Tuesday, November 6, 2018
The Supreme Court issued its first decision of the term today, and it was the age discrimination Mount Lemmon Fire District v. Guido case. I'll claim credit for predicting a win for the public-sector plaintiffs--minus the fact that I was wrong about saying it wouldn't be unanimous. So, the outcome wasn't a surprise, but the unanimous support for both a group of employees and the Ninth Circuit was. You can read the full opinion here. For lazy readers, here's the syllabus:
John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimina- tion in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).
Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previ- ous, 1972, amendment to Title VII added States and their subdivi- sions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amend- ment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By con- trast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment al- so amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x).
Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation.
The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivi- sions with agents, a discrete category that carries no numerical limitation.
Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the num- ber of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold. Pp. 4–6.
In short, if you're an employee plaintiff, it really helps to have a strong textual argument.
Tuesday, October 30, 2018
Joe Seiner just his latest article, The Discrimination Presumption, 94 Notre Dame L. Rev. __ (2019) (Forthcoming), on SSRN. The short version--everyone's had it wrong and Twombley & Iqbal don't apply to Title VII. The abstract:
Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This paper argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and this paper also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship.
Check it out!
Tuesday, October 16, 2018
Amazon has long been known as a high-tech Moneyball employer, striving to make data-driven decision when possible. But this week shows that there are limits to that approach. After working since 2014 to develop AI-driven hiring algorithms, Amazon recently abandoned that approach. The reason? The algorithms were biased against women. This is an issue that several folks, including Rick Bales, have been talking about (and is a small part of a larger tech project I'm working on), and isn't a surprise given the dearth of women in the tech industry. This is the classic garbage-in-garbage-out issue. Amazon was training its algorithms based on resumes it has received, and because men disproportionally applied to the company, the algorithms were spitting out decisions that undervalued women; indeed, they were specifically penalizing resumes that included references to women. If Amazon or other companies want to use AI (really Machine Learning) for hiring, they should first use the technology to analyze its current hiring practices to try to root out pre-existing bias. Only once that's addressed does AI have even the hope of being effective.
To be clear: Amazon says that it never actually used the algorithms for actual hiring decisions. It wasn't for a lack of trying though. Amazon realized what was going on in 2015, but didn't disband the program until the start of last year. In other words, despite working for quite a while to eliminate the bias, they couldn't do it to their satisfaction. That a company like Amazon couldn't pull this off should serve as a strong warning to everyone about the limits of AI. I'm actually more optimistic on AI's eventual potential to reduce employment discrimination than many, but I am still extremely cautious about the technology. There's definitely a right way and wrong way to use it and, as Amazon shows, the right way can be really hard. As a result, I think the greatest risk of AI in personnel decisions is its misuse by companies that are too lazy, cheap, or blinded by the shiny object that is AI to realize that is is only a tool and, like other tools, can be used the wrong way.
Tuesday, October 9, 2018
Last week (yeah, I'm still catching up), the Supreme Court heard oral arguments in Mount Lemmon Fire District v. Guido. It's one of those technical cases that hinges on textual question's about the ADEA's definition of "employer." In particular, at issue is whether the ADEA's usual 20-employee small employer exception applies to government employers. There's no question that the exception applies to private employers, but because of the way the provision is written, its application to public employers is less clear. Because the text is so important, let me quote the relevant part (Sec. 11(b)):
(b) 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 small-employer exception is in a separate sentence from the sentence that includes public employers under the ADEA. That's what the plaintiffs stress and the 9th Circuit held. But four other circuits went the other way, holding that "person" includes public employers. Charlotte Garden's (Seattle) provided an argument analysis in SCOTUSblog. Although she's too wise to make a prediction, I'm going to go out on a limb and say that I think the plaintiff is going to win this one. Not unanimous, but questions from some of the conservative justices (e.g., Roberts) makes me think that the more grammatical reading of the text is going to win the day. Also, I hope someone mentions to Justice Alito that if the Court is going to align the ADEA's coverage to Title VII's simply because they were enacted a couple of years apart from each other, then the Court needs to overrule all of its cases where it expressly rejected that argument when it came to interpreting the 1991 Civil Rights Act Amendments (e.g., Nasser and Gross).
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 email@example.com 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.