Monday, September 23, 2019

Bi Visibility Day and the Bisexual Harasser

In observation of Bi Visibility Day, here's what I consider the best discussion of my favorite legal quandary -- the bisexual harasser:
Harassment is reprehensible, but Title VII was passed to outlaw discriminatory behavior and not simply behavior of which we strongly disapprove. The artificiality of the approach we have taken appears from the decisions in this circuit. It is "discrimination" if a man makes unwanted sexual overtures to a woman, a woman to a man, a man to another man, or a woman to another woman. But this court has twice stated that Title VII does not prohibit sexual harassment by a "bisexual superior [because] the insistence upon sexual favors would . . . apply to male and female employees alike." Thus, this court holds that only the differentiating libido runs afoul of Title VII, and bisexual harassment, however blatant and however offensive and disturbing, is legally permissible. Had Congress been aiming at sexual harassment, it seems unlikely that a woman would be protected from unwelcome heterosexual or lesbian advances but left unprotected when a bisexual attacks. That bizarre result suggests that Congress was not thinking of individual harassment at all but of discrimination in conditions of employment because of gender. If it is proper to classify harassment as discrimination for Title VII purposes, that decision at least demands adjustments in subsidiary doctrines. 
This excerpt is from a 1985 dissent by three conservative judicial superstars: Antonin Scalia, Robert Bork, and Kenneth Starr. Since then, the Supreme Court has recognized that sexual harassment is covered under federal EEO law, but its reasoning rests on the presumption that a sexual harasser targets individuals of a particular sex. In Oncale v. Sundowner Offshore Services, the Court explained that it is easy to infer that male-female sexual harassment is sex-based because it "is reasonable to assume those proposals would not have been made to someone of the same sex." Thus, while largely swept under the rug, the issue of the bisexual harasser is not dead.

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, September 22, 2019

Gay Wedding Cakes and Invitations: Balancing LGBT Rights and Free Expression

In Brush & Nib v. City of Phoenix, the Supreme Court of Arizona held on September 16, 2019, that a civil rights ordinance prohibiting sexual orientation discrimination could not be used to force Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, to create custom-made wedding invitations celebrating a same-sex wedding in violation of their religious beliefs. The Human Rights Campaign attacked the decision as "alarming" and as providing a "license to discriminate against Arizona's LGBTQ community." Likewise, in a Slate commentary, Mark Joseph Stearn characterized the decision as "handing same-sex couples a resounding loss in their quest for equality." Although the decision is hardly perfect, overblown responses like these exemplify a narrow-minded approach to LGBT rights that fails to give appropriate weight to other equally important interests valued by both LGBT and non-LGBT individuals.

To be sure, the court essentially ruled that Duka and Koski were free to engage in sexual orientation discrimination in some circumstances, but the court merely applied settled constitutional law principles related to compelled speech. In 1943, at the peak of American nationalism, the U.S. Supreme Court held it unconstitutional to require a student to salute the American flag in contravention of her beliefs: 
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
Four decades later, the Supreme Court held that the First Amendment protected the right of George and Maxine Maynard to cover up the motto "Live Free or Die" on the New Hampshire license plate, which they found morally objectionable. The Brush & Nib decision is merely a logical outgrowth of the same constitutional limitation on the authority of the state to compel a citizen to voice support for a viewpoint with which she disagrees.

Understandably, LGBT advocates are wont to advance legal arguments against LGBT discrimination. Unfortunately, however, this has all too often been at the expense of sound constitutional law principles regarding free speech. In 1995, the Supreme Court unanimously upheld the right of organizers of a St. Patrick's Day parade to prohibit marchers representing an LGBT contingent from displaying the contingent's banner during the march. Forcing the march organizers to allow the LGBT contingent to display the banner pursuant to a Massachusetts anti-discrimination statute violated the organizers' right to control what they chose to express through the march. In 2006, LGBT advocates found it convenient to take the side of free speech in arguing that law schools could prohibit on-campus recruitment by branches of the military on the grounds that the military discriminates against LGBT servicemembers. Unanimously rejecting that claim, the Court ruled that the speech that law schools engaged in, such as in sending emails about military recruiters, was incidental to the conduct necessary for schools to comply with the Solomon Act, which required schools receiving federal financial assistance to allow military recruiters the same access provided to other recruiters. In Brush & Nib, LGBT advocates once again manipulated freedom-of-speech principles in service of the outcome they wanted.

I don't mean to suggest that there are no situations in which the government's interest in preventing discrimination outweighs an individual's interest in personal expression. As LGBT advocates would have it, however, someone selling a service must not be allowed to discriminate against LGBT individuals, regardless of the nature of the service. On the other hand, should we interpret the First Amendment to protect an individual's right to refuse to provide a service as long as it arguably involves any degree of self-expression? The custom-made wedding invitations at issue in Brush & Nib involved both written speech and the widely recognized art form of calligraphy. Therefore, they were clearly entitled to constitutional protection. If not, then why couldn't a composer be required to write music for a film whose message she finds abhorrent or a sculptor be required to sculpt the image of someone she detests?

More difficult than cases involving custom-made invitations are those involving custom-made wedding cakes, which may not include writing and, unlike calligraphy, are not a widely recognized medium of self-expression. True, cakemakers may view their creations as artworks in the same way that a painter or poet looks at his own work. But there have to be some limits. If cakemaking is insulated from claims of discrimination, what's to stop the florist or caterer who sincerely views his work as expressive from claiming an exemption from anti-discrimination laws?

One potential solution is presented in an amicus brief filed by the Unity Fund and Law Professors Dale Carpenter and Eugene Volokh in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The amici argue that a medium is entitled to First Amendment protection only if it has been historically protected or it is inherently expressive:
Deciding whether a particular medium is generally expressive requires a degree of judgment and linedrawing; but tradition, history, and common experience usually offer a sound basis for drawing those lines. Paintings, for instance, have long conveyed messages, whether about religion, politics, the character of the painting’s subject, or the beauty of the scene that the painting depicts. Having courts decide case by case whether a particular painting conveys enough of a message would require aesthetic judgments that courts are ill-equipped to make.
But when the medium as a whole mainly consists of items that do not convey a message (except perhaps insofar as words may be written on them), it is not protected by the First Amendment—even when the items may be designed with aesthetics in mind and even when the creator subjectively intends to "express" something by the creation. Landscaping, for instance, can be beautiful and artistic, and "expressive" of the designer’s judgment. But laws requiring people to keep their lawns cut do not pose First Amendment problems. 
The U.S. Supreme Court managed to avoid having to make these hard choices in the Masterpiece Cakeshop case, but it won't be able to avoid them for much longer. If LGBT advocates are to prevail and avoid repeating the disastrous defeats of the gay parade and Solomon Act cases, they would do well to recognize that broad protections of free speech benefit all of us.

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, September 13, 2019

What does the adverse action standard have to do with whether federal law prohibits LGBT discrimination?

In May 2019, the Department of Justice filed a little-noticed brief opposing the grant of certiorari in Forgus v. Shanahan and arguing that Title VII of the Civil Rights Act of 1964 covers any discriminatory change to a term, condition, or privilege of employment, even if it does not result in a significant detrimental effect. From an administration that has typically been hostile to civil rights, that position may have seemed out of character. All the more so given that it departed from the government's former position and given that most courts require a showing of material adversity. So what gives?

The answer may lie in DOJ's argument that Title VII does not prohibit sexual orientation or gender identity discrimination. One of the pillars of that argument is that interpreting Title VII to cover LGBT discrimination would mean that some widespread and common employment practices are unlawful. In its brief in R.G. & G.H. Harris Funeral Homes, DOJ rejects the Sixth Circuit's conclusion that discrimination based on transgender status "'necessarily entails discrimination on the basis of sex' because one cannot treat a transgender person differently 'without considering that employee's biological sex.'" In DOJ's view, if Title VII requires employers' actions to be sex-blind, then sex-based dress codes and single-sex bathrooms are both unlawful. Judge James Ho advanced the same argument in his concurrence in Wittmer v. Phillips 66 Co., even going so far as to claim that the National Center for Lesbian Rights had conceded during oral argument that coverage of LGBT discrimination would mean the abolition of separate bathrooms and changing rooms for men and women. As DOJ and Judge Ho see it, treating men and women differently is therefore not sex discrimination if they are not similarly situated, such as with respect to sexual organs.

Aimee Stephens, who contends that she was fired by R.G. & G.R. Harris Funeral Homes for being transgender, initially responded to DOJ's warnings about a parade of horribles by not bothering to respond. Thus, in her initial brief, she argued that she was fired for being transgender, not solely for failing to comply with the employer's dress code for male employees, so the Supreme Court need not address the legality of sex-specific policies and their application to transgender employees. Technically, Stephens may have been right, but would the Supreme Court really be willing to rule that Title VII prohibits gender identity discrimination yet leave employers, as well as schools, which are covered by Title IX of the Education Amendments Act of 1972, wondering whether their bathroom, locker room, and dress code policies are lawful? And if the Supreme Court rules that Stephens was unlawfully fired for being transgender, but R.G. & G.R. Harris Funeral Homes is still free to require her to come to work wearing a man's suit and tie, would that be a real victory?

Thankfully, Stephens apparently saw the light, and in her reply brief, she tackles DOJ's contentions about sex-specific policies. She cites the widely accepted view that Title VII does not prohibit all sex-based terms or conditions of employment, only those that have a sufficiently adverse effect. Since most sex-based dress codes and sex-segregated facilities do not constitute materially adverse terms or conditions of employment, they do not violate Title VII.

The final piece of the puzzle is how sex-based policies should be applied to transgender workers. As already noted, it would be a hollow victory if the Court were to rule for Stephens but leave open the possibility that the employer could refuse to hire her back if she was unwilling to dress like a man. To address this issue, Stephens argues that the question of material adversity needs to be assessed from the standpoint of the individual alleging discrimination. As further explained in an amicus brief filed by five law professors, although most dress codes may not impose more than an innocuous burden on most employees, applying some of the same requirements to a transgender employee, "particularly one suffering from gender dysphoria, imposes a severe burden, and therefore discriminates against such an employee."

When the Supreme Court hears oral arguments on the LGBT cases in early October, one Justice to watch closely will be Brett Kavanaugh. While serving on the D.C. Circuit in 2017, then-Judge Kavanaugh wrote a concurrence in Ortiz-Diaz v. HUD contending that the circuit should reconsider precedent holding that lateral transfers are generally not actionable. In Kavanaugh's view, "transferring an employee because of the employee's race . . . plainly constitutes discrimination with respect to 'compensation, terms, conditions, or privileges of employment' in violation of Title VII." Although this interpretation could broaden Title VII coverage in general, it could leave little, if any room, for the Supreme Court to also interpret Title VII to cover LGBT 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.

Wednesday, September 4, 2019

Is it lawful for a religious organization to discriminate against LGBT employees?

An amicus brief filed by First Liberty Institute in the LGBT Supreme Court cases makes the same argument I've made previously, that a religious organization that discriminates against an LGBT individual based on religious objections to homosexuality or transgenderism falls under the religious organization exemption of Title VII of the Civil Rights Act of 1964.

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, September 2, 2019

Velox Express: Does merely misclassifying employees as independent contractors violate labor law?

Samuel Gompers Monument
In Velox Express, Inc., the National Labor Relations Board concluded that Velox Express violated the National Labor Relations Act in firing a driver for complaining that she and other drivers were misclassified as independent contractors rather than employees, but the Board also concluded that the misclassification was not a standalone violation of the NLRA.

In her dissent, Board Member Lauren McFerran not only disagreed about whether a misclassification decision violates the NLRA, she also contended that the majority should not have addressed that issue. In doing so, however, McFerran seems to have shot herself in the foot.

Not surprisingly, the Board, has never had occasion to address the "pure" misclassification issue taken up today. It is hard to imagine how a case limited to that issue would arise, unless an employee sought the equivalent of a declaratory judgment from the Board—the Board's determination of employee status—before engaging in Section 7 activity. Far more likely are unfair labor practice cases triggered by an employer's application or enforcement of misclassification against employees—its denial to them of rights under the Act that are properly available to employees. That fact is demonstrated by the examples cited above. And this case, too, illustrates the point, as it does not involve misclassification without more, but rather misclassification with more: an employer's reprisal against an employee for concertedly challenging the Respondent's misclassification of its drivers.
If, as McFerran contends, misclassification never comes up on its own but only in the context of an application or enforcement of a misclassification decision, it's hard to understand how someone could conclude that misclassification actually has a chilling effect. 
On the other hand, if a misclassification decision does have a chilling effect, then why wouldn't McFerran want the Board to determine whether it is a standalone violation? 

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.