Sunday, April 29, 2018

Does transgender locker room access violate the privacy rights of non-transgender individuals?

The Washington Post has a recent story about a transgender boy, Max Brennan, who has sued his school seeking access not only to the boys' bathroom but also the boys' locker room. Last year, in a case brought by high school student Gavin Grimm, the Supreme Court was to take up the issue of transgender bathroom access, with Grimm specifically stating that he was not seeking locker room access. That case was dismissed, but since then, the Seventh Circuit upheld a transgender boy's right to use the boys' bathroom at his school. Relying on that Seventh Circuit case, a district court judge has allowed Brennan to proceed with his suit. Notwithstanding some initial success, I don't believe LGBT advocates have made a persuasive, or even coherent, argument that prohibitions against sex discrimination require transgender bathroom access. Nevertheless that does not mean that there are not compelling equitable arguments, and those are the focus of this post.

The issue of transgender access to single-sex facilities is generally understood as requiring that the rights of transgender individuals be balanced against the bodily privacy rights of non-transgender users. In opposing the petition for certiorari to the Supreme Court, Grimm pointed out that the presence of a fully clothed transgender man in the women's bathroom may be more discomfiting than the presence of a transgender man in the men's room. Although Grimm suggested that bodily privacy interests may be based on genitalia when it comes to accessing lockers rooms but not bathrooms, this view strikes me as mistaken. A transgender woman using the women's bathroom may raise fewer eyebrows than a transgender woman using the men's bathroom, but that's not because bathroom privacy interests are necessarily unrelated to genitalia. It merely reflects that we assume that someone who looks like a woman while she is clothed should use the women's restroom. We obviously can't inspect people's genitals before they use a bathroom, so it makes sense to align bathroom usage with gender presentation. In a workplace, this may be more of an issue because, unlike with users of a bathroom in a sports arena, for instance, employees are much more likely to know that a coworker is transgender. Nevertheless, even assuming bodily privacy interests are tied to genitalia, most public bathroom users don't expose their genitals to other users, so aligning bathroom usage with gender identity seems like the best approach.

In the context of locker rooms and other facilities in which users can be seen unclothed, it's much less clear that bodily privacy interests can be minimized sufficiently to avoid the issue of genitalia. If we see a person dressed like a woman entering the women's bathroom, we are likely to assume that she is a woman, but if we see an unclothed person in the women's locker room, and she has a penis, we are much less likely to assume she is a woman. A while back, I wrote a short post about a colleague of mine who was using the women's locker room at a fitness center when she saw an unclothed transgender woman and, assuming the member was male, told the member she was in the wrong locker room. Of course, even if a transgender woman using a women's locker room has a penis, she still might be recognized by non-transgender users as a woman.

Even if individuals may have bodily privacy interests that should be respected, it's important to recognize that expectations about bodily privacy are a product of social custom and largely arbitrary. In the United States, for instance, topless female sunbathers are not welcome at most beaches but would be welcome at many European beaches.  And I was amused when I visited a science museum in Amsterdam and viewed an exhibit geared at teenage workers that used stick figures to illustrate sexual positions and that had an interactive display to demonstrate French kissing. 

Socially constructed privacy expectations presumably arose when there was no recognition of the interests of transgender individuals. Privacy expectations that are grounded in the assumption that an individual with a penis perceives himself as male may not be transferable to circumstances when sexual anatomy and gender identity are not aligned.

Even without regard to transgender individuals, it's clear that genitalia are not necessarily the best measure of whether someone should be deemed male or female for purposes of bodily privacy interests. An obvious example is a biologically male individual who has lost his genitalia, such as through a combat injury. Such an individual obviously has not somehow become female through the loss of his male genitalia. Likewise, it seems to make little sense to believe that a transgender woman should use the male locker room before she undergoes gender reassignment surgery and then the women's locker room afterwards. 

Given that privacy expectations are purely the product of social construction and that transgender rights are a new issue, we may do better not to rely on assumptions that don't fit these new circumstances. If we do so, then we can be free to evaluate the issue of transgender access from the perspective of fairness, and from that perspective, I think it follows that we should allow transgender access to single-sex facilities based on gender identity, not genitalia.

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, April 27, 2018

Kleber v. CareFusion Corp.: Does federal law protect applicants against unintentional age discrimination?

Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. Apr. 27, 2018), is an important new decision on the scope of protections afforded older workers under the federal Age Discrimination in Employment Act. Dale Kleber was rejected for a position as senior counsel that required applicants to have three to seven years of experience. In his suit, he has alleged that the seven-year cap has an unlawful disparate impact on older workers. In allowing Kleber to proceed with his claim, the Seventh Circuit has set up a circuit split with the Eleventh Circuit, which could lead to Supreme Court review if not reversed by the full Seventh Circuit. The key issue here is whether the ADEA allows disparate impact claims by applicants.

Notably, the disparate impact provision of the ADEA refers to a practice that limits, segregates, or classifies an employer's "employees," whereas Title VII of the Civil Rights Act of 1964 refers to a practice that limits, segregates, or classifies an employer's "employees or applicants for employment."

One response is to say that the difference is essentially meaningless. The reference to "applicants" in Title VII was only added in 1972, and that was after the Supreme Court had already interpreted the disparate impact provision to apply to employees in Griggs v. Duke Power Co. Thus, based on this view, the addition of "applicants" by Congress did not have any effect of Title VII's coverage of disparate impact claims. In rejecting this argument, the Eleventh Circuit concluded that Griggs was not about applicants, so they were only protected after the 1972 amendment.

But even if you accept that Griggs was about applicants, it still can be distinguished. In Gross v. FBL Financial Services, the Supreme Court concluded that the ADEA requires but-for causation because, unlike Title VII, Congress did not amend it in 1991 to specify that "motivating factor" causation is all that is needed. But wait, in 1989 in Price Waterhouse v. Hopkins, the Supreme Court had already determined that Title VII requires only motivating-factor causation. If the Supreme Court concluded in Gross that a congressional amendment to Title VII, but not the ADEA, to explicitly adopt the Price Waterhouse motivating factor standard was meaningful, then it may feel the same about the 1972 amendment to adopt coverage of applicants under Griggs. If so, older applicants would be out of luck when it comes to disparate impact claims under federal law.

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.

Breastaurants and #MeToo

The Chicago Tribune has reported that some female servers and bartenders have filed EEOC charges against the Twin Peaks breastaurant in Orlando Park, Illinois. Unlike previous claims brought by male applicants against Hooters challenging its female-only Hooters Girl policy, these new claims do not appear to present an existential threat to breastaurants, so fans of those high-brow establishments can take a sigh of relief. The principal claim appears to be sexual harassment, based on the alleged requirement that female servers have been required to wear overly revealing clothing, among other practices. Even if it's lawful to hire only women for certain positions, they're still protected, of course, against sexual harassment, and a breastaurant worker might be particularly vulnerable. In the wake of #MeToo, this could be an interesting 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.

Thursday, April 26, 2018

Who's crying now that the jury has awarded $5 million in the Onionhead case?

The EEOC has reported that a unanimous jury returned a $5 million verdict yesterday against United Health Programs of America in the Onionhead case. As I explained previously, this case is largely premised on what Judge Matsumoto described as "reverse religious discrimination" claims, which alleged that the employer imposed its religious practices and beliefs on employees. Coverage of such claims under Title VII, however, is dubious at best, given the statutory language of the act and the constitutional guarantee of religious freedom. The same fallacy underlies claims that sexual orientation discrimination constitutes religious discrimination if motivated by the religious views of the person engaging in the discrimination. (See here.) I can't imagine that an anthropomorphic onion would be too happy about a $5 million verdict, so this may not be the end of the story.

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, April 25, 2018

The Flawed Equal Pay Laws Adopted by Massachusetts and New Jersey

Aside from sexual harassment, the hot EEO issue of the moment is equal pay. The Ninth Circuit's recent decision prohibiting employers from relying on salary history may be an outlier when it comes to interpreting the federal Equal Pay Act, but states and local governments have been proceeding full speed ahead in adopting their own measures. Unfortunately, the approaches they have taken are all over the place. This post looks briefly at the measures adopted by Massachusetts and New Jersey, which are both significantly flawed in their own way.

The Massachusetts law prohibits employers from paying workers of the opposite sex performing substantially similar work different wages unless justified by certain specified exceptions. Since the federal Equal Pay Act only applies to workers performing "substantially equal" work, the Massachusetts law may make it somewhat easier for a plaintiff to establish a prima facie case. Much more significant is the narrow list of specific exceptions. By contrast, the federal Equal Pay Act states that an employer may rely on any factor other than sex to justify a pay discrepancy.

One of the risks in limiting employers to a narrow set of exceptions is that legislators are bound to forget something important. Consider that the guidance issued by the Massachusetts Office of the Attorney General explains that an employer may pay part-time and full-time workers in the same job different hourly rates. A pay disparity based on part-time status, however, does not fit within any of the identified exceptions in the Massachusetts law -- seniority; merit system; system based on quality of quantity of production, sales, or revenue; geographic location; education, training, or experience; or travel requirements. There is absolutely no question that these are the only recognized exceptions, and I don't see how you could reasonably argue that part-time status fits under any of them. If the current Massachusetts AG can make up a new exception out of whole cloth, then perhaps later AGs can tack on their own exceptions. I don't mean to contend that part-time status is never a legitimate reason for paying someone at a lower hourly rate, though it's notable that women continue to be much more likely than men to work part time. Rather, I'm pointing out that the Massachusetts law seems to be so poorly thought out that the AG is already having to adopt an interpretation that fails the laugh test. 

The New Jersey law also requires equal pay for workers performing "substantially equal work," but unlike the Massachusetts law, it provides an open-ended exception. The law requires that the employer establish that a pay discrepancy is based on a factor that is "job-related with respect to the position in question and based on a legitimate business necessity."  Moreover, the employer cannot rely on the factor "if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential."

This standard is a modification of the employer defense in a disparate impact claim, where a challenged screening practice disproportionately screens out members of a protected group. While it is a good fit in that context, it is not well-suited for evaluating the legitimacy of a pay disparity. If an employer adopts a test to screen out unqualified job applicants and the test disproportionately screens out women, for instance, the employer might try to establish business necessity by showing that the test is a fair measure of whether someone would be able to perform the job in a satisfactory manner. By contrast, it is not clear when an employer would have a business need to pay someone more because he has better job-related qualifications than a female employee doing the same job. Why couldn't the employer just pay the female employee as much as the male without lowering the male employee's pay? And what for God's sake is an alternative business practice that serves the same business purpose? In the disparate impact context, an alternative is a measure that allows an employer to screen out unsatisfactory applicants without disproportionately excluding a protected class. There is no obvious counterpart in the equal pay context. By importing disparate impact principles into the equal pay context, the New Jersey legislature was obviously aiming to strengthen equal pay protections, but in trying to achieve that goal, it adopted a standard that will only leave employers and courts scratching their heads.

Understandably, the New Jersey legislature may have wanted to adopt a more limited exception than the broad catchall exception under the federal Equal Pay Act. Rather than trying to fit a square peg into a round hole, however, the state could have looked to EEOC guidance and federal case law that has interpreted the federal Equal Pay Act narrowly to require an employer to show that a pay discrepancy is based on a factor that is related to the job or is based on another acceptable business reason.

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. Phase 2 Investments: Are undocumented workers covered by the EEO laws?

As explained in EEOC v. Phase 2 Investments, No. JKB-17-2463 (D. Md. Apr. 17, 2018), undocumented workers are covered by the EEO laws, but there is a significant caveat. Since immigration law prohibits the hiring of undocumented workers, any remedies available for EEO violations must be consistent with immigration law. What this means effectively is that undocumented workers probably have little recourse if they are not hired or were fired for discriminatory reasons, but they could be entitled to relief if subjected to discrimination on the job, such as in the form of a hostile work environment or wage discrimination. Providing a remedy for on-the-job discrimination is consistent with immigration law because employers would have an incentive to hire undocumented workers and violate immigration law if workplace protections did not apply to them. Although the court in Phase 2 states that undocumented workers cannot obtain back pay, that may not be true for what the Department of Labor calls "work actually performed." If an employer were not required to provide back pay to an undocumented worker who was underpaid in violation of minimum wage laws or EEO laws, that restriction might encourage employers to hire undocumented workers. 

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

Is the requirement that sexual harassment be "severe or pervasive" too high a bar?

The Minnesota state legislature is considering a bill that would modify the definition of unlawful sexual harassment under state law to provide that a hostile work environment claim does not require that the harassment have been "severe or pervasive." Spurred by #MeToo, the change is intended to lower the bar for establishing unlawful sexual harassment, because the current standard is perceived as being too onerous.

As an initial matter, the first question that needs to be asked is whether the standard is indeed too high. Writing for every member of the Supreme Court, Justice Sandra Day O'Connor explained in Harris v. Forklift Systems:
When the workplace is permeated with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Title VII is violated.
This standard . . . takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, "mere utterance of an . . . epithet which engenders offensive feelings in an employee" does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview. 
As reflected in Justice O'Connor's opinion, the requirement that harassment create a hostile work environment is a balanced approach that is intended to exclude run-of-the-mill offensive conduct while still not limiting claims to the most extreme cases. The key is whether a reasonable person would have perceived the conduct as creating a hostile work environment.

The change contemplated by the Minnesota legislature suggests that they misunderstand the current standard for unlawful harassment. The ultimate issue is whether the challenged conduct results in a hostile work environment, not whether the conduct is "severe or pervasive" in an abstract sense. Thus, in Harris, the Court explained:
[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological wellbeing is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But, while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.
Harris clarified that severity and pervasiveness are merely part of "all the circumstances" that must be considered in evaluating whether conduct creates a hostile work environment. The more severe harassment is, the more likely harassment is to be actionable, all other things being equal. But there is no requirement that harassment necessarily be severe or pervasive. If conduct is really serious, then a little bit will be enough to establish a hostile work environment. Conversely, if conduct is not terribly serious, then it will have to be more frequent to be actionable. But conduct also can be actionable if it is moderately serious and moderately frequent -- in other words, neither severe nor pervasive -- and it is reasonably perceived as creating a hostile work environment. Severity and pervasiveness, like all considerations, are not evaluated independently but with respect to the creation of a hostile work environment.

Understandably, the Minnesota legislature is concerned that the current standard is being used to exclude meritorious claims. Still, the fact of the matter is that there will always be examples of claims that probably should not have been rejected, and examples of claims that should have been rejected. The point is to adopt a balanced standard that does not err too much on one side or the other. Merely pointing to some isolated examples of cases that probably should not have been rejected does not tell us whether the standard generally operates to exclude too many cases. 

Confusingly, the proposed Minnesota legislation only modifies the definition of sexual harassment; it does not modify the definition of other forms of unlawful harassment, not even sex-based harassment that is not sexual in nature. Thus, if someone alleges sex-based harassment that is both sexual and nonsexual, such as gender epithets and sexual comments, then different standards would apply depending on whether the challenged conduct is sexual. The #MeToo movement has highlighted sexual harassment, but all forms of prohibited harassment are objectionable, and it's not clear that sexual harassment should be singled out for special treatment.

As I've discussed, the standard for unlawful harassment is whether it creates a hostile work environment -- not whether it is severe or pervasive -- and the Minnesota bill would not change that standard. The extent to which the conduct was severe or pervasive is certainly relevant, but this seems to have escaped the notice of those who drafted the bill. If there are concerns that too many sexual harassment claims are being rejected by courts, then rather than focus on what is not required, better to focus on what is required for harassment to create a hostile work environment. For example, the legislature could clarify that when evaluating whether a female employee was subjected to a sexually hostile work environment, it is important to evaluate the conduct from the perspective of a reasonable woman, since the sex of the victim is among the relevant circumstances.  

As it is, the law on sexual harassment is hardly perfect, but the Minnesota legislature should look before it leaps by adopting legislation that may only make matters worse.

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, April 20, 2018

Are dreadlocks really dreadful, or is that just a racial stereotype?

Vox reports that Chastity Jones, an African American woman who was rejected for a customer service position by Catastrophe Management because she refused to cut off her dreadlocks, has asked the Supreme Court to take up the issue of whether an employer's prohibition on dreadlocks constitutes unlawful race discrimination under Title VII of the Civil Rights Act of 1964. Jones's principal argument is that a prohibition against dreadlocks is based on stereotypes about black hairstyles and therefore a form of unlawful race discrimination. Jones relies heavily on the Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, in which the Court concluded that it is unlawful to discriminate against a woman based on sex stereotypes about how women should act or appear, such as the stereotype that women should wear makeup and should not be assertive.  

Jones's petition for certiorari incorporates the same mistake as Judge Beverly Martin's dissent from the Eleventh Circuit's denial of the petition for rehearing. Both overlook the requirement that there be some differential treatment between protected groups. 

Price Waterhouse is not the revolutionary decision that it is sometimes made out to be. The Court merely held that men can't be treated better than women based on a sex stereotype. Differential treatment between men and women is key. The Court did not hold that characteristics associated with sex stereotypes are protected in and of themselves. Discrimination against all aggressive individuals is not sex discrimination and, by extension, not a violation of Title VII. It is only when an employer treats aggressive men better than aggressive women, or vice versa, that Title VII is implicated. Thus, discrimination against a woman for being aggressive is prohibited not so much because it is a sex stereotype but in spite of its being a sex stereotype. In other words, the stereotype that a woman should not be aggressive is not an excuse for treating an aggressive woman worse than an aggressive man. Accordingly, unless there is evidence that white workers with dreadlocks are treated better than black workers with dreadlocks, Price Waterhouse doesn't provide a whole lot of support. And frankly, more consistent with Price Waterhouse would be a claim by a white individual with dreadlocks alleging she was treated worse than a black individual with dreadlocks based on the stereotype that dreadlocks are a black hairstyle. 

To be sure, it is possible that a court might conclude that a general prohibition against dreadlocks constitutes racial discrimination if the employer favors "white" hairstyles over "black" hairstyles, but comparisons to Price Waterhouse are unavailing and merely reflect misunderstanding of basic disparate treatment principles. The Supreme Court recognized that discrimination based on sex stereotypes can lead to a violation of Title VII even if the stereotypes do not involve immutable characteristics, but only where members of one sex are treated better than members of the other sex. Discrimination based on dreadlocks can therefore violate Title VII but only if, consistent with Price Waterhouse, there is differential treatment between racial groups. 

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.

An Attention-grabbing Headline: "D.C. lawmaker who said Jews control the weather visits Holocaust Museum but leaves early"

A short post from the Volokh Conspiracy highlights an unintentionally-- I assume -- funny headline from the Washington Post: "D.C. lawmaker who said Jews control the weather visits Holocaust Museum but leaves early."

The highlight of the tour was apparently the exhibit on the Warsaw Ghetto, where a rabbi clarified that the walling in of Jews was less like a "gated community" than a "prison."

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, April 17, 2018

Starry v. Oshkosh Correctional Institution.: Why aren't prisoners "employees," even if they work for a prison for pay?

In Starry v. Oshkosh Correctional Institution, 17-3373 (7th Cir. Apr. 17, 2018), the Seventh Circuit rejected Michael Starry's claim that he was fired from his prison job because of his disability, reasoning that federal employment law does not apply to employment of prisoners. Similarly, the EEOC has taken the position that a prison does not have an employment relationship with its prisoners.

The issue of whether prisoners can be considered employees is at least superficially similar to whether students can be considered employees. In both cases, the individual seeking protection clearly has a non-employment relationship with the defendant, and the question is whether he or she can also have an employment relationship with the defendant that is covered by EEO law. In contrast to the case with prisoners, however, courts and the EEOC have been more willing to conclude that students can be considered employees. For example, a student who performs work for a university as part of a graduate program and who receives a stipend might be considered an employee while she performs the work. 

So why the difference?

As I see it, the reason is that a prison's penological relationship with a prisoner always comes first. Thus, even if a prisoner is performing work, a prison's decisions with respect to that prisoner's work must be driven by penological concerns first and foremost. By contrast, an educational institution's pedagogical relationship with a student may be less important -- or at least no more important -- in some contexts than its employment relationship, and in those circumstances, a student may be protected by EEO law.

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, April 10, 2018

Will Aileen Rizo be the next Lilly Ledbetter? (Updated 6/23/18)

You may remember Lilly Ledbetter. She was Barack Obama's poster child for equal pay when he was running to be President way back in 2008, and the first bill he signed as President was named after her. Yesterday, just in time for Equal Pay Day, the full Ninth Circuit issued its decision in Rizo v. Yovino, holding that an employer may not rely on an applicant's pay history in setting his or her starting pay. So I nominate Aileen Rizo to be the next Lilly Ledbetter. Why? Because the Ninth Circuit's decision is probably the most significant equal pay decision in many, many years; it addresses a very hot equal pay issue; it takes sweeping positions that impose more restrictions on employers than those taken by any other court or even the EEOC. And perhaps most importantly, Rizo's case stands a really good shot at being taken up and reversed by the Supreme Court. If so, Rizo will then be the next poster child that politicians and equal pay advocates point to.

In Rizo, the Ninth Circuit adopted two broad positions that make it an excellent candidate for Supreme Court review: first, the court ruled that, under the Equal Pay Act, an employer cannot rely on a job applicant's prior salary either alone or in combination with other factors in setting an employee's starting pay; second, the court ruled that an employer can only rely on a job-related factor to justify a pay disparity under the EPA.

Prior to the Ninth Circuit's decision, courts had been divided as to whether an employer can rely on prior salary standing alone to justify a pay disparity or can only rely on prior salary in combination with other considerations, like an employee's job experience and education. The EEOC has taken the latter position. The Ninth Circuit took the extraordinary step of rejecting both of those positions in favor of one that prohibits any reliance on prior salary at all, even though this position was not advanced by anyone in this case.

In her concurrence, Judge McKeown faults the majority for making it difficult for employers to compete for the best employees by allowing applicants to negotiate for higher salaries based on what they currently make. The Ninth Circuit tried to temper the sweeping implications of its decision by leaving open the potential for future Ninth Circuit panels to uphold reliance on prior pay in salary negotiations:

Today we express a general rule and do not attempt to resolve its applications under all circumstances. We do not decide, for example, whether or under what circumstances, past salary may play a role in the course of an individualized salary negotiation. We prefer to reserve all questions relating to individualized negotiations for decision in subsequent cases. Our opinion should in no way be taken as barring or posing any obstacle to whatever resolution future panels may reach regarding questions relating to such negotiations.
The problem here is that if an employer cannot rely on an applicant's pay history in making an initial salary offer, it cannot rely on an applicant's pay history in upping its initial offer during salary negotiations. I don't see how the majority could believe otherwise. As a result, the Ninth Circuit has adopted the nonsensical position where an employer cannot offer up front to pay an applicant what he or she currently makes, but an employer probably can offer to match or beat an applicant's current salary once the applicant asks the employer to do so. And who wouldn't ask the employer to match his or her current salary? To call this a loophole would be a vast understatement. To be sure, the Ninth Circuit does not explicitly state that an employer can rely on pay history once an applicant brings it up, but it as good as does that since it proclaims that its opinion is essentially no bar whatsoever to how a future Ninth Circuit panel decides to handle the salary negotiation issue and the majority states that concurring judges' concerns "regarding our opinion's effect on the setting of pay on an individualized basis are meritless." 

According to the majority, then, the defendant was not permitted to offer to pay male applicants more than Rizo based on what they were making with their current employers, but that does not mean it was also barred from agreeing to pay them more if they asked. If that makes sense to you, you're well qualified to serve on the Ninth Circuit. (Judge Reinhardt, who wrote the majority decision, died at the end of March, so they're taking applications.)

As I've discussed in the past, I like the compromise approach in which prior pay can be used as one of  multiple factors in setting pay. I disagree, however, with pretty everyone else about what that means. Here, the defendant had set a pay range for the math consultant position Rizo applied for, $62,133 to $81,461, which it divided into ten steps. New employees were placed at the step corresponding most closely to their current salary plus 5%. Prior to being hired by the defendant, Rizo was only earning about $52,000 per year, so in offering her $62,133, the defendant was clearly relying on more than her prior salary -- it was also relying on its predetermined pay scale. Moreover, the defendant paid Rizo an additional stipend of $600 per year for having a master's degree. Thus, it is clear that, although everyone has apparently assumed otherwise, the defendant in this case does not rely solely on pay history in setting an employee's pay, and in Rizo's case, reliance on a predetermined pay structure boosted her starting pay. 

Of course, the defendant relies on pay history in determining the appropriate step at which to pay an employee, but guess what? The federal government does the same thing. For example, in North v. United States, the court upheld a salary discrepancy between the plaintiff, a female attorney hired at the GS-14 level by the Department of Education, and a man who was also hired as a GS-14 attorney. The court concluded that the pay disparity did not violate the Equal Pay Act because it was based on the male attorney's "superior" qualifications and prior salary. Although the plaintiff also had superior qualifications -- meaning that she and the male attorney were both considered "highly qualified" for the position -- her starting salary exceeded her prior salary, so her pay was set at the lowest step of the GS-14 pay grade. The male comparator's salary, by contrast was set at the highest step of the GS-14 pay grade (almost $30,000 above the lowest step), and even at that rate, he made less than in his previous job.

In addition to rejecting all reliance on prior pay, the Ninth Circuit sets itself apart by limiting EPA defenses to those that are job related. Under its catchall defense, the EPA explicitly allows an employer to rely on "any . . . factor other than sex" in setting pay. Previously, the Ninth Circuit had merely required that an employer show that it relied on an acceptable business reason, and this squared with the approach taken by the EEOC. But the full Ninth Circuit decided that position was too broad and limited employers to relying on job-related factors. Thus, for example, an employer would presumably not be able to rely on the practice of "red circling," which the EEOC has endorsed:

"Red circling" means that an employee is paid a higher than normal compensation rate for a particular reason. Such a practice does not violate the EPA if sex is not a factor and it is supported by a valid business reason. For example, an employer might transfer a long-time employee who can no longer perform his regular duties because of deteriorating health to an otherwise lower paid job, but maintain the employee's higher salary in gratitude for his long tenure of service. Similarly, an employer might assign employees in skilled jobs to less demanding work temporarily until the need for the higher skill arises again.
In adopting two extreme positions on pay history and the EPA's catchall defense, the Ninth Circuit has issued a decision that will be excellent fodder for rebuke by the Supreme Court. The likely outcome, I predict, is reversal by the Supreme Court (and fame for Aileen Rizo).

Update 6/23/18 - I noticed in looking again at Rizo recently that it discusses red circling and concludes that the practice of paying someone a premium because he has special skills that might be needed in the future is job related and can thus be justified under its standard. I don't see how this can be correct. Consider that job-related education must relate to the job actually being performed, so job-related skill must relate to the job actually being performed, not a job that might need to be performed at a future date. And even if such skills could be considered job related, red circling can also involve, as noted in the EEOC's guidance, paying someone more in recognition of his long-time service. Clearly, that basis for red circling could not be considered job related. 

And aside from red circling, there are other common non-sex business reasons for paying someone more that are not related to the specific job being performed, including shift differentials and part-time/full-time status. If someone is paid extra for working on an undesirable shift, the reason for paying more has nothing to do with the job but instead with when it is being performed. Similarly, paying full-time employees more than part-time employees is not related to the specific job being performed but the number of hours that an employee works each week.

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, April 7, 2018

Alamo Heights Independent School District v. Clark: Same-Sex Harassment, Sex-Specific Conduct, and Sexual Desire

In Alamo Heights Independent School District v. Clark, No. 16-0244 (Tex. Apr. 6, 2018), the Texas Supreme Court rejected the sex-based harassment claim of Catherine Clark, a coach in the girls athletic department. Clark alleged that she was subjected to a hostile work environment by another female coach, including sexual conduct, sex-specific conduct, and facially sex-neutral conduct. In this post, I discuss two disagreements between the majority and the dissent regarding whether Clark had presented sufficient evidence that the conduct was based on her sex. First, was the alleged sex-specific harassment sufficient to establish that Clark was harassed based on her sex? And second, did Clark present sufficient evidence that the alleged harasser was motivated by sexual desire?

There was no dispute that some of the conduct that Clark alleged she had been subjected to, such as comments about the appearance and size of Clark's breasts, would not have been directed at a man. In the majority's view, while the sex-specific nature of challenged conduct can be relevant in determining whether the alleged harasser was motivated by the claimant sex's, that conduct must be examined in context.  In particular, the majority noted that "[r]egardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases." By contrast, the dissent contended that harassment that "focuses on a woman's unique sexual features, which could 'not have occurred if she were not a woman,' constitutes harassment 'because of' her gender even if 'the motivation behind plaintiff's mistreatment was gender neutral.'"

To my mind, neither the majority nor the dissent has it exactly right. The dissent is correct that sex-specific conduct can be inherently sex-discriminatory even if the harasser is not motivated by gender bias. For example, offensive conduct that targets a woman's sexual anatomy facially discriminates against her for being a woman. But the majority is correct in distinguishing between same-sex and opposite-sex contexts. It might be reasonable to infer that a man who makes derogatory comments about a woman's breasts harbors anti-female animus but not reasonable to infer that a woman who makes the same comments harbors anti-female animus. Yes, it's possible for a woman to discriminate against another woman, but that does not change the fact that a man is more likely to discriminate against a woman than a woman is to discriminate against a woman. Thus, the dissent is mistaken in assuming that if some conduct is facially sex-based, then it necessarily follows that facially neutral conduct was also sex-based.

Here, I think the dissent is correct that sex-specific conduct can be used to establish a hostile work environment based on sex. But the majority is correct that, in a same-sex harassment case, it is generally not reasonable to assume that facially neutral conduct was motivated by sex bias merely because the alleged harasser also directed sex-specific conduct at the victim. As a result, the court probably should have examined the sex-specific conduct standing alone to determine whether a reasonable jury could have concluded that it created a hostile work environment based on sex.

The majority and the dissent agreed that evidence of sexual desire can show that harassment was sex-based, but they disagreed whether Clark had presented sufficient evidence of sexual desire. On this issue, I think both the majority and the dissent start with a mistaken premise. As I've discussed in the past, Title VII does not prohibit sexual conduct per se but conduct directed at an individual for being a man or for being a woman. What this means is that evidence of sexual desire generally will be sufficient to show that conduct was sex-based, but not always. The dissent cites Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), but the Supreme Court made it clear in that case that evidence of sexual desire only establishes that conduct was sex-based to the extent it is reasonable to infer that the conduct would not have occurred but for the victim's sex: 
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.
Thus, if a female employee directs conduct at a female coworker based on sexual attraction, it would not be reasonable to infer that the conduct was directed at the coworker for being a woman if the alleged harasser is also sexually attracted to men. And in this case, the record reflected that the alleged harasser had a boyfriend. 

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.