Monday, March 27, 2017

Open Urinals, Sexual Harassment, and the Wacky Dutch

Bogaski v. County of Allegheny, No. 2:15-cv-00487 (W.D. Pa. Mar. 22, 2017), is a peculiar sexual harassment case that involves an "open urinal," which was located not in a bathroom but out in the open in a garage workspace frequented by Justine Bogaski, a Parks Department employee. Bogaski alleged a wide range of sexually harassing conduct, including patting her on the buttocks, comments about her body, and referring to her as "bitch" or "Barbie," but the parties disputed whether the defendant had sufficient notice of this conduct in order for it to be held liable. Judge Lisa Lenihan concluded, nonetheless, that Bogaski could proceed with her claim based solely on the existence of the open urinal:
A reasonable jury could certainly find the continued presence, and sanctioned routine use, of an open urinal in the North Park garage -- to which Plaintiff, when hired as the sole-female laborer, reported to receive daily work assignments and was otherwise present for job-related materials and duties during the work day -- to meet the elements comprising [a] violation of Title VII.
I wanted to highlight this case because if you've ever been to Amsterdam, then you may have noticed that in certain parts of the city, particularly those with lots of bars, there are open urinals in which men relieve themselves in public view. The one pictured above is not in use, but if you search the internet, you can find plenty of photos with long rows of urinals and at least two men at each of them. Recently, Amsterdam has begun to install urinals with locking doors for women.

While I thought the street urinals were odd, I was really taken aback when I visited the science museum NEMO. The exhibit "Teen Facts" includes a large rectangular box that is used to demonstrate French kissing. One person stands on each side of the box, and they insert their arms to manipulate two gigantic tongues. The exhibit also features mannequins posed in dozens of sexual positions, including one called "the cat." Since this blog is rated PG-13, I haven't included a photo of the cat. Science, anyone? 

So are open urinals a well-justified convenience or an indefensible assault on our workplace sensibilities? I suppose there is no definitive answer. The pragmatic Dutch may view open urinals as a no-brainer. The urinal in the Bogaski case was no less discrete than one of Amsterdam's street urinals. It was the Duchamp "fountain"-type of urinal and was situated against the wall between two privacy walls made of cinder blocks. But the wacky Dutch, with their windmills, wooden shoes, and French kissing exhibits may not be the best measure for the American workplace. By comparison, we Americans are prudes when it comes to bodily functions and sexual conduct. Bogaski's claim has to be evaluated from the perspective of a reasonable woman in similar circumstances, which includes the social mores of American society and the American workplace.

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, March 16, 2017

Clark v. Top Shelf Entertainment: When is it sexual harassment to ask a topless dancer to show you her breasts?

Clark v. Top Shelf Entertainment, No. 3:16-cv-00144 (W.D.N.C. Mar. 13, 2017), is a thoughtful decision by District Court Judge Max Coburn Jr. that provides guidance on when an "exotic dancer" can allege sexual harassment for being asked to reveal her breasts. In this case, Asia Clark, who had signed an agreement to perform "clothed and topless," alleged that she was sexually harassed by a supervisor. 

In evaluating Clark's claim, Coburn explained:

[I]n a typical employment situation, an employer asking a female employee to reveal her breasts would be a textbook case of sexual harassment . . . . Where, however, the occupation of plaintiff is that of an exotic dancer that bright line becomes blurred. While the employer can certainly instruct the exotic dancer to remove her top in relation to her duties as an adult entertainer, that ability does not give the employer license to demand that the employee remove her top simply for his own personal gratification.
Clark alleged that a supervisor "constantly harassed her 'to remove her top and show him her breasts, because he thought they were "pretty"' and he did so 'nearly every time she worked'"; that the supervisor demanded that she show him her breasts outside the view of customers; and that some dancers were allowed to perform clothed.

Coburn rejected the employer's contention that it was merely enforcing the employment agreement. Although the agreement stated that Clark would perform topless, it did not enable the employer to "dictate that she go topless at the will of her supervisors." Read in the most favorable light, Clark's contention was that she was asked "to re
move her top for personal, prurient interests," and therefore, she could proceed with her sexual harassment claim.

As Coburn indicated, a topless dancer could not base a sexual harassment claim on sexual conduct that was necessary for her to perform her job duties. 
I recently watched the movie "The Graduate," and there's a scene in a strip club in which a dancer is wearing pasties with tassels, and she twirls the tassels in opposite directions. In a typical workplace, a woman might be able to allege sexual harassment if men stared at her breasts. But if your job calls for you to use your breasts to entertain customers, then you can't object to customers who stare at them during a mesmerizing exotic dance routine. I couldn't find a clip of this scene, but here's a how-to video if you want to learn to nipple tassel twirl, and apparently it's a skill that even men can learn. (The video has shirtless men, but the female instructor remains clothed.)

So the point is that a topless dancer is protected against sexual harassment, but generally cannot base a claim on sexual conduct that she should reasonably expect to be a normal part of doing the job. 

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.

Tuesday, March 14, 2017

Evans v. Georgia Regional Hospital: The stereotype that gay men have sex with other men "disregard[s] the diversity of experiences of gay [men]" -- WTF?!

In Evans v. Georgia Regional Hospital, No. 15-15234 (Mar. 10, 2017), a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit voted 2 to 1, holding that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. The decision is not particularly surprising, given that this is what courts have been holding for over 50 years. What is particularly notable, however, is the peculiarly reasoned concurrence of Judge William Pryor.

Pryor concedes that it is unlawful to discriminate against an individual for not conforming with gender stereotypes. However, he faults the EEOC, which filed an amicus brief, and the dissent for stereotyping gay men and lesbians. And how, according to Pryor, are the EEOC and the dissent improperly stereotyping gay men and lesbians? They do so by assuming that gay men have sex with other men and that lesbians have sex with other women. These stereotypes "disregard the diversity of experiences of gay individuals." Yes, ladies and gentlemen, the EEOC should be faulted for ignoring the experiences of gay men who have sex with women and lesbians who have sex with men.

Saturday, March 11, 2017

In the Trump Administration, No Man-Made Climate Change But Long Live Cold Fusion

Hot Fusion
As you may have heard, concerned citizens have been flooding the Environmental Protection Agency with non-stop calls denouncing Administrator Scott Pruitt's rejection of climate change science. Fear no more, I think I have a solution, which lies in harnessing the insights of science skeptics.

Back in 2000, the EEOC issued a notorious decision regarding the Patent Office's termination of an employee allegedly for believing in cold fusion. Cold fusion is a purported means of generating energy through nuclear fusion at room temperature rather than at the millions of degrees normally required in the core of a star. The EEOC concluded that terminating an employee based on his cold fusion beliefs was possibly unlawful religious discrimination:

[C]omplainant argues that "[d]iscrimination against a person on account of his beliefs is the essence of discrimination on the basis of religion…." Therefore, complainant contends, his beliefs in cold fusion are protected.
. . .
"In determining which beliefs are protected under Title VII, the Supreme Court has held that the test is whether the belief professed by a complainant is sincerely held and whether it is, in his own scheme of things, religious." Moreover, in defining religious beliefs, our guidelines note that "the fact that no religious group espouses such beliefs … Will not determine whether the belief is a religious belief of the employee…."
In the instant case, complainant argues that his unconventional beliefs about cold fusion and other technologies should be viewed as a religion and therefore protected. Complainant claims he was terminated and denied the opportunity to be rehired because of religion, which embodies his cold fusion beliefs. Therefore, under the applicable law noted above, we find that the agency improperly dismissed complainant's claim of discrimination for failure to state a claim.
I don't deny that unconventional beliefs can be "religious," but a belief is not religious merely because it is unconventional. Rather, it may be religious despite its being unconventional. But the initial question is whether a belief is religious, and the EEOC did not answer that question. 

Such reasoning would ordinarily be grounds for criticism. But no more. The EEOC's paean to unscience was prescient in anticipating a world in which climate change is not caused by humans and autism is caused by vaccines. A world of alternative facts in which all beliefs have equal validity.

We humans may not have caused climate change, but we can fix it. With cold fusion. And a few perpetual motion machines. So move over scientists, it's time for mystics, astrologers, and witch doctors to have their chance to shine.

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, March 1, 2017

Will Gloucester County School Board v. G.G. be the next Bowers v. Hardwick?

Not surprisingly, as reported on, the parties in Gloucester County School Board v. G.G. have not been deterred by the Trump administration's rescission of guidance addressing transgender bathroom access and have urged the Supreme Court to decide whether Title IX of the Education Amendments Act of 1972 requires the defendant to allow Gavin Grimm, a transgender boy, to use the boys' bathroom at his school.

Only a few days ago, I wrote this detailed post explaining the fundamental flaws in the arguments advanced on behalf of Grimm. Briefly, Grimm's counsel assumes the answer to the central question in this case: Is Grimm a boy or a girl when it comes to using the bathroom? The argument advanced by Grimm's counsel is, essentially, that Grimm gets to use the boys' bathroom because he's a boy. This is the fallacy of "begging the question," a form of circular reasoning.

Today, as advocates ask the Supreme Court to take up the newest issue of LGBT rights, the Court has a 4-4 conservative-liberal split, with one of the conservatives (Anthony Kennedy) siding with liberals in some significant cases. Grimm's counsel is urging the Court to proceed with the current schedule with oral arguments on March 28. If that schedule is kept, the case would be heard by an 8-member Court because confirmation hearings for Judge Neil Gorsuch do not begin until March 20. The defendant, on the other hand, has asked the Court to delay the case so that the Trump administration can provide its views, and presumably, so that Gorsuch is more likely to be on the Court by the time the case is heard.

The Grimm case must be placed in historical context.

In 1986, in a 5-4 decision in Bowers v. Hardwick, the Supreme Court upheld the constitutionality of a Georgia law that authorized a prison sentence of up to 20 years for a single act of sex between two consenting adults of the same sex, even in the privacy of a home. It took 17 years for that decision to be overturned in Lawrence v. Texas, in which Justice Kennedy wrote: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." 

In 2015, in Obergefell v. Hodges, Kennedy again pulled through for LGBT advocates in recognizing a constitutional right to same-sex marriage. Although Obergefell was a landmark decision in the struggle for LGBT equality, it was hardly groundbreaking. When it was issued, numerous courts had already recognized a right to same-sex marriage. And still, advocates did no better than a 5-4 victory at the Supreme Court.

The Court is historically a conservative institution. It tends not to lead the way when it comes to social progress. In contrast to when the Court took up the issue of same-sex marriage, there is almost no case law favoring transgender bathroom access. If the Court were to rule in Grimm's favor, it would truly be groundbreaking.

The hope may be that Kennedy will once again pull through for LGBT advocates. In contrast to Lawrence and Obergefell, however, the Grimm case does not require the Court to interpret the Constitution, which speaks in terms of broad principles of equality, justice, and human dignity, but rather to interpret specific statutory language proscribing certain forms of discrimination. And not to beat a dead horse, but advocates have not even provided a sound legal argument for ruling in favor of transgender bathroom access. 

Sure, the Grimm case may turn out to be the transgender equivalent of Brown v. Board of Education. But by almost every objective measure, it is much more likely to be the transgender equivalent of Bowers v. Hardwick

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.