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.