Friday, April 21, 2017

The Recent Push to Prohibit Employers from Asking Applicants About Their Salary History

In the ongoing effort to combat the wage gap between men and women, there has been a recent push to prohibit employers from requiring, or even asking, job applicants to disclose their salary history. The thinking here seems to be that, although the consideration of prior salary may appear to be facially neutral, it can perpetuate sex-based wage disparities.

Last summer, Massachusetts became the first state to adopt legislation prohibiting salary history inquiries. Philadelphia has passed a similar law, but has decided to put it on hold for the time being in light of a lawsuit filed by the Chamber of Commerce for Greater Philadelphia contending that the ordinance is an unconstitutional restriction on speech. Last year, similar proposed legislation was introduced in the D.C. Council by member David Grosso and in the U.S. Congress by Eleanor Holmes Norton and three cosponsors.

These laws and bills vary to some extent, but they generally focus on inquiries about salary history before an offer of employment or a salary offer is extended to an prospective employee. Because they do not prohibit prospective employees from voluntarily disclosing their salary histories, they may not necessarily foreclose employers from relying on prior salary information to some extent in setting a new employee's starting pay. For example, some applicants will likely voluntarily disclose their current salaries to try to negotiate higher starting pay with prospective employers. If an applicant currently earns $100,000 annually working for a competitor, an employer will likely have to offer at least that much to entice the individual to jump ship.

Although federal EEO law does not prohibit questions about salary history, that does not mean that employers are free to rely willy nilly on prior salary in setting a new employee's starting pay. Under the Equal Pay Act, an employer can only justify a wage discrepancy between employees of the opposite sex performing the same job by showing that the discrepancy is based on a factor other than sex. To the extent a prospective employee's prior salary is grounded in sex discrimination, reliance on that prior salary would not constitute a factor other than sex. Thus, in its Compliance Manual, the EEOC explains that it is impermissible under the Equal Pay Act to rely solely on prior salary to justify a pay discrepancy between a man and a woman in the same job:
However, if the employer can prove that sex was not a factor in its consideration of prior salary, and that other factors were also considered, then the justification can succeed. The employer could, for example, show that it: (1) determined that the prior salary accurately reflected the employee's ability based on his or her job-related qualifications; and (2) considered the prior salary, but did not rely solely on it in setting the employee's current salary.
Federal agencies are authorized by federal law and regulation to consider an applicant's existing salary in some circumstances when setting a new employee's starting salary. 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 minimum), and even that rate, he made less than in his previous job.

Although there seems to widespread concern about the potentially discriminatory effects of relying on prior salary, there also seems to be a recognition that salary history information has legitimate uses. At a minimum, new laws prohibiting salary inquiries may discourage employers from relying on an applicant's salary history as a default starting point for a salary negotiation. In this regard, employers may be required to determine the approximate salary range for a prospective employee based on the position being filled and the market value of the applicant's job-related skills and qualifications. Within that range, however, an applicant might still be able to use his or or her prior salary as a bargaining chip to try to negotiate for higher starting pay.









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, April 20, 2017

Hively v. Ivy Tech Community College: Implications for Transgender Bathroom Access

Likely to be overlooked as LGBT advocates celebrate Hively v. Ivy Tech Community College are the clear implications for transgender bathroom access.

LGBT advocates have argued that designating bathroom access on the basis of biological sex rather than gender identity constitutes unlawful sex discrimination against transgender individuals. In making this argument, advocates have relied almost exclusively on the Supreme Court's decision in Price Waterhouse v. Hopkins and on lower courts interpreting that decision in holding that discrimination against a transgender individual for being transgender constitutes impermissible sex stereotyping in violation of Title VII. 

For Price Waterhouse to provide support for bathroom access based on gender identity rather than biological sex, it obviously must say something more than that it is unlawful to treat biological men better than biological women. The EEOC, for instance, has concluded that, pursuant to Price Waterhouse, Title VII's prohibition against sex discrimination necessarily encompasses more than discrimination based on biological sex and must encompass discrimination based on "gender": 
That Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. 
In Hively, however, the majority clearly rejected this far-reaching interpretation of Price Waterhouse, holding that unlawful sex stereotyping merely involves discrimination on the basis of the "victim's biological sex (either as observed at birth or as modified, in the case of transsexuals)" -- in other words, treating a masculine biological man better than a masculine biological woman.

All of this is not to say that transgender bathroom access is necessarily outside the scope of Title VII. Only that it is not supported by the current case law, and advocates would be foolish not to change tacks. I've made this argument before, including in this post, as I had thought it already crystal clear that relying on Price Waterhouse to support transgender bathroom access is a non-starter. Now, with Hively's explanation that sex stereotyping merely involves discrimination based on biological sex, let us hope that LGBT advocates finally see the light.










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, April 16, 2017

LaPoint v. Family Orthodontics: When is it lawful to rescind a job offer after learning the offeree is pregnant and will need leave?

The case of LaPoint v. Family Orthodontics, A15-0396 (Minn. Apr. 5, 2017), illustrates the thin line between what's prohibited and what's not when it comes to the protection of pregnant workers. In this case, the Supreme Court of Minnesota looked at whether the defendant violated the Minnesota Human Rights Act by rescinding a job offer to Nicole LaPoint after finding out that she was pregnant and would be wanting 12 weeks of maternity leave when she gave birth.

Friday, April 14, 2017

Hively v. Ivy Tech Community College: The Dissent and the Concurrences

Following up on my previous post discussing aspects of the majority decision in Hively v. Ivy Tech Community College, this post focuses on the dissent by Judge Diane Sykes and the two concurrences by Judge Richard Posner and Judge Joel Flaum.

Wednesday, April 12, 2017

Hively v. Ivy Tech Community College: Some Lessons from the Majority Decision

The Seventh Circuit's en banc decision in Hively v. Ivy Tech Community College is the first decision by a federal court of appeals to hold that Title VII of the Civil Rights Act of 1964 protects individuals against discrimination based on sexual orientation. In this post, I focus on a few important points about the majority decision by Judge Diane Wood that help place Hively in context: 1) Title VII only prohibits sexual orientation discrimination that constitutes sex discrimination between men and women; 2) sex stereotyping violates Title VII because it discriminates between men and women; and 3) religious organizations with religious objections to homosexuality may be permitted by Title VII to discriminate against gay men and lesbians.

Wednesday, April 5, 2017

Hively v. Ivy Tech. Community Coll.: No, the Seventh Circuit did not expand the coverage of Title VII

Yesterday, in Hively v. Ivy Tech Community College, the United States Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. This is a groundbreaking decision.

Significantly, the court did not expand the scope of Title VII. It has no authority to do so. It merely interpreted the term "sex," and concluded that sexual orientation discrimination necessarily means treating someone differently because he is male or because she is female.

The easiest way to understand this is to imagine an employer considering whether to hire a female applicant who happens to be married to a man. Then imagine the exact same scenario except change the sex of the applicant to male. If the employer would hire the first individual but not the second, that is sex discrimination, because the only reason for the different result is the applicant's sex. That's what sexual orientation entails -- straightforward sex discrimination.

We'll be hearing a lot about the Hively decision.





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, April 4, 2017

Dindinger v. Allsteel: The Equal Pay Act and Economic Conditions

With today being Equal Pay Day, I thought I'd highlight the Eighth Circuit's decision in Dindinger v. Allsteel, Inc., No. 16-1305 (Apr. 3, 2017). In this case, a jury found in favor of three female plaintiffs on their pay discrimination claims, but the defendant argued on appeal that it was entitled to a new trial because the district court "incorrectly instructed the jury that Allsteel could not rely on economic conditions to establish its affirmative defense that a factor other than sex justified the pay discrepancies between the plaintiffs and their male comparators."

Monday, March 27, 2017

Open Urinals, Sexual Harassment, and the Wacky Dutch

Bogaski v. County of Allegheny, No. 2:15-cv-00487 (W.D. Pa. Mar. 22, 2017), is a peculiar sexual harassment case that involves an "open urinal," which was located not in a bathroom but out in the open in a garage workspace frequented by Justine Bogaski, a Parks Department employee. Bogaski alleged a wide range of sexually harassing conduct, including patting her on the buttocks, comments about her body, and referring to her as "bitch" or "Barbie," but the parties disputed whether the defendant had sufficient notice of this conduct in order for it to be held liable. Judge Lisa Lenihan concluded, nonetheless, that Bogaski could proceed with her claim based solely on the existence of the open urinal:
A reasonable jury could certainly find the continued presence, and sanctioned routine use, of an open urinal in the North Park garage -- to which Plaintiff, when hired as the sole-female laborer, reported to receive daily work assignments and was otherwise present for job-related materials and duties during the work day -- to meet the elements comprising violation of Title VII.
I wanted to highlight this case because if you've ever been to Amsterdam, then you may have noticed that in certain parts of the city, particularly those with lots of bars, there are open urinals in which men relieve themselves in public view. The one pictured above is not in use, but if you search the internet, you can find plenty of photos with long rows of urinals and at least two men at each of them. Recently, Amsterdam has begun to install urinals with locking doors for women.


While I thought the street urinals were odd, I was really taken aback when I visited the science museum NEMO. The exhibit "Teen Facts" includes a large rectangular box that is used to demonstrate French kissing. One person stands on each side of the box, and they insert their arms to manipulate two gigantic tongues. The exhibit also features mannequins posed in dozens of sexual positions, including one called "the cat." Since this blog is rated PG-13, I haven't included a photo of the cat. Science, anyone? 

So are open urinals a well-justified convenience or an indefensible assault on our workplace sensibilities? I suppose there is no definitive answer. The pragmatic Dutch may view open urinals as a no-brainer. The urinal in the Bogaski case was no less discrete than one of Amsterdam's street urinals. It was the Duchamp "fountain"-type of urinal and was situated against the wall between two privacy walls made of cinder blocks. But the wacky Dutch, with their windmills, wooden shoes, and French kissing exhibits may not be the best measure for the American workplace. By comparison, we Americans are prudes when it comes to bodily functions and sexual conduct. Bogaski's claim has to be evaluated from the perspective of a reasonable woman in similar circumstances, which includes the social mores of American society and the American workplace.






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, March 16, 2017

Clark v. Top Shelf Entertainment: When is it sexual harassment to ask a topless dancer to show you her breasts?

Clark v. Top Shelf Entertainment, No. 3:16-cv-00144 (W.D.N.C. Mar. 13, 2017), is a thoughtful decision by District Court Judge Max Coburn Jr. that provides guidance on when an "exotic dancer" can allege sexual harassment for being asked to reveal her breasts. In this case, Asia Clark, who had signed an agreement to perform "clothed and topless," alleged that she was sexually harassed by a supervisor. 

In evaluating Clark's claim, Coburn explained:

[I]n a typical employment situation, an employer asking a female employee to reveal her breasts would be a textbook case of sexual harassment . . . . Where, however, the occupation of plaintiff is that of an exotic dancer that bright line becomes blurred. While the employer can certainly instruct the exotic dancer to remove her top in relation to her duties as an adult entertainer, that ability does not give the employer license to demand that the employee remove her top simply for his own personal gratification.
Clark alleged that a supervisor "constantly harassed her 'to remove her top and show him her breasts, because he thought they were "pretty"' and he did so 'nearly every time she worked'"; that the supervisor demanded that she show him her breasts outside the view of customers; and that some dancers were allowed to perform clothed.

Coburn rejected the employer's contention that it was merely enforcing the employment agreement. Although the agreement stated that Clark would perform topless, it did not enable the employer to "dictate that she go topless at the will of her supervisors." Read in the most favorable light, Clark's contention was that she was asked "to re
move her top for personal, prurient interests," and therefore, she could proceed with her sexual harassment claim.

As Coburn indicated, a topless dancer could not base a sexual harassment claim on sexual conduct that was necessary for her to perform her job duties. 
I recently watched the movie "The Graduate," and there's a scene in a strip club in which a dancer is wearing pasties with tassels, and she twirls the tassels in opposite directions. In a typical workplace, a woman might be able to allege sexual harassment if men stared at her breasts. But if your job calls for you to use your breasts to entertain customers, then you can't object to customers who stare at them during a mesmerizing exotic dance routine. I couldn't find a clip of this scene, but here's a how-to video if you want to learn to nipple tassel twirl, and apparently it's a skill that even men can learn. (The video has shirtless men, but the female instructor remains clothed.)

So the point is that a topless dancer is protected against sexual harassment, but generally cannot base a claim on sexual conduct that she should reasonably expect to be a normal part of doing the 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.

Tuesday, March 14, 2017

Evans v. Georgia Regional Hospital: The stereotype that gay men have sex with other men "disregard[s] the diversity of experiences of gay [men]" -- WTF?!


In Evans v. Georgia Regional Hospital, No. 15-15234 (Mar. 10, 2017), a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit voted 2 to 1, holding that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. The decision is not particularly surprising, given that this is what courts have been holding for over 50 years. What is particularly notable, however, is the peculiarly reasoned concurrence of Judge William Pryor.

Pryor concedes that it is unlawful to discriminate against an individual for not conforming with gender stereotypes. However, he faults the EEOC, which filed an amicus brief, and the dissent for stereotyping gay men and lesbians. And how, according to Pryor, are the EEOC and the dissent improperly stereotyping gay men and lesbians? They do so by assuming that gay men have sex with other men and that lesbians have sex with other women. These stereotypes "disregard the diversity of experiences of gay individuals." Yes, ladies and gentlemen, the EEOC should be faulted for ignoring the experiences of gay men who have sex with women and lesbians who have sex with men.

Saturday, March 11, 2017

In the Trump Administration, No Man-Made Climate Change But Long Live Cold Fusion

Hot Fusion
As you may have heard, concerned citizens have been flooding the Environmental Protection Agency with non-stop calls denouncing Administrator Scott Pruitt's rejection of climate change science. Fear no more, I think I have a solution, which lies in harnessing the insights of science skeptics.

Back in 2000, the EEOC issued a notorious decision regarding the Patent Office's termination of an employee allegedly for believing in cold fusion. Cold fusion is a purported means of generating energy through nuclear fusion at room temperature rather than at the millions of degrees normally required in the core of a star. The EEOC concluded that terminating an employee based on his cold fusion beliefs was possibly unlawful religious discrimination:

[C]omplainant argues that "[d]iscrimination against a person on account of his beliefs is the essence of discrimination on the basis of religion…." Therefore, complainant contends, his beliefs in cold fusion are protected.
. . .
"In determining which beliefs are protected under Title VII, the Supreme Court has held that the test is whether the belief professed by a complainant is sincerely held and whether it is, in his own scheme of things, religious." Moreover, in defining religious beliefs, our guidelines note that "the fact that no religious group espouses such beliefs … Will not determine whether the belief is a religious belief of the employee…."
In the instant case, complainant argues that his unconventional beliefs about cold fusion and other technologies should be viewed as a religion and therefore protected. Complainant claims he was terminated and denied the opportunity to be rehired because of religion, which embodies his cold fusion beliefs. Therefore, under the applicable law noted above, we find that the agency improperly dismissed complainant's claim of discrimination for failure to state a claim.
Now, I don't deny that unconventional beliefs can be "religious," but a belief is not religious merely because it is unconventional. Rather, it may be religious despite its being unconventional. But the initial question is whether a belief is religious, and the EEOC failed to answer that question. 

Such reasoning -- or lack thereof -- would ordinarily have been grounds for criticism. But no more. The EEOC's paean to unscience was prescient in anticipating a world in which climate change is not caused by humans and autism is caused by vaccines. A world of alternative facts in which all beliefs have equal validity.


We humans may not have caused climate change, but we can fix it. With cold fusion. And a few perpetual motion machines. So move over scientists, it's time for mystics, astrologers, and witch doctors to have their chance to shine.






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, March 1, 2017

Will Gloucester County School Board v. G.G. be the next Bowers v. Hardwick?

Not surprisingly, as reported on Scotusblog.com, the parties in Gloucester County School Board v. G.G. have not been deterred by the Trump administration's rescission of guidance addressing transgender bathroom access and have urged the Supreme Court to decide whether Title IX of the Education Amendments Act of 1972 requires the defendant to allow Gavin Grimm, a transgender boy, to use the boys' bathroom at his school.

Only a few days ago, I wrote this detailed post explaining the fundamental flaws in the arguments advanced on behalf of Grimm. Briefly, Grimm's counsel assumes the answer to the central question in this case: Is Grimm a boy or a girl when it comes to using the bathroom? The argument advanced by Grimm's counsel is, essentially, that Grimm gets to use the boys' bathroom because he's a boy. This is the fallacy of "begging the question," a form of circular reasoning.

Today, as advocates ask the Supreme Court to take up the newest issue of LGBT rights, the Court has a 4-4 conservative-liberal split, with one of the conservatives (Anthony Kennedy) siding with liberals in some significant cases. Grimm's counsel is urging the Court to proceed with the current schedule with oral arguments on March 28. If that schedule is kept, the case would be heard by an 8-member Court because confirmation hearings for Judge Neil Gorsuch do not begin until March 20. The defendant, on the other hand, has asked the Court to delay the case so that the Trump administration can provide its views, and presumably, so that Gorsuch is more likely to be on the Court by the time the case is heard.

The Grimm case must be placed in historical context.

In 1986, in a 5-4 decision in Bowers v. Hardwick, the Supreme Court upheld the constitutionality of a Georgia law that authorized a prison sentence of up to 20 years for a single act of sex between two consenting adults of the same sex, even in the privacy of a home. It took 17 years for that decision to be overturned in Lawrence v. Texas, in which Justice Kennedy wrote: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." 

In 2015, in Obergefell v. Hodges, Kennedy again pulled through for LGBT advocates in recognizing a constitutional right to same-sex marriage. Although Obergefell was a landmark decision in the struggle for LGBT equality, it was hardly groundbreaking. When it was issued, numerous courts had already recognized a right to same-sex marriage. And still, advocates did no better than a 5-4 victory at the Supreme Court.

The Court is historically a conservative institution. It tends not to lead the way when it comes to social progress. In contrast to when the Court took up the issue of same-sex marriage, there is almost no case law favoring transgender bathroom access. If the Court were to rule in Grimm's favor, it would truly be groundbreaking.

The hope may be that Kennedy will once again pull through for LGBT advocates. In contrast to Lawrence and Obergefell, however, the Grimm case does not require the Court to interpret the Constitution, which speaks in terms of broad principles of equality, justice, and human dignity, but rather to interpret specific statutory language proscribing certain forms of discrimination. And not to beat a dead horse, but advocates have not even provided a sound legal argument for ruling in favor of transgender bathroom access. 

Sure, the Grimm case may turn out to be the transgender equivalent of Brown v. Board of Education. But by almost every objective measure, it is much more likely to be the transgender equivalent of Bowers v. Hardwick








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, February 26, 2017

Transgender Bathroom Access: Why LGBT Advocates Would Do Well to Go Back to the Drawing Board (Addendum 2/28/17 discussing G.G. brief)

Although LGBT advocates have roundly criticized a recent Trump administration Dear Colleague Letter for backtracking on the issue of transgender bathroom access, the administration was justified in faulting the rescinded guidance for lacking "extensive legal analysis" and for failing to explain how the guidance is "consistent with the express language of Title IX." I don't dispute that those favoring transgender bathroom access have the moral high ground, but sometimes it is not enough for the force to be with you. You also need a sound legal argument.

Unfortunately, rather than being deterred by the rescission of the guidance, the parties appear to be proceeding full steam ahead in Gloucester County School Board v. G.G., in which a transgender boy, Gavin Grimm, is seeking access to the boys' bathroom at his high school. As discussed below, the legal analysis in the rescinded guidance -- a Department of Education opinion letter dated January 7, 2015, and an Obama administration Dear Colleague Letter dated May 13, 2016 -- is deeply flawed. Because the rescinded guidance tracks the analysis adopted by counsel for Grimm and by LGBT advocates, I think advocates would do well to use this opportunity to go back to the drawing board.


Sunday, February 19, 2017

The Curious Case of the Racist Bisexual Harasser

Imagine that Jane is sexually harassed by her bisexual supervisor, John. He threatens to fire her if she does not have sex with him. Has Jane been subjected to discrimination because she is female? The answer is no, because John is bisexual, and he therefore might have targeted Jane's male coworker with sexual advances. Thus, in Holman v. Indiana, the Seventh Circuit affirmed the dismissal of a sexual harassment claim filed by a married couple who alleged that their joint supervisor directed sexual proposals at both of them.

But suppose that John, though bisexual, is only sexually attracted to African Americans, and he propositioned Jane, in part, because she is African American. Meet the racist bisexual harasser. His conduct does not discriminate based on sex, but it does discriminate based on race.

Friday, February 17, 2017

The State Secrets Doctrine: The "Unfortunate Burden" Borne on "Behalf of the Entire Country"

As you might have guessed, the state secrets doctrine protects against the disclosure of state secrets -- "military matters which, in the interest of national security, should not be divulged." In Abilt v. Central Intelligence Agency, No. 15-2568 (4th Cir. Feb. 8, 2017), that doctrine was the undoing of covert agent Jacob Abilt -- not his real name -- who alleged that the CIA unlawfully discriminated against him based on his disability, including by canceling his assignment to a warzone.

Thursday, February 16, 2017

Fisher v. Lufkin Industries: When does "cat's paw" liability apply to coworker discrimination?

In Fisher v. Lufkin Industries, Inc., No. 15-40428 (Feb. 10, 2017), the Fifth Circuit overlooked agency principles in mistakenly concluding that the "cat's paw" theory applies in the same manner to the discriminatory actions of a coworker as it does to the discriminatory actions of a supervisor acting in his official capacity.

Saturday, February 11, 2017

Judge Gorsuch and the McDonnell Douglas Framework: Throwing Out the Baby with the Bathwater


Were Supreme Court nominee Neil Gorsuch to have his druthers, courts would ditch the McDonnell Douglas framework. Adopted by the Supreme Court in 1973 in the case of McDonnell Douglas Corp. v. Green, the eponymously named framework is used by courts and juries to evaluate whether a plaintiff's evidence is sufficient to establish that he or she was subjected to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964 or another EEO law. It is hard to overstate the central role played by the McDonnell Douglas framework in the litigation of EEO claims. Doing away with it would be earth-shattering. Extraordinary changes require extraordinary reasons, and as discussed below, I don't believe Gorsuch has provided extraordinary reasons.

Saturday, February 4, 2017

Judge Gorsuch and Penis Phobia


No penis phobia here
There is an outside chance that Supreme Court nominee Neil Gorsuch will be confirmed by the Senate in time to hear oral arguments at the end of March in Gloucester County School Board v. G.G., in which a transgender boy has alleged that he was subjected to sex discrimination in violation of Title IX of the Education Amendments of 1972 when his school denied him access to the boys' bathroom.

In 2009, Gorsuch was a member of a three-judge panel in Kastl v. Maricopa County Community College, 325 F. App'x 492 (9th Cir. 2009), which rejected Rebecca Kastl's claim that she was subjected to sex discrimination when she was denied access to the women's bathroom before she had gender reassignment surgery. (Gorsuch ordinarily sits on the 10th Circuit, but was serving as a visiting judge in this case.) The court concluded that Kastl had presented a facial case of sex discrimination but that she could not refute the employer's assertion that it had banned her from the women's restroom for safety reasons.

Sunday, January 29, 2017

Title VII and Sexual Orientation Discrimination: What would Justice Scalia have said?

Riverside Geyser in Yellowstone NP
On January 20, 2017, as Donald Trump was being sworn in as President, a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard oral arguments regarding whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The case is Christiansen v. Omnicom Group, No. 16-748-cv, in which Matthew Christiansen, a marketing firm employee, has alleged that he was harassed for being gay. As discussed below, one of the arguments raised for covering sexual orientation under Title VII blatantly misappropriates the words of the late Justice Antonin Scalia and has him rolling over in his grave.

Friday, January 20, 2017

DeWitt v. Southwestern Bell Tel. Co.: When can an employer fire an employee with a disability for poor performance?

In DeWitt v. Southwestern Bell Telephone Co., No. 14-3192 (10th Cir. Jan. 18, 2017), the court held that the defendant did not deny Janna DeWitt, a customer service representative at a call center, a reasonable accommodation in violation of the Americans with Disabilities Act when it fired her for hanging up on two customers. The court reasoned that DeWitt, an insulin-dependent diabetic, did not request an accommodation to prevent her from dropping customer calls:
[I]nstead, she requested retroactive leniency for her misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung up on at least two customers while on a Last Chance Agreement. Such retroactive leniency is not a "reasonable accommodation" as defined by the [ADA].

Monday, January 16, 2017

Karlo v. Pittsburgh Glass Works: The Infinitude of Disparate Impact Claims

In Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435 (3d Cir. Jan. 10, 2017), the court held that the Age Discrimination in Employment Act (ADEA) covers claims of disparate impact (unintentional discrimination) involving a subset of the protected group of workers under the ADEA. This means that although the ADEA prohibits age discrimination against all workers 40 and older, an ADEA disparate impact claim can be based on the effects of an employment practice on, for example, workers 50 and older and need not be based on the effects on all workers 40 and older. This is significant because the same employment practice can have an adverse effect on older workers in the protected group but not on younger workers in the protected group.

Sunday, January 8, 2017

Breasts, part 2: Is it unlawful sex discrimination to require female employees to wear bras?

Following on the heels of my recent post about breastaurants, the recent decision in Baez v. Anne Fontaine USA, Inc., No. 14-cv-6621 (KBF) (S.D.N.Y. Jan. 5, 2017), gives me an excuse to delve more deeply into the intersection of EEO law and bosoms. In Baez, Judge Katherine Forrest concluded that Rochelly Baez, a regional manager for a clothing retailer, had presented sufficient evidence for a jurgy to find that she was unlawfully fired in retaliation for complaining about rumors that she had worn a revealing shirt and no bra in a meeting with the CEO, thereby showing him her breasts.

Friday, January 6, 2017

Celebrating Breastaurants and the Trump Inauguration

With Donald Trump's inauguration as America's 45th President only two weeks away, I thought it an opportune time to highlight the 20th anniversary of the landmark 1997 settlement of sex discrimination claims brought by men denied employment by Hooters. As a result of the settlement, Hooters agreed that it would fill some positions without regard to sex, but the iconic Hooters Girl has continued to be the public face/bosom of the company.

Tuesday, January 3, 2017

Hale v. Johnson: National Security and EEO Law

Under EEO law, there are two primary exceptions for practices implicating national security, and in Hale v. Johnson, No. 16-5475 (6th Cir. Dec. 29, 2016), the Tennessee Valley Authority tried to stretch the bounds of both of these exceptions. In Hale, the United States Court of Appeals for the Sixth Circuit rejected the TVA's contentions that the court lacked jurisdiction over the disability discrimination claim of James Hale because the decision to terminate Hale for failing a physical fitness test was based on considerations of national security.