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.

Tuesday, November 14, 2017

Richardson v. Chicago Transit Authority: Is being super short an impairment protected by the Americans with Disabilities Act?

Me and my mom (I'm only 5'-3")
In Richardson v. Chicago Transit Authority, No. 1:16-cv-3027 (N.D. Ill. Nov. 13, 2017), District Court Judge John Blakey ruled that severe obesity by itself is not a physical impairment covered by the Americans with Disabilities Act, and is only covered if it is the result of a physiological disorder. Judge Blakey's decision is based on an EEOC regulation and guidance, and it is consistent with the conclusion reached by several courts of appeals, including the Eighth Circuit in Morriss v. BNSF Railway. The EEOC, however, interprets its regulation and guidance more broadly to cover severe obesity that is based on a physiological disorder or that is outside the "normal" range. As discussed below, I agree with the EEOC, but I also note that the EEOC's interpretation has potentially far-reaching implications that have not been acknowledged by the EEOC.

The ADA generally prohibits an employer from discriminating against an employee because of an actual or perceived impairment. Thus, it is necessary to understand what constitutes an "impairment."
EEOC regulation 29 C.F.R. § 1630.2(h)(1) defines a physical impairment as "[a]ny physiological disorder or condition . . . affecting one or more body systems." The EEOC's interpretive guidance on that particular regulation explains:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term "impairment" does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within "normal" range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.
In the instant case, John Richardson contended that, pursuant to this EEOC guidance, obesity need only be the result of a physiological disorder if it is within the normal range. Judge Blakey, however, agreed with the Eighth Circuit's contrary interpretation in Morriss:
The court considered the interpretive guidance in its entirety, including its provision that other "conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments." The court concluded that "a more natural reading of the interpretive guidance is that an individual's weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder."
In my view, Richardson and the EEOC make the better argument. The regulation refers to a physiological disorder or condition. Thus, the regulation suggests that a physical impairment need not be based on a physiological disorder. Confusingly, however, the unqualified term "condition" is so broad that a literal interpretation would cover any physical condition that affects one or more body systems. This is where the guidance comes to the rescue. The guidance, in turn, limits the coverage of conditions to those that are outside the normal range.  As clarified by the guidance, a physical impairment under the ADA includes either a physiological disorder or a condition that is outside the normal range, affecting one or more body systems.

The alternative reading effectively ignores the regulation's latter coverage of a "condition . . . affecting one or more body systems." Granted, the regulation is not a model of clarity, and the guidance could have come straight out and said that conditions are only covered if they are outside the normal range, but the broader reading of the regulation and the guidance still seems to be the better one.

As noted by Judge Blakey, courts that have adopted a narrow interpretation of the EEOC's guidance have considered the purposes of the ADA and refused to "open up . . .  the ADA 'to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered' by the Act.'"

While I don't think such concerns are sufficient reason to reject the EEOC's interpretation, I also don't think they're entirely unfounded. If an individual's weight can constitute an impairment if it falls outside the normal range, then the same must be true for other physical conditions, including eye color, hair color, left-handedness, and height. For instance, if eye color falls outside the normal range, it would constitute an impairment. What does it mean, you wonder, for eye color to fall outside the normal range? Beats me. Let's cross that bridge when we get to it. Height is more analogous to weight, though there's still the question of how short is short enough to be considered outside the normal range.

It's not clear what the practical consequences would be of covering a broad range of physical attributes. I doubt many employers discriminate against someone because of eye color or hair color. Height discrimination is probably more common, and maybe also discrimination based on left-handedness, but such claims still seem likely to be rare, and if they do arise, there's no reason to think they're less worthy of coverage than discrimination based on obesity.

More problematic might be the failure to select an appropriate measure for defining the normal range. As to weight, for instance, the EEOC relies on the body mass index (BMI), but that index defines normal range very narrowly -- as being neither underweight nor overweight -- resulting in over two-thirds of Americans being classified as weight-impaired. Surely, even if some extremely overweight people can be considered impaired merely because they are so overweight, a measure that makes ADA coverage the rule rather than the exception goes too far. 

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 10, 2017

Rubio v. Hyatt Corp.: Temporal Proximity and Pregnancy Discrimination

In Rubio v. Hyatt Corp., No. 17-7833 (E.D. La. Nov. 8, 2017), District Court Judge Carl Barbier denied the defendant's motion to dismiss Kiyoko Rubio's pregnancy discrimination claim where Rubio alleged that she was terminated six days after notifying the defendant of her pregnancy. I thought it worth highlighting this decision because it illustrates the significance of temporal proximity in establishing pregnancy discrimination.

If a plaintiff alleges retaliation, one of the ways that she can try to establish causation is with evidence that the challenged employment action was taken shortly after the plaintiff complained about retaliation. This evidence of temporal proximity allows a reasonable fact finder to infer that the adverse action was motivated by the protected activity. Similarly, if a plaintiff presents evidence that her employer took an adverse action shortly after learning that she was pregnant, a fact finder could reasonably infer that the adverse action was motivated by the plaintiff's pregnancy.

The significance of temporal proximity, however, is limited. What if an employer was already planning to take an adverse action when the employer learned about the plaintiff's pregnancy or protected activity? Or maybe it decided for nondiscriminatory reasons that it should take some action after it had already learned that an employee is pregnant. Can it still proceed with the action? The answer, of course, is yes. An employee is not protected against adverse consequences that are not motivated by her protected status. For example, in Breeden v. Clark County School District, where an employee alleged that her transfer was retaliatory, the Supreme Court explained: "Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality."

In this case, the defendant filed a motion to dismiss. This motion is filed at an early stage in judicial proceedings and challenges the adequacy of a plaintiff's complaint, which is merely required to "state a claim to relief that is plausible on its face." In making this determination, Judge Barbier essentially considered whether the alleged facts were sufficient to establish a prima facie case of pregnancy discrimination. A prima facie creates only a weak inference of discrimination, which is overcome if the employer presents evidence of a nondiscriminatory reason for the challenged action. To prevail in such circumstances, a plaintiff must show that the employer's asserted reason is a pretext for pregnancy discrimination.  

Citing Fifth Circuit precedent, Judge Barbier noted that, although temporal proximity alone may be sufficient to establish a prima facie case, it is not enough to ultimately establish that the employer's asserted reason is pretextual. To be sure, if an employer is treated adversely shortly after telling her employer she is pregnant, that may look fishy, and the timing is some evidence of discrimination. But the timing may merely be a coincidence, and while an employer is prohibited from taking an action because of an employee's pregnancy, it is not prohibited from taking an action in spite of an employee's pregnancy. Thus, where there is evidence that an action was motivated by a nondiscriminatory reason, a plaintiff usually cannot merely point to temporal proximity and must also present some evidence that discredits the employer's asserted reason. For example, if an employer asserts that an employee was fired because of her poor performance, the employee likely would be required to present some evidence that she was not performing poorly or that other employees with similar performance were not fired.

This case is somewhat unusual because the defendant has contended that it did not actually fire the plaintiff and that she instead did not return to work and stopped communicating with them. So assuming the defendant never offers a nondiscriminatory reason to rebut Rubio's allegation that she was fired because of her pregnancy, Rubio could conceivably prevail without showing pretext. 

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 9, 2017

Munive v. Fairfax County School Board: When is a retaliatory action materially adverse?

In Munive v. Fairfax County School Board, No. 17-1692 (Nov. 7, 2017), the Fourth Circuit reversed the dismissal of Kathleen Munive's retaliation claim, concluding that Munive was subjected to a materially adverse action when the defendant allegedly refused to remove a reprimand letter from her personnel file as promised and she was denied a promotion because of the reprimand letter. Although the court's conclusion is correct, the court failed to apply the proper standard for determining whether Munive was subjected to a materially adverse action.

Quoting the Fourth Circuit's 2015 decision in Adams v. Anne Arundel County Public Schools, the court stated that although "an adverse action need not affect the terms and conditions of employment[,] . . . there must be 'some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it.'" 

This standard is contrary to the controlling Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White (2006). In Burlington Northern, the Court distinguished between Title VII's primary objective in prohibiting employment discrimination based on race, color, sex, religion, or national origin and its secondary objective in ensuring that someone can enforce his right not to be subjected to employment discrimination:
To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision's basic objective of "equality of employment opportunities" and the elimination of practices that tend to bring about "stratified job environments" would be achieved were all employment-related discrimination miraculously eliminated.
But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the antiretaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.
In order for a retaliatory action to be materially adverse, it must be reasonably likely to deter someone from complaining about discrimination. Thus, if refusing to remove a reprimand letter from a personnel file is likely to prevent someone from complaining about discrimination, then that refusal is enough by itself to be actionable, regardless of whether it subsequently leads to the denial of a promotion. What's relevant is that having a reprimand in your personnel file very well could lead to your being denied a promotion or suffering some other negative job action. In other words, if you are facing the choice between complaining about discrimination and avoiding a reprimand, you might reasonably choose the latter merely because the reprimand might lead to some further adverse action down the road. Accordingly, if an employer refuses, contrary to its promise, to remove a reprimand from your file, that alone constitutes an adverse action.

In this case, while Munive should have been able to establish an adverse action based merely on the failure to remove the reprimand letter, the court clearly thought that was not enough, and it was only because of the loss of a promotion that Munive was able to proceed with her retaliation claim. Although the erroneous standard adopted by the Fourth Circuit in Adams did not really affect Munive, other plaintiffs pursuing retaliation claims within this circuit may be less fortunate.

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 2, 2017

Louisiana v. Demesme: Supreme Court of Louisiana concludes that asking for a "lawyer dog" is not an unambiguous request for a lawyer

In a non-EEO case that surely qualifies as ass law, the Louisiana Supreme Court concluded, in Louisiana v. Demesme, that Warren Demesme's request for a "lawyer dog" while he was being interrogated by police was not an unambiguous request for a lawyer. The request was made orally, and the transcript, through no fault of Demesme's, failed to include a comma between "lawyer" and "dog." Thus, the court was left wondering whether Demesme wanted a human lawyer or a dog wearing a suit and tie and carrying a briefcase. That may seem laughable, but given this decision, there can be little doubt that a lawyer dog would be better qualified to serve on the Louisiana Supreme Court than the six justices who voted to deny the defendant's writ.

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, October 27, 2017

Masterpiece Cakeshop v. Colo. Civil Rts. Comm.: Is making a wedding cake "speech" protected by the First Amendment?

Dale Carpenter has this post on the Volokh Conspiracy blog discussing an amicus brief he and Eugene Volokh have filed in the Masterpiece Cakeshop Supreme Court case in which a baker, Jack Phillips, refused to sell a wedding cake to a gay male couple. I had been under the mistaken impression that Phillips had refused to sell the wedding cake because he had been unwilling to bake a custom case that endorses same-sex marriage. But as is made clear in the post, Phillips flatly refused to sell a wedding cake for a same-sex marriage. Period. This is significant because, as explained by Carpenter, the First Amendment's protection of "speech" must have limits, and cake-making has not traditionally been recognized as an expressive medium. If every expressive act were protected, then First Amendment protections would have no bounds.

In my view, this brief strikes the right balance. It recognizes that even businesses have First Amendment protections against compelled speech. Thus, if Phillips had been asked to customize a cake with a pro-gay message that he objected to, he would have a stronger claim. So too would a photographer or a singer who refused to participate in a same-sex wedding because photography and singing, unlike cake-making, are inherently expressive. But merely making a cake is not expressive, so it is not protected speech under the First Amendment.

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, October 26, 2017

Fields v. Dep't of Juvenile Justice: Are you only protected against retaliation if you complain to an "appropriate person"?

In Fields v. Department of Juvenile Justice, No. 16-17302 (Oct. 25, 2017), the Eleventh Circuit upheld a jury verdict in the defendant's favor on Chandra Fields's retaliation claim, ruling that the district court did not err in instructing the jury that Fields was required to show that she complained "in good faith to an appropriate person about racial discrimination." The instruction explained that an "appropriate person" was "anyone above Ms. Fields in her chain of command or any human-relations employee." Fields alleged that she had complained to two different HR employees.

Given the alleged facts, it does not appear that the jury instruction, even if erroneous, prejudiced Fields since the only potential protected activity that she had alleged fell within the district court's narrow definition. But rather than merely concluding no harm, no foul, the appeals court concluded that the jury instruction correctly stated the law. This is a peculiar conclusion, given that the instruction clearly did not reflect the broad scope of protected activity under EEO law. And indeed the district court had agreed to broaden the instruction if Fields had offered evidence of protected activity not covered by it.

My point here is simply that the appeals court's endorsement of a jury instruction that a plaintiff must provide evidence of a complaint to an "appropriate official" does not reflect the state of the law generally. In this case, it was all that Fields offered, but in a different case, another plaintiff may allege other kinds of protected activity, and this decision should not be understood as precluding that kind of 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.

Saturday, October 14, 2017

Meritor Savings Bank v. Vinson: Three Decades Later

In the wake of the seemingly endless stream of news reports about the egregious sexual harassment experienced by many women while on the job, the Washington Post has this profile about Mechelle Vinson, a bank teller who was sexually harassed by her boss and took her case all the way to the Supreme Court in 1986. Thanks to her fortitude, the Supreme Court recognized for the first time, in Meritor Savings Bank v. Vinson, that employees are protected against discrimination not only with respect to the economic benefits of employment but also as to their work environment. 

In the Post's profile, Vinson described being sexually assaulted by her boss and threatened with termination if she rejected his sexual advances. Before Vinson made it to the Supreme Court, however, the district court judge astoundingly rejected her sexual harassment claim on the grounds that she had voluntarily engaged in sexual relations with her supervisor. Disagreeing, the Supreme Court explained that the district court should have instead asked whether Vinson had indicated by her conduct that her supervisor's sexual advances were unwelcome, not whether she had involuntarily had sex with him. Thankfully, the Supreme Court did not conclude that sexual harassment only violates EEO law if a victim is raped.

The Supreme Court should have also agreed with the court of appeals that Vinson's testimony about her "dress and personal fantasies . . . had no place in this litigation." Unfortunately, the Supreme Court concluded that evidence of Vinson's "sexually provocative speech or dress . . . [was] obviously relevant" in evaluating whether Vinson regarded her supervisor's advances as welcome. Today, I think most of us would agree with the court of appeals -- the way a woman dresses or speaks doesn't show whether she welcomes sexual conduct by male coworkers. So that's some progress, I guess.

Lately, much has been made of the disagreements between the EEOC and the Department of Justice as to the scope of the protections under the EEO laws. Meritor is an even more peculiar case in which the EEOC essentially disagreed with itself. In Meritor, the EEOC took a position contrary to the position it had adopted a few years earlier in its sexual harassment guidelines regarding when an employer is liable for harassment by a supervisor. The reason for the change? As with the current dispute with DOJ, the result was likely political. The EEOC's earlier more employee-friendly position was adopted during the Carter Administration, whereas the latter position was adopted during the Reagan Administration. The EEOC is an independent agency, but the President nominates the Chair. And who was the Chair when the EEOC advanced a narrow theory of liability contrary to its own guidelines? None other than Clarence Thomas. A few years later, when Thomas was nominated for the Supreme Court, Anita Hill accused him of having sexually harassed her while she worked for him at the EEOC. The world is full of interesting coincidences.

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, October 10, 2017

Discrimination Based on Intersex Status

On October 5, 2017, the Washington Post published an excellent article on the intersex rights movement. The term "intersex" refers to individuals with physical characteristics that do not fit the traditional binary distinction between male and female. Although EEO cases involving allegations of intersex discrimination are extremely rare, I think a strong case can be made for coverage under Title VII, which is generally understood to prohibit discrimination against someone for being male or for being female. In some respects, there is a stronger argument that Title VII covers intersex discrimination than that it covers sexual orientation or gender identity discrimination. Coverage of the latter is primarily based on the theory that sex discrimination includes not only discrimination against men and women generally but also discrimination more narrowly against men and women who do not conform to sex stereotypes. Coverage of intersex discrimination, by contrast, is a straightforward case of discrimination based on an individual's maleness and/or femaleness.

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, October 5, 2017

DOJ concludes that Title VII does not prohibit gender identity discrimination

On October 4, 2017, Attorney General Jeff Sessions issued a DOJ memo taking the position -- and reversing an Obama Administration position -- that Title of the Civil Rights Act of 1964 does not prohibit discrimination based on gender identity, reasoning that Title VII only prohibits decisions based on sex stereotypes that result in disparate treatment between men and women and does not prohibit practices, such as sex-specific dress codes, that take account of sex but do not impose a greater burden on one sex than the other. This position should not be particularly surprising because it is consistent with what DOJ argued in its amicus brief in Zarda v. Altitude Express.

As discussed in my most recent post, Harris Funeral Homes has adopted the same interpretation of Title VII's sex discrimination prohibition in defending its claim against the EEOC. Although numerous courts have held that Title VII prohibits gender identity discrimination, they have reached that conclusion without reconciling it with settled precedent that allows employers to treat the sexes differently under certain circumstances, such as in requiring sex-specific dress codes. DOJ's position grapples with that precedent by construing Title VII's protections narrowly.

To be sure, DOJ can be faulted for taking a position that limits the protections afforded American workers. Nevertheless, it has raised legitimate arguments that have been overlooked for years and that should have been refuted long ago by LGBT advocates.

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.

EEOC v. Harris Funeral Homes: If sex stereotyping is unlawful, then why is it ok to require female employees to wear dresses?

On Wednesday, October 4, 2017, the Sixth Circuit heard oral argument in EEOC v. Harris Funeral Homes in which the EEOC has alleged that the defendant fired Aimee Stephens, a transgender woman, after learning that she would be transitioning from male to female. According to the defendant, it terminated Stephens because she refused to wear traditionally male attire as required by its dress code. The EEOC, by contrast, contends that the defendant did not fire Stephens for refusing to comply with its dress code but for being transgender. Based on the questions asked by the three-judge panel, the court regards this distinction as crucial. As discussed below, I strongly disagree. In my view, the EEOC's and the defendant's competing characterizations as to why Stephens was fired are essentially a distinction without a difference.

The distinction drawn by the parties and the panel members rests on two lines of precedent: one upholding sex-specific dress codes and grooming policies and a second prohibiting sex-based stereotyping.  In Price Waterhouse v. Hopkins, the Supreme Court explained: 
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"
By the time Price Waterhouse was issued in 1989, courts had widely concluded that sex-specific dress codes do not violate Title VII unless they impose unequal burdens. For instance, requiring men and women to wear sex-specific business attire would probably not violate Title VII because it would not impose a greater burden on one sex than another. By contrast a policy that allows men to dress casually but requires women to wear business attire would likely violate Title VII because it imposes a greater burden on women. Despite this longstanding and widespread precedent, the Supreme Court did not address the potential impact of the Price Waterhouse decision.

Because of these competing lines of precedent, the EEOC and Harris Funeral Homes dispute how the facts in this case should be characterized. In my view, however, these two lines of precedent cannot be reconciled, and this can be readily seen in Smith v. City of Salem, in which the Sixth Circuit allowed a transgender individual to proceed with a claim of sex discrimination. In Smith, the court stated: 
After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.  
Yet some courts have held that this latter form of discrimination is of a different and somehow more permissible kind. For instance, the man who acts in ways typically associated with women is not described as engaging in the same activity as a woman who acts in ways typically associated with women, but is instead described as engaging in the different activity of being a transsexual (or in some instances, a homosexual or transvestite).  Discrimination against the transsexual is then found not to be discrimination "because of . . . sex," but rather, discrimination against the plaintiff's unprotected status or mode of self-identification. In other words, these courts superimpose classifications such as "transsexual" on a plaintiff, and then legitimize discrimination based on the plaintiff's gender non-conformity by formalizing the non-conformity into an ostensibly unprotected classification.
Such was the case here:  despite the fact that Smith alleges that Defendants' discrimination was motivated by his appearance and mannerisms, which Defendants felt were inappropriate for his perceived sex, the district court expressly declined to discuss the applicability of Price Waterhouse.
As reflected in the above discussion, the premise that discrimination based on transgender status constitutes sex discrimination rests on the underlying assumption that treating a man who "wear[s] dresses and makeup, or otherwise act[s] femininely" is sex discrimination. Under the sex-specific dress code cases, however, it's perfectly ok to treat men who wear dresses differently from women who wear dresses. So something has to give.

The answer, I suggest, is either to interpret Price Waterhouse more narrowly so as to reconcile it with the dress code cases or to reject the sex-specific dress code cases as having been wrongly decided. As Harris Funeral Homes has contended, Price Waterhouse can be read as only prohibiting sex stereotyping that results in unequal burdens on a particular sex. In particular, the Supreme Court observed in Price Waterhouse: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind." If Price Waterhouse is interpreted as only applying to sex stereotyping that places women or men in a catch 22, then there is no conflict with the dress code cases. Under this interpretation, it would not be unlawful to discriminate against transgender men and women (or gay men and lesbians) so long as one sex is not treated worse than the other sex.

The alternative, of course, is to reject the sex-specific dress code cases. If, pursuant to Price Waterhouse, sex discrimination includes treating an aggressive woman worse than an aggressive man, then it would seem to follow that sex discrimination also includes treating a man who wears traditionally female attire worse than a woman who wears traditionally female attire. Even more fundamentally, a strong case can be made that the dress code cases are inherently flawed. They carve out sex-specific dress codes and grooming policies on the grounds that hair length, for instance, is not an immutable characteristic or a fundamental right. This reasoning, however, is utter nonsense as Title VII is not limited to differential treatment between protected classes with respect to fundamental rights and immutable characteristics. For example, it is unlawful to fire a woman who engaged misconduct but not a man who engaged in similar misconduct, even though misconduct is not related to fundamental rights or immutable characteristics.

Based on the oral argument, I suspect that the court will rule for the EEOC. Although numerous courts have concluded, based on Price Waterhouse, that discrimination based on transgender status effectively constitutes sex discrimination, they have largely overlooked the tension between Price Waterhouse and the dress code cases. Here, at last, a court has a chance to reconcile these competing lines of precedent. If the Sixth Circuit sweeps that issue under the rug, then even if the EEOC scores a victory, it will largely be a hollow one. After all, if an employer may not fire a transgender woman for being transgender but may fire her for not dressing like a man, that won't make the workplace very welcoming for most transgender workers.

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, September 27, 2017

The Zarda Oral Argument: Politics, Bathrooms, and Hair Length

DOJ and the EEOC are play-fighting, how adorable!
On September 26, 2017, the Second Circuit heard oral argument in the en banc rehearing in Zarda v. Altitude Express, in which the full court is considering the question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The advocates (all six of them) were well prepared, and they addressed a number of issues that have not been raised previously. This post looks briefly at three of these issues: 1) the EEOC's and DOJ's conflicting interpretation of Title VII; 2) sex-segregated bathrooms; and 3) and sex-based grooming standards.

Politics: In this case, the EEOC and DOJ are on opposite sides of the fence when it comes to whether Title VII prohibits sexual orientation discrimination. Some members of the court pressed DOJ's representative, Mooppan Hashim, regarding how DOJ came to adopt its position, and Hashim respectfully begged off. To my mind, there is little doubt that the election of a Republican President was a key factor in DOJ's decision to reject the EEOC's position. On the other hand, the EEOC's decision to interpret Title VII as protecting sexual orientation discrimination was almost certainly no less political. At oral argument, the EEOC's representative, Jeremy Horowitz, could offer little explanation for why the EEOC took over 50 years before finally concluding that sexual orientation discrimination is covered by Title VII. Without question, the EEOC, like DOJ, was influenced by the political winds, and it was finally safe in 2015 for the EEOC to adopt an interpretation of Title VII that had been staring it in the face for decades.

None of this, however, is to fault the EEOC or DOJ. The question of whether Title VII covers sexual orientation discrimination is not an easy one, and there are reasonable arguments on both sides. In the absence of an obviously correct legal interpretation, political considerations are fair game.

Notably, DOJ has also taken the opposite position as the NLRB in a case currently before the Supreme Court involving agreements to resolve disputes through individual arbitration.

Bathrooms: In arguing that the EEOC's literal application of a but-for test is mistaken, Hashim and the court-appointed amicus Adam Mortara pointed to the example of bathrooms. The EEOC has contended that sexual orientation discrimination is sex discrimination because but for the victim's sex, he or she would not have been treated adversely. In particular, if a man who is sexually attracted to men is treated worse than a woman who is sexually attracted to men, then but for his sex, he would have been treated better. Hashim and Mortara note that sex-segregated bathrooms violate Title VII under the EEOC's but-for test, so if sex-segregated bathrooms are lawful, then the but-for test must be overinclusive, meaning that some actions that would not have been taken but for the victim's sex do not violate Title VII.

In response, Horowitz distinguished bathrooms as involving a trivial matter while sexual orientation involves a fundamental right, namely the right to marry and engage in intimate conduct with the person to whom you are sexually attracted. Here, I think Horowitz has confused two different issues: the kinds of employment actions covered by Title VII and the subset of a protected class that is protected against discrimination. As Horowitz noted, bathroom access may be relatively trivial, and therefore, discriminatory bathroom access may not be covered by Title VII since it might not constitute an adverse action. If so, then requiring gay men to use different bathrooms from heterosexual men would not violate Title VII, regardless of whether sexual orientation discrimination implicates a fundamental right. Moreover, contrary to what the EEOC has contended in the past, it would not violate Title VII to require a transgender woman to use the men's room.

If single-sex bathrooms are lawful, then what gives? The answer, I think, is that men and women are not similarly situated with respect to bathroom access. Mainstream American society continues to believe that bathroom usage implicates privacy concerns that require sex-segregated bathrooms. Thus, barring women from using the men's room does not discriminate against men because men and women have different genitals. Similarly, in Bauer v. Lynch -- although I disagree with the decision -- the court concluded that treating men and women differently with respect to the number of push-ups required to pass a physical fitness test did not discriminate based on sex because men and women are not similarly situated with respect to upper body strength. By contrast, when it comes to a typical employment decision, like hiring or promotion, there is nothing that distinguishes men from women in general or that distinguishes gay men from heterosexual women or lesbians from heterosexual men that would justify treating them differently.

Grooming requirements: As noted by some members of the court, there is case law allowing employers to adopt sex-based grooming standards, such as allowing women, but not men, to have long hair. This is where the issue of fundamental rights is relevant. In a line of cases sometimes referred to as "sex plus," courts have held that it is unlawful to discriminate against someone based on sex plus another characteristic. For example, in Phillips v. Martin Marietta, 400 U.S. 542 (1971), the Supreme Court held that Title VII prohibits an employer from treating men with preschool-age children better than women with preschool-age children. If an employer adopts sex-based grooming standards, then it is engaging in a form of sex-plus discrimination because it is treating an individual adversely not merely, for instance, because he is a man but because he is a man with long hair. In upholding such a requirement, some courts have reasoned that sex-plus discrimination only covers discrimination based on sex in combination with a fundamental right, such as childrearing. In my view, the sex-plus cases are flawed. If an employer fires a woman who engages in misconduct but not a man who engages in similar misconduct, we don't ask whether engaging in misconduct is a fundamental right, so it makes no sense to ask that question when sex is combined with a factor like hair length.

As Horowitz pointed out, sexual intimacy has been recognized as a fundamental right by the Supreme Court, so sexual orientation discrimination is distinguishable from the cases addressing sex-based grooming standards. The same may not be true of discrimination based on transgender status, however. Some courts, along with the EEOC, have concluded that discrimination based on transgender status constitutes sex discrimination because it is grounded in sex stereotypes. But if dressing a certain way is not a fundamental right, then under the sex-plus theory, treating a man who dresses femininely differently from a woman who dresses femininely would not be unlawful.

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, September 26, 2017

Severson v. Heartland Woodcraft: Seventh Circuit holds that multimonth leave of absence is outside the scope of the ADA (Updated 9/28/17)

In Severson v. Heartland Woodcraft, Inc., No. 15-3754 (Sept. 20, 2017), the Seventh Circuit held that a multimonth leave of absence lies beyond the scope of the Americans with Disabilities Act. The court reasoned that a "reasonable accommodation" is limited to a measure that enables an employee to work; an individual who needs extended medical leave cannot work, and therefore, he is not protected by the ADA.

In this case, Raymond Severson had exhausted his entitlement to 12 weeks of leave under the Family and Medical Leave Act, and he requested additional leave of two to three months while he recovered from back surgery. Rejecting Severson's denial of accommodation claim, the court explained: "[A] long-term leave of absence cannot be a reasonable accommodation . . . [because it] does not give a disabled individual the means to work; it excuses his not working."

Although the court broadly rejected any reasonable accommodation claim challenging the denial of long-term leave, the court seemed to be particularly troubled by the EEOC's failure to impose any constraints on the length of the leave requested. In the EEOC's view, long-term medical leave qualifies as a reasonable accommodation if it is (1) of a definite and limited duration; (2) requested in advance; and (3) likely to enable the employee to do his job when he returns. In rejecting this view, the court stated that the EEOC mistakenly equates a "reasonable accommodation" with an "effective accommodation," which transforms the ADA into a "medical leave statute -- in effect, an open-ended extension of the FMLA."

To my mind, the Seventh Circuit's position is a harsh and narrow interpretation of the ADA. And indeed, it appears to be an outlier, judging by the many cases cited by the EEOC from other circuits.  But the EEOC's position may lie at the other extreme in failing to provide any limitation on the length of leave that can potentially qualify as a "reasonable" accommodation. This is not to suggest that the two- or three-month extension that Severson had requested was unreasonable, but as a matter of common sense, I would think that at some point the length of medical leave requested by an employee may be so long as to be inherently unreasonable. 

Update (9/28/17): In reading commentary on the Severson decision, I was surprised to learn that the Tenth Circuit, in a decision by then-Judge Neil Gorsuch no less, reached the same conclusion about an employee's right to long-term leave as a reasonable accommodation. In Hwang v. Kansas State University, the court concluded that an employer is not required to provide employees with more than six months of sick leave as a reasonable accommodation. The court explained:

. . . [R]easonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work. 
. . .
[I]t's difficult to conceive how an employee's absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang's is a terrible problem, one in no way of her own making, but it's a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work -- not to turn employers into safety net providers for those who cannot work.
Although Hwang is a Rehabilitation Act case, the same reasoning applies to the ADA, and in fact, the Tenth Circuit discusses at length the EEOC's ADA guidance.

Hwang is significant because it shows that Severson, even if it represents a minority view, may not be that much of an outlier. Oddly, the Seventh Circuit never cited Hwang in its Severson decision, nor did the EEOC cite Hwang in its amicus brief.

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, September 23, 2017

Edge v. City of Everett: The Attack on Bikini Baristas

Baring a bit too much anal cleft, methinks.
On September 11, 2017, in Edge v. City of Everett, a group of women filed a lawsuit challenging the constitutionality of two ordinances adopted by the City of Everett, Washington, targeting bikini espresso stands. In case you aren't familiar with these establishments, they're drive-through coffee stands at which customers are served by women dressed in bikinis. The lawsuit alleges, among other things, that the laws violate baristas' First Amendment right to freedom of expression and their Fourteenth Amendment right to equal protection. The equal protection claim rests on the contention that the ordinances discriminate against women based on their sex.

The first ordinance merely expands the existing lewd conduct ordinance to prohibit exposure of the "bottom one-half of the anal cleft" or "more than one-half of the part of the female breast located below the top of the areola."

More interesting is the second ordinance, which requires that employees of "quick-service facilities" wear clothing that covers the "upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of legs below the buttocks, pubic area, and genitals)." The city subsequently issued guidance further explaining that the ordinance requires that workers wear at least either shorts or a skirt, and a tank top.

The plaintiffs' First Amendment claim rests straightforwardly on the personal expression restricted by the ordinances, which not only require certain forms of clothing but also limit other forms of expression such as the display of tattoos.

On the other hand, while my expertise is admittedly with statutory EEO law, not the U.S. Constitution, the equal protection sex discrimination claim strikes me as a bit of a stretch. Unlike federal EEO law, such as Title VII of the Civil Rights Act of 1964, the U.S. Constitution only applies to intentional discrimination and does not apply to policies that were adopted for neutral reasons but that disproportionately exclude members of a particular group. Here, there seems to be little evidence of intentional discrimination against women, except possibly the fact that the ordinances seem to affect only women. The council apparently adopted the quick-service facilities ordinance to address the perceived "proliferation" in sex crimes associated with bikini barista stands, and even if the ordinance may be overkill, the council's decision to use a sledgehammer to kill a fly does not mean that it discriminated against bikini baristas because of their sex.

In addition to free expression and equal protection claims, the plaintiffs have thrown in a vagueness challenge. In this amusing article from Reason, the lead plaintiff explains that she's not sure what "anal cleft" means, but she thinks it refers to the part right above the butt crack. As for me, I'm pretty sure it means the butt crack itself, since the ordinance only prohibits exposure of the lower half of the anal cleft. This limitation ensures that plumbers and Homer Simpson will be off the hook. The plaintiffs' complaint also alleges that the lewdness ordinance requires women to cover up three-quarters of their breasts, but as I read the ordinance, women are allowed to leave almost three-quarters of their breasts uncovered -- only half of the breast below the top of the areola has to be covered. So maybe this confusion shows that the ordinance is indeed vague.

I'm not much of a coffee drinker, but I'm a big fan of free expression, so I'm rooting for the baristas.

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, September 22, 2017

Watford v. Jefferson County Public Schools: Is it unlawful to terminate or suspend arbitration proceedings if an employee files an EEOC charge?

In Watford v. Jefferson County Public Schools, No. 16-6183 (Sept. 1, 2017), the Sixth Circuit held that Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee for filing an EEOC charge by holding in abeyance an arbitration proceeding regarding the same claim raised in the EEOC charge. Previously, the Sixth Circuit had concluded in EEOC v. Sundance Rehabilitation Corp. that the termination of grievance proceedings constitutes an adverse action, so I think it's hard to quibble too much with the decision in Watford to extend that Sundance principle to encompass a delay in grievance or other ADR proceedings. By contrast, I think there's a lot of reason to question the underlying principle that terminating ADR proceedings upon the filing of an EEOC charge constitutes unlawful retaliation.

The question of whether delaying or terminating ADR proceedings constitutes an adverse action would seem to be controlled by the Supreme Court's decision in 14 Penn Plaza L.L.C. v. Pyett. The Court held in Pyett that union members are bound by a provision in a collective bargaining agreement that clearly and unmistakably requires them to arbitrate claims under federal EEO law. In contrast, the CBA provision at issue in Watford did not mandate that union members resolve their EEO claims through arbitration. Rather, it gave them a choice. In this regard, the Watford CBA treated union members more favorably than the kind of CBA provision endorsed in Pyett. If it is lawful to require union members to resolve EEO claims through arbitration, then it stands to reason that it must be lawful to allow them the choice about whether to resolve their claims through arbitration or judicial proceedings.

Still, even though I don't think a choice-of-forum provision can be viewed as retaliatory, I recognize the EEOC's concern that such a provision may discourage employees from filing charges. As the EEOC points out in its amicus brief in Watford:
It is true that employees may sometimes have to choose between arbitration and litigation, assuming that the arbitration fully addresses their statutory rights. That is a separate question, however, from whether they must choose between arbitration and filing an EEOC charge. The latter choice is impermissible. 
This dichotomy may seem confusing, but it reflects the dual purpose of EEOC proceedings, which are intended to vindicate not only an employee's individual claim for relief but also the larger public interest in eradicating employment discrimination. In its amicus brief, the EEOC explained: "In a small number of cases, the EEOC sues respondents in federal court, where it acts not as the representative of the charging party, but on behalf of the public at large." The EEOC has accordingly recognized that, while someone can waive his individual claim for relief through EEOC proceedings, he cannot waive the broader public interest in EEOC proceedings.

So where does that leave us?

There are two competing principles. Providing an employee the choice of forums to pursue an EEO claim is not an adverse action, yet an employee is not permitted to waive the right to file an EEOC charge.

In this case, it appears that the plaintiff's arbitration proceeding was held in abeyance after she filed an EEOC charge. As I've explained, I don't think this action can be regarded as retaliatory. At the same time, however, the plaintiff had the non-waivable right to file an EEOC charge, so there should have been some means for her to have filed a charge while still choosing to pursue her claim through arbitration. The filing of a charge under such circumstances would authorize the EEOC to consider the charge and obtain relief not for the employee herself but rather for the public at large. In most circumstances, a plaintiff would likely see little value in filing an EEOC charge that would not allow her to obtain individual relief, but since the right to file a charge cannot be waived, that right has to be preserved somehow.

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, September 21, 2017

White Glove Staffing v. Methodist Hospitals of Dallas: Confusing Coverage with Standing

Standing Bear
In White Glove Staffing v. Methodist Hospitals of Dallas, No. 3:17-CV-1158-K (N.D. Tex. Sept. 7, 2017), White Glove alleged that the defendant violated Title VII of the Civil Rights Act of 1964 by requiring it to replace Carolyn Clay, an African American woman who was assigned to work for the defendant as a prep cook, with a Hispanic worker. In rejecting White Glove's claim because White Glove was not in an employment relationship with the defendant, Judge Ed Kinkeade made the common error of confusing coverage with standing.

"Coverage" refers to the kind of practice that is prohibited by a law. The EEO laws only prohibit discrimination against "employees," so the requirement of an employment relationship is relevant to whether an alleged unlawful practice is covered by EEO law. In this case, the defendant allegedly discriminated against Clay by requiring that she be replaced because of her race. This action was covered by Title VII if Clay was the defendant's employee. Generally, a staffing firm worker is jointly employed by the staffing firm and the client to which he or she is assigned, but the existence of an employer-employee relationship must be evaluated on a case-by-case basis.

"Standing," on the the other hand, refers to whether an individual has the right to bring a lawsuit to seek a remedy for an allegedly discriminatory act. In the vast majority of cases, a plaintiff has alleged that he or she was personally subjected to discrimination, so standing is not in dispute. In rare cases, such as here, a plaintiff has alleged that he or she has standing to seek a remedy where a third party has been subjected to discrimination. Under Title VII, any "person aggrieved" by an alleged statutory violation has the right to bring a lawsuit.

In order for White Glove to pursue a Title VII claim, it must establish both coverage and standing. Coverage, as noted, requires that Clay have been the defendant's employee. Standing is more complicated, but it is not precluded merely because White Glove was not the defendant's employee. In Thompson v. North American Stainless, the Supreme Court rejected the contention that standing is limited to plaintiffs who were personally subjected to discrimination. Instead, the term "person aggrieved" allows a lawsuit by "any plaintiff with an interest 'arguably [sought] to be protected by the statutes.'"

Of course, even if, as I contend, Judge Kinkeade, has confused coverage and standing, it does not necessarily follow that White Glove has standing to bring a lawsuit alleging that it was aggrieved by discrimination against Clay. A plaintiff might find it easier to establish third-party standing if he is an employee. Indeed, in Thompson, the Court noted that Eric Thompson's former status as an employee weighed in favor of third-party standing where he was allegedly fired to retaliate against his girlfriend because she had alleged sex discrimination. But after Thompson, other courts have recognized third-party standing even in the absence of an employment relationship between the plaintiff and the defendant, such as where a contractor was harmed by retaliation against an employee. During oral arguments in Thompson, some Justices raised absurd examples of plaintiffs claiming to be aggrieved, such as a barber alleging that he was harmed by the unlawful termination of a client who could no longer afford to get as many haircuts. The injury alleged by White Glove -- loss of revenue from the defendant's alleged refusal to accept assignments by non-Hispanic workers -- by contrast, seems to be much more closely tied to the central purpose of Title VII.

And so while not a slam dunk, White Glove's Title VII suit shouldn't be rejected solely because of the absence of an employment relationship with the defendant.

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.

HIcks v. City of Tuscaloosa: Employers May Be Required to Accommodate Breastfeeding

In Hicks v. City of Tuscaloosa, No. 16-13003 (Sept. 7, 2017), the Eleventh Circuit upheld a jury verdict that Stephanie Hicks, a narcotics officer, was constructively discharged when she was denied "alternative duty" as an accommodation while she was breastfeeding. Notably, this decision is the first to extend the Supreme Court's decision in Young v. UPS to breastfeeding.

Under Young, an employee may be able to establish intentional pregnancy discrimination where an employer provides an accommodation to non-pregnant employees but denies the same accommodation to pregnant employees who are similar in their ability or inability to work. In Hicks, the Eleventh Circuit held that discrimination based on breastfeeding constitutes a form of pregnancy discrimination since breastfeeding is a pregnancy-related "medical condition." Thus, denying an accommodation to a breastfeeding employee that is granted to a non-pregnant employee may constitute unlawful pregnancy discrimination.

Here, although it's hard to disagree with the Eleventh Circuit's broad holding applying Young to breastfeeding, I think the court's application of that rule in this particular case leaves much to be desired. In particular, under Young, an employer does not necessarily violate Title VII by denying an accommodation to pregnant employees that it provides to non-pregnant employees. Rather, the question is whether the plaintiff has provided sufficient evidence that 
the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather -- when considered along with the burden imposed -- give rise to an inference of intentional discrimination.
In upholding the jury verdict, the Eleventh Circuit failed to examine whether the evidence was sufficient to establish an inference of intentional discrimination. Significantly, the fact that an employer grants some non-pregnant workers a particular accommodation does not necessarily mean that pregnant workers are denied the accommodation because of pregnancy. It may instead merely be the case that some non-pregnant workers are being treated better for reasons unrelated to pregnancy. As the Eleventh Circuit stressed in Hicks, pregnant workers do not have the right to better treatment because of their pregnancy. Unfortunately, however, the court failed to look at whether the evidence was sufficient to show that pregnant (or breastfeeding) workers were singled out for worse treatment, and were not merely denied a special accommodation that the employer provided to a narrow subset of non-pregnant workers.

Finally, even if there was sufficient evidence that the denial of alternative duty to Hicks constituted intentional pregnancy discrimination, it is not at all clear that the denial was sufficient to constitute a constructive discharge. The city pointed out that the Police Chief offered to accommodate Hicks by "assigning her to a safe beat with access to lactation rooms, priority in receiving breaks, and a tailored vest." The court notes that the jury concluded that these conditions were so intolerable that a reasonable person would be forced to resign.  But not every adverse action constitutes a constructive discharge.  Even if Hicks was denied an accommodation because of her pregnancy, such a denial would not necessarily mean that she was constructively discharged. Considering what the City apparently offered Hicks in lieu of alternative duty, the reasonableness of her resignation is not clear on its face, and so the court should have provided some justification for affirming the jury's constructive discharge finding.

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 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.