Wednesday, September 14, 2016
The Washburn Law Journal and the Center for Law and Government are hosting a symposium on the “Future of Labor and Employment Law: Power, Policies, and Politics” to be held on February 23, 2017 at Washburn University. From the call:
With Congress gridlocked, federal agencies are increasingly at the forefront of regulatory change in labor and employment law. Supporters of these administrative initiatives defend them as both necessary and commendable. Meanwhile, critics challenge the form, scope, and substance of these agency actions. This symposium bridges these competing viewpoints across a variety of cutting-edge labor and employment law issues.
The symposium will feature a keynote address and three panel discussions comprised of nationally recognized experts in the field. The three panels will cover:
- The EEOC's Expansion of Title VII to Include Sexual Orientation Discrimination
- Religious Freedom and Accommodation Issues Arising from Regulatory Expansions
- The Stubborn Problem of Unpaid, Unregulated, and Illegal Labor
More information about the event and the panels can be found at: http://washburnlaw.edu/futureoflaborlaw. The Law Journal is eagerly seeking panelists for this event. Speakers have the opportunity to publish articles based on their presentation in the Summer 2017 issue of the Washburn Law Journal. Articles from Journal’s 2013 labor and employment law focused symposium can be found at: http://washburnlaw.edu/publications/wlj/issues/52-3.html. Proposals should be sent to Cristen Hintze, Editor-in-Chief, at email@example.com. The Journal will consider proposals on a rolling basis.
This looks to be a very interesting event, so check it out.
Tuesday, September 13, 2016
I just learned that Friend-of-Blog and employment law scholar Bradley Areheart (Tennessee) has posted on SSRN his wonderful new paper, The Symmetry Principle, which provides a unique look at symmetry (or lack-there-of) in the many antidiscrimination laws. From the abstract:
Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.
This is a great paper which provides a much needed look at this important issue. I highly recommend taking a look if you research or teach in this area.
Friday, September 9, 2016
Terry Smith (DePaul) has a thoughtful piece at Huffington Post on the dissonance between the sexual harassment claims of some of the women and Fox News and their commentary in the past about discrimination against white men and race more broadly. As he notes, their claims are only recognized as legal harms because harassment was recognized as a form of discrimination in the race context first. He urges them and all of us to have greater empathy for victims of discrimination to make the law more fair.
If you have not been keeping up with the allegations and want to read more about the harassment claim brought by Gretchen Carlson against Roger Ailes, which was settled when Fox News apologized and paid her about half of what it paid Ailes to leave, you might read this and this. If you want to know more about the toxic environment there, read just about any of these articles by Gabriel Sherman at New York Magazine. Finally, if you are wondering what "feminist hero Susan Estrich [is] doing representing Roger Ailes," you are not alone.
Jon Harkavy (Patterson Harkavy) has just posted on SSRN his annual (30th?) review of the Supreme Court's work in the employment area. The article will be presented at a seminar in late October at the Grove Park Inn in Asheville, NC. Here's the abstract:
This article, the author's longstanding annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. In particular, the author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.
Sunday, September 4, 2016
Sam Estreicher (NYU) has posted on SSRN his article Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules. Kudos to Sam proposing something designed to create job opportunities for the heretofore nearly unemployable; I hope this helps move the discussion forward. Here's Sam's abstract:
This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.
Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.
The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern.
This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.
Monday, August 29, 2016
The EEOC just issued its final enforcement guidance on issues related to retaliation (after a public input period). The guidance replaces the information in the 1998 compliance manual on the topic. It also addresses the "indifference" provision of the ADA. From the EEOC's press release:
"The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Topics explained in the new guidance include:
- The scope of employee activity protected by the law.
- Legal analysis to be used to determine if evidence supports a claim of retaliation.
- Remedies available for retaliation.
- Rules against interference with the exercise of rights under the ADA.
- Detailed examples of employer actions that may constitute retaliation."
As we are all aware, retaliation is a key component of many workplace discrimination claims. This guidance can be extremely useful in litigating these cases, and I highly recommend taking a look if you are researching this topic.
Friday, August 26, 2016
Chrissy Shu Jien Chong (San Francisco) has just posted on SSRN her article (21 Asian Pacific American L.J. (2016)) Where are the Asians in Hollywood? Can §1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling? Here's an excerpted abstract:
Despite America's recent diversity craze, the bamboo ceiling appears stronger than ever in Hollywood. The entertainment industry's lack of racial diversity is disappointing, but the legal system's failure to protect minorities from Hollywood's discriminatory hiring practices is even more depressing. ... [W]hites hold 84% of on-screen acting roles and 94% of behind-the-cameras positions. Asian Pacific Americans only held 3% of on-screen acting roles and 0.8% of behind-the-cameras positions.
[This article] argues that the dramatic under-representation of Asian Pacific Americans in Hollywood is caused by racially discriminatory practices that are fueled by implicit and explicit biases. ... [The article] discusses an array of industry solutions, such as diversity and debiasing programs, colorblind pitches and casting, more Asians in the arts, self regulation, and organizing with other minorities. But the article ultimately determines the best solution to Hollywood's diversity problem is legislative action.
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to firstname.lastname@example.org. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Tuesday, August 23, 2016
Today, the NLRB issued its long-awaited decision in Columbia University. As expected, the Board--in a 3-1 decision--reversed Brown University (which was just the latest in a number of cases flip-flopping on this issue) to conclude that graduate students can be "employees" under the NLRA, as long as they had a common-law employment relationship. According to the NLRB's announcement:
The National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The Graduate Workers of Columbia-GWC, UAW filed an election petition seeking to represent both graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university in December 2014. The majority reversed Brown University (342 NLRB 483) saying it “deprived an entire category of workers of the protections of the Act without a convincing justification.”
For 45 years, the National Labor Relations Board has exercised jurisdiction over private, nonprofit universities such as Columbia. In that time, the Board has had frequent cause to apply the Act to faculty in the university setting, which has been upheld by the Supreme Court.
Federal courts have made clear that the authority to define the term “employee” rests primarily with the Board absent an exception enumerated within the National Labor Relations Act. The Act contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the Act.
Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion. Member Philip A. Miscimarra dissented in the case.
Brown had focused on a test whether the grad students were primarily students or primarily employees and, to my mind, the most important aspect of Columbia was the NLRB's rejection of that test and return to the common-law test for employment. I had always thought that Brown's refusal to use the common-law test flew in the face of Supreme Court law.
Maria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming BJELL) H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers. Here's the abstract:
This article analyzes the exploitation of immigrant workers under the H-1B visa program. It analyzes pure H-1B workers that work directly for the company that sponsor the visa; outsourced H-1B workers that work on a visa sponsored by an outsourcing vendor; and body shop workers who work on a visa sponsored by a labor contractor that operates outside the legal boundaries of the law. The article provides a comprehensive survey of lawsuits brought under the visa laws for prevailing wage violations, wage theft, benching, and liquidated damages. It also discusses lawsuits brought as independent causes of action under state tort and contract law; the TVPA; RICO; and employment discrimination statutes. The article argues that even perfect enforcement of existing law will not eliminate H-1B worker exploitation because the program includes systemic inequalities and subordinating structures that are modern manifestations of involuntary servitude, debt bondage and unfree labor. The unfree system of labor created by the guest worker program is based in the ways in which threats of deportation and liquidated damages prevent workers from complaining or quitting; the way in which the visa sponsor's control of the guest worker's labor parallels antebellum slave codes; the commodification of immigrant workers as part of the human supply chain; and the lack of citizenship rights guaranteed to these guest workers.
Saturday, August 20, 2016
This is a follow-up to Marcia's post immediately below. Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) posted a comment to Marcia's post that I found particularly enlightening, so I phoned her yesterday and asked if I could copy the comment to the blog as a guest post. As we spoke, she indicated that there was more she'd like to add, so I suggested she do so and then I would turn that into a guest post. So ... here it is. Many thanks to Christine for this.
Although I concur with Marcia McCormick’s observation that the August 2016 opinion in EEOC v. R.G & G.R. Funeral Homes, Inc. is an interesting decision and will be appealed to the Sixth Circuit, I’m not as disheartened by it. The decision has a number of very positive aspects.
I already knew from an April 2015 opinion that the district court judge had rejected the reasoning of the EEOC’s Macy decision, which held that discrimination based on gender identity or transgender status is sex discrimination. So reading that again in the latest opinion was not unexpected.
Both district court opinions wrongly state that the EEOC is trying to expand Title VII to include gender identity and transgender status as protected classes. Rather, the EEOC and a number of courts have come to understand that discrimination based gender identity or transgender status (or sexual orientation for that matter) inherently involves sex discrimination.
Thursday, August 18, 2016
The District Court for the Eastern District of Michigan issued a decision today on cross motions for summary judgment in EEOC v. R.G & G.R. Funeral Homes, Inc., granting summary judgment for the funeral home. The funeral home terminated an employee after that employee announced an intention to transition to female. The transwoman employee intended to abide by the the funeral home's dress code for women, which was that women wear skirt suits. Men were required to wear pantsuits (and if that sounds weird to you, too it's because this gender norm is so entrenched, we only call women's clothing pantsuits). The funeral home also provided men with a clothing allowance, but did not provide the same for women. The court held that enforcing Title VII was not the least restrictive means to reach the argued-for compelling governmental interest of prohibiting sex discrimination in the form of sex stereotyping.
The opinion is long and an interesting mashup of sex stereotyping, dress codes, LGBTQIA discrimination, RFRA, and Hobby Lobby. I haven't thoroughly analyzed it yet, but it seems a very troubling decision for a wide variety of reasons, not least of which is that it seems to import a sort of ministerial exemption on steroids into the private sector. The sense I get from my first read of the opinion is that the court reasoned to get to this point primarily because it disagreed with one of the claims made by the EEOC, which was that gender identity is sex for purposes of Title VII. That proposition has been accepted by a number of courts, but had been rejected by this judge.
This case is one to watch because it's certain to be appealed to the 6th Circuit.
Tuesday, August 16, 2016
Illinois became the sixth state to adopt a Domestic Workers Bill of Rights when Governor Rauner signed the bill last Friday. Domestic workers there will be covered by the state minimum wage laws, guaranteed rest periods, meals, and one day off a week, protected from discrimination including harassment, and protected from being paid "an oppressive and unreasonable wage." These protections are especially important because domestic workers are excluded from federal protections under the FLSA, the NLRA, OSHA, and other laws. Moreover working conditions for childcare workers contribute to poverty and may impair the care those workers can give. According to the National Domestic Workers Alliance, Illinois joins New York, Hawaii, California, Massachusetts, and Oregon. Connecticut also has extended some protections to domestic workers, although not passed the full-blown model bill of rights. The Illinois law will take effect Jan. 1, 2017.
Friday, August 12, 2016
While claims of sexual harassment have always been pervasive in the workplace, there seem to have been a number of high profile claims in the news recently. The EEOC recently settled such a case with very egregious allegations involving Dunkin' Donuts for $150,000. From the EEOC news release:
"According to EEOC's lawsuit, [a franchise company] violated federal law by subjecting female employees, some of whom were in their teens at the time, to sexual harassment by a store manager at one of its Dunkin' Donuts locations. For example, EEOC said, the store manager talked about his genitals, tried to kiss a female worker who was 20 years old at the time, and pressured her to have sex. The manager hit her, cursed and yelled at her regularly due to being rejected by her. When she contacted the police, she was fired in retaliation for resisting his advances, EEOC said."
This case is an important reminder for employers to remain cognizant of sexual harassment in the workplace at all times and to actively make efforts to prevent this form of discrimination.
Monday, August 8, 2016
Guy Davidov's book A Purposive Approach to Labour Law (Oxford Univ. Press) is now available in the U.S. The analysis is not specific to any legal system and relies on examples from various jurisdictions, including the US.
Per the publisher's notes, this book examines the crisis of labour law through a study of the policy aims informing legislation and the means used to achieve them; explores the societal goals behind labour laws and analyses what actions are required to change or improve the laws themselves in order to better advance the goals; draws on multiple jurisdictions, including Israel, United Kingdom, Canada, and the United States; and provides suggestions for labour law reform through purposive interpretation as well as legislative changes.
Guy notes that if you're interested in purchasing a copy, you can write him to get a discount code.
Wednesday, August 3, 2016
A petard was a primitive bomb used to breach a wall. A bell-shaped iron casing would be filled with gunpowder and then affixed to the wall; a soldier would light the fuse, and the casing would direct the force of the blast toward the wall. Apparently, petards often exploded before the soldier could run away, hoisting (lifting) the soldier in the blast. Thus, the phrase "to hoist with his own petard" (Hamlet) means "to be harmed by one's plan to harm someone else".
That's an apt description for what seems to be happening now to many companies that have adopted consumer-arbitration clauses coupled with class-action waivers. A former student, now working at a large defense firm, describes how it's happening. Take a claim that's only marginally colorable and at face value worth only a few dollars, and file for arbitration. AAA rules impose on the company a $3400 arbitration fee plus attorneys fees. Settle for $3k. Repeat ad infinitum, thanks to the class-action bar contained in the company's arbitration clause. Company gets hoisted on its own petard.
Dennis Nolan and Marty Malin predicted several years back that something like this would happen, but this is the first report from the field I've heard. Dennis points out that companies may try work-arounds -- they might stop settling (which would force the hands of plaintiff mills, but wouldn't work on cases with claims that are low-dollar but at least colorably meritorious) or they might find an arbitral service provider cheaper than AAA (but courts might be reluctant to enforce arbitration clauses specifying arbitral service providers with close ties to the company -- see Hooters v. Phillips).
Women tend to suffer significantly more wage and hour law violations than men. That's a conclusion of a recent paper: Miruna Petrescu-Prahova and Michael W. Spiller, "Women’s Wage Theft: Explaining Gender Differences in Violations of Wage and Hour Laws", Work and Occupations (published online July 2016). Here's the abstract:
In this study, the authors identify and analyze a distinct and understudied source of gender inequality: gender differences in violations of wage-related workplace laws. The authors find that women have significantly higher rates of minimum wage and overtime violations than men and also lose more of their earnings to wage theft than men. In the case of minimum wage violations, the authors also find that nativity and immigration status strongly mediate this gender difference. Multivariate analysis suggests that demand-side characteristics—occupation and measures of nonstandard work and informality—account for more of the gender difference in minimum wage violations than do worker characteristics.
In particular, the authors find "no significant gender difference in minimum wage violations among U.S.-born workers; the gender gap is concentrated among immigrants, especially those who are undocumented." (p. 21). The study's findings are based on the 2008 Unregulated Worker Survey, a representative survey of 4,387 frontline workers (that is, not manager, professional or technical workers) in low-wage industries and occupations in Chicago, Los Angeles, and New York City.
Tuesday, August 2, 2016
As we are all well aware, discrimination on the basis of one's national origin has been an active topic in the news. In light of recent events, the EEOC has published a summary document that is helpful in providing a nice overview of this issue. That summary, which can be found here, notes that:
"Recent tragic events at home and abroad have increased tensions with certain communities, particularly those who are, or are perceived to be, Muslim or Middle Eastern. EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take actions to prevent or correct this behavior."
This type of document can be quite helpful in allowing others to more quickly get up to speed on the law, enforcement, and regulations in this area.
Friday, July 29, 2016
David Yamada (Suffolk) has just posted on SSRN his article (8 Northeastern U. L.J. 357 (2016) The Legal and Social Movement Against Unpaid Internships. The article offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years. This includes the Glatt v. Fox Searchlight Pictures litigation concerning unpaid internships, which culminated in 2016 Second Circuit decision that restricts, but does not foreclose, future challenges under the FLSA.
The article already has received a huge amount of attention -- 500+ SSRN downloads. This obviously is a critically hot topic.
Here's an excerpt from the abstract:
Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.
This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.
In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.
Thursday, July 28, 2016
The Seventh Circuit issued a decision today in Hively v. Ivy Tech Community College, relying on prior circuit precedent to hold that Title VII does not forbid discrimination on the basis of sexual orientation. The opinion was written by Judge Rovner and joined by Judge Bauer. Judge Ripple concurred in the judgment and only that part of the opinion referring to the prior circuit precedent.
The opinion is the first circuit court opinion to be issued on the subject since the EEOC's decision in Baldwin v. Foxx last year, holding that sexual orientation discrimination is per se sex discrimination because: 1. but for the sex of the person, the romantic partner's sex would not be objectionable; 2. penalizing a person for the sex of their romantic partners is associational sex discrimination; and 3. requiring men to date or marry women and women to date or marry men is a core gender stereotype. In Baldwin, the EEOC had taken many circuit courts to task, pointing particularly at the Seventh Circuit for parroting its prior precedents without considering their foundation.
The line of precedent in the Seventh Circuit is particularly problematic. It started with the decision in Ulane v. Eastern Airlines that Title VII did not protect a pilot who was fired for undergoing gender transition because Title VII did not prohibit discrimination on the basis of "transsexualism." This was was one of the first decisions on an LGBTQ issue under Title VII. The decision in Ulane has been pretty thoroughly undermined by the Supreme Court's decision in Price Waterhouse v. Hopkins, which recognized that gender stereotyping can be sex discrimination. In recent cases, most courts have considered Price Waterhouse to have essentially overruled Ulane and have held that gender identity discrimination is sex discrimination.
Relying on a line of precedent with Ulane at its base aside, Judge Rovner's opinion is remarkable for the thoughtfulness of what follows a description of the circuit's precedent. She discusses Baldwin and quite thoroughly analyzes the cases relevant to whether there is some distinction between sex, sex stereotyping, and sexual orientation. Over and over, she acknowledges the lack of rational distinctions and the difficulties courts have had drawing lines to justify treating sexual orientation as something different from sex. She also lays out the paradox that the more stereotypically gay or lesbian the plaintiff, the more likely the case will be indistinguishable from a sex stereotyping case, and thus cognizable. Judge Rovner highlights the fact that associational discrimination claims have long been cognizable in race cases as another paradox or inconsistency in the precedent. Finally, she discusses the Supreme Court decisions on sexual orientation and the equal protection principles behind protection of LGBTQ individuals.
In the end, though, Judge Rovner says she is bound by prior circuit precedent for two main reasons. Congress failed to amend Title VII to include sexual orientation in the definition of sex despite a number of legislative efforts between 1975 and 1982, nor did it pass the Employment Non-Discrimination Act in any of its prior incarnations between 1994 and 2013. And the Supreme Court has not yet held that sexual orientation discrimination is a violation of Title VII.
Moving forward, she points out that many district courts --"laboratories on which the Supreme Court relies to work through cutting‐edge legal problems" -- currently considering the issue are agreeing with the EEOC, suggesting, perhaps, that the Court act sooner rather than later. She also suggests that within the Seventh Circuit, some sexual orientation discrimination cases will be cognizable under Title VII because the context of the discrimination will be so intertwined with sex stereotyping that the issues cannot be untangled. But where stereotypes about the person are clearly linked with sexual orientation rather than sex, there will be no cognizable claim. In her words:
Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian “lifestyle,” including ideas about promiscuity, religious beliefs, spending habits, child‐rearing, sexual practices, or politics. Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co‐workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.
The opinion is an interesting mix of roadmap to finding that sexual orientation is part of sex for purposes of Title VII and hand-wringing that Congress and the Supreme Court haven't made that clear yet. Maybe a circuit split in the next year or so will set the stage. I'm not as confident that the membership of Congress will change in this election to allow for any movement on the Equality Act, but that is another possibility.