Wednesday, September 27, 2017

The Zarda Oral Argument: Politics, Bathrooms, and Hair Length

DOJ and the EEOC are play-fighting, how adorable!
On September 26, 2017, the Second Circuit heard oral argument in the en banc rehearing in Zarda v. Altitude Express, in which the full court is considering the question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The advocates (all six of them) were well prepared, and they addressed a number of issues that have not been raised previously. This post looks briefly at three of these issues: 1) the EEOC's and DOJ's conflicting interpretation of Title VII; 2) sex-segregated bathrooms; and 3) and sex-based grooming standards.

Politics: In this case, the EEOC and DOJ are on opposite sides of the fence when it comes to whether Title VII prohibits sexual orientation discrimination. Some members of the court pressed DOJ's representative regarding how DOJ came to adopt its position, and he respectfully begged off. To my mind, there is little doubt that the election of a Republican President was a key factor in DOJ's decision to reject the EEOC's position. On the other hand, the EEOC's decision to interpret Title VII as protecting sexual orientation discrimination may have been no less political. At oral argument, the EEOC's representative offered little explanation for why the EEOC took over 50 years before finally concluding that sexual orientation discrimination is covered by Title VII. The EEOC, like DOJ, was probably influenced by the political winds, and it was finally safe in 2015 for the EEOC to adopt an interpretation of Title VII that had been staring it in the face for decades.

None of this, however, is to fault the EEOC or DOJ. The question of whether Title VII covers sexual orientation discrimination is not an easy one, and there are reasonable arguments on both sides. In the absence of an obviously correct legal interpretation, political considerations are fair game.

Notably, DOJ has also taken the opposite position as the NLRB in a case currently before the Supreme Court involving agreements to resolve disputes through individual arbitration.

Bathrooms: In arguing that the EEOC's literal application of a but-for test is mistaken, the DOJ and  the court-appointed amicus pointed to the example of bathrooms. The EEOC has contended that sexual orientation discrimination is sex discrimination because but for the victim's sex, he or she would not have been treated adversely. In particular, if a man who is sexually attracted to men is treated worse than a woman who is sexually attracted to men, then but for his sex, he would have been treated better. DOJ's representative and the court-appointed amicus noted that sex-segregated bathrooms violate Title VII under the EEOC's but-for test, so if sex-segregated bathrooms are lawful, then the but-for test must be overinclusive, meaning that some actions that would not have been taken but for the victim's sex do not violate Title VII.

In response, the EEOC's representative distinguished bathrooms as involving a trivial matter while sexual orientation involves a fundamental right, namely the right to marry and engage in intimate conduct with the person to whom you are sexually attracted. Here, I think the EEOC's representative has improperly combined two different issues: the kinds of employment actions covered by Title VII and the subset of a protected class that is protected against discrimination. As the EEOC's representative noted, bathroom access may be relatively trivial, and therefore, discriminatory bathroom access may not be covered by Title VII since it might not constitute an adverse action. If so, then requiring gay men to use different bathrooms from heterosexual men would not violate Title VII, regardless of whether sexual orientation discrimination implicates a fundamental right. Moreover, contrary to what the EEOC has contended in the past, it would not violate Title VII to require a transgender woman to use the men's room.

If single-sex bathrooms are lawful, then what gives? The answer, I think, is that men and women are not similarly situated with respect to bathroom access. Mainstream American society continues to believe that bathroom usage implicates privacy concerns that require sex-segregated bathrooms. Thus, barring women from using the men's room does not discriminate against men because men and women have different genitals. Similarly, in Bauer v. Lynch -- although I disagree with the decision -- the court concluded that treating men and women differently with respect to the number of push-ups required to pass a physical fitness test did not discriminate based on sex because men and women are not similarly situated with respect to upper body strength. By contrast, when it comes to a typical employment decision, like hiring or promotion, there is nothing that distinguishes men from women in general or that distinguishes gay men from heterosexual women or lesbians from heterosexual men that would justify treating them differently.

Grooming requirements: As noted by some members of the court, there is case law allowing employers to adopt sex-based grooming standards, such as allowing women, but not men, to have long hair. This is where the issue of fundamental rights is relevant. In a line of cases sometimes referred to as "sex plus," courts have held that it is unlawful to discriminate against someone based on sex plus another characteristic. For example, in Phillips v. Martin Marietta, 400 U.S. 542 (1971), the Supreme Court held that Title VII prohibits an employer from treating men with preschool-age children better than women with preschool-age children. If an employer adopts sex-based grooming standards, then it is engaging in a form of sex-plus discrimination because it is treating an individual adversely not merely, for instance, because he is a man but because he is a man with long hair. In upholding such a requirement, some courts have reasoned that sex-plus discrimination only covers discrimination based on sex in combination with a fundamental right, such as childrearing. In my view, the sex-plus cases are flawed. If an employer fires a woman who engages in misconduct but not a man who engages in similar misconduct, we don't ask whether engaging in misconduct is a fundamental right, so it makes no sense to ask that question when sex is combined with a factor like hair length.

As the EEOC's representative pointed out, sexual intimacy has been recognized as a fundamental right by the Supreme Court, so sexual orientation discrimination is distinguishable from the cases addressing sex-based grooming standards. The same may not be true of discrimination based on transgender status, however. Some courts, along with the EEOC, have concluded that discrimination based on transgender status constitutes sex discrimination because it is grounded in sex stereotypes. But if dressing a certain way is not a fundamental right, then under the sex-plus theory, treating a man who dresses femininely differently from a woman who dresses femininely would not be unlawful.

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, September 26, 2017

Severson v. Heartland Woodcraft: Seventh Circuit holds that multimonth leave of absence is outside the scope of the ADA (Updated 9/28/17)

In Severson v. Heartland Woodcraft, Inc., No. 15-3754 (Sept. 20, 2017), the Seventh Circuit held that a multimonth leave of absence lies beyond the scope of the Americans with Disabilities Act. The court reasoned that a "reasonable accommodation" is limited to a measure that enables an employee to work; an individual who needs extended medical leave cannot work, and therefore, he is not protected by the ADA.

In this case, Raymond Severson had exhausted his entitlement to 12 weeks of leave under the Family and Medical Leave Act, and he requested additional leave of two to three months while he recovered from back surgery. Rejecting Severson's denial of accommodation claim, the court explained: "[A] long-term leave of absence cannot be a reasonable accommodation . . . [because it] does not give a disabled individual the means to work; it excuses his not working."

Although the court broadly rejected any reasonable accommodation claim challenging the denial of long-term leave, the court seemed to be particularly troubled by the EEOC's failure to impose any constraints on the length of the leave requested. In the EEOC's view, long-term medical leave qualifies as a reasonable accommodation if it is (1) of a definite and limited duration; (2) requested in advance; and (3) likely to enable the employee to do his job when he returns. In rejecting this view, the court stated that the EEOC mistakenly equates a "reasonable accommodation" with an "effective accommodation," which transforms the ADA into a "medical leave statute -- in effect, an open-ended extension of the FMLA."

To my mind, the Seventh Circuit's position is a harsh and narrow interpretation of the ADA. And indeed, it appears to be an outlier, judging by the many cases cited by the EEOC from other circuits.  But the EEOC's position may lie at the other extreme in failing to provide any limitation on the length of leave that can potentially qualify as a "reasonable" accommodation. This is not to suggest that the two- or three-month extension that Severson had requested was unreasonable, but as a matter of common sense, I would think that at some point the length of medical leave requested by an employee may be so long as to be inherently unreasonable. 

Update (9/28/17): In reading commentary on the Severson decision, I was surprised to learn that the Tenth Circuit, in a decision by then-Judge Neil Gorsuch no less, reached the same conclusion about an employee's right to long-term leave as a reasonable accommodation. In Hwang v. Kansas State University, the court concluded that an employer is not required to provide employees with more than six months of sick leave as a reasonable accommodation. The court explained:

. . . [R]easonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work. 
. . .
[I]t's difficult to conceive how an employee's absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang's is a terrible problem, one in no way of her own making, but it's a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work -- not to turn employers into safety net providers for those who cannot work.
Although Hwang is a Rehabilitation Act case, the same reasoning applies to the ADA, and in fact, the Tenth Circuit discusses at length the EEOC's ADA guidance.

Hwang is significant because it shows that Severson, even if it represents a minority view, may not be that much of an outlier. Oddly, the Seventh Circuit never cited Hwang in its Severson decision, nor did the EEOC cite Hwang in its amicus brief.

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, September 23, 2017

Edge v. City of Everett: The Attack on Bikini Baristas

Baring a bit too much anal cleft, methinks.
On September 11, 2017, in Edge v. City of Everett, a group of women filed a lawsuit challenging the constitutionality of two ordinances adopted by the City of Everett, Washington, targeting bikini espresso stands. In case you aren't familiar with these establishments, they're drive-through coffee stands at which customers are served by women dressed in bikinis. The lawsuit alleges, among other things, that the laws violate baristas' First Amendment right to freedom of expression and their Fourteenth Amendment right to equal protection. The equal protection claim rests on the contention that the ordinances discriminate against women based on their sex.

The first ordinance merely expands the existing lewd conduct ordinance to prohibit exposure of the "bottom one-half of the anal cleft" or "more than one-half of the part of the female breast located below the top of the areola."

More interesting is the second ordinance, which requires that employees of "quick-service facilities" wear clothing that covers the "upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of legs below the buttocks, pubic area, and genitals)." The city subsequently issued guidance further explaining that the ordinance requires that workers wear at least either shorts or a skirt, and a tank top.

The plaintiffs' First Amendment claim rests straightforwardly on the personal expression restricted by the ordinances, which not only require certain forms of clothing but also limit other forms of expression such as the display of tattoos.

On the other hand, while my expertise is admittedly with statutory EEO law, not the U.S. Constitution, the equal protection sex discrimination claim strikes me as a bit of a stretch. Unlike federal EEO law, such as Title VII of the Civil Rights Act of 1964, the U.S. Constitution only applies to intentional discrimination and does not apply to policies that were adopted for neutral reasons but that disproportionately exclude members of a particular group. Here, there seems to be little evidence of intentional discrimination against women, except possibly the fact that the ordinances seem to affect only women. The council apparently adopted the quick-service facilities ordinance to address the perceived "proliferation" in sex crimes associated with bikini barista stands, and even if the ordinance may be overkill, the council's decision to use a sledgehammer to kill a fly does not mean that it discriminated against bikini baristas because of their sex.

In addition to free expression and equal protection claims, the plaintiffs have thrown in a vagueness challenge. In this amusing article from Reason, the lead plaintiff explains that she's not sure what "anal cleft" means, but she thinks it refers to the part right above the butt crack. As for me, I'm pretty sure it means the butt crack itself, since the ordinance only prohibits exposure of the lower half of the anal cleft. This limitation ensures that plumbers and Homer Simpson will be off the hook. The plaintiffs' complaint also alleges that the lewdness ordinance requires women to cover up three-quarters of their breasts, but as I read the ordinance, women are allowed to leave almost three-quarters of their breasts uncovered -- only half of the breast below the top of the areola has to be covered. So maybe this confusion shows that the ordinance is indeed vague.

I'm not much of a coffee drinker, but I'm a big fan of free expression, so I'm rooting for the baristas.

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, September 22, 2017

Watford v. Jefferson County Public Schools: Is it unlawful to terminate or suspend arbitration proceedings if an employee files an EEOC charge?

In Watford v. Jefferson County Public Schools, No. 16-6183 (Sept. 1, 2017), the Sixth Circuit held that Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee for filing an EEOC charge by holding in abeyance an arbitration proceeding regarding the same claim raised in the EEOC charge. Previously, the Sixth Circuit had concluded in EEOC v. Sundance Rehabilitation Corp. that the termination of grievance proceedings constitutes an adverse action, so I think it's hard to quibble too much with the decision in Watford to extend that Sundance principle to encompass a delay in grievance or other ADR proceedings. By contrast, I think there's a lot of reason to question the underlying principle that terminating ADR proceedings upon the filing of an EEOC charge constitutes unlawful retaliation.

The question of whether delaying or terminating ADR proceedings constitutes an adverse action would seem to be controlled by the Supreme Court's decision in 14 Penn Plaza L.L.C. v. Pyett. The Court held in Pyett that union members are bound by a provision in a collective bargaining agreement that clearly and unmistakably requires them to arbitrate claims under federal EEO law. In contrast, the CBA provision at issue in Watford did not mandate that union members resolve their EEO claims through arbitration. Rather, it gave them a choice. In this regard, the Watford CBA treated union members more favorably than the kind of CBA provision endorsed in Pyett. If it is lawful to require union members to resolve EEO claims through arbitration, then it stands to reason that it must be lawful to allow them the choice about whether to resolve their claims through arbitration or judicial proceedings.

Still, even though I don't think a choice-of-forum provision can be viewed as retaliatory, I recognize the EEOC's concern that such a provision may discourage employees from filing charges. As the EEOC points out in its amicus brief in Watford:
It is true that employees may sometimes have to choose between arbitration and litigation, assuming that the arbitration fully addresses their statutory rights. That is a separate question, however, from whether they must choose between arbitration and filing an EEOC charge. The latter choice is impermissible. 
This dichotomy may seem confusing, but it reflects the dual purpose of EEOC proceedings, which are intended to vindicate not only an employee's individual claim for relief but also the larger public interest in eradicating employment discrimination. In its amicus brief, the EEOC explained: "In a small number of cases, the EEOC sues respondents in federal court, where it acts not as the representative of the charging party, but on behalf of the public at large." The EEOC has accordingly recognized that, while someone can waive his individual claim for relief through EEOC proceedings, he cannot waive the broader public interest in EEOC proceedings.

So where does that leave us?

There are two competing principles. Providing an employee the choice of forums to pursue an EEO claim is not an adverse action, yet an employee is not permitted to waive the right to file an EEOC charge.

In this case, it appears that the plaintiff's arbitration proceeding was held in abeyance after she filed an EEOC charge. As I've explained, I don't think this action can be regarded as retaliatory. At the same time, however, the plaintiff had the non-waivable right to file an EEOC charge, so there should have been some means for her to have filed a charge while still choosing to pursue her claim through arbitration. The filing of a charge under such circumstances would authorize the EEOC to consider the charge and obtain relief not for the employee herself but rather for the public at large. In most circumstances, a plaintiff would likely see little value in filing an EEOC charge that would not allow her to obtain individual relief, but since the right to file a charge cannot be waived, that right has to be preserved somehow.

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, September 21, 2017

White Glove Staffing v. Methodist Hospitals of Dallas: Confusing Coverage with Standing

Standing Bear
In White Glove Staffing v. Methodist Hospitals of Dallas, No. 3:17-CV-1158-K (N.D. Tex. Sept. 7, 2017), White Glove alleged that the defendant violated Title VII of the Civil Rights Act of 1964 by requiring it to replace Carolyn Clay, an African American woman who was assigned to work for the defendant as a prep cook, with a Hispanic worker. In rejecting White Glove's claim because White Glove was not in an employment relationship with the defendant, Judge Ed Kinkeade made the common error of confusing coverage with standing.

"Coverage" refers to the kind of practice that is prohibited by a law. The EEO laws only prohibit discrimination against "employees," so the requirement of an employment relationship is relevant to whether an alleged unlawful practice is covered by EEO law. In this case, the defendant allegedly discriminated against Clay by requiring that she be replaced because of her race. This action was covered by Title VII if Clay was the defendant's employee. Generally, a staffing firm worker is jointly employed by the staffing firm and the client to which he or she is assigned, but the existence of an employer-employee relationship must be evaluated on a case-by-case basis.

"Standing," on the the other hand, refers to whether an individual has the right to bring a lawsuit to seek a remedy for an allegedly discriminatory act. In the vast majority of cases, a plaintiff has alleged that he or she was personally subjected to discrimination, so standing is not in dispute. In rare cases, such as here, a plaintiff has alleged that he or she has standing to seek a remedy where a third party has been subjected to discrimination. Under Title VII, any "person aggrieved" by an alleged statutory violation has the right to bring a lawsuit.

In order for White Glove to pursue a Title VII claim, it must establish both coverage and standing. Coverage, as noted, requires that Clay have been the defendant's employee. Standing is more complicated, but it is not precluded merely because White Glove was not the defendant's employee. In Thompson v. North American Stainless, the Supreme Court rejected the contention that standing is limited to plaintiffs who were personally subjected to discrimination. Instead, the term "person aggrieved" allows a lawsuit by "any plaintiff with an interest 'arguably [sought] to be protected by the statutes.'"

Of course, even if, as I contend, Judge Kinkeade, has confused coverage and standing, it does not necessarily follow that White Glove has standing to bring a lawsuit alleging that it was aggrieved by discrimination against Clay. A plaintiff might find it easier to establish third-party standing if he is an employee. Indeed, in Thompson, the Court noted that Eric Thompson's former status as an employee weighed in favor of third-party standing where he was allegedly fired to retaliate against his girlfriend because she had alleged sex discrimination. But after Thompson, other courts have recognized third-party standing even in the absence of an employment relationship between the plaintiff and the defendant, such as where a contractor was harmed by retaliation against an employee. During oral arguments in Thompson, some Justices raised absurd examples of plaintiffs claiming to be aggrieved, such as a barber alleging that he was harmed by the unlawful termination of a client who could no longer afford to get as many haircuts. The injury alleged by White Glove -- loss of revenue from the defendant's alleged refusal to accept assignments by non-Hispanic workers -- by contrast, seems to be much more closely tied to the central purpose of Title VII.

And so while not a slam dunk, White Glove's Title VII suit shouldn't be rejected solely because of the absence of an employment relationship with the defendant.

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.

HIcks v. City of Tuscaloosa: Employers May Be Required to Accommodate Breastfeeding

In Hicks v. City of Tuscaloosa, No. 16-13003 (Sept. 7, 2017), the Eleventh Circuit upheld a jury verdict that Stephanie Hicks, a narcotics officer, was constructively discharged when she was denied "alternative duty" as an accommodation while she was breastfeeding. Notably, this decision is the first to extend the Supreme Court's decision in Young v. UPS to breastfeeding.

Under Young, an employee may be able to establish intentional pregnancy discrimination where an employer provides an accommodation to non-pregnant employees but denies the same accommodation to pregnant employees who are similar in their ability or inability to work. In Hicks, the Eleventh Circuit held that discrimination based on breastfeeding constitutes a form of pregnancy discrimination since breastfeeding is a pregnancy-related "medical condition." Thus, denying an accommodation to a breastfeeding employee that is granted to a non-pregnant employee may constitute unlawful pregnancy discrimination.

Here, although it's hard to disagree with the Eleventh Circuit's broad holding applying Young to breastfeeding, I think the court's application of that rule in this particular case leaves much to be desired. In particular, under Young, an employer does not necessarily violate Title VII by denying an accommodation to pregnant employees that it provides to non-pregnant employees. Rather, the question is whether the plaintiff has provided sufficient evidence that 
the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather -- when considered along with the burden imposed -- give rise to an inference of intentional discrimination.
In upholding the jury verdict, the Eleventh Circuit failed to examine whether the evidence was sufficient to establish an inference of intentional discrimination. Significantly, the fact that an employer grants some non-pregnant workers a particular accommodation does not necessarily mean that pregnant workers are denied the accommodation because of pregnancy. It may instead merely be the case that some non-pregnant workers are being treated better for reasons unrelated to pregnancy. As the Eleventh Circuit stressed in Hicks, pregnant workers do not have the right to better treatment because of their pregnancy. Unfortunately, however, the court failed to look at whether the evidence was sufficient to show that pregnant (or breastfeeding) workers were singled out for worse treatment, and were not merely denied a special accommodation that the employer provided to a narrow subset of non-pregnant workers.

Finally, even if there was sufficient evidence that the denial of alternative duty to Hicks constituted intentional pregnancy discrimination, it is not at all clear that the denial was sufficient to constitute a constructive discharge. The city pointed out that the Police Chief offered to accommodate Hicks by "assigning her to a safe beat with access to lactation rooms, priority in receiving breaks, and a tailored vest." The court notes that the jury concluded that these conditions were so intolerable that a reasonable person would be forced to resign. But not every adverse action constitutes a constructive discharge. Even if Hicks was denied an accommodation because of her pregnancy, such a denial would not necessarily mean that she was constructively discharged. Considering what the City apparently offered Hicks in lieu of alternative duty, the reasonableness of her resignation is not clear on its face, and so the court should have provided some justification for affirming the jury's constructive discharge finding.

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.