Wednesday, November 29, 2017

Digital Realty Trust, Inc. v. Somers: So judges don't make law after all -- sort of anyway (Updated 2/21/18)

The oral argument in Digital Realty Trust, Inc. v. Somers highlights the extraordinary presumption applied by a court that Congress means what it says when it enacts a statute. And in so doing, it lends some credence to the oft-repeated claim that judges don't make law. In Digital Realty Trust, the issue is whether the Dodd-Frank Act prohibits retaliation against a whistleblower who has only reported internally about a potential violation of securities law. As written, the act seems not to apply to such individuals and to require reporting to the Securities and Exchange Commission, but that leads to an "anomalous" result because it means that an individual who reports internally is not protected if he has never filed a report with the SEC but is protected if he filed a report many years ago about an entirely different matter. Such an "anomaly," however, does not appear to be enough to allow a court to ignore clear statutory language. As suggested by Justice Ginsburg, a court is bound to apply the statutory language as written unless the result is not merely anomalous but also absurd. And here, it does not appear that anyone was arguing that the result -- even if, in Justice Kagan's words, "[i]t's odd; it's peculiar; it's probably not what Congress meant" -- reached the point of being absurd.

Update - 2/21/18 - Consistent with the sentiments expressed by Justices during oral argument, the Supreme Court ruled 9-0 that the Dodd-Frank Act only protects whistleblowers who report to the SEC.

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, November 24, 2017

Harrison v. Procter & Gamble Distributing: Is the denial of a raise an adverse action?

In Harrison v. Procter & Gamble Distributing LLC, Case No. 1:15-cv-514 (S.D. Ohio Nov. 17, 2017), District Court Judge Timothy Black reached the bizarre conclusion that the denial of a raise is not an adverse action and therefore not covered by Ohio state law prohibiting disability discrimination. Judge Black reasoned that an adverse action requires an adverse change in the conditions of employment, and therefore, the maintenance of the status quo is not covered. Although Beth Harrison brought her claim under state law, Judge Black relied on federal EEO law, so his reasoning is not limited to claims brought by Ohioans.

Plainly, Judge Black is wrong. The failure to hire someone is not a change in the terms of employment, but no one would dispute that EEO law prohibits the failure to hire someone for discriminatory reasons. Similarly, providing a raise to a non-disabled employee but not to a disabled employee because of the latter individual's disability is obviously covered. The issue under EEO law is whether you would have been treated better if you were another race or sex, or, as in this case, you did not have a disability. Failing to provide an employment benefit to an individual is no less adverse than taking away an employment benefit. 

Some flaws in legal reasoning are subtle, but not here. Judge Black's mistake is a doozy.

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, November 16, 2017

The Limits of Comparing Transracial and Transgender Status

Wanting to provoke thought, a coworker of mine sent around links to recent articles in USA Today (here and here) discussing two individuals who identify as "transracial." Both were born white but now identify as another race. As far as EEO law is concerned, the answer seems quite simple: discrimination against someone because he identifies as transracial can be regarded as race discrimination since you're basically treating someone adversely based on racial stereotypes. More complicated is the use of the term "transracial." A number of commentators (see, for example, here and here) have questioned whether that term, with its implicit comparison to transgender status, is really an appropriate label. I have similar misgivings.

Consider what it means to be transgender: an individual's innate mental sense of sexual identity is not aligned with that individual's assigned sex at birth, which typically reflects the individual's sexual anatomy. As a result, there is a mismatch between two innate sex-linked characteristics. An individual's race, however, while it may be grounded in some innate physical characteristics, is not grounded in any innate mental sense of racial identity.

The result of failing to recognize that gender identity is innate can be seen in the unfortunate life story of David Reimer. An identical twin boy, Reimer was raised as a girl, based on medical advice, after his penis was accidentally destroyed during a circumcision. Despite gender reassignment from male to female at a very young age, Reimer retained an innate gender identity as male, and when he learned from his parents about his gender reassignment, he decided to assume a male gender identity, changing his name from Brenda to David. Reimer, of course, was not transgender, but his story illustrates the point: whether someone is transgender or not, that individual has an innate sense of his or her gender.

If there were a racial analog to gender identity, then someone with the physical attributes of a particular race would typically have an innate sense of being a member of that race. Most individuals who have the physical characteristics associated with being Asian would therefore have an innate mental identity of being Asian. This means that a non-transracial Asian child raised in a non-Asian environment would feel out of place, even if he had no familiarity with Asian culture. He wouldn't have to have experienced what it means to be Asian because it would be innate.

Undoubtedly, someone may have a mental sense of racial identity, but it would strictly be the product of socially constructed norms and depend on the society and culture in which he lives. A black person living in the United States has a different racial identity from a black person living in Nigeria. Unlike with gender, there cannot be a mismatch between two innate aspects of race. Someone may not identify with the socially constructed racial identity of his own race, and in that respect, the individual might consider himself transracial. But this if fundamentally different from the way in which someone is transgender.

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, November 14, 2017

Richardson v. Chicago Transit Authority: Is being super short an impairment protected by the Americans with Disabilities Act?

Me and my mom (I'm only 5'-3")
In Richardson v. Chicago Transit Authority, No. 1:16-cv-3027 (N.D. Ill. Nov. 13, 2017), District Court Judge John Blakey ruled that severe obesity by itself is not a physical impairment covered by the Americans with Disabilities Act, and is only covered if it is the result of a physiological disorder. Judge Blakey's decision is based on an EEOC regulation and guidance, and it is consistent with the conclusion reached by several courts of appeals, including the Eighth Circuit in Morriss v. BNSF Railway. The EEOC, however, interprets its regulation and guidance more broadly to cover severe obesity that is based on a physiological disorder or that is outside the "normal" range. As discussed below, I agree with the EEOC, but I also note that the EEOC's interpretation has potentially far-reaching implications that have not been acknowledged by the EEOC.

The ADA generally prohibits an employer from discriminating against an employee because of an actual or perceived impairment. Thus, it is necessary to understand what constitutes an "impairment."
EEOC regulation 29 C.F.R. § 1630.2(h)(1) defines a physical impairment as "[a]ny physiological disorder or condition . . . affecting one or more body systems." The EEOC's interpretive guidance on that particular regulation explains:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term "impairment" does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within "normal" range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.
In the instant case, John Richardson contended that, pursuant to this EEOC guidance, obesity need only be the result of a physiological disorder if it is within the normal range. Judge Blakey, however, agreed with the Eighth Circuit's contrary interpretation in Morriss:
The court considered the interpretive guidance in its entirety, including its provision that other "conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments." The court concluded that "a more natural reading of the interpretive guidance is that an individual's weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder."
In my view, Richardson and the EEOC make the better argument. The regulation refers to a physiological disorder or condition. Thus, the regulation suggests that a physical impairment need not be based on a physiological disorder. Confusingly, however, the unqualified term "condition" is so broad that a literal interpretation would cover any physical condition that affects one or more body systems. This is where the guidance comes to the rescue. The guidance, in turn, limits the coverage of conditions to those that are outside the normal range.  As clarified by the guidance, a physical impairment under the ADA includes either a physiological disorder or a condition that is outside the normal range, affecting one or more body systems.

The alternative reading effectively ignores the regulation's latter coverage of a "condition . . . affecting one or more body systems." Granted, the regulation is not a model of clarity, and the guidance could have come straight out and said that conditions are only covered if they are outside the normal range, but the broader reading of the regulation and the guidance still seems to be the better one.

As noted by Judge Blakey, courts that have adopted a narrow interpretation of the EEOC's guidance have considered the purposes of the ADA and refused to "open up . . .  the ADA 'to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered' by the Act.'"

While I don't think such concerns are sufficient reason to reject the EEOC's interpretation, I also don't think they're entirely unfounded. If an individual's weight can constitute an impairment if it falls outside the normal range, then the same must be true for other physical conditions, including eye color, hair color, left-handedness, and height. For instance, if eye color falls outside the normal range, it would constitute an impairment. What does it mean, you wonder, for eye color to fall outside the normal range? Beats me. Let's cross that bridge when we get to it. Height is more analogous to weight, though there's still the question of how short is short enough to be considered outside the normal range.

It's not clear what the practical consequences would be of covering a broad range of physical attributes. I doubt many employers discriminate against someone because of eye color or hair color. Height discrimination is probably more common, and maybe also discrimination based on left-handedness, but such claims still seem likely to be rare, and if they do arise, there's no reason to think they're less worthy of coverage than discrimination based on obesity.

More problematic might be the failure to select an appropriate measure for defining the normal range. As to weight, for instance, the EEOC relies on the body mass index (BMI), but that index defines normal range very narrowly -- as being neither underweight nor overweight -- resulting in over two-thirds of Americans being classified as weight-impaired. Surely, even if some extremely overweight people can be considered impaired merely because they are so overweight, a measure that makes ADA coverage the rule rather than the exception goes too far. 

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, November 10, 2017

Rubio v. Hyatt Corp.: Temporal Proximity and Pregnancy Discrimination

In Rubio v. Hyatt Corp., No. 17-7833 (E.D. La. Nov. 8, 2017), District Court Judge Carl Barbier denied the defendant's motion to dismiss Kiyoko Rubio's pregnancy discrimination claim where Rubio alleged that she was terminated six days after notifying the defendant of her pregnancy. I thought it worth highlighting this decision because it illustrates the significance of temporal proximity in establishing pregnancy discrimination.

If a plaintiff alleges retaliation, one of the ways that she can try to establish causation is with evidence that the challenged employment action was taken shortly after the plaintiff complained about retaliation. This evidence of temporal proximity allows a reasonable fact finder to infer that the adverse action was motivated by the protected activity. Similarly, if a plaintiff presents evidence that her employer took an adverse action shortly after learning that she was pregnant, a fact finder could reasonably infer that the adverse action was motivated by the plaintiff's pregnancy.

The significance of temporal proximity, however, is limited. What if an employer was already planning to take an adverse action when the employer learned about the plaintiff's pregnancy or protected activity? Or maybe it decided for nondiscriminatory reasons that it should take some action after it had already learned that an employee is pregnant. Can it still proceed with the action? The answer, of course, is yes. An employee is not protected against adverse consequences that are not motivated by her protected status. For example, in Breeden v. Clark County School District, where an employee alleged that her transfer was retaliatory, the Supreme Court explained: "Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality."

In this case, the defendant filed a motion to dismiss. This motion is filed at an early stage in judicial proceedings and challenges the adequacy of a plaintiff's complaint, which is merely required to "state a claim to relief that is plausible on its face." In making this determination, Judge Barbier essentially considered whether the alleged facts were sufficient to establish a prima facie case of pregnancy discrimination. A prima facie creates only a weak inference of discrimination, which is overcome if the employer presents evidence of a nondiscriminatory reason for the challenged action. To prevail in such circumstances, a plaintiff must show that the employer's asserted reason is a pretext for pregnancy discrimination.  

Citing Fifth Circuit precedent, Judge Barbier noted that, although temporal proximity alone may be sufficient to establish a prima facie case, it is not enough to ultimately establish that the employer's asserted reason is pretextual. To be sure, if an employer is treated adversely shortly after telling her employer she is pregnant, that may look fishy, and the timing is some evidence of discrimination. But the timing may merely be a coincidence, and while an employer is prohibited from taking an action because of an employee's pregnancy, it is not prohibited from taking an action in spite of an employee's pregnancy. Thus, where there is evidence that an action was motivated by a nondiscriminatory reason, a plaintiff usually cannot merely point to temporal proximity and must also present some evidence that discredits the employer's asserted reason. For example, if an employer asserts that an employee was fired because of her poor performance, the employee likely would be required to present some evidence that she was not performing poorly or that other employees with similar performance were not fired.

This case is somewhat unusual because the defendant has contended that it did not actually fire the plaintiff and that she instead did not return to work and stopped communicating with them. So assuming the defendant never offers a nondiscriminatory reason to rebut Rubio's allegation that she was fired because of her pregnancy, Rubio could conceivably prevail without showing pretext. 

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, November 9, 2017

Munive v. Fairfax County School Board: When is a retaliatory action materially adverse?

In Munive v. Fairfax County School Board, No. 17-1692 (Nov. 7, 2017), the Fourth Circuit reversed the dismissal of Kathleen Munive's retaliation claim, concluding that Munive was subjected to a materially adverse action when the defendant allegedly refused to remove a reprimand letter from her personnel file as promised and she was denied a promotion because of the reprimand letter. Although the court's conclusion is correct, the court failed to apply the proper standard for determining whether Munive was subjected to a materially adverse action.

Quoting the Fourth Circuit's 2015 decision in Adams v. Anne Arundel County Public Schools, the court stated that although "an adverse action need not affect the terms and conditions of employment[,] . . . there must be 'some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it.'" 

This standard is contrary to the controlling Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White (2006). In Burlington Northern, the Court distinguished between Title VII's primary objective in prohibiting employment discrimination based on race, color, sex, religion, or national origin and its secondary objective in ensuring that someone can enforce his right not to be subjected to employment discrimination:
To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision's basic objective of "equality of employment opportunities" and the elimination of practices that tend to bring about "stratified job environments" would be achieved were all employment-related discrimination miraculously eliminated.
But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the antiretaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.
In order for a retaliatory action to be materially adverse, it must be reasonably likely to deter someone from complaining about discrimination. Thus, if refusing to remove a reprimand letter from a personnel file is likely to prevent someone from complaining about discrimination, then that refusal is enough by itself to be actionable, regardless of whether it subsequently leads to the denial of a promotion. What's relevant is that having a reprimand in your personnel file very well could lead to your being denied a promotion or suffering some other negative job action. In other words, if you are facing the choice between complaining about discrimination and avoiding a reprimand, you might reasonably choose the latter merely because the reprimand might lead to some further adverse action down the road. Accordingly, if an employer refuses, contrary to its promise, to remove a reprimand from your file, that alone constitutes an adverse action.

In this case, while Munive should have been able to establish an adverse action based merely on the failure to remove the reprimand letter, the court clearly thought that was not enough, and it was only because of the loss of a promotion that Munive was able to proceed with her retaliation claim. Although the erroneous standard adopted by the Fourth Circuit in Adams did not really affect Munive, other plaintiffs pursuing retaliation claims within this circuit may be less fortunate.

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, November 2, 2017

Louisiana v. Demesme: Supreme Court of Louisiana concludes that asking for a "lawyer dog" is not an unambiguous request for a lawyer

In a non-EEO case that surely qualifies as ass law, the Louisiana Supreme Court concluded, in Louisiana v. Demesme, that Warren Demesme's request for a "lawyer dog" while he was being interrogated by police was not an unambiguous request for a lawyer. The request was made orally, and the transcript, through no fault of Demesme's, failed to include a comma between "lawyer" and "dog." Thus, the court was left wondering whether Demesme wanted a human lawyer or a dog wearing a suit and tie and carrying a briefcase. That may seem laughable, but given this decision, there can be little doubt that a lawyer dog would be better qualified to serve on the Louisiana Supreme Court than the six justices who voted to deny the defendant's writ.

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.