Thursday, December 28, 2017

EEOC v. Jetstream Ground Services: When is a plaintiff entitled to a presumption regarding an employer's destruction of evidence even though it was not in bad faith?

In EEOC v. Jetstream Ground Services, No. 17-1003 (10th Cir. Dec. 28, 2017), the issue presented was whether the jury, which had ruled for the defendant, should have been instructed that records improperly destroyed by the defendant in violation of an EEOC recordkeeping regulation would have bolstered the EEOC's case. In rejecting the EEOC's appeal, the court concluded that, although circuit precedent strongly suggested that a violation of the EEOC regulation, even if not in bad faith, creates a presumption that the factfinder should be informed about, this case was distinguishable for two reasons. First, the EEOC's proposed instruction would have established an irrebuttable presumption. And second, the defendant had presented evidence rebutting the presumption. Relying on the Federal Rules of Evidence, the court reasoned that the burden of proof as to the presumption remains with the plaintiff, so the defendant can rebut the presumption by merely producing evidence contradicting the presumption and need not prove the opposite of the presumed fact. Since the defendant had produced such evidence, there was no longer any basis for the presumption, and it would have been improper for the jury instruction to have mentioned it.

I don't know enough about this area of the law to have an opinion as to whether the court's decision is correct. Still, I wouldn't expect the EEOC to be too happy. The court significantly diminishes the potential benefit that a plaintiff can get from any presumption created by an employer's recordkeeping violation, assuming it was not in bad faith. If the EEOC seeks rehearing, I would expect it to be on this issue.






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.

Villalobos v. TWC Administration LLC: Is firing someone for having a disability a defense to an allegation of age discrimination?

In Villalobos v. TWC Administration LLC, No. 16-55288 (Dec. 26, 2017), the Ninth Circuit held that the defendant could not rebut Ralph Villalobos's prima facie case of age discrimination under the California Fair Employment and Housing Act based on evidence that it fired him because of "his repeated, prolonged leaves of absence." In the court's view, because the absences were the result of
Villalobos's disability, an adverse action based on the absences was also based on disability. Because the employer's asserted reason for terminating Villalobos was "neither legitimate nor non-discriminatory," it was insufficient to rebut his prima facie case of age discrimination.


As I see it, the court's analysis reflects a fundamental misunderstanding of how discrimination is established under the McDonnell Douglas framework, which is the indirect method of proof that Villalobos relied upon to try to establish his age discrimination claim. Under the McDonnell Douglas framework: 1) the plaintiff establishes a prima facie case, which is essentially a weak inference that an adverse employment decision was based on a prohibited characteristic, such as age as in the case at hand; 2) the defendant produces evidence that the adverse employment decision was based on a nondiscriminatory reason, such as job performance; and 3) the plaintiff proves that the employer's asserted reason in prong 2 was a pretext for discrimination based on the prohibited characteristic identified in prong 1. Here, the court concluded that the defendant failed to rebut the plaintiff's prima facie case of age discrimination by asserting that it had engaged in disability discrimination. Although the court recognized that the employer's reason did not reflect discrimination based on age, it explained that "an otherwise unlawful proffered reason cannot satisfy the employer's burden at step two even if it is not facially discriminatory toward the particular protected class on which the claim is based."

The Ninth Circuit's analysis is contrary to the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In Hazen Paper, the Supreme Court looked at whether an employer would be in violation of the federal Age Discrimination in Employment Act if it were to fire an employee in order to prevent his pension benefits from vesting. The Court concluded that, while such a practice would be actionable under the Employee Retirement Income Security Act, it would not by itself violate the ADEA:
That law requires the employer to ignore an employee's age (absent a statutory exemption or defense); it does not specify further characteristics that an employer must also ignore. Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (creating proof framework applicable to ADEA) (employer must have "legitimate, nondiscriminatory reason" for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee's race is an improper reason, but it is improper under Title VII, not the ADEA.
Similarly, if an employee alleges age discrimination, then evidence that the employer has engaged in disability discrimination may be relevant to a claim of disability discrimination, but it is not sufficient by itself to establish that the employer also engaged in age discrimination. Logically speaking, it's obvious that if evidence of disability discrimination is per se evidence of age discrimination, then it's also per se evidence of sex discrimination, race discrimination, and so on ad infinitum. This would be patently absurd. The only kind of reason that fails to rebut a claim of age discrimination is an age-based reason, such as asserting that a worker was fired because older workers tend to be less reliable.

The error of the Ninth Circuit's ways is even starker if we look at its decision in Santillan v. USA Waste of California, Inc., 853 F.3d 1035 (9th Cir. 2017). In that decision, the court held that the defendant could not rebut Gilberto Santillan's prima facie case of age discrimination under the California Fair Employment and Housing Act by asserting that it failed to reinstate him because he lacked proper work authorization under the federal Immigration Reform and Control Act. Because the court concluded that IRCA exempted Santillan from this requirement, the employer's reliance on IRCA was not a legitimate reason for failing to reinstate Santillan and therefore not a defense to his assertion of age discrimination. 

Little reflection is needed to see that this analysis makes no sense. If an employer's assertion that it failed to reinstate an employee because he lacked work authorization rebuts a claim of age discrimination when the employer is correct, then why does it fail to do so when it is an honest mistake? In either case, the employer has not engaged in age discrimination. As noted in Hazen Paper, an employer may violate ERISA by firing an employee to prevent his pension benefits from vesting, but that does not mean it has violated the ADEA. Likewise, an employer may violate IRCA by requiring certain documents, but how does that establish that it engaged in age discrimination? Under the analysis followed by the Ninth Circuit in Santillan and Villalobos, a violation of one statute is also essentially a violation of any other statute. And if the need for a "legitimate" reason requires more than merely a lawful reason, then employers may be subject to courts second-guessing their business decisions even when they are not specifically prohibited by statute. 

You may wonder, however, what's the harm? If disability discrimination is unlawful, then how can it be a defense to a claim of age discrimination. In Villalobos's case, it might not make any real difference since, pursuant to the California law under which he brought his claim, it is unlawful for an employer to discriminate based on age or disability. However, federal law has two distinct statutes prohibiting age and disability discrimination, and these have somewhat different requirements for coverage. And in Hazen Paper and Santillan, the employers' asserted reasons were arguably unlawful, but they were potentially violations of entirely different laws unrelated to discrimination. Different laws have different coverage requirements, different procedures, and different remedies, so an employee must bring his claim under the specific statute that applies to the employer's action.

Notably, Villalobos and Santillan both involve claims under the California Fair Employment and Housing Act, so maybe there's something peculiar about that law. But if so, I'm not sure what distinguishes it from federal law. Both decisions also purport to be applying the McDonnell Douglas framework, so there's no reason to think that the Ninth Circuit would have rejected the claims had they been brought under federal law. More likely, the Ninth Circuit is just wrong.






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.

Sunday, December 17, 2017

NLRB says maintaining workplace civility rules is lawful, but applying them may still be unlawful in some cases

Changing its position, the National Labor Relations Board has endorsed workplace civility rules in a new decision, Boeing Company & Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, Cases 19–CA–090932, 19–CA–090948, and 19–CA–09592. Previously, the Board had invalidated workplace policies requiring basic civility, where they could be reasonably construed as prohibiting conduct protected by the National Labor Relations Act. In a new balancing test, the Board concluded that even if workplace civility rules can be reasonably interpreted as prohibiting conduct protected by the Act, "the potential impact on protected rights is outweighed by justifications associated with the rule."

As a "promising practice" for preventing unlawful harassment, the EEOC has endorsed civility and "respect workplace" training, so the Board's change in position relieves some of the tension between the two agencies' stances on addressing harassment.

Significantly, the Board explained that, "[a]lthough the maintenance of [certain] rules will be lawful, the application of such rules to employees who have engaged in NLRA-protected conduct may violate the Act, depending on the particular circumstances presented in a given case." For example, in Cooper Tire & Rubber Co. v. NLRB, the Eighth Circuit upheld a decision by the NLRB that Cooper Tire violated the Act by firing an employee for making racist statements on the picket line (see this prior post). Pursuant to the Board's new Boeing decision, it might not violate the NLRA to adopt a rule prohibiting racist conduct, even if it is on the picket line, but it still might be unlawful to take certain actions against an individual who engaged in protected conduct. 

Although the Cooper Tire decision has been criticized by some employer groups for placing employers in a no-win situation -- either violating the NLRA or Title VII -- such concerns appear to be overblown. A report by Acting Chair Victoria Lipnic and Commissioner Chai Feldblum cautions against adoption of "zero tolerance" policies that impose a "one-size-fits-all" approach. Instead, responses to harassment should be proportionate to the offense. In Cooper Tire, the court noted that even if the employer was obligated to take some action in response to the racist picket line conduct at issue in that case, it was not obligated to fire the perpetrator. Indeed, the discipline imposed in Cooper Tire may have exceeded what the EEOC would have recommended. 


In Boeing, the Board has sought to balance "employee rights and employer interests," so even if the Board does not narrow what it considers to be protected picket line conduct, it may uphold some forms of discipline imposed for protected conduct. Thus, even if an employer could not justify firing an employee for picket line conduct, the Board might conclude that less severe forms of discipline would be permissible under the Act.











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, December 16, 2017

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

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

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


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

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


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

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

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

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

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


Protecting someone's right to practice his religion may be commendable, but let's not forget about the Constitution.










This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Tuesday, December 12, 2017

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

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

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

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

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

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







This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Wednesday, December 6, 2017

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

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

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

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






This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Friday, December 1, 2017

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

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

In my view, the "salary range" approach, utilized by the defendants in both Lauderdale and Rizo -- in which an employer does not unrestrictedly base a new employee's pay on his or her prior salary but instead uses prior salary to set pay within a pre-determined range -- is the most reasonable and balanced approach to using prior salary to set a new employee's starting pay. As I explained previously:
It is almost certainly impossible for an employer to determine with pinpoint accuracy the market value of a particular job and an employee's qualifications. There will always be some range of what can be considered reasonable pay for an individual with particular qualifications to perform a particular job. In my view, therefore, a reasonable and balanced approach to considering prior pay in setting a new employee's starting salary is for an employer to (1) establish a pay range for a new employee based on the position being filled and the applicant's qualifications and (2) then use salary history to set the new employee's pay within that range. . . .
For example, in North v. United States, the court upheld a salary discrepancy between the plaintiff, a female attorney hired at the GS-14 level by the Department of Education, and a man who was also hired as a GS-14 attorney. The court concluded that the pay disparity did not violate the Equal Pay Act because it was based on the male attorney's "superior" qualifications and prior salary. Although the plaintiff also had superior qualifications -- meaning that she and the male attorney were both considered "highly qualified" for the position -- her starting salary exceeded her prior salary, so her pay was set at the lowest step of the GS-14 pay grade. The male comparator's salary, by contrast was set at the highest step of the GS-14 pay grade (almost $30,000 above the lowest step), and even at that rate, he made less than in his previous job.

The salary range approach is consistent with the recently introduced Paycheck Fairness Act, H.R. 1869, which would amend the Equal Pay Act to restrict employers' reliance on salary history. . . . Specifically, the bill provides that it is unlawful for an employer to "seek from a prospective employee or any current or former employer the wage history of the prospective employee, except that an employer may seek to confirm prior wage information only after an offer of employment with compensation has been made to the prospective employee and the prospective employee responds to the offer by providing prior wage information to support a wage higher than that offered by the employer." Thus, although the bill prohibits employers from requiring applicants to disclose their salary history, it does not prohibit employers from relying on salary history in setting pay when salary history is voluntarily disclosed by applicants, and the bill contemplates that salary history will be used by applicants to negotiate for higher pay. Moreover, like the pay range approach discussed above, the bill requires an employer to make an initial assessment of an appropriate starting salary for a new employee. 
In Rizo, the Ninth Circuit will be deciding whether prior salary can ever be the sole factor in setting pay. I don't think the salary range approach relies solely on prior salary in setting a new employee's pay -- another factor is the pre-determined salary range -- so I'm dumbfounded as to why the Ninth Circuit is even entertaining Rizo's claim. No one is contending that prior salary cannot be any factor in setting pay, only that it can't be the sole factor.

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











This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Wednesday, November 29, 2017

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

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










This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Friday, November 24, 2017

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

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

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

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







This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Thursday, November 16, 2017

The Limits of Comparing Transracial and Transgender Status

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

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

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

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

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









This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

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 cake 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.