Monday, November 23, 2015
When does paying workers via tips count as illegal employment discrimination? Arguments against tip compensation--around for a while (e.g., Scott, 1916)---re-emerged last month (e.g., here and here) after restauranteur Danny Meyer (like some others) decided to ban tipping and raise prices instead. One of these anti-tipping arguments: Customers of all races tend to tip black restaurant servers far less than white restaurant servers, even after controlling for service quality (Lynn et al. 2008; Brewster & Lynn, 2014). In turn, some (e.g., Lynn et al., 2008, p. 1057-58) suggest that such a race disparity in tips exposes employers to Title VII disparate-impact liability. That liability applies if a defendant-employer “uses a particular employment practice that causes a disparate impact on the basis of” race or sex, among other characteristics, 42 U.S.C. § 2000e-2(k)(1)(A)(i), regardless of “the employer's motives and whether or not he has employed the same practice in the past,” Lewis v. City of Chicago, 560 U.S. 205, 217 (2010).
So, can a race disparity caused by tip compensation amount to Title VII disparate impact liability? There isn’t much litigation on this issue, but the answer is yes, if we treat tips just like bonuses, commissions, and other kinds of compensation practices used to pay an amount on top of base pay—practices that, according to the EEOC (Title VII’s federal agency enforcer), may generate disparate-impact liability. EEOC Compliance Manual § 10(III)(C)(2).
Although Wang (2014, p. 157-58) doubts it, it’s pretty easy to conclude that a race disparity in tips is caused by the employer’s use of a “particular employment practice.” But for tip compensation, there can’t be a tip disparity. Sure, employers don’t control how much their customers tip. But employers do decide whether part of a worker’s pay comes from tips, instead of, say, imposing a flat service charge. Besides, customer race bias can’t excuse an employer’s legal responsibility for causing a race disparity in tips. In general, Title VII does not excuse employers who defer to their customers’ racial preferences.
Wang also suggests that a court might treat a disparate-impact challenge to tip compensation—which partly leaves worker pay to customer discretion—like the challenged policy upheld in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2554-57 (2011), which left worker pay and promotion to local store managers’ discretion. But Wal-Mart—a class action lawsuit—mostly turned on an issue of federal class action procedure. See, e.g., Gschwind v. Heiden, 692 F.3d 844, 848 (7th Cir. 2012); Tabor v. Hilti, Inc., 703 F.3d 1206, 1221-22 & n. 8 (10th Cir. 2013). So, Wal-Mart might matter in a Title VII disparate-impact class action filed in federal court against a restaurant chain that lets each restaurant’s local manager decide whether to adopt tip compensation there. But Wal-Mart doesn’t stop a court from saying that an employer who adopts tip compensation thereby “uses a particular employment practice” under Title VII.
There is, however, no hard and fast rule about how big a race disparity in tips has to be for a court to declare Title VII liability. And whatever any individual employee collects in tips, any resulting race disparity in tip income—what workers take home—might differ depending on how the employer engages in tip pooling. Although collected tips belong to the employee, see 29 C.F.R. § 531.52; see also, e.g., Cal. Labor Code § 351; NY Labor Law § 196-d, under certain conditions, an employer can redistribute the tips among a set of employees, see 29 C.F.R. § 531.54; see also, e.g., Avidor v. Sutter's Place, 212 Cal. App. 4th 1439, 1449-50 (6th Dist. 2013); 12 NYCRR § 146-2.16. Which employees get to join a tip pool can be complicated, but since 2011, the US Department of Labor (DOL) reads the Fair Labor Standards Act to “not impose a maximum contribution percentage on valid mandatory tip pools.” 29 C.F.R. § 531.54. (DOL had set a maximum of 15% of an employee’s tips, but it changed tack after some courts rejected it. See 76 Fed. Reg. 18832-01, 18839 (2011). How far DOL may regulate tip pooling is disputed. See, e.g., Oregon Restaurant and Lodging v. Solis, No. 13-35765 (9th Cir., appeal submitted July 10, 2015)).
As the tip-pool contribution percentage increases, any race disparity in tip income likely decreases. Accordingly, in some cases, there may be a big enough disparity in tips collected but the disparity in tip income (after tip-pooling) is too small. Title VII, however, says that a plaintiff has to show that “each particular challenged employment practice” causes a disparate impact, unless she can show that an employer’s “decisionmaking process” can’t be separated for analysis. 42 U.S.C. § 2000e-2(k)(1)(B)(i). This implies that if a plaintiff can prove that tip compensation (the challenged practice) causes a big enough race disparity in tips collected, that’s enough, whether or not the disparity in tip income (after those tips are pooled) is big enough, too. Tip compensation and tip pooling are practices that can be analyzed separately. An employer can adopt tip compensation without tip pooling. Some do.
Once the plaintiff proves the requisite disparate impact, the employer has several defenses, including that its tip compensation practice is “job related for the position and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(1)(A)(i), a “bona fide . . . merit system,” or “a system which measures earnings by quantity or quality of production,” 42 U.S.C. § 2000e-2(h). For all these, the employer bears the burden of proving that, at bottom, tipping really relates pay to job performance. The problem for employers: In general, past studies suggest that, even after controlling for service quality, tips substantially vary with, among other things, a server’s race (e.g., Brewster & Lynn, 2014) or physical attractiveness (e.g., Parrett, 2015). That doesn’t settle the matter, because the defendant’s restaurant may be the odd case in which tips do measure job performance pretty well. But, in Title VII litigation, it’s the defendant-employer’s burden to prove that, not the plaintiff’s. And what counts as good job performance is an objective inquiry, not whatever the employer sincerely believes.
Similarly, using tips as a proxy for job performance is, by itself, hardly a bona fide “merit system.” According to the EEOC, a merit system involves evaluating employee job performance “at regular intervals according to predetermined criteria, such as efficiency, accuracy, and ability.” EEOC Compliance Manual § 10(IV)(F)(1) (discussing parallel defense in Equal Pay Act). Similarly, tips don’t really measure the “quantity or quality of production.” This defense covers not just piece-rate-compensation for making goods, but also compensation for services, such as securities-broker bonuses. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 882 (7th Cir. 2012). Even for broker bonuses, this defense may not apply if “for example, black brokers were receiving systematically poorer reviews than their white counterparts who performed substantially similar work, and the reviews determined compensation.” Id. Here, in any particular case, an employer can’t assume that tips accurately measure the “quality of production” (service quality). Instead, the employer must prove that they really do. Facing this possibility, some employers may want just to ban tipping instead.
H/t: Jon Bauer, Peter Siegelman. A version of this essay first appeared at OnLabor.
Thursday, November 12, 2015
The Center for WorkLife Law at UC Hastings has launched a new resource called Pregnant@Work. The site has resources on pregnancy accommodation for a wide range of audiences – attorneys from both sides of the employment bar, pregnant women, their healthcare providers, and employers. The laws surrounding pregnancy accommodation have changed drastically over the last couple of years, and the site provides educational materials and practical tools to help various audiences understand these changes.
The materials the site provides or organizes for different audiences range from model policies, to forms, to ideas for accommodations that will work for both employers and pregnant workers who might need them. It's a great model for a kind of problem solving advocacy that we don't see very often. Check it out.
Wednesday, November 11, 2015
Deb Widiss (Indiana) has two recent articles that will be of interest to our blog readers. The first is Griggs at Midlife, 113 Mich. L. Rev. 992 (2005), reviewing Bob Belton's recent book, The Crusade for Equality in the Workplace. From the abstract:
Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge employers’ use of criminal background screens. The Review also suggests that the failure to develop intersectional analysis — that is, an analysis of how sex and race may interact — in disparate impact doctrine risks obscuring key vectors of exclusion.
Belton’s book gives modern readers an inside look at the NAACP Legal Defense and Education Fund’s litigation campaign in Griggs, and it does an excellent job showing how lawyers used disparate impact doctrine to dismantle test and educational requirements that could have excluded many black employees. The book, however, focuses almost exclusively on race discrimination cases. This Review explores the contemporaneous — and less successful — development of the doctrine in early sex discrimination cases. Generally, courts have not required employers to modify workplace structures that fail to accommodate caregiving responsibilities or pregnancy, despite their disparate impact on the basis of sex. Moreover, such policies often disproportionately harm women of color. By filling in this history, the Review offers a more nuanced assessment of disparate impact’s early years.
The Review then considers contemporary efforts to challenge employers’ use of criminal background screens, policies that likewise cause a disparate impact on the basis of both race and sex. It suggests that current litigation might be more successful if the intersectional approach were better developed, but it also highlights the importance of compliance work in achieving equal employment opportunity in the modern world. Although the EEOC has lost some high profile cases in this area, its guidance indicating that criminal background screens may cause an unlawful disparate impact has pushed employers to reconsider and refine their use of such screens.
The second expanded on Deb's other work on "shadow precedents," precedents that still seem to guide the courts even after Congress amends statutes to reverse the effects of those precedents: Still Kickin after All these Years: Sutton and Toyota as Shadow Precedents, 63 Drake L. Rev. 919 (2015). From that abstract:
Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents — what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation of shadow precedents may often stem from information failure, including poor briefing by counsel, rather than courts’ willful disregard of legislative mandates.
The article, written for a symposium on the Americans with Disabilities Act (ADA), examines implementation of the ADA Amendments Act of 2008 (ADAAA). The ADAAA, a broadly bipartisan bill, was intended to supersede Supreme Court decisions that had set a very stringent standard for what impairments qualified as a disability. The ADAAA explicitly “rejected” the reasoning in these decisions; amended the ADA’s substantive provisions; and instructed courts to interpret the standard “in favor of broad coverage.” Many lower courts are properly implementing the revised standard, and the overall number of citations to the superseded decisions has dropped sharply. But this article identifies numerous post-ADAAA cases in which courts follow the old precedents for propositions that were undeniably superseded. Mistakes are particularly prevalent in cases alleging discrimination because one is “regarded as” having a disability. Even though the ADAAA was an unusually strong and clear override, it has failed to change fully the law on the ground.
The symposium mentioned in the abstract was published in the Drake Law Review and was an outgrowth of the AALS Employment Discrimination section panel at last year's annual meeting. It's a great symposium with pieces by Senator Tom Harkin (D-Iowa), Steven Befort (Minnesota), Ruth Colker (Ohio State), Arlene Kanter (Syracuse), and Nicole Porter (Toledo).
Thursday, October 8, 2015
Following up on Charlie's post yesterday on The Next Gay Rights Battle, I had the pleasure yesterday of seeing Jim Obergefell speak at Bowling Green (OH) State University. He is speaking widely these days, telling his (very moving) story, and making the same point that Keith Cunningham-Parmeter makes in his article -- that marriage equality is only one battle in the much larger fight for nondiscrimination. If you have a chance to see Mr. Obergefell speak, I highly recommend it; better yet, bring him to your campus.
Wednesday, October 7, 2015
Keith Cunningham-Parmeter just posted Marriage Equality,Workplace Inequality: The Next Gay Rights Battle. The abstract:
Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.
This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.
Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.
Sounds well worth a read!!
Monday, October 5, 2015
Congratulations to our own Joe Seiner on the publication of his casebook, Employment Discrimination: Procedure, Principles, and Practice. I have had a chance to look through it quickly and, as the title might suggest, it brings together two of Joe's areas of expertise: procedure and employment discrimination law. In addition to the usual cases, notes, and questions, the text also contains interactive problems, notes about newsworthy issues, and exercises. From the news release:
This text offers a fresh perspective on employment discrimination law, presenting a procedural-based approach to the topic with interactive materials throughout the book. While still providing the traditional employment discrimination casebook coverage, this text emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter which discusses the most effective ways to address workplace discrimination, from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer.
Cases are modern and cutting-edge, demonstrating the importance of employment discrimination law. Each chapter includes a chapter-in-review, and summary charts and graphs are used throughout the text to further student comprehension. Text boxes within cases, historical notes, and news events are all used to help bring the material to life in an innovative new way. Instructors will have access to sample exam problems and answers, proposed syllabi, Teacher’s Manual with problem answers, and PowerPoint slides.
A great resource that's worth checking out, for sure.
Thursday, September 17, 2015
I used this video clip by Shelley Correll (Stanford - Sociology) today to introduce the topic of sex discrimination and stereotyping, to terrific effect. Students are appropriately outraged by the facts of Price Waterhouse, but they also know that few employers these days are so stupid as to be as overtly discriminatory. Today's flavors of discrimination are much more subtle, and this 20-minute video does a nice job of illustrating that.
I followed the video by asking the students to describe sex stereotyping that they had observed at our law school, at our university, and in the law firms and courtrooms they were working and interning in. This generated an animated discussion, and wearing my decanal hat, gave me some ideas of things I can do to improve our law school environment. One of the many interesting directions our discussion took was that law student perceptions of the expertise of junior law professors can vary considerably by gender, and that that in turn may influence the "personas" that male and female law professors may adopt in the classroom.
Thanks to my colleague Dacy Wilcox for sending the video to me.
Tuesday, September 1, 2015
The Denver Post reported yesterday that the EEOC
has threatened to sue the University of Denver's law school over what the commission calls a "continuing pattern" of paying female professors less than their male colleagues.
In a letter sent to the university on Friday, the director of the Equal Employment Opportunity Commission's office in Denver wrote that an EEOC investigation found a gender pay gap among the school's legal faculty dating back to at least 1973. The commission concluded that the university knew about the gap by 2012, "but took no action to ameliorate this disparity, in effect intentionally condoning and formalizing a history of wage disparity based on sex."
The EEOC's investigation came after longtime DU law school Professor Lucy Marsh filed a complaint with the commission more than two years ago. Marsh's attorney on Monday provided a copy of the letter to The Denver Post.
Marsh said the law school could have to pay as much as $1.2 million in total damages to its female law professors, in addition to paying them salaries going forward equal to what their male colleagues in similar positions are paid.
Hat tip: Paul Caron at TaxProf Blog.
Monday, August 17, 2015
This is a good summer for those interested in the “manager rule” but not for the rule itself. A few weeks ago I posted on the New Jersey Supreme Court’s refusal in Lippman v. Ethicon to limit statutory whistleblower protection for “watchdogs”; now the Second and Fourth Circuits have followed suit under Title VII.
A “watchdog” or “manager rule” would bar employees whose job responsibilities include investigating and preventing discrimination by their employer (or otherwise ensuring its compliance with the law) from claiming legal protection for acts taken within those job duties. In other words, opposition to, say, discrimination, within a manager’s job duties is not protected conduct; rather, such employees must step outside their roles in order to have the protection of the antidiscrimination and whistleblower laws.
In Demasters v. Carilion Clinic, the Fourth Circuit considered what would (despite the district court's analysis) seem to be a pretty open-and-shut case if plaintiff’s allegations were true and if no manager rule took the employer off the hook. The plaintiff claimed to have been told he was fired for failing to take his employer’s side when he supported a worker’s sexual harassment and retaliation complaint and criticized the employer’s handling of the matter. The employer argued that his conduct was within plaintiff’s job duties EAP consultant and therefore not protected conduct,
Writing sweepingly, the court ruled that the manager rule “has no place in Title VII jurisprudence.” Looking to the broad language in Crawford v. Metropolitan Government of Nashville & Davidson County -- an employee’s communication to her employer of a belief that it has discriminated, “virtually always constitutes the employee’s opposition to the activity” – it found the textual answer clear. It also noted the catch-22 that would be created by a contrary rule: since “insubordinate, disruptive, or nonproductive” conduct is not protected, a rule requiring an employee to step outside of his duties to be within § 704(a) would create a damned-if-you-do-damned-if-you-don’t scenario. Citing Deborah Brake’s superb article, Retaliation in the EEO Office, the court saw “no need to make plaintiffs walk a judicial tightrope when the statutory scheme created by Congress offers a clear path.”
DeMasters also saw a tension between a manager rule and the affirmative defense to harassment by discouraging HR employees “from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” And it rejected the employer’s policy argument of a “litigation minefield,” finding it much more troubling that the manager rule would permit employers to punish those for advocating the claims of those they are duty-bound to protect.”
As a side-note, while DeMasters seems to be a precedential Fourth Circuit opinion, the three judges on the panel were all from the Third Circuit since all members of the Fourth Circuit recused. The court provided no reasons, but it's been reported that one of the judges is married to the CEO of the defendant. In any event, I guess there’s not much chance of en banc reversal!
The least protective of employees is the Second Circuit’s Littlejohn opinion, but even there the manager rule as it is often framed fared poorly. The plaintiff, an African American woman, complained of racial discrimination after being demoted from her position as Director of EEO and replaced by a white female employee. Littlejohn objected to her former employer’s selection process and “failure to abide by proper anti-discrimination policies and procedures” both in her capacity of Director of EEO and after her demotion. The Second Circuit also looked to Crawford’s “virtually always” language in rejecting the defendant’s argument that, under this standard, any terminated human resources or EEO employee (such as Littlejohn) would have an “automatic” prima facie case of retaliation, which would in turn lead to gratuitous litigation for employers.
In finding such a concern overblown, however, the court recognized a “significant distinction” between reporting other employees’ complaints of discrimination and communicating the manager’s own support for such a claim. In other words, conveying others’ complaints is a routine job duty, but if the manager actively supports other employees in their Title VII claim or has a personal complaint, that activity is protected opposition. In the case at hand, Littlejohn was not merely conveying others’ complaints; rather, she communicated her belief that the personnel decision-making process involved unlawful discrimination. Therefore, her complaints were protected activities.
Given this distinction, one could categorize Littlejohn as adopting a “mini-manager rule” since some job duties do not constitute protected conduct. However, it will be a rare HR professional who is a complete automaton (“merely transmits or investigates a discrimination claims”) and does not make a recommendation or comment on a complaint of discrimination or the results of an investigation.
Thanks to Samira Paydar for her help on this.
Wednesday, August 5, 2015
The New York Times reported a recent study indicating why many women are consistently chilly in the workplace. The study reveals that the temperatures of office buildings may have a disparate gender impact. The scientists assert that most office buildings adjust temperature according to a formula that is based in part on the resting metabolic rate of men – a 40 year old, 154 pound man to be exact. This formula, which also considers factors such as air temperature and clothing insulation, was concocted in the 1960’s when men made up a majority of the employees in many workplaces. Now that women constitute half of the modern workforce, the current model “‘may overestimate resting heat production of women by up to 35 percent.’”
In other words, office air conditioning is biased against women. But that's not all. There's reason to believe that that bias is actually not in the best interests of employers since cooler temperatures impair productivity. A 2004 Cornell University study found that office workers make more typing errors in chilly office environments as opposed to warmer ones.
And then there's the social consequences since over-chilled workspaces cause a wasteful exertion of energy amid the backdrop of global warming.
In short, the “gender-discriminating bias in thermal comfort” has three implications: 1) offices are expending more energy than necessary; 2) employers are losing productivity; and 3) women have a disproportionately uncomfortable experience in the workplace. Sounds like a lose-lose-lose proposition, which should result in bosses turning up the heat.
The study has already incited a tense gendered debate on office air conditioning. Dr. van Hoof, who wrote a commentary about the study, noted that “‘The cleavage is closer to the core of the body, so the temperature difference between the air temperature and the body temperature there is higher when it’s cold.’” Dr. van Hoof seems to assume that women begin shedding clothes in a professional setting, just because of the temperature outside. The female employees highlighted in the article, however, as well as female commentators on the site suggest otherwise. Based on their testimonials, it appears that most women account for the aggressively low temperatures with sweaters and blankets (if their work environment allows for it!). One commented, “We all have space heaters at our desks. So now my organization is paying to simultaneously heat and cool the building. Such a waste!”
But is this actionable under Title VII, most likely as a disparate impact claim? The one case that we discovered dealing with the problem involved a woman who alleged that her supervisor retaliated against her filing a discrimination suit by installing a lockbox on the office thermostat while maintaining a temperature of 66-70 degrees. The court was not persuaded that it should make a federal case about office temperatures.
I guess we'll have to wait to see what might happen, but bosses might be wise not to tell their female workers to "chill out" on the issue.
Hat-tip to my RA, Samira Paydar, who also came up with the title of this post.
Tuesday, July 28, 2015
The US Department of Justice (DOJ) and the EEOC read Title VII’s prohibition on sex discrimination to cover employment discrimination based on gender identity, including transgender status. Now, DOJ’s Civil Division is trying to use its reading of Title VII to avoid a ruling in an Equal Protection Clause challenge to the part of the Americans with Disabilities Act (ADA) that excludes “transsexualism” and “gender identity disorders not resulting from physical impairments” from the statutory term “disability.” 42 U.S.C. § 12111(b)(1).
In Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), the plaintiff asserts Title VII and ADA claims against her former employer (Cabela). Here’s a simplified version of the alleged facts: The plaintiff alleged that in 2005, she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder, a medical condition in which a person’s gender identity does not match his or her anatomical sex at birth” and that falls within the general definition of “disability” under the ADA. First Am. Compl. ¶ 10. Thereafter, the plaintiff “changed her name” from James to Kate Lynn and changed her physical appearance to conform to her female gender identity. Id. ¶ 11. But at her job, her employer allegedly refused her request for a “Kate Lynn” name tag, id. ¶ 16, and, because of that request, forced her to wear a “James” nametag and use only the men’s restroom until her “her name and gender marker were legally changed.” Id. ¶¶ 18-19. Thereafter, plaintiff alleged that she suffered insults, lost promotions, and received disfavored shifts in part to keep her away from customers. When plaintiff finally changed her name legally, she got her “Kate Lynn” nametag, albeit only after repeated complaining, but was only permitted to use the unisex “family” bathroom located in front of the defendant’s store. Kate Lynn was later fired for an allegedly pretextual reason.
In a partial motion to dismiss, defendant-employer Cabela argued that the ADA claims must be dismissed, mostly because Congress excluded the plaintiff’s alleged disability-- Gender Dysphoria – from ADA protection. 42 U.S.C. § 12111(b)(1). In response, Kate Lynn’s lawyers read the ADA exceptions for gender identity disorder and transsexualism (the “GID exclusion”) as equal to “exclusions for transgender people,” thereby creating “a transgender classification. The fact that not all transgender people have a GID diagnosis does not affect the conclusion that all people excluded by the ADA's GID exclusion are transgender.” In turn, they’ve asked the court to declare the ADA’s GID exclusion to violate the Equal Protection Clause (as read into the Fifth Amendment, Bolling v. Shape, 347 U.S. 497 (1954)), largely because (1) laws with transgender classifications deserve heightened scrutiny because transgender people are “a historically and politically marginalized class of people based on an immutable characteristic, irrelevant to their ability to contribute to society”; and (2) the Senate proponents of the GID exclusion—including former North Carolina Senator Jesse Helms—were really motivated by their moral disapproval of transgender people, and that doesn’t count as a sufficient government interest.
Thus far, nobody seems to want to try and argue that the ADA’s GID exclusion satisfies the Equal Protection Clause. In its reply brief, dated Feb. 17, 2015, defendant-employer Cabela’s lawyers wrote: “Cabela’s takes no position regarding the constitutionality of the ADA and defers to the United States Attorney General’s position regarding the constitutionality of the federal statute.” They then pressed their motion to dismiss in part by assuming the GID exclusion’s constitutionality.
In turn, in a statement, filed pursuant to 28 U.S.C. § 517, on July 21, 2015, the DOJ has asked the court to try to avoid the issue by deciding the plaintiff’s Title VII claims first:
[T]he [alleged] facts giving rise to Plaintiff’s Title VII and ADA claims substantially overlap. Moreover, the relief Plaintiff seeks under Title VII and the ADA is identical. Thus, the outcome of Plaintiff’s Title VII claims could render superfluous her ADA claims and, therefore, would obviate the need to resolve the constitutional challenge to the GID Exclusion. That approach is particularly appropriate given that discrimination because of gender identity, including transgender status, constitutes sex discrimination prohibited by Title VII.
Statement of Interest of the Unites States at 2 (citations and footnote omitted). In support of that last sentence, DOJ cited, among other things, its own reading to that effect.
This is hardly the first time that DOJ's Civil Division has tried to get a court to avoid a constitutional ruling on a federal statutory provision—after all, absent exceptional circumstances, its general charge is to defend federal statutes against constitutional attack. On the other hand, the DOJ’s reasoning is a little odd here. The general directive to avoid deciding constitutional questions usually applies as a canon of statutory construction, not as a directive to judges as to when and how they decided claims or defenses that entail some issue of constitutional law. Does this reasoning mean that, in a lawsuit asserting multiple claims for the same relief, courts generally should avoid deciding section 1983 claims against employers (that entail constitutional questions) until after they figure out whether the non-constitutional damages claims have merit? Besides, this seems to lead to some serious inefficiency. In cases with multiple and independent legal grounds for the same relief, should district judges invariably avoid so identifying such grounds if they are constitutional? Moreover, suppose the defendant-employer here moves for summary judgment on the Title VII claims and loses the motion. If there is a non-zero probability that the ADA’s GID exclusion is constitutional and suffices as a reason to dismiss the plaintiff’s ADA claims, why not decide that first, as opposing to going to trial and making the parties present evidence on, and making a jury decide, the material issues of fact for both the ADA and Title VII claims? Puzzling.
Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
As researchers continue to fight about the Implicit Association Test (IAT) and implicit bias research generally, a recent ruling in an ADEA age discrimination lawsuit suggests how hard it might be to introduce implicit-bias research into discrimination litigation. In Karlo v. Pittsburgh Glass Works LLC, No. No. 2:10–cv–1283, 2015 WL 3966852 (W.D. Pa., July 13, 2015), a federal district court judge concluded that an expert report on implicit bias authored by leading implicit-bias researcher (and IAT co-inventor) Anthony Greenwald failed to satisfy Federal Rule of Evidence 702. (For prior discussion of Karlo in the legal press, see, e.g., here and here. For related posts from some of us on implicit-bias research and discrimination litigation, take a look here and here.)
In Karlo, the plaintiffs wanted Greenwald’s expert report admitted into evidence so as to provide a “framework” to help a judge or jury evaluate evidence of discriminatory intent. In refusing to do so, Judge Terrence McVerry wrote that Greenwald’s expert report “is not based on sufficient facts or data. It is not the product of reliable methods. And it would not assist the factfinder in resolving an issue in this case.” And, the judge even doubted that it was relevant to the plaintiffs’ ADEA claims.
First, the expert report wasn’t based on enough “facts or data,” the judge reasoned, because Greenwald hadn’t visited the defendant-employer’s plant, hadn’t spoken with current or former employees, hadn’t interviewed the managers involved in the layoffs at issue in the lawsuit, and hadn’t subjected any of them to “his self-invented IAT.” Instead, the judge concluded, Greenwald opined on the defendant’s employment practices “after reviewing one deposition in full and excerpts of others”—selected and supplied by the plaintiffs’ attorneys—as well as another expert’s appraisal of that material. This made his opinion “not expert material,” but “the say-so of an academic who assumes that his general conclusions from the IAT would also apply to [defendant-employer PGW].”
Second, the judge declared the IAT itself an unreliable measure, because Greenwald couldn’t show that the IAT has been “taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW.” Greenwald also hadn’t adjusted the IAT data to account for “those who self-select to participate” and had not adopted controls to, “for example, exclude multiple retakes or account for any external factors on the test-taker.” And even if the IAT is a well-validated measure, it “still says nothing about those who work(ed) at PGW.”
Third, there wasn’t enough “fit” between the general principles of implicit bias in his report and the case facts. Rule 702 permits expert opinion “to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case,” but such expert testimony must “‘fit’ the facts of the case.” FRE 702, Advisory Committee Notes to the 2000 Amendment. To show lack of fit, Judge McVerry pointed out that, in his report, Greenwald wrote that his implicit bias findings “‘provide a framework that can aid a judge or jury in evaluating the facts of this case .... to determine whether the Plaintiffs' ages substantially motivated the defendants' [sic] actions outlined in the Complaint.’ Greenwald Exp. Rep. at 2, ECF No. 380–5.” The judge then seemed to argue that the italicized text shows that, in fact, Greenwald’s report purported to prove causation in the case and that it didn’t match up the ADEA’s (but-for causation) requirement. “If anything, Dr. Greenwald's opinion is more likely to confuse a jury rather than elucidate the issue(s) for the factfinder.”
Fourth, the judge doubted that Greenwald’s report was even “relevant”for deciding the plaintiffs’ ADEA disparate impact or disparate treatment claims. (To be relevant, an item of evidence must tend “to make a fact more or less probable than it would be without the evidence” and that fact has to matter to deciding the clam. FRE 401.) For disparate treatment claims, the plaintiff has to prove that “intentional discrimination occurred at the particular employer, not just that gender stereotyping or intentional discrimination is prevalent in the world.” Besides, proving an employer discriminatory motive “seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.”
Prior courts have differed on whether to admit into evidence Anthony Greenwald’s expert opinion on implicit-bias in discrimination lawsuits. Compare Samaha v. Washington State Dep't of Transp., No. CV–10–175–RMP, 2012 WL 11091843 (E.D. Wash. Jan. 3, 2012) (yes) with Jones v. National Council of YMCAs, 34 F.Supp.3d 896 (N.D. Ill. 2014) (no).
Sunday, July 12, 2015
Brittany Bronson (left) writes in today's New York Times (Sin City's Dirty Pools) about sex discrimination at Las Vegas "pool clubs", where the well-paid cocktail-server positions are sex-specific and the rare male who does get hired has a dress code much more modest than that of his female counterparts. Congratulations to Ann McGinley (UNLV, right), whose great work on this and related topics for the last long while forms the basis of much of the article.
Friday, June 26, 2015
Jillian Weiss, an attorney in Tuxedo Park, NY, has been the subject of several of my posts on this Blog for her tireless advocacy, both public and judicial, on behalf of trans clients. I don't believe I had ever met her in person, until earlier this week I was squatting between meetings in the library of the New York City Bar Association, heard a party going on as I was leaving, and saw that Jillian was the guest of honor. It was a great opportunity for us to reconnect and finally meet in person, and it's a testament to how far GLBT acceptance has come that she was being celebrated by the NYCBA.
Andrew Kimler is an attorney with Vishnick McGovern Milizio in NYC, and is an alum of Ohio Northern Law School. He has an employment litigation practice, with a particular focus on GLBT, and especially trans, litigation. More importantly, his firm has parlayed its experience with GLBT employment cases into representation of GLBT folks on a much wider variety of issues, such as marriage, adoption, estate planning, and the like. The more he spoke about his firm becoming a full-service LGBT-focused firm, the more I thought about how elder law has developed from nothing 10 years ago into a comprehensive practice specialty today, encompassing not just estate planning but Medicare/Medicaid planning, living wills, end-of-life issues, etc. etc. Perhaps this is the wave of the future for GLBT practice.
Thursday, June 25, 2015
While everyone else in the country was reading the Supreme Court's opinion on health care subsidies, I had a chance to look at the other opinion issued today: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case was about whether disparate impact claims are cognizable under the Fair Housing Act. Given how negative the Court's opinions seem to have been when it comes to disparate impact -- or even any theory of liability other than for fully self-aware motive -- pretty much since Griggs v. Duke Power Co., with the partial exception of Smith v. City of Jackson, no one expected the Court to rule that they were. That's why the last two FHA disparate impact cases the Court granted cert on settled before the Court could decide them.
Somewhat surprisingly, the Court held that disparate impact claims were cognizable in an 5-4 opinion written by Justice Kennedy. Essentially, the Court based its decision on the statutory language, the history of the Act, and the Act's purpose. Although the FHA does not have language like Title VII or the ADEA that focuses on actions that would "tend to deprive" people of housing opportunities, the FHA does prohibit "otherwise mak[ing] unavailable" housing opportunities because of a person's protected status. That "otherwise" language was key.
It's not all great news for the plaintiffs here or for disparate impact under Title VII, though. Much of the opinion was devoted to discussing how the proof structure limits the claim. The plaintiff must point to a particular practice that causes a disparity, and the defendant has the opportunity to show that the practice is "necessary to achieve a valid [government] interest." The Court suggested that would be difficult in this case, especially where a single housing decision might not be evidence of any policy that would produce a disparity. Finally, the Court cautioned that the relief ordered be very narrowly tailored to the specific practice that was arbitrary, so that government discretion was not cabined more than necessary.
Of special interest in the employment context was this odd statement about the employment cases:
These cases also teach that disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.
Even though the Court refers to the employment cases, in which the defendant bears the burden to prove that its practice is a business necessity, the statement about needing the plaintiff to prove an alternative practice before a court can reject a business justification, seems to put more of a burden on the plaintiff. Also, the test for business necessity itself is unclear. Congress, in the Civil Rights Act of 1991, stated that the standard should be what it had been the day before the Court decided Wards Cove v. Atonio, which had altered the standard to make it simply a legitimate business reason. But the only case since the CRA to discuss the business necessity standard was Ricci v. DeStefano, which didn't really do a full disparate impact analysis and seemed to interpret business necessity more like the Wards Cove reasonableness standard. My guess is that this will not help the lower courts much, although it may encourage them to use a reasonableness or business judgment type rule to assess the business necessity defense in the future.
There were two dissents. Justice Thomas dissented, essentially arguing that "because of" could only mean an intent to discriminate, which in turn requires that protected class be the motive for the decision. His dissent is interesting for those of us who study the history of Title VII and the EEOC because of its description of the influence of Alfred Blumrosen, who helped create the EEOC and served as its first Chief of Conciliations and Director of Federal-State relations. Justice Thomas was also worried about how this theory will frustrate the creation and maintenance of low-income housing, especially in places like Houston, which is a minority-majority city.
Justice Alito also dissented and was joined by the Chief Justice as well as Justices Scalia and Thomas. Justice Alito agreed that "because of" required that protected status be the decisionmaker's reason for the decision. He also disagreed with the Court's reading of Congress's intent and the history of the statute. He further disagreed that Griggs's rationale should be imported to the FHA, and implicitly disagreed that Griggs was supportable or even really about anything but sneaky disparate treatment. Finally, Justice Alito worried about how the theory would work in the housing context, which he sees as much more complicated than a relatively simple policy choice at a single employer.
In the end, those who think that disparate impact is a necessary tool in the fight against inequality can breathe some sigh of relief--it's not completely dead. At the same time, though, its viability seems very limited, and the standard for liability is not at all clear.
Tuesday, June 23, 2015
Those of us who study race and social movements have had a lot to think about lately. The video of the white police officer in McKinney, Texas using force to subdue a black teenager and threaten others at a pool party, debate over Rachel Dolezal's identity, the racially motivated murders in Charleston and the ensuing calls to remove displays of the confederate battle flag, the Supreme Court's holding that Texas could refuse to issue a specialty license plate with the confederate battle flag on it, and the debate over President Obama's use of the n-word on Marc Maron's podcast have really sparked a prolonged national discussion. Fitting right in to the mix, a federal jury last week issued a defense verdict in Burlington v. News Corp. (civil action no. 09-1908 E.D. Pa) for an employer that had fired an anchor for using the n-word in an editorial meeting. (h/t Leora Eisenstadt (Temple Business))
The case has a lot of interesting pieces. The white anchor used the term in an editorial meeting and several people at that meeting, some black and some white, were offended even though they did not perceive that he meant it then as a racial slur. Burlington's claim was, essentially, that he was only fired for using the word because he was white and that a black person would not have been. He also used a cat's paw theory, alleging that his co-anchor, who was black, was behind the firing. She allegedly told him "[b]ecause you’re white you can never understand what it’s like to be called a n***** and . . . you cannot use the word . . . ."
The case made it past summary judgment, and the court's opinion is worth a read. It has something for everyone. Not only are the allegations detailed more fully, but the court analyzes whether Title VII should take into account public perceptions about the use of the n-word in the context of the race of the speaker and also struggles with how to merge Staub v. Proctor Hosp.'s cat's paw holding with Vance v. Ball State's ruling on who counts as a supervisor. You can also read more about the court's discussion of the context and use of the n-word in this ruling on motions in limine right before trial began.
And if you are looking for more commentary on Title VII, context, and use of the n-word at work, you should read Leora Eisenstadt's article, The N-Word at Work: Contextualizing Language in the Workplace--previously posted about here--which grew out of her work on the case when she was in practice. A couple of other interesting pieces by Gregory Parks (Wake Forest) and Shayne Jones (S. Fla. Criminology) here and here, are also thought provoking.
Saturday, June 20, 2015
In a recently posted paper (forthcoming in the Southern California Law Review), Stephen Rich argues for a way to reconstruct the legal conception of diversity—narrowly endorsed in Grutter v. Bollinger, 539 U.S. 306 (2003) only for the use of an applicant’s race for public university admissions —to better advance equal opportunity in workplace settings and beyond. More from the abstract:
This Article demonstrates that Grutter underserves the law’s equality values by deferring to institutional constructions of diversity’s benefits, naively equating the achievement of numerical diversity with the accomplishment of those benefits, and failing to distinguish between exploitative and egalitarian uses of diversity. These deficiencies obscure diversity’s potential to reimagine the relationship between equal opportunity, individual achievement, and institutional design. The Article uses the managerial conception of diversity as a foil for the legal conception. One the one hand, proponents of diversity management in the business context seek to exploit workforce diversity for financial gain, and they reject the emphasis of affirmative action programs and civil rights enforcement on the achievement of integration for its own sake. On the other hand, however, proponents of diversity management sometime marshal the diversity ideal also in order to promote new institutional practices that extend to underrepresented persons equal opportunity for individual growth and advancement. The Article proposes a reconstruction of the diversity rationale to fulfill its potential as an instrument of equal opportunity, within and beyond the educational realm and in circumstances including, but not limited to, the implementation of affirmative action programs.
In the paper, Rich argues, among other things, that, a diversity rationale should distinguish between “exploitative and egalitarian uses of diversity” and should endorse only “measures that provide equal opportunities for individual achievement and advancement to all persons, regardless of their social status.” To this end, it shouldn’t matter that an institution’s “diversity” efforts also advance its own self-interest, even if that “spur[s] an institution to pursue diversity voluntarily.”
Tuesday, June 9, 2015
In Wal-Mart Stores v. Dukes (2011), the US Supreme Court ruled in part that a district court had improperly applied Federal Rule of Civil Procedure 23(a)(2) (requiring “questions of law or fact common to the class”) when it had certified a plaintiff class in a Title VII pay discrimination lawsuit against Wal-Mart, because those plaintiffs had provided “no convincing proof of a companywide discriminatory pay and promotion policy.” Since then, some have argued for reading Wal-Mart’s gloss on FRCP 23(a)(2) into the Fourteenth Amendment’s Due Process Clause to set a minimum necessary condition for class actions under State law as well as federal law.
Enter Joe Seiner (our fellow co-blogger), who has posted a new paper: “Commonality and the Constitution: Applying Wal-Mart to State Court Cases,” forthcoming in the Indiana Law Journal (2016). From the paper:
This Article begins by explaining the contours of the Wal-Mart decision, emphasizing the Court’s view of commonality under the federal rules. Next, this paper discusses the argument that Wal-Mart creates a constitutional floor for commonality in all class-action litigation. This paper critiques this argument, and explains why the Wal-Mart decision should be limited to federal court claims brought under Rule 23. Finally, this Article develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim satisfies the Due Process Clause. This Article explains the implications of adopting the proposed guideposts, and situates the proposed framework within the context of the existing academic literature. . . .
[Those guideposts:] [T]o satisfy the Due Process Clause of the Constitution with regard to commonality, all complex litigation must: (1) present a uniform company policy or problem that is (2) effectuated by management level employees, (3) creates common harm; and (4) the case must include mutual questions shared by all plaintiffs (5) that are capable of resolution across the entire class.
This topic is particularly salient given the Supreme Court’s recent decision to grant a cert. petition in Tyson Foods, Inc. v. Bouaphakeo.