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 More generally, primary caregiver policies have been criticized as promoting the outdated notion that a child has one main parent.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.

Tuesday, May 30, 2017

Rizo v. Yovino: The Need for a Coherent Approach to Relying on Pay History

Following up on my prior post on Rizo v. Yovino, this new post focuses on the recently filed briefs supporting rehearing by the full Ninth Circuit Court of Appeals. Rizo presents the issue of whether prior pay standing alone can be a defense under the Equal Pay Act. In other words, if a man and a woman are doing the same job and one of them is paid more than the other, can an employer ever justify the pay discrepancy by merely pointing to the higher-paid worker's prior salary? A three-judge panel of the Ninth Circuit held that prior pay standing alone can indeed be sufficient to justify a pay discrepancy under the Equal Pay Act. In requesting rehearing, Aileen Rizo contends that the panel decision should be rejected because it allows for the perpetuation of past pay discrimination and because it conflicts with the decisions of two other courts of appeals.

This post looks primarily at two amicus briefs, one filed by the EEOC and a second filed by a coalition of civil rights groups. While I agree that there are compelling reasons for restricting consideration of prior salary, the arguments advanced by the EEOC and by the civil rights coalition are confusing and fail to provide a coherent and workable solution. Rather, the EEOC and the coalition indiscriminately attack any consideration of pay history. To try to shine some light on this issue, this post discusses a possible solution that allows for the consideration of prior pay while also recognizing the risk of perpetuating pay discrimination.

It is important at the outset to distinguish the factors that an employer relies on in setting pay from the factors that ultimately result in a pay discrepancy between two individuals. For example, suppose XYZ Employer extends job offers as sales associates to a man and a woman (Darin and Dena) with similar qualifications and offers them each an annual salary of $75,000. Both applicants try to negotiate for higher pay. Darin is currently earning $65,000 while Dena is earning $85,000. Based on the applicants' salary histories, XYZ raises its salary offer to Dena to $88,000, but it keeps its offer to Darin at $75,000. Both applicants accept XYZ's offer. Under these circumstances, XYZ relied on prior salary and qualifications in setting Darin and Dena's starting salaries, but the sole reason that it ended up paying Dena more is her salary history.

So if we assume that prior salary standing alone is not a defense under the Equal Pay Act, does that mean that XYZ is out of luck because prior salary is the only reason that it has decided to pay Dena more than Darin, or does XYZ have a potential defense because it looked at both prior salary and qualifications when it set Dena and Darin's pay?

It is clear that the Rizo panel believed that the latter is the right way to view the issue:

[W]e do not see how the employer's consideration of other factors would prevent the perpetuation of existing pay disparities if . . . prior salary is the only factor that causes the current disparity. For example, assume that a male and a female employee have the same education and number of years' experience as each other, but the male employee was paid a higher prior salary than the female employee. The current employer sets salary by considering the employee's education, years of experience, and prior salary. Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary. In this example, it is prior salary alone that accounts for the pay differential, even though the employer also considered other factors when setting pay. If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified.
In contrast, the civil rights coalition contends that the Rizo panel misconstrued the question of law that was presented on appeal: "The question was not whether prior salary can be the only factor considered by an employer in setting pay, but rather, if it can be the only factor that caused the gender wage differential, even if other factors were considered at the front end."

In my view, the Rizo panel is correct for several reasons. First, the civil rights coalition stands alone in contending that the pay discrepancy, rather than merely the pay-setting decision, must be based on more than salary history. Neither the EEOC nor Rizo has challenged the panel's framing of the issue. For example, in Rizo's petition for rehearing, she criticizes the practice of relying on prior pay as the sole basis in "setting compensation." The EEOC's amicus brief is even clearer. The EEOC acknowledges that prior salary can be an Equal Pay Act defense even if it is the only factor that causes a wage disparity, as long as it was not the only factor that was considered in setting pay. As the EEOC explains: "Factors such as education and relevant experience ordinarily are not gender-based. To the extent the employer actually considers such factors -- rather than merely paying lip-service to doing so, as the panel's example suggests -- it dilutes the relative importance of prior pay in the decision."

Second, as the EEOC notes, the purpose of requiring factors in addition to salary history is to dilute the importance of salary history and to minimize the potential for perpetuation of any sex discrimination. If an employer sets pay by looking at prior pay along with other factors, the reliance on prior salary cannot somehow become deficient merely because there is subsequently an opposite sex worker who is being paid less solely because of her pay history.

Third, if no part of a pay discrepancy can be based on salary history alone -- even if salary history was not the only factor considered in setting pay -- then that means, in reality, that salary history can never be any factor at all in setting pay. As the civil rights coalition argues in its amicus brief, "[P]rior salary should only be accepted as [an EPA defense] if the wage difference can be explained or supported by some other factor." As support, the coalition brief cites an example in the EEOC Compliance Manual in which the EEOC endorses reliance on prior salary where it accurately reflects an employee's ability and job-related qualifications. In such circumstances, however, the employer is merely basing pay on an employee's qualifications and is not basing pay on salary history in a meaningful way.

Thus, the coalition's argument that a pay differential, rather than merely a pay-setting decision, cannot be based solely on prior salary is really an argument against any reliance whatsoever on salary history. There may very well be reasonable arguments for prohibiting any consideration of salary history. However, that is not the position that the coalition purports to advance. Instead, the coalition presents a disingenuous argument that superficially supports a limited reliance on prior salary but in reality attacks any reliance on prior salary.

So if the EEOC concedes that prior salary can be a defense as long it is not the sole factor in setting pay, does that mean that there are clear circumstances in which the EEOC believes an employer can rely on prior salary in setting pay? Hardly. Even though the EEOC's approach appears to be more flexible than that of the civil rights coalition, the EEOC nonetheless appears loathe to identify any circumstances in which prior salary can be given any real weight in setting pay. As already noted, the example from the EEOC's Compliance Manual does not suggest that prior pay can play any meaningful role in setting an employee's pay and instead suggests that prior pay is only a permissible consideration to the extent it reflects job-related qualifications.

Luckily, the solution may be staring us right in the face. 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 the sake of brevity, I refer to this below as the "salary range" approach.

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. The civil rights coalition characterizes this bill as prohibiting employers from "seeking or relying on salary history," but I think that is incorrect. 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.

This is not to say that the salary range approach should necessarily be considered a sufficient defense to an Equal Pay Act claim in all cases. In the Ninth Circuit, an employer must establish that its asserted defense "'effectuate[s] some business policy' and that the employer 'use[s] the factor reasonably in light of the employer's stated purpose as well as its other practices.'" Certainly, there could be instances in which an employer has acted unreasonably in using prior salary to set starting pay within a range, such as where the range is unreasonably large.

On the other hand, if employers have no freedom to pay some new employees more than others based on prior salary, employers may have difficulty competing for the best employees. As the EEOC suggests, consideration of other factors along with prior salary dilutes the effect of reliance on prior salary and reduces, but does not eliminate, the potential for perpetuating pay discrimination. The salary range approach is an imperfect compromise, but in my view, it strikes a reasonable balance between the interests of employers and employees. Given that the federal government follows this procedure in setting pay, it hardly seems fair to fault private sector employers for following suit. Sadly, however, in this if-the-President-does-it-it's-not-illegal era that we live in, fairness may be too much to expect.

Curiously, in Rizo, although the parties apparently do not dispute that the defendant relied solely on prior salary in setting pay, I disagree. The salaries of Rizo and the higher-paid male math consultants were based on level 1 of the management pay scale, which in 2009 had 10 steps ranging from $62,133 to $81,461. The defendant set a newly hired math consultant's pay at the step that corresponded to the employee's prior salary, plus a 5% raise. While the defendant apparently relied solely on prior salary in setting a new employee's salary within the level 1 range, starting salary was limited by that range. Thus, although the plaintiff's prior salary was only about $52,000, the defendant set the plaintiff's pay at the lowest step, which was considerably more than a 5% raise. The pay-setting procedure followed in Rizo largely mirrors the approach in North. The one significant difference is that in Rizo the defendant relied on prior pay in setting any new employee's salary within the applicable range. In North, by contrast, the defendant relied on prior salary only if an applicant had "superior qualifications." My point here is not that the pay procedure followed by the defendant in Rizo was necessarily lawful, but rather that like the one at issue in North, it did not involve a pay-setting decision that relied solely on prior salary. Nonetheless, it's possible that at this late stage, it may be too late for the defendant to point this out.







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 24, 2017

Coker v. Whittington: The Constitution does not protect wife-swapping, at least when it comes to sheriff's deputies

Coker v. Whittington, No. 16-30679 (May 23, 2017), is an interesting case in which the Fifth Circuit held that Bossier Parish, Louisiana, did not violate the constitutional rights of two sheriff's deputies, Brandon Coker and Michael Golden, when it fired them for violating its Sheriff's Code of Conduct by moving in with each other's wife and family before getting divorced from their current wives.

Tovar v. Essentia Health: Title VII Only Prohibits Sex Discrimination Against Employees

In Tovar v. Essentia Health, No. 16-3186 (May 24, 2017), the Eighth Circuit affirmed the dismissal of Brittany Tovar's claim that she was subjected to sex discrimination in violation of Title VII and the Minnesota Human Rights Act when her employer refused to cover medical expenses related to her son's gender dysphoria. As I discussed in a previous post and the Eighth Circuit confirmed, Title VII only prohibits discrimination against an employee because of his or her own protected status. Thus, even assuming that excluding coverage of expenses related to Tovar's son's gender dysphoria constituted sex discrimination, it constituted sex discrimination against Tovar's son, not Tovar. This is because the result would have been the same even if Tovar had been male. Similarly, as reflected in EEOC's  Questions and Answers on the Pregnancy Discrimination Act, although an employer may not exclude the pregnancy-related conditions of employees, it is not required by Title VII to cover "the pregnancy-related conditions of [non-spousal] dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally." 29 C.F.R. § 1604 Appendix, Q&A 21.

Of course, even if Title VII (or the MHRA) does not provide coverage, that does not rule out the possibility that Tovar (or her son) might have a claim under another federal, state, or local law (like the Affordable Care Act, which prohibits sex discrimination).







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, May 21, 2017

Blatt v. Cabela's Retail: Are transgender individuals protected by the Americans with Disabilities Act?

District Court Judge Joseph Leeson's decision in Blatt v. Cabela's Retail, Inc., No. 5:14-cv-04822 (E.D. Pa. May 17, 2017), is perhaps the first to hold that discrimination based on transgender status may be covered by the Americans with Disabilities Act (ADA). By contrast, numerous courts have held that gender identity discrimination is a form of sex discrimination. Unlike Title VII, however, coverage under the ADA would not merely mean that it is unlawful to treat transgender workers worse than other workers but it also might mean that it is unlawful not to treat them better. This is because the ADA can require the modification of a neutral workplace policy, such as a leave or bathroom policy.

Friday, May 19, 2017

Both heritage and hate: Does the workplace display of the Mississippi state flag violate federal EEO law?

Monument to the Defenders of Little Round Top
With New Orleans in the process of removing several Confederate monuments, I figured it was appropriate to highlight a recent case brought by an African American attorney challenging the Mississippi state flag, the only one that still includes the Confederate flag.

In  Moore v. Bryant, No. 60616 (5th Cir. Mar. 31, 2017), the court rejected Carlos Moore's claim that the Mississippi state flag violates his rights under the Equal Protection Clause of the U.S. Constitution, concluding that Moore did not have standing (the right to bring a claim in court) because he had not suffered a sufficient injury. The court noted that, although Moore had alleged that the state flag stigmatizes him, he had not alleged that he had been personally denied unequal treatment.

Sunday, May 14, 2017

Happy Mother's Day: Chadwick v. Wellpoint & Family Responsibilities Discrimination

Moms who work outside the home may find some comfort in the First Circuit's decision in Chadwick v. Wellpoint, 561 F.3d 38 (1st Cir. 2009), in which the court held that Laurie Chadwick, the mother of an 11-year-old son and 6-year-old triplets, had presented sufficient evidence to show that she was denied a promotion based on sex stereotypes about childcare responsibilities:
Given what we know about societal stereotypes regarding working women with children, we conclude that a jury could reasonably determine that a sex-based stereotype was behind [the decisionmaker's] explanation to Chadwick that, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." 
Chadwick is the most mom-friendly decision I know of. It arguably establishes a presumption that adverse actions taken against women based on family responsibilities are grounded in sex stereotypes that working mothers are are not reliable. Thus, in Chadwick's case, because the decisionmaker's statement explicitly referenced Chadwick's childcare responsibilities as one of the reasons for denying her a promotion, a reasonable jury could conclude that a father with four young children would not have been denied a promotion.





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 10, 2017

Missouri is on the verge of adopting a disguised version of but-for causation for EEO claims

Missouri seems poised to amend its state EEO law to require a plaintiff alleging employment discrimination to show that "the protected criterion was the motivating factor." I view this as but-for causation in disguise because the new law also would define "motivating factor" to mean that the protected criterion "had a determinative influence on the adverse decision or action." A but-for factor, a determinative factor, a factor that made a difference -- these are all the same thing. So superficially, it looks like Missouri is adopting a motivating-factor causation standard, but in reality, I see the state as adopting a but-for causation standard.

As I discuss in this prior post, Missouri currently applies a "contributing factor" causation standard, which is a lower standard of causation than motivating factor, meaning that it is easier for a plaintiff alleging discrimination to establish that his race, sex, age, or other protected criterion was a contributing factor than for him to show that it was a motivating factor, which, in turn, is easier for him to show than but-for causation. Contributing-factor causation is a subset of motivating-factor causation, and motivating-factor causation is a subset of but-for causation. Thus, if a plaintiff has established but-for causation, he has also necessarily established both motivating-factor and contributing-factor causation.

One benefit of adopting the but-for causation standard is that the concept of but-for causation is much better understood than the fuzzy concepts of motivating-factor and contributing-factor causation. But-for causation means that if the plaintiff had been of another protected group, then the alleged discrimination would not have occurred. For example, if a woman establishes that but for her sex she would not have been denied a promotion, then that means that if she had been a man and everything else had been the same, she would have gotten the promotion. By contrast, what it means for sex/race/etc. to have been a motivating factor is much harder to grasp. Does that mean it just needs to have been a factor in the decisionmaker's mind that weighed in favor of the ultimate outcome? Or must it have been a much more significant consideration? (For more on the causation standards, see this post.)

To be sure, but-for causation is harder to prove than contributing-factor causation, or even motivating-factor causation. But that is largely only a theoretical, and not a real-world, benefit if no one really knows what contributing-factor causation and motivating-factor causation even mean.

And when it comes to the real world, but-for causation rules the day. In Gross v. FBL Financial Services, the Supreme Court held that a plaintiff alleging a violation under the Age Discrimination in Employment Act must show that but for his age, he would not have been subjected to the adverse job action. Gross effectively adopted a default but-for causation standard for federal EEO law. Gross was widely criticized by employee rights advocates as making it more difficult for plaintiffs to prevail under the ADEA. But Gross has turned out to have had little effect because in the vast majority of EEO cases plaintiffs establish violations by relying on the McDonnell Douglas framework. Under this approach, a plaintiff establishes that an employer's asserted reason for taking a challenged job action was a pretext for discrimination. This method of proof is widely understood to establish but-for causation. In adopting a new causation standard, the Missouri legislature has also explicitly endorsed the McDonnell Douglas framework, so as with federal ADEA claims, it seems reasonable to expect that most Missouri plaintiffs will be unaffected by the change in Missouri 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.

Tuesday, May 9, 2017

A Trio of Bathroom Cases: One on No. 2 and Two on No. 1

This post discusses three cases in which the failure to provide adequate bathroom facilities resulted in a potential EEO violation. The first case, involving number two, is a claim under the Americans with Disabilities Act, and other two cases, involving number one, are sex discrimination claims under Title VII of the Civil Rights Act of 1964.

Sunday, April 30, 2017

Rizo v. Yovino: Is it ok to rely solely on prior salary in setting pay?

The Ninth Circuit's new decision in Rizo v. Yovino, No. 16-15372 (Apr. 27, 2017), provides some timely guidance on the extent to which employers are allowed to rely on prior salary in setting a new employee's starting pay. Interpreting a decision from 1982, the court rejected the plaintiff's and the EEOC's contention that prior salary standing alone is per se insufficient under the Equal Pay Act to justify a pay differential between opposite-sex employees performing the same job.

The Application of Title VII's Religious Organization Exception to Sexual Orientation Discrimination

In a prior post, I noted that while the Seventh Circuit concluded in Hively v. Ivy Tech Community College that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination, the court acknowledged that there were unanswered questions regarding the application of the prohibition to religious employers. In particular, the court suggested that a religious employer might be able to assert that it was permitted to discriminate based on sexual orientation pursuant to Title VII's religious organization exception, 42 U.S.C. § 2000e-1(a). In this post, I look at the religious organization exception in more detail and discuss the arguments pro and con as to whether the exception permits religious employers to discriminate against LGBT individuals based on employers' religious beliefs.

The religious organization exemption provides:

This subchapter shall not apply . . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
Courts have interpreted this provision to permit a religious employer to discriminate in favor of co-religionists, meaning workers sharing the employer's religious beliefs. For example, a Catholic employer could hire Catholics exclusively, though it could not hire Catholics and Jews exclusively. In addition, courts have interpreted the provision to allow religious employers to discriminate not only against individuals who do not share their religious beliefs but also against individuals whose conduct violates employers' religious beliefs. For example, in Little v. Wuerl, the Third Circuit concluded that the religious organization exception permitted a Catholic employer to fire an employee because her remarriage violated the employer's religious views.

Not surprisingly, because the exception merely allows a religious employer to discriminate based on religion, it does not sanction other forms of discrimination, such as sex discrimination. Thus, in EEOC v. Fremont Christian School, the court held that the exception did not authorize the defendant to provide a benefit to heads of households, which, based on the defendant's religious beliefs, could only be single persons and married men.

Relying on the interpretation of Title VII in cases like Fremont Christian School, some courts have concluded that a religious organization is not permitted to favor co-religionists if that means also discriminating on a prohibited basis other than religion. For example, in Richardson v. Northwest Christian University, Federal District Court Judge Ann Aiken relied on the interpretation of Title VII in Fremont Christian School to conclude that a similar religious organization exception under Oregon law did not permit the employer to discriminate against an employee for engaging in premarital sex, because doing so violated the state law's prohibition against marital status discrimination.

Similarly, in a 2015 law review article, George Washington University Law Professor Ira Lupu argues that Title VII's religious organization exception does not permit a religious employer to discriminate against gay men and lesbians. As an analogy, Lupu notes that an Orthodox Jewish employer would not be permitted to fire women who broke the Sabbath while overlooking the same conduct by male employees.

Although the ultimate conclusion that Title VII prohibits religious organizations from discriminating based on sexual orientation may be a viable interpretation of Title VII, the reasoning followed by Judge Aiken and Professor Lupu in reaching that conclusion is flawed. At bottom, it is correct that the religious organization exception does not authorize discrimination on a basis other than religion, and that is reflected in Fremont Christian School and Lupu's example of the Orthodox Jewish employer. Crucially, however, those cases merely involve sex discrimination and do not also involve religious favoritism. Thus, the question that must be answered is, Does Title VII permit an employer to engage in religious favoritism if, in so doing, it also engages in another form of prohibited discrimination under the statue, such as sex discrimination?

Considering the language and structure of Title VII, I think the better argument is that a religious organization is permitted to discriminate based on sexual orientation if the discrimination is based on religious objections to homosexuality. The exception states that Title VII does not apply when a religious organization engages in religious favoritism. An action that falls within the exception would therefore seem to be outside the bounds of Title VII, regardless of whether it would otherwise be prohibited by other provisions. Thus, once the exception applies, that's the end of the story, and there is no need to consider whether the action would simultaneously violate another provision since the exception has already established that Title VII does not apply.

On the other hand, if religious favoritism entails discrimination on a basis other than religion, then arguably the employer's right to engage in religious favoritism must be weighed against an employee's right to be protected against sex discrimination. In my view, however, the balance was struck by Congress when it provided that Title VII does not apply to instances of religious favoritism.









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, 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 a 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 at 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.