Sunday, July 15, 2018
Jon Harkavy (Patterson Harkavy) sends word of Strothers v. City of Laurel, Maryland, downloadable here, a Fourth Circuit decision handed down last Friday. The case involves a Title VII retaliation claim against a public employer based on a complaint of racial harassment. Judge Gregory's opinion for the panel reversed a district court's dismissal of the claim.
Friday, June 15, 2018
Congratulations to Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex Univ. London) on the paperback publication of their book Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Univ. Press). The book has garnered favorable reviews since its publication in October 2016. Richard Poole (Newcastle University, UK) described the book as “a fine achievement…a thorough, compelling, and valuable book.” Erika Kispeter (University of Warwick, UK) called the book a “successful combination of the sociological and legal aspects of women’s lifetime disadvantage in work” and “an accessible often fascinating analysis of current laws and their implementation.”
Nicole Porter (University of Toledo, USA), in a forthcoming review notes, “To my knowledge, this is the only book that outlines, in a systematic way, how all of the disadvantages and discrimination women face over a lifetime accumulate to contribute to women’s economic insecurity in old age.” Praising its “ambitious” and “broad-minded approach,” and “voluminous body of research,” she added, “I thoroughly enjoyed this book.”
Cambridge University Press is presently offering the book at the discounted price of $27.99 (£18.39). The flyer for this pricing is available here.
Monday, June 4, 2018
The Supreme Court just released its decision in Masterpiece Cakeshop, which dealt with a cake shop owner's claim that his religious freedom should allow him to refuse customers who wanted a cake for a same-sex wedding. The Supreme Court reversed a state commission's decision against the shop owner, holding that the decision violated his right to free expression. But the decision is narrower than it may first appear. In particular, the Court appeared to hinge the decision on the state commission's decision in the case, which it viewed as being impermissibly hostile to religion (this may have led to the 7-2 lineup at the Court).
This was not an employment case, but there are parallels. As a result, although the Court seemed to duck the underlying issue about free expression v. antidiscrimination laws, employers will no doubt try to use Masterpiece as a defense. But its value will depend on employers' ability to couch their employment discrimination as expression because one of the unique aspects of Masterpiece was that the shop owner claimed that making cakes was artistic--that is, constitutionally protected expression. Because of that, and the Court's criticism of the state commission, most employers will not be able to make an argument like Masterpiece. There will no doubt be exceptions--maybe a religious-themed artist that hires assistants--but there are not a lot of business that involve both the level of expression needed for such a claim, as well as the level of hostility that the Court perceived. But I'm sure many employers will make the argument nonetheless . . . .
Tuesday, May 15, 2018
Ban-the-box laws, which delay an employer’s inquiry into an applicant’s criminal record until later in the hiring process, are gaining remarkable traction at the local, state, and even federal levels. But the assumption that employers will be more likely to hire ex-offenders if forced to evaluate their qualifications before discovering their criminal record has gone largely untested. Empirical uncertainty has given rise to various criticisms of ban-the-box laws, chiefly that they merely postpone the inevitable decision not to hire the ex-offender — often at considerable cost to both the employer and applicant — and, worse yet, that they may actually harm racial minorities by causing employers to assume all minority applicants have a criminal record and eliminate them from consideration on that basis.
This Article reports the findings of a field experiment I conducted during the summer of 2017 that tested whether ban-the-box laws are working, and if so, for whom. The experiment entailed applying to over 2,000 food-service job openings in Chicago, which bans the box, and Dallas, which does not, using a fictitious ex-offender applicant profile. One-third of the applications in each city used a black-sounding name, one-third used a Latino-sounding name, and the other third used a white-sounding name. The experiment tracked each application for ninety days to determine whether it elicited an employer callback (i.e., a request for an interview or additional information). I then utilized multiple regression modeling to analyze callback differentials between cities and across races.
The results from this study support the claim that ban-the-box laws increase employment opportunities for ex-offenders, as an applicant was 27 percent more likely to receive a callback in Chicago than in Dallas. The results refute the contention that banning the box harms racial minorities. All three applicants had higher callback rates when the box was banned, with the black applicant experiencing the largest increase. Still, the black applicant had much lower callback rates than the white and Latino applicants in both Chicago and Dallas, indicating race remains a formidable barrier to employment, regardless of whether an employer is aware of a candidate’s criminal record.
In light of these key findings that banning the box increases an ex-offender’s odds of employment without harming racial minorities, this Article considers the potential costs and benefits of ban-the-box laws, both standing alone and as part of broader efforts to successfully reintegrate ex-offenders into society. Although banning the box may prove helpful in improving ex-offenders’ job prospects, it is hardly sufficient; more is required to ensure that upon release, an ex-offender’s prison sentence does not become a life sentence.
Tuesday, April 17, 2018
Friend-of-the-blog, Jason Bent (Stetson) shared news of a symposium at Stetson this Friday that sounds like it will be of interest to many of our readers:
On Friday, April 20, the Stetson Law Review is hosting a symposium exploring the Supreme Court’s emerging animus doctrine in constitutional law. The discussion is inspired by Brooklyn Law Professor William D. Araiza’s new book, Animus: A Short Introduction to Bias in the Law. The symposium will explore the role of animus in the Court’s recent equal protection jurisprudence, including United States v. Windsor and Obergefell v. Hodges, as well as its implications for religious freedoms and workplace law. The symposium can be viewed for free via simultaneous webcast. For the full agenda, the list of speakers, and more information about registering or viewing the webcast please visit:
The lineup looks great and includes a number of workplace law friends, like Jessica Clarke (Minnesota) and Katie Eyer (Rutgers). Tune in to the live webcast if you can't make it in person.
Sunday, March 11, 2018
On Wednesday, March 7, 2018, the United States Court of Appeals for the Sixth Circuit ruled that Title VII of the Civil Rights Act of 1964 explicitly prohibits employment discrimination against transgender persons. The court also ruled that the Religious Freedom Restoration Act (“RFRA”) may not be used as a shield to justify discrimination against LGBTQ employees. In its decision, the court rejected t e legal theory, rooted in the Supreme Court’s Hobby Lobby decision, that businesses may fire or mistreat protected employees under the guise of religious liberty.
In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, Aimee Stephens, a transgender woman who worked as a funeral director, started her employment presenting as male, the sex she had been assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.”
The EEOC brought suit on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII. The district court concluded that Stephens had suffered sex discrimination, but not specifically because she was transgender. Rather, the district court held that Stephens had suffered sex discrimination because, consistent with Hopkins and its progeny, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though she had been subjected to sex discrimination, the funeral home had a right to terminate her under RFRA, even though the funeral home was not affiliated with any specific religious institution. The district court held that RFRA protected their personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.
In her opinion for the Court of Appeals, Judge Karen Nelson Moore rejected the analysis of the district court regarding both the reach of Title VII in providing protection for transgender persons and the availability of RFRA as a shield behind which an employer is free to engage in otherwise unlawful conduct. Judge Moore wrote that Title VII does specifically outlaw employment discrimination against transgender persons for two distinct reasons. First, Title VII prohibits discrimination against persons for failing to conform to expected gender stereotypes. As Judge Moore explained, in firing Stephens because she was transitioning, Rost penalized her for failing to conform to the sex assigned to her at birth. Judge Moore wrote, “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Second, and more important, Judge Moore concluded that discrimination against transgender persons is inherently sex based, in that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Where an employer discriminates against an employee because of her “transgender or transitioning status,” that employer is necessarily taking sex into account—in violation of Title VII.
Regarding the district court’s conclusion that RFRA provided protection for the employer’s discriminatory conduct, Judge Moore rejected this analysis. For RFRA to serve as a shield for discriminatory conduct, RFRA requires a showing that there has been a “substantial burden” on “religious exercise,” that is not “in furtherance of a compelling government interest” and/or “the least restrictive means of furthering” that interest. In this case, the funeral home claimed that the presence of a transgender employee would (1) “often create distractions for the deceased’s loved ones” and (2) force Rost to leave the industry, because working with a transgender person was an infringement on his religious beliefs.
Judge Moore concluded that neither of these constituted substantial burdens on Rost or the funeral home. Regarding the first claimed burden, Judge Moore stated that employers cannot escape the requirements of Title VII simply by assuming the “presumed biases” of their customers. With regard to the second claimed burden, Judge Moore wrote that “tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Judge Moore asserted that Stephens did not ask Rost, in any way, to endorse or to aid her transition. Rather, she only sought to remain on staff at the funeral home. According to Judge Moore, allowing her to remain employed does not “substantially burden his religious practice.”
In conclusion, Judge Moore asserted that even were Title VII to impose a “substantial burden” on Rost’s religious beliefs in this case, it would still survive scrutiny under RFRA, in that eliminating or preventing employment discrimination because of sex is clearly a “compelling interest,” and no less “restrictive means” of forbidding such discrimination exist other than the enforcement of the law. Otherwise, according to Judge Moore, all modern civil rights law would be called into question.
While it is not yet clear whether the funeral home plans to seek an en banc rehearing of this case or seek certiorari in the Supreme Court, in this decision, the Sixth Circuit joins with the Second Circuit and the Seventh Circuit in concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation and gender identity. While the Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit raising this question, the Supreme Court ultimately will have to address this issue.
... Associate Professor Myanna Dellinger ... is the Editor-in-Chief of the ContractsProfBlog and a rising star in legal academia. She is the creator of the Global Energy and Environmental Law podcast (also available on iTunes), a frequent speaker at academic symposia and author of a dozen law review articles and many other publications.
After graduating first in her class at the University of Oregon School of Law in 2008, she had two clerkships, including for the Hon. Procter Hug, Jr. on the U.S. Court of Appeals for the Ninth Circuit. Myanna started her academic career as a Visiting Assistant Professor at Whitter Law School in 2010-11 and then accepted a tenure-track position at Western State College of Law in 2011-12. She was promoted to Associate Professor in 2014, effective for the 2014-15 academic year. In 2014, she was recruited by the University of South Dakota School of Law Dean Thomas Geu and offered a lateral position as an Associate Professor for the 2015-16 academic year, which she accepted. Since arriving at USD, Myanna has continued to thrive. She has published four highly-regarded law review articles since joining the faculty there, and has consistently received outstanding teaching evaluations. In 2016, she received a Fulbright Fellowship to the Institute for Advanced Sustainability Studies in Potsdam, Germany. She is highly involved in service to the school, the community and the broader profession and has brought significant positive attention to the school.
With credentials like this, one would think that the University of South Dakota would be thrilled to have her and would be doing everything to keep her, especially given the fact that the law school has only one tenured female faculty member and was cited by the ABA in its last site visit for its lack of gender diversity. Unfortunately, that is not the case. Although the law school has been strongly supportive of Myanna, the central University Administration seems to be doing everything they can to make her feel unwelcome.
Wednesday, March 7, 2018
Thanks to Christine Duffy (Senior Staff Attorney, ProBono Partnership) who sent along news that the Sixth Circuit handed down its opinion in EEOC v. R.G. & G.R. Harris Funeral Homes today. You might recall from our earlier postings(mine here and Christine's much more complete post here) that this lawsuit was brought by the EEOC against a funeral home, alleging that the funeral home discriminated against its funeral director Aimee Stephens by refusing to allow her to follow its dress code for female funeral directors and terminating her when she requested to do so. Aimee began work as Anthony Stephens and had been designated male at birth. The EEOC argued that the funeral home's conduct was sex discrimination, that it terminated Stephens based on sex stereotypes about how men and women should present themselves. The funeral home owner, Thomas Rost, defended his action, arguing that it grew out of his religious beliefs that sex is immutable and binary and that he would be complicit in sin if he allowed an employee to wear the uniform of the other sex.
On cross-motions for summary judgment, the district court had held that the Religious Freedom Restoration act (RFRA) barred the EEOC from enforcing Title VII in this case. The Sixth Circuit reversed the grant of summary judgment for the funeral home and granted the EEOC's motion for summary judgment. The district court had found that Stephens's charge had stated a claim for discrimination based on sex stereotyping, but held that the case could not be pursued alternatively on the theory that discrimination on the basis of gender identity or gender transition was sex discrimination. The Sixth Circuit agreed that this could go forward as a sex stereotyping case, but reversed the other part of that holding, instead holding that discrimination on the basis of gender identity is sex discrimination and that the EEOC should have the opportunity to prove that the funeral home fired Stephens because of her gender identity. The courts thorough analysis of this issue is worth reading in full.
Based on this potential Title VII violation, the Sixth Circuit then turned to the funeral home's defense, reversing its RFRA holding. The court first considered an issue raised in an amicus brief, that the ministerial exception should apply. Finding that the funeral home had virtually no religious characteristics -- it wasn't affiliated with any church, its articles of incorporation didn't avow any religious purpose, its employees were not required to hold any particular religious views, and it employed and served individuals of all religions -- it was a religious organization that could claim a ministerial exemption. Analyzing RFRA, the court held that while the owner, Rost's action of running the funeral home may have embodied some sort of religious exercise, having to continue to employ Stephens would not substantially burden that. Rost asserted that potential clients would be distracted by Stephens' appearance. The court found that speculative and based in biases, but also found it irrelevant, holding that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA, analogizing it to a cases finding customer preference insufficient to establish a business necessity or bona fide occupational qualification defense. The court also held that there was no evidence of a financial burden the funeral home could not avoid or sufficient complicity in Stephens' gender expression to constitute a substantial burden.
Even assuming that the funeral home had made that showing, the court further held that prohibiting sex discrimination was a compelling governmental interest, and requiring the funeral home to allow Stephens to wear women's attire at work was the least restrictive means to further the EEOC's interest in eradicating discrimination based on sex stereotypes from the workplace. In other words, Title VII is itself strikes the appropriate balance and is the least restrictive means to enforcing the government's interest in eradicating discrimination.
I'm sure there is more that I'm missing, and I encourage you to read the whole opinion.
Thursday, March 1, 2018
Deborah Widiss (Indiana) has a really interesting new article on SSRN: Intimate Liberties and Antidiscrimination Law, published in the Boston University Law Review. From the abstract:
In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.
During the 1980s and 1990s, several state supreme courts held that landlords who refused to rent to unmarried couples were responding to unprotected conduct (i.e., non-marital intimacy) rather than engaging in impermissible discrimination on the basis of marital status. Similar arguments are made today in cases concerning same-sex couples who are denied wedding-related services or unmarried pregnant women who are fired. This Article argues such decisions misconstrue the relevant statutory language, and it shows how modern constitutional doctrine should inform the interpretation of private antidiscrimination law to offer more robust protections for intimate liberties.
This Article also addresses whether antidiscrimination protections related to intimacy can be enforced despite objections premised on religious beliefs. Some courts, as well as the Trump Administration, have suggested that statutes prohibiting discrimination on the basis of marital status or sexual orientation serve less “compelling” interests than provisions prohibiting race discrimination. This argument is deeply flawed. Courts have long recognized that statutes intended to eliminate discrimination serve compelling purposes, even when they address factors that do not trigger strict scrutiny under the Equal Protection Clause. The compelling nature of antidiscrimination laws related to intimate liberties should be especially obvious: They protect individuals’ freedom to make fundamentally important choices that are central to personal dignity and autonomy.
In my view, the interconnectedness of liberty and equality is not given enough scholarly attention. This article is a welcome contribution, and I'm excited to read the whole thing.
Monday, February 26, 2018
Today, the Supreme Court granted in cert. in Mount Lemmon Fire District v. Guido. The question presented was whether the Age Discrimination in Employment Act applies to state and local employers with fewer than 20 employees. I'll confess that I hadn't thought much about this issue, which arises from the ADEA's definition of "employer" (29 U.S.C. 630). As most of us know the ADEA's small employer exception requires private employers to have at least 20 employees. But whether that exception applies to state and local government employers is less clear. I'll quote the provision to show why:
The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
As you can see, the inclusion of state and local employers is separate from the private-sector part, with its 20-employee requirement. The Ninth Circuit has held that, as a result, there is no small employer exception for state and local employers, while the 6th, 7th 8th, and 10th circuits have applied the exception to those employers. Hence the Supreme Court intervention.
Today, the Second Circuit issued an en banc decision holding (9-3) that Title VII prohibits sexual orientation discrimination. We've been covering this issue quite a bit since the EEOC concluded that Title VII's prohibition against "sex" discrimination necessarily includes sexual orientation (for example, see here, here, here, here, and here). You can read the text by clicking on the case name here, Zarda v. Altitude Express.
What remains to be seen is whether the Supreme Court will take up this issue at some point. It's declined thus far, but stay tuned.
Wednesday, February 21, 2018
Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.
Sunday, February 18, 2018
I just posted a short piece on SSRN ruminating on the relationship of artificial intelligence to current doctrine. The abstract's below, and the full text will be available shortly. Here's the link.
Imagine that, today or in the not-so-distant-future, a company desires to take full advantage of the developments of artificial intelligence by effectively delegating all its hiring decisions to a computer. It gives the computer only one instruction: “Pick good employees.” Taking “Big Data” to the logical extreme, the computer is also provided with all the employer’s available data and empowered to find whatever data it might consider relevant on the web.
Thought experiments, such as this one, can be useful not only in exploring new concepts but also in bringing interesting perspectives to bear on old problems. “People analytics,” perhaps someday leading to use of artificial intelligence in selecting and managing employees, offers an opportunity to do both.
One disturbing conclusion from analyzing this scenario is that the current disparate treatment paradigm does not seem to reach even the explicit use of race, sex, or other “protected classes” as selection criteria when deployed by artificial intelligence. That sheds some interesting light on the limitations of current law, entirely apart from actual developments in AI.
Equally important, applying disparate impact theory to artificial intelligence’s use of correlations between any of a number of variables and various measures of job performance poses challenges for long-standing ways of viewing the job relation/business necessity defenses to a showing that a particular employment practice has a disparate impact.
Friday, February 2, 2018
There’s been considerable fuss recently about age-based targeting of social media job advertisement, in a variety of media, including the New York Times and NBC. The short version of the story is that the ads were shown to a younger demographic, thus giving such workers a considerable leg up in the job hunt, maybe even a monopoly on many openings.
It’s not at all clear that the practice is illegal under current federal law. While the ADEA does reach advertisements, the language of § 623(e) bars only expressing an age preference, and these ads do not do that. Indeed, they don’t need to because older workers never see the ads in the first place. Maybe Facebook can be viewed as an “employment agency,” as one suit argues, but it’s still somewhat of a textualist stretch to reach this particular kind of conduct. And maybe state laws, especially those with aiding and abetting prohibitions, fill the gap although many seem to track the ADEA’s phrasing.
The reality is that current laws did not envision a world in which employers could market openings to niche groups of potential employees, and none of the current legal paradigms is a very good fit for the problem. And that’s true even if we all agree that such targeting is contrary to the goals of the ADEA because people outside of the specified age range will often be effectively shut out from participation in the recruitment and hiring process.
Maybe public outcry will address the concerns? The Times reports that, while Google does not prevent advertisers form displaying ads based on the user’s age, LinkdIn has changed its system to prevent such targeting. And one could imagine an amendment to the ADEA that proscribed that conduct. Senators Collins (R) and Casey (D), seem concerned.
But would either a shift by social media or a statutory amendment be effective? The ads in question were tailored to an age demographic, and prohibiting that precise conduct might be easy. But would it solve the problem or would employers simply shift to other methods of targeting desired workers? Social media outlets allow advertisers to aim at other groups, say “recent college graduates” or maybe “active Facebook users.” Such targeting might be a pretty good proxy for age while avoiding a formal age classification.
How would we even think about that? Disparate treatment because a particular employer shifted from a facially discriminatory policy to a proxy? But what about an employer who never used age targeting but starts looking for recent grads? Or disparate impact because the target group is facially neutral even though heavily youth-centric? And if we go the latter route, might the ads be justified by a reasonable factor other than age, given that likely applicants for entry level jobs are probably younger and targeted ads may be more cost-effective? Of course, the latter possibility depends on how Facebook, Google, or LinkedIn charge advertisers – a per click rate might obviate cost concerns.
All in all, quite a challenge for the antidiscrimination project.
Hat tip to Charles Mueller Seton Hall ’18 for his research assistance.
Sunday, January 28, 2018
This guest post is courtesy of Jack Harrison (NKU-Chase):
On Thursday, January 25, 2018, the United States Court of Appeals for the First Circuit upheld a 2016 jury verdict of more than $700,000, plus $184,000 in legal fees, in a Title VII case involving Lori Franchina, a lesbian firefighter for the City of Providence, Rhode Island. This case is important because it represents yet another decision by one of the Courts of Appeals calling into question precedents in the circuit holding that sexual orientation discrimination is not prohibited by Title VII’s prohibition of discrimination “because of sex.” While Franchina was decided on a sex-plus theory, rather than a sexual orientation theory, the “plus” in the case was Franchina’s sexual orientation.
The Court of Appeals described the horrendous treatment that Franchina had endured in the workplace as follows:
‘Cunt,’ ‘bitch,’ ‘lesbo’: all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department (‘the Department’). She was also spit on, shoved, and — in one particularly horrifying incident — had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team.
The First Circuit flatly rejected the city’s argument “that under a sex-plus theory, plaintiffs are required to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination.” In rejecting this argument, the First Circuit seemed to embrace the broader comparator analysis adopted by the Seventh Circuit in its decision in Hively, finding that sexual orientation discrimination was, indeed, discrimination “because of sex” prohibited by Title VII. The First Circuit also indicated that nothing in its prior decision addressing sexual orientation discrimination, Higgins v. New Balance Athletic Shoe Inc., “forecloses a plaintiff in our Circuit from bringing sex-plus claims under Title VII where, in addition to the sex-based charge, the ‘plus’ factor is the plaintiff's status as a gay or lesbian individual.” The discussion by the court of this precedent appears to call into question the court’s commitment to the position held in Higgins. Such questioning is certainly consistent with language used by other Courts of Appeals in decisions over the last year, including decisions by the Seventh, Eleventh, and Second Circuits, addressing the reach of Title VII in the sexual orientation discrimination context.
Currently, the en banc United States Court of Appeals for the Second Circuit is considering Zarda v. Altitude Express, a case that, like Hively, squarely asks the question of whether Title VII’s prohibition against discrimination “because of sex” includes discrimination based on sexual orientation. Oral argument was held in Zarda on September 26, 2017. While scheduled for only one hour, the arguments actually lasted for almost two hours. The questions asked and the tone of the oral argument would suggest that the Second Circuit is likely to follow the lead of the Seventh Circuit in Hively, concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation. The Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit that raised this question, but with a decision in Zarda expected any day, the Supreme Court may ultimately have to address this issue.
Wednesday, January 17, 2018
Lynne Bernabei (founding partner) and Kristen Sinisi (senior associate), Bernabei & Kabat in D.C., have published in Law 360 The Legal Case Against Weinstein’s Suppression Efforts. With permission of the authors and of Law360, I am reproducing their article here in full:
For decades, disgraced film producer Harvey Weinstein succeeded in silencing his victims. Authorities in three different countries are now considering whether to bring criminal charges against him, but will he have the same success burying information in the courts as he did on the job?
More than eighty women have spoken up publicly about Weinstein’s pattern of sexual assault spanning more than three decades. A recent report from The New Yorker substantiated the fear Weinstein’s victims faced in coming forward. The Hollywood mogul did not limit his retribution to empty threats. Weinstein engaged private intelligence companies — Kroll and Black Cube — to dig up dirt on his sexual accusers and the media members who threatened to air victims’ stories. Weinstein leveraged the information to keep his victims quiet, and until recently, it worked.
An alarming number of victims have come forward about the sexual assault and harassment they faced at the hands of Weinstein, but questions remain about the judicial system’s ability to serve justice. In the United States, many of the public claims against Weinstein are likely time-barred. Authorities in London who are investigating Weinstein with respect to nearly a dozen victims there may fare better, given that it does not have a strict statute of limitations for serious sex crimes.
Another question about the limits of the judicial system concerns evidence that prosecutors may be able to collect from Weinstein’s former attorney, David Boies. Initially, Boies’ involvement with Weinstein was thought to be limited to helping him negotiate a new employment contract with The Weinstein Company when his contract came up for renewal in 2015. At that time, Boies negotiated terms that enabled Weinstein to keep his job despite his criminal misdeeds (in the absence of a criminal indictment or verdict or fraud against the company).
As if that weren’t enough, The New Yorker’s report revealed that Boies’ involvement in the Weinstein web ran deeper than previously known. In July 2017, as The New York Times, then another Boies client in unrelated litigation, prepared to release a story about the allegations against Weinstein, Boies took steps to bury the stories.
He personally executed an agreement retaining the services of Black Cube, a business intelligence company comprised of a “select group of veterans of elite units in the Israeli intelligence community,” on behalf of Weinstein. The agreement’s primary objectives included “[p]rovid[ing] intelligence which will help [Weinstein]’s efforts to completely stop the publication of a new negative article in a leading NY newspaper.”
Black Cube defined “success,” entitling it to a $300,000 “success fee,” as “stop[ping] the Article from being published at all in any shape or form.” Although Boies released a statement in which he said that he engaged Black Cube merely to vet the accuracy of the Times’ article, the express contract provisions he signed contradict that claim.
Boies went on to say that he declined to represent Weinstein with respect to the alleged sexual assaults for which Weinstein hired other counsel and that he told Weinstein “the Times story could not be stopped through threats or influence.” Boies further stated that Weinstein and the counsel he engaged selected private investigators to assist him and drafted a contract, which Weinstein asked Boies to sign. Although Boies signed the agreement, he denied selecting the investigators or directing or controlling their work, tasks which Weinstein and his lawyers did, according to Boies.
This sets out another problem for Weinstein and Boies: can Boies be compelled to provide evidence about his communications with Weinstein because this contract had nothing to do with providing legal advice?
Friday, January 12, 2018
Sexual harassment claims reached the federal judiciary when Judge Alex Kozinski was accused of sexual misconduct a few weeks ago. He has since resigned. As Tessa wrote here yesterday, one thing that kept some clerks from coming forward to report this misconduct was the policy of strict confidentiality that clerks must uphold while in chambers with their judges. Some judges, like Kozinski, may further rigidly enforce this pact as well, making it very difficult for clerks or other judicial employees to make reports.
In rapid response to this concern the Federal Judicial Center amended the Federal Law Clerk Handbook yesterday to read:
In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:
“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”
Concurrently, a signature campaign has been circulated to former law clerks and others urging for clarification on the confidentiality rules. It seems at least with regard to the Handbook, the amendment above may be sufficient to ensure judicial personnel feel comfortable making reports. The letter is due to be delivered on Thursday, December 21, 2017, to "Third Circuit Judge Anthony Scirica, chair of the Judicial Conference’s Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference." The United States Supreme Court is not governed by the Judicial Conference, and the letter makes no recommendations to the Court.
The letter can be found here and will remain open for signature.
Sunday, December 17, 2017
Thanks to Paul Harpur (TC Beirne - Queensland) for sending word of this disability case currently pending in Ohio:
On December 15, 2017, Denoewer, an adult individual with intellectual and developmental disabilities who is autistic, non-verbal, and epileptic, sued his employer of 7.5 years for disability discrimination and has joined his employer’s client claiming it was an accessory to the discrimination. The claim is available here.
Denoewer pleaded he experienced disability discrimination at the hands of his employer, Uco, a 501(c)(3) non-profit that exists to employ individuals with disabilities in a setting that is purportedly integrated (essentially a sheltered workshop). He contends that Uco breached the ADA and Ohio Rev. Code through treating him less favourably than workers without disabilities. He is seeking compensation for an amount between his actual rate of pay, and pay-related benefits, and the amounts earned and accrued by workers performing tasks that Denoewer was not permitted to perform, even though he claims he could complete, due to his impairment.
The aspect of this case which is novel is the move to sue Uco’s customer, HONDA of America MFG., Inc., for being an accessory to Uco’s disability discrimination. Honda’s accessorial liability is based upon 2 key grounds:
First Honda exercised significant economic power so as to ensure that UCO’s labor costs were lower than were lawfully possible.
Second, Honda’s specific production demands also determined which of UCO’s Production Associates would be permitted to work on the line. As a result, in some instances, non-disabled individuals were placed on the line instead of individuals with disabilities, such as Denoewer, in order to meet Honda’s specific demands.
As a consequence Denoewer is arguing that Honda aided and abetted UCO’s discriminatory conduct.
Wednesday, December 13, 2017
Charlotte Garden (Seattle) has just posted on Take Care Blog that there were plenty of red flags at Judge Kozinski's confirmation hearings -- and that the Senate ignored them. She provides extensive excerpts from the Senate record, then concludes:
It is impossible not to read the Senate record on Kozinski’s time at the MSPB as a precursor to last week’s Post story and subsequent reports about his behavior. That is, disturbing reports about Judge Kozinski are not just an open secret – they are also a matter of congressional record.
With the benefit of hindsight, we should ask whether the Senate failed in executing its responsibility to assess nominees’ temperament to serve, thereby failing the clerks and other employees who have now come forward reporting abusive behavior. There is a lesson here: The Senate’s confirmation process should be attentive to warning signs about nominees’ managerial temperaments; if a nominee’s track record shows a pattern of abusive intra-office behavior, the Senate should not confirm.