Sunday, January 7, 2018

EEOC v. Maryland Insurance Administration: Does the application of the Equal Pay Act to states violate constitutional principles of federalism?

EEOC v. Maryland Insurance Administration, No. 16-2408 (4th Cir. Jan. 5, 2018), which looks at whether a state agency violated the Equal Pay Act, would be unremarkable were it not for the dissent of Judge J. Harvie Wilkinson. His major beef has less to do with the particulars of this case than with whether the application of the Equal Pay Act to states violates constitutional principals of federalism -- the sharing of power between the states and the federal government: "Ours is a federal system of government. It was carefully designed to strike a balance between the need for enumerated federal authority and respect for the residual sovereignty of the states."

Pursuant to the Tenth Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." In National League of Cities v. Usery, 426 U.S. 833 (1976), a slim 5-4 majority of the Supreme Court relied on the Tenth Amendment to rule that application of the Fair Labor Standards Act to regulate traditional state functions, such as fire prevention, police protection, sanitation, public health, and parks and recreation, was unconstitutional. Only nine years later, however, in Garcia v. San Antonio Transit Authority, 469 U.S. 528 (1985), an equally slim 5-4 majority overruled Usery, concluding that its government functions test was "impracticable and doctrinally barren."

As noted by Wilkinson in his dissent in Maryland Insurance Administration, although Garcia rejected Usery's bright-line test, the Supreme Court has continued to rely on federalism principles, in part, to reject particular examples of "federal overreach," such as the regulation of purely intrastate violence. Wilkinson stops short of suggesting that the federal government has no business correcting sex-based pay discrimination in state employment, but he urges that an EPA claim against a state require clear and convincing evidence of a violation, rather than a mere preponderance of the evidence: "This clear and convincing standard is a workable approach that would serve to screen out deprivations of state sovereignty for trivial purposes, while leaving serious problems open to the corrective of federal law. Steering this middle course would restore for state governments in this narrow and discrete area of paramount state interest some of the constitutional protection of which they have been inexcusably deprived."

In discussing the parties' respective burdens of proof, Wilkinson appears, however, to make a significant error. Under the Equal Pay Act, a claimant alleging a violation is merely required to show that she is being paid less than a man in the same job. An employer can then avoid liability if it can establish an affirmative defense, namely that the pay discrepancy was based on some factor other than sex. Wilkinson explains: "[W]hile the burden to establish an affirmative defense rests with the one raising it, the ultimate burden of proof almost always rests with 'the party seeking relief.'" Here, Wilkinson appears to mischaracterize the nature of the affirmative defense under the Equal Pay Act. Unlike Title VII of the Civil Rights Act, under which a claimant has the burden to show that she was subjected to intentional discrimination based on sex, the Equal Pay Act places the burden on the employer to show that a pay discrepancy was not based on sex discrimination. Contrary to Wilkinson's suggestion, requiring a claimant to prove her case by clear and convincing evidence would not merely subject her to a higher standard of proof, it would also shift the burden of proof to her to show that the employer's reason for the pay discrepancy was sex-based, rather than merely that she was paid less than a man in the same job. Although such a heightened standard might be justifiable, it is a much more significant change than Wilkinson lets on.

Wilkinson's call for courts to take up the mantle of state sovereignty can also be faulted as inconsistent with principles of judicial restraint. In Garcia, the Supreme Court trusted in the democratic process to ensure a proper balance between federal and state authority: "[T]he principal and basic limit on the federal commerce power is that inherent in all congressional action -- the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated." By contrast, when it comes to individual rights, Wilkinson has been all too willing to leave matters to the will of the majority. For instance, prior to the Supreme Court's recognition of the constitutional right to same-sex marriage, Wilkinson argued that the matter should be left to the normal democratic process. Of course, on the opposite side of the political spectrum, liberal judges can also be charged with inconsistency -- faulting courts for overriding federal legislation that impinges on state sovereignty while invalidating legislation that impinges on individual rights. 

Still, nobody's perfect. And according to F. Scott Fitzgerald, "The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function." 

If so, I prefer the second-rate intelligence of Justice Anthony Kennedy, who has joined conservative Justices in protecting states against federal overreach and joined liberal Justices in protecting individuals against the tyranny of the majority. Sadly, Justice Kennedy is likely to retire soon.

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, January 2, 2018

Transgender Employees and Customer Preference: Oral Sex, Korean Body Scrubs, and Sex-Segregated Bathrooms

Professor Eugene Volokh has a post on the Volokh Conspiracy that raises a "thought experiment" about transgender employees. First, he asks whether a gay man who visits a brothel for oral sex (in a jurisdiction where prostitution is lawful) can insist that the prostitute have a penis. And if so, in what other situations should an employer be permitted to determine a transgender individual's sex from the customer's perspective?

Volokh concludes, and I agree, that if a customer is hiring a prostitute, then the brothel should be free to accommodate the customer's view of whether the prostitute is male or female. Even if the prostitute views himself as male, that's not good enough when the customer is paying for someone to provide him with sexual gratification, which obviously turns on the customer's viewpoint.

By extension, I think the same applies to situations in which a customer's bodily privacy is at issue. For instance, if you visit a Korean spa, you may decide to get a body scrub, which is provided while you are completely naked. A man can certainly scrub a naked woman's body, and a woman can scrub a naked man's body. However, social norms about bodily privacy dictate that male employees provide services to naked male customers, and female employees to naked female customers. As with the prostitution example, it is the customer's interests that dictate the appropriate sex of the worker, so if a customer's viewpoint controls the determination of whether an employee is male or female in the prostitution example, it also should control the determination of whether an employee is male or female in the body scrub example.

Still, although bodily privacy interests may be implicated even when no one is nude, such cases might be distinguishable. In particular, given the evolution in mainstream thought about sexual modesty, sex-segregated bathrooms may continue to exist not because of any significant bodily privacy interests but only because of custom. If so, there may be little basis for allowing bathroom users' interests in bodily privacy to outweigh the interests of transgender individuals in using the bathrooms they are most comfortable with. 

Of course, even if a transgender woman with male genitalia should not be barred from the women's room, barring her anyway is not necessarily a form of sex discrimination (see this prior post).

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.