Monday, January 29, 2018

Franchina v. City of Providence: Why the First Circuit's Sex-plus Decision Tells Us Nothing About Whether Title VII Covers Sexual Orientation Discrimination

In Franchina v. City of Providence, No. 16-2401 (Jan. 25, 2018), the First Circuit upheld a jury verdict on behalf of Lori Franchina on her sexual harassment claim. Even in the wake of #MeToo, Lori Franchina's allegations are shocking, and without doubt, she had a strong sexual harassment claim. Nonetheless, because Franchina may have been targeted not only for being a woman but also for being a lesbian, she advanced what is called a "sex-plus" theory of discrimination, meaning that she was targeted for being a woman with a particular characteristic. As discussed below, however, both Franchina's and the court's unnecessary discussion of the sex-plus theory leave much to be desired and are bound to lead to a great deal of confusion.

Franchina presented evidence that she had been a highly successful rescue lieutenant in the Providence Fire Department until she was subjected to sexual harassment by a male firefighter, which included offering to "help" her if she wanted to have children and walking into her personal quarters while she was changing. A fire chief got wind of an incident at a hospital and in which the male firefighter had allegedly harassed Franchina. The fire chief then contacted Franchina and, based on her explanation, filed a complaint against the male firefighter, which subjected him to termination or other discipline.

With the employer taking steps to address the situation, you would expect that things would have gotten better for Franchina. Instead, however, she alleged that she was subjected to a campaign of retaliation by other firefighters: meals prepared for her made her severely ill; she was referred to using gender-based epithets, including "fucking bitch," "cunt," "lesbo," and "Frangina" (a combination of "Franchina" and "vagina"); and firefighters under her command were insubordinate during emergency runs and refused to comply with her orders. After enduring this abuse for many years, Franchina was diagnosed with post-traumatic stress, and she retired on disability. After a trial,  a jury found in her favor on both her retaliation claim and her sexual harassment claim, and she was awarded emotional damages, plus over $500,000 in front pay for the lost wages resulting from her inability to return to work as a rescue lieutenant.

On appeal, the defendant focused on whether Franchina had presented sufficient evidence that she was harassed because of her sex. In particular, the defendant argued that Franchina did not establish sex discrimination under a sex-plus theory.  

So what's "sex plus" discrimination, and is the defendant correct?

The term "sex plus" refers to discrimination that is directed not against all member of a protected class but instead against a subgroup of a protected class who share a certain characteristic. The classic example is mothers with young children. In 1971, the Supreme Court held in Phillips v. Martin Marietta Corp. that the lower court had erred in concluding that Title VII does not apply to a policy against hiring women with young children but not against hiring men with young children. 

In alleging sex-plus discrimination, Franchina alleged that she was treated differently for being a lesbian, in other words for being a member of the subclass of women who are sexually attracted to members of their own sex. Franchina observed that she could establish sex-plus discrimination against lesbians without showing that gay men were treated more favorably. Instead, she contended, under the sex-plus theory, she could compare herself to other women. Franchina alleged that, as a lesbian, she was treated worse than other women because she did not comply with societal stereotypes about how women should act.

In my view, there are fundamental flaws with this line of argument. First and foremost, Franchina starts off acknowledging that the proper comparator is gay men, but then in the absence of evidence that gay men are treated differently, she points to evidence that she was treated differently from heterosexual women. Under Title VII, to establish sex discrimination, there must be evidence that an employee was treated worse for being male or female. True, it is enough to show that you are treated worse for being a certain kind of woman (or man), but the comparison is with the corresponding subclass of the other sex. This comparison is explicitly acknowledged by Franchina, yet she goes on to contend that she need only show that she was treated worse than other women.

It's easy to see why comparing a subset women to women outside the subset does not establish sex discrimination. Imagine that an employer refuses to hire any applicant -- male or female -- with pre-school-age children. Plainly such a policy does not discriminate against either men or women since the subclass of men with young children is treated the same as the subclass of women with young children. If it were true that the comparison is merely between members in the same protected class, then both men and women with young children could establish that a policy against hiring applicants with young children violated Title VII, even if the employer does not treat women worse than men, or vice versa.

On the other hand, a plaintiff can establish sex-plus discrimination even without pointing to actual members of the opposite sex in the same subclass who were provided more favorable treatment. Thus, Franchina was correct in contending that she could establish sex-plus discrimination without evidence that the defendant employed gay men who were not subjected to discrimination. For example, in Chadwick v. Wellpoint, 561 F.3d 38 (1st Cir. 2009), the plaintiff had presented sufficient evidence that she was denied a promotion because she was a mother with four young children, including six-year-old triplets, based on stereotypes about working mothers. In Chadwick, the plaintiff did not show that a specific man with young children was treated better, and in fact the person promoted was a woman. But there was sufficient evidence that the decision not to promote her was nonetheless driven by stereotypes about working mothers and not merely stereotypes about working parents.

Which brings me to the next big flaw in Franchina's argument -- the failure to clearly define the subclass of women who were subjected to discrimination. In Higgins v. New Balance Athletic Shoe, 194 F.3d 252 (1st Cir. 1999), the First Circuit left open the possibility that a gay man can show that he was subjected to sex discrimination under a sex-plus theory if he was treated worse than lesbians or worse than women who are sexually attracted to men. At the top her of argument, Franchina stated that she should compare herself to gay men, but then she went on to present evidence that she was treated worse than heterosexual men. If a lesbian is subjected to discrimination, in part, because she is a woman attracted to other women, then that can be viewed as sex-plus discrimination, but Franchina essentially did a bait and switch, claiming that she could prove discrimination between gay men and lesbians but then presenting evidence of discrimination between heterosexual men and lesbians.

Along comes the court of appeals, but rather than setting things straight, the court compounded the confusion. It properly rejected the defendant's suggestion that sex-plus discrimination requires that there be opposite-sex comparators in the same workplace. However, the court failed to clarify that a female plaintiff nonetheless must present some evidence that she was discriminated against for being a woman, whether it be through stereotyping evidence or some other type of evidence. And then the court did its own bait and switch and affirmed Franchina's claim based on evidence that did not show discrimination against lesbians but against women in general.

So what should the court have done? 

Clearly, Franchina presented sufficient evidence that she was subjected to harassment based on her sex. She discussed the sex-plus theory more as icing on the cake than as the principal argument in support of her claim. Indeed, the evidence that she was frequently subjected to sex-based epithets was sufficient to establish sex-based harassment, and that is the main evidence cited by the court in affirming the jury verdict. Thus, the court should have concluded that Franchina had presented sufficient evidence of sex-based harassment even without resort to the sex-plus theory, and that it was therefore unnecessary to discuss the sex-plus theory. Alternatively, the court could have explained that comparator evidence is not necessary under the sex-plus theory, but that it was not addressing whether the evidence in this case demonstrated sex-plus discrimination since it was clearly sufficient to demonstrate discrimination against women as a whole.

Instead, the First Circuit's decision muddled the concept of good old fashioned sex discrimination with the concept of sex-plus discrimination against a subset of women, namely lesbians. The court's analysis has already been misinterpreted (see here) for closely linking sexual orientation discrimination to sex discrimination. This, despite the fact that the court explicitly declined to address the claim that sexual orientation is covered under Title VII, noting that Franchina had not appealed the district court's dismissal of her claim of sexual orientation discrimination. 

As to whether the defendant was correct that Franchina failed to establish sex-plus discrimination, I'd say the answer is yes and no. No, in the sense that it wasn't necessary for her to point to gay men who were treated better than her, but yes, in the sense that she identified gay men as the equivalent male subgroup and yet she focused her attention on how she was treated in comparison with other women and heterosexual men. The latter comparison is obviously a claim of sexual orientation discrimination, so if the court declined to address whether sexual orientation is covered under Title VII, then it could not have endorsed her claim under the sex-plus theory. 

Even so, Franchina had a strong sexual harassment claim, and the defendant did not seriously challenge her retaliation claim. 

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

Monday, January 22, 2018

Milsap v. City of Chicago: Does but-for causation preclude the possibility of mixed motives?

In Milsap v. City of Chicago, No. 16-cv-4202 (N.D. Ill. Jan. 19, 2018), Judge Robert Blakey made the common mistake of confusing the level of causation -- but-for or motivating factor -- with the number of motives for an alleged action. 

Darrell Milsap alleged that he was fired because of his disability and also because he did not continue to lie about who was driving when he was in an accident while on a mail run with a coworker. Initially, Blakey noted that the Seventh Circuit had required a plaintiff alleging a violation of the Americans with Disabilities Act to establish but-for causation. Because Milsap had alleged that his termination was motivated by both his disability and his failure to lie about the accident, Blakey concluded therefore that Milsap could not establish but-for causation and dismissed his ADA claim.

Contrary to Blakey's belief, a plaintiff alleging disability discrimination can establish that disability was a but-for cause of a challenged action even if other actions played a role, and even if there were other but-for causes. If, for example, an employer fired a disabled employee who refused to comply with a request to lie, but would not have fired a non-disabled employee who refused to comply with a request to lie, then disability was a but-for cause. It's also possible that the same employer would not have fired a disabled employee who complied with a request to lie. Under such circumstances, the challenged action had two but-for causes. In Milsap's case, then, the mere acknowledgement that disability was not the sole reason for the challenged action did not preclude the possibility that disability was nonetheless a but-for cause.

So what's the significance of requiring but-for causation? 

Here's where the term "mixed motive" comes into play. If someone can show that race was a "motivating factor" for an adverse decision, then under Title VII of the Civil Rights Act of 1964, he can request a mixed-motive jury instruction. This instruction requires that the employer prove that it would have taken the same action even if the plaintiff had been of a different race. A mixed-motive instruction is beneficial to the plaintiff -- at least in theory -- because instead of the plaintiff having to show that race was a but-for cause, the employer has to show that race was not a but-for cause. By contrast, under the ADA, if a plaintiff must show that disability was a but-for cause and not merely a motivating factor -- as Blakey assumed -- then a mixed-motive instruction would be meaningless. Once a plaintiff establishes that a protected characteristic was a but-for cause, it obviously is not possible for the employer to show that the characteristic was not a but-for cause.

The term "mixed motive" is essentially a misnomer. Even if a plaintiff has requested the instruction, he has not necessarily conceded that there were nondiscriminatory motives. And even if he is required to establish but-for causation, that does not mean that there could not have been both discriminatory and nondiscriminatory motives. 

If this discussion has been up your alley, then check out this previous post about a related issue -- the common practice of drawing a false dichotomy between mixed-motive claims and single-motive claims.

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.

Cole v. Cobb County School District: Does the transfer of an assistant principal because parents believe she is a Buddhist violate Title VII?

This is the sad story of Bonnie Cole, an assistant principal at a Georgia elementary school, who only wanted to do right by the children under her care.

Cole, a practicing Christian, was the assistant principal at Bullard Elementary School, where she introduced "mindfulness" practices, including "piping music through the hallways," "decorating and painting," "yoga sequences," and "mindful quiet time." According to Cole, after implementing mindfulness practices, she documented a one-third decrease in disruptive behavior and policy violations. Nonetheless, these new practices did not sit well with many parents. Cole alleged that she was accused of being a Buddhist and trying to indoctrinate children into Buddhism (not that I think there's anything wrong with Buddhism); that several parents held a rally on the school grounds praying for "Jesus to rid the school of Buddhism," and the next day two women stood outside Cole's office, praying with their hands on her windows; and community members posted misleading messages about Cole's private business website and her "evil practices," forcing her to take the website down. Because of the controversy, the school district decided to move Cole to another school that was 16 miles farther from her home and that was allegedly lower-performing, offering fewer academics, athletics, and extra-curricular activities than Bullard.

Was this decision wrong? Almost certainly. But was it also, as Cole alleged, unlawful religious discrimination in violation of Title VII? Federal District Court Judge William Duffey thought not, dismissing Cole's Title VII claim against the Cobb County School District in his decision, 1:17-cv-1378-WSD-AJB, of January 18, 2018. But, as discussed below, I think Cole has a solid claim, and if she appeals, the Eleventh Circuit may very well reverse.

Discrimination Based on Perceived Religion

In her complaint, Cole alleged that she was subjected to "reverse religious discrimination." Generally, when an employer is accused of "reverse discrimination," it refers to alleged discrimination against someone who is white, male, or a member of another group that is not usually subjected to discrimination. Cole clearly was not alleging reverse discrimination in this sense. Instead, Judge Duffey construed Cole's complaint as alleging that she was transferred because she was mistakenly perceived as being a Buddhist. Judge Duffey concluded that a "perceived claim" is not covered by the plain language of Title VII.

It is unclear whether Title VII prohibits discrimination based on the misperception that someone is a member of a certain group. In both its Compliance Manual Section on Race and Color Discrimination and its Enforcement Guidance on National Origin Discrimination, the EEOC takes the position that it is unlawful to discriminate against someone based on the perception that he is a member of a certain protected group even if the perception is incorrect. Judge Duffey declined to give any weight to the EEOC's position because it had not taken the same position in its guidance on religious discrimination. I don't know why the EEOC did not explicitly address misperception discrimination with respect to religion, but the same analysis that applies to race and national origin also must apply to religion, so the EEOC guidance clearly supports Cole's position.

As for the statutory language, I agree with Judge Duffey that Title VII, on its face, does not appear to prohibit misperception discrimination. The relevant provision states that it is unlawful to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The term "such" clearly refers to the particular individual subjected to discrimination. If the statute omitted "such individual's," then the argument for covering misperception discrimination would be much stronger.

While the lower courts have gone both ways, the Supreme Court's recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), suggests that misperception discrimination is not covered. In particular, the Court stated that an employer violates Title VII if it refuses to hire a job applicant because: (1) the employer believes, though it does not know, that the applicant is an Orthodox Jew and would require Saturdays off to observe the Sabbath; and (2) the applicant actually requires the accommodation. If prong (2) is required for a plaintiff to have a claim of religious discrimination under Title VII, then it appears that a plaintiff would not have a claim if the employer was motivated by a mistaken perception about protected status. 

Discrimination Based on Religious Objections to Mindfulness

Alternatively, Cole may be alleging that she was transferred based on the school community's religious objections to mindfulness practices. In EEOC v. United Health Programs of America, Inc. and Cost Containment Group, Inc., No. 14-3673 (KAM)(JO) (E.D.N.Y. Sept. 30, 2016), District Court Judge Kiyo Matsumoto entertained a similar kind of claim. There, the EEOC alleged that the defendant engaged in "reverse religious discrimination" by subjecting unwilling employees to a program called Onionhead or Harnessing Happiness, which the EEOC argued was a form of religion. As I explained in a prior post, however, I think Judge Matsumoto's decision was mistaken since the EEOC did not allege that Onionhead, even if the defendant viewed it as religious, discriminated against employees who objected to it based on those employees' religion. Moreover, imposing liability under such circumstances would violate the First Amendment's Free Exercise Clause since an employer would be free to adopt an employee program for secular reasons while another employer could not adopt the same program for religious reasons.

Failure to Conform to Christian Beliefs

Another way to look at Cole's claim of "reverse religious discrimination" is that she has been treated adversely not because she is a particular religion but because she is not a particular religion. According to Cole, she was treated adversely because she acted in a way that was inconsistent with being Christian. This strikes me as a strong claim. Just as it is unlawful to treat someone badly for being Christian, it is also unlawful to treat someone badly for not being Christian. Judge Duffey perfunctorily rejected this claim, explaining merely that there was no controlling precedent supporting a "failure to conform claim based on a perceived religion." Based on this characterization, Judge Duffey conflated the concept of discrimination based on the misperception of being a Buddhist with the concept of discrimination based on not being Christian. The latter is covered regardless of whether misperception discrimination is also covered. If Cole was treated adversely for not being a certain kind of Christian, then her Title VII rights were violated, regardless of whether she was perceived as being a Buddhist, an atheist, or a poor Christian.

Discrimination Based on Community Perceptions of Cole's Religion

Finally, Judge Duffey faulted Cole for failing to show that the defendant treated her differently based on its own perception of her religious beliefs, which Duffey described as an "aberration of a 'cat's paw' theory." The cat's paw theory is used to hold an employer liable where the final decisionmaker is not biased but relies on the biased input of another individual. In most cases, the biased individual is a supervisor or other agent who is providing input based on official authority. But an employer is also liable (as discussed here) if the biased individual is not an agent where the decisionmaker knows or should have known that the individual providing the input is biased. Similarly, if an employer decides not to take action to correct sexual harassment, it can be liable even it was not motivated by bias. For example, it might have a policy of not addressing conduct between coworkers. Even so, the employer could still be liable for not addressing harassment that it knew was based on sex. Likewise, an employer can be liable if it treats an employee adversely based on the religious bias of members of the larger community as long as the employer is aware of that bias.

In addition to alleging Title VII violations, Cole alleged that the defendant violated the Establishment Clause of the First Amendment by adopting the religious perspective of parents who objected to mindfulness practices. This is the only one of Cole's claims that Judge Duffey declined to dismiss.

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, January 20, 2018

Tabura v. Kellogg USA: Does Title VII require a religious accommodation that "eliminates" the conflict between an employee's religious beliefs and the employer's workplace policies?

In Tabura v. Kellogg USA, Inc., No. 16-4135 (10th Cir. Jan. 17, 2018), Richard Tabura and Guadalupe Diaz alleged that the defendant violated Title VII of the Civil Rights Act of 1964 by denying them a reasonable accommodation. Tabura and Diaz, both Seventh Day Adventists, worked in a food production facility and requested accommodations that would have allowed them to refrain from work between sundown Friday and sundown Saturday. Facility employees were divided into four shifts that worked 12 hours a day for 2 or 3 days, followed by 2 or 3 days off, and it was not feasible for Tabura and Diaz to be given every Saturday off. As a result, to avoid working on Saturdays, Tabura and Diaz had to either use leave, find a substitute, or stay home and be assessed disciplinary points. Both were fired after accumulating too many points under the defendant's progressive discipline policy.

Although the Tenth Circuit reversed summary judgment for the defendant on the plaintiffs' religious accommodation claims, it rejected the contention, which was advanced by both the plaintiffs and the EEOC as amicus, that a reasonable accommodation must "eliminate" the conflict between an employee's religious beliefs and the employer's work requirements. The Tenth Circuit joined the Fourth and Eighth Circuits in rejecting the EEOC's "elimination" position, yet it also disagreed with those circuits in other important respects.

The Tenth Circuit explained that "an accommodation will not be reasonable if it only provides Plaintiffs an opportunity to avoid working on some, but not all, Saturdays." "[T]o be reasonable, an accommodation need not provide a 'total' accommodation; that is, Kellogg is not required to guarantee Plaintiffs will never be scheduled for a Saturday shift, nor is Kellogg required to provide an accommodation 'that spares the employee any cost whatsoever.'"

What I understand the court to be saying is that Title VII requires, at the very least, that an accommodation provide an employee with a reasonable opportunity to comply with his religious beliefs. This opportunity may disadvantage an employee to some degree, and it is not a guarantee that an employee will be able to comply with his religious beliefs. For example, if an employee uses three-quarters of his leave to take a vacation and then has insufficient leave later that year to observe the Sabbath, he may be out of luck since the employer provided the opportunity for him to comply with his religious beliefs. On the other hand, if an employee exhausts all his leave due to illness, then the employer might be required to extend additional leave to the employee if he subsequently needs time off to observe the Sabbath.

In this case, the defendant provided Tabura and Diaz with three accommodations that allowed them to observe the Sabbath: taking authorized leave, taking unauthorized time off and accumulating disciplinary points, and swapping shifts with an employee scheduled to work another day. Even if Tabura and Diaz had used all of their leave entitlement to observe the Sabbath and then accrued disciplinary points for additional days, leaving no time off whatsoever for any other purpose, they would still have needed to arrange swaps with workers on other shifts. But the plaintiffs presented evidence showing that it was difficult to arrange for shift swaps, and the employer provided little assistance. Thus, even considering all three accommodations, the defendant may not have afforded the plaintiffs a reasonable opportunity to avoid working all 26 Saturdays that conflicted with their work schedules.

By contrast, the Fourth and Eighth Circuits both appeared to stop far short of saying that a reasonable accommodation must give an employee the opportunity to comply with his religious beliefs. In Sturgill v. United Parcel Service, 512 F.3d 1024 (8th Cir. 2008), the Eighth Circuit stated that Title VII requires cooperation by both the employer and the employee and that a religious accommodation may require that an employee "either compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions." Similarly, in EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008), the Fourth Circuit concluded that the defendant's accommodations, which included paid and unpaid leave and voluntary shift swaps, were sufficient to meet Title VII requirements even though they were not sufficient for the plaintiff to be off work for all the religious holidays he observed and he was fired when he took off without authorization. 

So unlike the Fourth and Eighth Circuits, the Tenth Circuit agrees with the EEOC that an employee may not be required to compromise his religious beliefs. So what's the Tenth Circuit's beef with the EEOC's position? In rejecting the elimination requirement, the court explains:
Determining what is reasonable is a fact-specific determination that must be made on a case-by-case basis. Plaintiffs' absolute rule would read "reasonably" out of the statute. Adopting a per se "elimination" rule that applies across all circumstances is not helpful to determining whether an accommodation is reasonable. Instead it unnecessarily complicates the question of reasonableness and begs additional questions, including what is meant by "eliminate" or "totally" eliminate or "completely" eliminate.
As suggested by the court, requiring that an accommodation be "complete" or that it "eliminate" any conflict creates an ambiguity. Such a requirement may be misread as requiring that an employee who observes a weekly Sabbath be granted an exception to a neutral workplace policy or that the employee not incur any cost, such as having to use paid leave for a religious observance. Thus, the Tenth Circuit faulted the EEOC and the plaintiffs for suggesting that an employer cannot accommodate an employee's religious practices solely through neutral policies. The EEOC and the plaintiffs cited the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, 135 S. Ct. 2028 (2015), for the proposition that an employee requesting a religious accommodation is entitled to "favored" treatment. In the Tenth Circuit's view, the Supreme Court merely recognized that "an employer cannot take refuge behind a neutral policy if something more is required reasonably to accommodate a religious need." Nothing requires an employer to take special steps to accommodate an employee's religious beliefs, however, when the policies it already has adopted will do just fine. As an illustration, in a prior case, United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976), the Tenth Circuit held that the trial court had not erred in concluding that the defendant had reasonably accommodated a firefighter who observed a weekly Sabbath by allowing him to take paid and unpaid leave and to swap shifts and that the firefighter was not entitled to be off on his Sabbath "as a matter of right." 

In rejecting the plaintiffs' and the EEOC's contentions that an employee seeking a religious accommodation is entitled to "favored" treatment that "totally eliminates" any conflict between his religious practices and the employer's work requirements, the Tenth Circuit struck a balance: an employee is entitled to accommodations that allow him a reasonable opportunity to comply with his religious beliefs; however, a reasonable accommodation need not be free of all cost to the employee, and the employee is not entitled to an exception to a work requirement where the employer can reasonably accommodate the employee solely through the same neutral policies that apply to other employees.

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, 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.