Saturday, March 14, 2020

Why the Women's National Team Soccer Players Should Lose Their Equal Pay Act Suit

The U.S. Soccer Federation suffered a backlash after arguing in a legal filing that the Women's National Team should not prevail on their claim under the Equal Pay Act because female players have less "skill" and less "responsibility" than their male counterparts. Whether the skill and responsibility required for female players are equal to those required for their male counterparts is crucial because an EPA violation can only arise if an employee is paid less than someone of the opposite sex in a job that requires "equal skill, effort, and responsibility." Regardless of the merits of USSF's arguments that female and male players do not perform equal work, however, I believe there is a fundamental flaw in the WNT's case that must doom their suit.

In addition to comparing themselves to male players performing equal work, the WNT also must establish that they perform their work in the same "establishment" as the male players. If the WNT cannot show that the work is performed in the same establishment, then they must automatically lose their EPA claim. As USSF has pointed out, the term "establishment" generally refers to a particular physical place of business. Two or more physical places of business can constitute the same "establishment" under "unusual circumstances," such as where a central administrative unit hires all employees, sets wages, and assigns the locations of employment; employees frequently interchange work locations; and daily duties are virtually identical and performed under similar working conditions. 

The WNT tries to fit its case within the exception to the same-physical-place rule:
Here, USSF is a "single establishment" because it is undisputed that it has centralized control over WNT and MNT job descriptions, budgeting, planning, scheduling, event marketing, and decisions relating to licensing and broadcasting. With few exceptions (such as coaches and press officers), the majority of USSF employees perform work for both the WNT and the MNT. USSF's central administration also makes decisions about game venues, hotels, travel, meals and other terms of employment for both teams as part of the same process. And, as described in more detail below, the MNT and WNT are both promoted by Soccer United Marketing ("SUM"), the for-profit marketing arm of Major League Soccer, in a manner such that a breakdown of broadcast and sponsorship revenues between the two teams "can’t be done."
In my view, the primary flaw in the WNT's argument is that they focus on USSF generally rather than on the WNT and MNT specifically. The WNT can only prevail if female soccer players are performing their work in the same establishment as male soccer players. And it is clear that they are not. Despite USSF's centralized control over both the WNT and MNT, they are completely segregated. Male players can never switch to the WNT, and female players can never switch to the MNT. And, of course, male players only play against other male players, and female players only play against other female players. Even if most USSF employees perform work for both the WNT and MNT, that says nothing about the work performed by the members of the WNT and MNT themselves.

The WNT has largely litigated their equal pay suit in the media, and the perceived unfairness of paying female soccer players less than male soccer players has made it easy for the WNT to garner public sympathy, regardless of the strengths of their legal arguments. To be sure, sexist attitudes and misogyny may play a role in the lower wages of female athletes. But the scope of the EPA is limited, and given the complete segregation between female and male soccer players, the NWT's EPA claim must fail.

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 29, 2020

Rizo v. Yovino on Remand: Pure Nonsense

On February 27, 2020, on remand from the Supreme Court, the Ninth Circuit issued its long-awaited new en banc decision in Rizo v. Yovino, No. 16-15372, holding that an employer may not rely on salary history under the Equal Pay Act to justify a salary differential between workers of the opposite sex performing equal work.

The underlying principle makes sense in theory -- women's wages have been depressed historically, so reliance on salary history perpetuates sex-based pay discrimination. By adopting a per se rule that salary history can never be used as a defense under the EPA, however, the Ninth Circuit has clearly gone too far. A female applicant, for example, could be currently earning more than a male applicant with similar qualifications, so relying on pay history in such a case presumably would not be sex discrimination yet still would not qualify as a factor other than sex under the Ninth Circuit's reasoning.

The elephant in the room has always been salary negotiations, and this is where the Ninth Circuit has made its most egregious error. If a job applicant voluntarily reveals his or her salary history to bargain for higher starting pay, should it be legal for the employer to take that information into account? How can employers compete for the best talent if they cannot entice applicants to leave their current employers by offering to beat, or at least match, what applicants are currently earning?

In the Ninth Circuit's previous en banc decision, which was vacated by the Supreme Court, the Ninth Circuit side-stepped this issue:
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. 
In the Ninth Circuit's new decision, rather than leave this issue open, it has tackled it head on:
Our holding prevents employers from relying on prior pay to defeat EPA claims, but the EPA does not prevent employers from considering prior pay for other purposes. For example, it is not unusual for employers and prospective employees to discuss prior pay in the course of negotiating job offers, and the EPA does not prohibit this practice. Certainly, our opinion does not prohibit this practice. But whatever factors an employer considers, if called upon to defend against a prima facie showing of sex-based wage discrimination, the employer must demonstrate that any wage differential was in fact justified by job-related factors other than sex. Prior pay, alone or in combination with other factors, cannot serve as a defense. 
. . . The statute places no limit on the factors an employer may consider in setting employees’ wages, but it places on employers the burden of demonstrating that sex played no role in causing wage differentials.
Yes, that's right, the Ninth Circuit has taken the position that it doesn't violate the EPA for an employer to take sex into account when setting pay. It merely prohibits employers from relying on sex to justify pay differentials.

First of all, this conclusion is flatly contrary to the EPA, which prohibits paying opposite-sex workers in the same job unequal wages unless the differential is based on a factor other than sex. If salary history is never a non-sex factor, as the Ninth Circuit has held, then it is an EPA violation for an employer to rely on it when negotiating a prospective employee's starting salary.

Second of all, it makes little sense to say that it is lawful for an employer to rely on prior pay (or any other sex-based factor) in setting pay but then say that the employer may not rely on that factor if it is later sued by someone who says he or she is paid less than someone of the opposite sex in the same job. Despite proclaiming its intention to prevent the perpetuation of sex-based pay discrimination, the Ninth Circuit has concluded that sex-based pay discrimination is not itself a violation of the EPA, only that an employer will not be able to defend itself if an employee can establish a prima facie case.

If the Ninth Circuit really thinks that prior salary is always tied to sex, then it must acknowledge the implications -- an employer cannot rely on salary history even if it is raised voluntarily by an applicant in the context of salary negotiations. The Ninth Circuit cannot have it both ways.

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, October 10, 2019

Oral Arguments in the Supreme Court LGBT Cases: Saturday Night Live Pat, Social Upheaval, and Potential Middle Ground (Updated 10/22/19)

The oral arguments in Bostock v. Clayton County and R.G & G.R. Harris Funeral Homes v. EEOC gave both sides reason for hope, but as with most arguments, the outcome is uncertain. Typically, the issue is framed as whether the employers win or LGBT advocates win. A third option in which the Supreme Court adopts a middle ground position is also a possibility, however. As discussed below, the Court could conclude that firing or refusing to hire someone for being gay, lesbian, or transgender constitutes unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964, but that denying bathroom access based on gender identity is lawful. 

In order to prevail, LGBT advocates must persuade at least one of the conservative Justices that firing someone based on LGBT status violates Title VII. Much of the media coverage of the oral arguments focused on Justice Neil Gorsuch's support of the textualist arguments advanced by LGBT advocates. A close reading of the transcript in Bostock, however, suggests that Gorsuch may have merely concluded that discrimination based on biological sex is unlawful even if the same action was also motivated by sexual orientation discrimination. In other words, sex discrimination and sexual orientation discrimination are distinct, and a decision motivated by sexual orientation discrimination is unlawful only if it is also motivated by sex discrimination. This 
statutory interpretation was reinforced by Pamela Karlan, who argued on behalf of the LGBT employees in Bostock. 

An exchange between Gorsuch and Jeffrey Harris, who argued against sexual orientation coverage, focused on a hypothetical situation in which a gay man could establish sex discrimination if he was treated less favorably than a heterosexual woman. Under these circumstances, Gorsuch concluded that even if sexual orientation discrimination was one of the reasons for treating the man worse, he was also treated worse because of his sex in violation of Title VII. This example tells us nothing about whether a gay man treated worse than a heterosexual man could allege sex discrimination.

Although it is unclear whether Gorsuch would conclude that discrimination based solely on sexual orientation is covered, the 
exchange between Karlan and Justice Samuel Alito during her rebuttal argument clearly supports the conclusion that it is not. Alito asked whether it would violate Title VII if an employer did not know an applicant's sex and rejected that individual based solely on the knowledge that the applicant is homosexual. Karlan thought that such a case would be rare and equated it with the androgynous character Pat from the "Saturday Day Night Live" TV series. Karlan agreed that under such circumstances, the applicant would not have a sex discrimination claim: 
If there was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex. But in the case where the person knows the sex of the person that they are firing or refusing to hire, and knows the sex of the people to whom that person is attracted, that is sex discrimination, pure and simple.
Despite Karlan's characterization of this kind of situation as an outlier, it is the very one that had already been offered by Harris in arguing that sexual orientation discrimination is not sex discrimination: 
If you get a resume that -- that has a name that could be male or female, and there's something on there suggesting that the person is gay and they're not hired for that reason, that would be sexual orientation discrimination that has absolutely nothing whatsoever to do with sex discrimination.
Following Karlan's reasoning, it also would not be unlawful to adopt a blanket policy against hiring any gay men or lesbians. An employer might, for instance, implement an online application procedure that first asked someone's sexual orientation and then automatically rejected anyone who responded that he or she is homosexual. Under Karlan's analysis, this would not violate Title VII because applicants would be rejected without any employer knowledge of their sex.

And if there was any room for doubt, Karlan ended her rebuttal argument by explaining that discrimination against gay men is fundamentally different from discrimination against lesbians and that gay men are harassed in a different way than lesbians are harassed. Thus, discrimination against a gay man or lesbian is a violation of Title VII to the extent he or she is treated differently not only based on sexual orientation but also sex. If based solely on sexual orientation, as would necessarily be the case in the absence of any information about a victim's sex, there would be no basis for a Title VII claim.

In my view, Karlan made a significant blunder. In her initial argument, she explained that a policy requiring both men and women to comply with sex stereotypes would unlawfully discriminate based on sex, so I would think it should follow that a blanket policy of not hiring gay men or lesbians would be unlawful even if an employer did not know someone's sex before rejecting them. During an oral argument, advocates have little time to respond and must think quickly, so slip-ups are inevitable. Karlan's exchange with Alito, however, was lengthy and demonstrated her confusion about the very legal theories she was espousing. Any contention that LGBT advocates' arguments are a slam dunk was refuted by this exchange.

Despite the confusion and missteps during oral argument, Justice Gorsuch may very well conclude that sexual orientation discrimination by itself is necessarily sex discrimination. But he appears unlikely to do so if he believes it would lead to "social upheaval."  Much as LGBT advocates tried to avoid the issue, Justices repeatedly pressed them about how to square a pro-LGBT decision with sex-specific dress codes and facilities. In response to a question by Justice Alito, David Cole, who represented Aimee Stephens, admitted that if Stephens had been fired for using the women's restroom instead of merely for being transgender, he believed it would have violated Title VII. Thus, even if transgender bathroom access is not specifically at issue in this case, a ruling for Stephens would also require, in Cole's view, that transgender individuals be permitted to use single-sex facilities consistent with their gender identity. Cole tried to downplay the impact, noting that transgender individuals are already using single-sex facilities consistent with their gender identities, but Gorsuch did not seem satisfied. Even Justice Sonia Sotomayor, who was generally supportive of Cole's and Karlan's arguments, was clearly concerned that some women would reasonably feel "intruded upon" if required to share facilities with a transgender woman who still had "male characteristics." 

If LGBT advocates are to prevail in this case, the answer may lie in the analysis of the bathroom issue advanced by Chief Justice John Roberts. In an exchange with Cole, Roberts said he understood the argument as to why discrimination based on transgender status constitutes sex discrimination. He wondered, however, whether the same applies for sex-specific policies. If a transgender woman is denied access to the women's room, is the discrimination still based on the individual's biological sex, which everyone seemed to acknowledge is male? Cole responded that a sex-specific bathroom policy is obviously sex-based, so the only question is whether the person challenging the policy is harmed by it. He explained that since a transgender woman would be harmed by having to use the men's room, she would have a valid sex discrimination claim.

Here, I think Roberts hit the nail on the head. If a transgender woman alleges discrimination in being denied access to the women's bathroom, she has not challenged the employer's policy of segregating bathrooms based on whether someone is male or female but the policy of determining access based on biological sex rather than gender identity. Consider, for instance, that if an African American individual challenged race-segregated bathrooms, he would not be seeking access to the whites-only bathroom, but an end to segregated facilities. A transgender plaintiff therefore does not challenge the policy of segregating facilities but the policy of determining which segregated facility someone uses. Such a policy might give rise to a claim of gender identity discrimination because it favors biological sex over gender identity, but it would not give rise to a claim of discrimination based on a particular individual's biological sex (i.e., sex assigned at birth), which is all Title VII covers.

Even if Cole is correct that denying bathroom access based on gender identity constitutes discrimination based on an employee's biological sex, there's the separate question of whether it still might be lawful. In an exchange with John Bursch, who represented R.G. & G.R. Harris Funeral Homes, Justice Sotomayor rejected the "parade of horribles" contention that adopting Cole's arguments would eliminate all distinctions between men and women. To the contrary, as Sotomayor pointed out, a transgender woman is still a biological man, so if it's permissible to require that a position be filled by a biological woman, then the position could lawfully be denied to a cisgender man or a transgender woman. Under Title VII, it is lawful to exclude a man from a position if being a woman is a bona fide occupational qualification for the position. This would be the case, for instance, if an employer were hiring someone to work in a women's locker room while it is occupied. If it would be lawful to refuse to hire a transgender woman to work in a women's locker room, then it should follow that she could also be denied access to the women's locker room to use the toilet or change her clothes.

Although Bostock and R.G. & G.R. Harris Funeral Homes involve the interpretation of a statute enacted over half a century ago, the public will surely view these decisions through a political lens. If the Court rules for the employers, that will be widely perceived as the product of a conservative Court antagonistic to LGBT rights. On the other hand, if the Court rules for the LGBT employees and sticks with the issues before it without addressing the bathroom issue, as LGBT advocates have asked it to do, the Court will be faulted for having raised more questions than it answered and paved the way for "social upheaval." These objections can largely be avoided if the Court ultimately adopts a compromise approach. As suggested by Chief Justice Roberts, it's possible that firing someone based on LGBT status would violate Title VII even if designating bathroom access based on biological sex would not violate Title VII. If a majority of the Court agree, LGBT advocates will win on the discharge issue, but have to wait on Congress before achieving full equality.

Update (10/22/19) - After I published this post, I ran across a blog post by Paisley Currah and a Slate commentary by Alexander Chen that are both critical of advocates' decision to frame Aimee Stephens as biologically male. I thought these worth mentioning because they raise the same points I raised above about the limitations of merely arguing that Title VII prohibits discrimination based on biological sex. Currah and Chen both noted that Chief Justice Roberts immediately recognized that Cole's arguments meant that excluding Stephens from using the women's bathroom would not be based on "sex" as defined by Cole. Oddly, although Chen faulted Cole for framing Stephens as an insufficiently masculine man rather than an insufficiently feminine woman, he lamented the Justices' failure to "understand transgender people" and predicted that their "ignorance could lead to a legal catastrophe." Clearly, any catastrophe would be the fault of Stephens's own counsel. 

Less clear is why Stephens's counsel chose not to argue that "sex" under Title VII encompasses anything more than biological sex. One possibility is that they did not recognize that the limited argument did not require employers to provide transgender bathroom access. Considering that Roberts and Sotomayor clearly saw the implications of treating Stephens as male for Title VII purposes, I'd think that the same would not have escaped LGBT advocates. Still, Cole seemed not to understand Roberts's question about bathroom access, which Roberts had to repeat several times. Moreover, the EEOC and lower courts (here and here) have mistakenly assumed that if it's unlawful to fire a transgender woman for being transgender, it must also be unlawful to bar her from using the women's bathroom.

Another possibility is that advocates believed that they could limit the focus of the case to the termination issue and that the Justices would be willing to leave the bathroom issue for another day. The more limited argument relies on the well-recognized definition of sex and is easily supported by statutory construction principles. As I've discussed previously, I don't think Title VII can be interpreted to require transgender bathroom access unless "sex" is interpreted as meaning not merely biological sex but also gender identity. This clearly would have been an uphill battle, but it might have been presented as a secondary argument that would convince the Justices that they don't need to reach the bathroom issue. They could hold that firing Stephens for being transgender unlawfully discriminated against her based on biological sex but then put off deciding whether "sex" also includes gender identity. If Title VII only prohibits biological sex, however, there would be no reason not to address the obvious implications, including bathroom access and Title VII's BFOQ exception.

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, September 23, 2019

Bi Visibility Day and the Bisexual Harasser

In observation of Bi Visibility Day, here's what I consider the best discussion of my favorite legal quandary -- the bisexual harasser:
Harassment is reprehensible, but Title VII was passed to outlaw discriminatory behavior and not simply behavior of which we strongly disapprove. The artificiality of the approach we have taken appears from the decisions in this circuit. It is "discrimination" if a man makes unwanted sexual overtures to a woman, a woman to a man, a man to another man, or a woman to another woman. But this court has twice stated that Title VII does not prohibit sexual harassment by a "bisexual superior [because] the insistence upon sexual favors would . . . apply to male and female employees alike." Thus, this court holds that only the differentiating libido runs afoul of Title VII, and bisexual harassment, however blatant and however offensive and disturbing, is legally permissible. Had Congress been aiming at sexual harassment, it seems unlikely that a woman would be protected from unwelcome heterosexual or lesbian advances but left unprotected when a bisexual attacks. That bizarre result suggests that Congress was not thinking of individual harassment at all but of discrimination in conditions of employment because of gender. If it is proper to classify harassment as discrimination for Title VII purposes, that decision at least demands adjustments in subsidiary doctrines. 
This excerpt is from a 1985 dissent by three conservative judicial superstars: Antonin Scalia, Robert Bork, and Kenneth Starr. Since then, the Supreme Court has recognized that sexual harassment is covered under federal EEO law, but its reasoning rests on the presumption that a sexual harasser targets individuals of a particular sex. In Oncale v. Sundowner Offshore Services, the Court explained that it is easy to infer that male-female sexual harassment is sex-based because it "is reasonable to assume those proposals would not have been made to someone of the same sex." Thus, while largely swept under the rug, the issue of the bisexual harasser is not dead.

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, September 22, 2019

Gay Wedding Cakes and Invitations: Balancing LGBT Rights and Free Expression

In Brush & Nib v. City of Phoenix, the Supreme Court of Arizona held on September 16, 2019, that a civil rights ordinance prohibiting sexual orientation discrimination could not be used to force Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, to create custom-made wedding invitations celebrating a same-sex wedding in violation of their religious beliefs. The Human Rights Campaign attacked the decision as "alarming" and as providing a "license to discriminate against Arizona's LGBTQ community." Likewise, in a Slate commentary, Mark Joseph Stearn characterized the decision as "handing same-sex couples a resounding loss in their quest for equality." Although the decision is hardly perfect, overblown responses like these exemplify a narrow-minded approach to LGBT rights that fails to give appropriate weight to other equally important interests valued by both LGBT and non-LGBT individuals.

To be sure, the court essentially ruled that Duka and Koski were free to engage in sexual orientation discrimination in some circumstances, but the court merely applied settled constitutional law principles related to compelled speech. In 1943, at the peak of American nationalism, the U.S. Supreme Court held it unconstitutional to require a student to salute the American flag in contravention of her beliefs: 
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
Four decades later, the Supreme Court held that the First Amendment protected the right of George and Maxine Maynard to cover up the motto "Live Free or Die" on the New Hampshire license plate, which they found morally objectionable. The Brush & Nib decision is merely a logical outgrowth of the same constitutional limitation on the authority of the state to compel a citizen to voice support for a viewpoint with which she disagrees.

Understandably, LGBT advocates are wont to advance legal arguments against LGBT discrimination. Unfortunately, however, this has all too often been at the expense of sound constitutional law principles regarding free speech. In 1995, the Supreme Court unanimously upheld the right of organizers of a St. Patrick's Day parade to prohibit marchers representing an LGBT contingent from displaying the contingent's banner during the march. Forcing the march organizers to allow the LGBT contingent to display the banner pursuant to a Massachusetts anti-discrimination statute violated the organizers' right to control what they chose to express through the march. In 2006, LGBT advocates found it convenient to take the side of free speech in arguing that law schools could prohibit on-campus recruitment by branches of the military on the grounds that the military discriminates against LGBT servicemembers. Unanimously rejecting that claim, the Court ruled that the speech that law schools engaged in, such as in sending emails about military recruiters, was incidental to the conduct necessary for schools to comply with the Solomon Act, which required schools receiving federal financial assistance to allow military recruiters the same access provided to other recruiters. In Brush & Nib, LGBT advocates once again manipulated freedom-of-speech principles in service of the outcome they wanted.

I don't mean to suggest that there are no situations in which the government's interest in preventing discrimination outweighs an individual's interest in personal expression. As LGBT advocates would have it, however, someone selling a service must not be allowed to discriminate against LGBT individuals, regardless of the nature of the service. On the other hand, should we interpret the First Amendment to protect an individual's right to refuse to provide a service as long as it arguably involves any degree of self-expression? The custom-made wedding invitations at issue in Brush & Nib involved both written speech and the widely recognized art form of calligraphy. Therefore, they were clearly entitled to constitutional protection. If not, then why couldn't a composer be required to write music for a film whose message she finds abhorrent or a sculptor be required to sculpt the image of someone she detests?

More difficult than cases involving custom-made invitations are those involving custom-made wedding cakes, which may not include writing and, unlike calligraphy, are not a widely recognized medium of self-expression. True, cakemakers may view their creations as artworks in the same way that a painter or poet looks at his own work. But there have to be some limits. If cakemaking is insulated from claims of discrimination, what's to stop the florist or caterer who sincerely views his work as expressive from claiming an exemption from anti-discrimination laws?

One potential solution is presented in an amicus brief filed by the Unity Fund and Law Professors Dale Carpenter and Eugene Volokh in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The amici argue that a medium is entitled to First Amendment protection only if it has been historically protected or it is inherently expressive:
Deciding whether a particular medium is generally expressive requires a degree of judgment and linedrawing; but tradition, history, and common experience usually offer a sound basis for drawing those lines. Paintings, for instance, have long conveyed messages, whether about religion, politics, the character of the painting’s subject, or the beauty of the scene that the painting depicts. Having courts decide case by case whether a particular painting conveys enough of a message would require aesthetic judgments that courts are ill-equipped to make.
But when the medium as a whole mainly consists of items that do not convey a message (except perhaps insofar as words may be written on them), it is not protected by the First Amendment—even when the items may be designed with aesthetics in mind and even when the creator subjectively intends to "express" something by the creation. Landscaping, for instance, can be beautiful and artistic, and "expressive" of the designer’s judgment. But laws requiring people to keep their lawns cut do not pose First Amendment problems. 
The U.S. Supreme Court managed to avoid having to make these hard choices in the Masterpiece Cakeshop case, but it won't be able to avoid them for much longer. If LGBT advocates are to prevail and avoid repeating the disastrous defeats of the gay parade and Solomon Act cases, they would do well to recognize that broad protections of free speech benefit all of us.

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, September 13, 2019

What does the adverse action standard have to do with whether federal law prohibits LGBT discrimination?

In May 2019, the Department of Justice filed a little-noticed brief opposing the grant of certiorari in Forgus v. Shanahan and arguing that Title VII of the Civil Rights Act of 1964 covers any discriminatory change to a term, condition, or privilege of employment, even if it does not result in a significant detrimental effect. From an administration that has typically been hostile to civil rights, that position may have seemed out of character. All the more so given that it departed from the government's former position and given that most courts require a showing of material adversity. So what gives?

The answer may lie in DOJ's argument that Title VII does not prohibit sexual orientation or gender identity discrimination. One of the pillars of that argument is that interpreting Title VII to cover LGBT discrimination would mean that some widespread and common employment practices are unlawful. In its brief in R.G. & G.H. Harris Funeral Homes, DOJ rejects the Sixth Circuit's conclusion that discrimination based on transgender status "'necessarily entails discrimination on the basis of sex' because one cannot treat a transgender person differently 'without considering that employee's biological sex.'" In DOJ's view, if Title VII requires employers' actions to be sex-blind, then sex-based dress codes and single-sex bathrooms are both unlawful. Judge James Ho advanced the same argument in his concurrence in Wittmer v. Phillips 66 Co., even going so far as to claim that the National Center for Lesbian Rights had conceded during oral argument that coverage of LGBT discrimination would mean the abolition of separate bathrooms and changing rooms for men and women. As DOJ and Judge Ho see it, treating men and women differently is therefore not sex discrimination if they are not similarly situated, such as with respect to sexual organs.

Aimee Stephens, who contends that she was fired by R.G. & G.R. Harris Funeral Homes for being transgender, initially responded to DOJ's warnings about a parade of horribles by not bothering to respond. Thus, in her initial brief, she argued that she was fired for being transgender, not solely for failing to comply with the employer's dress code for male employees, so the Supreme Court need not address the legality of sex-specific policies and their application to transgender employees. Technically, Stephens may have been right, but would the Supreme Court really be willing to rule that Title VII prohibits gender identity discrimination yet leave employers, as well as schools, which are covered by Title IX of the Education Amendments Act of 1972, wondering whether their bathroom, locker room, and dress code policies are lawful? And if the Supreme Court rules that Stephens was unlawfully fired for being transgender, but R.G. & G.R. Harris Funeral Homes is still free to require her to come to work wearing a man's suit and tie, would that be a real victory?

Thankfully, Stephens apparently saw the light, and in her reply brief, she tackles DOJ's contentions about sex-specific policies. She cites the widely accepted view that Title VII does not prohibit all sex-based terms or conditions of employment, only those that have a sufficiently adverse effect. Since most sex-based dress codes and sex-segregated facilities do not constitute materially adverse terms or conditions of employment, they do not violate Title VII.

The final piece of the puzzle is how sex-based policies should be applied to transgender workers. As already noted, it would be a hollow victory if the Court were to rule for Stephens but leave open the possibility that the employer could refuse to hire her back if she was unwilling to dress like a man. To address this issue, Stephens argues that the question of material adversity needs to be assessed from the standpoint of the individual alleging discrimination. As further explained in an amicus brief filed by five law professors, although most dress codes may not impose more than an innocuous burden on most employees, applying some of the same requirements to a transgender employee, "particularly one suffering from gender dysphoria, imposes a severe burden, and therefore discriminates against such an employee."

When the Supreme Court hears oral arguments on the LGBT cases in early October, one Justice to watch closely will be Brett Kavanaugh. While serving on the D.C. Circuit in 2017, then-Judge Kavanaugh wrote a concurrence in Ortiz-Diaz v. HUD contending that the circuit should reconsider precedent holding that lateral transfers are generally not actionable. In Kavanaugh's view, "transferring an employee because of the employee's race . . . plainly constitutes discrimination with respect to 'compensation, terms, conditions, or privileges of employment' in violation of Title VII." Although this interpretation could broaden Title VII coverage in general, it could leave little, if any room, for the Supreme Court to also interpret Title VII to cover LGBT 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.

Wednesday, September 4, 2019

Is it lawful for a religious organization to discriminate against LGBT employees?

An amicus brief filed by First Liberty Institute in the LGBT Supreme Court cases makes the same argument I've made previously, that a religious organization that discriminates against an LGBT individual based on religious objections to homosexuality or transgenderism falls under the religious organization exemption of Title VII of the Civil Rights Act of 1964.

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.