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.