Sunday, April 9, 2017

The Illogical “Reasonable” Person

NewimageOne of the advantages of being around a discipline for a long time is the irony of seeing once “extreme” arguments become accepted. In the first edition of our Employment Discrimination casebook in 1982, we made the (obvious) argument that discrimination on the basis of sexual orientation was sex discrimination because an employee, say, male, was being adversely treated for actions (sex with a male) that would draw no objection were the employee female.

             Fast forward to 2017, and that’s now the law of the land, at least in the Seventh Circuit thanks to Hively v. Ivy Tech Community College of Indiana. And that simple switch-the-sexes comparison was one of the two prongs of the majority opinion (the other being transference to the gender context of Loving v. Virginia’s holding that discrimination on the basis of the race of one’s partner is race discrimination).

            While the prevailing side in Hively garnered two other opinions adding additional routes to the same result (including a radical attack on the whole concept of original public meaning in statutory interpretation by Judge Posner), I was most taken with the simple logic of the majority’s “comparative” approach, i.e., if we switch the sexes and the result is not the same, it’s sex discrimination.

            Why did it take more than 35 years for this logic to prevail? More to the point, why was that argument viewed as naïve, hopelessly technical for most of Title VII’s history?  The obvious answer is that, to quote Holmes, the life of the law is not logic, it’s experience, and even those favoring LGBT rights may have found the straightforward logic too sterile and rarified in a system that favors more nuance in statutory interpretation.

            But there’s another perspective from the law’s encounter with logic in this arena that may be of some interest. Judge Sykes, writing for three judges, dissented, largely drawing from “original public meaning” theory. In a passage that captures the essence of his objection, he wrote: 

Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination "because of sex" also banned discrimination because of sexual orientation? The answer is no, of course not.

 I do understand, and agree, that if that question were asked of proponents of Title VII in 1964, they would have said no. So in that sense, the original public meaning of “sex” doesn’t reach sexual orientation.

        But how does that analysis fit with the logical argument made by the majority?  Are we assuming that the “person competent in the English language” is “reasonable” but not logical?  That he or she is incapable of working out the implications of statutory language beyond the most intuitive meaning of the words?  Another way to ask the question is whether the reasonable person is presumed to competent in English but not competent in simple logic.

        I don’t know if there are good answers to these questions, but I do think they raise even more problems for original public meaning advocates, problems thrust into national attention by Hively.


Employment Discrimination | Permalink


I think the answer is far more straightforward. Judges simply had, and some still have, an inherent bias against LGBT people based on the social mores of their times. As a result, they created rubrics – such as “bootstrapping” in sexual orientation (SO) cases – to close the courtroom doors to LGBT plaintiffs. There was no rational basis for their decisions in cases involving LGBT individuals. The decisions were premised on a societal disdain for homosexuality (and a lack of understanding that gender identity is not a subset of sexual orientation).

Lambda Legal’s Greg Nevins, who argued the case on behalf of Kimberly Hively and who has been a leading proponent of applying the associational discrimination theory of discrimination to SO cases, aptly noted last week that the Seventh Circuit finally looked at the language of Title VII instead of looking at language (i.e., “SO”) that is not in Title VII. The Sixth Circuit was the first court to scratch at the surface of this problem in 2004, in Smith v. City of Salem, 378 F.3d 566, 94 FEP 273 (6th Cir. 2004), when it held that “the approach in Holloway, Sommers, and Ulane . . . has been eviscerated by Price Waterhouse,” and explained:

“[D]espite the fact that Smith alleges that Defendants’ discrimination was motivated by his appearance and mannerisms, which Defendants felt were inappropriate for a male, the district court expressly declined to discuss the applicability of Price Waterhouse. The district court therefore gave insufficient consideration to Smith’s well-pleaded claims concerning his contra-gender behavior, but rather accounted for that behavior only insofar as it confirmed for the court Smith’s status as a transsexual, which the district court held precluded Smith from Title VII protection.

“Such analyses cannot be reconciled with Price Waterhouse, which does not make Title VII protection against sex stereotyping conditional or provide any reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual. As such, discrimination against a plaintiff who is a transsexual—and therefore fails to act like and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity. Accordingly, we hold that Smith has stated a claim for relief pursuant to Title VII’s prohibition of sex discrimination.”

378 F.3d at 573–75. See also Barnes v. City of Cincinnati, 2002 U.S. Dist. LEXIS 26207, at *22 n.8 (S.D. Ohio Mar. 8, 2002), subsequent appeal, 401 F.3d 729, 95 FEP 994 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) (“Defendant argues that because Plaintiff is a transsexual, he is not a member of a protected class. . . . The notion that the mere circumstance of Plaintiff being a transsexual who happens to be a relatively nonmasculine male deprives Plaintiff of protection under Title VII is patently absurd. In fact, to interpret Title VII as Defendant would have the Court do would, without sufficient justification, violate the Equal Protection Clause. See Romer v. Evans, 517 U.S. 620, [70 FEP 1180] (1996).”).

Posted by: Christine Michelle Duffy | Apr 10, 2017 3:10:51 AM

What of Judge (Diane) Sykes point that the majority switched two variables instead of one for the counterfactual - P's sex and P's sexual orientation? The majority accuses Sykes of switching two variables - P's sex and P's partner's sex. But isn't the truth that if you switch P's sex, then one of the other two things must change? So I'm not convinced by either of the comparator arguments. There are limitations to the comparator concept and counterfactuals. To me, the most compelling argument is the straightforward Price-Waterhouse sex stereotyping theory. The employer believes that men should be attracted to women and not men. How is that different from an employer believing that a woman should wear makeup, act feminine, and not be aggressive?

Posted by: J. Bent | Apr 10, 2017 7:32:38 AM

In all cases of sexual harassment involving sexual desire, sex and sexual orientation are inextricably intertwined. As I explain in Chapter 1 (Introduction) of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide:

“As discussed in detail in Chapter 14 (Title VII of the Civil Rights Act of 1964), Section V.E., sexual orientation has been at the heart of many Title VII cases for years, except it was, in the words of Professor Zachary Kramer, ‘hiding in plain view’ (and thus was not discussed) when the litigation involved heterosexual interactions. Sexual orientation came to light in Title VII litigation—as a barrier to sex discrimination claims—only when one of the litigants was LGB or perceived to be LGB because nonheterosexual orientations transgress gender stereotypes and thus not only became evident in the litigation but also overshadowed the underlying claims of sex discrimination, thereby leading to the wrongful denial of many of those claims as not being sex-based. Ironically, the ability to access the protections of a law that prohibits discrimination based on gender stereotypes was effectively denied because of gender stereotypes. As the discussion in Chapter 14 shows, however, the tide appears to be turning, with tribunals regularly now permitting LGB employees to pursue sex discrimination claims based on gender stereotypes. Moreover, it appears that the stage is set for tribunals to take the final step of recognizing that discrimination based on a person’s sexual orientation is per se discrimination ‘because of . . . sex,’ a step some tribunals have already taken with respect to gender identity.”

Posted by: Christine Michelle Duffy | Apr 10, 2017 11:35:28 AM

Post a comment