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.

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.

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.