Friday, June 23, 2017

EEOC v. AutoZone: Is it per se unlawful to limit, segregate, or classify employees because of race?

In EEOC v. AutoZone, Inc., No. 15-3201 (June 20, 2017), the Seventh Circuit held that a plaintiff alleging that a transfer violates Title VII's provision making it unlawful to "limit, segregate, or classify his employees" must establish that the transfer constitutes a materially adverse employment action. In so holding, the court rejected the EEOC's contention that any action to limit, segregate, or classify employees because of race or another protected characteristic constitutes a per se Title VII violation.

In this case, the EEOC alleged that the defendant violated Title VII of the Civil Rights Act of 1964 when it transferred a black sales manager, Kevin Stuckey, to another store because it wanted to make the location from which he was being transferred a "predominantly Hispanic" store.

If the EEOC had alleged a violation of 703(a)(1), which prohibits discrimination with respect to terms, conditions, and privileges of employment, it would have been undisputed that the EEOC would have been required to show that the transfer was materially adverse, meaning that the transfer affected Stuckey's pay or promotion opportunities or otherwise made him worse off. The EEOC, however, instead alleged that the transfer violated section 703(a)(2), which makes it unlawful for an employer to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adverse affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." In the EEOC's view, by alleging a violation under 703(a)(2), it was not required to show that Stuckey's transfer was materially adverse. Rather, the transfer was actionable so long as the defendant had limited, segregated, or classified Stuckey based on his race.

In rejecting the EEOC's argument, the court explained:
This argument eliminates much of the statutory text. Or more precisely, it leaves much of the statutory text with no meaningful work to do. If it's not necessary to show that the challenged employment action "deprive[d] or tend[ed] to deprive" the employee of employment opportunities "or otherwise adversely affect[ed] his status as an employee," what is the point of this statutory language? We read § 2000e-2(a)(2) to require case-specific proof that the challenged employment action had these effects.
Of course, even if section 703(a)(2) does not cover all actions involving limiting, segregating, or classifying, its coverage of any adverse effect on "employment opportunities" or on an individual's "status as an employee" may nevertheless be broader than 703(a)(1)'s coverage of discriminatory terms, conditions, and privileges of employment. Since this alternative was not raised by the EEOC or addressed by the court, that issue will have to be left for another day.

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, June 17, 2017

When do parental leave policies discriminate against fathers?

Just in time for Father's Day, the ACLU and the law firm Outten & Golden have filed a high-profile EEOC charge on behalf of J.P. Morgan Chase employee Derek Rotondo, who alleges that his employer's parental leave policy discriminates against men. The charge alleges that, pursuant to his employer's policy, primary caregivers are given up to 16 weeks of paid leave immediately following the birth or adoption of a child whereas non-primary caregivers can only get two weeks of paid leave. Rotondo further alleges that the employer presumptively treats fathers as non-primary caregivers and only treats a father as a primary caregiver if the mother has returned to work or is medically incapable of caring for the child. In Rotondo's case, he could not qualify for either of those exceptions because his wife, as a teacher, was off for the summer, and she was recovering well from childbirth, so she could not be considered medically incapable of caring for their newborn son.

Rotondo's charge presents a fairly straightforward claim of sex discrimination, alleging that assumptions about primary caregiver status are grounded in sex stereotypes about childcare responsibilities. This stereotype also arguably disadvantages women by presuming that men are society's breadwinners and that women should be more willing than men to take time off from their professional lives to raise a family.

Primary caregiver policies are not facially sex-discriminatory, but as suggested by Rotondo's allegations, their enforcement may be driven by sex stereotypes. Given such stereotypes, male employees also may assume that they cannot be primary caregivers or may fear that they will be stigmatized for wanting to share parental responsibilities on an equal basis. More generally, primary caregiver policies have been criticized as promoting the outdated notion that a child has one main parent. Although the ACLU has targeted J.P. Morgan Chase's particular leave policy because it has allegedly been enforced in a discriminatory manner, it's a good bet that the organization has all primary caregiver policies in its crosshairs.

A significant wrinkle that has been overlooked is that even if women and men should be entitled to the same amount of parental leave, an employer may provide women with leave to recuperate following childbirth. If an employer provides female employees up to 16 weeks of leave after giving birth, that period really includes both pregnancy-based leave and parental leave. If men are also given 16 weeks of leave following the birth of a child, that leave is solely parental leave. Some countries with generous parental leave policies, such as Denmark, Belgium, and Hungary, provide women with an exclusive period of leave following childbirth (see this article). Following that period of recuperation, leave is more evenly divided between fathers and mothers. As suggested by such policies, it may not necessarily discriminate against men if women get more leave than they do following the birth of a child.

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, June 12, 2017

Loving v. Virginia: The Analogy Between Interracial Marriage and Same-sex Relationships

Today marks the 50th anniversary of the Supreme Court's decision in Loving v. Virginia, which struck down a state law prohibiting interracial marriage as a violation of the constitutional right to equal protection. Although the state argued that its law was permissible because it applied equally to all races, the Court disagreed:
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."
Courts and the EEOC have extended this logic to conclude that sexual orientation discrimination is a form of sex discrimination. Just as discrimination based on conduct between members of different races is race discrimination, discrimination based on conduct between members of the same sex is sex discrimination. Thus, in Hively v. Ivy Tech Community College, the Seventh Circuit rejected the dissent's contention that sexual orientation discrimination is not sex discrimination because it treats the members of both sexes equally:
. . . Loving shows why this fails. In the context of interracial relationships, we could just as easily hold constant a variable such as "sexual or romantic attraction to persons of a different race” and ask whether an employer treated persons of different races who shared that propensity the same. That is precisely the rule that Loving rejected, and so too must we, in the context of sexual associations.
To be sure, Virginia's prohibition against interracial marriage was also grounded in perceptions about white supremacy. But as the Seventh Circuit noted in Hively, the Supreme Court concluded that miscegenation laws are inherently "repugnant" to the constitutional guarantee of equal protection, "even assuming an even-handed state purpose to protect the 'integrity' of all races."

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, June 9, 2017

A 21st Century Civil Rights Issue for the Trump Administration: Topless Female Lifeguards (Updated)

An article in today's Washington Post suggests a great opportunity for the Trump Administration to be at the vanguard of the fight for civil rights. The Post reports that Ocean City has instructed beach patrol employees not to approach women who are sunbathing topless -- at least until the Maryland Attorney General can weigh in. The question presented here is whether allowing men to go topless but not allowing women the same privilege is sex discrimination. And if female sunbathers should have the right to go topless, then so too should female lifeguards.

Jeff Sessions and the Trump Administration should step up to the plate. Why should female lifeguards not have the same rights that male lifeguards have? What better way for the administration to give the lie to the misperception that it caters to the interests of white men than by taking to task municipalities that suppress the rights of female employees? From what I've seen of the tv show Baywatch, those tops really slow women down. So women will be freer and more lives will be saved. A win-win.

Update: On June 15th, two attorneys in the Maryland Attorney General's Office advised Ocean City of their view that interpreting laws against indecent exposure to prohibit women from going topless does not violate equal protection guarantees under the U.S. or Maryland Constitution. From what I can tell, this boils down to a prohibition against exposed female nipples. I recently learned from my primary news source, "Wait Wait ... Don't Tell Me!", about "side boob," and in doing research for this post, I've learned that there's also "underboob," so throwing in regular old cleavage, that just leaves out the nipple.

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, June 8, 2017

Villa v. Cavamezze Grill: When can an employer be liable for firing someone it believes fabricated a report of sexual harassment?

Villa v. Cavamezze Grill, LLC, No. 15-2543 (4th Cir. June 7, 2017), is an important new decision addressing when an employer can be held liable under Title VII of the Civil Rights Act of 1964 for firing someone that the employer believes has falsely reported sexual harassment.

In this case, Patricia Villa, a lower-level restaurant manager, alleged that an employee she had supervised, Judy Bonilla, told her that the restaurant’s General Manager, Marcelo Butron, had offered to promote Bonilla in exchange for sex. Villa contacted Rob Gresham, the Director of Operations, and relayed what Bonilla had allegedly told her, and she also told Gresham that she suspected that another former employee, Jessica Arias, had quit because Butron had made the same offer to her. After investigating the allegations, the employer concluded that Villa had made everything up, and it fired her.

The Fourth Circuit rejected Villa's claim that she was fired in retaliation for reporting sexual harassment. The court reasoned that a plaintiff bringing a Title VII retaliation claim must prove that “the desire to retaliate was the but-for cause of the challenged employment action.” Thus, it is not enough that the plaintiff's conduct have caused the termination. The employer must also have been motivated by retaliatory animus, rather than merely the desire to discipline an employee for what the employer honestly believed was misconduct.

The EEOC, by contrast, argued in its amicus brief that "[a] jury should resolve retaliation claims where (1) an employee has engaged in protected activity under the opposition clause of Title VII's anti-retaliation clause . . . ; (2) the employer claims that it took adverse action because the employee fabricated allegations of unlawful activity; and (3) there are disputed issues of fact as to the evidence on which the employer relied or the adequacy of the employer's investigation."

As I see it, neither the Fourth Circuit nor the EEOC has it exactly right. Although I agree with the EEOC that the Fourth Circuit's approach may be too narrow, the EEOC's alternative is muddled and provides insufficient guidance. The EEOC suggests that a jury should resolve a retaliation claim when the adequacy of the employer's investigation is at issue, but the EEOC does not explain how the jury is supposed to resolve the claim. Presumably, there must be some guiding legal principles, but if so, the EEOC does not identify them.

In my view, an alternative grounds for liability could be an employer's negligence. If someone alleges unlawful discrimination, the employer has a responsibility to respond in a reasonable manner to that complaint. If the employer fails to act reasonably and, as a result, takes an adverse action based on the honest but unreasonable and mistaken belief that an employee lied about alleged discrimination, then a plaintiff should be able to establish employer liability for retaliation based on the employer's negligence. Holding an employer liable under such circumstances is akin to holding an employer liable for sexual harassment by a coworker where an employer honestly but unreasonably believed that no harassment occurred because it failed to conduct an adequate investigation.

In this case, however, I don’t think the alleged facts support potential employer liability based on negligence. The evidence showed that the employer spoke with Bonilla and Aria, and they both denied that they were sexually harassed by Butron. The employer also spoke with a witness who allegedly overheard Bonilla tell Villa about Butron's harassment, and the witness denied that Bonilla made such an accusation.

It is true, as the EEOC notes, that there were factual disputes about the adequacy of the investigation, such as the failure to question the alleged harasser and the lack of a harassment policy, but neither of those possible shortcomings seems relevant to why the employer believed that Villa had lied. Take the failure to interview the alleged harasser. The employer interviewed the alleged victim, and she denied that the harassment occurred. Although Bonilla stated in her deposition that she had in fact told Villa that Butron had sexually harassed her, she also stated that she had lied to Villa about the offer. Thus, even if the employer had interviewed Butron, that almost certainly would not have affected its determination that Villa had lied since he obviously would not have admitted to misconduct that never occurred.  Similarly, it’s not at all clear how the lack of a harassment policy could have affected the employer’s determination that Villa lied.

In the end, negligence may be a viable theory for holding an employer liable for retaliation, but it's hard to fault the court for not adopting that position when neither the plaintiff nor the EEOC argued in its favor. Moreover, even if such a theory were available, it seems unlikely that it would have affected the outcome.

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, June 2, 2017

Jones v. Fransen: The Reasonable Dog Standard

Although not an EEO case, I couldn't resist doing a post on Jones v. Fransen, in which the Eleventh Circuit dismissed a negligence claim against Draco, a police dog. Here are some highlights:
In history and literature, the name "Draco" has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word "draconian." Draco Lucius Malfoy, of course, is Harry Potter's perpetually maleficent rival in the Harry Potter literary series.
And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court's denial of Defendant-Appellants' motion to dismiss Draco.
. . .
Jones . . . alleged in his complaint that "Officer K-9 Draco of the Gwinnett County Police Department" was liable for negligence in his individual capacity. We are not persuaded.
Georgia has codified the tort of negligence. And under the express terms of Georgia law, only a person may be held liable for breaching a legal duty . . . . 
Not surprisingly, [the Georgia law] we use to determine the meaning of words used in Georgia's tort statutes[] does not define the word "person" to include dogs. 
Quoting the Seventh Circuit, the court noted the numerous imponderables that would arise if it allowed a suit against a dog:
Was [the dog] served with process? Did he retain as his lawyer [the same attorney] who purports to represent all . . . defendants? Was [the dog] offered the right of self-representation ? What relief does [the plaintiff] seek from a dog -- [the dog's] awards, perhaps?
And my favorite: would it be necessary to ask how a reasonable dog would have acted in Draco's position?

Sometimes "the law is a ass" because it gets things woefully wrong. Here, I can't complain about the court's conclusion. Draco will get to keep his pension. And sure, this is an entertaining case. But c'mon, did it really require three full pages for the court to make light of the situation and explain what any five-year-old (human) would know -- that you can't sue a dog?

So my verdict in this case, if the court were on trial: ass.

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.