Tuesday, July 18, 2017

Barbuto v. Advantage Sales & Marketing: Is it unlawful to fire an employee for using medical marijuana?

In Barbuto v. Advantage Sales & Marketing, No. SJC-12226 (July 17, 2017), the Supreme Court of Massachusetts held that an employer may be required by Massachusetts state law to accommodate an employee who uses marijuana to treat a disabling medical condition. The court rejected the employer's contention that accommodating marijuana use is per se unreasonable because federal law continues to prohibit marijuana possession even when legally prescribed by a physician. 

Barbuto is notable for being perhaps the first major decision in which a court has held that users of medical marijuana may enjoy some protections in the employment arena. The court explained:

Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under [Massachusetts law] not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.
Significantly, the court pointed out that, under Massachusetts law, a user of medical marijuana is not merely protected against arrest, prosecution, or civil penalty for medical use of marijuana, but also may not be "denied any right or privilege." As a result, an exception to an employer's drug policy could not possibly be a facially unreasonable accommodation, or else an employee would be deprived of the "right or privilege" of employment solely because of the use of medical marijuana.

By contrast, as the Massachusetts Supreme Court noted, the California Supreme Court rejected a disability discrimination claim under California law by an employee who was terminated for use of medical marijuana. Unlike the Massachusetts law authorizing medical marijuana, the California law does not protect users of medical marijuana against the denial of "any right or privilege." Thus, in Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), the California Supreme Court held that California law merely protects medical marijuana users against criminal penalties and does not require employers to accommodate marijuana use by their employees.

Although tolerating the use of medical marijuana is a facially reasonable accommodation under Massachusetts law, such an accommodation is not required if, as with any other reasonable accommodation, the employer can show that it would pose an undue hardship, As examples, the Massachusetts Supreme Court noted that accommodating medical marijuana might create an undue hardship if it impairs an employee's work performance or poses an "unacceptably significant" public safety risk or if the accommodation would violate a statutory obligation under federal law.

Because federal law has not made an exception for medical marijuana, users of medical marijuana are limited to seeking protection under state or local laws. The Americans with Disabilities Act does not prohibit an employer from basing an action on an employee's use of illegal drugs as provided by federal law. 

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, July 16, 2017

Guerrero v. California Department of Corrections & Rehabilitation: Individualized Assessment of the Use of an Invalid Social Security Number

The day before my recent post on Hardie v. NCAA, the Ninth Circuit issued Guerrero v. California Department of Corrections & Rehabilitation (July 12, 2017), upholding the district court's verdict for the plaintiff in a challenge to the defendant's policy of rejecting some job applicants for corrections officer positions who had previously used another Social Security number. The district court and appeals court analyzed the legality of the challenged SSN policy in the same way they would have analyzed a criminal record policy, concluding that the defendant failed to established that it engaged in individualized assessments of applicants who had previously used invalid SSNs.

I’ve discussed District Court Judge William Alsup's opinion in a prior post, and faulted it for incorrectly looking at the defendant's application of the challenged policy to Guerrero, rather than looking at the application of the policy more generally:

[T]o establish business necessity with respect to a criminal records policy, an employer is generally required to make an individualized assessment in each case as to whether a particular applicant's criminal record disqualifies him. If an employer's process of performing individual assessments is sufficiently robust, then it should satisfy the business necessity defense, regardless of whether each and every person excluded under the policy was actually unfit. As the district court noted, an employer is not required to establish a "perfect positive correlation between the selection criteria and the important elements of work." Rather, a screen need only be "significantly correlated" with or predictive of important elements of the job.
Nonetheless, Alsup framed the question as whether the defendant "individually assessed Guerrero's application in practice," and in the court's view, there was no evidence that the defendant "paid anything more than lip service" to the plaintiff's individual circumstances.

On appeal, the Ninth Circuit gave the district court the benefit of the doubt. In upholding the district court's decision, the Ninth Circuit noted that Judge Alsup had found that the defendant had not actually engaged in an individualized assessment of Guerrero and at least three other Latino candidates. This number may seem small, but there were only nine candidates in total, all of whom were Latino, who were rejected, at least in part, for having previously used an invalid Social Security number. Moreover, the district court had faulted the defendant for having apparently misunderstood Guerrero's explanation as to why he had previously used an invalid Social Security number even after he had obtained an Individual Taxpayer Identification Number:

[The defendant] should have known (but did not) that an ITIN and an SSN are completely separate and do not substitute one for the other. Guerrero applied for the ITIN so he could pay his taxes, precisely because he did not have a valid SSN. The ITIN, however, could never have been a substitute for an SSN, valid or invalid.
These facts, as determined by Alsup, suggested that the defendant generally failed to engage in individualized assessments and that the lapse in Guerrero's case was not an isolated instance. Moreover, if the defendant did not understand the reasons why an individual may have previously used a different Social Security number, it could not reasonably evaluate whether an individual should be disqualified under circumstances similar to Guerrero's.

In the end, then, although Alsup may have framed the issue too narrowly by focusing on how the defendant treated the plaintiff, his fact findings were sufficient to support a broader conclusion that the defendant’s practice of performing individualized assessments was inadequate in general, and not merely in Guerrero's case.

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

Thursday, July 13, 2017

Hardie v. NCAA: Using Individualized Assessments to Screen Applicants with Criminal Records

The Ninth Circuit's decision in Hardie v. NCAA, No. 15-55576 (June 27, 2017), is an unusual case that looks at a criminal records screening policy in the context of a public accommodation, rather than in the more common employment context. This peculiarity highlights an issue that is not typically addressed, namely whether policies that make individualized assessments of the fitness of individuals with felony convictions are less discriminatory than blanket policies that exclude all individuals with criminal records. Individualized assessments are touted by the EEOC and civil rights advocates for their fundamental fairness, but little attention has been paid to whether they actually reduce discrimination.

Pursuant to the NCAA's Participant Approval Policy, anyone with a felony conviction is prohibited from coaching at an NCAA-certified nonscholastic youth athletic tournament. NCAA certification matters so much because coaches and recruiters from Division I schools are only permitted to attend tournaments that have NCAA certification. Dominic Hardie alleged that the Participant Approval Policy denied him a public accommodation in violation of Title II of the Civil Rights Act, which provides that "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination on the ground of race, color, religion, or national origin." Hardie did not allege that the felony conviction policy constituted intentional discrimination (disparate treatment) in violation of the statute. Rather, he alleged that the policy constituted a disparate impact violation because it disproportionately excludes African Americans, who are more likely to have felony convictions than are whites, and the defendant could have instead adopted an alternative with less of a discriminatory impact.

The parties agreed that, assuming disparate impact claims are covered by Title II, the Supreme Court's decision in Wards Cove Packing Co. v. Atonio provides the governing framework: 1) the plaintiff must establish a prima facie case by showing that the challenged policy has a "significantly disparate impact" on a protected group, such as African Americans; 2) if the plaintiff establishes a prima facie case, the defendant must provide evidence that the practice serves legitimate goals in a significant way; and 3) even if the defendant has provided sufficient justification for the practice, the plaintiff can prevail by establishing that there is an alternative practice that is equally effective in advancing the defendant's interests while having less of a discriminatory impact on the protected group.

The parties did not seriously dispute the first two steps of this analysis. Hardie provided evidence that the criminal record policy excluded African Americans at a disproportionate rate, and the defendant did not contest the showing of disparate impact. The NCAA, in turn, contended that the policy serves its interest in "protecting the safety of the children who participate in the tournaments and the integrity of the NCAA's recruiting process and college athletics more generally." Hardie, "for the most part," accepted this rationale as legitimate, leaving only the question of whether there was a less discriminatory and equally effective alternative.

Hardie proposed two alternatives to the NCAA's felony conviction policy: a more limited policy of excluding only applicants with convictions for violent felonies or the use of individualized assessments to calculate the actual risks posed by applicants.

Because Hardie's conviction was for a nonviolent felony (drug possession), he would not have been excluded under the more limited policy he proposed. Rejecting this alternative, however, the court concluded that Hardie failed to show that it would be equally effective in promoting the NCAA's interests. Even if the increased risk of not excluding all felons was small, Hardie did not provide evidence that it was "immaterial to protecting the safety of young athletes." Nor was there evidence addressing the increased risk that the integrity of college athletics would be compromised by nonviolent crimes such as sports bribery.

In support of individual assessments as an alternative, Hardie's human resources expert, Lester Rosen, stated that individualized assessments may take into account factors such as "any mitigating circumstance about the offense, the age of the offense, . . . past employment, educational achievements since the offense, and other signs of rehabilitation." Hardie also pointed to the EEOC's recommendation that employers adopt individualized assessments to avoid liability when considering criminal records in the employment context.

The court rejected this second proposed alternative because Hardie had failed to provide evidence that the practice of making individualized assessments would be less discriminatory than the blanket policy. "Neither the Rosen report nor the EEOC Guidelines predict the racial effect of individualized assessments on the NCAA's applicant pool in particular. Without more, we cannot say that Hardie has met his burden to show that individualized assessments would be a less discriminatory alternative to the current Participant Approval Policy."

As the Hardie decision demonstrates, the question is not whether an alternative is fairer or excludes fewer individuals, but whether the difference between the rate at which African Americans are excluded and the rate at which whites are excluded is less under the alternative. For example, if a blanket conviction policy excludes 40 out of 100 African Americans and 40 out of 200 whites, then African Americans are excluded at double the rate of whites (40% vs. 20%). If an individualized assessment halves the exclusion rate for both groups, resulting in the exclusion of 20 out of 100 African Americans and 20 out of 200 whites, then blacks are still excluded at double the rate of whites (20% vs. 10%), so the latter policy is equally discriminatory. In order to be less discriminatory, the use of individualized assessments would have to disproportionately benefit African Americans

You might wonder, then, what basis does the EEOC have for recommending that employers use individualized assessments? The reason has to do with the difference between how disparate impact claims are analyzed under Title II and Title VII. Under the Wards Cove framework, which applies in Title II cases, a defendant can rebut a prima facie case by merely presenting evidence that a "challenged practice serves, in a significant way, the legitimate . . . goals of the [defendant]." By contrast, the EEOC states, in its Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, that a practice challenged under Title VII must "bear a demonstrable relationship to successful performance of the jobs for which it was used" and "measure[] the person for the job and not the person in the abstract." The employer also must show that the policy is "necessary to safe and efficient job performance."

As should be obvious, the standards under Wards Cove and under Title VII are markedly different. A policy that advances legitimate goals in a significant way may not be "necessary to safe and efficient job performance" or measure a particular person's fitness for a particular job. The Wards Cove standard provides an entity with much more leeway in adopting a practice that has a disparate impact than does Title VII's business necessity standard. Moreover, under Title VII, the employer has the burden of proof in establishing that the challenged practice is an adequate predictor of an applicant's fitness. Under Title II, the plaintiff always bears the burden of proof, so the defendant is more likely to prevail in a Title II case than in a Title VII case when there is little evidence about the predictive value of a selection practice.

What I find most interesting about Hardie is that it illustrates a peculiarity about disparate impact analysis: a stringent requirement that a practice be justified by business necessity does not necessarily reduce discrimination and may actually have the opposite effect of promoting discrimination. Under EEO law, it is not unlawful to treat everyone badly in the same way. For example, if an employer doesn't give anyone vacation days, then that practice would not be discriminatory. On the other hand, if an employer gives African Americans 5 vacation days a year but whites 10 vacation days a year, everyone would be better off than under a no-vacation policy, but the practice would discriminate against African Americans.

A similar effect might arise from adoption of individualized assessments. As noted, there is no evidence that use of individualized assessments is less discriminatory than a blanket conviction policy. Indeed, there is good reason to suspect that the former actually might be more discriminatory since individualized assessments require subjective decisionmaking, which can be prone to stereotyping and unconscious bias. (Check out this episode of the podcast "Invisibilia.")
As a result, if a business necessity standard requires that an employer adopt individualized assessments, rather than a blanket conviction policy like the court upheld in Hardie, that requirement might very well result in more of a discriminatory impact.

But -- and this is a big but -- even if individualized assessments do not decrease the disparity between how blacks and whites are treated -- and potentially even increase the disparity -- there may be good reasons to prefer them to blanket policies. For one thing, they are likely to result in fewer individuals with felony convictions, both blacks and whites, being arbitrarily excluded. So even if white applicants with felony convictions benefit more from individualized assessments than do black applicants, a black applicant with a felony conviction is obviously better offer if an employer performs individualized assessments than if it excludes him out of hand. Moreover, because the use of individualized assessments benefits all applicants with criminal records, the practice can be seen as benefiting African Americans as a class more than it does whites as a class since a higher proportion of African Americans have a criminal record.

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, July 11, 2017

EEOC v. North Memorial Health Care: Is the refusal to hire someone because she requested a religious accommodation unlawful retaliation? (revised 7/12/17)

In EEOC v. North Memorial Health Care, No. 15-3675(DSD/KMM) (D. Minn. July 6, 2017), District Court Judge David Doty ruled that the defendant did not engage in unlawful retaliation against Emily Sure-Ondara by rescinding her conditional job offer after she asked that she not be required to work Friday evenings, because of her religious beliefs. Judge Doty reasoned that, by requesting a religious accommodation, Sure-Ondara had not "opposed any practice made an unlawful employment practice by [Title VII]" or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Sure-Ondara therefore had not engaged in conduct protected by Title VII's retaliation provision, and the defendant was entitled to summary judgment on the EEOC's retaliation claim on behalf of Sure-Ondara.

Although I find the result unfortunate, I largely agree with the court's analysis. In EEOC v. Abercrombie & Fitch Stores, the Supreme Court held that a plaintiff can establish intentional religious discrimination if an employer's refusal to hire the plaintiff was motivated by the plaintiff's need for a religious accommodation. In this case, however, the EEOC rejected Sure-Ondara's religious accommodation claim and construed the defendant's rescission of the job offer as raising solely a retaliation claim. (Perhaps the agency concluded that providing an accommodation would have created an undue hardship.) But from the employer's perspective, a request for an accommodation merely notifies it of a potential legal obligation, and does not accuse it of failing to meet that obligation.  Therefore, as the court concluded, a request for religious accommodation does not appear to be either opposition to discrimination or participation in Title VII proceedings protected by section 704(a) of Title VII.

On the other hand, I think someone who is subjected to retaliation for requesting a religious accommodation should be able to bring a claim under section 703(a) of Title VII, which is the provision that gives employees the right to religious accommodation. In Gómez-Pérez v. Potter, the Supreme Court held that a federal employee's right not to be subjected to age discrimination includes the right not be to be subjected to retaliation for complaining about age discrimination. The federal sector provision of the Age Discrimination in Employment Act prohibits age discrimination against federal employees but not does not explicitly prohibit retaliation. Nonetheless, the Court held that retaliation for complaining about age discrimination constitutes a form of age discrimination. By analogy, rather than trying to shoehorn a request for accommodation into Title VII's retaliation provision, better to argue that retaliation for requesting a religious accommodation is a violation of the right to reasonable accommodation.

So if Sure-Ondara was subjected to retaliation for requesting a religious accommodation, her claim would be more likely covered under Title VII's prohibition against religious discrimination, including denial of accommodation, pursuant to 703(a), than under Title VII's explicit prohibition against retaliation pursuant to 704(a).

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.

Monday, July 10, 2017

EEOC v. Consol Energy: Accommodating Religious Beliefs About the Antichrist and the Mark of the Beast

In EEOC v. Consol Energy, No. 16-1230 (4th Cir. June 12, 2017), the court upheld a jury verdict that the defendant violated Title VII of the Civil Rights Act of 1964 by failing to accommodate Beverly Butcher's religious belief that using a hand scanner would brand him with the "Mark of the Beast" and allow him to to be manipulated by the Antichrist. As explained by the court, Title VII protects all sincerely held religious beliefs, and it is "not Consol's place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher's religious understandings."

Consol did not dispute that Butcher sincerely held a religious belief that conflicted with his use of the hand scanner. Instead, Consol fruitlessly tried to argue that Butcher's religious beliefs were mistaken. Consol contended that scripture only associates the Mark of the Beast with the right hand, so requiring Butcher to scan his left hand did not result in a religious conflict. Furthermore, the defendant provided a letter from the manufacturer that use of the hand scanner cannot place or detect a mark on a user's body. Finally, Consol noted that Butcher's pastor did not share Butcher's belief that the hand scanner is related to the Mark of the Beast.

These contentions were irrelevant, however, because they did not go to whether Butcher actually had a sincere religious objection to using the hand scanner but instead to whether he was correct in having such an objection. Whether a belief is religious depends strictly on the person holding that belief. As long as Butcher's objection to the use of the hand scanner was religious in his own scheme of things, that is all that mattered. "[T]here was ample evidence from which a jury could conclude that Butcher sincerely believed 'participation in this system' – with or without a tangible mark – 'was a showing of allegiance to the Antichrist,' inconsistent with his deepest religious convictions."

The evidence further showed that Consol could have allowed Butcher to bypass the hand scanner by entering his identification number into a keypad. The defendant was already providing this accommodation to two other employees who needed it for non-religious reasons, and granting Butcher the same accommodation would not have imposed further costs on the company. Based on this evidence, there was enough for a reasonable jury to have ruled in Butcher's favor.

As illustrated in this case, Title VII's coverage of religious beliefs does not play favorites. All beliefs are entitled to the same protections. It's true, of course, that beliefs must actually be religious, but whether a belief is religious is evaluated from the perspective of the individual claiming protection. 

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, July 7, 2017

Punt v. Kelly Services: When is a temporary worker with a disability entitled to leave as a reasonable accommodation?

In Punt v. Kelly Services, No. 16-1026 (10th Cir. July 6, 2017), the Tenth Circuit held that Kristin Punt was not unlawfully denied a reasonable accommodation when her temporary assignment as a receptionist with GE Control Solutions was terminated because she was taking too much time off as a result of her disability.

The court observed that, when Punt's assignment with GE was terminated after six weeks, she had never worked the full 40-hour work week; she had been absent from work on at least four full regular workdays, had arrived late three times, and had left early three times. Punt's assignment was terminated shortly after she notified Kelly Services, the temporary staffing firm that placed her with GE, that she would need to take a full week plus an additional unknown amount of time off for medical tests, appointments, and radiation treatments related to her breast cancer.

The Tenth Circuit concluded that Punt's request for leave was not a "plausibly reasonable accommodation": 
Under all of the circumstances of this case, and especially in light of Plaintiff's position as a temporary employee whose physical presence at the workplace was the most essential function of her job, we are persuaded the accommodation Plaintiff requested from GE was unreasonable as a matter of law.
I agree that Punt's status as a temporary worker is key. Although leave can be a reasonable accommodation, it seems that the question of whether the amount of leave requested is reasonable may turn on how long the person requesting leave will be working for the employer. For instance, if someone is selected for a four-week assignment and then requests that she be granted leave for three of those four weeks, it seems obvious that the request is unreasonable.

I also agree with the court's suggestion that the law presumably should not require an employer to accommodate a temporary employee by hiring a "supertemporary" employee. If a regular employee needs disability leave, the employer may have an obligation to accommodate that employee by providing leave, but it may not have an obligation to accommodate a temporary employee who needs disability leave when filling in for a regular employee who is on disability leave. Otherwise, the obligation to provide leave might never end. 

On the other hand, even if Punt's status as a temporary employee is relevant, I don't understand why the court thought it significant that Punt's physical presence in the workplace was the most essential function of her job as a receptionist. If a worker requests leave, how is the reasonableness of the request affected by whether the job must be performed in the workplace? In either case, the worker won't be doing the job for the duration of the leave, and that is what appears to be relevant in determining whether leave can be considered a plausibly reasonable accommodation in a particular case.

Moreover, I think the court mistakenly suggests that all temporary workers are in the same boat. The court concluded that, given the temporary nature of Punt's assignment, the amount of leave that Punt had already taken, the additional amount she requested, and the uncertainty of how much more leave she would need, her request was per se unreasonable. Unfortunately, the court gave no consideration to how long Punt's temporary assignment was expected to last. (And the expected length of the assignment is not clear from the decision). Some temporary assignments are open-ended, and some may be repeatedly renewed. If Punt's temporary assignment was expected to be of a long duration, then her request for leave might have been no less reasonable than that of a regular employee.

In short, while temporary status may be relevant in evaluating whether leave might be a reasonable accommodation in a particular set of circumstances, the Tenth Circuit's rejection of Punt's particular claim rests on shaky ground.

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, July 5, 2017

Pidgeon v. Turner: Is it constitutional for a state to deny same-sex couples benefits as long as it licenses and recognizes same-sex marriages?

On June 30, 2017, the Texas Supreme Court issued a troubling decision in Pidgeon v. Turner, refusing to acknowledge obvious constitutional rights of married same-sex couples. Bizarrely, the court concluded that, although states and local governments are required by the U.S. Constitution to recognize and license same-sex marriages, it does not follow that they are also required to provide same-sex couples with the same benefits that they provide to opposite-sex couples. Thus, in Pidgeon, the court left open the possibility that the City of Houston may not be required to provide the same spousal benefits to married gay and lesbian employees that it provides to married heterosexual employees.

In recognizing a fundamental right under the U.S. Constitution to same-sex marriage, however, the U.S. Supreme Court noted in Obergefell v. Hodges that marriage is associated with a wide range of "governmental rights, benefits, and responsibilities," including "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules."

Arguing for recognition of same-sex marriage, LGBT advocates refused to settle for civil unions, which can provide all of the governmental rights and benefits associated with marriage, though under another name. When it comes to marriage, a rose by any other name does not smell as sweet. As recognized in Obergefell, relegating same-sex couples to civil unions denies them the dignity and autonomy that are granted to opposite-sex couples. 

In Pidgeon, the Texas Supreme Court has turned the logic of Obergefell on its head. If gay men and lesbians cannot be denied the intangible benefits that flow from the term "marriage," then surely they cannot be denied the tangible benefits that flow from the governmental recognition of a marriage. 

Thus, on June 26, 2017, in Pavan v. Smith, the U.S. Supreme Court took the unusual step of summarily reversing a lower court decision. The Arkansas Supreme Court had upheld a law that denied the female spouse of a mother who gives birth the same right to have her name entered on the child's birth certificate as a male spouse of a mother who gives birth. As explained by the U.S. Supreme Court, this distinction is unconstitutional because it "infringes Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.'" As Pavan and Obergefell make crystal clear, a state or city is free to decide the benefits that flow from marital status, but once it makes that decision, it may not differentiate between same-sex couples and opposite-sex couples.

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.

Monday, July 3, 2017

EEOC Sues Strip Club for Allegedly Refusing to Hire Male Bartender

On June 29, 2017, the EEOC issued a press release announcing that it is suing Sammy's Gentlemen's Club, in Fort Walton Beach, Florida, for allegedly refusing to hire men to be bartenders.

Back in January, I wrote a post discussing a 20-year-old settlement of claims brought by male applicants against Hooters. That settlement resulted in Hooters agreeing to open some positions to men, but "Hooters Girls" have continued to be the restaurant's main draw.

It doesn't look like the EEOC is contending that a strip club is required to hire men to be strippers, but it still raises the question, Where do we draw the line?

If the EEOC thinks a strip club can't refuse to hire men to serve drinks, I find it hard to believe that the EEOC would think that it is ok for a restaurant to refuse to hire men to serve chicken wings.

So just imagine -- a world without breastaurants. Let's hope the Trump Administration's attack on our civil rights has some limits.

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, June 23, 2017

EEOC v. AutoZone: Is it per se unlawful to limit, segregate, or classify employees because of race?

In EEOC v. AutoZone, Inc., No. 15-3201 (June 20, 2017), the Seventh Circuit held that a plaintiff alleging that a transfer violates Title VII's provision making it unlawful to "limit, segregate, or classify his employees" must establish that the transfer constitutes a materially adverse employment action. In so holding, the court rejected the EEOC's contention that any action to limit, segregate, or classify employees because of race or another protected characteristic constitutes a per se Title VII violation.

In this case, the EEOC alleged that the defendant violated Title VII of the Civil Rights Act of 1964 when it transferred a black sales manager, Kevin Stuckey, to another store because it wanted to make the location from which he was being transferred a "predominantly Hispanic" store.

If the EEOC had alleged a violation of 703(a)(1), which prohibits discrimination with respect to terms, conditions, and privileges of employment, it would have been undisputed that the EEOC would have been required to show that the transfer was materially adverse, meaning that the transfer affected Stuckey's pay or promotion opportunities or otherwise made him worse off. The EEOC, however, instead alleged that the transfer violated section 703(a)(2), which makes it unlawful for an employer to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adverse affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." In the EEOC's view, by alleging a violation under 703(a)(2), it was not required to show that Stuckey's transfer was materially adverse. Rather, the transfer was actionable so long as the defendant had limited, segregated, or classified Stuckey based on his race.

In rejecting the EEOC's argument, the court explained:
This argument eliminates much of the statutory text. Or more precisely, it leaves much of the statutory text with no meaningful work to do. If it's not necessary to show that the challenged employment action "deprive[d] or tend[ed] to deprive" the employee of employment opportunities "or otherwise adversely affect[ed] his status as an employee," what is the point of this statutory language? We read § 2000e-2(a)(2) to require case-specific proof that the challenged employment action had these effects.
Unfortunately, the EEOC may have missed an opportunity to provide some real guidance on the scope of section 703(a)(2).  Even if that provision does not cover all actions involving limiting, segregating, or classifying, its coverage of any adverse effect on "employment opportunities" or on an individual's "status as an employee" may nevertheless be broader than 703(a)(1)'s coverage of discriminatory terms, conditions, and privileges of employment. The EEOC, however, chose to advance an extreme interpretation that ignored part of the statute. No wonder the EEOC had its head handed to it.

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, June 17, 2017

When do parental leave policies discriminate against fathers?

Just in time for Father's Day, the ACLU and the law firm Outten & Golden have filed a high-profile EEOC charge on behalf of J.P. Morgan Chase employee Derek Rotondo, who alleges that his employer's parental leave policy discriminates against men. The charge alleges that, pursuant to his employer's policy, primary caregivers are given up to 16 weeks of paid leave immediately following the birth or adoption of a child whereas non-primary caregivers can only get two weeks of paid leave. Rotondo further alleges that the employer presumptively treats fathers as non-primary caregivers and only treats a father as a primary caregiver if the mother has returned to work or is medically incapable of caring for the child. In Rotondo's case, he could not qualify for either of those exceptions because his wife, as a teacher, was off for the summer, and she was recovering well from childbirth, so she could not be considered medically incapable of caring for their newborn son.

Rotondo's charge presents a fairly straightforward claim of sex discrimination, alleging that assumptions about primary caregiver status are grounded in sex stereotypes about childcare responsibilities. This stereotype also arguably disadvantages women by presuming that men are society's breadwinners and that women should be more willing than men to take time off from their professional lives to raise a family.

Primary caregiver policies are not facially sex-discriminatory, but as suggested by Rotondo's allegations, their enforcement may be driven by sex stereotypes. Given such stereotypes, male employees also may assume that they cannot be primary caregivers or may fear that they will be stigmatized for wanting to share parental responsibilities on an equal basis. More generally, primary caregiver policies have been criticized as promoting the outdated notion that a child has one main parent. Although the ACLU has targeted J.P. Morgan Chase's particular leave policy because it has allegedly been enforced in a discriminatory manner, it's a good bet that the organization has all primary caregiver policies in its crosshairs.

A significant wrinkle that has been overlooked is that even if women and men should be entitled to the same amount of parental leave, an employer may provide women with leave to recuperate following childbirth. If an employer provides female employees up to 16 weeks of leave after giving birth, that period really includes both pregnancy-based leave and parental leave. If men are also given 16 weeks of leave following the birth of a child, that leave is solely parental leave. Some countries with generous parental leave policies, such as Denmark, Belgium, and Hungary, provide women with an exclusive period of leave following childbirth (see this article). Following that period of recuperation, leave is more evenly divided between fathers and mothers. As suggested by such policies, it may not necessarily discriminate against men if women get more leave than they do following the birth of a child.

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.

Monday, June 12, 2017

Loving v. Virginia: The Analogy Between Interracial Marriage and Same-sex Relationships

Today marks the 50th anniversary of the Supreme Court's decision in Loving v. Virginia, which struck down a state law prohibiting interracial marriage as a violation of the constitutional right to equal protection. Although the state argued that its law was permissible because it applied equally to all races, the Court disagreed:
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."
Courts and the EEOC have extended this logic to conclude that sexual orientation discrimination is a form of sex discrimination. Just as discrimination based on conduct between members of different races is race discrimination, discrimination based on conduct between members of the same sex is sex discrimination. Thus, in Hively v. Ivy Tech Community College, the Seventh Circuit rejected the dissent's contention that sexual orientation discrimination is not sex discrimination because it treats the members of both sexes equally:
. . . Loving shows why this fails. In the context of interracial relationships, we could just as easily hold constant a variable such as "sexual or romantic attraction to persons of a different race” and ask whether an employer treated persons of different races who shared that propensity the same. That is precisely the rule that Loving rejected, and so too must we, in the context of sexual associations.
To be sure, Virginia's prohibition against interracial marriage was also grounded in perceptions about white supremacy. But as the Seventh Circuit noted in Hively, the Supreme Court concluded that miscegenation laws are inherently "repugnant" to the constitutional guarantee of equal protection, "even assuming an even-handed state purpose to protect the 'integrity' of all races."

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, June 9, 2017

A 21st Century Civil Rights Issue for the Trump Administration: Topless Female Lifeguards (Updated)

An article in today's Washington Post suggests a great opportunity for the Trump Administration to be at the vanguard of the fight for civil rights. The Post reports that Ocean City has instructed beach patrol employees not to approach women who are sunbathing topless -- at least until the Maryland Attorney General can weigh in. The question presented here is whether allowing men to go topless but not allowing women the same privilege is sex discrimination. And if female sunbathers should have the right to go topless, then so too should female lifeguards.

Jeff Sessions and the Trump Administration should step up to the plate. Why should female lifeguards not have the same rights that male lifeguards have? What better way for the administration to give the lie to the misperception that it caters to the interests of white men than by taking to task municipalities that suppress the rights of female employees? From what I've seen of the tv show Baywatch, those tops really slow women down. So women will be freer and more lives will be saved. A win-win.

Update: On June 15th, two attorneys in the Maryland Attorney General's Office advised Ocean City of their view that interpreting laws against indecent exposure to prohibit women from going topless does not violate equal protection guarantees under the U.S. or Maryland Constitution. From what I can tell, this boils down to a prohibition against exposed female nipples. I recently learned from my primary news source, "Wait Wait ... Don't Tell Me!", about "side boob," and in doing research for this post, I've learned that there's also "underboob," so throwing in regular old cleavage, that just leaves out the nipple.

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, June 8, 2017

Villa v. Cavamezze Grill: When can an employer be liable for firing someone it believes fabricated a report of sexual harassment?

Villa v. Cavamezze Grill, LLC, No. 15-2543 (4th Cir. June 7, 2017), is an important new decision addressing when an employer can be held liable under Title VII of the Civil Rights Act of 1964 for firing someone that the employer believes has falsely reported sexual harassment.

In this case, Patricia Villa, a lower-level restaurant manager, alleged that an employee she had supervised, Judy Bonilla, told her that the restaurant’s General Manager, Marcelo Butron, had offered to promote Bonilla in exchange for sex. Villa contacted Rob Gresham, the Director of Operations, and relayed what Bonilla had allegedly told her, and she also told Gresham that she suspected that another former employee, Jessica Arias, had quit because Butron had made the same offer to her. After investigating the allegations, the employer concluded that Villa had made everything up, and it fired her.

The Fourth Circuit rejected Villa's claim that she was fired in retaliation for reporting sexual harassment. The court reasoned that a plaintiff bringing a Title VII retaliation claim must prove that “the desire to retaliate was the but-for cause of the challenged employment action.” Thus, it is not enough that the plaintiff's conduct have caused the termination. The employer must also have been motivated by retaliatory animus, rather than merely the desire to discipline an employee for what the employer honestly believed was misconduct.

The EEOC, by contrast, argued in its amicus brief that "[a] jury should resolve retaliation claims where (1) an employee has engaged in protected activity under the opposition clause of Title VII's anti-retaliation clause . . . ; (2) the employer claims that it took adverse action because the employee fabricated allegations of unlawful activity; and (3) there are disputed issues of fact as to the evidence on which the employer relied or the adequacy of the employer's investigation."

As I see it, neither the Fourth Circuit nor the EEOC has it exactly right. Although I agree with the EEOC that the Fourth Circuit's approach may be too narrow, the EEOC's alternative is muddled and provides insufficient guidance. The EEOC suggests that a jury should resolve a retaliation claim when the adequacy of the employer's investigation is at issue, but the EEOC does not explain how the jury is supposed to resolve the claim. Presumably, there must be some guiding legal principles, but if so, the EEOC does not identify them.

In my view, an alternative grounds for liability could be an employer's negligence. If someone alleges unlawful discrimination, the employer has a responsibility to respond in a reasonable manner to that complaint. If the employer fails to act reasonably and, as a result, takes an adverse action based on the honest but unreasonable and mistaken belief that an employee lied about alleged discrimination, then a plaintiff should be able to establish employer liability for retaliation based on the employer's negligence. Holding an employer liable under such circumstances is akin to holding an employer liable for sexual harassment by a coworker where an employer honestly but unreasonably believed that no harassment occurred because it failed to conduct an adequate investigation.

In this case, however, I don’t think the alleged facts support potential employer liability based on negligence. The evidence showed that the employer spoke with Bonilla and Aria, and they both denied that they were sexually harassed by Butron. The employer also spoke with a witness who allegedly overheard Bonilla tell Villa about Butron's harassment, and the witness denied that Bonilla made such an accusation.

It is true, as the EEOC notes, that there were factual disputes about the adequacy of the investigation, such as the failure to question the alleged harasser and the lack of a harassment policy, but neither of those possible shortcomings seems relevant to why the employer believed that Villa had lied. Take the failure to interview the alleged harasser. The employer interviewed the alleged victim, and she denied that the harassment occurred. Although Bonilla stated in her deposition that she had in fact told Villa that Butron had sexually harassed her, she also stated that she had lied to Villa about the offer. Thus, even if the employer had interviewed Butron, that almost certainly would not have affected its determination that Villa had lied since he obviously would not have admitted to misconduct that never occurred.  Similarly, it’s not at all clear how the lack of a harassment policy could have affected the employer’s determination that Villa lied.

In the end, negligence may be a viable theory for holding an employer liable for retaliation, but it's hard to fault the court for not adopting that position when neither the plaintiff nor the EEOC argued in its favor. Moreover, even if such a theory were available, it seems unlikely that it would have affected the outcome.

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, June 2, 2017

Jones v. Fransen: The Reasonable Dog Standard

Although not an EEO case, I couldn't resist doing a post on Jones v. Fransen, in which the Eleventh Circuit dismissed a negligence claim against Draco, a police dog. Here are some highlights:
In history and literature, the name "Draco" has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word "draconian." Draco Lucius Malfoy, of course, is Harry Potter's perpetually maleficent rival in the Harry Potter literary series.
And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court's denial of Defendant-Appellants' motion to dismiss Draco.
. . .
Jones . . . alleged in his complaint that "Officer K-9 Draco of the Gwinnett County Police Department" was liable for negligence in his individual capacity. We are not persuaded.
Georgia has codified the tort of negligence. And under the express terms of Georgia law, only a person may be held liable for breaching a legal duty . . . . 
Not surprisingly, [the Georgia law] we use to determine the meaning of words used in Georgia's tort statutes[] does not define the word "person" to include dogs. 
Quoting the Seventh Circuit, the court noted the numerous imponderables that would arise if it allowed a suit against a dog:
Was [the dog] served with process? Did he retain as his lawyer [the same attorney] who purports to represent all . . . defendants? Was [the dog] offered the right of self-representation ? What relief does [the plaintiff] seek from a dog -- [the dog's] awards, perhaps?
And my favorite: would it be necessary to ask how a reasonable dog would have acted in Draco's position?

Sometimes "the law is a ass" because it gets things woefully wrong. Here, I can't complain about the court's conclusion. Draco will get to keep his pension. And sure, this is an entertaining case. But c'mon, did it really require three full pages for the court to make light of the situation and explain what any five-year-old (human) would know -- that you can't sue a dog?

So my verdict in this case, if the court were on trial: ass.

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, May 31, 2017

Whitaker v. Kenosha Unified School District: Denying bathroom access based on gender identity is sex discrimination

In Whitaker v. Kenosha Unified School District No. 1 Board of Education, No. 16-3522 (May 30, 2017), the Seventh Circuit ruled that the defendant subjected Ashton Whitaker, a 17-year-old transgender boy, to sex discrimination in violation of Title IX of the Education Amendments Act of 1972 when it denied him access to the boys' bathroom. As far as I know, this is the first federal court of appeals to hold that denial of bathroom access consistent with gender identity is a form of sex discrimination, so this decision is a BIG DEAL. Although Whitaker's claim was brought under Title IX, the court's analysis relies heavily on Title VII precedent, so the same reasoning should be transferable to the employment context.

Unfortunately, as I see it, the court's reasoning reflects the same flawed interpretation of the Supreme Court's decision in Price Waterhouse v. Hopkins that has been previously advanced by LGBT advocates. I've criticized those arguments at length (including here), so I won't bother doing so again in this post. The reasoning in Whitaker is particularly problematic since in the recent decision in Hively v. Ivy Tech holding that Title VII prohibits sexual orientation discrimination, the Seventh Circuit interpreted Price Waterhouse as concluding that 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.  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. 

Although I think there are potentially compelling arguments for transgender bathroom access, they're not the ones that so many others are so tickled by.

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.