Friday, April 19, 2019

Sex Discrimination & LGBT Discrimination: When are they the same? (Updated 4/22/19)

On Wednesday, the Eighth Circuit heard oral arguments in Horton v. Midwest Geriatric Management, yet another case addressing whether sexual orientation discrimination is a form of sex discrimination prohibited by current EEO law. With the Supreme Court's having also decided take up this issue, I thought I'd make a few observations.
  • "Sex" is whether you're male or female: The standard legal argument advanced by advocates and the EEOC does not contend that a person's sexual orientation is his "sex." Rather, treating someone differently based on his sexual orientation necessarily entails treating him differently based on his sex (male). To illustrate: if you fire a man who is sexually attracted to men, but not a woman who is sexually attracted to men, then you are treating the former worse for being male.
  • Not all forms of sexual orientation discrimination are sex discrimination: The standard legal argument only gets you so far. Sexual orientation discrimination is not sex discrimination at the macro level. For example, if a policy disproportionately excludes women compared with men, that could constitute unlawful sex discrimination even if the employer did not intend to discriminate. However, if a policy disproportionately excludes gay men and lesbians compared with heterosexual men and women, that would not constitute sex discrimination because members of one sex are not being treated better than members of the other sex.
  • No one can explain why single-sex bathrooms aren't unlawful: The standard argument is difficult to reconcile with sex-specific dress codes and facilities.  Since no one seems up to questioning these practices, the challenge is to explain why it is unlawful not to hire a gay man for being gay, but it is still lawful to allow women, but not men, to wear make-up. Until this issue was raised by the Trump administration, it was essentially ignored. One response is that sex-specific facilities and dress codes do not really treat men worse than women or vice versa, even though they treat the sexes differently.  In other words, separate but equal is ok. This is the approach of the Second Circuit in Zarda. In the context of sexual orientation discrimination, that's well and good, but we see the problem when we consider gender identity. If it's ok to prohibit men but not women from wearing make-up, then why is it not ok to prohibit a transgender woman from wearing make-up? In Harris Funeral Homes, the Sixth Circuit recognized the problem with the separate-but-equal approach and refused to adopt it, yet the court said it was ducking the question of sex-specific dress codes. That just can be. If it's unlawful sex discrimination to prohibit a transgender woman from wearing make-up, then it must follow that it is unlawful to prohibit a non-transgender man from wearing make-up. No one has come up with a satisfactory resolution, but so far, courts have played along.
  • Transgender bathroom access is out of reach: If it's lawful to require men and women to use separate bathrooms, is it nonetheless unlawful to require a transgender woman to use the men's room, at least while she still has male genitalia? In Whitaker, the Seventh Circuit thought so, but only because it assumed that gender identity equals sex. As discussed already, the standard argument that sexual orientation or gender identity discrimination is covered as sex discrimination does not interpret the term "sex" to mean anything other than male or female. If a transgender woman is denied access to the women's bathroom, however, she is treated differently from a non-transgender woman, so the discrimination is not based on her status as female. If this is a form of "sex" discrimination, that must be because an individual's gender identity is her sex. 
Ultimately, the Supreme Court will have to decide to what extent sexual orientation or gender identity discrimination constitutes "sex" discrimination. To stand any chance of prevailing, LGBT advocates will have to devise a more coherent legal framework. 

Update: On Monday, April 22, 2019, the Supreme Court agreed to decide whether Title VII prohibits sexual orientation discrimination or gender identity discrimination.  The gender identity case is EEOC v. Harris Funeral Homes. My recent post about that decision is here. The sexual orientation cases are Bostock v. Clayton County Board of Commissioners and Zarda v. Altitude Express.  My most recent post about Zarda is here. There's a good chance we won't see decisions until the end of next June, which will be perfect timing for the decisions to be a major issue in the 2020 presidential campaign.

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, March 31, 2019

Equal Pay Day 2019: A Contrary View

Dena & Darin are paid the same wages
in cat food for keeping the bed warm.
April 2, 2019, marks "Equal Pay Day," intended according to the National Committee on Pay Equity to symbolize "how far into the year women must work to earn what men earned in the previous year." Unfortunately, this milestone is grounded in a fundamental misperception or perhaps even deliberate misrepresentation -- that it accurately reflects the sex-based disparity between men's and women's pay. As explained by Claudia Goldin, a leading expert on the pay gap, most of the difference is attributable to nondiscriminatory factors, such as the choice of many women to enter professions that pay less but provide more temporal flexibility.

Last week, the House of Representatives passed the Paycheck Fairness Act, which would amend the Equal Pay Act. The bill stands almost no chance of passing the Senate and becoming law in the foreseeable future. The EPA applies to workers of the opposite sex performing the same job in the same establishment. An employer cannot pay such workers different wages unless it can show that the wage disparity is based on a factor other than sex. The Paycheck Fairness Act would, among other things, limit the circumstances under which an employer could justify a wage disparity between opposite-sex workers. An employer could no longer defend itself merely by showing that it did not discriminate against a worker because of sex and would have to show it was necessary to pay one worker more than another.

The pay gap between men and women has been highlighted recently by the lawsuit of women soccer players against the U.S. Soccer Federation. In my view, the EPA likely does not apply to such a claim of sex-based pay discrimination since the law is limited to employees who work in the same "establishment." Generally, an establishment refers to a distinct physical place of business. It can sometimes be applied more broadly. But in this case, that doesn't seem appropriate. Male and female soccer players don't compete alongside or against one another, and instead compete on separate single-sex teams. Comparing male and female soccer players is like comparing minor league and major league baseball players. 

Women soccer players have also alleged sex discrimination under Title VII of the Civil Rights Act of 1964, which is not limited to employees within the same establishment. Unlike the EPA, however, a Title VII claim generally requires evidence of discriminatory intent, and that can be hard to muster. Still, the women soccer players' pay discrimination claim may largely be tried in the court of public opinion, so appearances of fairness are what may matter most, not whether women soccer players are actually victims of sex discrimination.

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

Sunday, March 24, 2019

Lewis v. City of Union City: Raising the Bar for Discrimination Plaintiffs

In Lewis v. City of Union City, No. 15-11362 (Mar. 21, 2019) (en banc), the Eleventh Circuit has adopted a new legal standard that will likely make it much more difficult for plaintiffs to prevail in intentional discrimination cases under Title VII of the Civil Rights Act of 1964 and other EEO laws. In the view of the Eleventh Circuit, absent direct evidence, a plaintiff establishes a prima facie case of discrimination only by presenting evidence that the employer treated her worse than others outside her protected class who are similar to her in all material respects. By making the plaintiff identify from the get-go someone who is similar to her in all material respects, the plaintiff will effectively have to eliminate any good reason for treating her less favorably. In other words, she'll have to prove a negative.

The Eleventh Circuit's decision is an interpretation of the Supreme Court's 1973 decision in McDonnell Douglas v. Green, the most important decision in all of EEO law. In 1999, the Eleventh Circuit noted in Wright v. Southland Corp. that the McDonnell Douglas decision was intended to make it somewhat easier for a plaintiff alleging discrimination to prevail without having to rely solely on the "traditional" framework for establishing causation. Thus, in McDonnell Douglas, the Supreme Court held that a plaintiff can establish a prima facie case, or presumption, of discrimination. In Lewis, the Eleventh Circuit has eliminated any advantage that a plaintiff might have in relying on McDonnell Douglas, by making it much harder for a plaintiff to establish a presumption of discrimination.

Given how out of step the Lewis decision is, it may not be long for this world. Still, the Eleventh Circuit may not be alone in perceiving McDonnell Douglas as an unjustified boon to plaintiffs. Justice Gorsuch has argued that the framework it established should be abandoned. So even if the Eleventh Circuit got it wrong, some Justices may at least think that it was on the right track.

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.