Thursday, July 26, 2018

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

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

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

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

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

Wednesday, July 25, 2018

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

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

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

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

Wednesday, July 18, 2018

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

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

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

Monday, July 16, 2018

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

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

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

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

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

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

Sunday, July 15, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Friday, July 6, 2018

Does the Constitution protect the freedom to eat one another?

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

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

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

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

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

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

Wednesday, July 4, 2018

Does discrimination against Confederate Americans violate federal EEO law?

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

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

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

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

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

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

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

Monday, July 2, 2018

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

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

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

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

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

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

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

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

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

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

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