Monday, November 28, 2016

Paid Family Leave and the Irresistible Force of Baby Cuteness (Updated 12/20/16 to add kittens!)

As reported in the Washington Post, the D.C. Council is on the brink of passing a law that would require employers to provide up to 11 weeks of paid leave for employees to bond with newborn or adopted children and up to 8 weeks of paid leave to care for an ill family member.

Whatever the merits of the arguments for paid family leave, I can't help but think that the D.C. Council's approach is ass backwards. As noted in the Post article, the law would not require paid leave for self-care. Thus, if Joe Schmo needs to take eight weeks off to take care of his own medical needs, his employer would not have to pay him for his time off. But if Joe's wife, Jane, takes eight weeks off to care for Joe while he is sick, then Jane's employer would have to pay her for her time off.

Sunday, November 20, 2016

The Bisexual Wage and Coverage Gaps

As I discussed in a recent post, courts have been increasingly willing to conclude that the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 encompasses sexual orientation discrimination. Although I agree that discrimination based on homosexuality or heterosexuality arguably constitutes sex discrimination, I don't believe the same can be said for discrimination against bisexuals. 

For example, discrimination against a gay man can be seen as sex discrimination that is grounded in a stereotype that applies to men but not to women, namely that they should not have sex with men. If someone discriminates, however, against a bisexual man or a bisexual woman because each has sex with both men and women, then men and women are being treated the same, so there is no sex discrimination. Thus, even where courts have concluded that Title VII prohibits sexual orientation discrimination, there is a bisexual coverage gap.

Based merely on common sense, I have always assumed that discrimination against bisexuals is exceedingly rare or even non-existent. I can see an employer discriminating against bisexuals as well as gay men and lesbians, but I think it much less likely that an employer would treat homosexual and heterosexual individuals the same yet discriminate against bisexual individuals.

I was surprised, then, to see that a recent study has concluded that bisexual men and women may be subject to pay discrimination that is not faced by gay men and lesbians. The study was authored by Trenton D. Mize, a doctoral student, and published by the American Sociological Association. 

Only time will tell whether discrimination against bisexuals arises with any frequency, but absent new federal legislation, which seems exceedingly unlikely for the foreseeable future, it does not appear that such discrimination is prohibited under federal law.

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, November 16, 2016

DeJesus v. Washington Post: Does EEO law require an employer to have a reasonable basis for firing someone?

If an employer's asserted reason for taking a particular action is unreasonable, does it follow that the employer has lied about why it took the action? That is one of the issues confronted by the court in DeJesus v. Washington, No. 15-7126 (D.C. Cir. Nov. 15, 2016), in which David DeJesus, who had sold ad space for the Washington Post for 18 years, alleged that he was fired because of his race and age.

Friday, November 11, 2016

Why have courts and federal agencies changed their tune about Title VII's coverage of sexual orientation discrimination?

In EEOC v. Scott Medical Health Center, No. 16-225 (W.D. Pa. Nov. 4, 2016), Judge Cathy Bisson joined the growing chorus of voices among federal courts and executive agencies that have recently interpreted Title VII of the Civil Rights Act of 1964 to prohibit sexual orientation discrimination. It is noteworthy that this newly minted interpretation does not appear to reflect any recent legal developments under Title VII. In fact, for the first 50 years of Title VII's existence, courts and federal agencies had been in unanimous agreement that Title VII does not prohibit sexual orientation discrimination. And recent interpretations to the contrary have relied primarily on the Supreme Court's 27-year-old decision in Price Waterhouse v. Hopkins.

Over the past few years, however, there has been a groundswell of public support for recognizing civil rights protections for gay men and lesbians, exemplified, in particular, by the Supreme Court's decisions on same-sex marriage. The recent change in the interpretation of Title VII closely mirrors this broader societal shift.