Tuesday, May 28, 2019

Does Obamacare prohibit discrimination based on gender identity?

The recent announcement by HHS that it will roll back protections for transgender individuals under the Affordable Care Act illustrates the confusion regarding how sex discrimination overlaps with gender identity discrimination. 

In concluding that sexual orientation discrimination and gender identity discrimination constitute sex discrimination, advocates have not argued that the term "sex" encompasses sexual orientation and gender identity. Instead, they have argued that when someone discriminates against an individual for being gay or transgender, he treats the individual differently based on the individual's biological sex. Thus, in his oral argument (around 29:10) in a recent Fifth Circuit case, Lambda Legal attorney Greg Nevins clarified, "We're not arguing for a broader definition of 'sex' than man or woman." Rather, just as discrimination based on interracial associations discriminates based on race -- by treating a white woman married to a black man differently from a black woman married to a black man -- discrimination based on sexual orientation discriminates based on sex -- by treating a man who has sex with men differently from a woman who has sex with men. Similarly, transgender discrimination is sex discrimination because it means treating a biological man who presents as female differently from a biological woman who presents as female. Although this line of reasoning has frequently been represented as defining "sex" to include "sexual orientation" and "gender identity," it merely applies the existing definition of sex to show that sexual orientation and gender identity discrimination result in discrimination against someone for being male or female.

This argument, however, only gets you so far. When sexual orientation discrimination or gender identity discrimination does not result in discrimination against someone for being male or female, then it is not sex discrimination. Significantly, it doesn't appear that the exclusion of medical services related to gender transition discriminates based on biological sex. If a transgender woman is denied access to emergency room services that are granted to a non-transgender woman, that is arguably sex discrimination because a biological male who identifies as female is being treated differently from a biological woman who identifies as female. By contrast, if no one gets benefits for gender transition, that may discriminate against an individual based on gender identity, but it does not discriminate against someone for being male or female. Absent an expanded definition of "sex," only so much can be considered gender identity (or sexual orientation) discrimination. 

The decision by HHS to propose the rescission of regulations protecting transgender individuals may be criticized by many, but arguments for coverage have rested on faulty logic. If medical benefits related to gender transition are to be covered, it would require more than arguments about interracial marriage and gender stereotypes. It would require an actual expansion of the term "sex" or the addition of "gender identity" as a protected basis.








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 26, 2019

EEOC v. North Memorial Health Care: What's the difference between denial of religious accommodation and retaliation?

The Fourth Circuit's decision in EEOC v. North Memorial Health Care provides helpful guidance on whether an employee who is denied a religious accommodation has a religious accommodation claim, a retaliation claim, or both.

In this case, Emily Sure-Ondara was given a conditional job offer, and she then revealed to the defendant that she wanted a religious accommodation because her religious beliefs prevented her from working from sundown on Fridays until sundown on Saturdays. After concluding that it could not accommodate the claimant's religious beliefs, the defendant withdrew the job offer. In Sure-Ondara's EEOC charge, she alleged religious discrimination and/or retaliation. In bringing suit on Sure-Ondara's behalf, however, the EEOC alleged only retaliation. As explained by the Fourth Circuit, "when an employee or applicant requests a religious accommodation, and the request is denied by an employer such as North Memorial that accommodates reasonable requests that do not cause 'undue hardship,' there is no basis for an opposition-clause retaliation claim." Thus, in this case, the fact that the defendant withdrew the conditional job offer was merely the result of the failure to provide an accommodation. The only claim that the EEOC could have brought on behalf of Sure-Ondara was for denial of religious accommodation. This distinction is important because an employer is not required to provide an accommodation that results in "undue hardship," which the Supreme Court has defined as anything more than a de minimis cost or burden. By contrast, if the defendant's rescission of the conditional job offer was retaliatory, then it would have been per se unlawful. That's a huge difference.

As recognized by the Fourth Circuit, it's possible for someone requesting an accommodation to have a retaliation claim if the employer does not just deny the individual the accommodation and also takes an adverse action for requesting the accommodation. If an employee requests an accommodation, and the employer denies the accommodation and fires the employee, she would have both a denial of accommodation claim and a retaliation claim. Similarly, if an employer granted an accommodation but retaliated for requesting the accommodation, the employee would have a retaliation claim, but no denial of accommodation claim. In this case, the only action taken by the employer was denial of accommodation, so that's the only potential claim that the EEOC could have brought on behalf of Sure-Ondara. 

Although the dissent criticizes the majority for interpreting retaliation protections too narrowly, I think it's obvious that the majority got it right in distinguishing between two fundamentally different kinds of claims and clarifying the limited circumstances when someone who has requested a religious accommodation will have a retaliation claim. If the dissent and EEOC were correct, then the defendant's withdrawal of the job offer would have been per se unlawful, regardless of what impact granting the accommodation would have had on the defendant's business operations. By contrast, if the defendant had never made a conditional job offer and rejected Sure-Ondara up front because she needed an accommodation, the only claim would be denial of accommodation, and the defendant could allege undue hardship. This distinction makes no sense at all: "[A]s a job applicant with no prior employment relationship with North Memorial, [Sure-Ondara's] failure to obtain the position she sought did not give rise to a claim of unlawful retaliation . . . . The EEOC seeks to avoid this conclusion by emphasizing that North Memorial committed unlawful retaliation when it rescinded its conditional offer of employment. This is sophistry. Sure-Ondara had the same right to religious accommodation as a job applicant under [Title VII] with or without a conditional job offer. Thus, rescinding that offer was not an adverse employment action."

The dissent further contended that Sure-Ondara's claim was properly characterized as retaliation since the defendant withdrew the job offer despite Sure-Ondara's assurances that she wanted the job regardless of whether she could be accommodated and that she would show up for work on a Friday evening even if she could not find a replacement. However, the dissent did not dispute that the defendant was entitled to rescind the offer if it actually believed that Sure-Ondara would not show up. Having made that concession, I don't see what room was left for recognition of a retaliation claim. If the defendant honestly believed that Sure-Ondara would show up, is it really plausible that the defendant would have rescinded its job offer merely because she had requested an accommodation? In my view, no. It seems much more likely that, despite Sure-Ondara's assurances, the defendant concluded that it would be taking too much of a risk in hiring her, rather than that the defendant was merely punishing her for requesting the accommodation.  Moreover, in order to show that an employer was lying about its asserted reason, it's usually necessary to point to someone outside the protected class. 

Significantly, although the dissent apparently did not question that the defendant could have lawfully rescinded its offer if it honestly believed Sure-Ondara would not show up on Fridays, I disagree. If an employer denies an applicant a job based on assumptions stemming from her religious beliefs, that's religious discrimination -- but it's not retaliation, regardless of how the employer learned about the applicant's religious beliefs.










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 24, 2019

Westmoreland v. TWC Administration: What is a LEGITIMATE reason for firing someone?

In Westmoreland v. TWC Administration, the trial judge made a subtle but very significant error when he instructed the jury in an age discrimination case. According to the defendant, the plaintiff was not fired because of her age but because she improperly backdated a document. Clearly, this is a nondiscriminatory reason for firing someone, so if that's really why an employee was fired, she should be out of luck. The district court erred, however, in instructing the jury that it was first required to determine whether backdating was a "legitimate business reason" for firing the plaintiff. If so, the jury was then required to determine whether backdating was not the real reason for the termination but a pretext for age discrimination.

The problem here is that an employer is not required to have a "legitimate business reason" for taking an action, only a nondiscriminatory one. Case law commonly provides that an employer has to have a "legitimate, nondiscriminatory reason" for its action. However, this is misleading. As the Supreme Court has explained, the Age Discrimination in Employment Act obviously does not prohibit all illegitimate motives, only age-based motives. Thus, although firing someone for being black is not a legitimate business reason, it does not violate the ADEA. However, if, as the court instructed the jury in Westmoreland, an employer must not only provide a nondiscriminatory reason but an actual "legitimate business reason," then any kind of improper reason, in the judgment of the jury, will violate the ADEA.

It is true that if an employer provides a facially "illegitimate" reason for its action, a jury may take that into account in determining whether the employer was actually motivated by the asserted reason. Here, however, the court separated these inquiries and instructed the jury that it should first determine whether the employer's reason was good enough, without regard to whether it was a pretext for age discrimination. The employer's decision to terminate an employee with 30 years of consistently satisfactory work for one incident of misconduct seems rather extreme, so if the jury was invited to determine whether that was a legitimate business reason, it may have jumped at the chance to punish the employer for terminating a long-time employee with so little justification.

According to Judge Niemeyer's dissent, there was "absolutely no evidence that Westmoreland was fired because of her age." I disagree, as the jury was entitled to consider, for example, whether the alleged misconduct plausibly would have led an employer to fire a 30-year employee. I agree with Niemeyer, though, that the trial court improperly tasked the jury with deciding whether the employer's decision was fair.  To be sure, it may not be fair to fire an employee for, what the jury may have seen, as the flimsiest of reasons. But that's not the issue. Rather, the only question is whether the employer acted because of the plaintiff's age.






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 14, 2019

Richardson v. Chicago Transit Authority: Avoiding a Deluge of Obesity Discrimination Claims (Updated 6/16/19)

The Seventh Circuit heard oral arguments earlier today in the case of Richardson v. Chicago Transit Authority, which looks at the question of when discrimination based on obesity can be considered disability-based discrimination in violation of federal EEO law. Under the Americans with Disabilities Act, it's unlawful to discriminate against someone for having a physical impairment, so if obesity is considered a physical impairment, then it would be unlawful to discriminate against someone for being obese. According to the CDC, almost 40% of Americans are obese. If all of them have physical impairments just because of their obesity, that would mean a whole lot of folks who might potentially allege disability discrimination in the future. An amicus brief filed in support of Richardson doesn't hesitate in taking this view, arguing that obesity by itself is a disease and therefore a physical impairment.

Courts, however, don't want to be swamped with lawsuits. Recognizing this, the plaintiff's attorney avoided the position that obesity by itself is a physical impairment. On the other hand, she failed, despite being asked repeatedly, to articulate a general rule for when an obese individual does have a physical impairment. Instead, she maintained that her client, who is "extremely obese," can be considered to have an impairment. Courts don't necessarily demand that an answer be black or white. But there still have to be some principles that can be applied to ensure some uniformity from case to case. Not every unjust employment decision violates the law, and absent some guideposts, juries will have nothing to rely on except their own sense of right and wrong.



Update (6/16/19) - On June 12, 2019, the Seventh Circuit held, in alignment with other circuits, that obesity is not an impairment unless it is outside the normal range and the result of an underlying physical disorder. Rejecting arguments by patient and scientific professional organizations, the court explained: 
[A]mici's argument proves too much; if we agreed that obesity is itself a physiological disorder, then all obesity would be an ADA impairment. While Richardson does not ask us to hold that all obese individuals—found to be as high as 39.8% of the American adult population—automatically have an ADA impairment, adopting amici's position leads to this unavoidable, nonrealistic result.





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 7, 2019

Free the nipples, and while we're at it, let's free the boners!

Having been binge-watching HBO's "Game of Thrones" for the past few weeks, I've seen enough women's nipples for a lifetime. If you haven't had your fill, however, then be thankful for the Free the Nipple Movement, which has targeted public decency laws prohibiting the exposure of female nipples. Sadly, the movement suffered a setback when the Eighth Circuit ruled yesterday that it's perfectly constitutional for Springfield, Missouri, to require women to cover up while letting men go topless. 

On the bright side, the Tenth Circuit ruled the other way in February, concluding that a female-only toplessness ban is likely unconstitutional. Interestingly, one of the reasons the defendant offered for the ban was the promotion of traffic safety. Obviously, the interns who drafted this legislation must have been big fans of "Seinfeld" and remembered when Jerry and Kramer got into a car accident because they were distracted by Sue Ellen Mischke walking down the street wearing just a bra.

The good news, of course, is that there's now a circuit split, the perfect set-up for the Supreme Court to have to take up the issue. Justice Thomas is well-known for not asking questions during oral arguments, but I betcha, he might make an exception here. Now's the time to petition the Court to allow TV cameras, so that Hooters can offer viewing parties. It almost makes me hope that Donald Trump will be reelected, so he can be use the bully pulpit in defense of nipples. 

If restrictions on nipples weren't tragic enough, the draconian prohibitions imposed by public decency laws are not limited to women. Men can also be victims -- and not just those who want to free the nipples. I haven't done a broad survey of public decency laws, but the Springfield, Missouri law struck me as having an unusual prohibition -- "the showing of the covered male genitals in a discernibly turgid state." That's right, no public boners. Women at least have a choice about whether to cover up. But what are German soccer players to do? Hopefully, the brave will heed the call, and a new movement will be born -- Free the Boners!









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 3, 2019

What can sex-segregated sports tell us about the transgender bathroom debate?

In a Washington Post opinion piece, Monica Hesse questions why we "celebrate" the genetic differences that have allowed Michael Phelps to excel as a competitive swimmer but we "punish" Caster Semenya for the genetic differences that have allowed her to excel as a competitive runner. 
The problem with this premise is that it's like comparing apples and oranges. 

Men and women compete separately because that arrangement is considered fairer to the female competitors. Regardless of whether someone should be considered male or female, that individual might have certain genetic characteristics that give her an unfair advantage over the average woman. If those characteristics sufficiently align with the characteristics that generally give men an advantage over women, then it may be unfair to allow that individual to compete alongside women without mitigating the advantage. Michael Phelps has really long arms and short legs, but the Olympics doesn't have a separate category for swimmers who generally have that advantage over their competitors. By contrast, the Olympics does have a category that recognizes the advantages of higher testosterone levels -- men. By the same token, if a male competitor has low testosterone levels, that might favor allowing him to compete alongside women or to take drugs to raise his testosterone levels.

In my view, the controversy about Semenya is analogous to the controversy about transgender bathroom access. Like sex-segregated sports, sex-segregated bathrooms are intended to recognize some relevant differences between males and females generally. Male and female athletes compete separately because of the genetic advantages that men generally have over women. Sex-segregated bathrooms are intended presumably to recognize the right to bodily privacy. Typically, there is an alignment between birth sex and gender identity, so the general rule that someone should use the bathroom associated with his or her birth sex makes sense, just as it makes sense to allow a female athlete to compete against other women. But when birth sex and gender identity don't align, it may be more appropriate to align bodily privacy with gender identity than with birth sex.








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 19, 2019

Sex Discrimination & LGBT Discrimination: When are they the same? (Updated 4/22/19)

On Wednesday, the Eighth Circuit heard oral arguments in Horton v. Midwest Geriatric Management, yet another case addressing whether sexual orientation discrimination is a form of sex discrimination prohibited by current EEO law. With the Supreme Court's having also decided to take up this issue, I thought I'd make a few observations.
  • "Sex" is whether you're male or female: The standard legal argument advanced by advocates and the EEOC does not contend that a person's sexual orientation is his "sex." Rather, treating someone differently based on his sexual orientation necessarily entails treating him differently based on his sex (male). To illustrate: if you fire a man who is sexually attracted to men, but not a woman who is sexually attracted to men, then you are treating the former worse for being male.
  • Not all forms of sexual orientation discrimination are sex discrimination: The standard legal argument only gets you so far. Sexual orientation discrimination is not sex discrimination at the macro level. For example, if a policy disproportionately excludes women compared with men, that could constitute unlawful sex discrimination even if the employer did not intend to discriminate. However, if a policy disproportionately excludes gay men and lesbians compared with heterosexual men and women, that would not constitute sex discrimination because members of one sex are not being treated better than members of the other sex.
  • No one can explain why single-sex bathrooms aren't unlawful: The standard argument is difficult to reconcile with sex-specific dress codes and facilities.  Since no one seems up to questioning these practices, the challenge is to explain why it is unlawful not to hire a gay man for being gay, but it is still lawful to allow women, but not men, to wear make-up. Until this issue was raised by the Trump administration, it was essentially ignored. One response is that sex-specific facilities and dress codes do not really treat men worse than women or vice versa, even though they treat the sexes differently.  In other words, separate but equal is ok. This is the approach of the Second Circuit in Zarda. In the context of sexual orientation discrimination, that's well and good, but we see the problem when we consider gender identity. If it's ok to prohibit men but not women from wearing make-up, then why is it not ok to prohibit a transgender woman from wearing make-up? In Harris Funeral Homes, the Sixth Circuit recognized the problem with the separate-but-equal approach and refused to adopt it, yet the court said it was ducking the question of sex-specific dress codes. That just can't be. If it's unlawful sex discrimination to prohibit a transgender woman from wearing make-up, then it must follow that it is unlawful to prohibit a non-transgender man from wearing make-up. No one has come up with a satisfactory resolution, but so far, courts have played along.
  • Transgender bathroom access is out of reach: If it's lawful to require men and women to use separate bathrooms, is it nonetheless unlawful to require a transgender woman to use the men's room, at least while she still has male genitalia? In Whitaker, the Seventh Circuit thought so, but only because it assumed that gender identity equals sex. As discussed already, the standard argument that sexual orientation or gender identity discrimination is covered as sex discrimination does not interpret the term "sex" to mean anything other than male or female. If a transgender woman is denied access to the women's bathroom, however, she is treated differently from a non-transgender woman, so the discrimination is not based on her status as female. If this is a form of "sex" discrimination, that must be because an individual's gender identity is her sex. 
Ultimately, the Supreme Court will have to decide to what extent sexual orientation or gender identity discrimination constitutes "sex" discrimination. To stand any chance of prevailing, LGBT advocates will have to devise a more coherent legal framework. 


Update: On Monday, April 22, 2019, the Supreme Court agreed to decide whether Title VII prohibits sexual orientation discrimination or gender identity discrimination.  The gender identity case is EEOC v. Harris Funeral Homes. My recent post about that decision is here. The sexual orientation cases are Bostock v. Clayton County Board of Commissioners and Zarda v. Altitude Express.  My most recent post about Zarda is here. There's a good chance we won't see decisions until the end of next June, which will be perfect timing for the decisions to be a major issue in the 2020 presidential campaign.








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, March 31, 2019

Equal Pay Day 2019: A Contrary View

Dena & Darin are paid the same wages
in cat food for keeping the bed warm.
April 2, 2019, marks "Equal Pay Day," intended according to the National Committee on Pay Equity to symbolize "how far into the year women must work to earn what men earned in the previous year." Unfortunately, this milestone is grounded in a fundamental misperception or perhaps even deliberate misrepresentation -- that it accurately reflects the sex-based disparity between men's and women's pay. As explained by Claudia Goldin, a leading expert on the pay gap, most of the difference is attributable to nondiscriminatory factors, such as the choice of many women to enter professions that pay less but provide more temporal flexibility.

Last week, the House of Representatives passed the Paycheck Fairness Act, which would amend the Equal Pay Act. The bill stands almost no chance of passing the Senate and becoming law in the foreseeable future. The EPA applies to workers of the opposite sex performing the same job in the same establishment. An employer cannot pay such workers different wages unless it can show that the wage disparity is based on a factor other than sex. The Paycheck Fairness Act would, among other things, limit the circumstances under which an employer could justify a wage disparity between opposite-sex workers. An employer could no longer defend itself merely by showing that it did not discriminate against a worker because of sex and would have to show it was necessary to pay one worker more than another.

The pay gap between men and women has been highlighted recently by the lawsuit of women soccer players against the U.S. Soccer Federation. In my view, the EPA likely does not apply to such a claim of sex-based pay discrimination since the law is limited to employees who work in the same "establishment." Generally, an establishment refers to a distinct physical place of business. It can sometimes be applied more broadly. But in this case, that doesn't seem appropriate. Male and female soccer players don't compete alongside or against one another, and instead compete on separate single-sex teams. Comparing male and female soccer players is like comparing minor league and major league baseball players. 

Women soccer players have also alleged sex discrimination under Title VII of the Civil Rights Act of 1964, which is not limited to employees within the same establishment. Unlike the EPA, however, a Title VII claim generally requires evidence of discriminatory intent, and that can be hard to muster. Still, the women soccer players' pay discrimination claim may largely be tried in the court of public opinion, so appearances of fairness are what may matter most, not whether women soccer players are actually victims 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, March 24, 2019

Lewis v. City of Union City: Raising the Bar for Discrimination Plaintiffs

In Lewis v. City of Union City, No. 15-11362 (Mar. 21, 2019) (en banc), the Eleventh Circuit has adopted a new legal standard that will likely make it much more difficult for plaintiffs to prevail in intentional discrimination cases under Title VII of the Civil Rights Act of 1964 and other EEO laws. In the view of the Eleventh Circuit, absent direct evidence, a plaintiff establishes a prima facie case of discrimination only by presenting evidence that the employer treated her worse than others outside her protected class who are similar to her in all material respects. By making the plaintiff identify from the get-go someone who is similar to her in all material respects, the plaintiff will effectively have to eliminate any good reason for treating her less favorably. In other words, she'll have to prove a negative.

The Eleventh Circuit's decision is an interpretation of the Supreme Court's 1973 decision in McDonnell Douglas v. Green, the most important decision in all of EEO law. In 1999, the Eleventh Circuit noted in Wright v. Southland Corp. that the McDonnell Douglas decision was intended to make it somewhat easier for a plaintiff alleging discrimination to prevail without having to rely solely on the "traditional" framework for establishing causation. Thus, in McDonnell Douglas, the Supreme Court held that a plaintiff can establish a prima facie case, or presumption, of discrimination. In Lewis, the Eleventh Circuit has eliminated any advantage that a plaintiff might have in relying on McDonnell Douglas, by making it much harder for a plaintiff to establish a presumption of discrimination.

Given how out of step the Lewis decision is, it may not be long for this world. Still, the Eleventh Circuit may not be alone in perceiving McDonnell Douglas as an unjustified boon to plaintiffs. Justice Gorsuch has argued that the framework it established should be abandoned. So even if the Eleventh Circuit got it wrong, some Justices may at least think that it was on the right track.








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.