Friday, April 20, 2018

Are dreadlocks really dreadful, or is that just a racial stereotype?

Vox reports that Chastity Jones, an African American woman who was rejected for a customer service position by Catastrophe Management because she refused to cut off her dreadlocks, has asked the Supreme Court to take up the issue of whether an employer's prohibition on dreadlocks constitutes unlawful race discrimination under Title VII of the Civil Rights Act of 1964. Jones's principal argument is that a prohibition against dreadlocks is based on stereotypes about black hairstyles and therefore a form of unlawful race discrimination. Jones relies heavily on the Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, in which the Court concluded that it is unlawful to discriminate against a woman based on sex stereotypes about how women should act or appear, such as the stereotype that women should wear makeup and should not be assertive.  

Jones's petition for certiorari incorporates the same mistake as Judge Beverly Martin's dissent from the Eleventh Circuit's denial of the petition for rehearing. Both overlook the requirement that there be some differential treatment between protected groups. 

Price Waterhouse is not the revolutionary decision that it is sometimes made out to be. The Court merely held that men can't be treated better than women based on a sex stereotype. Differential treatment between men and women is key. The Court did not hold that characteristics associated with sex stereotypes are protected in and of themselves. Discrimination against all aggressive individuals is not sex discrimination and, by extension, not a violation of Title VII. It is only when an employer treats aggressive men better than aggressive women, or vice versa, that Title VII is implicated. Thus, discrimination against a woman for being aggressive is prohibited not so much because it is a sex stereotype but in spite of its being a sex stereotype. In other words, the stereotype that a woman should not be aggressive is not an excuse for treating an aggressive woman worse than an aggressive man. Accordingly, unless there is evidence that white workers with dreadlocks are treated better than black workers with dreadlocks, Price Waterhouse doesn't provide a whole lot of support. And frankly, more consistent with Price Waterhouse would be a claim by a white individual with dreadlocks alleging she was treated worse than a black individual with dreadlocks based on the stereotype that dreadlocks are a black hair style. 

To be sure, it is possible that a court might conclude that a general prohibition against dreadlocks constitutes racial discrimination if the employer favors "white" hairstyles over "black" hairstyles, but comparisons to Price Waterhouse are unavailing and merely reflect misunderstanding of basic disparate treatment principles. The Supreme Court recognized that discrimination based on sex stereotypes can lead to a violation of Title VII even if the stereotypes do not involve immutable characteristics, but only where members of one sex are treated better than members of the other sex. Discrimination based on dreadlocks can therefore violate Title VII but only if, consistent with Price Waterhouse, there is differential treatment between racial groups. 









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.
















An Attention-grabbing Headline: "D.C. lawmaker who said Jews control the weather visits Holocaust Museum but leaves early"

A short post from the Volokh Conspiracy highlights an unintentionally-- I assume -- funny headline from the Washington Post: "D.C. lawmaker who said Jews control the weather visits Holocaust Museum but leaves early."

The highlight of the tour was apparently the exhibit on the Warsaw Ghetto, where a rabbi clarified that the walling in of Jews was less like a "gated community" than a "prison."










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, April 17, 2018

Starry v. Oshkosh Correctional Institution.: Why aren't prisoners "employees," even if they work for a prison for pay?

In Starry v. Oshkosh Correctional Institution, 17-3373 (7th Cir. Apr. 17, 2018), the Seventh Circuit rejected Michael Starry's claim that he was fired from his prison job because of his disability, reasoning that federal employment law does not apply to employment of prisoners. Similarly, the EEOC has taken the position that a prison does not have an employment relationship with its prisoners.

The issue of whether prisoners can be considered employees is at least superficially similar to whether students can be considered employees. In both cases, the individual seeking protection clearly has a non-employment relationship with the defendant, and the question is whether he or she can also have an employment relationship with the defendant that is covered by EEO law. In contrast to the case with prisoners, however, courts and the EEOC have been more willing to conclude that students can be considered employees. For example, a student who performs work for a university as part of a graduate program and who receives a stipend might be considered an employee while she performs the work. 

So why the difference?

As I see it, the reason is that a prison's penological relationship with a prisoner always comes first. Thus, even if a prisoner is performing work, a prison's decisions with respect to that prisoner's work must be driven by penological concerns first and foremost. By contrast, an educational institution's pedagogical relationship with a student may be less important -- or at least no more important -- in some contexts than its employment relationship, and in those circumstances, a student may be protected by EEO law.







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

Tuesday, April 10, 2018

Will Aileen Rizo be the next Lilly Ledbetter?

You may remember Lilly Ledbetter. She was Barack Obama's poster child for equal pay when he was running to be President way back in 2008, and the first bill he signed as President was named after her. Yesterday, just in time for Equal Pay Day, the full Ninth Circuit issued its decision in Rizo v. Yovino, holding that an employer may not rely on an applicant's pay history in setting his or her starting pay. So I nominate Aileen Rizo to be the next Lilly Ledbetter. Why? Because the Ninth Circuit's decision is probably the most significant equal pay decision in many, many years; it addresses a very hot equal pay issue; it takes sweeping positions that impose more restrictions on employers than those taken by any other court or even the EEOC. And perhaps most importantly, Rizo's case stands a really good shot at being taken up and reversed by the Supreme Court. If so, Rizo will then be the next poster child that politicians and equal pay advocates point to.

In Rizo, the Ninth Circuit adopted two broad positions that make it an excellent candidate for Supreme Court review: first, the court ruled that, under the Equal Pay Act, an employer cannot rely on a job applicant's prior salary either alone or in combination with other factors in setting an employee's starting pay; second, the court ruled that an employer can only rely on a job-related factor to justify a pay disparity under the EPA.

Prior to the Ninth Circuit's decision, courts had been divided as to whether an employer can rely on prior salary standing alone to justify a pay disparity or can only rely on prior salary in combination with other considerations, like an employee's job experience and education. The EEOC has taken the latter position. The Ninth Circuit took the extraordinary step of rejecting both of those positions in favor of one that prohibits any reliance on prior salary at all, even though this position was not advanced by anyone in this case.

In her concurrence, Judge McKeown faults the majority for making it difficult for employers to compete for the best employees by allowing applicants to negotiate for higher salaries based on what they currently make. The Ninth Circuit tried to temper the sweeping implications of its decision by leaving open the potential for future Ninth Circuit panels to uphold reliance on prior pay in salary negotiations:

Today we express a general rule and do not attempt to resolve its applications under all circumstances. We do not decide, for example, whether or under what circumstances, past salary may play a role in the course of an individualized salary negotiation. We prefer to reserve all questions relating to individualized negotiations for decision in subsequent cases. Our opinion should in no way be taken as barring or posing any obstacle to whatever resolution future panels may reach regarding questions relating to such negotiations.
The problem here is that if an employer cannot rely on an applicant's pay history in making an initial salary offer, it cannot rely on an applicant's pay history in upping its initial offer during salary negotiations. I don't see how the majority could believe otherwise. As a result, the Ninth Circuit has adopted the nonsensical position where an employer cannot offer up front to pay an applicant what he or she currently makes, but an employer probably can offer to match or beat an applicant's current salary once the applicant asks the employer to do so. And who wouldn't ask the employer to match his or her current salary? To call this a loophole would be a vast understatement. To be sure, the Ninth Circuit does not explicitly state that an employer can rely on pay history once an applicant brings it up, but it as good as does that since it proclaims that its opinion is essentially no bar whatsoever to how a future Ninth Circuit panel decides to handle the salary negotiation issue and the majority states that concurring judges' concerns "regarding our opinion's effect on the setting of pay on an individualized basis are meritless." 

According to the majority, then, the defendant was not permitted to offer to pay male applicants more than Rizo based on what they were making with their current employers, but that does not mean it was also barred from agreeing to pay them more if they asked. If that makes sense to you, you're well qualified to serve on the Ninth Circuit. (Judge Reinhardt, who wrote the majority decision, died at the end of March, so they're taking applications.)

As I've discussed in the past, I like the compromise approach in which prior pay can be used as one of  multiple factors in setting pay. I disagree, however, with pretty everyone else about what that means. Here, the defendant had set a pay range for the math consultant position Rizo applied for, $62,133 to $81,461, which it divided into ten steps. New employees were placed at the step corresponding most closely to their current salary plus 5%. Prior to being hired by the defendant, Rizo was only earning about $52,000 per year, so in offering her $62,133, the defendant was clearly relying on more than her prior salary -- it was also relying on its predetermined pay scale. Moreover, the defendant paid Rizo an additional stipend of $600 per year for having a master's degree. Thus, it is clear that, although everyone has apparently assumed otherwise, the defendant in this case does not rely solely on pay history in setting an employee's pay, and in Rizo's case, reliance on a predetermined pay structure boosted her starting pay. 


Of course, the defendant relies on pay history in determining the appropriate step at which to pay an employee, but guess what? The federal government does the same thing. For example, in North v. United States, the court upheld a salary discrepancy between the plaintiff, a female attorney hired at the GS-14 level by the Department of Education, and a man who was also hired as a GS-14 attorney. The court concluded that the pay disparity did not violate the Equal Pay Act because it was based on the male attorney's "superior" qualifications and prior salary. Although the plaintiff also had superior qualifications -- meaning that she and the male attorney were both considered "highly qualified" for the position -- her starting salary exceeded her prior salary, so her pay was set at the lowest step of the GS-14 pay grade. The male comparator's salary, by contrast was set at the highest step of the GS-14 pay grade (almost $30,000 above the lowest step), and even at that rate, he made less than in his previous job.

In addition to rejecting all reliance on prior pay, the Ninth Circuit sets itself apart by limiting EPA defenses to those that are job related. Under its catchall defense, the EPA explicitly allows an employer to rely on "any . . . factor other than sex" in setting pay. Previously, the Ninth Circuit had merely required that an employer show that it relied on an acceptable business reason, and this squared with the approach taken by the EEOC. But the full Ninth Circuit decided that position was too broad and limited employers to relying on job-related factors. Thus, for example, an employer would presumably not be able to rely on the practice of "red circling," which the EEOC has endorsed:

"Red circling" means that an employee is paid a higher than normal compensation rate for a particular reason. Such a practice does not violate the EPA if sex is not a factor and it is supported by a valid business reason. For example, an employer might transfer a long-time employee who can no longer perform his regular duties because of deteriorating health to an otherwise lower paid job, but maintain the employee's higher salary in gratitude for his long tenure of service. Similarly, an employer might assign employees in skilled jobs to less demanding work temporarily until the need for the higher skill arises again.
In adopting two extreme positions on pay history and the EPA's catchall defense, the Ninth Circuit has issued a decision that will be excellent fodder for rebuke by the Supreme Court. The likely outcome, I predict, is reversal by the Supreme Court (and fame for Aileen Rizo).


















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, April 7, 2018

Alamo Heights Independent School District v. Clark: Same-Sex Harassment, Sex-Specific Conduct, and Sexual Desire

In Alamo Heights Independent School District v. Clark, No. 16-0244 (Tex. Apr. 6, 2018), the Texas Supreme Court rejected the sex-based harassment claim of Catherine Clark, a coach in the girls athletic department. Clark alleged that she was subjected to a hostile work environment by another female coach, including sexual conduct, sex-specific conduct, and facially sex-neutral conduct. In this post, I discuss two disagreements between the majority and the dissent regarding whether Clark had presented sufficient evidence that the conduct was based on her sex. First, was the alleged sex-specific harassment sufficient to establish that Clark was harassed based on her sex? And second, did Clark present sufficient evidence that the alleged harasser was motivated by sexual desire?

There was no dispute that some of the conduct that Clark alleged she had been subjected to, such as comments about the appearance and size of Clark's breasts, would not have been directed at a man. In the majority's view, while the sex-specific nature of challenged conduct can be relevant in determining whether the alleged harasser was motivated by the claimant sex's, that conduct must be examined in context.  In particular, the majority noted that "[r]egardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases." By contrast, the dissent contended that harassment that "focuses on a woman's unique sexual features, which could 'not have occurred if she were not a woman,' constitutes harassment 'because of' her gender even if 'the motivation behind plaintiff's mistreatment was gender neutral.'"

To my mind, neither the majority nor the dissent has it exactly right. The dissent is correct that sex-specific conduct can be inherently sex-discriminatory even if the harasser is not motivated by gender bias. For example, offensive conduct that targets a woman's sexual anatomy facially discriminates against her for being a woman. But the majority is correct in distinguishing between same-sex and opposite-sex contexts. It might be reasonable to infer that a man who makes derogatory comments about a woman's breasts harbors anti-female animus but not reasonable to infer that a woman who makes the same comments harbors anti-female animus. Yes, it's possible for a woman to discriminate against another woman, but that does not change the fact that a man is more likely to discriminate against a woman than a woman is to discriminate against a woman. Thus, the dissent is mistaken in assuming that if some conduct is facially sex-based, then it necessarily follows that facially neutral conduct was also sex-based.

Here, I think the dissent is correct that sex-specific conduct can be used to establish a hostile work environment based on sex. But the majority is correct that, in a same-sex harassment case, it is generally not reasonable to assume that facially neutral conduct was motivated by sex bias merely because the alleged harasser also directed sex-specific conduct at the victim. As a result, the court probably should have examined the sex-specific conduct standing alone to determine whether a reasonable jury could have concluded that it created a hostile work environment based on sex.

The majority and the dissent agreed that evidence of sexual desire can show that harassment was sex-based, but they disagreed whether Clark had presented sufficient evidence of sexual desire. On this issue, I think both the majority and the dissent start with a mistaken premise. As I've discussed in the past, Title VII does not prohibit sexual conduct per se but conduct directed at an individual for being a man or for being a woman. What this means is that evidence of sexual desire generally will be sufficient to show that conduct was sex-based, but not always. The dissent cites Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), but the Supreme Court made it clear in that case that evidence of sexual desire only establishes that conduct was sex-based to the extent it is reasonable to infer that the conduct would not have occurred but for the victim's sex: 
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.
Thus, if a female employee directs conduct at a female coworker based on sexual attraction, it would not be reasonable to infer that the conduct was directed at the coworker for being a woman if the alleged harasser is also sexually attracted to men. And in this case, the record reflected that the alleged harasser had a boyfriend. 






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.