Tuesday, May 22, 2018

Epic Systems Corp. v. Lewis: Do agreements to resolve discrimination claims through individualized arbitration proceedings conflict with EEO law?

On May 21, 2018, in Epic Systems Corp. v. Lewis, the Supreme Court held that arbitration agreements providing for individualized proceedings do not conflict with the National Labor Relations Act. Grasping at straws in her dissent, Justice Ginsburg explained that she did "not read the Court's opinion to place in jeopardy discrimination complaints asserting disparate-impact and pattern-or-practice claims that call for proof on a group-wide basis." Although Ginsburg was apparently trying to limit the impact of the decision, it seems doubtful that federal EEO law can be so readily distinguished.

Indeed, the majority relied heavily on its decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which upheld an agreement requiring individualized arbitration proceedings to resolve claims under the Age Discrimination in Employment Act. Like Title VII of the Civil Rights Act of 1964, the ADEA permits disparate-impact claims and pattern-or-practice claims, so if ADEA claims can be subject to individualized arbitration proceedings, there's no obvious reason that Title VII should be any different.

Doing little to further her cause, Ginsburg cited Chin v. Port Authority, 685 F.3d 135 (2d Cir. 2012), which held that the pattern-or-practice method of proof is limited to class actions. That decision, however, also notes that referring to the pattern-or-practice framework as a "claim" is misleading because it is not a "freestanding cause of action." Thus, in Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013), the court relied on Chin in upholding an arbitration agreement requiring individualized proceedings to resolve Title VII claims. The court concluded that an employee has no substantive right to pursue a pattern-or-practice "claim," since that is merely a means of establishing disparate treatment, which is a freestanding cause of action. If an employee is free to pursue a disparate-treatment claim on an individualized basis in arbitration, then the employee has not relinquished any substantive rights in being required to forgo a collective action.

Unlike a pattern-or-practice claim, a disparate-impact claim is a freestanding cause of action. However, contrary to Ginsburg's suggestion, there is no bar to an employee pursuing a disparate-impact claim as an individual. And in fact in Chin the court allowed the private, non-class plaintiffs to proceed with their disparate-impact claims, even though it rejected their attempt to rely on the pattern-or-practice method of proof to establish disparate treatment. To be sure, a disparate-impact claim generally requires proof of discrimination on a group-wide basis, but statistical evidence can also be probative in an individual case of disparate treatment. An agreement to resolve EEO claims through individualized arbitration proceedings does not preclude an employee from presenting evidence of systemic and group-wide discrimination that affects him. It merely prevents him from proceeding with his claim as part of a class. 

If anything, the argument for having a right to bring a collective action is stronger under the NLRA than under federal EEO law. Under the NLRA, some lower courts had relied on the substantive right to engage in "concerted activities for the purpose of . . .  mutual aid or protection" in invalidating agreements to engage in individualized arbitration proceedings. Federal EEO laws, by contrast, may permit collective actions to enforce underlying substantive rights to be free from discrimination, but a collective action is not itself a substantive right.

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, May 18, 2018

Davenport v. Edward D. Jones & Co.: Death to "Quid Pro Quo Harassment"

If ever there were a legal term that deserved to go in front of a firing squad, it's "quid pro quo sexual harassment."

If someone alleges that she was terminated because the new department manager didn't want a woman in his department, then she has alleged sex-based termination. No question. However, if she alleges that she was terminated because she refused to sleep with the new department manager, that's supposedly somehow different, and the situation is labeled quid pro quo harassment. This dichotomy is poppycock. A sex-based termination is a sex-based termination. Labeling the latter as a form of "harassment," whatever that means, rather than as a straightforward termination claim, is not only unnecessary but also confusing. It has resulted in courts mistakenly treating "quid pro sexual harassment" differently from other forms of sex-based discrimination that result in the same kind of challenged action.

In Davenport v. Edward D. Jones & Co., No. 17-30388 (5th Cir. May 16, 2018), Tyanne Davenport alleged that she was denied a bonus because she refused a supervisor's request that she date a male potential client. This claim clearly alleged that Davenport was denied a bonus because of her sex since the request presumably would not have been made of a male subordinate. Unfortunately, however, the district court rejected Davenport's claim, reasoning that the Fifth Circuit does not recognize a quid pro quo claim based on the sexual advances of a third party, only a claim based on a supervisor's advances. Yet the district court presumably would not have had trouble concluding that an employer violates Title VII by refusing to assign a woman to provide services to a client based on the client's known preference that it works only with men.

On appeal, the Fifth Circuit rejected the district court's conclusion that a quid pro quo claim is limited to the sexual advances of a third party, reasoning that the supervisor made the requests and therefore he had engaged in the sexual harassment.  (The Fifth Circuit ultimately concluded that Davenport could not show that she was denied the bonus for rejecting the requests that she date the potential client.) Unfortunately, although the Fifth Circuit rightly disagreed with the district court, its approach nevertheless perpetuates the confusing distinction between quid pro quo harassment and other forms of disparate treatment. The court could have instead simply explained that an employer may not acquiesce in a third party's discriminatory requests, regardless of whether the request is tied to sexual advances.

Even more troubling is the First Circuit's decision in Velázquez-Pérez v. Developers Diversified Realty Corp.,  which the court construed as involving coworker "quid pro quo" harassment. In that case, Atonio Velázquez-Pérez alleged that a human resources manager used her influence to get him fired because he rejected her sexual advances. If the court had properly viewed the claim as one of straightforward termination, then the only question would have been whether the manager's use of official authority caused the plaintiff to be fired. However, because the court instead viewed the claim as one involving quid pro quo sexual harassment, the court applied principles from the hostile work environment context, assuming that the two forms of harassment should be treated the same. Hostile work environment principles generally do not apply when an agent of the employer acts in his official capacity. Not recognizing that, the court concluded that since the manager was not the plaintiff's supervisor, the employer would only be liable if it negligently allowed the manager's actions to lead to the plaintiff's termination. Thus, merely because the plaintiff's termination claim was tied to the rejection of sexual advances, the court applied a lower standard of liability.

So do courts ever get it right?

Thankfully, they do, and a splendid example is the Second Circuit's decision in Gregory v. Daly, penned by Judge Guido Calabresi: 
[A] "quid pro quo" allegation merely makes a factual claim about the particular mechanism by which a plaintiff's sex became the basis for an adverse alteration of the terms or conditions of her employment. Of course, if proven, such behavior manifestly violates Title VII. But it does so because a sexual quid pro quo constitutes a specific and egregious example of an employer taking adverse employment actions that penalize an employee's refusal to comply with a discriminatory condition of employment. And such actions are themselves discriminatory. 
The law does not create separate causes of action for sex discrimination depending on the reason the employer denies a woman a job or a job benefit. It does not, for instance, delineate distinct claims for employers who dislike women, doubt their abilities, demand that they conform to sex stereotypes, or want their policies to reflect actuarial differences between the sexes. What matters, instead, is simply whether an employment action was based on plaintiff's sex. Similarly, there is no reason to create a separate doctrinal category for employers who make women's workplace success contingent on submission to a supervisor's sexual demands. For such a sexual quid pro is just another way in which an employer, in violation of Title VII, makes an employee's sex relevant to an employment decision. 
So sex discrimination violates the law, whether it involves sexual comments that create a hostile work environment, an adverse based on the rejection of sexual demands, or a policy against hiring women into managerial positions. The nebulous concept of "quid pro quo" harassment has created confusion and inconsistency in the application of the law. What's more, treating quid pro quo sexual harassment claims as different from other adverse actions based on sex can make it more difficult for a plaintiff to prevail. This effectively marginalizes and relegates sexual harassment to second class status. Let's hope that, like the Second Circuit in Gregory v. Daly, other courts and practitioners begin to see the light and recognize that the term "quid pro quo" harassment should be abandoned and that such claims should be treated like any other claims of sex discrimination.

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, May 13, 2018

"Special Rights" or "Equal Rights": Should we discriminate against men in order to eliminate discrimination against women?

I was intrigued by a Bloomberg article about lawyer Albert Rava, who specializes in suing organizations that provide benefits exclusively to women, such as a lower admission fee to a social event. When LGBT rights first became an issue, it was often framed as "special rights" vs. "equal rights." We don't have laws protecting every particular group, so in that regard, laws prohibiting sexual orientation discrimination, sex discrimination, or race discrimination are special rights. But these laws don't call for special treatment, merely equal treatment. What Rava has set his sights on, however, really are special rights. Presumably, preferential treatment of women is intended to offset discrimination against them, but is this actually an effective tool for combating sex discrimination? History suggests otherwise.

When Title VII of the Civil Rights Act of 1964 was passed, it was common for states to have so-called "protective laws," which were intended to protect women from certain working conditions, such as hazardous occupations and unreasonable hours of work. The EEOC initially presumed that those laws were consistent with Title VII:
The Commission does not believe that Congress intended to disturb such laws and regulations which are intended to, and have the effect of, protecting women against exploitation and hazard. Accordingly, the Commission will consider limitations or prohibitions imposed by such state laws or regulations as a basis for application of the bona fide occupational qualification exception. . . .  So, for example, restrictions on lifting weights will not be deemed in conflict with Title VII except where the limit is set at an unreasonably low level which could not endanger women[.] 
Pursuant to these protective laws, however, women were denied equal treatment under the guise of providing them protections that men did not need to receive. Soon recognizing the error of its ways, the EEOC reversed course in 1972, concluding that state protective laws are in conflict with Title VII because they "do not take into account the capacities, preferences, and abilities of individual females and, therefore, discriminate on the basis of sex."

The same tension between special rights and equal rights could be seen in the failure to pass the Equal Rights Amendment. Opponents of a constitutional guarantee that women and men be treated the same were concerned that women would be required to fight in combat and would lose other special protections. 

A number of early Supreme Court sex discrimination cases challenged provisions that provided benefits to women but not men, based on stereotyped assumptions about gender roles. In Weinberger v. Wiesenfeld, Ruth Bader Ginsburg, then a law professor, helped secure a unanimous Supreme Court decision invalidating a provision of the Social Security Act that provided survivorship benefits to women, but not to men, based on sex stereotypes of men as breadwinners and women as homemakers and caregivers. 

Unfortunately, some supporters of enhanced federal equal pay protections have apparently forgotten the lessons of the past. The Paycheck Fairness Act, which is supported by the National Partnership for Women and Families, includes a provision to establish a grant program to fund negotiation skills training for women and girls. Aside from the dubious constitutionality of such a provision, should advocates for women's rights be promoting a program that stereotypes women and girls as less willing and capable than men and boys when it comes to negotiating? Such thinking is consistent with the paternalistic state protective laws that the EEOC rejected over 40 years ago as inconsistent with prohibitions against sex discrimination. I can picture Phyllis Schlafly in heaven smiling down on equal pay advocates.

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

Wednesday, May 9, 2018

Bolin v. GM: When is a joint employer liable for a co-employer's discriminatory conduct?

Judge Laurie Michelson's decision in Bolin v. General Motors, No. 16-13686 (E.D. Mich. May 4, 2018), is a helpful illustration of joint employer liability under federal EEO law. In this case, the plaintiffs alleged that the UAW-GM Center for Human Resources could be held liable under the Age Discrimination in Employment Act for the decision by the UAW VP to terminate the plaintiffs' assignment to the CHR, which was jointly created by GM and UAW. CHR contended that the plaintiffs had failed to allege that it was involved in the decision to terminate their assignments to CHR, and the plaintiffs responded that they had sufficiently alleged that CHR, along with GM and UAW, jointly employed them. As noted by Judge Michelson, neither side's argument was exactly correct.

Contrary to the plaintiffs' contention, a joint employer is not vicariously liable for the acts of a co-employer. Joint employer status merely refers to the relationships that multiple entities have with respect to the employees that they jointly employ, not to the relationships that the entities have with one another. Thus, joint employers are only liable for their own actions.

Contrary to CHR's contention, however, a joint employer can be liable for failing to act reasonably to respond to discriminatory conduct by a third pary that it knows or should have known about. In the same vein, an employer can be liable, for example, for failing to act reasonably to respond to sexual harassment by non-supervisory employees or even by non-employees when it knows or should know about the harassment.

One issue where I part ways with Judge Michelson is her suggestion that knowledge of the VP's decision to remove the plaintiffs from CHR could be imputed to that organization because she was a member of its Executive Committee. Considering agency principles, I'm skeptical that the VP's knowledge of her own alleged wrongdoing on behalf of UAW can be imputed to CHR. Consider that a supervisor's knowledge of his own wrongdoing is generally not imputed to an employer. This is for the simple reason that an employee cannot reasonably be expected to report conduct that it is against his own interest to report. Otherwise, an employer would always be strictly liable for supervisor harassment. Similarly, even if the VP had official roles with both UAW and CHR, she should not have been expected to tattle on herself by reporting to CHR wrongdoing she engaged in on behalf of UAW.

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, May 6, 2018

O'Daniel v. Industrial Service Solutions: EEOC and ACLU Come to Defense of Employee Who Opposes Transgender Bathroom Access

In O'Daniel v. Industrial Service Solutions, the district court rejected the claim of Bonnie O'Daniel that the defendant violated Title VII because she was fired in retaliation for complaining that she was being subjected to discrimination based on her sex as a married, heterosexual woman. Both the EEOC and the ACLU have filed briefs supporting O'Daniel on appeal.

To a large extent, the support of the EEOC and the ACLU is natural because they have been on the vanguard of arguing that Title VII covers sexual orientation discrimination. The Fifth Circuit, having not addressed the issue recently, seems like a good arena for advancing the ball. In this case, O'Daniel need not even show that Title VII actually prohibits sexual orientation discrimination, merely that she reasonably thought it does. Given the recent court rulings and EEOC pronouncements, it seems reasonable that someone would believe Title VII prohibits sexual orientation discrimination. You may disagree that that is the best interpretation, but it's hardly unreasonable to believe that the alternative is correct. 

Interestingly, however, O'Daniel's termination appears to be closely tied to a Facebook post that included a photo of a man wearing a dress in a department store dressing room and expressed her concern with the possibility of men being allowed to use women's facilities at the same time as her young daughters.  The EEOC and the ACLU have avoided the merits of O'Daniel's underlying claim, and it's not clear that either organization thinks that O'Daniel actually reasonably believed that she was being subjected to sexual orientation discrimination. The ACLU even noted in a footnote that "an employer has reason to be concerned when the head of its Human Resources Department publicly opposes the use of women’s facilities by transgender women." Given that the EEOC and the ACLU have strongly supported transgender bathroom access previously, they certainly make strange bedfellows with O'Daniel.

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, May 5, 2018

Miller v. City of New York: How similar do jobs have to be to require equal pay?

In Miller v. City of New York,  No. 15cv7563 (S.D.N.Y. May 1, 2018), Federal District Court Judge William Pauley granted summary judgment to the defendant on the Equal Pay Act claim brought by a class of female school crossing guards, who compared themselves to male traffic enforcement agents. Both work for the New York Police Department, and about 96% of crossing guards are female whereas about 56% of traffic enforcement agents are male. Traffic enforcement agents earn about $5 more per hour than crossing guards.

Under the Equal Pay Act, the jobs being compared must be substantially equal, which means that they don't have to be identical, but they still have to be pretty darn close. In this case, the plaintiffs observed that both crossing guards and traffic enforcement agents direct the flow of traffic, but the court noted that in comparing the skill, effort, and responsibility required of the two jobs, it was clear that they were not substantially equal as required by the law. First, the court noted that the two jobs have different qualifications -- traffic enforcement agents receive 10 times more training, suggesting that the positions require different skill levels. Second, traffic enforcement agents are full-time employees who can be required to work overtime, evenings, and weekends, whereas crossing guards work only five hours per day, mostly during school hours. Third, traffic enforcement agents have more responsibility than crossing guards. They issue summonses and testify in court. They can override traffic signals whereas crossing guards are taught to follow traffic signals. Fourth, the court noted that crossing guards and traffic enforcement agents do not work under similar working conditions. Crossing guards help children and their parents at intersections near schools during school hours, and only stand in intersections when the light is red. Traffic enforcement agents face more hazards because they are stationed in intersections when directing traffic and work throughout the city, including at busy intersections, and at night.

I thought this case worth highlighting because it illustrates that jobs that are superficially similar may not be alike enough to require equal pay under federal law. If jobs meet the substantially equal standard, there is essentially an inference that persons performing the jobs should be paid the same. But if one job requires much more training and responsibility and is significantly more hazardous, it makes sense that the jobs would not pay the same.

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, May 1, 2018

Freelain v. Village of Oak Park: Next Stop, Rocket Science

In Freelain v. Village of Oak Park, 16-4074 (7th Cir. Apr. 30, 2018), the Seventh Circuit rejected Rasul Freelain's contention that the defendant retaliated against him for asserting his rights under the FMLA (and ADA) by misclassifying leave he took as sick leave rather than administrative leave. The court reasoned that since an employer is not required under the FMLA or ADA to provide paid leave and can count leave taken against accumulated sick leave, merely providing an employee the opportunity to take the leave he was already entitled to take was not retaliatory, absent some evidence that the employer deviated from its normal policies and failed to provide administrative leave because the employee had asserted his statutory rights.

In other words, if you get all you're entitled to under the law, you can't allege that the employer retaliated against you for not giving you more. Not exactly rocket science.

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.