Wednesday, May 31, 2017

Whitaker v. Kenosha Unified School District: Denying bathroom access based on gender identity is sex discrimination

In Whitaker v. Kenosha Unified School District No. 1 Board of Education, No. 16-3522 (May 30, 2017), the Seventh Circuit ruled that the defendant subjected Ashton Whitaker, a 17-year-old transgender boy, to sex discrimination in violation of Title IX of the Education Amendments Act of 1972 when it denied him access to the boys' bathroom. As far as I know, this is the first federal court of appeals to hold that denial of bathroom access consistent with gender identity is a form of sex discrimination, so this decision is a BIG DEAL. Although Whitaker's claim was brought under Title IX, the court's analysis relies heavily on Title VII precedent, so the same reasoning should be transferable to the employment context.

Unfortunately, as I see it, the court's reasoning reflects the same flawed interpretation of the Supreme Court's decision in Price Waterhouse v. Hopkins that has been previously advanced by LGBT advocates. I've criticized those arguments at length (including here), so I won't bother doing so again in this post. The reasoning in Whitaker is particularly problematic since in the recent decision in Hively v. Ivy Tech holding that Title VII prohibits sexual orientation discrimination, the Seventh Circuit interpreted Price Waterhouse as concluding that sex stereotyping merely involves discrimination on the basis of the "victim's biological sex (either as observed at birth or as modified, in the case of transsexuals)" -- in other words, treating a masculine biological man better than a masculine biological woman.  For Price Waterhouse to provide support for bathroom access based on gender identity rather than biological sex, it obviously must say something more than that it is unlawful to treat biological men better than biological women. 

Although I think there are potentially compelling arguments for transgender bathroom access, they're not the ones that so many others are so tickled by.

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, May 30, 2017

Rizo v. Yovino, Part 2: The Need for a Coherent Approach to Relying on Pay History

Following up on my prior post on Rizo v. Yovino, this new post focuses on the recently filed briefs supporting rehearing by the full Ninth Circuit Court of Appeals. Rizo presents the issue of whether prior pay standing alone can be a defense under the Equal Pay Act. In other words, if a man and a woman are doing the same job and one of them is paid more than the other, can an employer ever justify the pay discrepancy by merely pointing to the higher-paid worker's prior salary? A three-judge panel of the Ninth Circuit held that prior pay standing alone can indeed be sufficient to justify a pay discrepancy under the Equal Pay Act. In requesting rehearing, Aileen Rizo contends that the panel decision should be rejected because it allows for the perpetuation of past pay discrimination and because it conflicts with the decisions of two other courts of appeals.

This post looks primarily at two amicus briefs, one filed by the EEOC and a second filed by a coalition of civil rights groups. While I agree that there are compelling reasons for restricting consideration of prior salary, the arguments advanced by the EEOC and by the civil rights coalition are confusing and fail to provide a coherent and workable solution. Rather, the EEOC and the coalition indiscriminately attack any consideration of pay history. To try to shine some light on this issue, this post discusses a possible solution that allows for the consideration of prior pay while also recognizing the risk of perpetuating pay discrimination.

It is important at the outset to distinguish the factors that an employer relies on in setting pay from the factors that ultimately result in a pay discrepancy between two individuals. For example, suppose XYZ Employer extends job offers as sales associates to a man and a woman (Darin and Dena) with similar qualifications and offers them each an annual salary of $75,000. Both applicants try to negotiate for higher pay. Darin is currently earning $65,000 while Dena is earning $85,000. Based on the applicants' salary histories, XYZ raises its salary offer to Dena to $88,000, but it keeps its offer to Darin at $75,000. Both applicants accept XYZ's offer. Under these circumstances, XYZ relied on prior salary and qualifications in setting Darin and Dena's starting salaries, but the sole reason that it ended up paying Dena more is her salary history.

So if we assume that prior salary standing alone is not a defense under the Equal Pay Act, does that mean that XYZ is out of luck because prior salary is the only reason that it has decided to pay Dena more than Darin, or does XYZ have a potential defense because it looked at both prior salary and qualifications when it set Dena and Darin's pay?

It is clear that the Rizo panel believed that the latter is the right way to view the issue:

[W]e do not see how the employer's consideration of other factors would prevent the perpetuation of existing pay disparities if . . . prior salary is the only factor that causes the current disparity. For example, assume that a male and a female employee have the same education and number of years' experience as each other, but the male employee was paid a higher prior salary than the female employee. The current employer sets salary by considering the employee's education, years of experience, and prior salary. Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary. In this example, it is prior salary alone that accounts for the pay differential, even though the employer also considered other factors when setting pay. If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified.
In contrast, the civil rights coalition contends that the Rizo panel misconstrued the question of law that was presented on appeal: "The question was not whether prior salary can be the only factor considered by an employer in setting pay, but rather, if it can be the only factor that caused the gender wage differential, even if other factors were considered at the front end."

In my view, the Rizo panel is correct for several reasons. First, the civil rights coalition stands alone in contending that the pay discrepancy, rather than merely the pay-setting decision, must be based on more than salary history. Neither the EEOC nor Rizo has challenged the panel's framing of the issue. For example, in Rizo's petition for rehearing, she criticizes the practice of relying on prior pay as the sole basis in "setting compensation." The EEOC's amicus brief is even clearer. The EEOC acknowledges that prior salary can be an Equal Pay Act defense even if it is the only factor that causes a wage disparity, as long as it was not the only factor that was considered in setting pay. As the EEOC explains: "Factors such as education and relevant experience ordinarily are not gender-based. To the extent the employer actually considers such factors -- rather than merely paying lip-service to doing so, as the panel's example suggests -- it dilutes the relative importance of prior pay in the decision."

Second, as the EEOC notes, the purpose of requiring factors in addition to salary history is to dilute the importance of salary history and to minimize the potential for perpetuation of any sex discrimination. If an employer sets pay by looking at prior pay along with other factors, the reliance on prior salary cannot somehow become deficient merely because there is subsequently an opposite sex worker who is being paid less solely because of her pay history.

Third, if no part of a pay discrepancy can be based on salary history alone -- even if salary history was not the only factor considered in setting pay -- then that means, in reality, that salary history can never be any factor at all in setting pay. As the civil rights coalition argues in its amicus brief, "[P]rior salary should only be accepted as [an EPA defense] if the wage difference can be explained or supported by some other factor." As support, the coalition brief cites an example in the EEOC Compliance Manual in which the EEOC endorses reliance on prior salary where it accurately reflects an employee's ability and job-related qualifications. In such circumstances, however, the employer is merely basing pay on an employee's qualifications and is not basing pay on salary history in a meaningful way.

Thus, the coalition's argument that a pay differential, rather than merely a pay-setting decision, cannot be based solely on prior salary is really an argument against any reliance whatsoever on salary history. There may very well be reasonable arguments for prohibiting any consideration of salary history. However, that is not the position that the coalition purports to advance. Instead, the coalition presents a disingenuous argument that superficially supports a limited reliance on prior salary but in reality attacks any reliance on prior salary.

So if the EEOC concedes that prior salary can be a defense as long it is not the sole factor in setting pay, does that mean that there are clear circumstances in which the EEOC believes an employer can rely on prior salary in setting pay? Hardly. Even though the EEOC's approach appears to be more flexible than that of the civil rights coalition, the EEOC nonetheless appears loathe to identify any circumstances in which prior salary can be given any real weight in setting pay. As already noted, the example from the EEOC's Compliance Manual does not suggest that prior pay can play any meaningful role in setting an employee's pay and instead suggests that prior pay is only a permissible consideration to the extent it reflects job-related qualifications.

Luckily, the solution may be staring us right in the face. It is almost certainly impossible for an employer to determine with pinpoint accuracy the market value of a particular job and an employee's qualifications. There will always be some range of what can be considered reasonable pay for an individual with particular qualifications to perform a particular job. In my view, therefore, a reasonable and balanced approach to considering prior pay in setting a new employee's starting salary is for an employer to (1) establish a pay range for a new employee based on the position being filled and the applicant's qualifications and (2) then use salary history to set the new employee's pay within that range. For the sake of brevity, I refer to this below as the "salary range" approach.

For example, in North v. United States, the court upheld a salary discrepancy between the plaintiff, a female attorney hired at the GS-14 level by the Department of Education, and a man who was also hired as a GS-14 attorney. The court concluded that the pay disparity did not violate the Equal Pay Act because it was based on the male attorney's "superior" qualifications and prior salary. Although the plaintiff also had superior qualifications -- meaning that she and the male attorney were both considered "highly qualified" for the position -- her starting salary exceeded her prior salary, so her pay was set at the lowest step of the GS-14 pay grade. The male comparator's salary, by contrast was set at the highest step of the GS-14 pay grade (almost $30,000 above the lowest step), and even at that rate, he made less than in his previous job.

The salary range approach is consistent with the recently introduced Paycheck Fairness Act, H.R. 1869, which would amend the Equal Pay Act to restrict employers' reliance on salary history. The civil rights coalition characterizes this bill as prohibiting employers from "seeking or relying on salary history," but I think that is incorrect. Specifically, the bill provides that it is unlawful for an employer to "seek from a prospective employee or any current or former employer the wage history of the prospective employee, except that an employer may seek to confirm prior wage information only after an offer of employment with compensation has been made to the prospective employee and the prospective employee responds to the offer by providing prior wage information to support a wage higher than that offered by the employer." Thus, although the bill prohibits employers from requiring applicants to disclose their salary history, it does not prohibit employers from relying on salary history in setting pay when salary history is voluntarily disclosed by applicants, and the bill contemplates that salary history will be used by applicants to negotiate for higher pay. Moreover, like the pay range approach discussed above, the bill requires an employer to make an initial assessment of an appropriate starting salary for a new employee.

This is not to say that the salary range approach should necessarily be considered a sufficient defense to an Equal Pay Act claim in all cases. In the Ninth Circuit, an employer must establish that its asserted defense "'effectuate[s] some business policy' and that the employer 'use[s] the factor reasonably in light of the employer's stated purpose as well as its other practices.'" Certainly, there could be instances in which an employer has acted unreasonably in using prior salary to set starting pay within a range, such as where the range is unreasonably large.

On the other hand, if employers have no freedom to pay some new employees more than others based on prior salary, employers may have difficulty competing for the best employees. As the EEOC suggests, consideration of other factors along with prior salary dilutes the effect of reliance on prior salary and reduces, but does not eliminate, the potential for perpetuating pay discrimination. The salary range approach is an imperfect compromise, but in my view, it strikes a reasonable balance between the interests of employers and employees. Given that the federal government follows this procedure in setting pay, it hardly seems fair to fault private sector employers for following suit. Sadly, however, in this if-the-President-does-it-it's-not-illegal era that we live in, fairness may be too much to expect.

Curiously, in Rizo, although the parties apparently do not dispute that the defendant relied solely on prior salary in setting pay, I disagree. The salaries of Rizo and the higher-paid male math consultants were based on level 1 of the management pay scale, which in 2009 had 10 steps ranging from $62,133 to $81,461. The defendant set a newly hired math consultant's pay at the step that corresponded to the employee's prior salary, plus a 5% raise. While the defendant apparently relied solely on prior salary in setting a new employee's salary within the level 1 range, starting salary was limited by that range. Thus, although the plaintiff's prior salary was only about $52,000, the defendant set the plaintiff's pay at the lowest step, which was considerably more than a 5% raise. The pay-setting procedure followed in Rizo largely mirrors the approach in North. The one significant difference is that in Rizo the defendant relied on prior pay in setting any new employee's salary within the applicable range. In North, by contrast, the defendant relied on prior salary only if an applicant had "superior qualifications." My point here is not that the pay procedure followed by the defendant in Rizo was necessarily lawful, but rather that like the one at issue in North, it did not involve a pay-setting decision that relied solely on prior salary. Nonetheless, it's possible that at this late stage, it may be too late for the defendant to point this out.

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, May 24, 2017

Coker v. Whittington: The Constitution does not protect wife-swapping, at least when it comes to sheriff's deputies

Coker v. Whittington, No. 16-30679 (May 23, 2017), is an interesting case in which the Fifth Circuit held that Bossier Parish, Louisiana, did not violate the constitutional rights of two sheriff's deputies, Brandon Coker and Michael Golden, when it fired them for violating its Sheriff's Code of Conduct by moving in with each other's wife and family before getting divorced from their current wives.

Tovar v. Essentia Health: Title VII Only Prohibits Sex Discrimination Against Employees

In Tovar v. Essentia Health, No. 16-3186 (May 24, 2017), the Eighth Circuit affirmed the dismissal of Brittany Tovar's claim that she was subjected to sex discrimination in violation of Title VII and the Minnesota Human Rights Act when her employer refused to cover medical expenses related to her son's gender dysphoria. As I discussed in a previous post and the Eighth Circuit confirmed, Title VII only prohibits discrimination against an employee because of his or her own protected status. Thus, even assuming that excluding coverage of expenses related to Tovar's son's gender dysphoria constituted sex discrimination, it constituted sex discrimination against Tovar's son, not Tovar. This is because the result would have been the same even if Tovar had been male. Similarly, as reflected in EEOC's  Questions and Answers on the Pregnancy Discrimination Act, although an employer may not exclude the pregnancy-related conditions of employees, it is not required by Title VII to cover "the pregnancy-related conditions of [non-spousal] dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally." 29 C.F.R. § 1604 Appendix, Q&A 21.

Of course, even if Title VII (or the MHRA) does not provide coverage, that does not rule out the possibility that Tovar (or her son) might have a claim under another federal, state, or local law (like the Affordable Care Act, which prohibits sex 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.

Sunday, May 21, 2017

Blatt v. Cabela's Retail: Are transgender individuals protected by the Americans with Disabilities Act?

District Court Judge Joseph Leeson's decision in Blatt v. Cabela's Retail, Inc., No. 5:14-cv-04822 (E.D. Pa. May 17, 2017), is perhaps the first to hold that discrimination based on transgender status may be covered by the Americans with Disabilities Act (ADA). By contrast, numerous courts have held that gender identity discrimination is a form of sex discrimination. Unlike Title VII, however, coverage under the ADA would not merely mean that it is unlawful to treat transgender workers worse than other workers but it also might mean that it is unlawful not to treat them better. This is because the ADA can require the modification of a neutral workplace policy, such as a leave or bathroom policy.

Friday, May 19, 2017

Both heritage and hate: Does the workplace display of the Mississippi state flag violate federal EEO law?

Monument to the Defenders of Little Round Top
With New Orleans in the process of removing several Confederate monuments, I figured it was appropriate to highlight a recent case brought by an African American attorney challenging the Mississippi state flag, the only one that still includes the Confederate flag.

In  Moore v. Bryant, No. 60616 (5th Cir. Mar. 31, 2017), the court rejected Carlos Moore's claim that the Mississippi state flag violates his rights under the Equal Protection Clause of the U.S. Constitution, concluding that Moore did not have standing (the right to bring a claim in court) because he had not suffered a sufficient injury. The court noted that, although Moore had alleged that the state flag stigmatizes him, he had not alleged that he had been personally denied unequal treatment.

Sunday, May 14, 2017

Happy Mother's Day: Chadwick v. Wellpoint & Family Responsibilities Discrimination

Moms who work outside the home may find some comfort in the First Circuit's decision in Chadwick v. Wellpoint, 561 F.3d 38 (1st Cir. 2009), in which the court held that Laurie Chadwick, the mother of an 11-year-old son and 6-year-old triplets, had presented sufficient evidence to show that she was denied a promotion based on sex stereotypes about childcare responsibilities:
Given what we know about societal stereotypes regarding working women with children, we conclude that a jury could reasonably determine that a sex-based stereotype was behind [the decisionmaker's] explanation to Chadwick that, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." 
Chadwick is the most mom-friendly decision I know of. It arguably establishes a presumption that adverse actions taken against women based on family responsibilities are grounded in sex stereotypes that working mothers are are not reliable. Thus, in Chadwick's case, because the decisionmaker's statement explicitly referenced Chadwick's childcare responsibilities as one of the reasons for denying her a promotion, a reasonable jury could conclude that a father with four young children would not have been denied a promotion.

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, May 10, 2017

Missouri is on the verge of adopting a disguised version of but-for causation for EEO claims

Missouri seems poised to amend its state EEO law to require a plaintiff alleging employment discrimination to show that "the protected criterion was the motivating factor." I view this as but-for causation in disguise because the new law also would define "motivating factor" to mean that the protected criterion "had a determinative influence on the adverse decision or action." A but-for factor, a determinative factor, a factor that made a difference -- these are all the same thing. So superficially, it looks like Missouri is adopting a motivating-factor causation standard, but in reality, I see the state as adopting a but-for causation standard.

As I discuss in this prior post, Missouri currently applies a "contributing factor" causation standard, which is a lower standard of causation than motivating factor, meaning that it is easier for a plaintiff alleging discrimination to establish that his race, sex, age, or other protected criterion was a contributing factor than for him to show that it was a motivating factor, which, in turn, is easier for him to show than but-for causation. Contributing-factor causation is a subset of motivating-factor causation, and motivating-factor causation is a subset of but-for causation. Thus, if a plaintiff has established but-for causation, he has also necessarily established both motivating-factor and contributing-factor causation.

One benefit of adopting the but-for causation standard is that the concept of but-for causation is much better understood than the fuzzy concepts of motivating-factor and contributing-factor causation. But-for causation means that if the plaintiff had been of another protected group, then the alleged discrimination would not have occurred. For example, if a woman establishes that but for her sex she would not have been denied a promotion, then that means that if she had been a man and everything else had been the same, she would have gotten the promotion. By contrast, what it means for sex/race/etc. to have been a motivating factor is much harder to grasp. Does that mean it just needs to have been a factor in the decisionmaker's mind that weighed in favor of the ultimate outcome? Or must it have been a much more significant consideration? (For more on the causation standards, see this post.)

To be sure, but-for causation is harder to prove than contributing-factor causation, or even motivating-factor causation. But that is largely only a theoretical, and not a real-world, benefit if no one really knows what contributing-factor causation and motivating-factor causation even mean.

And when it comes to the real world, but-for causation rules the day. In Gross v. FBL Financial Services, the Supreme Court held that a plaintiff alleging a violation under the Age Discrimination in Employment Act must show that but for his age, he would not have been subjected to the adverse job action. Gross effectively adopted a default but-for causation standard for federal EEO law. Gross was widely criticized by employee rights advocates as making it more difficult for plaintiffs to prevail under the ADEA. But Gross has turned out to have had little effect because in the vast majority of EEO cases plaintiffs establish violations by relying on the McDonnell Douglas framework. Under this approach, a plaintiff establishes that an employer's asserted reason for taking a challenged job action was a pretext for discrimination. This method of proof is widely understood to establish but-for causation. In adopting a new causation standard, the Missouri legislature has also explicitly endorsed the McDonnell Douglas framework, so as with federal ADEA claims, it seems reasonable to expect that most Missouri plaintiffs will be unaffected by the change in Missouri 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.

Tuesday, May 9, 2017

A Trio of Bathroom Cases: One on No. 2 and Two on No. 1

This post discusses three cases in which the failure to provide adequate bathroom facilities resulted in a potential EEO violation. The first case, involving number two, is a claim under the Americans with Disabilities Act, and other two cases, involving number one, are sex discrimination claims under Title VII of the Civil Rights Act of 1964.