Friday, October 27, 2017

Masterpiece Cakeshop v. Colo. Civil Rts. Comm.: Is making a wedding cake "speech" protected by the First Amendment?

Dale Carpenter has this post on the Volokh Conspiracy blog discussing an amicus brief he and Eugene Volokh have filed in the Masterpiece Cakeshop Supreme Court case in which a baker, Jack Phillips, refused to sell a wedding cake to a gay male couple. I had been under the mistaken impression that Phillips had refused to sell the wedding cake because he had been unwilling to bake a custom cake that endorses same-sex marriage. But as is made clear in the post, Phillips flatly refused to sell a wedding cake for a same-sex marriage. Period. This is significant because, as explained by Carpenter, the First Amendment's protection of "speech" must have limits, and cake-making has not traditionally been recognized as an expressive medium. If every expressive act were protected, then First Amendment protections would have no bounds.

In my view, this brief strikes the right balance. It recognizes that even businesses have First Amendment protections against compelled speech. Thus, if Phillips had been asked to customize a cake with a pro-gay message that he objected to, he would have a stronger claim. So too would a photographer or a singer who refused to participate in a same-sex wedding because photography and singing, unlike cake-making, are inherently expressive. But merely making a cake is not expressive, so it is not protected speech under the First Amendment.

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, October 26, 2017

Fields v. Dep't of Juvenile Justice: Are you only protected against retaliation if you complain to an "appropriate person"?

In Fields v. Department of Juvenile Justice, No. 16-17302 (Oct. 25, 2017), the Eleventh Circuit upheld a jury verdict in the defendant's favor on Chandra Fields's retaliation claim, ruling that the district court did not err in instructing the jury that Fields was required to show that she complained "in good faith to an appropriate person about racial discrimination." The instruction explained that an "appropriate person" was "anyone above Ms. Fields in her chain of command or any human-relations employee." Fields alleged that she had complained to two different HR employees.

Given the alleged facts, it does not appear that the jury instruction, even if erroneous, prejudiced Fields since the only potential protected activity that she had alleged fell within the district court's narrow definition. But rather than merely concluding no harm, no foul, the appeals court concluded that the jury instruction correctly stated the law. This is a peculiar conclusion, given that the instruction clearly did not reflect the broad scope of protected activity under EEO law. And indeed the district court had agreed to broaden the instruction if Fields had offered evidence of protected activity not covered by it.

My point here is simply that the appeals court's endorsement of a jury instruction that a plaintiff must provide evidence of a complaint to an "appropriate official" does not reflect the state of the law generally. In this case, it was all that Fields offered, but in a different case, another plaintiff may allege other kinds of protected activity, and this decision should not be understood as precluding that kind of claim. 

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, October 14, 2017

Meritor Savings Bank v. Vinson: Three Decades Later

In the wake of the seemingly endless stream of news reports about the egregious sexual harassment experienced by many women while on the job, the Washington Post has this profile about Mechelle Vinson, a bank teller who was sexually harassed by her boss and took her case all the way to the Supreme Court in 1986. Thanks to her fortitude, the Supreme Court recognized for the first time, in Meritor Savings Bank v. Vinson, that employees are protected against discrimination not only with respect to the economic benefits of employment but also as to their work environment. 

In the Post's profile, Vinson described being sexually assaulted by her boss and threatened with termination if she rejected his sexual advances. Before Vinson made it to the Supreme Court, however, the district court judge astoundingly rejected her sexual harassment claim on the grounds that she had voluntarily engaged in sexual relations with her supervisor. Disagreeing, the Supreme Court explained that the district court should have instead asked whether Vinson had indicated by her conduct that her supervisor's sexual advances were unwelcome, not whether she had involuntarily had sex with him. Thankfully, the Supreme Court did not conclude that sexual harassment only violates EEO law if a victim is raped.

The Supreme Court should have also agreed with the court of appeals that Vinson's testimony about her "dress and personal fantasies . . . had no place in this litigation." Unfortunately, the Supreme Court concluded that evidence of Vinson's "sexually provocative speech or dress . . . [was] obviously relevant" in evaluating whether Vinson regarded her supervisor's advances as welcome. Today, I think most of us would agree with the court of appeals -- the way a woman dresses or speaks doesn't show whether she welcomes sexual conduct by male coworkers. So that's some progress, I guess.

Lately, much has been made of the disagreements between the EEOC and the Department of Justice as to the scope of the protections under the EEO laws. Meritor is an even more peculiar case in which the EEOC essentially disagreed with itself. In Meritor, the EEOC took a position contrary to the position it had adopted a few years earlier in its sexual harassment guidelines regarding when an employer is liable for harassment by a supervisor. The reason for the change? As with the current dispute with DOJ, the result was likely political. The EEOC's earlier more employee-friendly position was adopted during the Carter Administration, whereas the latter position was adopted during the Reagan Administration. The EEOC is an independent agency, but the President nominates the Chair. And who was the Chair when the EEOC advanced a narrow theory of liability contrary to its own guidelines? None other than Clarence Thomas. A few years later, when Thomas was nominated for the Supreme Court, Anita Hill accused him of having sexually harassed her while she worked for him at the EEOC. The world is full of interesting coincidences.

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, October 10, 2017

Discrimination Based on Intersex Status

On October 5, 2017, the Washington Post published an excellent article on the intersex rights movement. The term "intersex" refers to individuals with physical characteristics that do not fit the traditional binary distinction between male and female. Although EEO cases involving allegations of intersex discrimination are extremely rare, I think a strong case can be made for coverage under Title VII, which is generally understood to prohibit discrimination against someone for being male or for being female. In some respects, there is a stronger argument that Title VII covers intersex discrimination than that it covers sexual orientation or gender identity discrimination. Coverage of the latter is primarily based on the theory that sex discrimination includes not only discrimination against men and women generally but also discrimination more narrowly against men and women who do not conform to sex stereotypes. Coverage of intersex discrimination, by contrast, is a straightforward case of discrimination based on an individual's maleness and/or femaleness.

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, October 5, 2017

DOJ concludes that Title VII does not prohibit gender identity discrimination

On October 4, 2017, Attorney General Jeff Sessions issued a DOJ memo taking the position -- and reversing an Obama Administration position -- that Title of the Civil Rights Act of 1964 does not prohibit discrimination based on gender identity, reasoning that Title VII only prohibits decisions based on sex stereotypes that result in disparate treatment between men and women and does not prohibit practices, such as sex-specific dress codes, that take account of sex but do not impose a greater burden on one sex than the other. This position should not be particularly surprising because it is consistent with what DOJ argued in its amicus brief in Zarda v. Altitude Express.

As discussed in my most recent post, Harris Funeral Homes has adopted the same interpretation of Title VII's sex discrimination prohibition in defending its claim against the EEOC. Although numerous courts have held that Title VII prohibits gender identity discrimination, they have reached that conclusion without reconciling it with settled precedent that allows employers to treat the sexes differently under certain circumstances, such as in requiring sex-specific dress codes. DOJ's position grapples with that precedent by construing Title VII's protections narrowly.

To be sure, DOJ can be faulted for taking a position that limits the protections afforded American workers. Nevertheless, it has raised legitimate arguments that have been overlooked for years and that should have been refuted long ago by LGBT advocates.

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.

EEOC v. Harris Funeral Homes: If sex stereotyping is unlawful, then why is it ok to require female employees to wear dresses?

Note: This post discusses the oral argument on appeal. This previous post discusses the district court decision and this later post discusses the appellate decision.

On Wednesday, October 4, 2017, the Sixth Circuit heard oral argument in EEOC v. Harris Funeral Homes in which the EEOC has alleged that the defendant fired Aimee Stephens, a transgender woman, after learning that she would be transitioning from male to female. According to the defendant, it terminated Stephens because she refused to wear traditionally male attire as required by its dress code. The EEOC, by contrast, contends that the defendant did not fire Stephens for refusing to comply with its dress code but for being transgender. Based on the questions asked by the three-judge panel, the court regards this distinction as crucial. As discussed below, I strongly disagree. In my view, the EEOC's and the defendant's competing characterizations as to why Stephens was fired are essentially a distinction without a difference.

The distinction drawn by the parties and the panel members rests on two lines of precedent: one upholding sex-specific dress codes and grooming policies and a second prohibiting sex-based stereotyping.  In Price Waterhouse v. Hopkins, the Supreme Court explained: 
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"
By the time Price Waterhouse was issued in 1989, courts had widely concluded that sex-specific dress codes do not violate Title VII unless they impose unequal burdens. For instance, requiring men and women to wear sex-specific business attire would probably not violate Title VII because it would not impose a greater burden on one sex than another. By contrast a policy that allows men to dress casually but requires women to wear business attire would likely violate Title VII because it imposes a greater burden on women. Despite this longstanding and widespread precedent, the Supreme Court did not address the potential impact of the Price Waterhouse decision.

Because of these competing lines of precedent, the EEOC and Harris Funeral Homes dispute how the facts in this case should be characterized. In my view, however, these two lines of precedent cannot be reconciled, and this can be readily seen in Smith v. City of Salem, in which the Sixth Circuit allowed a transgender individual to proceed with a claim of sex discrimination. In Smith, the court stated: 
After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.  
Yet some courts have held that this latter form of discrimination is of a different and somehow more permissible kind. For instance, the man who acts in ways typically associated with women is not described as engaging in the same activity as a woman who acts in ways typically associated with women, but is instead described as engaging in the different activity of being a transsexual (or in some instances, a homosexual or transvestite).  Discrimination against the transsexual is then found not to be discrimination "because of . . . sex," but rather, discrimination against the plaintiff's unprotected status or mode of self-identification. In other words, these courts superimpose classifications such as "transsexual" on a plaintiff, and then legitimize discrimination based on the plaintiff's gender non-conformity by formalizing the non-conformity into an ostensibly unprotected classification.
Such was the case here:  despite the fact that Smith alleges that Defendants' discrimination was motivated by his appearance and mannerisms, which Defendants felt were inappropriate for his perceived sex, the district court expressly declined to discuss the applicability of Price Waterhouse.
As reflected in the above discussion, the premise that discrimination based on transgender status constitutes sex discrimination rests on the underlying assumption that treating a man who "wear[s] dresses and makeup, or otherwise act[s] femininely" is sex discrimination. Under the sex-specific dress code cases, however, it's perfectly ok to treat men who wear dresses differently from women who wear dresses. So something has to give.

The answer, I suggest, is either to interpret Price Waterhouse more narrowly so as to reconcile it with the dress code cases or to reject the sex-specific dress code cases as having been wrongly decided. As Harris Funeral Homes has contended, Price Waterhouse can be read as only prohibiting sex stereotyping that results in unequal burdens on a particular sex. In particular, the Supreme Court observed in Price Waterhouse: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind." If Price Waterhouse is interpreted as only applying to sex stereotyping that places women or men in a catch 22, then there is no conflict with the dress code cases. Under this interpretation, it would not be unlawful to discriminate against transgender men and women (or gay men and lesbians) so long as one sex is not treated worse than the other sex.

The alternative, of course, is to reject the sex-specific dress code cases. If, pursuant to Price Waterhouse, sex discrimination includes treating an aggressive woman worse than an aggressive man, then it would seem to follow that sex discrimination also includes treating a man who wears traditionally female attire worse than a woman who wears traditionally female attire. Even more fundamentally, a strong case can be made that the dress code cases are inherently flawed. They carve out sex-specific dress codes and grooming policies on the grounds that hair length, for instance, is not an immutable characteristic or a fundamental right. This reasoning, however, is utter nonsense as Title VII is not limited to differential treatment between protected classes with respect to fundamental rights and immutable characteristics. For example, it is unlawful to fire a woman who engaged misconduct but not a man who engaged in similar misconduct, even though misconduct is not related to fundamental rights or immutable characteristics.

Based on the oral argument, I suspect that the court will rule for the EEOC. Although numerous courts have concluded, based on Price Waterhouse, that discrimination based on transgender status effectively constitutes sex discrimination, they have largely overlooked the tension between Price Waterhouse and the dress code cases. Here, at last, a court has a chance to reconcile these competing lines of precedent. If the Sixth Circuit sweeps that issue under the rug, then even if the EEOC scores a victory, it will largely be a hollow one. After all, if an employer may not fire a transgender woman for being transgender but may fire her for not dressing like a man, that won't make the workplace very welcoming for most transgender workers.

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.