Sunday, August 18, 2019

Naumovski v. Norris: The McDonnell Douglas Framework and But-for Causation

Grand Canyon Centennial - Ribbon Falls
In Naumovski v. Norris, 18-2663 (Aug. 12, 2019), the Second Circuit held that a plaintiff bringing a section 1983 claim alleging unconstitutional sex discrimination is required to establish that sex was a but-for cause, not merely a motivating factor, of the the challenged action. The court explained that, as under Title VII of the Civil Rights Act of 1964, a section 1983 plaintiff can rely on the McDonnell Douglas framework to establish but-for causation. So far, so good. Where the court goes wrong is in not recognizing that establishing pretext under the McDonnell Douglas necessarily means that a plaintiff has established but-for causation.

The court explained:

To establish "pretext" under Title VII, a plaintiff need only establish "that discrimination played a role in an adverse employment decision." In other words, a Title VII plaintiff need only prove that the employer's stated non-discriminatory reason was not the exclusive reason for the adverse employment action. By contrast, to establish "pretext" under § 1983, a plaintiff must establish that the employer's stated reason would not, alone, constitute a sufficient basis for pursuing an adverse action. In other words, a § 1983 plaintiff must establish that the employer's stated non-discriminatory reason is either false or inadequate.
Under the McDonnell Douglas framework, as recognized by the Second Circuit, the focus is on whether there is sufficient evidence to show that the employer's asserted reason is a pretext for unlawful discrimination. The term "pretext" is often characterized as meaning that the employer's asserted reason is a lie, but that is not really accurate. Suppose an African American employee and a white employee get into a fight and only the African American employee is fired. The employer asserts that the African American employee was fired for getting into a fight. But what about the white employee who wasn't fired? Does that mean that the African American employee was not fired for being in a fight? Of course not, and the fact that he was not fired until he got into a fight is evidence that the employer did not lie about firing the employee for his misconduct. However, what about the white employee -- why wasn't he fired? If the employer can't explain why it didn't fire a white employee for misconduct that supposedly justified firing an African American employee, then the evidence would show not only that the African American employee was fired for being black but also that but-for his race he would not have been fired.

The Second Circuit states that pretext can be established under Title VII by evidence that race or another protected factor was not the exclusive factor, but under section 1983 the evidence must also show that the reason is false or inadequate.

This characterization misunderstands the nature of the McDonnell Douglas framework. Since the focus is on weakening the employer's asserted reason, there is no basis for inferring that discrimination also played a role unless the employer's reason has been weakened to the point that there must have been some other reason. If there must be some other reason, then that reason must have been a but-for cause. To be sure, a plaintiff can establish that race was a motivating factor without showing that it was a but-for cause. For example, an African American plaintiff who was fired after getting into a fight with a white employee might point to his supervisor's racist comments. That evidence, however, would tend to show that he was fired for being black, but it would do little, if anything, to show that he was not fired for getting into a fight. Thus, such evidence would not support a finding of "pretext."

While the court's error was highly technical, it could significantly limit plaintiffs' success in bringing discrimination claims. Most claims, even under Title VII, rely on the McDonnell Douglas framework. If a plaintiff can rely on the McDonnell Douglas framework and show that race was a motivating factor but not a but-for cause -- as the Second Circuit would have it -- the employer would have the chance to show it would have taken the same action even in the absence of discrimination. If it can do so, then the plaintiff gets almost nothing -- pretty much only attorney's fees. Juries may be tempted to split the baby, so this would not be an unlikely scenario.

I can't attribute nefarious motives to Judge Cabranes and the other judges on the Naumovski panel, but the decision is a stark illustration that causation standards matter. Unfortunately, rather than providing clarity, courts are all too often making serious mistakes that compound the confusion about these issues.












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, August 17, 2019

Menaker v. Hofstra University: Standing Up for the Rights of the Accused in the #MeToo Era

Grand Canyon Centennial
Today's post is by guest blogger Dena Katz.

The Second Circuit's decision in Menaker v. Hofstra University, No. 18‐3089‐cv (Aug. 15, 2019), is a forceful reminder that men accused of sexual harassment need to be treated fairly. For decades, men's egregious sexual conduct has been ignored. The correct response, still, is not to assume that men are sexual harassers, but to treat allegations of sexual misconduct the same way we treat allegations of other forms of serious misconduct.

As explained by the court, the plaintiff was able to establish an inference of sex discrimination based on evidence of: 1) procedural deficiencies in the university's investigation of a female student's accusation of sexual harassment by the plaintiff; and 2) pressure on the university to react more forcefully to accusations of male sexual misconduct. Evidence of the procedural deficiencies included the university's failure to interview potential witnesses identified by the plaintiff and failure to follow the process under the university's harassment policy. Evidence of sex-based pressure on the university included a "Dear Colleague" letter by the Department of Education providing guidance to educational institutions on how they should investigate claims of sexual misconduct. Significantly, even in the absence of the specific pressure on the defendant in this case, the indisputable impact of the #MeToo movement would likely be enough to establish the requisite pressure:
[W]hen combined with clear procedural irregularities in a university's response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination.
If a woman were accused of sexual harassment and fired without being given a fair shake, she wouldn't be able to establish sex discrimination as readily as a man could. That difference reflects the stereotypes of men as sexual harassers. If men and women were treated the same, then neither sex could claim discrimination.

To bolster its conclusion, the court further relied on the "cat's paw" theory in holding that the discriminatory motive of a third party can be imputed to an employer where: "(1) the employer exercises a 'high degree of control over the behavior' of the non-employee, and (2) the employer's 'own negligence' permits or facilitates that non-employee's discrimination." Here, the university controlled the complaint process under which the plaintiff was accused of sexual misconduct, and the university referenced the accusations in explaining why it was firing him. Because of the procedural irregularities, a district court could conclude that the university's response to the accusation was negligent.

In my view, the court was likely justified in relying on the cat's paw theory in this case, but its description of the standard is incorrect. Missing from the court's analysis is the requirement of notice. If an employer neither knew nor should have known that a third party, such as a student or customer, was motivated by discriminatory bias, then the third party's discriminatory bias cannot be imputed to the employer. Thus, if an employer takes an action in response to a customer complaint motivated by racial bias, the customer's bias cannot be imputed to the employer unless it knew or should have know about the customer's bias. The employer's control and negligence may also be necessary, but contrary to what the Second Circuit said, they are not enough.

Nonetheless, the court's misstep likely did not affect the outcome in this case where the court reasoned that because the plaintiff was not accused of "just any conduct [but was accused] of sexual misconduct," a rational fact finder could infer that the accusation was based, at least in part, on the plaintiff's sex.

Without question, the #MeToo movement has brought to light deep-rooted discriminatory practices and led to much-needed reforms in the way accusations of sexual harassment are treated. We just need to remember that #MeToo must not be used to justify the same kinds of sex-based stereotypes that it is intended 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.

Wednesday, August 14, 2019

New Hampshire v. Lilley: Will the Supreme Court "Free the Nipple"?

Scotusblog has highlighted the cert. petition in New Hampshire v. Lilley, in which the New Hampshire Supreme Court held that a city ordinance prohibiting women from exposing their nipples in public is constitutional. Although other courts had rejected similar claims, the New Hampshire Supreme Court reached the odd conclusion that the ordinance is not sex-based even though it only requires women to cover their nipples. In the court's view, the differential treatment is not sex-based because it reflects the common understanding that only women are perceived as nude if they uncover their breasts. This is nonsense. If the definition of nudity in the ordinance is grounded in a sex-based perception of nudity, then the ordinance is also sex-based.

Of course, whether such a sex-based distinction is permissible is a different matter, but it's much more likely to be unconstitutional if it is sex-based. The Tenth Circuit came out on the other side, so now is the time for the Supreme Court to step in.

For more on this issue, check out my earlier post on Free the Nipple v. City of Springfield.








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, August 11, 2019

Grimm v. Gloucester County School Board: Is a transgender man a masculine woman or an effeminate man?

A transgender man is only entitled to use the men's bathroom if he is a man. But what does it mean to be a man? That question has been overlooked by LGBT advocates fighting for transgender bathroom access. It was also recently overlooked by Federal District Court Judge Arenda L. Wright Allen. On August 9, 2019, Judge Allen ruled that a Virginia county school board violated Title IX of the Education Amendments of 1972 by denying Gavin Grimm, a transgender boy, access to the boys' bathroom at his school. Unfortunately, however, Judge Allen merely assumed that a transgender boy is male and that denying him access to the boys' bathroom therefore discriminated against him based on his transgender status.

In reaching this conclusion, Judge Allen cited case law going back almost 20 years holding that transgender status constitutes sex discrimination per se under federal law. The three oldest cases she cited -- Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) -- each involve a transgender woman, but in each of these cases, there is absolutely no question that the plaintiff was perceived by the court to be male, not female. Thus, discrimination against a transgender woman is sex discrimination because a feminine male is treated worse than a feminine female. If a transgender woman is male, then she is entitled to use the men's bathroom, not the women's bathroom. Likewise, if a transgender boy is female, he gets to use the girls' bathroom.

Times have changed. And LGBT advocates and courts are much more likely to perceive a transgender woman as being female than they were in the past. But what is the basis for this shift? If there is some objective basis for regarding a transgender woman as female, that needs to be explained. When the Supreme Court ultimately decides whether a transgender woman gets to use the women's bathroom, the Justices will not be satisfied with merely being told, "Because we say so."





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, August 8, 2019

Electrolux Home Products: Pretext and Labor Law Violations

A recent decision by the National Labor Relations Board in a case involving Electrolux Home Products correctly recognizes that even if an employer lied about why it fired someone, that does not necessarily mean that it fired the person because of anti-union animus in violation of the National Labor Relations Act. The dissent, by contrast, mistakenly contends that an employer violates the NLRA per se merely by lying about its reason for taking the action.

To be sure, evidence that an employer lied about why it fired an employee is some evidence that the employee was fired because of anti-union animus. But as the majority noted: "It is possible that the true reason might be a characteristic protected under another statute (such as the employee's race, gender, religion, or disability), or it could be some other factor unprotected by the Act or any other law, which would be a permissible basis for action under the at-will employment doctrine." Thus, it is not enough to merely show that an employee was not fired for the reason asserted by the employer; rather, the evidence must also show that the employee was fired for a reason prohibited by the NLRA.

In this case, there was evidence that the charging party was told to "shut up" by a manager at a meeting that the employer held seven months before the charging party's termination, to make its case against unionization. In the majority's view, this statement, while rude, was insufficient to establish a violation, even when combined with the pretext evidence. Reasonable minds might disagree with how the majority weighed this evidence, but at bottom, the majority correctly explained the limits of pretext evidence.





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, July 27, 2019

Quid Pro Quo Sexual Harassment and the Ridiculous Attack on Eugene Scalia


Theodore Roosevelt National Park
Today's post is by guest blogger Dena Katz.


The recent attack on Eugene Scalia, Trump's nominee to be Labor Secretary, belies an ignorance of the very legal concepts that his attackers purport to defend. In 1998, Scalia wrote an insightful and prescient law review article that criticized the legal doctrine of "quid pro quo sexual harassment," the brainchild of law professor Catherine MacKinnon. Far from being worthy of scorn, Scalia's article should be praised for being spot on. Only a few months after the article was published, the Supreme Court wholeheartedly agreed with Scalia's central contention -- that the doctrine of quid pro quo sexual harassment is a confusing extra-statutory creation that adds little to traditional legal analysis.

As Scalia pointed out, no one disputed in 1998 that if an employee is subjected to retaliation for rejecting a sexual proposition, the employer is strictly liable for the adverse action. Previously, employers had argued that firing an employee for rejecting a sexual advance is personal and not a form of sex discrimination. The concept of quid pro quo sexual harassment responded to those contentions, but it was redundant from the get-go because it referred to cases that were clearly unlawful under existing legal principles. Refusing to hire a female applicant because you don't want a woman in the position is not legally distinguishable from refusing to hire a woman because she rejected your sexual advances.  Each is an example of a woman unlawfully denied a job based on her sex. 

Most devastating for defenders of quid pro quo doctrine is Scalia's discussion of submission cases.  Consider the "quid without quo scenario," in which an individual submits to sexual advances but is denied the promised job benefit. If the supervisor provided the benefit, then the individual was subjected to quid pro quo sexual harassment, but if the supervisor reneged, then the individual would not have a quid pro quo claim. This result in which the employee who was treated better has the stronger claim is patently absurd. 

Scalia may or may not be well-qualified for the Labor post, but his 1998 law review article certainly does not disqualify him. Reactions to the article reflect more than mere disagreement with his views -- they also reflect the fear that he is sharp and competent enough to defend his own views and explain why his opponents are wrong.









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, July 20, 2019

EEO law and "Go Back Where You Came From"

Just for fun -- this EEOC tweet elicited a lot of reaction in light of Trump's "go back to where you came from" comments:

https://twitter.com/USEEOC/status/1150750405028175873












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.