Thursday, April 28, 2016

Legg v. Ulster County: When is the failure to accommodate pregnancy intentionally discriminatory?

In Legg v. Ulster County, the United States Court of Appeals for the Second Circuit held that Ann Marie Legg, a corrections officer, was entitled to have a jury decide whether she was subjected to unlawful pregnancy discrimination when the defendant denied her request for light duty. The Legg decision is among the first to apply the special framework created by the Supreme Court in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), for establishing pregnancy-based disparate treatment under the Pregnancy Discrimination Act. As discussed below, I think the Second Circuit misinterpreted Young by failing to focus on the ultimate issue of discriminatory intent.

Thursday, April 21, 2016

Pastafarianism: Accommodating Believers in the Flying Spaghetti Monster

Recently, in Cavanaugh v. Bartelt, Judge John Gerrard rejected the claims of Steven Cavanaugh, a prisoner in the Nebraska State Penitentiary, that he was subjected to religious discrimination when prison officials refused to accommodate his religious practices as a Pastafarian and believer in the divine Flying Spaghetti Monster.  Judge Gerrard concluded that FSMism is not a religion but a "parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education."

In this terrific blog post, Michael Dorf distinguishes between the question of whether the founders of Pastifariansim intended it as a religion or as a parody of religion and the question of whether a particular individual is a sincere believer in Pastafarianism as a religion.  The latter question is the relevant one in determining whether a particular individual is entitled to have his beliefs accommodated.  As Judge Gerrard observes, however: 
It is not clear from Cavanaugh's complaint whether his professed adherence to FSMism is grounded in [its rejection of religion as science], or in a literal reading of the FSM Gospel. But to read the FSM Gospel literally would be to misrepresent it -- and, indeed, to do it a disservice in the process. That would present the FSM Gospel as precisely the sort of Fundamentalist dogma that it was meant to rebut.

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, April 15, 2016

Does Title VII require bathroom access consistent with an individual's gender identity? (Updated 4/19/16)

In light of the recent controversy surrounding anti-LGBT legislation and of the possibly imminent release of the Fourth Circuit's decision in G.G. v. Gloucester County School Board, it seems like a great time to explore the issue of transgender bathroom access. 

Under Title VII of the Civil Rights Act of 1964, a number of courts have concluded that discrimination against an individual because he or she is transgender constitutes unlawful sex discrimination. In my view, even if those courts have interpreted Title VII correctly, their legal analysis provides little support for the proposition that Title VII requires an employer to grant a transgender individual access to the sex-specific bathroom consistent with his or her gender presentation.  As suggested below, however, all is not lost, because there is a much better argument waiting in the wings.

Monday, April 11, 2016

EEOC v. Rite Way Service, Inc.: When is someone who answers an employer's question about harassment protected?

In EEOC v. Rite Way Service, Inc., No. 15-60380 (Apr. 8, 2016), the United States Court of Appeals for the Fifth Circuit held that a third-party witness who answers her employer's questions about another employee's harassment complaint is only protected against retaliation if she reasonably believes that the underlying harassment violates federal law. In so holding, the court rejected the EEOC's contention that the "reasonable belief" standard applies only when an employee engages in proactive opposition by complaining about potential discrimination on her own initiative and not when she engages in reactive opposition by answering an employer's questions about potential discrimination alleged by a coworker.

Sunday, April 10, 2016

Bauer v. Lynch and Gender-Normed Fitness Standards: When is it necessary to treat the sexes differently in order to treat them the same?

In this post, I discuss Bauer v. Lynch, No. 14-2323 (4th Cir. Jan. 11, 2016), in which the United States Court of Appeals for the Fourth Circuit considered whether the FBI's gender-normed fitness standards discriminate on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. Under these standards, Jay Bauer flunked out of the FBI Academy and was disqualified from being a Special Agent because he was only able to do 29 push-ups, a single push-up short of the minimum 30 repetitions required for men.

Tuesday, April 5, 2016

Morriss v. BNSF Railway: Obesity Not Covered Under ADA Unless the Result of a Physiological Disorder or Condition

In Morriss v. BNSF Railway Co., No. 14-3858 (8th Cir. Apr. 5, 2016), the court held that "for obesity to qualify as a physical impairment -- and thus a disability -- under the [Americans with Disabilities Act], it must result from an underlying physiological disorder or condition." Thus, the court rejected the contention that a certain level of obesity, such as having a body mass index above a particular number, is a physical impairment, in and of itself, even if it is not the result of an underlying physical disorder or condition.  Somewhat curiously, in so holding, the court rejected amicus EEOC's interpretation of its own guidance.

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, April 3, 2016

The Unfulfilled Threat as Anticipatory Retaliation

In EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015), the Sixth Circuit concluded that "a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII [of the Civil Rights Act of 1964]." As discussed in this post, if the rejection of sexual advances is regarded as protected activity for purposes of a retaliation claim, then some situations may result in overlapping claims of retaliation and sexual harassment. In particular, I would like to consider a potential retaliation claim for a supervisor's unfulfilled threats to punish someone if she rejects his sexual advances.

Friday, April 1, 2016

Hamilton Casting Call for "Non-white" Performers

This is an interesting post on Workplace Prof Blog about a casting call for "non-white men and women" to audition for the musical Hamilton.

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.