Discrimination Act in which the EEOC states that an employer is not required to cover "the pregnancy-related conditions of [non-spousal] dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally." 29 C.F.R. § 1604 Appendix, Q&A 21. By analogy, denial of benefits related to gender reassignment surgery for non-spousal dependents is not covered by Title VII as long as the benefits are excluded for male and female employees equally.

Sunday, May 8, 2016

DOJ's argument for transgender bathroom access turns case law on its head (Updated 5/9/16)

On May 4, 2016, the Department of Justice sent a letter to North Carolina Governor Pat McCrory informing him of DOJ's view that, as a result of compliance with House Bill 2, the state is discriminating against transgender state employees by denying them access to sex-segregated bathrooms consistent with their gender identity. This post is a continuation of my previous post addressing transgender bathroom access under Title VII of the Civil Rights Act of 1964. As discussed below, in my view, the cases cited by DOJ actually undermine its conclusions. 

Thursday, April 28, 2016

Legg v. Ulster County: When is the failure to accommodate pregnancy intentionally discriminatory?

In Legg v. Ulster County, the United States Court of Appeals for the Second Circuit held that Ann Marie Legg, a corrections officer, was entitled to have a jury decide whether she was subjected to unlawful pregnancy discrimination when the defendant denied her request for light duty. The Legg decision is among the first to apply the special framework created by the Supreme Court in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), for establishing pregnancy-based disparate treatment under the Pregnancy Discrimination Act. As discussed below, I think the Second Circuit misinterpreted Young by failing to focus on the ultimate issue of discriminatory intent.

Thursday, April 21, 2016

Pastafarianism: Accommodating Believers in the Flying Spaghetti Monster

Recently, in Cavanaugh v. Bartelt, Judge John Gerrard rejected the claims of Steven Cavanaugh, a prisoner in the Nebraska State Penitentiary, that he was subjected to religious discrimination when prison officials refused to accommodate his religious practices as a Pastafarian and believer in the divine Flying Spaghetti Monster.  Judge Gerrard concluded that FSMism is not a religion but a "parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education."

In this terrific blog post, Michael Dorf distinguishes between the question of whether the founders of Pastifariansim intended it as a religion or as a parody of religion and the question of whether a particular individual is a sincere believer in Pastafarianism as a religion.  The latter question is the relevant one in determining whether a particular individual is entitled to have his beliefs accommodated.  As Judge Gerrard observes, however: 
It is not clear from Cavanaugh's complaint whether his professed adherence to FSMism is grounded in [its rejection of religion as science], or in a literal reading of the FSM Gospel. But to read the FSM Gospel literally would be to misrepresent it -- and, indeed, to do it a disservice in the process. That would present the FSM Gospel as precisely the sort of Fundamentalist dogma that it was meant to rebut.


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.