Monday, February 26, 2018

Zarda v. Altitude Express: Hooray, sexual orientation discrimination is sex discrimination; but wait, did the court just open the door to racially segregated bathrooms?

So the Second Circuit, joining the Seventh, has held in Zarda v. Altitude Express (Feb. 26, 2018) that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. As usual, I'm going to rain on everyone's parade. Here, for the first time, a court has been forced to reconcile Title VII coverage of sexual orientation discrimination with case law allowing sex-based grooming standards and sex-segregated bathrooms. Unfortunately, the Second Circuit's attempt to bring harmony to these competing lines of cases is a miserable failure.

Most problematic is the main opinion by Judge Robert Katzmann, which was joined in full by four other judges. The upshot of that opinion is that sexual orientation discrimination is a form of sex discrimination. But that doesn't mean that sex-segregated bathrooms are unlawful. And here's the kicker, that also doesn't mean that race-segregated bathrooms are unlawful.

This is the relevant discussion:
The government further counters that the comparative test produces false positives in instances where it is permissible to impose different terms of employment on men and women because "the sexes are not similarly situated."  For example, the government posits that courts have rejected the comparative test when assessing employer policies regarding sex-segregated bathrooms and different grooming standards for men and women. Similarly, the lead dissent insists that our holding would preclude such policies if "t]aken to its logical conclusion."  Both criticisms are misplaced.
A plaintiff alleging disparate treatment based on sex in violation of Title VII must show two things: (1) that he was "discriminate[d] against . . . with respect to his compensation, terms, conditions, or privileges of employment," and (2) that the employer discriminated "because of . . . sex." The comparative test addresses the second prong of that test; it reveals whether an employment practice is "because of . . . sex" by asking whether the trait at issue (life expectancy, sexual orientation, etc.) is a function of sex. In contrast, courts that have addressed challenges to the sex-specific employment practices identified by the government have readily acknowledged that the policies are based on sex and instead focused their analysis on the first prong: whether the policies impose "disadvantageous terms or conditions of employment." . . .  Whether sex-specific bathroom and grooming policies impose disadvantageous terms or conditions is a separate question from this Court's inquiry into whether sexual orientation discrimination is "because of . . . sex," and has no bearing on the efficacy of the comparative test.
Now, let's consider the implications. This analysis does not undermine the permissibility of sex-based grooming policies and sex-segregated bathrooms since even if those practices can be considered sex-based under Title VII, there is the separate issue of whether those practices impose disadvantageous terms or conditions of employment. Consequently, if sex-segregated bathrooms do not result in disadvantageous terms or conditions of employment, then requiring a transgender woman to use the men's bathroom would presumably not violate Title VII, regardless of whether Title VII prohibits gender identity discrimination. And if sex-segregated grooming policies do not result in disadvantageous terms of employment, then it would be perfectly fine under Title VII I would think to require a transgender woman to dress in traditionally male attire. 

Likewise for potentially race-based policies. In the recent case of EEOC v. Catastrophe Management, 852 F.3d 1018 (11th Cir. 2016), the Commission argued that the refusal to hire an African American job applicant because she refused to cut off her dreadlocks constituted race discrimination. The Eleventh Circuit disagreed that such a policy is facially race-based, but now the Commission may also face another obstacle to such a suit, namely that a race-based hairstyle policy may be permissible under Title VII because it does not result in disadvantageous terms or conditions of employment. 

And starkly, as Judge Gerald Lynch observed in his dissent in Zarda, "Obviously, Title VII does not permit an employer to maintain racially segregated bathrooms, nor would it allow different-colored or different-designed bathing costumes for white and black lifeguards." Yet, under Judge Katzmann's analysis, this is not obvious at all. Racially segregated bathrooms would seem to be just hunky dory unless they were shown to result in worse terms or conditions for members of one race than for members of another race. In other words, "separate but equal" racially segregated facilities -- just like sex-segregated bathrooms -- do not necessarily violate Title VII.

Now, I certainly don't believe that, and I presume Judge Katzmann doesn't believe it either. Still, that's where his legal analysis leads. Notably, only four of the nine other judges who ruled for Zarda joined the portion of Katzmann's decision I've been discussing, but silence is hardly good enough. When you consider that Judge Lynch specifically raised the issue of race-based practices, the majority's failure to address the potentially disastrous implications of Katzmann's analysis is unconscionable.

I believe the right answer, as I discussed in a prior post, lies in whether members of different sexes or different races are similarly situated:
If single-sex bathrooms are lawful, then what gives? The answer, I think, is that men and women are not similarly situated with respect to bathroom access. Mainstream American society continues to believe that bathroom usage implicates privacy concerns that require sex-segregated bathrooms. Thus, barring women from using the men's room does not discriminate against men because men and women have different genitals. . . . By contrast, when it comes to a typical employment decision, like hiring or promotion, there is nothing that distinguishes men from women in general or that distinguishes gay men from heterosexual women or lesbians from heterosexual men that would justify treating them differently.
Racially segregated bathrooms, by contrast, would not be lawful because there are no privacy considerations that would justify them. 

In EEOC v. Harris Funeral Homes, the Sixth Circuit is also grappling with the tension between recognizing coverage of LGBT discrimination under Title VII and longstanding precedent upholding sex-specific grooming policies. Let's hope that it does a better job than the Second Circuit.

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, February 24, 2018

Mosby-Meachem v. Memphis Light, Gas & Water: When does it violate the Americans with Disabilities Act to deny an employee with a disability the opportunity to telework?

In Mosby-Meachem v. Memphis Light, Gas, & Water Division, the Sixth Circuit affirmed a jury verdict that the defendant violated the Americans with Disabilities Act by not allowing Andrea Mosby-Meachem, an in-house attorney, to telework while she was on doctor-ordered bed rest during the final 10 weeks of her pregnancy. Although the defendant contended that in-person attendance was essential for effective job performance, Mosby-Meachem presented contrary evidence. For instance, although some functions listed in her job description, including trying a case in court and taking depositions, clearly could not be performed at home, she had never performed those functions during the eight years she had worked for the defendant. The court distinguished its prior decision in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015), rejecting a resale buyer's claim that the defendant violated the ADA by not allowing her to telework. In Ford, the plaintiff asked to work off-site up to four days a weeks for an indefinite period and on an indeterminate schedule, and there was evidence that she had a history of unsatisfactory job performance. By contrast, Mosby-Meachem wanted to telework for a specific 10-week period, and she had previously worked from home without issue. 

Although the court recognized that teleworking can be a reasonable accommodation, it left a significant issue unresolved. Instead of allowing Mosby-Meachem to telework, the defendant granted her the alternative accommodation of allowing her to take sick leave and short-term disability leave. The Sixth Court's decision provides little guidance as to when leave would constitute a reasonable accommodation even though an employee has requested the right to telework. The court determined that the defendant had waived that argument but nonetheless rejected it on its merits, concluding that the jury could have found that the leave accommodation was not reasonable because the defendant had failed to engage in an interactive process to discuss Mosby-Meachem's limitations and possible accommodations.

From my perspective, this analysis leaves much to be desired. Whether the defendant engaged in the interactive process seems to be beside the point. Either leave was a reasonable accommodation or it wasn't. I don't see why the defendant's alleged failure to engage in an interactive process would be relevant to this determination. There's no question that leave can be a reasonable accommodation if an employee cannot do her job, but how about where, as here, an employee can do her job if allowed to telework and that's the accommodation she prefers? By being forced to take leave, Mosby-Meachem may have incurred a loss of income and been required to use sick leave that she otherwise could have saved for a future illness. On the other hand, even if Mosby-Meachem could have performed her job satisfactorily from her home, the defendant might have reasonably felt that the work could have been performed more effectively in the office by someone else.

The district court concluded that the question of whether the defendant's offered accommodation was reasonable was a jury question. I'm not so sure it's that simple. Perhaps the offer of leave was per se unreasonable if teleworking allowed Mosby-Meachem to perform her job satisfactorily and disadvantaged her less than taking leave. Or perhaps the leave offer was per se reasonable because it allowed her to get the bed rest she needed and then return to work without penalty. But even if there was no bright-line rule, what considerations should have guided the jury's determination?

Unfortunately, the court of appeals did not even acknowledge these issues. In the end, then, we know that an employee might be able to establish that teleworking is a reasonable accommodation, but we don't know whether an employer's alternative offer of leave would be sufficient to satisfy its accommodation obligations.

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, February 22, 2018

Bowen v. Manheim Remarketing, Inc.: Prior Salary and the Equal Pay Act

In Bowen v. Manheim Remarketing, Inc., No. 16-17237 (Feb. 21, 2018), the Eleventh Circuit concluded that Qunesha Bowen, an arbitration manager, could proceed with claims that she was paid less than a male predecessor because of her sex in violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The court concluded that, contrary to the defendant's contention, a jury could find that the predecessor's prior salary and prior experience alone did not explain the pay differential. The court noted that such factors would not seem to have justified Bowen's lower pay once she had proven herself to be an effective arbitrator. Moreover, Bowen had presented evidence that the defendant's general managers engaged in sex discrimination, including the prior failure to correct sex-based wage disparities; sexist comments; the refusal to hire women for managerial positions; and the existence of a "good ole' boy" system.

As I've discussed previously (see here and here), the Ninth Circuit case of Rizo v. Yovino also involves an Equal Pay Act claim in which pay history was a factor in setting employee pay. These cases are very different, however. In Rizo, the issue was whether the defendant's reliance on prior salary could be used to justify the pay differential under the Equal Pay Act. Here, the employer's reliance on prior salary is not at issue. Rather, the question is whether the employer also -- or instead -- relied on sex. Thus, unlike Rizo, this case does not present a sweeping challenge to the practice of relying on pay history in setting an employee's pay, and involves a straightforward claim of sex-based wage discrimination. 

Rizo is a case to watch. If the Ninth Circuit rejects any reliance on pay history, I would expect this issue to go to the Supreme Court.

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. v. Becerra: Discrimination Against Older Women in the Entertainment Industry

In a win for free speech, Federal District Court Judge Vince Chhabria ruled that AB 1687, a California law that would restrict websites from publishing individuals' ages, is unconstitutional. Chhabria reasoned that, because the law singles out non-commercial speech for differential treatment, it is subject to strict scrutiny.  Even if there is some link between the availability of age information on the Internet and age discrimination in the entertainment industry, the state had not shown that the law was "actually necessary." There was no evidence that the state had explored less restrictive means of combating age discrimination, and rather than clarify the prohibition against age discrimination by the entertainment industry, the state had chosen to censor truthful information. The law was also flawed because it was underinclusive, since it only limited one type of speaker from disseminating age-related information.

And in a nod to #MeToo, Chhabria criticized AB 1687 as being fundamentally misguided for failing to attack what he sees as the main problem in the entertainment industry: sex discrimination.
The legislative materials repeatedly cite an article discussing "[t]he commonplace practice of casting a much younger female against a much older male" and lamenting the significant underrepresentation of women in leading roles and in directors' chairs. The defendants describe this as a problem of "age discrimination." While that may be accurate on some level, at root it is far more a problem of sex discrimination. Movie producers don't typically refuse to cast an actor as a leading man because he's too old for the leading woman; it is the prospective leading woman who can't get the part unless she's much younger than the leading man. TV networks don't typically jettison male news anchors because they are perceived as too old; it is the female anchors whose success is often dependent on their youth. This is not so much because the entertainment industry has a problem with older people per se. Rather, it's a manifestation of the industry's insistence on objectifying women, overvaluing their looks while devaluing everything else. The defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women. If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it's trying to solve. 
Let's hope that Chhabria's words don't fall on deaf ears.

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, February 21, 2018

EEOC v. Massage Envy: Does the Americans with Disabilities Act prohibit discrimination based on a potential future disability?

In EEOC v. Massage Envy, No. 8:17-cv-977-MSS-CPT (M.D. Fla. Feb. 15, 2018), District Court Judge Mary Scriven dismissed the EEOC's complaint alleging that the defendant violated the Americans with Disabilities Act by firing Kimberly Lowe because she refused to cancel her trip to Ghana to visit her sister. According to the EEOC, the defendant violated the ADA by firing Lowe because it "perceived [Lowe] as disabled  or . . . as having potential to become disabled" by contracting Ebola from infected individuals in Ghana. Rejecting the EEOC's claim, Scriven concluded that the ADA does not apply where the "employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct."

Although the court's interpretation may seem to leave an odd gap in coverage, I think it is correct. In Sutton v. United Air Lines, Inc., 527 U.S. 741 (1999), the Supreme Court concluded that, because the ADA uses the present indicative verb form in the term "substantially limits," it is "properly read as requiring that a person be presently -- not potentially or hypothetically -- substantially limited in order to demonstrate a disability." In this case, the statutory provision refers to "having such an impairment," so like, the language at issue in Sutton, it should be interpreted as applying solely to someone who currently has an impairment, and should not encompass someone who might have one in the future. This ADA language can be contrasted with the broader coverage of pregnancy discrimination under Title VII of the Civil Rights Act of 1964, which defines "because of sex" as including "because of or on the basis of pregnancy, childbirth, or related medical conditions." Since Title VII covers any discrimination "because of pregnancy" and not merely for "being pregnant," the statute is more readily interpreted to extend to potential pregnancy.

Notably, the ADA explicitly prohibits discrimination based on an individual's record of an impairment. If the ADA's prohibition against an individual who is regarded as having an impairment is interpreted to cover someone who might have an impairment in the future, then why does it not also cover someone who had an impairment in the past, i.e., a record of an impairment? If a distinct provision is required to cover past impairments, then a distinct provision should also be required to cover future impairments. Since no such provision exists, future impairments are not covered.

As suggested by Judge Scriven, discrimination based on someone's current status is fundamentally different from discrimination based on voluntary conduct that might lead to a particular status. Once an individual has already engaged in a particular act, it cannot be undone. In this regard, there is a sound reason to prohibit discrimination based on an individual's status even if it was the individual's own doing, but not to prohibit discrimination where the individual has it within his control to take steps to avoid a particular status.

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, February 17, 2018

Braaten v. Newmont USA Ltd.: How much younger is "substantially younger"?

In Braaten v. Newmont USA Ltd., No. 17-15394 (Feb. 15, 2018), the Ninth Circuit affirmed the district court's determination that John Braaten failed to establish a prima facie case of age discrimination when he was fired, because his replacement was less than 10 years younger.

This case illustrates a peculiarity about a claim of age discrimination. Ordinarily, if a plaintiff is trying to raise an inference of discrimination, he need only point to a similarly situated individual outside his protected class. For example, if an African American alleges that he was not hired because of his race, he can point to a white individual in order to raise an inference of race discrimination. But if a 55-year-old wants to show that he was not hired because of his age, can he point to a 54-year-old who was not hired? Although a 54-year-old comparator would obviously be younger, common sense tells us that a decisionmaker is unlikely to treat a 55-year-old worse than a 54-year-old because of a one-year age difference. Therefore, the mere fact that the favored individual is younger is not enough by itself to raise an inference of age discrimination. As a result, courts require that the comparator be "substantially" younger. Exactly what it means to be "substantially" younger is a subjective determination that is largely open to debate. However, the Ninth and the Seventh Circuits have concluded that a 10-year age difference is presumptively substantial.

The converse is that an age difference of less than 10 years is presumptively insubstantial, though this presumption can be overcome through other evidence that the employer was motivated by age discrimination. In France v. Johnson, 795 F.3d 1170 (9th Cir. 2015), John France, who was a 54-year-old border patrol agent when he was denied a promotion, alleged that he had established a prima facie case of age discrimination where the defendant had promoted four younger comparators. Although the comparators were an average of only 8 years younger than France, he had also presented evidence that the employer had explicitly expressed a preference for promoting younger agents and that an official had repeated retirement discussions with him shortly before the positions were advertised, even though France was not personally inclined to retire. Thus, although the 8-year age gap was presumptively insubstantial, France overcame that presumption.

By contrast, in the instant case, the court concluded that Braaten did not overcome the presumption that his comparator was not substantially younger "'by producing additional evidence to show that the employer considered his . . . age to be significant.' Instead, he admitted that Newmont never discriminated against him before his termination; that no one involved in his termination made any age-related comments; and that he did not make an internal complaint of age discrimination during his termination, even though he knew he could."

Interestingly, the individual who replaced Braaten was 9.5 years younger. Although less than 10 years, it's pretty close, and it seems really unlikely to me that a decisionmaker would engage in age discrimination if a comparator is 10 years younger but not if he is 9.5 years younger. Of course, you could further reason that if 9.5 years is enough, then so is 9 years; if 9 years is enough, then so is 8.5 years, and so on. (See this discussion of the sorites paradox.) Rather than stop at the prima facie case, however, the court also determined that Braaten failed to establish that the employer's asserted reason for firing him was pretextual. So even if the individual who replaced Braaten was "substantially younger," there was still insufficient evidence to establish unlawful age 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.

Thursday, February 15, 2018

Grussgott v. Milwaukee Jewish Day School: When does the ministerial exception apply?

In Grussgott v. Milwaukee Jewish Day School, No. 17-2332 (Feb. 13, 2018), the Seventh Circuit held that Miriam Grussgott's claim under the Americans with Disabilities Act was barred by the ministerial exception. This exception is grounded in the religion clauses of the First Amendment and recognizes that interference with a religious institution's selection of its "ministers" violates the Constitution. 

Rather than apply a formalistic test, the court stated that it was necessary to look at the totality of the circumstances to determine whether the exception applies. The court noted that Grussgott was expected to integrate religious teaching into her lessons and that the former principal cited Grussgott's significant religious teaching experience in the decision to hire her. Moreover, Grussgott taught students about Jewish holidays, prayer, and weekly Torah readings. 

Significantly, the court deferred to the defendant's view of whether Grussgott's duties were religious in nature. Although Grussgott may have believed that she was approaching her duties from a cultural or historical, rather than religious, perspective, her views did not affect whether the school genuinely viewed her duties as religious. As the court explained: "[T]he purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith. Thus, it is the school's expectation -- that Grussgott would convey religious teachings to her students -- that matters."

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, February 14, 2018

Cadoret v. Sikorsky Aircraft Corp.: Is hiring a full-time sign language interpreter a REASONABLE accommodation?

In Cadoret v. Sikorsky Aircraft Corp., No. 3:15cv1377(JBA), District Court Judge Janet Arterton rejected the defendant's contention that James Cadoret's request for a sign language interpreter was unreasonable as a matter of law. Cadoret, a deaf individual whose primary language is American Sign Language, had requested that the defendant provide a sign language interpreter so that he would have "access to equal benefits and privileges of his employment," which included being able to participate in meetings and training and to converse with supervisors. The defendant contended that Cadoret's request was per se unreasonable because it would require the hiring of a full-time employee to accommodate Cadoret. Disagreeing, Judge Arterton concluded that even assuming a reasonable accommodation would require the hiring of a full-time interpreter, which Cadoret disputed, there were no "extraordinary circumstances" in the record so as to render provision of an interpreter unreasonable.

Before Arterton's decision, a few other courts had likewise concluded that an employer might be required to provide a full-time sign language interpreter as a reasonable accommodation, including the federal district court in Maryland (Searls v. Johns Hopkins) and the Ninth Circuit (EEOC v. UPS Supply Chain Solutions). Notably, in upholding a full-time sign language interpreter as a reasonable accommodation, courts have largely overlooked whether such an accommodation would in fact ever be reasonable.

In U.S. Airways v. Barnett, 535 U.S. 391 (2002), the Supreme Court rejected the contention that to be reasonable, an accommodation need only be effective. Accordingly, the Court held that reassigning an employee to a vacant position, even if it would be an effective accommodation, would generally not be a reasonable accommodation where the reassignment would violate collectively bargained seniority rights.

In other cases, some lower courts have evaluated the reasonableness of an accommodation by looking, in part, at the benefits of an accommodation relative to its costs. For example, in Borkowski v. Valley Central School, No. 92-7254 (2d Cir. 1994), the court stated:
"Reasonable" is a relational term:  it evaluates the desirability of a particular accommodation according to the consequences that the accommodation will produce. This requires an inquiry not only into the benefits of the accommodation but into its costs as well. We would not, for example, require an employer to make a multi-million dollar modification for the benefit of a single individual with a disability, even if the proposed modification would allow that individual to perform the essential functions of a job that she sought.  In spite of its effectiveness, the proposed modification would be unreasonable because of its excessive costs.  In short, an accommodation is reasonable only if its costs are not clearly disproportionate to the benefits that it will produce.
Even if this kind of cost-benefit analysis is not integral to evaluating reasonableness, it is clear that by only requiring an employer to provide a reasonable accommodation, Congress put some limits on the kinds of accommodations that an employer can be required to provide. As a result, although an employer may be able to easily afford a particular kind of accommodation, that accommodation may still fall outside the bounds of what is legally required. 

If an employer is required to hire a full-time employee to accommodate someone else, then the employer is essentially having to hire two individuals when one would usually do. Is that a reasonable accommodation? Courts need to grapple with that question.

Another interesting aspect of cases involving requests for full-time interpreters is that they can be based to some extent on a deaf employee's limited written English skills. Written communications can be a reasonable means of accommodating deaf workers in many circumstances, and in the EEOC's fact sheet about deafness and hearing impairments, the agency discusses sign language interpreters as an accommodation to facilitate oral communication, not as an accommodation to address limited English ability. In some cases, however, an individual's limited written English skills will mean that written English communications will not be an effective accommodation, so the only accommodation may be to provide a sign language interpreter for a variety of communications, which may even include the translation of some employer materials from written English to American Sign Language.

A lurking issue here, which I've wondered about but haven't seen addressed in cases, is whether accommodating limited English skills falls under the Americans with Disabilities Act. Under the ADA, an employer is required to accommodate an individual's mental or physical limitations, and typically, there is a close connection between the limitation and the need for the accommodation. If an individual has a mental impairment that limits the ability to learn written English, then the person's limited written English skills are caused by the impairment. But if someone has weak written English skills because English is not his first language, then the connection to disability seems more tenuous. Some experts appear to believe that written English can be more difficult to learn for someone who is deaf, and particularly so if the individual was born that way, than for a hearing individual. I've seen others, however, suggesting that someone going from ASL to written English is not that different from someone going from Chinese or Russian to English.  If a deaf individual can learn written English as easily as a native Chinese or Russian speaker, then is accommodating poor English skills still akin to accommodating deafness? If not, then how difficult must it be for a deaf individual to learn written English in order for an employer to be required to provide an accommodation under the ADA?


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, February 12, 2018

Why do women Uber drivers earn 7% less per hour than men?

A recent episode of the podcast Freakonomics highlighted a paper by five economists that ferrets out the underlying reasons why male Uber drivers earn an average of 7% more per hour than female Uber drivers. Because Uber drivers are part of the "gig" economy and enjoy great flexibility in setting their work schedules, the substantial size of the pay gap was surprising. The authors attributed none of the gap to the algorithm by which the company compensates drivers, which is gender-blind, nor to customer discrimination, since riders don't prefer drivers of a particular sex. Rather, the authors concluded that the pay gap could be explained by three factors: men tend to drive more lucrative routes, such as to and from airports (20% of the gap); men work longer and therefore know more about how to make money on the platform (30% of the gap); and men drive about 2% faster than women and are able to complete more trips (50% of the gap).

Of course, the Uber study does not show that a wage differential between men and women can never be attributable to any extent to sex discrimination. Instead, it illustrates that, even in the absence of sex discrimination, women can still earn less than men. As explained by Stanford economist Rebecca Diamond:
I think this is showing that the gender pay gap is not likely to go away completely anytime soon. Unless somehow, things in our broader society really change, about how men and women are making choices about their broader lives, than just the labor market. But it's not also a worry that the labor market is not functioning correctly. It makes sense to compensate people who are doing more productive work. It makes sense to pay people more if they work more hours. I mean, I don't think those are things that we would ever consider thinking should be changed because that they're a problem. Those are just real reasons that productivity can differ between men and women. And we should compensate people based on productivity.
Outside the gig economy, the longer hours typically worked by men are also likely to translate into both an experience advantage and higher hourly wages. Although such wage premiums may contribute to a gender wage gap, they also reflect a societal consensus that hourly wage rates should rise as employees devote a higher proportion of their time to work. 

As it turns out, Uber has since adopted a compensation model that allows riders to tip drivers, and riders tend to tip women more than men. Whether we should be applauding tipping as a solution to the Uber pay gap is questionable, however, to my mind, given that customer tips can reflect sexism, racism, and other biases -- the very thing we are trying to eradicate.

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

Sunday, February 11, 2018

O'Connor v. Oakhurst Dairy: Statutory Construction and the Perils of Sloppy Punctuation

Oakhurst Dairy has reportedly agreed to pay $5 million dollars to delivery drivers who brought an overtime claim under Maine law. This case has delighted grammar geeks because it turned on the absence of a serial, or Oxford, comma. For those who don't remember their high school grammar, a serial comma is the last comma preceding the conjunction in a series, such as "red, white, and blue." Although not usually necessary, omission of a serial comma can create an ambiguity in certain cases, and that's what happened here. 

Under the provision at issue, overtime protections do not apply to: "The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods."

The issue presented was whether "packing for shipment or distribution" refers to two categories -- one, packing for shipment, and two, distribution" -- or one category -- packing for shipment or distribution. If there had been a serial comma before "or distribution," then delivery drivers clearly would have been exempted, but the lack of a comma created the ambiguity whether the Maine legislature had intended to merely exempt two kinds of packing, either for shipment or distribution. 

As the First Circuit saw it, there were arguments on both sides. On the drivers' side, for example, the term "distribution," unlike the terms used for activities clearly exempted, such as "canning" and "processing," is not a gerund, suggesting that it serves a similar purpose to "shipment." On the defendant's side, the court noted the omission of a conjunction before "distribution." Ultimately finding the statute ambiguous, the court construed the exemption narrowly in the drivers' favor, in furtherance of the remedial purpose of the statute.

On the lighter side, check out this video of the Vampire Weekend song "Oxford Comma."

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.

Teixeira v. Town of Coventry: Jury Instructions and the McDonnell Douglas Framework

In Texeira v. Town of Coventry, No. 17-1049.01A (Feb. 7, 2018). the First Circuit rejected the plaintiff's contention that the district court abused its discretion by instructing the jury on the McDonnell Douglas framework.

The McDonnell Douglas framework was established by the Supreme Court case in 1973. Because most victims of employment discrimination cannot point to a smoking gun, they typically have to establish a violation by pointing to circumstantial evidence. McDonnell Douglas established a structure for evaluating such evidence. Under the McDonnell Douglas framework, a plaintiff principally establishes discrimination by creating a weak of inference of discrimination and by undermining the credibility of the employer's asserted reason for the challenged action.

As I discussed in a prior post, Supreme Court Justice Neil Gorsuch, a vocal critic of the McDonnell Douglas framework, has mistakenly contended that the framework is limited to the summary judgment phase of a trial and that it is not relevant once a case gets before a jury. Indeed, in the 2000 decision in Reeves v. Sanderson Plumbing Products, a unanimous Supreme Court applied the McDonnell Douglas framework in upholding a jury verdict under the Age Discrimination in Employment Act. 

Likewise, in Teixeira, the First Circuit explained:
The Supreme Court's development of the McDonnell Douglas framework is a landmark in the realm of discrimination law. In this landmark decision, the Court did not restrict the use of the McDonnell Douglas framework to pretrial motions. Since then, lower courts routinely have signaled their approval of the use of adapted versions of the McDonnell Douglas framework to help jurors understand their roles in determining the merits of discrimination and retaliation cases. 
The First Circuit acknowledged that juries can be confused by the use of technical phrases that are part of the McDonnell Douglas framework. The answer, however, is not to abolish reliance on the framework in instructing juries but to present it in a way that can be easily understood. Here, the First Circuit concluded that the district court had passed that test, providing "the jury with a thoughtful, thorough, and easily understandable explanation of the relevant legal concepts."

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.

Perez v. City of Roseville: When is firing a cop for off-duty sexual conduct unconstitutional?

In Perez v. City of Roseville, No. 15-16430 (Feb. 9, 2018), the Ninth Circuit ruled that a police officer's private, off-duty sexual conduct is protected by the U.S. Constitution. Janelle Perez was fired after an internal affairs investigation revealed that she was having an extramarital affair with a fellow officer. She presented evidence that some investigators recommended that she be fired based, in part, on their moral disapproval of her extramarital sexual conduct. Citing the Supreme Court's decision in Lawrence v. Texas, which struck down a Texas statute criminalizing same-sex sexual conduct, the Ninth Circuit explained that the Constitution protects the freedom to engage in intimate sexual conduct and that the government may not "stigmatize private sexual conduct simply because the majority has 'traditionally viewed a particular practice,' such as extramarital sex, 'as immoral.'" Therefore, terminating a police officer for private, off-duty sexual conduct would be unconstitutional unless the conduct either "adversely affected the officer's on-the-job performance or violated a constitutionally permissible, narrowly tailored department policy." 

The Ninth Circuit's decision stands in stark contrast to Coker v. Whittington, No. 16-30679 (May 23, 2017), in which the Fifth Circuit held that the defendant did not violate the constitutional rights of two sheriff's deputies 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. (See this post.)  Although the Coker case presents somewhat different facts, the deputies, like Perez, were allegedly fired for private sexual conduct that was perceived as being immoral, so they may very well have fared better in the Ninth Circuit. 

Despite the Ninth Circuit's narrow approach, police departments presumably would have some discretion  to discipline officers for inappropriate sexual conduct. For example, sexual conduct between an officer and a suspect being investigated by the officer might be seen as affecting job performance. Similarly, a department might be able to justify a policy that limits sexual conduct between a supervisor and a subordinate.

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, February 3, 2018

Rivera v. Brennan: Is farting sexual harassment?

Flatulence Post at the AVAM
Rivera v. Brennan, No. 3:16-cv-330 (VAB) (D. Conn. Jan. 31, 2018), is a case with amusing facts that highlights the distinction between conduct that is sex-based and conduct that is merely crude and offensive. Among the conduct cited by Carmen Rivera, a Postal Service worker, she alleged that she was discussing a work matter with her supervisor when he stood up behind his desk to get a bottle of water, and she saw that his belt was open. She noticed some "ruffling [] of his shirt," and she also saw that his zipper was slightly open, but she could not see his underwear. The supervisor apologized that he had just finished eating and his belt was bothering him. Rivera alleged that, about 10 minutes later during the same meeting, she saw the supervisor "lift[ ] his leg up, his buttocks or whatever, his butt, and just pass[ ] gas, loud, and obnoxious." According to Rivera, she said, "Oh, my god. I don't believe you just did that"; and he responded, "Ah, my grandmother said, 'Better out than in.'"

Judge Victor Bolden rejected Rivera's contention that her supervisor's alleged conduct during this meeting was unlawful sexual harassment. He noted that Rivera did not present any evidence that her supervisor undid his pants as she entered his office, and she compared his apology to someone who had left the restroom having inadvertently left his pants unzipped. In addition, although Rivera stated that she may have used the word "sexual" when she recounted the incident to her boyfriend, she "recognized that [the supervisor] made no sexual advances or physical contact with her, while alone with her in his office." Rivera further testified that, being a woman, she was "extremely offended" by the supervisor's conduct. However, Judge Bolden noted that she also "recognized that [the supervisor] treated female employees no different from male employees, stating that '[h]e was mean to everybody.'"

In concluding that Rivera had not shown that her supervisor's conduct was sex-based, Judge Bolden relied, in part, on the absence of any evidence that the alleged conduct was sexual. I mention this because the relationship between whether conduct is sexual and whether it is sex-based is confusing and merits a brief discussion. Title VII of the Civil Rights Act does not prohibit sexual harassment per se, but conduct that is based on sex, meaning conduct directed at an individual for being male or for being female. In Oncale v. Sundowner Services, Inc., 523 U.S. 75 (1998), the Supreme Court explained:
We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).
Although courts generally presume that sexual conduct directed at a member of the opposite sex is sex-based, courts are more reluctant to presume that sexual conduct is sex-based when directed at a member of the same sex. In particular, courts have noted that if a man directs sexual conduct at another man, that conduct may merely be an example of juvenile provocation. 

If similar sexual conduct is directed at members of both sexes, then absent some other evidence that employees are targeted because of their sex, the sexual nature of the conduct won't be enough to establish that it is sex-based. For example, in Smith v. Hy-vee Inc., 622 F.3d 904 (8th Cir. 2010), the court concluded that Dru Smith, a bakery department employee, failed to show that her female coworker's conduct was based on gender. The alleged conduct included molding genitalia out of dough, “dry humping,” smacking Smith on the buttocks, and telling sexual jokes. The court concluded that the evidence failed to show that the coworker was motivated by sexual desire toward Smith as the coworker subjected both male and female employees to the same kind of behavior.

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, February 2, 2018

Fulton v. Mississippi State University: An EEO Brain Teaser About Third-Party Retaliation

For a change of pace, I have an EEO brain teaser! Under the anti-retaliation provision of Title VII, it's unlawful for an employer to retaliate against someone for complaining about discrimination. Suppose Amanda complains about sexual harassment by her supervisor, Charlie, and then, to get back at Amanda, Charlie fires Amanda's friend Brenda. Under these circumstances, who has been subjected to unlawful retaliation? 

Despite the fact that Brenda is the one who was fired, it's Amanda who was subjected to retaliation. Here's why. Under the anti-retaliation provision, it's unlawful to take an adverse action against someone who has complained about discrimination, filed a lawsuit, or engaged in other protected activity. Since Brenda did not complain about discrimination, the employer could not possibly have retaliated against her. If the employer fired Brenda to get back at Amanda, then Amanda's the one who was retaliated against.

If you guessed Brenda, though, you're not alone.

In Fulton v. Mississippi State University, No. No. l:17-cv-70-GHD-DAS (N.D. Miss. Jan. 31, 2018), Judge Glen Davidson made the same mistake. In that case, Davidson rejected the defendant's contention that Naomi Fulton was not subjected to retaliation when she was allegedly transferred because of her association with a coworker who had complained about sexual harassment. Davidson reasoned that Fulton's association with the coworker constituted protected activity, and therefore, it was unlawful for the employer to have retaliated against her for that association. As with the Amanda hypothetical, the alleged retaliation here was not against Fulton but against her coworker, the individual who complained about sexual harassment.

On the other hand, under Title VII, you may be able to bring a retaliation claim even if you weren't the one subjected to retaliation. In Thompson v. North American Stainless, L.P., 562 U.S. 170 (2011), the Supreme Court held that Eric Thompson could bring a retaliation claim when he was allegedly fired in order to retaliate against his fiancĂ©e, Miriam Regalado, who had filed a sex discrimination charge against their mutual employer. Although Regalado is the one who was subjected to retaliation, Thompson could nonetheless bring a claim to recover because of the harm he had suffered resulting from the retaliation against her. 

Like Thompson, even if Fulton did not allege that she had engaged in protected activity, she may be able to bring a retaliation claim if she was harmed by the retaliation against her coworker. 

Although it may look as if this is a distinction without a difference, there are some important implications.

For one thing, when an employer retaliates against an employee by taking an action against a third party, then both the retaliation victim and the third party can bring retaliation claims. Thus, Brenda, Regalado, and Fulton's coworker all could bring retaliation claims.

In addition, to establish retaliation, a claimant must show that the employer took a materially adverse action. This means that the action would have been reasonably likely to have deterred protected activity by the person who was subjected to the retaliation. For example, if an employer retaliates against someone by firing his spouse, that is more likely to be materially adverse than if an employer retaliates against someone by taking a minor action against a mere acquaintance. Moreover, if an employer takes an action directly against an employee who complained about discrimination, that action is more likely to be materially adverse than if the employer retaliates against the employee by taking the same action against a third party. Thus, if an employer retaliates against an employee by denying her an assignment, that action might be materially adverse even if it would not be materially adverse if the employer had retaliated against the employee by denying the same assignment to the employee's friend. 

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.