Wednesday, February 12, 2020
***As more survivors have come forward to call out perpetrators of sexual assault and harassment, a legal backlash to the MeToo movement has been brewing. While it’s well known that powerful men have preemptively quashed accusations with payoffs and nondisclosure agreements, less well known is that dozens of men who claim they are victims of false allegations have sued their accusers for speaking out publicly. The plaintiffs include celebrities and college students, professional athletes, professors, and politicians. At least 100 defamation lawsuits have been filed against accusers since 2014, according to Mother Jones’ review of news reports and court documents. Prior to October 2017, when the MeToo hashtag went viral, almost three in four claims were brought by male college students and faculty accused of sexual misconduct; they usually sued their schools as well as their accusers. Since MeToo took off, cases have been filed at a faster rate, with three in four coming from nonstudents.
This list of cases is not comprehensive, but attorneys confirm that these suits are becoming more common. The Time’s Up Legal Defense Fund, which helps workplace harassment victims pay their legal bills, has assisted 33 accusers, including Lopez, who have been sued for defamation in the past two years—nearly 20 percent of its caseload. As the number of cases grows, so does the chilling effect: Defamation lawsuits are being used “more and more to try to silence people from coming forward,” says Sharyn Tejani, director of Time’s Up. “It was not something that we expected would take as much of our time and money as it has.”
Bruce Johnson, a Seattle lawyer who specializes in First Amendment cases, says that before fall 2017, he was contacted twice a year by women who were worried about being sued if they spoke out about sexual violence or harassment or who were threatened with legal retribution for doing so. Now it’s every two weeks, he says. Alexandra Tracy-Ramirez, a lawyer who represents both survivors and accused perpetrators in campus-related cases in Colorado and Arizona, has also noticed more accusers speaking out and facing the prospect of being sued.
Thursday, February 6, 2020
Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge
In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.
The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***
The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***
Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.
Friday, January 17, 2020
The Supreme Court grant cert today in Trump v. Pennsylvania and the related Little Sisters of the Poor regarding religious exemptions for the federal healthcare mandate that employers provide women employees birth control.
From the Petition for Cert, Questions Presented:
The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. 18001 et seq., requires many group health plans and health-insurance issuers that offer group or individual health coverage to provide coverage for preventive services, including women’s preventive care, without cost-sharing. See 42 U.S.C. 300gg-13(a). Guidelines and regulations implementing that requirement promulgated in 2011 by the Departments of Health and Human Services, Labor, and the Treasury mandated that such entities cover contraceptives approved by the Food and Drug Administration. The mandate exempted churches, and subsequent rulemaking established an accommodation for certain other entities with religious objections to providing contraceptive coverage. In October 2017, the agencies promulgated interim final rules expanding the exemption to a broad range of entities with sincere religious or moral objections to providing contraceptive coverage. In November 2018, after considering comments solicited on the interim rules, the agencies promulgated final rules expanding the exemption. The questions presented are as follows:
1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. 2000bb et seq., to expand the conscience exemption to the contraceptive-coverage mandate.
2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq.
3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
Candace-Saari-Kovacic-Fleischer, Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018
Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018 considers whether laws in the United States make it difficult for people to be employees and parents at the same time. The book covers constitutional law, employment law, social security law, poverty law, discrimination law, disability law, and veterans law in historical context beginning with the 1890s. To do this, the book includes copies of primary sources—reports, bills, laws as originally passed, signing statements, amendments, and bills not passed—and court cases arranged chronologically by topic. Because the book focuses on policies and consequences of laws, it explains how to understand each law before introducing it in statutes and cases. Thus, it is intended that the book be a reference for people in a variety of disciplines.
Amy Madi & Lisa Ouellette, "Policy Experiments to Address Gender Inequality Among Innovators"
Houston Law Review, Forthcoming
In her Frankel Lecture, Professor Orly Lobel has set forth an intriguing hypothesis: that non-compete agreements, non-disclosure agreements, and other legal restrictions on employee exit and voice exacerbate the innovation gender gap. The unequal participation of women in science, technology, and innovation is an issue of increasing concern for many public- and private-sector stakeholders, and those interested in increasing innovation by women would be well advised to consider Lobel’s ideas. But as we emphasize in this Commentary, the underlying causal mechanisms for inequalities among innovators remain highly contested, and policymakers should not overstate the existing evidence for potential interventions out of a desire for rapid progress. Nor should they use this lack of evidence as an excuse for inaction. Rather, we argue that institutions interested in this issue should look for opportunities to rigorously and transparently test the most promising interventions.
Friday, December 13, 2019
Meghan Twohey & Jodi Kantor, Weinstein and His Accusers Reach Tentative $25M Deal
After two years of legal wrangling, Harvey Weinstein and the board of his bankrupt film studio have reached a tentative $25 million settlement agreement with dozens of his alleged sexual misconduct victims, a deal that would not require the Hollywood producer to admit wrongdoing or pay anything to his accusers himself, according to lawyers involved in the negotiations.
The proposed global legal settlement has gotten preliminary approval from the major parties involved, according to several of the lawyers. More than 30 actresses and former Weinstein employees, who in lawsuits have accused Mr. Weinstein of offenses ranging from sexual harassment to rape, would share in the payout — along with potential claimants who could join in coming months. The deal would bring to an end nearly every such lawsuit against him and his former company.
The settlement would require court approval and a final signoff by all parties. It would be paid by insurance companies representing the producer’s former studio, the Weinstein Company. Because the business is in bankruptcy proceedings, the women have had to make their claims along with its creditors. The payout to the accusers would be part of an overall $47 million settlement intended to close out the company’s obligations, according to a half-dozen lawyers, some of whom spoke about the proposed terms on the condition of anonymity.
The $25 million, down from a $90 million victims fund that was contemplated at one point, would be paid by an insurance company for the Weinstein Company, which is now in bankruptcy proceedings because of everything Weinstein did. The agreement further stipulates that another $12 million would go toward legal fees for Weinstein, his brother, and other board members. It would also protect Weinstein and the board from future suits. In short: Besides not having to pay a dime himself, or admit to any wrongdoing, the millions of dollars it cost for the legal jiujitsu that made this extraordinary outcome possible will also be covered—by the company Weinstein’s own actions helped bankrupt. The victims, 18 of whom can get a maximum of $500,000 under this agreement, will be among other creditors trying to collect from the embattled company.
From the complaint in Mullenix v. University of Texas (W.D. Tex. filed 12/12/19)
Plaintiff Linda Susan Mullenix files Plaintiff’s Original Complaint & Jury Demand, and sues the University of Texas for violations of the Equal Pay Act, as well as for sex discrimination and retaliation. Over the past three years, Professor Linda Mullenix, one of UT Law’s most distinguished professors, has been paid $134,449 less than male professor Robert Bone. Professor Bone has the same above-average teacher evaluation rating as
Professor Mullenix, but almost a decade less overall teaching experience, fewer than a third of Professor Mullenix’s overall publications, and fewer professional honors. This pay gap is sex discrimination.
Moreover, UT Law has retaliated against Professor Mullenix for opposing the law school’s unequal pay practices. For the last several years, Professor Mullenix has received among the lowest raises of any tenured faculty. For example, Professor Mullenix received a $1,500 raise for the 2018-2019 academic year, which was the lowest raise given to any faculty member. That same year Professor Bone, and many other professors less accomplished than Professor Mullenix, received $10,000 raises, some of the highest raises given. Dean Farnsworth also retaliated against Professor Mullenix and attempted to chill reports of discrimination by telling Professor Mullenix that he would pay her the same as Professor Bone only if she agreed to resign in two years. At that time and at present, Professor Mullenix has no plans to resign.
Another example of retaliation is that despite Professor Mullenix’s repeated requests to be appointed Associate Dean for Research or to be put on the prestigious Budget Committee, she has been relegated to “do-nothing” committees that have little impact on the governance of the law school. Most disturbingly, because of Professor
Mullenix’s opposition to UT Law’s unequal pay practices, she has been made a pariah by the administration. New professors are told to stay away from her and that she is “poison.” Professor Mullenix’s marginalization is also held out as a warning to other professors who might speak out.
UT Law has reason to be worried about others speaking out about unequal pay and sex discrimination. For at least the last three years, UT Law has, on average, paid tenured female professors over $20,000 less than tenured male professors. By paying Professor Mullenix less than a similarly-situated male professor and retaliating against her for opposing unequal pay based on gender, UT Law has violated Title VII, the Equal Pay Act, and the Texas Labor Code.
Wednesday, November 27, 2019
Wendy Hess, Addressing Sexual Harassment in the Legal Profession: The Opportunity to Use Model Rule 8.4(G) to Protect Women From Harassment, 94 Univ. Detroit Mercy L. Rev.579 (2019)
This Article explores options available to legal professionals in order to become more aware of and address sexual harassment within the profession. The potential avenues of redress for sexual harassment by those in the legal profession vary. The applicable remedy depends on factors such as: jurisdiction, nature of the harassment, context of the harassment (site of conduct, identity of harasser, and identity of target), and relief sought. This Article discusses two primary avenues: antidiscrimination and anti-harassment protections under Title VII and disciplinary proceedings pursuant to attorney ethics rules. In Part I, the Article explores the ways in which Title VII has not adequately protected women from sexual harassment. Part II of the Article explores potential redress from attorney ethics rules, focusing specifically on Model Rule 8.4(g). The Article discusses advantages of state adoption of Rule 8.4(g) and adds a new perspective to the scholarship about Rule 8.4(g) by addressing the potential disadvantage of reliance on anti-discrimination laws to interpret the rule.
Tuesday, November 26, 2019
Hushing Contracts and the Public Policy Defense to Enforcing Nondisclosure Agreement About Sexual Wrongdoing
David Hoffman & Erik Lampmann, Hushing Contracts, 96 Wash. U. L. Rev. 165 (2019)
The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, have attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy as a defense which should to be concerned with managing externalities, and which expresses a legitimating account of contract law.
The New York Times won a Pulitzer and helped ignite the #MeToo movement with its reporting on sexual harassment. But the Times still doesn’t understand what sexual harassment is. In its official definition and the stories it pursues, the Times employs a sexualized conception of sexual harassment that is twenty years out of date in the law. It’s also disconnected from the lived experience of most people and from the findings of social science research. In this, the Times is not alone. Even the two leading enforcers of federal antidiscrimination law — the EEOC and the Department of Justice — still at times issue pronouncements that fail to reflect current Title VII law or even those agencies’ own enforcement priorities.
Lost in these outdated but still pervasive definitions of sexual harassment are the many ways employees are undermined, excluded, sabotaged, ridiculed, or assaulted because of their sex, even if not through words or actions that are “sexual” in nature. “Put-downs” and not simply “come-ons,” these types of sexual harassment are even more pervasive than the overtly sexualized forms. Relegating them to another category or term such as “gender harassment” or “sex-based harassment” treats them as secondary to the sexualized forms, causes society to misunderstand the dynamics at play even in the latter, and skews the focus of workplace training (and subsequent reporting) about sexual harassment. With the #MeToo movement giving unprecedented attention to the problem of sexual harassment, now is the time to better understand that term.
Wednesday, November 6, 2019
Massachusetts became the first state to ban employers from posing this question to job candidates back in 2016. Since then, 17 other states and as many local jurisdictions have passed versions of the ban, including New Jersey, whose law will go into effect in January; Illinois, which took effect last month; and Kansas City, Mo., where a ban will go into effect next week.
Why does this matter?
The new laws are designed to protect job seekers — like former me — from receiving starting salaries that are tied to low past salaries. This is mostly aimed at women, and many of the bills directly address equal pay and the gender wage gap. The idea is that if a woman is paid less from the get-go, and then limited by her past salary at each subsequent job, it may be impossible for her to catch up.
“This bill provides a means of narrowing the wage gap by making it less likely for employers to unintentionally perpetuate the gap by basing salary offers for new hires on their previous salary,” New Jersey Assemblywoman Joann Downey said of her state’s bill, which she sponsored. She added that the practice had a disproportionate effect on women.
Is the ban active in my state?
HR Dive, a human resources news and analysis site, keeps a list of state and local governments that have salary history bans on the docket. (You can check the status of your state or locality here.) Salary.com also has a list of state and local bans.
Some states have passed bans that won’t go into effect until 2020 or later. For example, Colorado signed the Equal Pay for Equal Work Act into law earlier this year, but it won’t take effect until Jan. 1, 2021.
Each bill is also a little different. While Alabama’s law doesn’t ban the question outright, it does prohibit employers from refusing to “interview, hire, promote, or employ” any job applicant who declines to answer. In California, not only is the question banned, but employers are also required to answer if an applicant asks about a pay range. Other versions may ban not only employers’ questions about compensation history but also those about benefits like a 401(k).
Tuesday, November 5, 2019
Nicole Porter, Relationships and Retaliation in the #MeToo Era, Florida Law Review (forthcoming)
In this #MeToo era, so much important work is being done (and so many stories are being told and listened to) but very little of the work focuses on retaliation. And none of it focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, is the fear of harming workplace relationships. This article will use a real-life story of harassment to demonstrate how much workplace relationships matter (especially to women) and how the fear of harming those relationships often affects an employee’s willingness to report harassment. Thus, this article argues for reforms surrounding harassment and retaliation law that recognize this reality. Right now, courts penalize victims of harassment for not reporting harassment soon enough because they feared harming their workplace relationships; or, when they do report, courts penalize them by holding that the relationship-based harm they experienced after reporting wasn’t a real harm worthy of a remedy. The reasoning of these courts is that reasonable employees would not and should not be deterred from reporting harassment because they fear relationship-based harms. And yet, most of the empirical evidence tells us that the opposite is true—that reasonable employees (sometimes men, but especially women) often do avoid reporting because of fear of harming their relationships in the workplace. The law should reflect this reality.
Friday, November 1, 2019
Study Finds Corporate Boards with All-Male Directors Suffer More Negative Stock Price Reactions from MeToo Claims than Those with Three or More Women Directors
Mary Brooke Billings, April Klein & Crystal Shi, Investors’ Response to the #MeToo Movement: Does Corporate Culture Matter?
This paper provides evidence that the #MeToo movement revised investors’ beliefs about the cost of fostering a culture that excludes women, as reflected by the absence of women directors in the board room. In particular, we document an overall negative market reaction tracking the timeline of events associated with the #MeToo movement, beginning with the Harvey Weinstein exposé in October of 2017 in the New York Times. This negative response concentrates in firms that have traditionally excluded women from their boards. In contrast, for companies that embrace the inclusion of women on their boards, this negative effect is moderated. Overall, investors appear to have revised their beliefs about the risks associated with future revelations of misconduct, and also about the value of having women in the board room shaping the culture of the firm.
Consistent with the view that the potential revelation of sexual misconduct in the workplace injects risk into publicly listed firms, we report an overall average cumulative abnormal return of -4.57%. We also note that 24 of the 37 days recorded significantly negative abnormal returns across all firms and, in fact, we detect significantly negative abnormal returns for each of the final 11 events on the #MeToo event timeline. This supports the notion that as the movement gained momentum, investors revised their beliefs about the potential impact of the movement.
This overall negative reaction to the #MeToo movement is borne out by subsequent responses by firms and Wall Street in general. Over 200 male executives were dismissed or demoted following allegations of sexual misconduct, with many of these men being replaced by women executives (Bach 2018, Carlsen et al. 2018). Attorneys have added “Weinstein Clauses”
and “#MeToo representations” into merger documents, which require target firms to be held financially responsible via “clawback” provisions for revelations of sexual misconduct after the deal is closed (Ahmed 2018, Reints 2018).
Cross-sectionally, we expect variations in market reactions to unfolding #MeToo events to be directly related to the market’s assessment of (1) how likely a firm is to have a past or future allegation of sexual misconduct revealed and (2) how well a firm is equipped to deal with these revelations. We predict and find evidence that variations in abnormal market returns are related to the gender composition of a corporation’s board of directors. Specifically, firms with boards made up exclusively of male directors suffer more negative stock price reactions, while firms with boards that include three or more women experience moderated stock price reactions.
Wednesday, October 23, 2019
Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***
Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***
In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***
At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.
Monday, September 30, 2019
Tracing the History of the Equal Pay Dispute Between the US Women's National Soccer Team and the Soccer Federation
The United States Women’s National Soccer Team has dominated the sport since the inaugural Women’s World Cup in 1991. Despite its success on the field, however, the team has had a contentious relationship over the last three decades with the United States Soccer Federation, the sport’s governing body in the United States. The ongoing discord between the Women’s National Team and the U.S. Soccer Federation culminated in March 2019, when twenty-eight players from the team filed a lawsuit alleging that the Federation had violated the Equal Pay Act by paying them less than it paid members of the Men’s National Team.
This Article traces the history of strife between the Women’s National Team and the U.S. Soccer Federation. The troubled relationship has resulted from the mismatch between the team’s superior results but lower pay compared to the Men’s National Team. This mismatch has its roots in competing legal and societal forces. On the one hand, Title IX caused an explosion in the participation rate for women’s soccer in the United States, which has led to the Women’s National Team’s unprecedented success. On the other hand, with the exception of the World Cup finals every four years, the viewership market for women’s soccer remains much smaller than the market for men’s soccer, which has resulted in lower revenue generation by the Women’s National Team compared to the far less successful Men’s National Team.
After explaining the history and cause of the turmoil between the team and the U.S. Soccer Federation, the Article analyzes the merits of the players’ Equal Pay Act claim. The Article contends that the Federation has the stronger position on the merits of the claim, but further argues that the Federation should renegotiate the Women’s National Team’s collective bargaining agreement in light of the Federation’s mission of “gender equality.” The Article proposes specific principles that might guide that renegotiation and lead to a successful resolution of the long-standing tensions between the Women’s National Team and the U.S. Soccer Federation.
SCOTUS to Consider Question of whether Sexual Orientation and Gender Identity are Protected by Title VII
Lots of writing and thinking about the upcoming Supreme Court cases to be heard on Oct. 8 on whether Title VII's "because of sex" extends to sexual orientation and/or gender identity. The consolidated cases are, from SCOTUSblog:
Bostock v. Clayton County, Georgia, No. 17-1618 [Arg: 10.8.2019]
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107 [Arg: 10.8.2019]
|Altitude Express Inc. v. Zarda, No. 17-1623 [Arg: 10.8.2019]
Issue(s): Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
Some of the analysis includes:
Andrew Koppelman, LGBT Discrimination and the Subtractive Moves
The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.
In a pair of cases that’ll be argued on October 8th—Bostock v. Clayton County, Georgia, No. 17-1618, and Altitude Express, Inc. v. Zarda, No. 17-1623—the Supreme Court will consider whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits that employer from firing an employee because he’s a gay man.
The defendant employers and the Solicitor General recently filed their briefs arguing that there’s no Title VII liability in these cases. Those briefs frame the issue in a particular, familiar way: They assume that the Court’s decision depends upon whether it would violate Title VII for an employer to implement a policy that categorically excludes all persons with same-sex orientation, gay men and lesbians alike, from the workforce—as though the cases involve what a couple of court of appeals judges (Judge Lynch in the Second Circuit and Judge Sykes in the Seventh Circuit) described as employers who “insist that [their] employees match the dominant sexual orientation regardless of their sex” and therefore hire “only heterosexual employees.”As I’ll explain in Parts IV and V of this post, I think such a categorical “heterosexuals only need apply” policy would violate Title VII, even if it equally affected gay men and lesbians alike. Before getting to that discussion, however, in Part III I explain why this common framing of the question—based on a hypothetical employer who believes that homosexuality as such is immoral and thus won’t employ gay men or lesbians—is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation. In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men--something the plaintiffs will have to establish--it's not at all obvious that they would have fired similarly situated lesbians, too. Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don't have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce: such a policy or open and notorious practice would be foolhardy, if not economically disastrous (not to mention morally odious) for almost employers.Once this crucial point is acknowledged—namely, that there’s no reason to believe these employers would have treated lesbian employees the way they (allegedly) treated the gay male plaintiffs—that ought to resolve the Title VII question, because both the Solicitor General and the defendants themselves concede that even if Congress didn’t intend to prohibit discrimination based upon sexual orientation, as such, it is a form of prohibited sex discrimination for a covered employer to treat a gay man less favorably than the employer would have treated a similarly situated lesbian (or vice versa).
The U.S. Equal Employment Opportunity Commission sued R.G. & G.R. Harris Funeral Homes on behalf of Stephens, arguing her former employer fired her because she is transgender, violating federal civil rights laws. The funeral home and its owner Thomas Rost, however have since argued that “maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”
This dispute will play out before the U.S. Supreme Court on Oct. 8, where the justices will grapple with a broader question of whether gender identity should be protected under Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, national origin, and religion. The divisive issue has been drawn into the national spotlight, and pits two federal agencies against each other.
The funeral home’s dress code argument, backed by the Justice Department, reveals a practical clash in the workplace that could be resolved when the high court issues its opinion. Whether these policies are permitted under Title VII already falls in a legal gray area, and has prompted challenges for decades and inspired some state action recently, specifically over hair or grooming policies.
Friday, September 13, 2019
Illinois companies will no longer be allowed to ask job applicants or their previous employers about salary history under a measure Democratic Gov. J.B. Pritzker signed into law Wednesday.
Advocates say asking applicants about their salaries at previous jobs helps perpetuate a wage gap between men and women doing the same jobs. Illinois lawmakers passed two previous versions of the legislation, but Pritzker’s predecessor, Republican Gov. Bruce Rauner, vetoed both. ***
The measure Pritzker signed, which takes effect in 60 days, passed with bipartisan support this spring in the House and Senate. Workers will be able to seek up to $10,000 in damages if employers violate the law, and it also protects the right of employees to discuss their salaries and benefits with co-workers.
Monday, September 9, 2019
Kerri Lynn Stone, Competing Interests and Best Practices in the Wake of #MeToo, JOTWELL
Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.
This piece is both important and timely
Tuesday, September 3, 2019
Jessica Clarke, How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong, Texas Law Review Online, Forthcoming
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”
This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title
Instead of using MeToo as a learning opportunity to become more aware of the harassment most women generally face in the world at large and in the workplace specifically, a new study has found that many men have decided to go the opposite route and simply avoid women in the workplace full-stop.
The study out of the University of Houston was conducted across a range of industries and surveyed both men and women in 2018 at the height of MeToo and then again in early 2019 after the conversation had died down a bit.
The 2019 survey found that 27 percent of men surveyed have gone the Mike Pence route and now avoid one-on-one meetings with woman co-workers, 21 percent said they would now be more reluctant to hire women for roles that require close interaction, and 19 percent are reluctant to hire an “attractive” woman. Those numbers are up from 2018 when only 15 percent of men admitted to discriminating against women they wanted to bone.
And while many men said they were more likely to be sexist following reports of sexism because they can no longer tell which behaviors are making co-workers uncomfortable, the study also found that men and women pretty much agree on what constitutes harassment.