Sunday, March 11, 2018

Shell v. BNSF Railway: Is it unlawful to discriminate against someone who is obese because he may become disabled in the future?

In Shell v. BNSF Railway, No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018), District Court Judge Sharon Coleman denied the defendant's motion for summary judgment on Ronald Shell's claim that the defendant violated the Americans with Disabilities Act by withdrawing a job offer because of his obesity. Coleman's decision stands apart from most other decisions on this issue, which have rejected coverage of obesity-related discrimination under the ADA.

Noting uniform agreement among the courts of appeals, Coleman rejected coverage based on obesity that is not the result of an underlying physiological disorder. She concluded, nonetheless, that Shell's claim was covered because the defendant treated Shell as if he had an impairment related to his obesity.
Here, BNSF has readily admitted that it refused to hire Shell based on its fear that he would develop sleep apnea, diabetes, or heart disease, and that as a result he might become suddenly and unexpectedly incapacitated while performing his duties. Shell does not suffer from any of these conditions at present . . . .  But there can be no doubt that, at a minimum, there exists a dispute of material fact as to whether BNSF is treating Shell as if he does suffer from those conditions. 
Coleman's decision is inline with EEOC v. Amsted Rail Co., No. 14-cv-1292-JPG-SCW (S.D. Ill. Nov. 16, 2017), where the court concluded that the defendant regarded the plaintiff as disabled when it refused to hire him because it feared he posed a safety risk in light of his medical history.

By contrast, in the recent decision EEOC v. Massage Envythe court rejected a claim by the EEOC that the defendant violated the ADA by firing an employee because she might become disabled in the future as the result of voluntary conduct. In that case, because the plaintiff's potential for becoming disabled in the future was tied to voluntary conduct, it might be distinguishable from Shell and Amsted Rail. Moreover, as Judge Coleman noted, a decision based on a fear that an individual will become disabled in the future is grounded in the "sort of myth, fear, or stereotype which the ADA is meant to guard against." In Coleman's view, the defendant has contended that, "although it is prohibited by law from discriminating against individuals who actually have disabilities, it should be free to discriminate against those who are likely to have disabilities but have not yet developed them." She describes this argument as "facially illogical" and "antithetical to the protections afforded by the [ADA]."

On the other hand, the reasoning in Shell and Amsted Rail appears to be contrary to the text of the ADA, which would seem to limit coverage to discrimination based on a record of a disability or a present impairment. If an employer bases a decision on the likelihood that an employer may develop an impairment, it is not basing its decision on a present impairment but the potential for a future impairment. Congress drafted the ADA to cover certain classes of individuals, and the text of the ADA does not appear to cover discrimination based merely on the potential to develop an impairment in the future.

Right now, Coleman's interpretation seems to be an outlier, but if widely adopted, it could greatly expand coverage of obesity-related disability claims.

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.

Penn v. N.Y. Methodist Hospital: Does the ministerial exception apply even when the plaintiff does not personify the defendant's religious beliefs?

In Penn v. New York Methodist Hospital, 16-474-cv (Mar. 7, 2018), the Second Circuit held that Marlon Penn's claims of race and religious discrimination and retaliation were barred by the ministerial exception, which limits the application of civil rights laws to prevent conflicts with the First Amendment's religion clauses. This decision is notable because, rather than focusing on the usual question of whether the plaintiff, a hospital chaplain, could be considered a minister, it focused on whether the defendant could be considered a religious group. The principal disagreement between the majority and the dissent was whether the exception applied where even if the defendant as a whole could not be considered a religious group, the department in which Penn had worked, the Department of Pastoral Care, could be considered a religious group.

Although I agree with the dissent that the ministerial exception did not apply, I don't think it's because the defendant as a whole did not qualify as a religious group. There was no dispute that Penn's position was religious in nature, so it's not surprising that the judges focused on whether the defendant was sufficiently religious. This analysis, however, seems to overlook another crucial aspect of the ministerial exception. To my mind, not only must the plaintiff be a "minister" and the defendant a "religious group," there also must be something akin to a minister-church relationship between them. As explained by the Supreme Court in Hosanna Tabor Evangelical Lutheran Church & School v. EEOC:
The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
The role of chaplains in the Department of Pastoral Care is to minister to the religious needs of hospital patients and their families. As noted by the dissent, none of the full-time chaplains in the Department of Pastoral Care were Methodist. To be sure, the defendant may have had religious reasons for objecting to Penn's job performance, but it also could have religious reasons for objecting to the job performance of employees whose work is not of a religious nature, and the ministerial exception clearly would not apply to the latter. Here, although Penn's position and the department in which he worked were religious, it does not appear that applying the EEO laws to Penn's position would infringe on the defendant's "right to shape its own faith and mission through its appointments." If an employer is a Methodist religious organization, then the ministerial exception should logically be limited to individuals whose job responsibilities require them to "personify" the organization's Methodist beliefs, and should not extend to employees whose positions merely happen to be of a religious nature.

Contrary to the dissent, however, I would think that the ministerial exception can apply even if the defendant as a whole is not a religious group. For example, if a hospital department hires exclusively Methodist chaplains to personify the department's Methodist beliefs, I see no reason that the exception should not apply merely because the hospital as a whole is predominantly secular.

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, March 10, 2018

Horton v. Midwest Geriatric Management: Is sexual orientation discrimination religious discrimination?

In Horton v. Midwest Geriatric Management, currently on appeal in the Eighth Circuit, the appellant is alleging not only that sexual orientation discrimination is sex discrimination under Title VII but also that it is religious discrimination when motivated by religious animosity toward homosexuality. The argument that an employer's religious motivation converts an otherwise lawful motivation into one that is prohibited strikes me as fatally flawed, and I'm surprised that it has not been laid to rest.

Consider that under Title VII "religion" is defined as including moral and ethical views that are held with the strength of traditional religious views. I feel strongly that murder is unethical, so if I were an employer and refused to hire a murderer, that would be religious discrimination. If I didn't feel so strongly, however, it would not be religious discrimination. There's no denying that Congress has passed some stupid laws, but they still deserve more credit than that. 

There may be cases where discrimination against an individual for conduct contrary to a supervisor's religious beliefs might be covered because it was tied to the victim's own religion. If a Mormon supervisor singles out gay and lesbian Mormons for worse treatment than gay and lesbian non-Mormons, that would be unlawful. But if a Mormon supervisor and a non-Mormon supervisor both discriminate against gay and lesbian employees, even though only the former is driven by an underlying religious motivation, then it is illogical to conclude that the former has treated LGBT employees worse because of the employees' religion but the latter has not.

Employers are not free to do whatever they want to do merely because it is motivated by religious reasons, but neither can they be singled out. There's a little thing called the U.S. Constitution. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court struck down a city ordinance that prohibited the killing of animals for religious sacrifice but not for other purposes, such as food consumption. In reaching this conclusion, the Court explained: "The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause." 

Discrimination based on sexual orientation may be morally wrong, but it is neither more nor less wrong when rooted in religion, nor should it be any more or less 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.

EEOC v. Harris Funeral Homes: Transgender Employees, Dress Codes, and Bathroom Access

On March 5, 2018, the Sixth Circuit handed down its decision in EEOC v. R.G. & G.R. Harris Funeral Homes, ruling that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on gender identity and that the defendant was not entitled to a defense under the Religious Freedom Restoration Act when it fired Aimee Stephens for being a transgender woman. I've been particularly interested in this case to see how the court would handle the thorny issue of reconciling LGBT protections with sex-specific dress codes. In particular, if an employer is permitted to require employees to conform to stereotypical gender-based norms about how to dress, then how can it be unlawful for employers to discriminate against LGBT employees for failing to conform to stereotypical gender norms? 

Following on the heels of the Second Circuit's decision in Zarda v. Altitude Express, holding that Title VII prohibits sexual orientation discrimination, the Sixth Circuit is the second court of appeals in the last couple weeks to take on the dress code issue. As I've discussed before, the Second Circuit's attempt to tackle this issue was pretty much a disaster. In the main opinion in Zarda, Judge Robert Katzmann explained that sex-specific dress codes have been held to be lawful because they do not treat members of one sex worse than members of the other sex. In other words, the sexes are treated differently, but those differences do not burden members of one sex more than members of the other sex. The implications of this analysis for transgender workers are obvious: a transgender woman can be required to wear male attire. 

I had high hopes for the Harris Funeral Homes decision. The good news is that the Sixth Circuit avoided the trap that the Second Circuit fell into. The Sixth Circuit criticized Jespersen v. Harrah's Operating Co., the leading court of appeals decision upholding sex-specific dress codes, noting that the Sixth Circuit had previously held in Smith v. City of Salem that requiring an employee to dress or act in a manner consistent with his or her sex violates Title VII. The bad news, however, is that the court has issued an utterly baffling decision that's impossible to make heads or tails of. 

The court repeatedly signals in Harris Funeral Homes that it is not addressing the permissibility of sex-specific dress codes in general, saying that the issue is "not before the court." Yet ultimately, the court apparently thought that the defendant would violate Title VII not only if it fired Stephens for being transgender but also if it fired her solely for refusing to comply with a sex-specific dress code. Thus, the court rejected the defendant's argument under the Religious Freedom Restoration Act that allowing the defendant to impose a sex-specific dress code would be a less restrictive alternative: 
The Funeral Home's proposed alternative -- to "permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work" -- is equally flawed. The Funeral Home's suggestion would do nothing to advance the government's compelling interest in preventing and remedying discrimination against Stephens based on her refusal to conform at work to stereotypical notions of how biologically male persons should dress, appear, behave, and identify. Regardless of whether the EEOC has a compelling interest in combating sex-specific dress codes -- a point that is not at issue in this case -- the EEOC does have a compelling interest in ensuring that the Funeral Home does not discriminate against its employees on the basis of their sex. 
The court's discussion is nonsensical. If a sex-specific dress code is not a less restrictive alternative because the government has a compelling interest in ensuring that the defendant does not discriminate based on sex, then the court necessarily must be concluding that a sex-specific dress code impermissibly discriminates against Stephens based on her sex. The court cannot have it both ways. 

So what's going on here? 

One possibility is that the court mistakenly believes that, even if sex-specific dress codes do not discriminate based on sex, they constitute unlawful sex stereotyping against Stephens. This understanding is reflected in the court's apparent view that Stephens has two distinct claims: unlawful sex stereotyping and unlawful sex discrimination.  Title VII, however, does not prohibit sex stereotyping per se. Rather evidence of sex stereotyping can help establish unlawful sex discrimination. As a result, if a sex-specific dress code discriminates against Stephens because it requires her to dress in attire stereotypically associated with biological males, then the dress code obviously discriminates against all biological males and biological females. 

Another possibility is that the court somehow believes that a sex-specific dress code can violate Title VII where, regardless of whether it discriminates against someone for being male or for being female, it discriminates based on gender identity. If so, then the court misunderstands the limits of its own legal analysis. Even if the court correctly concluded that Title VII prohibits discrimination based on transgender status, that conclusion comes with a significant caveat. In concluding that transgender discrimination is a form of sex discrimination, the court explains at one point: "[W]e ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women's dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens's sex impermissibly affected [the employer's] decision to fire Stephens." In the same vein, the court elsewhere explains: "Because an employer cannot discriminate against an employee for being transgender without considering that employee's biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex -- no matter what sex the employee was born or wishes to be." Thus, as explained by the court, although Title VII does not prohibit discrimination based on gender identity in and of itself, gender identity discrimination necessarily means treating someone differently based on his or her biological sex, which is prohibited by Title VII.

BUT, to the extent gender identity discrimination does not treat someone worse for being a man or for being a woman, it is not a form of sex discrimination and therefore not covered by Title VII. For example, Title VII prohibits facially neutral employment practices that disproportionately exclude members of one sex unless justified by business necessity. A policy that disproportionately excludes transgender individuals or non-transgender individuals, however, would not implicate Title VII, because even under the analysis in Harris Funeral Homes, an individual's sex is whether that individual is male or female and not whether that individual is transgender or non-transgender.

The need to distinguish gender identity discrimination resulting in sex discrimination from pure gender identity discrimination is especially important in the context of access to single-sex facilities. In Harris Funeral Homes, the court cites an earlier decision (Dodds v. Department of Education) refusing to stay a preliminary injunction ordering a school district to treat a transgender girl as a female and allow her to use the girl's bathroom. In that case, the court reasoned that circuit precedent prohibits sex stereotyping based on gender non-conforming behavior. As suggested by this analysis, the Sixth Circuit may mistakenly believe that Title VII prohibits sex stereotyping independently from sex discrimination or may mistakenly believe that Title VII prohibits gender identity discrimination independently from sex discrimination. 

In citing Dodds, the court suggests that Title VII requires bathroom access consistent with an  individual's gender identity, but that is not supported by the court's own analysis upholding the EEOC's claim on behalf of Stephens. If a transgender woman is treated differently from non-transgender women with respect to bathroom access, then she is being treated differently solely because of her gender identity and not also because of her biological sex. 

Conceivably, prohibiting a transgender woman from using the women's bathroom might be seen as sex discrimination rooted in the stereotype that women should not be masculine. Such a Title VII claim, however, would require that a transgender woman be regarded as "female," as noted in the Dodds case. In Harris Funeral Homes, the court refers to Stephens repeatedly as being biologically male, ponders whether Stephens would have been fired if she were a woman, and explains that it is using the pronoun "she" in accordance with Stephen's preference. In short, the court obviously views a transgender woman as male. Further, the court explicitly adopts the reasoning in Schroer v. Billington, holding that discrimination based on a change in sex violates Title VII, and thus, the refusal to hire an applicant "after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination 'because of . . . sex.'" The implication seems to be that a transgender woman would be entitled to use the men's bathroom until sex reassignment surgery and then the women's bathroom. For bathroom access to turn solely on gender identity, the term "sex" in Title VII must mean more than biological sex.

In his 1984 decision in Ulane v. Eastern Airlines, Inc. Federal District Court Judge John Grady interpreted Title VII in just that way:
I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, "sex," as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.
Under this interpretation, Title VII would prohibit gender identity independently from biological sex. A dress code or bathroom policy might discriminate based on gender identity even if it does not discriminate based on sex. Because Grady's interpretation was reversed on appeal, however, no court applies this standard.

For more on this case, see these prior posts on the oral argument on appeal and the 
district court decision.

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.