Thursday, July 27, 2017

Zarda v. Altitude Express: DOJ Takes on EEOC in the Battle of the Century

Contradicting the position of the EEOC, the Department of Justice filed an amicus (friend of the court) brief on July 26, 2017, arguing that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. The brief was filed in the case of Zarda v. Altitude Express, Inc., which is currently before the Second Circuit for a rehearing by the full court. Regardless of whether you agree with DOJ's ultimate conclusion, the brief strikes me as a mixed bag.

On the one hand, DOJ advances a strong argument that congressional failure to enact legislation explicitly prohibiting sexual orientation discrimination demonstrates that Title VII's prohibition against sex discrimination does not include sexual orientation discrimination. To be sure, congressional failure to enact proposed legislation may offer little guidance about how existing legislation should be interpreted. Not so here. The brief cites over 60 bills that have been introduced, and rejected, since 1974 to prohibit sexual orientation discrimination. Particularly significant is Congress's failure in 1991 to amend Title VII to explicitly cover sexual orientation, despite universal rulings by courts and the EEOC rejecting sexual orientation claims under Title VII. At that same time, however, Congress enacted the Civil Rights Act of 1991, which superseded numerous judicial interpretations of Title VII that Congress deemed to be too narrow. Congressional failure to do the same for claims of sexual orientation discrimination is therefore telling.

On the other hand, DOJ's attempt to undermine the analogy between same-sex and interracial relationships falls flat. Courts have widely recognized that discrimination against an employee because he is married to, or otherwise associated with, an individual of another race violates Title VII because it treats the employee differently because of his own race. For example, firing a white man for being married to a black woman is race discrimination because a black man married to a black woman would not have been fired. By analogy, firing a man because he is married to a man is sex discrimination because a woman married to a man would not have been fired. DOJ tries to distinguish discrimination based on interracial associations by contending that the employer "deems the employee's own race either inferior or superior to the partner's race.” This contention is off the mark because it doesn't matter, insofar as Title VII coverage is concerned, why an employer discriminates against an employee because of race. Moreover, an employer might not view some races as superior or inferior to others, and instead might just object to interracial relationships. In such a case, discrimination based on an interracial relationship is no less race-based than when an employer views races as hierarchical. So too, discrimination based on a same-sex relationship is sex-based.

Of course, there's a lot more to DOJ's brief, but I consider these to be the opposing sides' best arguments, so 'nuff said.

As noted, DOJ's Zarda amicus brief takes the exact opposite position that the EEOC took in its own amicus brief filed on June 23, 2017. Putting the EEOC in its place, DOJ explains:
Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers . . . and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. 
It's not all that unusual for DOJ to adopt a position contrary to the EEOC's, particularly during a Republican administration, so DOJ's position shouldn't have surprised anyone. I still find it odd, though, that two branches of the U.S. government can simultaneously take contrary positions, particularly since DOJ officially represents the "United States." Alas, because the EEOC must obtain DOJ authorization to file a brief with the Supreme Court, the public battle between the EEOC and DOJ is limited to the lower courts.

Update (9/27/17): For my take on the oral arguments, see this new post.

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, July 18, 2017

Barbuto v. Advantage Sales & Marketing: Is it unlawful to fire an employee for using medical marijuana?

In Barbuto v. Advantage Sales & Marketing, No. SJC-12226 (July 17, 2017), the Supreme Court of Massachusetts held that an employer may be required by Massachusetts state law to accommodate an employee who uses marijuana to treat a disabling medical condition. The court rejected the employer's contention that accommodating marijuana use is per se unreasonable because federal law continues to prohibit marijuana possession even when legally prescribed by a physician. 

Barbuto is notable for being perhaps the first major decision in which a court has held that users of medical marijuana may enjoy some protections in the employment arena. The court explained:

Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under [Massachusetts law] not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.
Significantly, the court pointed out that, under Massachusetts law, a user of medical marijuana is not merely protected against arrest, prosecution, or civil penalty for medical use of marijuana, but also may not be "denied any right or privilege." As a result, an exception to an employer's drug policy could not possibly be a facially unreasonable accommodation, or else an employee would be deprived of the "right or privilege" of employment solely because of the use of medical marijuana.

By contrast, as the Massachusetts Supreme Court noted, the California Supreme Court rejected a disability discrimination claim under California law by an employee who was terminated for use of medical marijuana. Unlike the Massachusetts law authorizing medical marijuana, the California law does not protect users of medical marijuana against the denial of "any right or privilege." Thus, in Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), the California Supreme Court held that California law merely protects medical marijuana users against criminal penalties and does not require employers to accommodate marijuana use by their employees.

Although tolerating the use of medical marijuana is a facially reasonable accommodation under Massachusetts law, such an accommodation is not required if, as with any other reasonable accommodation, the employer can show that it would pose an undue hardship, As examples, the Massachusetts Supreme Court noted that accommodating medical marijuana might create an undue hardship if it impairs an employee's work performance or poses an "unacceptably significant" public safety risk or if the accommodation would violate a statutory obligation under federal law.

Because federal law has not made an exception for medical marijuana, users of medical marijuana are limited to seeking protection under state or local laws. The Americans with Disabilities Act does not prohibit an employer from basing an action on an employee's use of illegal drugs as provided by 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.

Sunday, July 16, 2017

Guerrero v. California Department of Corrections & Rehabilitation: Individualized Assessment of the Use of an Invalid Social Security Number

The day before my recent post on Hardie v. NCAA, the Ninth Circuit issued Guerrero v. California Department of Corrections & Rehabilitation (July 12, 2017), upholding the district court's verdict for the plaintiff in a challenge to the defendant's policy of rejecting some job applicants for corrections officer positions who had previously used another Social Security number. The district court and appeals court analyzed the legality of the challenged SSN policy in the same way they would have analyzed a criminal record policy, concluding that the defendant failed to established that it engaged in individualized assessments of applicants who had previously used invalid SSNs.

I’ve discussed District Court Judge William Alsup's opinion in a prior post, and faulted it for incorrectly looking at the defendant's application of the challenged policy to Guerrero, rather than looking at the application of the policy more generally:

[T]o establish business necessity with respect to a criminal records policy, an employer is generally required to make an individualized assessment in each case as to whether a particular applicant's criminal record disqualifies him. If an employer's process of performing individual assessments is sufficiently robust, then it should satisfy the business necessity defense, regardless of whether each and every person excluded under the policy was actually unfit. As the district court noted, an employer is not required to establish a "perfect positive correlation between the selection criteria and the important elements of work." Rather, a screen need only be "significantly correlated" with or predictive of important elements of the job.
Nonetheless, Alsup framed the question as whether the defendant "individually assessed Guerrero's application in practice," and in the court's view, there was no evidence that the defendant "paid anything more than lip service" to the plaintiff's individual circumstances.

On appeal, the Ninth Circuit gave the district court the benefit of the doubt. In upholding the district court's decision, the Ninth Circuit noted that Judge Alsup had found that the defendant had not actually engaged in an individualized assessment of Guerrero and at least three other Latino candidates. This number may seem small, but there were only nine candidates in total, all of whom were Latino, who were rejected, at least in part, for having previously used an invalid Social Security number. Moreover, the district court had faulted the defendant for having apparently misunderstood Guerrero's explanation as to why he had previously used an invalid Social Security number even after he had obtained an Individual Taxpayer Identification Number:

[The defendant] should have known (but did not) that an ITIN and an SSN are completely separate and do not substitute one for the other. Guerrero applied for the ITIN so he could pay his taxes, precisely because he did not have a valid SSN. The ITIN, however, could never have been a substitute for an SSN, valid or invalid.
These facts, as determined by Alsup, suggested that the defendant generally failed to engage in individualized assessments and that the lapse in Guerrero's case was not an isolated instance. Moreover, if the defendant did not understand the reasons why an individual may have previously used a different Social Security number, it could not reasonably evaluate whether an individual should be disqualified under circumstances similar to Guerrero's.

In the end, then, although Alsup may have framed the issue too narrowly by focusing on how the defendant treated the plaintiff, his fact findings were sufficient to support a broader conclusion that the defendant’s practice of performing individualized assessments was inadequate in general, and not merely in Guerrero's case.

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, July 13, 2017

Hardie v. NCAA: Using Individualized Assessments to Screen Applicants with Criminal Records

The Ninth Circuit's decision in Hardie v. NCAA, No. 15-55576 (June 27, 2017), is an unusual case that looks at a criminal records screening policy in the context of a public accommodation, rather than in the more common employment context. This peculiarity highlights an issue that is not typically addressed, namely whether policies that make individualized assessments of the fitness of individuals with felony convictions are less discriminatory than blanket policies that exclude all individuals with criminal records. Individualized assessments are touted by the EEOC and civil rights advocates for their fundamental fairness, but little attention has been paid to whether they actually reduce discrimination.

Pursuant to the NCAA's Participant Approval Policy, anyone with a felony conviction is prohibited from coaching at an NCAA-certified nonscholastic youth athletic tournament. NCAA certification matters so much because coaches and recruiters from Division I schools are only permitted to attend tournaments that have NCAA certification. Dominic Hardie alleged that the Participant Approval Policy denied him a public accommodation in violation of Title II of the Civil Rights Act, which provides that "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination on the ground of race, color, religion, or national origin." Hardie did not allege that the felony conviction policy constituted intentional discrimination (disparate treatment) in violation of the statute. Rather, he alleged that the policy constituted a disparate impact violation because it disproportionately excludes African Americans, who are more likely to have felony convictions than are whites, and the defendant could have instead adopted an alternative with less of a discriminatory impact.

The parties agreed that, assuming disparate impact claims are covered by Title II, the Supreme Court's decision in Wards Cove Packing Co. v. Atonio provides the governing framework: 1) the plaintiff must establish a prima facie case by showing that the challenged policy has a "significantly disparate impact" on a protected group, such as African Americans; 2) if the plaintiff establishes a prima facie case, the defendant must provide evidence that the practice serves legitimate goals in a significant way; and 3) even if the defendant has provided sufficient justification for the practice, the plaintiff can prevail by establishing that there is an alternative practice that is equally effective in advancing the defendant's interests while having less of a discriminatory impact on the protected group.

The parties did not seriously dispute the first two steps of this analysis. Hardie provided evidence that the criminal record policy excluded African Americans at a disproportionate rate, and the defendant did not contest the showing of disparate impact. The NCAA, in turn, contended that the policy serves its interest in "protecting the safety of the children who participate in the tournaments and the integrity of the NCAA's recruiting process and college athletics more generally." Hardie, "for the most part," accepted this rationale as legitimate, leaving only the question of whether there was a less discriminatory and equally effective alternative.

Hardie proposed two alternatives to the NCAA's felony conviction policy: a more limited policy of excluding only applicants with convictions for violent felonies or the use of individualized assessments to calculate the actual risks posed by applicants.

Because Hardie's conviction was for a nonviolent felony (drug possession), he would not have been excluded under the more limited policy he proposed. Rejecting this alternative, however, the court concluded that Hardie failed to show that it would be equally effective in promoting the NCAA's interests. Even if the increased risk of not excluding all felons was small, Hardie did not provide evidence that it was "immaterial to protecting the safety of young athletes." Nor was there evidence addressing the increased risk that the integrity of college athletics would be compromised by nonviolent crimes such as sports bribery.

In support of individual assessments as an alternative, Hardie's human resources expert, Lester Rosen, stated that individualized assessments may take into account factors such as "any mitigating circumstance about the offense, the age of the offense, . . . past employment, educational achievements since the offense, and other signs of rehabilitation." Hardie also pointed to the EEOC's recommendation that employers adopt individualized assessments to avoid liability when considering criminal records in the employment context.

The court rejected this second proposed alternative because Hardie had failed to provide evidence that the practice of making individualized assessments would be less discriminatory than the blanket policy. "Neither the Rosen report nor the EEOC Guidelines predict the racial effect of individualized assessments on the NCAA's applicant pool in particular. Without more, we cannot say that Hardie has met his burden to show that individualized assessments would be a less discriminatory alternative to the current Participant Approval Policy."

As the Hardie decision demonstrates, the question is not whether an alternative is fairer or excludes fewer individuals, but whether the difference between the rate at which African Americans are excluded and the rate at which whites are excluded is less under the alternative. For example, if a blanket conviction policy excludes 40 out of 100 African Americans and 40 out of 200 whites, then African Americans are excluded at double the rate of whites (40% vs. 20%). If an individualized assessment halves the exclusion rate for both groups, resulting in the exclusion of 20 out of 100 African Americans and 20 out of 200 whites, then blacks are still excluded at double the rate of whites (20% vs. 10%), so the latter policy is equally discriminatory. In order to be less discriminatory, the use of individualized assessments would have to disproportionately benefit African Americans

You might wonder, then, what basis does the EEOC have for recommending that employers use individualized assessments? The reason has to do with the difference between how disparate impact claims are analyzed under Title II and Title VII. Under the Wards Cove framework, which applies in Title II cases, a defendant can rebut a prima facie case by merely presenting evidence that a "challenged practice serves, in a significant way, the legitimate . . . goals of the [defendant]." By contrast, the EEOC states, in its Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, that a practice challenged under Title VII must "bear a demonstrable relationship to successful performance of the jobs for which it was used" and "measure[] the person for the job and not the person in the abstract." The employer also must show that the policy is "necessary to safe and efficient job performance."

As should be obvious, the standards under Wards Cove and under Title VII are markedly different. A policy that advances legitimate goals in a significant way may not be "necessary to safe and efficient job performance" or measure a particular person's fitness for a particular job. The Wards Cove standard provides an entity with much more leeway in adopting a practice that has a disparate impact than does Title VII's business necessity standard. Moreover, under Title VII, the employer has the burden of proof in establishing that the challenged practice is an adequate predictor of an applicant's fitness. Under Title II, the plaintiff always bears the burden of proof, so the defendant is more likely to prevail in a Title II case than in a Title VII case when there is little evidence about the predictive value of a selection practice.

What I find most interesting about Hardie is that it illustrates a peculiarity about disparate impact analysis: a stringent requirement that a practice be justified by business necessity does not necessarily reduce discrimination and may actually have the opposite effect of promoting discrimination. Under EEO law, it is not unlawful to treat everyone badly in the same way. For example, if an employer doesn't give anyone vacation days, then that practice would not be discriminatory. On the other hand, if an employer gives African Americans 5 vacation days a year but whites 10 vacation days a year, everyone would be better off than under a no-vacation policy, but the practice would discriminate against African Americans.

A similar effect might arise from adoption of individualized assessments. As noted, there is no evidence that use of individualized assessments is less discriminatory than a blanket conviction policy. Indeed, there is good reason to suspect that the former actually might be more discriminatory since individualized assessments require subjective decisionmaking, which can be prone to stereotyping and unconscious bias. (Check out this episode of the podcast "Invisibilia.")
As a result, if a business necessity standard requires that an employer adopt individualized assessments, rather than a blanket conviction policy like the court upheld in Hardie, that requirement might very well result in more of a discriminatory impact.

But -- and this is a big but -- even if individualized assessments do not decrease the disparity between how blacks and whites are treated -- and potentially even increase the disparity -- there may be good reasons to prefer them to blanket policies. For one thing, they are likely to result in fewer individuals with felony convictions, both blacks and whites, being arbitrarily excluded. So even if white applicants with felony convictions benefit more from individualized assessments than do black applicants, a black applicant with a felony conviction is obviously better offer if an employer performs individualized assessments than if it excludes him out of hand. Moreover, because the use of individualized assessments benefits all applicants with criminal records, the practice can be seen as benefiting African Americans as a class more than it does whites as a class since a higher proportion of African Americans have a criminal record.

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, July 11, 2017

EEOC v. North Memorial Health Care: Is the refusal to hire someone because she requested a religious accommodation unlawful retaliation? (revised 7/12/17)

In EEOC v. North Memorial Health Care, No. 15-3675(DSD/KMM) (D. Minn. July 6, 2017), District Court Judge David Doty ruled that the defendant did not engage in unlawful retaliation against Emily Sure-Ondara by rescinding her conditional job offer after she asked that she not be required to work Friday evenings, because of her religious beliefs. Judge Doty reasoned that, by requesting a religious accommodation, Sure-Ondara had not "opposed any practice made an unlawful employment practice by [Title VII]" or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Sure-Ondara therefore had not engaged in conduct protected by Title VII's retaliation provision, and the defendant was entitled to summary judgment on the EEOC's retaliation claim on behalf of Sure-Ondara.

Although I find the result unfortunate, I largely agree with the court's analysis. In EEOC v. Abercrombie & Fitch Stores, the Supreme Court held that a plaintiff can establish intentional religious discrimination if an employer's refusal to hire the plaintiff was motivated by the plaintiff's need for a religious accommodation. In this case, however, the EEOC rejected Sure-Ondara's religious accommodation claim and construed the defendant's rescission of the job offer as raising solely a retaliation claim. (Perhaps the agency concluded that providing an accommodation would have created an undue hardship.) But from the employer's perspective, a request for an accommodation merely notifies it of a potential legal obligation, and does not accuse it of failing to meet that obligation.  Therefore, as the court concluded, a request for religious accommodation does not appear to be either opposition to discrimination or participation in Title VII proceedings protected by section 704(a) of Title VII.

On the other hand, I think someone who is subjected to retaliation for requesting a religious accommodation should be able to bring a claim under section 703(a) of Title VII, which is the provision that gives employees the right to religious accommodation. In Gómez-Pérez v. Potter, the Supreme Court held that a federal employee's right not to be subjected to age discrimination includes the right not be to be subjected to retaliation for complaining about age discrimination. The federal sector provision of the Age Discrimination in Employment Act prohibits age discrimination against federal employees but not does not explicitly prohibit retaliation. Nonetheless, the Court held that retaliation for complaining about age discrimination constitutes a form of age discrimination. By analogy, rather than trying to shoehorn a request for accommodation into Title VII's retaliation provision, better to argue that retaliation for requesting a religious accommodation is a violation of the right to reasonable accommodation.

So if Sure-Ondara was subjected to retaliation for requesting a religious accommodation, her claim would be more likely covered under Title VII's prohibition against religious discrimination, including denial of accommodation, pursuant to 703(a), than under Title VII's explicit prohibition against retaliation pursuant to 704(a).

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, July 10, 2017

EEOC v. Consol Energy: Accommodating Religious Beliefs About the Antichrist and the Mark of the Beast

In EEOC v. Consol Energy, No. 16-1230 (4th Cir. June 12, 2017), the court upheld a jury verdict that the defendant violated Title VII of the Civil Rights Act of 1964 by failing to accommodate Beverly Butcher's religious belief that using a hand scanner would brand him with the "Mark of the Beast" and allow him to to be manipulated by the Antichrist. As explained by the court, Title VII protects all sincerely held religious beliefs, and it is "not Consol's place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher's religious understandings."

Consol did not dispute that Butcher sincerely held a religious belief that conflicted with his use of the hand scanner. Instead, Consol fruitlessly tried to argue that Butcher's religious beliefs were mistaken. Consol contended that scripture only associates the Mark of the Beast with the right hand, so requiring Butcher to scan his left hand did not result in a religious conflict. Furthermore, the defendant provided a letter from the manufacturer that use of the hand scanner cannot place or detect a mark on a user's body. Finally, Consol noted that Butcher's pastor did not share Butcher's belief that the hand scanner is related to the Mark of the Beast.

These contentions were irrelevant, however, because they did not go to whether Butcher actually had a sincere religious objection to using the hand scanner but instead to whether he was correct in having such an objection. Whether a belief is religious depends strictly on the person holding that belief. As long as Butcher's objection to the use of the hand scanner was religious in his own scheme of things, that is all that mattered. "[T]here was ample evidence from which a jury could conclude that Butcher sincerely believed 'participation in this system' – with or without a tangible mark – 'was a showing of allegiance to the Antichrist,' inconsistent with his deepest religious convictions."

The evidence further showed that Consol could have allowed Butcher to bypass the hand scanner by entering his identification number into a keypad. The defendant was already providing this accommodation to two other employees who needed it for non-religious reasons, and granting Butcher the same accommodation would not have imposed further costs on the company. Based on this evidence, there was enough for a reasonable jury to have ruled in Butcher's favor.

As illustrated in this case, Title VII's coverage of religious beliefs does not play favorites. All beliefs are entitled to the same protections. It's true, of course, that beliefs must actually be religious, but whether a belief is religious is evaluated from the perspective of the individual claiming protection. 

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, July 7, 2017

Punt v. Kelly Services: When is a temporary worker with a disability entitled to leave as a reasonable accommodation?

In Punt v. Kelly Services, No. 16-1026 (10th Cir. July 6, 2017), the Tenth Circuit held that Kristin Punt was not unlawfully denied a reasonable accommodation when her temporary assignment as a receptionist with GE Control Solutions was terminated because she was taking too much time off as a result of her disability.

The court observed that, when Punt's assignment with GE was terminated after six weeks, she had never worked the full 40-hour work week; she had been absent from work on at least four full regular workdays, had arrived late three times, and had left early three times. Punt's assignment was terminated shortly after she notified Kelly Services, the temporary staffing firm that placed her with GE, that she would need to take a full week plus an additional unknown amount of time off for medical tests, appointments, and radiation treatments related to her breast cancer.

The Tenth Circuit concluded that Punt's request for leave was not a "plausibly reasonable accommodation": 
Under all of the circumstances of this case, and especially in light of Plaintiff's position as a temporary employee whose physical presence at the workplace was the most essential function of her job, we are persuaded the accommodation Plaintiff requested from GE was unreasonable as a matter of law.
I agree that Punt's status as a temporary worker is key. Although leave can be a reasonable accommodation, it seems that the question of whether the amount of leave requested is reasonable may turn on how long the person requesting leave will be working for the employer. For instance, if someone is selected for a four-week assignment and then requests that she be granted leave for three of those four weeks, it seems obvious that the request is unreasonable.

I also agree with the court's suggestion that the law presumably should not require an employer to accommodate a temporary employee by hiring a "supertemporary" employee. If a regular employee needs disability leave, the employer may have an obligation to accommodate that employee by providing leave, but it may not have an obligation to accommodate a temporary employee who needs disability leave when filling in for a regular employee who is on disability leave. Otherwise, the obligation to provide leave might never end. 

On the other hand, even if Punt's status as a temporary employee is relevant, I don't understand why the court thought it significant that Punt's physical presence in the workplace was the most essential function of her job as a receptionist. If a worker requests leave, how is the reasonableness of the request affected by whether the job must be performed in the workplace? In either case, the worker won't be doing the job for the duration of the leave, and that is what appears to be relevant in determining whether leave can be considered a plausibly reasonable accommodation in a particular case.

Moreover, I think the court mistakenly suggests that all temporary workers are in the same boat. The court concluded that, given the temporary nature of Punt's assignment, the amount of leave that Punt had already taken, the additional amount she requested, and the uncertainty of how much more leave she would need, her request was per se unreasonable. Unfortunately, the court gave no consideration to how long Punt's temporary assignment was expected to last. (And the expected length of the assignment is not clear from the decision). Some temporary assignments are open-ended, and some may be repeatedly renewed. If Punt's temporary assignment was expected to be of a long duration, then her request for leave might have been no less reasonable than that of a regular employee.

In short, while temporary status may be relevant in evaluating whether leave might be a reasonable accommodation in a particular set of circumstances, the Tenth Circuit's rejection of Punt's particular claim rests on shaky ground.

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, July 5, 2017

Pidgeon v. Turner: Is it constitutional for a state to deny same-sex couples benefits as long as it licenses and recognizes same-sex marriages?

On June 30, 2017, the Texas Supreme Court issued a troubling decision in Pidgeon v. Turner, refusing to acknowledge obvious constitutional rights of married same-sex couples. Bizarrely, the court concluded that, although states and local governments are required by the U.S. Constitution to recognize and license same-sex marriages, it does not follow that they are also required to provide same-sex couples with the same benefits that they provide to opposite-sex couples. Thus, in Pidgeon, the court left open the possibility that the City of Houston may not be required to provide the same spousal benefits to married gay and lesbian employees that it provides to married heterosexual employees.

In recognizing a fundamental right under the U.S. Constitution to same-sex marriage, however, the U.S. Supreme Court noted in Obergefell v. Hodges that marriage is associated with a wide range of "governmental rights, benefits, and responsibilities," including "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules."

Arguing for recognition of same-sex marriage, LGBT advocates refused to settle for civil unions, which can provide all of the governmental rights and benefits associated with marriage, though under another name. When it comes to marriage, a rose by any other name does not smell as sweet. As recognized in Obergefell, relegating same-sex couples to civil unions denies them the dignity and autonomy that are granted to opposite-sex couples. 

In Pidgeon, the Texas Supreme Court has turned the logic of Obergefell on its head. If gay men and lesbians cannot be denied the intangible benefits that flow from the term "marriage," then surely they cannot be denied the tangible benefits that flow from the governmental recognition of a marriage. 

Thus, on June 26, 2017, in Pavan v. Smith, the U.S. Supreme Court took the unusual step of summarily reversing a lower court decision. The Arkansas Supreme Court had upheld a law that denied the female spouse of a mother who gives birth the same right to have her name entered on the child's birth certificate as a male spouse of a mother who gives birth. As explained by the U.S. Supreme Court, this distinction is unconstitutional because it "infringes Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.'" As Pavan and Obergefell make crystal clear, a state or city is free to decide the benefits that flow from marital status, but once it makes that decision, it may not differentiate between same-sex couples and opposite-sex couples.

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, July 3, 2017

EEOC Sues Strip Club for Allegedly Refusing to Hire Male Bartender

On June 29, 2017, the EEOC issued a press release announcing that it is suing Sammy's Gentlemen's Club, in Fort Walton Beach, Florida, for allegedly refusing to hire men to be bartenders.

Back in January, I wrote a post discussing a 20-year-old settlement of claims brought by male applicants against Hooters. That settlement resulted in Hooters agreeing to open some positions to men, but "Hooters Girls" have continued to be the restaurant's main draw.

It doesn't look like the EEOC is contending that a strip club is required to hire men to be strippers, but it still raises the question, Where do we draw the line?

If the EEOC thinks a strip club can't refuse to hire men to serve drinks, I find it hard to believe that the EEOC would think that it is ok for a restaurant to refuse to hire men to serve chicken wings.

So just imagine -- a world without breastaurants. Let's hope the Trump Administration's attack on our civil rights has some limits.

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.