Tuesday, May 14, 2019

Richardson v. Chicago Transit Authority: Avoiding a Deluge of Obesity Discrimination Claims

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.

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.