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.

Monday, September 2, 2019

Velox Express: Does merely misclassifying employees as independent contractors violate labor law?

Samuel Gompers Monument
In Velox Express, Inc., the National Labor Relations Board concluded that Velox Express violated the National Labor Relations Act in firing a driver for complaining that she and other drivers were misclassified as independent contractors rather than employees, but the Board also concluded that the misclassification was not a standalone violation of the NLRA.

In her dissent, Board Member Lauren McFerran not only disagreed about whether a misclassification decision violates the NLRA, she also contended that the majority should not have addressed that issue. In doing so, however, McFerran seems to have shot herself in the foot.

Not surprisingly, the Board, has never had occasion to address the "pure" misclassification issue taken up today. It is hard to imagine how a case limited to that issue would arise, unless an employee sought the equivalent of a declaratory judgment from the Board—the Board's determination of employee status—before engaging in Section 7 activity. Far more likely are unfair labor practice cases triggered by an employer's application or enforcement of misclassification against employees—its denial to them of rights under the Act that are properly available to employees. That fact is demonstrated by the examples cited above. And this case, too, illustrates the point, as it does not involve misclassification without more, but rather misclassification with more: an employer's reprisal against an employee for concertedly challenging the Respondent's misclassification of its drivers.
If, as McFerran contends, misclassification never comes up on its own but only in the context of an application or enforcement of a misclassification decision, it's hard to understand how someone could conclude that misclassification actually has a chilling effect. 
On the other hand, if a misclassification decision does have a chilling effect, then why wouldn't McFerran want the Board to determine whether it is a standalone violation? 

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 31, 2019

Timing and Retaliation: Green v. City of Phoenix; Wellner v. Mentefiore Medical Center

Two recent cases illustrate the complexities in relying on timing to prove that retaliation was a but-for cause.

In Green v. City of Phoenix, No. CV-15-02570-PHX-DJH (D. Ariz. Aug. 26, 2019), Judge Diane Humetewa mistakenly rejected the plaintiff's retaliation claim for want of direct evidence:
Plaintiff relies entirely on temporal proximity to prove that his protected activity was the but-for cause of his May 2012 work fitness evaluation. . . .  In the end, it takes more than allegations of temporal proximity to demonstrate but-for causation in a Title VII retaliation claim post-Nassar. See Cheeks v. Gen. Dynamics, 22 F. Supp. 3d 1015, 1036 (D. Ariz. 2014 ("Plaintiff provides no direct evidence of but-for causation, and instead asks the Court to infer causation through proximity in time and by inferring knowledge of the complaints on her superiors. The Court, however, does not find such inferences reasonable.").
The mistake here is in equating but-for causation with direct evidence. If an employee was fired shortly after complaining about sexual harassment, that timing is enough to create an inference that the termination was based on the complaint. It's true that the inference is weak, but it puts the burden on the employer to provide evidence that the termination was for a non-retaliatory reason. If the employee can discredit and weaken the employer's reason, that's all it takes to show but-for causation. The notion that direct evidence is needed was rejected by the Supreme Court in Reeves v. Sanderson Plumbing.

By contrast, in Wellner v. Montefiore Medical Center, 17 Civ. 3479 (KPF), Judge Katherine Polk Failla mistakenly gave too much weight to timing that supported a finding of retaliation while not considering timing that undermined a finding of retaliation. In Wellner, the defendant fired an employee after she had been on paid leave for over four months while criminal proceedings against her were pending. The termination decision was made shortly after the employee informed the employer that she wanted to go on short-term disability, but it also occurred the day after the employee informed the employer that, before she resolved her criminal case, she wanted to know if the employer planned on firing her. 

The question is whether the employer would have retained the employee if she had not requested an accommodation. Judge Failla's misunderstanding is obvious when she explains that “the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors." The "motivating factor" standard is the alternative to but-for causation and is not sufficient to establish unlawful retaliation. Moreover, the employee had been on paid leave for an extended period of time, and she specifically asked the employer to let her know whether she would be fired. Given these circumstances, whatever inference of discrimination might have been raised by the short interval between the accommodation request and the termination decision was dispelled by the employee's request that the employer decide her fate and by the fact that the employer was obviously troubled by the criminal proceeding and the potential effect on the public's perception of the employer.

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 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.