Saturday, December 1, 2018

My Childhood Dream of Becoming Fed Chair Has Been Dashed

To my dismay, I learned recently that I'm unqualified to be the next chief of the Fed. No, it's not my lack of any background in economic policy. Rather, at 5-foot-3, I'm simply too short. Janet Yellen, who is the same height as me, apparently suffered the same fate when President Donald Trump deemed her too short to head up the Fed. While we don't know exactly how tall you do have to be, we do know that Jerome Powell's approximate six-foot stature was enough. So, boys and girls, eat your Wheaties, and your dream of one day having the ability to send stocks soaring or diving with only a few inscrutable words may come true.

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.

Illinois Expands Equal Pay Protections -- But Only for "African-American" Employees

Earlier this week, the Illinois legislature overrode Republican Governor Bruce Rauner's veto, thereby expanding the state's equal pay legislation to prohibit pay discrimination against African-American employees. The reason for Rauner's veto? The bill didn't go far enough. As explained in Rauner's veto statement:
The intent of this legislation is to put into place enhanced statutory mandates which would hold employers that engage in unlawful pay and wage practices against African-Americans accountable. However, wage discrimination is not limited to African-Americans, and other racial and ethnic groups are suffering similar harms in their employment. They, too, are subject to unequal compensation and salaries and are equally deserving of relief. I would be remiss if I did not extend the substantial benefits granted African-Americans under this bill to all racial and ethnic protected classes.
Thus, Rauner stated that he would approve of legislation prohibiting wage discrimination based on "race, color, national origin, or ancestry."

Despite the Illinois legislators' presumably good intentions, Governor Rauner's concerns have merit. The wage gap between the baseline of white men and other protected groups is often cited as the basis for equal pay legislation, but African-American men earn more than Hispanic men. By that measure, legislators should be more concerned about wage discrimination against Hispanics. And even if discrimination against white men is relatively uncommon, legislators generally recognize that race and sex should be neutral factors, so discrimination against white men should be no less unlawful than discrimination against African Americans.

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 26, 2018

TallBear v. Perry: Are Redskins fans racially harassing their Native American coworkers?

A few years ago, the name of the Washington, D.C. professional football team, the "Redskins," became the subject of a national controversy, and President Obama even entered the fray by urging that the team's name be changed. Things take a while to work their way through the court system, but now we finally have a case where someone has brought an EEO claim based on the use of the name. In TallBear v. Perry, No. 17-0025 (DLF) (D.D.C. July 24, 2018), Jody TallBear alleged that she was subjected to unlawful racial harassment by her repeated exposure to the Redskins name and logo. Rejected the claim, Federal District Court Judge Dabney Friedrich accepted at "face value TallBear's claim that the use of the Redskins name is deeply hurtful to her," but concluded that EEO law "does not require the country's employers to stand aggressively on one side of [a] public debate by banning employees from referring to their local professional football team by name in the workplace." Friedrich further noted that a reasonable person would not conclude that the coworkers were using the term as a racial slur, and while the term may offend some individuals, it continued to be commonly used to refer to the Washington football team.

In my view, Judge Friedrich reached the right conclusion. The question is whether a reasonable person would perceive the conduct as racially hostile, and key to this determination is social context. In other words, it is not enough that the complainant have personally been offended. Her offense must have been reasonable. Moreover, the conduct must have been serious or frequent enough that it made it more difficult for her to do her job. Importantly, this is judged from the perspective of a reasonable person in the complainant's shoes, which means a reasonable person of the same race. 

Although the intent of coworkers in using a term is relevant, it is not dispositive. For instance, if a white worker jokingly uses the n-word, that might mean that the term is less offensive, but it's still a racial slur. The term "redskins," however, clearly does not fall into the same category as the n-word. Tellingly, in the midst of the debate about the Redskins' name two years ago, the Washington Post conducted a poll, which revealed that 90% of Native Americans are not bothered by the Washington Redskins' team name. So unlike the n-word or the c-word, it seems unlikely that the r-word can reasonably be considered offensive on its face -- at least, for now. In 10 or 20 years, though, who knows?

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 25, 2018

Ayissi-Etoh v. Fannie Mae: Judge Kavanaugh on the N-word

In the questionnaire that Judge Brett Kavanaugh completed for his nomination to the Supreme Court, he identified the EEO case of Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013), as one of the ten most significant cases in which he participated. In this racial harassment case, Placide Ayissi-Etoh alleged that a company executive subjected him to unlawful racial harassment, which included calling him the n-word. The lower court concluded that the alleged conduct was not enough for Ayissi-Etoh to have reasonably perceived his work environment as hostile. The three-judge panel unananimously reversed. And Kavanaugh wrote a separate concurrence to emphasize that even a single occurrence in which someone is called the n-word can result in unlawful racial discrimination.  He explained that "[n]o other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans."

Kavanaugh's selection of this case as one of the most significant of his career is an interesting choice. This case breaks no legal ground, and Kavanaugh's concurrence merely underscores a point raised in the main opinion, which he also joined. Kavanaugh nonetheless felt compelled to write separately to discuss the historical and social context in which discrimination claims must be evaluated. As I noted in a prior post, Kavanaugh's concurrence in Ayissi-Etoh is particularly notable in the #MeToo era. Kavanaugh may not always agree with the legal arguments advanced by litigants, but he is able to empathize and place himself in someone else's shoes -- which just may be the most important qualification to serve on the Supreme Court.

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 18, 2018

Ann Hopkins Obit: Plaintiff who challenged sex stereotyping dies at 74

The N.Y. Times published an obituary yesterday for Ann Hopkins, who took her sex discrimination case all the way to the Supreme Court in 1989 and won. Hopkins deserves credit for establishing the connection between sex discrimination and sex sterereotyping. In her case against Price Waterhouse, she alleged that she was denied a partnership because she did not act the way women are stereotypically expected to act -- she used profanity, didn't wear make-up, and needed to take a "course at charm school." Today, the legacy of Hopkins is alive and well in the cases brought by LGBT plaintiffs, who have alleged that discrimination based on sexual orientation or gender identity is a form of unlawful sex stereotyping.

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 16, 2018

Ballard v. AT&T Mobility: Has #MeToo lowered the bar for unlawful sexual harassment?

In Ballard v. AT&T Mobility, Inc., No. 15-8808(MAS)(LHG) (D.N.J. July 11, 2018), plaintiff Taylor Ballard argued, among other things, that her sexual harassment claim should be revived based on the emergence of the Me Too movement since Judge Michael Shipp had awarded summary judgment to the defendant.

Like a lot of legal analysis, the question of whether sexual harassment is unlawful is governed in large part by standards of reasonableness. And these standards can change based on broader societal perceptions. What someone might not have reasonably perceived to be harassing in the 1950s might nevertheless be perceived as harassing in 2018. If you've ever watched the "Honeymooners," you may remember that the character Ralph Kramden would often threaten to send his wife "to the moon." Apparently, that kind of line was funny 60 years ago, but it makes us cringe nowadays.

Whether Me Too has ushered in that kind of change over such a short period of time is questionable. But it's almost certainly true that Me Too has had a significant impact on how American society views sexual harassment. Sexual harassment claims must be evaluated in context, and social perceptions are part of the context. For example, societal views about sexual harassment could be relevant in assessing whether a plaintiff reasonably perceived conduct to be hostile or offensive; whether the alleged harasser should have known that his conduct was offensive to the victim; and whether the employer took harassment seriously enough.

Still, Ballard had complained about conduct that occurred well before the start of the Me Too movement. It's not surprising then that, even though Judge Shipp acknowledged that the plaintiff's assertions about the conduct of corporations before and after the start of the Me Too movement was not entirely unsupported by evidence, he concluded that none of the evidence was relevant to this 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.

Sunday, July 15, 2018

Judge Kavanaugh and Federal EEO Law: A Little Something for Everybody

As the Senate weighs whether to confirm Judge Brett Kavanaugh to serve on the Supreme Court, his views on civil rights are likely to be intensely scrutinized. A brief survey of Kavanaugh's decisions for the D.C. Circuit offers some insight into how Kavanaugh might interpret Title VII of the Civil Rights Act of 1964 and other federal prohibitions against employment discrimination. In short, Kavanaugh's EEO opinions offer something for both employers and employees to like -- he can be comfortable with curtailing EEO protections to prevent conflicts with other interests, but he interprets protections broadly when he believes they are supported by the statutory text.

Most worrisome perhaps to potential plaintiffs and EEO advocates are Kavanaugh's dissents in three cases in which the majority ruled for the plaintiff:
  • In Rattigan v. Holder689 F.3d 764 (D.C. Cir. 2012), the majority ruled that, although a court cannot review the denial or revocation of a security clearance, a federal agency can still be liable under Title VII for reports of security concerns that are based on knowingly false information. In dissent, Kavanaugh criticized the majority for "slicing and dicing" and explained that he would interpret Supreme Court precedent as making the entire security clearance process off-limits.
  • In Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, 730 F.3d 939 (D.C. Cir. 2013), the majority ruled that, while the Speech and Debate Clause of the U.S. Constitution prohibits a court from reviewing legislative acts or the motivation for legislative acts, dismissal of the plaintiff's claims of race discrimination and retaliation was inappropriate because it was possible for the plaintiff to establish pretext without requiring the court to probe into protected legislative activity. In dissent, Kavanaugh argued that once, as here, a court has concluded that the defendant's asserted reason involves protected legislative activity, the "case must come to an end." In his view, a plaintiff would not be able to prevail unless the defendant were required to produce evidence of constitutionally protected activities.
  • In Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012), the majority, in an opinion authored by Obama nominee Merrick Garland, held that the Basic Authorities Act did not permit the State Department to exempt an American citizen employed in Paris from the protections of the Age Discrimination in Employment Act. In dissent, Kavanaugh argued that a statutory provision authorizing the State Department to contract with American workers overseas "without regard" to "statutory provisions" relating to the "performance of contracts and performance of work in the United States" unambiguously authorized the State Department to require the plaintiff's retirement at age 65.
These cases share a number of characteristics. In each, Kavanaugh interpreted EEO protections narrowly where there was tension with other authority granting the defendant broad discretion. Unlike the judges in the majority, Kavanaugh was unwilling to adopt complicated legal analyses that preserved EEO rights to a limited extent, opting instead for more straightforward blanket rules that avoid the need to "thread the needle," as he described the majority's approach in Howard.

Kavanaugh also downplayed the impact of limiting judicial review of EEO claims, expressing confidence that plaintiffs would have other adequate mechanisms for pursuing relief. In Howard, for instance, Kavanaugh explained that if the Speech and Debate Clause barred a congressional employee from proceeding in federal court, he or she could pursue an administrative complaint with the congressional Office of Compliance. And in Miller v. Clinton, Kavanaugh dismissed the majority's concerns about exempting the State Department from EEO legislation, observing that the Department is bound by the Constitution. 

Kavanaugh's preference for clear and uncomplicated rules of law is also illustrated by his strong endorsement of the D.C. Circuit's rather idiosyncratic approach to evaluating claims of intentional employment discrimination. Courts of appeals generally will affirm summary judgment for the employer where the plaintiff has either failed to establish a prima facie case or failed to show that the employer's asserted reason for an action is a pretext for discrimination. Recent examples include Kidd v. Mando American Corp., 731 F.3d 1196 (11th Cir. 2013); Jackson v. United Parcel Services, Inc., 643 F.3d 1081 (8th Cir. 2011); and Kulik v. Medical Imaging Resources, Inc., 325 F. App'x 413 (6th Cir. 2009). By contrast, however, writing for the entire three-judge panel in Brady v. Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), Kavanaugh clarified that the judicial focus on whether a plaintiff has established a prima facie case is typically misguided -- once an employer has asserted a nondiscriminatory reason, the district court should focus on the ultimate question of whether the plaintiff has presented sufficient evidence of pretext. Citing Supreme Court precedent dating back to 1983, Kavanaugh criticized litigation regarding a plaintiff's prima facie case as a "largely unnecessary sideshow": "It has not benefited employees or employers;  nor has it simplified or expedited court proceedings. In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial resources."

Despite a preference for bright-line rules in some contexts, Kavanaugh has also advanced more nuanced approaches that reflect the fact-specific nature of EEO claims. In Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013), he joined the court's opinion ruling for the plaintiff in a racial harassment case but wrote separately to stress that a single severe incident of discriminatory conduct can create a hostile environment. Although acknowledging that it is unusual for a single incident to violate EEO law, Kavanaugh pointed out that "saying that a single incident of workplace conduct rarely can create a hostile work environment is different from saying that a single incident never can create a hostile work environment." Citing EEOC guidance, Kavanaugh added that the question is whether the alleged conduct was sufficiently severe or pervasive, not whether it was sufficiently severe and pervasive. And citing Langston Hughes, Alex Haley, and Harper Lee, Kavanaugh concluded that being called the n-word by a supervisor, as the plaintiff had alleged, was sufficient by itself to establish a racially hostile work environment.

Kavanaugh's willingness to interpret EEO law broadly is probably most apparent in his concurrence in Ortiz-Diaz v. HUD, 867 F.3d 70 (D.C. Cir. 2017), where the court held that the plaintiff had sufficiently alleged that he was subjected to a materially adverse action when he was denied a transfer away from a racially biased supervisor to another supervisor who would be more likely to advance his career. Kavanaugh agreed that the alleged transfer denial in that case was materially adverse, but he argued in his concurrence that the circuit should revisit precedent holding that lateral transfers are generally not actionable. In Kavanaugh's view, Title VII prohibits any discriminatory transfer or denial of transfer. Judge Judith Rogers concurred separately to echo Kavanaugh's sentiment about Title VII's coverage of discriminatory transfers.

The views of Kavanaugh and Rogers are outliers -- to say the least -- since the materiality requirement is widely, if not universally, recognized by courts of appeals and the Supreme Court. In an opinion by Justice Breyer joined by every other Justice except Alito, the Supreme Court held in Burlington Northern & Santa Fe Railroad v. White, 548 U.S. 53 (2006), that the retaliation provision of Title VII only prohibits actions that are materially adverse "because we believe it is important to separate significant from trivial harms." Similarly, in his characteristically colorful prose, Judge Richard Posner observed in Williams v. Bristol Meyers Squibb Co., 85 F.3d 270 (7th Cir. 1996), that absent a materiality requirement, "every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."

As can be seen, Judge Kavanaugh has demonstrated that he is not inclined to put his thumb on the scale in favor of EEO rights, particularly when he is weighing them against other interests, such as national security. He trusts that Congress will set things right if it disagrees with how a court has interpreted the law. 

By the same token, however, Kavanaugh is not predisposed to interpret EEO protections narrowly when Congress has enacted statutory language supporting broad coverage. Kavanaugh's concurrence in Ayissi-Etoh, emphasizing that even a single verbal incident of harassment can violate the law, is particularly notable in the #MeToo era. And his interpretation of Title VII's adverse action standard is so broad that it would likely raise red flags if espoused by the nominee of a Democratic President.

EEO law frequently takes a backseat to other civil rights issues when the Senate considers a Supreme Court nominee. But if confirmed, Kavanaugh may soon be facing some of the most important EEO cases to come before the Supreme Court in years. The Court's EEO caseload has exhibited a lull recently, but there are some hot-button issues potentially on the horizon, including whether Title VII prohibits sexual orientation discrimination (Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc)) and whether the Equal Pay Act permits an employer to rely on salary history in setting starting pay (Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018) (en banc)).

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 6, 2018

Does the Constitution protect the freedom to eat one another?

The harrowing story of a Thai boys soccer team trapped in a cave reminds me of my favorite case from law school -- Regina v. Dudley & StephensAdrift on a lifeboat, with little hope for rescue, Tom Dudley and Edwin Stephens killed and ate the cabin boy, Richard Parker. A fourth man, Edmund Brooks, participated in the feast, but apparently never assented to the murder, and he was the star witness for the prosecution. Dudley and Stephens were convicted of murder, but their death sentences were commuted by the Crown to six months in prison. 

Survival cannibalism is also the focus of the well known legal essay, The Case of the Speluncean Explorers, which is styled as a decision by the fictitious Supreme Court of Newgarth. The five Justices must decide whether to uphold the murder convictions of four spelunkers who killed and ate the fifth member of their exploration team after a landslide trapped them underground. The Justices disagree strenuously about the appropriate legal reasoning and resolution of the case, with two Justices voting to uphold the convictions, two voting to set them aside, and the fifth abstaining.

As we await President Trump's announcement of a nominee to succeed Justice Kennedy on the United States Supreme Court, a great deal of attention has been paid to a number of controversial issues that divide Americans -- abortion rights, same-sex marriage, affirmative action, the death penalty, and gun control. One issue, however, towers above them all, yet has been glaringly absent -- survival cannibalism. 

Thankfully, even though the Thai boys soccer team remains trapped, the rescue team has been able to provide them with food and medical assistance, so they will not face the predicament of Dudley and Stephens or the Speluncean Explorers. Still, their story should give us pause and remind us that we cannot take our own comfort and well-being for granted. The day may come when we have to face the unthinkable. And if that happens, we need to have the law on our side. 

So if there should be one litmus test to serve on the Supreme Court, it is surely this: Do you support a constitutional right to survival cannibalism? 

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 4, 2018

Does discrimination against Confederate Americans violate federal EEO law?

On July 4, 1863, General Robert E. Lee began his withdrawal after a devastating defeat at Gettysburg, Pennsylvania, the sight of the bloodiest battle of the Civil War.

An interesting question that has sometimes been raised in EEO cases is whether discrimination against someone for being a Confederate American is covered by Title VII of the Civil Rights Act. Generally, this has arisen where someone has been disciplined for displaying a Confederate flag. In Storey v. Burns International Security Services, 390 F.3d 760 (3d Cir. 2004), for instance, the court concluded that, even assuming Curtis Blaine Storey was a member of a protected class, he was not fired because of his religion or national origin group but because he refused to cover up or remove Confederate flag stickers while at work.

Although the majority found it unnecessary to address whether being a Confederate American is a religion or national origin, Judge Scirica's concurrence did reach those issues, and it rejected the plaintiff's contentions. More understandable is Scirica's rejection of claims of religious discrimination, reasoning that the complaint did not "contend that [Storey] displayed the stickers for religious reasons, but 'because he is proud of being a Confederate Southern-American.'"

Less persuasive is Scirica's rejection of the national origin claim. Scirica explained that "national origin" refers to the country where a person, or his or her ancestor's, came from. Citing Supreme Court precedent, Scirica notes that the Confederacy was never an independent nation, and therefore, discrimination based on status as a Confederate American does not qualify as national origin discrimination.

This analysis has some superficial appeal, but it is quite frankly too clever by half. Although you might think "national origin" discrimination is limited to discrimination associated with countries of origin, that is not in fact the case.  National origin" discrimination may be grounded in discrimination against individuals from a particular country, but much more commonly, it will involve discrimination based on ethnicity, such as discrimination against Hispanics or Middle Easterners. The issue, therefore, is whether Confederate Americans can be considered an ethnic group in that same sense.

Even if such discrimination is covered, that would not mean that offensive racist conduct, such as the display of a Confederate flag, would be protected. As I noted in a previous post, the display of a Confederate flag may contribute to a  racially hostile work environment, so an employer would be responsible for addressing it. But if someone is not hired merely because he has ancestors who defended the Confederacy in the Civil War, there's a strong argument that Title VII has been violated. Such situations, I would imagine, are unlikely to arise. And indeed, the majority in Storey noted that the plaintiff was not fired merely for his status as a Confederate American. Nevertheless, courts should be consistent in applying the law and should not reject a claim -- as Scirica may have done -- merely because it is perceived as being distasteful.

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 2, 2018

Gardner v. CLC of Pascagoula: When does sexual harassment by a patient with dementia violate federal law?

The case of Gardner v. CLC of Pascagoula, LLC, No. 17-6007217 (5th Cir. June 29, 2018), is worth highlighting because it handles very well the sticky situation where the alleged harasser has limited mental capacity.

The court concluded that Kymberli Gardner, a certified nursing assistant at an assisted living facility, had presented sufficient evidence to show that she was subjected to unlawful sexual harassment by an elderly resident with dementia. As recognized by the court, "workplace law should account for a situation when individuals cannot medically conform their conduct to societal norms"; however, while a harasser's limited mental capacity would be relevant in determining whether a reasonable person would perceive conduct as hostile, there is no categorical bar to sexual harassment claims under such circumstances.

Thus, the court concluded:
Inappropriate comments and incidental contact are sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen. In contrast, the facility must take steps to try to protect an employee once there is physical contact that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.
Here, the alleged harasser's known conduct included physically assaulting a bedridden roommate; sexually assaulting female caregivers by grabbing theirs breasts, buttocks, and private areas; and making lewd sexual comments to female staff and asking them for sexual favors. Gardner, in particular, had reported that the patient would physically grab her and make repeated sexual comments and requests. The court noted that instead of trying to remedy the situation when Gardner complained to her supervisors, they mocked her.

The court observed that in some cases it might not be possible to control a patient's conduct and the nursing home will face the "difficult choice" of either evicting the patient or allowing the harassment to continue. In this case, however, it was not necessary to decide this difficult question because the defendant had not taken steps to remedy the harassment. Gardner had testified that remedial steps taken at other facilities where she had previously worked included requiring two or more caregivers, using medication to control a patient's behavior, or transferring a patient to a more appropriate facility. Particularly telling, in the court's view, was that the defendant eventually transferred the patient to an all-male facility, but only did so after he assaulted another patient, and failed to take such action after female employees complained about sexual harassment.

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.

What does Justice Kennedy's retirement mean for the future of EEO law?

If you're wondering whether Justice Anthony Kennedy's retirement will have a significant impact on EEO law, the answer is probably no. Despite his reputation for holding the swing vote in close cases, Kennedy has a solidly conservative voting record when it comes to employment discrimination. Since Kennedy joined the Court 30 years ago, it has split 5-4 (or 5-3) in well over a dozen cases under Title VII of the Civil Rights Act of 1964 and other federal EEO laws. And in every close case that split along ideological lines, Kennedy joined his conservative colleagues. These include decisions on the timeliness of pay discrimination claims (Ledbetter v. Goodyear Tire & Rubber Co.), the burden of proof in age discrimination claims (Gross v. FBL Financial Services), the commonality required for class actions (Wal-Mart Stores v. Dukes), and employer liability for racial harassment (Vance v. Ball State University).

Kennedy's voting record on EEO issues is in line with that of Justice Sandra Day O'Connor, who retired in 2006. Like Kennedy, O'Connor was widely viewed as a moderate conservative, but she also consistently voted with conservatives in close EEO cases, on issues such as federalism (Kimel v. Florida Board of Regents), punitive damages (Kolstad v. American Dental Association), disparate impact claims (Wards Cove Packing Co. v. Atonio), and racial harassment (Patterson v. McLean Credit Union). Kennedy joined O'Connor as part of the conservative majority in each of these cases; the latter two were overturned by Congress when it passed the Civil Rights Act of 1991, which was signed by George H. W. Bush. Because O'Connor's and Kennedy's records on EEO law are closely aligned, we can feel pretty confident that even if President Trump takes the unlikely step of nominating a so-called moderate conservative, the Court's approach to EEO law is unlikely to change.

Many advocates of LGBT rights had been hopeful that Kennedy would side with lower courts that have interpreted Title VII to prohibit sexual orientation discrimination. Justice Kennedy's strong support for gay and lesbian rights might have translated into a willingness to read protections against "sex" discrimination broadly. Then again, however, Kennedy's approach to applying abstract constitutional principles, like liberty, due process, and fundamental rights, is not necessarily a good measure of how he would interpret much more concrete terms adopted by Congress that have settled meanings. In the recent commerce clause case of South Dakota v. Wayfair, Inc., Kennedy, writing for the majority, demonstrated a willingness to support judicial action where Congress had failed to step up to the plate. Would Kennedy have felt similarly with respect to Congress's failure for over 40 years to adopt measures to prohibit sexual orientation discrimination? We'll likely never know.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Thursday, June 28, 2018

Korematsu and Trump's Travel Ban -- NOT the Same

Manzanar Cemetery Monument
In upholding President Trump's travel ban, the Supreme Court rejected Justice Sotomayor's attempt to analogize the case to Korematsu v. United States. That 1944 decision upheld a federal order prohibiting all individuals of Japanese ancestry, including American citizens, from being present in certain areas of the United States, even if they had lived there their entire lives.  As explained by the Court:
The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President -- the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -- to be clear -- "has no place in law under the Constitution." 323 U.S., at 248, 65 S. Ct. 193 (Jackson, J., dissenting). 
Like Justice Sotomayor, some commentators have argued that the majority essentially makes the same mistake as in Korematsu, uncritically accepting the government's contention that a racist policy was justified because of the deference due the Executive branch with respect to national security matters. 

For instance, Joel Fishkin contends on Balkinization that the majority errs in upholding the travel ban because it is facially neutral whereas the Korematsu exclusion order was facially race-based. As Fishkin notes, "The problem with Korematsu was not that it slipped and failed to cloak its racism in the garb of a nominally facially neutral order, focused on nations rather than ethnicities." Obviously, this is true, but the point of the majority decision is not that religious bias necessarily played no role in the adoption of the travel ban, but that there was sufficient reason to believe that the ban was based on a legitimate motive. Thus, the majority explained that it would "uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." 

If the presence of religious bias were all that mattered, then given Trump's numerous bigoted statements, the Administration would have its hands tied, and could not adopt a policy that was clearly in the interest of national security. What matters therefore is not whether the policy was adopted for a bad reason but whether it was adopted for a good reason. The former does not negate the latter. 

The majority noted that the countries covered by the travel ban were purportedly selected by determining whether they had developed minimum standards for confirming the identity of individuals seeking entry into the United States and determining whether they posed a national security threat. The majority-Muslim countries singled out had all been previously identified by Congress or a prior administration as posing security risks. On its face, the question of whether a country has adequate policies allowing the U.S. to vet would-be visitors from that country is a legitimate basis for denying someone entry to the U.S. In Korematsu, by contrast, the Supreme Court upheld a policy that assumed someone was potentially disloyal to the U.S. and therefore a security risk based solely on that individual's Japanese ancestry. You might reasonably disagree with whether the Trump administration sufficiently showed that it adopted the travel ban for legitimate reasons. But the Court unquestionably has not signed off on a facially discriminatory policy on the President's say-so as it did in Korematsu

President Trump, to be sure, is not entitled to a pass for the abhorrent things he has said about Muslims. Recognizing as much, Justice Kennedy observed in his concurrence that, even if the actions of a government official are not subject to judicial review, the official is "not free to disregard the Constitution and the rights it proclaims and protects" and that "the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise." Is this merely wishful thinking when it comes to President Trump? Perhaps, but even if these words are lost on Trump, Justice Kennedy's respectful and hopeful approach to a difficult issue should give pause to those who would draw hyperbolic and inflammatory comparisons to racist policies of the past. Such arguments are likely to do little to advance the debate.

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, June 20, 2018

Bell Helicopter Textron v. Barnett: Can someone allege age discrimination based on facts that occurred before he turned 40?

In Bell Helicopter Textron v. Barnett, NO. 02-16-00489-CV (Tex. App. June 14, 2018), a Texas state appeals court affirmed the trial court's judgment for Brian Burnett on his claim that he was fired because of his age, in violation of Texas state law. What's interesting about this case is that the state law only protects workers against age discrimination if they are 40 or older, similar to the corresponding federal statute, but the evidence that Burnett relied on to show that the defendant discriminated against him based on age related to incidents that occurred before he turned 40. In ruling for Burnett, the court concluded that "an employee must show that the employer discriminated 'because of . . . age' and that the employee was at least forty when the ultimate act of discrimination -- the termination -- occurred." In contrast, the dissent concluded that Burnett failed to show that he was treated differently not merely because of his age but because he was at least 40 years old.

Here, I think the majority has the better argument. If someone discriminates against someone based on age, it's almost always going to be based on the general perception that the person is too old, not because the person is too old because he is 40 or older, and wouldn't be too old if he were merely 39. The protected class defines who can recover when treated adversely based on the perception that he is too old and does not require age-motivated bias specifically targeting workers 40 or older.

The dissent also noted that Burnett's supervisor had already decided to fire Burnett before he turned 40. If the supervisor's decision had been enough and didn't need to be approved, then Burnett was arguably fired before he was 40, even if he was notified later. However, it appears that the supervisor needed to consult with HR, so Burnett was not actually fired until a few weeks later after he'd already turned 40.

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, June 10, 2018

Jefferson v. Sewon America, Inc.: Does Title VII's prohibition against "limit[ing], segregat[ing], or classify[ing]" employees apply to individual claims of disparate treatment?

In Jefferson v. Sewon America, Inc., 17-11802 (11th Cir. June 1, 2018), the Eleventh Circuit addressed the scope of section 703(a)(2) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(2)), which makes it unlawful for an employer to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." The scope of this provision is rarely litigated, so any decision that provides some insight is worth highlighting. The court allowed Jerberee Jefferson to proceed under section 703(a)(1) with her claim that she was denied a transfer because of her race, but refused to allow her to challenge the action under section 703(a)(2), reasoning that the latter provision "applies not to discrete decisions made by an employer directed at an individual employee, but to categorical policies that have a discriminatory purpose or effect."

This analysis strikes me as correct. The Supreme Court has previously described 703(a)(1) as the disparate treatment provision and 703(a)(2) as the disparate impact provision. Consistent with that principle, the Eleventh Circuit, concluded that 703(a)(2) targets policies of general applicability, rather than an isolated instance of disparate treatment, as Jefferson had alleged.

It's not clear whether this limitation will have a practical effect on plaintiffs' ability to bring discrimination claims under Title VII, since the vast majority of claims are brought under 703(a)(1). Taking a cue from the EEOC, however, Jefferson may have alleged violations of both 703(a)(1) and 703(a)(2) because she thought the court might conclude that her transfer was not a materially adverse action covered by (a)(1) but was nevertheless actionable under (a)(2). In EEOC v. AutoZone, Inc., the EEOC argued that any action to limit, segregate, or classify employees because of race or another protected characteristic constitutes a per se Title VII violation under (a)(2). The Seventh Circuit rejected this contention, but it's possible that a different circuit will agree with the EEOC. If so, then the Eleventh Circuit's decision might preclude plaintiffs from challenging some practices that are not actionable under section 703(a)(1) unless they have a disparate impact on a protected class.

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.

Masterpiece Cakeshop v. Colorado Civil Rights Commission: Lessons for Transgender Bathroom Access from Justice Gorsuch's Concurrence

While the Supreme Court's decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n may have offered little insight into how the Court will eventually balance religious freedom and LGBT rights in a future case, the concurrence of Justice Neil Gorsuch may portend the obstacles that plaintiffs could face in prevailing on another important LGBT rights issue -- transgender bathroom access.

For a brief time in early 2017, before Gorsuch was sworn in, the Court was slated to take up that issue in a case brought by high school student Gavin Grimm, a transgender male, but the Court ended up sending Grimm's case back to the lower courts without addressing the merits. A little more than a year later, on May 22, 2018, Federal District Court Judge Arenda L. Wright Allen refused to dismiss Grimm's claim that the Gloucester County School Board's policy of assigning bathroom access based on "biological gender" constituted unlawful sex discrimination under Title IX of the Education Amendments Act of 1972. Before too long, the Supreme Court is likely to once again be facing the thorny issue of transgender bathroom access. Unfortunately for transgender individuals, if Justice Gorsuch's concurrence in Masterpiece Cakeshop is any guide, they will face a daunting challenge.

To establish that a policy of assigning bathroom access on the basis of biological gender constitutes unlawful sex discrimination, whether in the educational context or in the employment context, a plaintiff has to show, first, that discrimination based on transgender status constitutes sex discrimination and, second, that basing bathroom access on biological gender unlawfully discriminates against transgender individuals based on their transgender status. When courts have ruled that a bathroom policy discriminates based on transgender status, they have only considered the first issue, whether discrimination based on transgender status constitutes sex discrimination, and they have neglected the second, merely assuming that a policy like the one adopted by the Gloucester County School Board discriminates based on transgender status. For instance, relying on a Seventh Circuit decision, Judge Wright Allen concluded that Grimm had sufficiently pled sex discrimination in alleging that he was required to use bathrooms not in conformity with his gender identity, thus subjecting him to different treatment than non-transgender students. The flaw in this analysis is readily apparent upon consideration of Justice Gorsuch's concurrence in Masterpiece Cakeshop, which was joined by Justice Samuel Alito.

As explained by Gorsuch, the record showed that Jack Phillips would not sell a cake celebrating a same-sex wedding to anyone, regardless of the individual's sexual orientation. Although he may have been aware that his refusal had the effect of leaving gay men and lesbians underserved, there was no evidence that he refused to serve them because of their sexual orientation. Rather, it was because of his religious objection to same-sex marriage.

Similarly, the Gloucester County School Board assigns bathrooms and other sex-segregated facilities by biological gender, regardless of an individual's gender identity. The effect of this policy, as Judge Wright Allen observed, is to allow non-transgender students to use facilities consistent with their gender identity, but to deny transgender students the same right. In adopting this policy, the school board was presumably motivated by the desire to protect the bodily privacy interests of all students, not to deny transgender students a benefit that is provided to non-transgender students. In other cases, where schools have chosen to allow bathroom access consistent with gender identity, the effect is to require non-transgender students to share facilities with individuals of another biological gender. If the Gloucester County School Board's policy discriminates against transgender students, then don't these alternative policies discriminate against non-transgender students?

A biological-gender bathroom policy also has the effect of allowing gay and lesbian students to share facilities with individuals of the biological gender to whom they are sexually attracted and the effect of requiring heterosexual students to share facilities with other students who are sexually attracted to members of their biological gender. Does this mean that the policy discriminates against heterosexual students, either by not allowing them to share facilities with individuals to whom they are sexually attracted or by violating their right to bodily privacy? If assigning bathroom access based on biological gender discriminates because of transgender status, then it would seem to discriminate no less because of heterosexual status.

As Justice Gorsuch observed: "The law . . . sometimes distinguishes between intended and foreseeable effects. Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge." Although prohibitions against sex discrimination, including Title IX and Title VII, typically fall into the former category, this fact has been largely overlooked in challenges to bathroom policies.

To be sure, an actor's awareness that his action will disproportionately harm members of a protected group, such as transgender individuals, may be evidence that the actor intended to discriminate against members of that protected group. On the other hand, if there is evidence of a nondiscriminatory motive, as there generally will be with respect to a bathroom policy, then the mere fact that an entity took an action in spite of its effects on a protected group will not be enough to show that the entity acted because of the effects on a protected group. The failure to recognize this crucial difference is reflected in the legal reasoning in Judge Wright Allen's decision where she assumes that the Gloucester County School Board's policy necessarily discriminates on the basis of gender identity merely because of its effect on transgender individuals.

Although prohibitions against sex discrimination are typically not limited to intentional discrimination, it seems doubtful that a sex discrimination claim could be based solely on the disparate effects of a policy on transgender individuals. From all appearances, arguments that transgender status discrimination constitutes sex discrimination have been limited to theories of intentional discrimination. And for good reason -- a policy that merely has a disparate impact on transgender (or nontransgender) individuals does not discriminate against males or females. In the view of Judge Wright Allen and quite a few other judges, discrimination based on transgender status constitutes sex discrimination because it is a form of gender stereotyping, akin to discriminating against a man because he is effeminate or a woman because she is masculine. Thus, intentionally discriminating against an individual based on his or her gender identity is sex discrimination because it necessarily means that the individual is treated differently because of that individual's maleness or femaleness. By contrast, even if a practice, such as a bathroom policy, disproportionately harms transgender individuals as a group, it does not necessarily disproportionately harm male bathroom users or female bathroom users, any more than it necessarily disproportionately harms African American bathroom users or white bathroom users.

Equitable arguments may very well favor segregating facilities by gender identity, but it does not follow that a contrary policy violates prohibitions against sex discrimination. If claims challenging bathroom policies are to succeed where it ultimately matters -- before the Supreme Court -- then LGBT advocates would do well to heed Justice Gorsuch's concurrence and grapple with the crucial distinction between intended and foreseeable effects.

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.