Friday, September 21, 2018
Currently, two big strike events are in the news. One has already occurred and the other may be on the horizon.
First was a nationwide strike on Tuesday by some McDonald's employees. This strike was unusual for numerous reasons. One is that we don't usually see low-wage retail workers striking, although the Fast Food 15, OUR Walmart, and other similar efforts have begun to change that norm in recent years. As a result, what stands out most to me was the object of the strike. It wasn't the traditional bread & butter workplace issues like pay, benefits, and hours. Instead, the workers were striking to protest sexual harassment and to demand that McDonald's do more to address the issue. What this strike may be telling us is that there are new norms developing. Norms in which retail workers are more willing to strike and willing to do so for issues that aren't necessarily traditional, but are still vitally important, especially in the current #MeToo environment.
The second, potential, strike is far more traditional. It involves the steel industry, where steelworkers are threatening to strike United States Steel and ArcelorMittal if contract negotiations don't result in raises and other benefits that reflect those company's improving financial footing. An interesting twist is that part of the steelworkers' argument is that after taking many years of wage freezes, they want to share in the improving fortunes brought on in part by the new tax cuts and steel tariffs. An entirely predictable situation, but one that I expect will get settled because those companies won't want production halted.
Wednesday, September 19, 2018
Congratulations to Paul Secunda, Jeff Hirsch, and Joe Seiner on the publication of their book Mastering Employment Discrimination Law (2d ed Carolina Academic Press.). Here's the publisher's description:
The second edition of Mastering Employment Discrimination Law coincides with a defining moment in U.S. culture: the #metoo movement and the many sexual harassment scandals that have roiled American society. In addition to covering all procedural and substantive aspects of U.S. sexual harassment and sex discrimination law, the second edition also takes on a wide variety of employment discrimination law subjects. The book begins first with coverage and jurisdiction issues and then turns to complex federal and state procedural topics surrounding the filing of administrative charges of discrimination and civil lawsuits. Moreover, the book comprehensively addresses the substantive aspects of Title VII, the ADEA, the ADA (including recent amendments), the Equal Pay Act, and the Civil Rights Acts, as well as related issues such as remedies, attorney fees, and settlements. By adding Professor Joseph Seiner of the University of South Carolina School of Law—a former attorney with the EEOC—as a new co-author, the book has added substantial new focus on administrative topics and procedural issues in employment discrimination litigation.
CBS’ announcement of CEO Les Moonves’ departure offers a welcome example of a company willing to cut bait on a star employee based on reports of repeated sexual harassment. Even more noteworthy is the news that Moonveslikely will receive no severance pay.
CBS’ refusal to offer Moonves a cushioned exit could presage a new level of accountability post-#MeToo, one where harassers can expect neither a pass nor a golden parachute. But there are reasons to be less sanguine. Moonves’ employment contract, like that of many C-suite employees imposes steep penalties on the company in the event of a termination without cause. For CBS, the cost could reach a reported $120 million, even discounting $20 million that the company has pledged to the #MeToo movement.
It can boggle the mind to imagine that Moonves’ termination is anything but justified. The allegations against him include forced oral sex, bodily exposure, physical violence, intimidation and retaliation. If even a fraction of it is true, then there is clearly cause to terminate him under any ordinary meaning of the word.
But it is not the ordinary meaning of “cause” that applies. High-level contracts typically define cause in idiosyncratic ways — requiring that the employee willfully fail to perform, commit a felony, or engage in gross misconduct materially harming the company. Courts interpret such language to mean conduct far exceeding ordinary wrongdoing. In cases of doubt, the burden usually is on the employer to justify its decision based on proven facts.
Thursday, September 6, 2018
Just out from Katie Eyer of Rutgers, and couldn't be more timely! Here's the abstract:
In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality. Raising claims under federal sex discrimination law, advocates have argued that anti-LGBT discrimination is, necessarily, also sex discrimination under Title VII. Such claims have seen increasing success in the federal courts as biases against the LGBT community have receded, allowing courts to recognize the textual and doctrinal logic of such sex discrimination claims. As victories in the lower courts have accumulated, the LGBT employment discrimination issue has increasingly seemed poised to be the next major LGBT equality issue to reach the Supreme Court.
But a new argument has also arisen to dispute LGBT Title VII claims: “statutory originalism.” Arguing that the meaning of Title VII ought to be judged by reference to its “original public meaning”—and that the original public in 1964 would not have thought that anti-LGBT discrimination was proscribed—opponents of LGBT inclusion have contended that such sex discrimination claims cannot be allowed. In making these arguments, opponents have endeavored to sidestep well-established textualist case law that rejects virtually identical arguments when made under the rubric of Congressional expectations or intent.
This Article contends that the “original public meaning” approach raised by opponents of LGBT inclusion is neither so distinctive, nor so uncontroversial, as its proponents have suggested. “Original public meaning” itself is a modality of statutory interpretation that has essentially no pedigree in the federal statutory interpretation case law. And yet the arguments of its proponents do bear a striking resemblance to another well-established, but now discredited approach: looking to the expectations or intent of Congress to limit broad statutory text. Moreover, the specific approach to “original public meaning” taken by opponents of LGBT inclusion—looking to “original expected applications”—is one that should concern both civil rights advocates and originalists alike. Thus, courts ought to reject the novel “statutory originalism” arguments that have been raised in opposing LGBT employment equality claims.
Thursday, August 23, 2018
Luke Boso recently posted his timely new article, forthcoming in the Florida L. Rev., on SSRN. The abstract explains:
In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide. Many rural Americans feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms. This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people. In several respects, the conflict is merely perceived and not real. It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces.
This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism. Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel. Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige. They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them. Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity. It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.
Friday, August 17, 2018
Even though Obergefell was a significant victory for the LGBT community, in the aftermath, a same-sex couple who gets married over the weekend may be fired from their jobs on Monday for simply displaying or posting pictures of their wedding. Because no explicit federal antidiscrimination law encompassing LGBT persons exists in the United States, the employer’s action in firing an employee because they were gay or lesbian would be legal in the majority of states. Therefore, marriage equality ironically makes employment discrimination against LGBT workers easier, in that employers are now more aware of who in their workforce identifies as LGBT because of their marital status and request for spousal benefits.... Ultimately, this article attempts to propose a unified theory under which discrimination based on sexual orientation would be included under Title VII’s prohibition against discrimination “because of sex.”
Thursday, July 19, 2018
Thanks to Jon Harkavy for once again alerting us to an important case out of the Fourth Circuit. The case is Savage v. State of Maryland. Part III of the opinion deals with a Title VII retaliation claim by a public employee. The Court denies an interesting claim with esoteric issues galore by holding simply that even if the defendants are subject to Title VII liability, there cannot be actionable retaliation here. That is because no reasonable employee could believe that exposure to the most odious racial epithets violates Title VII when it is part of the employee's job in preparing for trial to listen to potential witness statements being read by the state's attorney. [The plaintiff here is a police officer who attended a trial preparation meeting where the state's attorney read potential witness letters containing the epithets.] When plaintiff complained about a hostile environment, the attorney allegedly retaliated against him by refusing to use him as a witness. The Fourth Circuit holds that context matters when an employee is, in the course of his job, exposed to the most offensive racial slurs.
Ann Hopkins, of Price Waterhouse v. Hopkins fame, has passed away. You can see the NY Times obituary on her here. Especially in the current #MeToo movement, it's important to remember the major impact that her case has had on sex discrimination in the workplace.
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts as part of a Call for Papers to be presented at the 2019 Annual Meeting program in New Orleans. The program, titled Increasing Tension: Labor and Employment Law Protections and Religious Accommodations, will take place on Friday, January 4, 2019, from 10:30 am to 12:15 pm, and it is co-sponsored by the AALS Employment Discrimination Law and Law and Religion Sections. This program will follow the Labor Relations and Employment Law and Employment Discrimination Sections breakfast held from 7:00 a.m. to 8:30 that morning.
This program will focus on the increasing tension between workplace and antidiscrimination laws and religious freedom. Panelists will explore the challenges presented by this tension when religious exemptions from workplace and antidiscrimination laws are provided to religious organizations, employers with deeply held religious beliefs, and individual employees. A panel of leading labor and employment law and law and religion scholars will address that issue from varying perspectives, including constitutional law (religious freedom and/or compelled speech and association in the workplace), traditional labor law (NLRB’s jurisdiction over religiously affiliated employers and the impact on employee organizing drives), and employment discrimination law.
We are seeking an additional speaker or speakers who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Joseph Mastrosimone, at firstname.lastname@example.org by Friday, September 17, 2018. The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 4, 2019.
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.