New York Law School

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Federal Court Upholds $100,000 Jury Award to Lesbian Plaintiff Against United Parcel Service (UPS)

Rejecting motions to set aside the jury verdict, order a new trial or reduce damages, U.S. District Judge Jack B. Weinstein upheld a federal jury’s award of $100,000 in damages to Tameeka Roberts, an employee at the United Parcel Service facility in Maspeth, Queens, who complained that the company had tolerated a hostile environment created by her supervisor and had retaliated against her when she pressed her complaint to the New York State Division of Human Rights.  Roberts v. United Parcel Service, 2015 WL 4509994 (E.D.N.Y., July 27, 2015).

According to Judge Weinstein’s opinion, Ms. Roberts lives with her wife and three sons in New Jersey.  She began working for UPS in 1995 and has had about twenty different supervisors over the past twenty years.  Her “problem” supervisor whose conduct led to this lawsuit was Donald Woodard, a “full-time area coordinator” who supervised Roberts in 2007 and 2008, and then again from 2010 through 2012, when an incident in which Ms. Roberts was seriously injured at work attributable to misconduct by Woodard led to his assignment to a different facility.

Roberts’ problems with Woodard began in 2007 after she complained to Woodard about a denigrating comment he made to her about another lesbian employee.  “The next day,” wrote Weinstein, “Woodard brought his Bible to work and ‘showed [Roberts] where [the Bible] says that being a lesbian is wrong.’  He told her ‘It goes against the Bible…. It’s a sin.'”  Woodard admitted making these comments in his trial testimony.  Roberts complained to her shop steward and the head of security, but apparently nothing happened in response to her complaint.  “During the rest of 2007,” wrote Weinstein, “Woodard repeatedly told plaintiff that ‘being a lesbian is wrong’ and that she was ‘going to hell.'”  Woodard made these comments in the hearing of other workers, and told a co-worker not to “hang out” with Roberts because “she’s not living right. She had demons.  She doesn’t know who she is.”  Roberts complained to Woodard, telling him “this is not church” and “making comments about me being a lesbian is wrong.”  Woodard’s comments continued similarly during 2008.  Roberts would try to avoid confrontation by walking away or telling him to “leave me alone.”

The problem ceased in 2009 when Woodard stopped working at the Maspeth facility, but he returned as Roberts’ supervisor in 2010 and his comments resumed along the same lines.  Woodard again complained to a union shop steward, but nothing changed.  Woodard told Roberts that “two women being married is not natural,” that “being a lesbian is wrong,” that she was “going to hell” and she needed to “change” her “life, the style, the way” she was living.  She repeatedly complained to the shop steward.  In 2011, Roberts testified, Woodard threatened to take a photo of her with a married male co-worker and send it to the co-worker’s wife, as if to suggest they were having an affair.  Roberts reported this to her night manager and her shop steward.  The manager told her “do not go to corporate” with this complaint, because “I will handle the situation.”  Woodard’s comments then stopped for a while, but in the late summer of 2012 he got started up again, and Roberts renewed her complaints to the shop stewards, who finally brought her to Human Resources, where, apparently, nothing happened.

What finally seemed to get the company’s attention was a call Roberts made on October 23, 2012, to the UPS Corporate Concerns hotline, anonymously.  She identified herself as gay and said she felt “intimidated” and “harassed” because Mr. Woodard engages in “religious rants at the job” and makes “derogatory comments about gays.”  A few days  later, Roberts met with the local HR representative, a manager, and her shop steward, and an investigation of Woodard was launched.  However, the HR representative just cautioned Woodard that “religion has no place in the workplace” but took no other action.  Woodard stopped making his comments to Roberts, but she felt the company should have done more, so she sent a letter to corporate headquarters in Atlanta, claiming she was being harassed by Woodard and felt threatened, harassed and stressed because of “this situation.”  She asked, “Why is Donald Woodard allowed to Harass, Gay Bash and verbal abuse [sic] his employees and still be employed at United Parcel Service?”

The letter led UPS to open a second investigation, this time by the UPS Human Resources Operations Manager for the District, Beverly Riddick.  She met with Roberts for half an hour and told her that UPS was taking her complaint “very seriously.”  Riddick met with Woodard, but, according to the trial testimony, although Riddick learned that Roberts’ factual allegations were apparently true, Riddick did not believe that Woodward’s comments violated the law or company policy but were merely “inappropriate.”  “Woodard was not told to desist,” wrote Weinstein.  Riddick also interviewed the shop steward and two of Roberts’ co-workers.  Although these interviews also confirmed Roberts’ allegations about Woodard’s conduct, Riddick concluded that Woodard’s statements did not constitute discrimination or harassment, and so she testified at trial.

When Roberts ask her shop steward about the status of the investigation, he told her that her complaints were “probably unfounded” as Woodward was still supervising her.  Shortly after this, Roberts got permission from her immediate supervisors to miss work for a day in order to appear in traffic court and this was noted on her time card. But when she returned the next day, her time card indicated she was absent without calling.  She became convinced that Woodard had altered the time card, although he denied doing so.  UPS terminated its second investigation.  Woodard was not given any written warning and was left in place supervising Roberts, but senior management decided he should be transferred eventually to another facility and would be required to review UPS policies and to complete “two written statements,” which are not described in the court’s opinion.

When she learned about the outcome of the investigation, Roberts filed a complaint with the New York State Division of Human Rights early in December 2012.  She informed her shop stewards and union delegate about filing the complaint.  Soon after, she suffered injuries when a number of packages feel and hit her face, shoulder, arm and hand.  “She looked up and saw Woodard above her,” wrote Judge Weinstein.  “He was attempting a UPS procedure called ‘breaking the jam,’ but he had not followed safety protocol, which required notifying everyone in the area and stopping the conveyor belt.”  Roberts ended up missing weeks of work while tending to her injuries.  She wrote again to the NYS Division of Human Rights, “stressing the adverse impact this and other incidents had on her health.”  Woodard received no discipline from UPS for violating work rules but was transferred to another facility in January 2013.  Roberts was unable to return to work until mid-February.

Her lawsuit relied on the N.Y.C. Human Rights Ordinance, which provides greater protection for employees than the state or federal employment discrimination laws as a result of an amendment passed in 2005 called the Local Civil Rights Restoration Act.  Responding to evidence that state and federal courts were not providing adequate protection against discrimination for employees, the City Council determined to make it clear that interpretation of the city ordinance should not be limited by those federal and state law interpretations.  “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil rights laws, including those laws with provisions comparably-worded to provision of this title, have been so construed,” says the 2005 amendment.  This amendment is crucial to the outcome of Roberts’ case, since it is possible that under state and federal precedents, UPS might have been entitled to have some or all of her charges dismissed. Most importantly, New York City precedents make it easier for an employee to prove a hostile environment claim and to challenge employer retaliation.

Judge Weinstein devoted a substantial part of his opinion to a detailed overview of the history of anti-gay discrimination in the United States, quoting extensively from briefs filed with the U.S. Supreme Court in the recent marriage equality case, Obergefell v. Hodges.  He also quoted at length from a decision issued by the federal Equal Employment Opportunity Commission, explaining why anti-gay discrimination violates the federal ban on sex discrimination.  It is not clear why the judge included this material in his opinion, since the case was brought under the  NYC Human Rights Ordinance, but he seemed to determine to provide substantial support for the conclusion that gay people have suffered substantial discrimination in the past that needs to be redressed under civil rights laws.

The jury concluded that Roberts proved she was subjected to a hostile environment because she is a lesbian, and that she suffered retaliation after she complained both internally and to the civil rights agency.  The jury determined to award her compensatory damages of $25,000 for each claim and punitive damages of $25,000 for each claim, totaling $100,000, as well as awarding her the costs of her litigation.  UPS had filed pretrial motions seeking to get the case dismissed, and renewed its motions post-trial, arguing that Roberts had failed to prove a violation of the law and was not entitled to the damages.  Weinstein rejected these contentions out of hand.

Weinstein quoted the “guiding principles” that the U.S. Court of Appeals for the 2nd Circuit (based in Manhattan) had summarized for analyzing claims of discrimination and retaliation under the NYC Human Rights Law and then used those principles explicitly to refute every argument UPS made.

“Defendant argues that plaintiff fails to make a prima facie case of hostile work environment because she presents only ‘petty slights and trivial inconveniences,'” he wrote.  “To the contrary, Woodard’s continuing discriminatory comments about plaintiff’s sexual orientation, made over a number of years, show adverse differential treatment.  So too do the significant failures of supervisors to protect plaintiff against discrimination.  There was sufficient evidence for a jury to conclude that a reasonable person — who repeatedly was the target of such comments as plaintiff and repeatedly complained but found no recourse — would consider the comments more than a trivial inconvenience.”  Weinstein had noted that because of the more protective interpretation required for claims under the City’s ordinance, this case, which might not have sufficed for a hostile environment claim under Title VII of the Civil Rights Act, clearly qualified.

As to the retaliation claim, Weinstein wrote, “Retaliation may be subtle and hidden and can be hard to prove.  Juries are therefore given more leeway in finding retaliation than in finding discrimination. The jury had ample grounds to find retaliation likely to deter a worker from complaining of abuse.  Woodard and the defendant’s deliberate adverse conduct – the jury could have found – would likely deter a person from engaging in plaintiff’s protected activity (identifying as a lesbian).  First, not only did Woodard harass plaintiff over a course of approximately six years, but he harassed her after she complained repeatedly, to her supervisors and to him, of his ongoing adverse conduct.  Second, the jury could find that shortly after the second investigation, plaintiff’s time card was changed by Woodard as a punishment for protesting.  Third, the jury could find plaintiff was hit with packages by Woodard in retaliation. Fourth, it could find that defendant’s decision to allow Woodard to supervisor plaintiff after her repeated complaints demonstrated so much disdain by management as to itself constitute retaliation.  Fifth, Riddick’s investigation yielded no tangible results, despite substantial evidence of harassment; this know-nothing attitude was itself a form of retaliation by an implied expression of contempt for plaintiff’s complaints.”

In short, Weinstein really threw the book at UPS!

He was equally dismissive of UPS’s claim that the damages awarded by the jury were excessive.  $25,000 per claim for compensatory damages and $25,000 per claim for punitive damages struck Weinstein as “modest” and “well within an acceptable reasonable range.”  As to the punitive damages, UPS had the gall to argue that Roberts had not shown that the company acted with “malice” or “reckless indifference.”  “To the contrary,” wrote Weinstein, “plaintiff demonstrated sufficiently for a jury finding that defendant acted with reckless indifference to her multiple complaints of sexual orientation discrimination over many years.  UPS was anything but prompt.  By 2012, when Riddick, a high-level manager for defendant, conducted an investigation, she determined, contrary to overwhelming evidence of discrimination, that no discrimination had occurred.  She did not discipline Woodard in any meaningful fashion and allowed him to continue supervising plaintiff for a short period.”

Finally, Weinstein concluded, “Even if plaintiff failed to demonstrate that defendant retaliated because of her complaints by altering her time card and by failing to provide a safe working environment for plaintiff, there was sufficient proof of retaliation in central administration’s cavalier attitude towards plaintiff’s serious charges of harassment.”  Thus, she was entitled to punitive damages “as a matter of law” and “the modest award of each claim was appropriate in light of the evidence before the jury.”  Weinstein rejected the motion to set aside the verdict, the motion for a new trial, and the motion to reduce damages.

UPS could attempt to appeal this to the 2nd Circuit, but Judge Weinstein was careful to emphasize the 2nd Circuit’s own guidelines for evaluating such claims and to provide extensive sections of the trial testimony to show that the jury had a strong evidentiary basis for its verdict.  Also, his characterization of the damages as “modest” seems correct, in light of larger damage awards he noted in other cases.  This looks like a verdict that is likely to withstand appeal.

Tameeka Roberts is represented by Alex Umansky, Jessenia Maldonado, Phillips & Associates, PLLC, and Casimir Joseph Wolnowski, New York attorneys.  UPS retained suburban counsel from New Jersey.  Perhaps they were not too concerned about this case, but Weinstein’s strongly worded opinion is calculated to wake them up!  Perhaps some heads need to roll in the UPS Human Resources Department after a judge determines that they have a “cavalier attitude” about unlawful discrimination.

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Wide-Ranging LGBT Equality Bill Introduced in Congress for the First Time

The Equality Act, introduced by Senator Jeff Merkley of Oregon and Representative David Cicilline of Rhode Island on July 23, 2015, is the first truly comprehensive federal measure attempting to provide legal equality for LGBT people in the United States.  It goes far beyond all prior bills on this topic, because none of the bills introduced in Congress included gender identity until relatively recently and the main federal bills of recent vintage have been narrowly focused on employment discrimination.  By contrast, this bill gathers together references to the broad range of federal anti-discrimination statutes and inserts both “sexual orientation” and “gender identity” into every list of forbidden reasons for discrimination.  Additionally, correcting a long-standing omission, it also adds “sex” to the list of prohibited grounds where it is not already included, most prominently in the public accommodations provision of the Civil Rights Act of 1964.

The bill as proposed would apply to public accommodations (establishments providing goods, services or programs to the public), public facilities, public education, employment (both governmental and non-governmental), housing, credit, and federal jury service.  The public accommodations provisions had not been revised in the half-century since the Civil Rights Act of 1964 was adopted, so the drafters took the opportunity to introduce a new definition that will make clear that every establishment or operation that provides goods, services or programs to the public is covered, regardless of whether it has a fixed physical location.  This last point was important to express because some state public accommodations laws have been narrowly interpreted to apply only to the issue of equal access to particular places where goods or services are provided.  Because of the limits of federal jurisdiction, however, the Civil Rights Act’s employment provisions do not apply to small local businesses with fewer than 15 employees, and this bill would not change that.  Similarly, the Fair Housing Act has not been applied to owner-occupied rental housing or roommate decisions, and this bill would not change that.  Some state and local anti-discrimination laws do address smaller employers and residential property owners, but those operations have generally not been considered appropriate for federal regulation.

Some of the most significant aspects of the bill have to do with the things it doesn’t say.

For example, unlike the various versions of the Employment Non-Discrimination Act (ENDA) introduced in Congress over the past twenty years, this bill does not exclude disparate impact claims.  ENDA would have prohibited only disparate treatment — situations where an employer adopted a policy or made a decision which explicitly treated one group of people worse than another group of people, or where under the circumstances it could be shown that a decision was motivated by discriminatory animus against a particular group.  But Title VII of the Civil Rights Act has long been interpreted by the Supreme Court to extend to situations where an employer adopts a “facially neutral” policy or practice that has the effect of disadvantaging people because of their group identity as defined by a prohibited reason for discrimination.  For example, in an early case the Supreme Court said that an employer who  suddenly adopted a high school diploma requirement after Title VII went into effect was violating the ban on race discrimination, because that requirement screened out a much greater number of African-American applicants then applicants from other racial groups.  In such cases, the Court ruled (and Congress later amended the statute to provide) that an employer who adopts a policy or practice that has such a disparate impact may escape liability by proving that the practice is consistent with business necessity.  Translated into everyday language, the employer needs to show that the particular skill, experience, credential or characteristic involved is actually important to do the job.

Another example of a significant omission in the employment discrimination provisions has to do with the “bona fide occupational qualification” (BFOQ) defense.  Title VII of the Civil Rights Act allows for the possibility that sometimes sex, religion or national origin may actually be a legitimate qualification for a particular job, so it provides that it is not an “unlawful employment practice for an employer make an employment decision based on sex, religion or national origin” where one of those characteristics is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”  Notably absent from that list is “race or color,” as Congress concluded that race or color can never be a bona fide occupational qualification.  Thus, it is interesting that the Equality Bill does not add “sexual orientation” or “gender identity” to the BFOQ list.  The drafters of this bill have made the judgment that sexual orientation or gender identity can never be a “bona fide occupational qualification.”  They could not imagine a situation where an employer should be able to say that they will never hire a gay or transgender person for a particular position regardless of that person’s knowledge, skill, experience, or other qualifications for the job.  Expect this to become a topic of some debate when the bill gets its first committee hearing.

Of course, as Title VII includes “sex” as potentially being a bona fide occupation, the Equality Bill anticipates potential issues by providing that where sex is a bona fide occupational qualification, “individuals are recognized as qualified in accordance with their gender identity.”  That means that if an employer can show that a particular job can only be filled by a man, a transgender man would not be disqualified from that job, and if only a woman could do the job, then a transgender woman would not be disqualified from that job.  Federal courts have emphasized that the BFOQ exception should be very narrowly construed, putting a heavy burden on employers to show that the overwhelming majority of women would not be able to perform a job in question in a way that would fulfill the employer’s legitimate needs.  The leading case involved applications from women for positions as guards in maximum security all-male prisons housing violent sex offenders, and Supreme Court (by a divided vote) concluded that the state could exclude women from those jobs on the ground that their presence in that environment would likely provoke serious security problems.  But municipal employers quickly failed in their attempts to exclude women as police officers or fire fighters under this theory.

Of course, in tandem with this BFOQ section is a provision allowing religiously-affiliated educational institutions to limit their hiring to adherents to their religion.  This is a potential flash-point when it comes to LGBT applicants and employees, as we have seen with parochial schools firing teachers after their same-sex marriages come to the attention of administrators.  Interestingly, the Equality Bill does not broaden this religious exemption to expressly allow religiously-affiliated educational institutions to refuse to hire LGBT people because the religion objects to homosexuality or transgender status.  But there is something else unsaid in Title VII that is pertinent to this issue.  The Supreme Court has recognized a “ministerial exemption” for religious organizations under the First Amendment’s Free Exercise Clause, and has construed it to extend beyond employment of priests, ministers, rabbis and other “ordained” religious leaders to employees of religious schools who perform “ministerial” functions, such as teaching religious doctrine or participating in leading religious activities.  One suspects that courts will apply this ministerial exemption to shield religious schools from Title VII claims by LGBT individuals whose job functions would fall within that category when the employer claims that it would be incompatible with the school’s religious mission to employ them.  When this bill finally becomes law, expect this to be an area of contention.  There is already a growing volume of litigation in which discharged employees are contesting the scope of the ministerial exemption in religiously-affiliated educational institutions, and it is likely that the additional of sexual orientation and gender identity to Title VII will add to that.

It is worth noting, in this connection, that the BFOQ provision allows employers to discriminate based on religion when that is a bona fide occupational qualification, but Title VII itself does not allow religious employers to discriminate on the basis of race or color, or the other Title VII characteristics when they would not qualify as a BFOQ.  However, the ministerial exception would obviously shelter the Catholic Church from Title VII liability for refusing to let women be priests, or from taking national origin in account in deciding to make decisions about which priests to assign to which parishes, since the constitutional protection basically gives a religious organization a free hand in selecting its ministers, defining their jobs and determining their benefits.

The Equality Bill does directly address religion in another way, including a provision to reconcile the Equality Act with the federal Religious Freedom Restoration Act (RFRA), which was passed by Congress in reaction to a Supreme Court decision in 1990 that held that the Free Exercise Clause does not excuse people from complying with general laws that do not directly target religious practices.  In RFRA as it was originally passed, Congress said that neither the federal government nor state or local governments could impose a substantial burden on a person’s religious practices unless the government had a compelling public objective for doing so and the law it adopted was the least intrusive alternative way to achieve that objective.  The Supreme Court subsequently said that Congress did not have authority to apply RFRA to state and local governments, so it now works only as a limitation on the burdens imposed by federal law.  Some states have moved to fill that “gap” by adopting state-level RFRA statutes, which have now become flash-points in the battles surrounding marriage equality.

More recently, the Supreme Court has ruled that federal RFRA’s protection of “persons” extends to legal persons as defined in the U.S. Code, which includes business corporations.  In the infamous case of Hobby Lobby Stores v. Burwell, the Court said that a family-owned corporation whose owners had religious objections to certain kinds of contraception could not be required under the Affordable Care Act to provide coverage for those forms of contraception for their employees.  Justice Ruth Bader Ginsburg’s dissent sounded the alarm on discrimination, suggesting that some employers might rely on RFRA to discriminate based on their religious beliefs against, for example, gay people.  She cited a case where a gym owned by a Christian fundamentalist had excluded gay people from membership in violation of a state anti-discrimination law, and the state courts had ruled that the policy against discrimination outweighed the owner’s religious objections.  Would that case come out the same way under the Supreme Court’s interpretation of RFRA?  In his opinion for the Supreme Court, Justice Samuel Alito said that RFRA could not be used to defend against a race discrimination claim, leaving open the question whether it could be used to defend against other kinds of discrimination claims.  The drafters of the Equality Act have anticipated that issue, providing specifically that federal RFRA “shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”  This language refers to the various anti-discrimination titles of the U.S. Code that are mentioned in the bill.

Taking on one of the most contentious issues in debates over gender identity discrimination, the Equality Bill’s employment section provides that “an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, in according with the individual’s gender identity.”

Over the past few years, federal agencies and courts have begun to accept the argument that discrimination because of sexual orientation or gender identity is a kind of sex discrimination, that would already be covered by existing statutes.  The Equal Employment Opportunity Commission has issued rulings to that effect, most recently on sexual orientation just a week ago.  The Department of Housing and Urban Development has recognized gender identity discrimination claims under the Fair Housing Act, the Education Department has found a basis for some protection in public education, and the Justice Department has also ruled on gender identity claims.  This does not obviate the need for the Equality  Bill, since the courts have not been unanimous in accepting these administrative rulings, and they have yet to be tested in the Supreme Court.  Consequently, the explicit addition of sexual orientation and gender identity to federal civil rights statutes would be more than merely symbolic.  Furthermore, in order to pin down the point, the Equality Bill explicitly provides that were federal civil rights laws ban sex discrimination, that should be interpreted to include sexual orientation and gender identity discrimination as well.  This would “lock in” those administrative rulings as correct interpretations of the statute.

Symbolism is itself important.  One of the purposes for passing civil rights legislation is to prevent such discrimination from happening by declaring a public policy against it and incentivizing employers, business owners, public officials and landlords to avoid litigation by refraining from discrimination.  Surveys of state and local civil rights agencies that have been enforcing laws that forbid sexual orientation and gender identity discrimination reveal that they do not receive a large volume of complaints, most likely because the publicity and debate around the adoption of those local laws helped to change minds and deter discrimination from occurring.  The extended national discussion that is likely to accompany the process of adopting the Equality Act may have the same salutary effect.



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European Human Rights Court Says Italy Must Create A Legal Structure for Same-Sex Couples

A seven-judge chamber of the European Court of Human Rights (ECHR) in Strasbourg has ruled that Italy’s failure to adopt a legal structure for same-sex relationships, such as a civil union or registered partnership similar to those in other European countries such as Austria or Germany, violates Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, a treaty to which 47 European countries are signatories.  The ruling in the Case of Oliari and Others v. Italy, Applications Nos. 18766/11 and 36030/11 (July 21, 2015), brought a unanimous conclusion, but the panel of judges was split 4-3 about the appropriate analysis and which section of Article 8 applies in the case.  Italy may petition for review by a larger panel of judges, called a Grand Chamber, before this decision becomes final.

The decision resulted from claims filed by three same-sex male couples.  Each of the couples sought to marry, each was turned down, and each sought relief without success in the Italian judicial system.  Ironically, several years ago Italy’s Constitutional Court had ruled that the nation is obligated to create a legal structure akin to marriage for same-sex couples, such as a civil union law, but thus far the Parliament has not acted on this mandate.  In the meantime, several municipalities had created registries for same-sex partners, but they have primarily symbolic value, as the municipalities cannot create legally enforceable rights under national law.  On the other hand, cohabiting same-sex couples in Italy are accorded several substantial rights in the absence of a formal legal relationship, as part of legal developments in Italy and in much of Europe that has recognized legal consequences of cohabitation.  The couple from Trent filed their appeal with the ECHR on March 21, 2011, and the two couples from Milan filed on June 10, 2011.  They contended that denial of their marriage applications violates Articles 8, 12 and 14 of the Convention.

Jurisprudence under the European Convention relies heavily on developing the meaning of the broadly-worded guarantees in light of emerging trends among the member nations.  In this regard, it is important to the court to keep track of European developments.  The court noted that eleven countries that are members of the Council of Europe now allow same-sex marriages: Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom.  In addition, of course, a recent referendum will extend marriage equality to the Republic of Ireland later this year, and Finland has legislated for marriage equality to come into effect in 2017, although there is a possibility that the Parliament may have to reconsider the issue in light of a recently-filed public petition.  Eighteen member states have some form of civil partnership open to same-sex couples.  Some of these also allow same-sex marriages, but give their residents a choice between the two.  These civil partnership states are Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland, and the U.K.  In addition, Estonia’s Registered Partnership Act will go into effect on January 1, 2016. Totaling things up, the court observed that 24 out of 47 CoE members now have some form of legal recognition for same-sex partners in effect, either marriage, civil union or registered partnerships, with the number to increase by several more over the next year or so.

Since more than of half the member nations are now extending such recognition, the court is in a position to decide that legal recognition has become enough of a norm in Europe so that Article 8 comes into play.  Article 8 has two numbered paragraphs.  Paragraph 1 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.”  Paragraph 2 provides that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”  The general principles expressed in the Convention are subject to a “margin of appreciation” for the autonomy of member nations in exercising their discretion about whether and when to adopt particular policies.  The margin of appreciation varies depending upon the importance of the right and the countervailing concerns of each member nation.  Decisions by the ECHR are not self-executing.  It is up to member nations to respond to the rulings of the court through their own legislative and judicial processes.  Rulings by the ECHR are more than merely advisory opinions, because they are authoritative statements of treaty obligations, but it is up to each member state to take steps to comply with those obligations.

In describing how the requirement of “respect for private and family life” plays out in this case, the court commented, “Of relevance to the present case is the impact on an applicant of a situation where there is discordance between social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8.  Other factors relate to the impact of the alleged positive obligation on the State concerned.  The question here is whether the alleged obligation is narrow and precise or broad and indeterminate or about the extent of any burden the obligation would impose on the State.”

In the recent past, the ECHR has ruled that Greece violated the Convention when it established a civil union system but excluded same-sex couples, thus running afoul of the non-discrimination requirement in Article 14.  It also found relatively recently that Austria had not violated Article 12 of the Convention (the right to marry) by failing to open up marriage to same-sex couples, and that its adoption of a civil union law that had not yet gone into effect would constitute respect for private life and family under Article 8.  Referring to these recent decisions, the court said: “The Court reiterates that it has already held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.  It follows that the Court has already acknowledged that same-sex couples are in need of legal recognition and protection of their relationship.”

The willingness of Italian courts to enforce cohabitation contractual agreements was seen by the court as not sufficient to deal with the needs of same-sex couples for recognition and protection, and the court rejected the Italian government’s argument that same-sex couples should be relegated to litigating about particular legal claims as they arise.  “In the Court’s view,” it said, “the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened judicial system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life. This is further aggravated by a state of uncertainty.”  The reference to Italy’s “overburdened judicial system” reflects the reality that litigation there takes a long time due to the understaffed and heavily bureaucratic court system.

The court asserted that passing a law “to provide for the recognition and protection of same-sex unions” would “not amount to any particular burden on the Italian State be it legislative, administrative or other.  Moreover, such legislation would serve an important social need,” pointing out that it is estimated that “there are around one million homosexuals (or bisexuals), in central Italy alone.”  The court noted that the Italian government, in response to this case, had “failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole.” Instead, their position was that the ECHR should be patient and allow the Italian government to develop and pass legislation in its own time-frame.  The court pointed out that Italy had not asserted any interest in protecting “the original concept of the family or the morals of society” as a reason for failing to legislate on this subject. “The Government instead relied on their margin of appreciation in the choice of times and modes of a specific legal framework.”  The court pointedly observed that “in the present case the Italian legislature seems not to have attached particular importance to the indications set out by the national community, including the general Italian population and the highest judicial authorities in Italy,” referencing public opinion polls showing overwhelming popular support for providing civil unions for same-sex couples as well as a Constitutional Court ruling, with which the government has yet to comply, holding that the state was obligated to adopt such legislation.

“In conclusion,” wrote the court, “in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, and in the light of domestic courts’ conclusion on the matter which remain unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfill their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.  To find otherwise today, the Court would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective.”

At the same time, the court said that there was not yet enough consensus on the matter in Europe to take the next step and require Italy to open up marriage to same-sex couples as an application of Article 12.  The court exercised its authority under Article 41 to award monetary damages to the applicants as well as money to cover some of the costs of the litigation.

While the finding of a violation of Article 8 was unanimous, three out of the seven judges submitted a separate opinion taking narrower approach.  They emphasized that because Italy’s Constitutional Court had already ruled that the government had an obligation under the Italian Constitution to adopt a civil union law, it was not necessary for the ECHR to find such an affirmative obligation in Article 8.  Instead, they would ground the court’s ruling on the Italian government’s failure to take the steps mandated by Italy’s Constitutional  Court, as an “interference” with the rights of the applicants in violation of Paragraph 2 of Article 8.  This narrower ruling would leave unaddressed the question whether other nations signatory to the Convention who have not yet adopted civil union laws are obligated to do so under Paragraph 1. But a close reading of the majority opinion shows that it is also very much grounded in the developments that have already taken place in Italy in terms of growing public support for same-sex civil unions, the actions of municipalities in registered same-sex couples (over the objections of some federal officials), and the ruling by the Constitutional Court.  Thus, even the majority opinion could not be seen as firmly establishing a general obligation for all nations signatory to the Convention to adopt civil union laws immediately.  However, the opinion strongly intimates that as the number of European countries with such laws continues to increase, the obligation of signatories to move in accord with the emerging European norm is growing.

The attorneys representing the applicants in this case included Mr. A. Schuster, a lawyer practicing in Trent, and Ms. M. D’Amico, Mr. M. Clarra, and Mr. C. Pieta, lawyers practicing in Milan.

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NY Appellate Division Panel Declares Amended NYC Adult Zoning Ordinance Unconstitutional

Adding another chapter to the long-running two-decade litigation saga of New York City’s controversial adult uses zoning ordinance, a 5-judge panel of the New York Appellate Division, 1st Department, based in Manhattan, ruled  by a 3-2 vote on July 21, 2015, that the 2001 Amendments to the regulation governing location of adult eating and drinking establishments and adult video and book stores unconstitutionally abridge freedom of speech protected by the First Amendment of the U.S. Constitution.  The majority of the panel voted to affirm a 2012 ruling by the late New York County Supreme Court Justice Louis B. York, and to permanently enjoin the City from enforcing the amendments, thus tossing a political hot potato to the De Blasio Administration, which must decide whether to ask the Court of Appeals to review the decision.  For the People Theaters of N.Y., Inc. v. City of New York, 2015 N.Y. Slip Op. 06200, 2015 WL 4429048, 2015 N.Y. App. Div. LEXIS 6068.  Justice Barbara R. Kapnick wrote the opinion for the court.

Prior to 1995, New York City made no distinction between adult (sexually-oriented) businesses and other businesses under its zoning ordinances.  Such businesses could be located anywhere in the city, and some city officials thought there were too many such businesses concentrated in prime commercial and residential locations.  Responding to the direction of U.S. Supreme Court rulings that specified that local governments could impose zoning restrictions on adult businesses if the governments could show that the presence of those businesses was causing undesirable “secondary effects,” such as increased crime, decreased property values, reduced commercial activities, and erosion of community character, the Department of City Planning “began a comprehensive assessment of the impact of adult establishments on the quality of urban life” in 1993, publishing its study in 1994 documenting such effects in the city.  In 1995, the city government amended its zoning resolution to ban “adult uses” from all residential zones and most commercial and manufacturing districts.  In those non-residential areas where the adult uses were not completely banned, they were not allowed to be closer than 500 feet to a “house of worship,” a school, or a day care center.  The effect of the new zoning resolution would relegate such businesses to a handful of remote locations where it is unlikely they would attract sufficient customers to stay in business.

Key to enforcement of the ordinance, of course, was the definition of “adult establishment.”  The resolution’s definition, which was subsequently challenged as unduly vague for constitutional purposes, was a “commercial establishment” in which a “substantial portion” of the establishment includes “an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, of any combination thereof.”  In the case of book stores, the resolution applied to those having a “substantial portion” of their “stock-in-trade” in printed or video depictions of “specified sexual activities” or “specified anatomical areas,” and adult eating or drinking establishments were those that “regularly” featured live performances or movies “characterized by an emphasis on. . . specified sexual activities” or “specified anatomical areas” or where employees regularly exposed “specific anatomical areas” to patrons as part of their employment.  An essential feature of an adult establishment, of course, was that minors were excluded from the premises.  The attempt to describe adult businesses without using sexually-charged language resulted in this bizarre and somewhat vague wording.

Many sexually-oriented businesses that didn’t want to be exiled to the remote areas allowed for them under the resolution decided to alter their premises in an attempt to escape the label of “adult business,” but, they argued, the resolution was so vague that they couldn’t be sure how to comply.  The city responded by adopting a “guideline” specifying that the phrase “substantial portion” meant that any business with “at least 40 percent” of its accessible floor area or stock used for “adult” purposes qualified as an adult establishment.  Many businesses then redesigned their premises so as to reduce the portion devoted to sexually-oriented goods or activities to less than 40%, although many others just went out of business, drastically reducing the number of adult businesses in the city and the virtual disappearance of porn theaters.  The City instituted legal proceedings to close down businesses that didn’t comply with the 60/40 rule, but discovered that many of the businesses in residential and prime commercial locations had successfully reduced their “adult” areas to comply, and so there were still many such businesses in areas where some city officials thought they shouldn’t be operating.

The City then came up with the “sham compliance” theory, arguing that although these businesses had technically complied with the 60/40 rule, they were nonetheless still deriving most of their revenue from sexually-oriented goods and performances, and so were really operating as adult businesses in violation of the Zoning Resolution.  In 1998 the City began to bring “nuisance” lawsuits against such businesses, attempting to get them shut down.

From the time the resolution was first passed in 1995, businesses began filing lawsuits attacking its constitutionality.  The businesses were unsuccessful at first, but finally scored with the claim that the City could not go after businesses that were in technical compliance under the “sham” theory.  The Court of Appeals ruled in 1999 in a case involving a gay-oriented adult establishment on the Upper West Side, Les Hommes, that the 60/40 guidelines must be enforced as written, and evidence that the non-adult inventory didn’t generate much revenue was irrelevant.  “Either the stock is available or accessible, or it is not,” wrote the Court of Appeals; “Either the appropriate amount of square footage is dedicated to non-adult uses, or it is not.”

The City reacted to this ruling with new amendments to the zoning resolution adopted by the City Council in 2001.  Now an “adult establishment” would be a place that “regularly features in any portion of such establishment” live performances with an emphasis on “specified anatomical areas” or “specified sexual activities,” and that excluded or restricted attendance by minors, regardless of what portion of the premises were devoted to such activity.  As to book and video stores, the amendments adopted a detailed analysis attempting to get at the “sham compliance” argument, focusing on such details as whether a customer had to pass by the adult materials in order to get to the non-adult materials, whether the business included “peep booths” for viewing sexually-oriented videos, whether somebody would necessarily be exposed to “adult” materials when paying for their purchases, whether “other printed or visual material” was offered for sale only, but “adult” material was also available for rental, whether the adult titles on offer outnumbered the non-adult titles, whether minors were restricted from parts of the store that featured non-adult materials, whether signage advertising availability of adult materials is “disproportionate in size relative to a sign that advertises the availability of ‘other printed or visual material'” as compared to the proportions of each kind of material offered in the store or the proportion of floor space devoted to them, whether window displays emphasized adult materials using the same sort of proportionality test, and a catch-all provision giving the commissioner of buildings discretion to decide whether sale or rental of adult materials was “a substantial purpose of the business.”  In other words, these amendments were intended to close down the 60/40 businesses that were still trying to operate in areas restricted by the zoning resolution.

Some of the businesses mounted a new legal challenge in 2002.  Their main argument was that if the City wanted to restrict these businesses, it could not rely on the City Planning Department’s original 1994 Study, because that had documented negative secondary effects associated with the kinds of unregulated adult businesses that thrived in the city at that time.  Instead, argued the businesses, they had modified their operations in order to comply with the resolution, so a new study should be required to prove that the altered businesses also caused such secondary effects.  Otherwise, these amendments, which clearly were regulating speech-related activity because of its content, would be unconstitutional under the First Amendment.  In the absence of proof of secondary effects, they argued, the City’s enforcement activities were targeting them because of the expressive content of their goods and performances, which is not permissible under U.S. Supreme Court precedents.

The challenges ended up before Judge Louis York, who denied the City’s motion for summary judgment on September 9, 2003, ruling that the City was required to provide evidence to support its contention that these new restrictions were necessary and could not rely on the 1994 study.  The Appellate Division reversed Justice York, and the case went to the Court of Appeals, which sent it back to York for reconsideration in light of a new U.S. Supreme Court ruling from 2002.  Justice York held trials in the two pending cases involving more than twenty “60/40″ bookstores and ten “60/40″ clubs.  On April 8, 2010, York ruled that the City had met its burden of showing that these businesses were “adult establishments” subject to the zoning resolution, and, of course, the businesses appealed.  The Appellate Division reversed York again, stating that “while the 2001 Amendments might be constitutional in most situations, there may be instances where the application of the ordinance might be an unconstitutional abridgement of First Amendment protections,” and sent the case back to York for further proceedings.  The parties submitted to York proposed findings of fact responding to the issues posed by the Appellate Division.  The City argued that the evidence it had previously presented to York continued to justify the conclusion that all “60/40″ businesses continued to have a “predominant” sexual focus. This time York, who had actually visited and personally inspected the businesses, ruled against the City on August 30, 2012, issuing an injunction against enforcement of the 2001 Amendments against the businesses that had brought these two lawsuits. The City appealed again, and while the appeal was pending Justice York passed away in November 2014.

Writing for the majority in the new decision issued on July 21, Justice Kapnick said that the question at this point, as the Court of Appeals had specified the last time it ruled on these issues, was “whether 60/40 businesses are so transformed in character that they no longer resemble the kinds of adult uses found, both in the 1994 DCP Study and in studies and court decisions around the country, to create negative secondary effects — as plaintiffs contend — or whether these businesses’ technical compliance with the 60/40 formulae is merely a sham — as the City contends.”  In its previous decision, the Appellate Division identified four criteria for Justice York to use in making this determination: (1) the presence of large signs advertising adult content, (2) significant emphasis on the promotion of materials exhibiting ‘specified sexual activities’ or ‘specified anatomical areas’ as evidence by a large quantity of peep booths featuring adult films, (3) the exclusion of minors from the premises on the basis of age, and (4) difficulties in accessing non-adult materials.  “We instructed that if the trial court found that most, if not all, 60/40 establishments featured any or all of the first three of these attributes, the City would have met its burden of proof.”

In reviewing these factors, Justice York had concluded that the reconfiguration of these businesses was not “sham” compliance, noting the reduced size of signs, the toning down of window displays, the relocation of sexually-oriented materials to the back of stores, the reduced emphasis on adult materials in the overall context of the businesses, and that many of the book and video stores allowed minors on the premises, sealing off from their access only the sections with adult content.  He also noted testimony from one witness that “minors are excluded because they tend to come in groups and disrupt the store.”  “This evidence is not indicative of a predominant sexual focus in most of the stores,” wrote Justice Kapnick, “since nearly half of the stores do not restrict the admittance of minors at all.”  She also observed that the evidence in the record did not suggest that there was difficulty accessing non-adult goods in any of the stores.  Turning to the clubs, she concurred with Justice York’s conclusion that although all the clubs did feature live adult-oriented performances, the reduction of floor space devoted to that activity, together with the addition of many non-adult uses, such as restaurants, pool tables, and sports lounges, and the presentation of non-adult musical presentations, as well as changes in signage, were sufficient to escape being labeled adult businesses, even though the clubs generally excluded minors from the premises.

Justices Angela Mazzarelli and Paul Feinman joined Kapnick’s opinion.

Justice Richard T. Andrias wrote a vehement dissent, joined by Justice Leland G. DeGrasse, accusing the majority of a “mechanical and mathematical approach, under which the predominant sexual focus in the 60/40 businesses’ activities is quantitatively outweighed by signage, policies towards minors, and layouts.”  He insisted that this was “inadequate under the dictates of the Court of Appeals and this Court, and elevates the City’s burden of proof” above what had been discussed in the prior appellate rulings in this case.  “In identifying certain factors relevant in assessing the character of the adult establishments,” he continued, “this Court did not call for a mechanical application by which each factor is to be weighted equally and tallied to arrive at a quantitative conclusion.”  He contended that in its previous decision, the Appellate Division “recognized that if any one of the factors established that the 60/40 businesses displayed a predominant, ongoing focus on sexually explicit materials or activities, and that there had not been a significant change in their character, it could provide a sufficient basis to hold the 2001 Amendments constitutional.”  Andrias contended that the record “fairly supports the City’s contention that the adult establishments reviewed emphasized sexual activities or materials over nonadult materials.”

Simply stated, the intention of the City Council in adopting the 2001 Amendments, in the view of the dissent, was to rid residential and prime commercial areas of the city from sexually-related businesses.  The dissenters contend that so long as a store is selling or renting sexually-oriented goods or services as a substantial part of its business, it should be considered an adult business barred from operating in such areas, regardless whether signage and the face it presents to the street has been toned down and it has added other non-adult materials and activities to its business plan.  As a practical matter, they argue, a business that presents strippers and sells pornography is an adult business, regardless of the signage and the allocation of most of its floor space to pool tables, non-sexual videos and books and the like.  The majority, on the other hand, agreed with Justice York that these remaining 60/40 businesses, which had altered their physical layout and promotional efforts to downplay their sexually-related goods and services, should be allowed to continue to operate in the residential and commercial zones unless the City could show that these altered businesses generated the undesirable effects that were documented for their unregulated predecessors prior to 1995.

In light of the sharp split between the majority and dissent, it would not be surprising if a request by the City to the Court of Appeals to review this decision would be granted, although it is difficult to predict how that court would rule in light of the complete turnover in personnel since it last addressed these issues.  (Governor Cuomo now has two pending vacancies to fill, after which the overwhelming majority of that bench will be Democratic appointees.)  The New York Law Journal quoted a NYC Law Department spokesman’s same-day response that the decision “is under review.”  If the De Blasio Administration wants to continue the anti-sex business approach of the Giuliani and Bloomberg Administrations, an appeal would seem to be mandatory.  But this might be a good time to make a quick assessment whether in fact there are any real problems in terms of significant negative effects from the remaining 60/40 businesses that have continued to operate while the issue has been litigated, and to consider putting this long-running legal battle to rest.  The City Council might also want to play a role at this point, since the handiwork of its 2001 predecessors (who have all been superseded due to term limits) is at the center of the litigation.

The lead attorney for the businesses was Herald Price Fahringer, who passed away in February after having litigated these issues through numerous trials and appeals since 1995.  Other attorneys who have been representing the businesses include Erica T. Dubno and Nicole Neckles of Fahringer’s law firm, and Edward S. Rudofsky and Martin P. Mehler representing other businesses involved in the case.  Corporation Counsel Zachary W. Carter will undoubtedly take a lead role in advising Mayor De Blasio about how to proceed from this point.

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Federal Discrimination Agency Says Gays Are Protected Against Employment Discrimination

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act of 1964, issued a decision on July 15 holding for the first time that Title VII’s ban on employment discrimination because of sex includes discrimination against somebody because they are gay, lesbian or bisexual.  This marks a complete turnaround by the EEOC from the position taken by the agency throughout all of its 50 year history.  The Commission, acting in its appellate capacity, overruled a 2013 agency decision that had rejected a discrimination claim by a man who had been denied a permanent Front Line Manager position by the Federal Aviation Administration.  As is customary with such administrative rulings by the EEOC, the decision does not give the name of the man, referring throughout to the “Complainant.”   Baldwin v. Foxx (Anthony Foxx, Secretary, Department of Transportation), 2015 WL 4397641 (EEOC, July 15, 2015).


The EEOC went into business in July 1965 when Title VII took effect.  That statute was the result of prolonged struggle in Congress, including a lengthy filibuster in the Senate led by southern conservative Democrats opposed to racial integration of the workplace.  Almost all of the attention around Title VII focused on the proposal for a federal ban on race discrimination in employment.  The bill originally introduced in the House of Representatives was limited to race or color, religion and national origin as prohibited grounds of discrimination.  The relevant House committees did study sex discrimination issues, but decided that the Equal Pay Act passed in 1963, which prohibited compensating men and women at different rates for the same work, was sufficient, and proponents of the bill feared that adding a general prohibition on sex discrimination would endanger the bill’s passage.  Nonetheless, on the floor of the House, Rep. Howard Smith of Virginia, a long-time proponent of equal legal rights for women, introduced an amendment to add sex, which was passed by an unlikely alliance of pro-feminist liberals and southern conservatives.  Some of the southerners probably supported the amendment hoping that this would make the final bill more difficult to pass.  Because “sex” was added as a floor amendment, the committee reports on the bill do not discuss it, and Smith’s amendment did not add any definition of sex to the definitional section of the bill, merely adding the word “sex” to the list of prohibited grounds of discrimination wherever that list appeared in the bill.

After the bill passed the House, it went to the Senate under a deal worked out by the leadership to by-pass the committee process, in order to prevent it from being bottled up in committee by the conservative southern Democratic chair of the Judiciary Committee, Senator Eastland, who was a sworn opponent of the bill.  Instead the measure went directly to the Senate floor under a procedure that allowed little opportunity for amendments.  There was some brief discussion about the inclusion of sex but nothing really illuminating, apart from a floor amendment attempting to reconcile the bill with the Equal Pay Act, the meaning of which wasn’t settled until a Supreme Court ruling several years later.

Consequently, the “legislative history” provides no help in figuring out what kind of discrimination Congress intended to ban when it voted to add “sex” to the list of prohibited grounds of employment discrimination.  Without such guidance, the EEOC and the courts were left to their own devices in trying to figure out what this meant, and the conclusion they reached early in the history of Title VII was that it was intended to prohibit discrimination against women because they were women or against men because they were men.  As such, both the EEOC and many courts ruled beginning shortly after the Act went into effect that it did not apply to discrimination because of a person’s sexual orientation or gender identity, both concepts that were largely missing from American jurisprudence during the 1960s.  One commonsense reason usually raised by courts in rejecting such discrimination claims was that if Congress had intended to ban these forms of discrimination, there surely would have been some mention during the debates over the bill. They have also pointed to the fact that bills to add sexual orientation and gender identity to Title VII or to enact a free-standing law addressing such discrimination have been frequently introduced in Congress since the early 1970s, but no such measure has ever been enacted.  Some courts have construed this history to reflect Congress’s view that Title VII does not already ban such discrimination.

A Supreme Court decision from 1989, Price Waterhouse v. Hopkins, initiated a changing landscape for sexuality issues under Title VII.  Ann Hopkins, rejected for a partnership at Price Waterhouse, won a ruling from the Supreme Court that sex stereotypes held by some of the partners who voted against her application violated her rights under Title VII.  Writing for a plurality of the Court, Justice William J. Brennan said that Title VII applied to discrimination because of gender, not just biological sex.  Later courts seized upon this to justify taking a broader view of sex discrimination under Title VII.  By early in this century, there was a growing body of federal court rulings suggesting that LGBT people might be protected to some extent under Title VII, depending on the nature of their case.  If the discrimination they suffered could be described in terms of sex stereotypes, or if they could show that they had been the victim of sexual harassment that turned in some way on their gender, they might be able to maintain a legal claim of discrimination.

Within the past few years, the EEOC has taken a leading role in making these developments more concrete, first by its treatment of discrimination claims within the internal investigative process, and then through its decision-making on discrimination claims brought against federal agencies, where the Commission plays an important appellate role reviewing rulings by federal agencies on internal employment grievances.  In 2012, the EEOC ruled in a case against the Justice Department that a transgender woman who was denied a position because of her gender identity had a valid claim under Title VII.  Macy v. Dep’t of Justice, 2012 Westlaw 1435995 (April 20, 2012).  This ruling echoed many then-recent federal court decisions, including some by courts of appeals, finding that discrimination because of gender identity almost always involves sex stereotyping by the discriminating employer.   Late last year, the agency and then the Justice Department concluded that all gender identity discrimination claims could be investigated and prosecuted under Title VII.  Pushing that position forward, the Justice Department has filed suit on behalf of the EEOC or joined ongoing private cases in federal court seeking to move the courts beyond the stereotyping theory to a straightforward acceptance that gender identity discrimination is sex discrimination.

The new July 15 ruling by the EEOC seeks to achieve the same thing for lesbians, gay men and bisexuals confronting employment discrimination.  While acknowledging the significance of the Supreme Court’s Price Waterhouse decision and sex stereotyping theory in widening the agency’s appreciation of the scope of sex discrimination, this ruling takes things a step further.  “In the case before us,” wrote the Commission, “we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position.  The Complainant, therefore, has stated a claim of sex discrimination.  Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.  A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”

The Commission amplified this conclusion with an extended discussion, grounding its conclusion in rulings by several federal courts and pointing especially to the well-established principle that discriminating against somebody because of the race of their sexual partner has long been deemed by the Commission and the courts to be race discrimination.  Logically, then, discriminating against somebody because of the sex of their sexual partners would be sex discrimination.  The Commission also referenced the recent marriage equality litigation, noting the Supreme Court’s statement in Obergefell v. Hodges that laws prohibiting same-sex marriage “abridge central precepts of equality.”  Of course, the Commission also explained that recent court rulings have made clear that stereotyped thinking about proper gender roles, as well as behavior, underlies much sexual orientation discrimination, thus providing a firm theoretical justification in the Supreme Court’s Price Waterhouse case.

What is the significance of this EEOC ruling?  It is likely to result in the agency initiating federal court litigation, enlisting the Justice Department, to push this interpretation of Title VII into the courts.  Although federal courts are not bound by an administrative agency’s interpretations of their governing statutes, the Supreme Court has frequently deferred to agency interpretations when they are seen as consistent with the statutory language and overall congressional purpose, and constitute a reasonable interpretation of the statute.  Here is where the EEOC’s past rulings may result in less deference than courts otherwise might give.  When an agency “changes its mind” about an issue, courts may be skeptical about whether the new ruling is more political than legalistic.  So it may be premature to assume that this ruling by the EEOC means that we have no need to enact explicit federal protection through a vehicle such as the Employment Non-Discrimination Act (ENDA), which has been pending in one form or another in Congress since 1993.

Ironically, this EEOC action comes at a time when LGBT political leaders have largely abandoned ENDA, finding it too narrowly focused on employment.  Objections have also been raised to the extremely broad religious exemption contained in ENDA.  One of the major lobbying victories last summer was persuading the Obama Administration not to include the broad ENDA-style religious exemption in President Obama’s executive order banning sexual orientation and gender identity discrimination by federal contractors.  Lobbyists are now working with legislators on a broader, comprehensive LGBT civil rights bill, expected to be introduced this summer, that would go beyond employment to cover other areas traditionally covered by federal law, including housing, public services and public accommodations.  In the meantime, however, it will certainly be useful for the federal government’s primary civil rights enforcement agency, the EEOC, to be on record that sexual orientation discrimination is sex discrimination.  EEOC’s view may be influential with the agencies that enforce the Fair Housing Act and the other titles of the Civil Rights Act, and its analysis may prove persuasive to the courts, regardless of the level of deference it receives.

The vote on this decision is not indicated in the opinion (which was drafted by the Commission’s staff), but was reported in the press as a party-line vote of 3-2.  Under the statute, the five-member Commission may not have more than three commissioners who are members of the same political party.  The two Republicans on the Commission voted against this decision, but did not issue a written dissent.  A prime mover behind the EEOC’s expanded view of sex discrimination to encompass gender identity and sexual orientation claims has been Commissioner Chai Feldblum, the first openly gay member of the Commission, who was appointed by President Obama and confirmed by the Senate for a second term last year.

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2nd Circuit Revives Transgender Welder’s Discrimination Case Against Ironworkers Union

A unanimous panel of the U.S. Court of Appeals for the 2nd Circuit, reversing the dismissal of a Title VII discrimination claim filed by a transgender welder against his union, ruled that failure to exhaust administrative remedies is not a jurisdictional bar and that the district court incorrectly failed to discern an alternative federal ground for the lawsuit under the National Labor Relations Act.  As such, the district court must reconsider both its decision on the motion to dismiss and its decision not to assert jurisdiction over state and local law claims.  Fowlkes v. Ironworkers Local 40, 2015 WL 3796386, 2015 U.S. App. LEXIS 10339 (2nd Cir., June 19, 2015).  The decision is particularly notable in flagging the possibility that gender identity discrimination by a union hiring hall may violate the union’s duty of fair representation under the National Labor Relations Act, a little-explored source of protection for sexual minority employees.

Cole Fowlkes, “who self-identifies as male but was born biologically female” according to Circuit Judge Susan L. Carney’s opinion for the court, alleges that his union and two of its business agents, Danny Doyle and Kevin O’Rourke, “discriminated against him on the basis of sex and retaliated against him for filing an earlier action against them.”  Although various forms of discrimination are alleged, the most egregious is refusal to refer Fowlkes for work through the Local’s hiring hall.  In the construction industry in New York City, most union-represented jobs are obtained through hiring hall referrals.  Although Fowlkes received a few referrals, he claims to have not received the number of referrals to which he was entitled by virtue of his position on the union seniority list and level of experience.  He also recounted various remarks made to him by the union agents reflecting discriminatory attitudes because of his gender identity.

Fowlkes first filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging a violation of Title VII on May 29, 2007.  EEOC issued a “right to sue” letter on July 10, 2007, informing Fowlkes that it had decided not to take further action on his claims but he was free to sue on his own behalf.  At the time, during the Bush Administration, the EEOC was set against sex discrimination claims by transgender complainants under Title VII.  Fowlkes then filed an action pro se in the U.S. District Court for the Southern District of New York on January 25, 2008, unfortunately more than 180 days after the right to sue letter was issued, and the district court dismissed the case upon the defendants’ motion as time-barred, since the statute provides that a complainant has 90 days to file suit after receiving such a letter from the EEOC.  As Fowlkes continued to experience discrimination, he filed a second federal court complaint pro se, also in the U.S. District Court for the Southern District of New York, in July 2011, alleging that the defendants violated his “Civil Rights (involving Employment)” by subjecting him to harassment and refusing to refer him for work based on his sex.  He did not file a new EEOC charge or obtain a new “right to sue” letter before filing this second complaint.  He also asserted discrimination claims under the New York State and City Human Rights Laws.  Again the defendants moved to dismiss, this time resting on the argument that Fowlkes’s failure to file a new EEOC charge deprived the court of jurisdiction to hear his federal claims.  The District Court responded that because Fowlkes had not complained to the EEOC about conduct occurring after his earlier EEOC complaint was filed, the court’s jurisdiction was “uncertain.”  The judge gave Fowlkes leave to amend his complaint to detail any state claims that weren’t raised in the prior, dismissed action, and to allege any facts relevant to his attempt to exhaust administrative remedies prior to filing this new lawsuit.  Fowlkes filed an amended complaint in November 2011, but the court concluded that his Title VII claim “must be dismissed because he does not allege that he exhausted his administrative remedies,” so the court concluded it lacked jurisdiction over the Title VII claim and thus that it lacked jurisdiction to entertain his state law claims without any federal claim remaining in the case.

Fowlkes appealed to the 2nd Circuit, this time represented by counsel, Robert T. Smith of Katten Muchin Rosenman LLP, who in addition to arguing that the failure to exhaust was not necessarily fatal on the question of jurisdiction first advanced the idea that Fowlkes’ factual allegations could support a federal claim under the National Labor Relations Act for violation of the duty of fair representation.  The 2nd Circuit found merit in both arguments.

First, Judge Carney pointed out, there is ample precedent for the argument that the statutory exhaustion requirement under Title VII may be waived on equitable grounds, and in this case there were two possible arguments to be made.  One is that filing a second EEOC complaint would have been futile, since at the time Fowlkes filed his second complaint in federal court, the EEOC was still adhering to the position it had taken in response to his first complaint: that gender identity discrimination is not actionable under Title VII.  “When Fowlkes filed his 2011 complaint,” Carney explained, “the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant’s transgender status.  It was not until Macy v. Holder, NO. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012), published after Fowlkes filed his 2011 complaint, that the EEOC altered its position and concluded that discrimination against transgender individuals based on their transgender status does constitute sex-based discrimination in violation of Title VII.  Thus, Fowlkes’s failure to exhaust could potentially be excused on the grounds that, in 2011, the EEOC had ‘taken a firm stand’ against recognizing his Title VII discrimination claims.”  Furthermore, the court noted that there was a second possible equitable defense for failure to file a new EEOC claim: that “his more recent allegations of discrimination may be ‘reasonably related’ to the discrimination about which he had filed an earlier charge with the EEOC.”  In such a case, wrote Carney, citing the 2nd Circuit’s decision in Terry v. Ashcroft, 336 F.3d 128 (2003), “the failure to raise the allegations in the complaint before the EEOC may not bar federal court proceedings.”  Judge Carney pointed out, based on the allegations in the most recent federal court complaint, that Fowlkes could plausibly make such an argument in this case, so the matter should be remanded in order for the district court to determine whether “futility” might be a cognizable equitable defense to the motion to dismiss “and, in this particular case, whether futility, ‘reasonable relatedness,’ or any other equitable doctrine excuses Fowlkes’s failure to exhaust his administrative remedies.”

But furthermore, the court was willing to entertain the argument, first raised on appeal but based on the factual allegations from the complaint, that Fowlkes might alternatively have a federal claim under the National Labor Relations Act.  Because Fowlkes filed his complaint pro se, “he is ‘entitled to special solicitude,’ and we will read his pleadings ‘to raise the strongest arguments that they suggest,’” wrote Carney, quoting from Triestman v. Fed. Bureau of Prisons, 470 F.2d 471, 477 (2nd Cir. 2006). “The duty of fair representation is a ‘statutory obligation’ under the NLRA, requiring a union ‘to serve the interests of all members without hostility or discrimination. . . to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct,” quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967), in which the Supreme Court had definitely recognized that the Act’s conferral of exclusive representative power on unions implied a duty to exercise such power fairly.  The Supreme Court has found that this duty applies to hiring hall operations.  “A union breaches its duty of fair representation if its actions with respect to a member are arbitrary, discriminatory, or taken in bad faith,” wrote the Supreme Court in Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991).

“Although Fowlkes’s amended pro se complaint did not flag the NLRA, we nonetheless are persuaded, with the benefit of a counseled brief on Fowlkes’s behalf, that Fowlkes has stated a plausible claim for a breach of the duty of fair representation,” wrote Judge Carney.  “In his amended complaint, Fowlkes alleges that the Local refused to refer him for work for which he was qualified because of his transgender status and in retaliation for instituting legal proceedings against the Local.  Allegations that a union abused its hiring hall procedures to undermine a member’s employment opportunities warrant particularly close scrutiny when a union wields special power as the administrator of a hiring hall. . .  Assuming, as we must, that Fowlkes’s allegations are true, the Local’s conduct was at the very least arbitrary, if not discriminatory or indicative of bad faith.”  The defendants urged a six months statute of limitations as barring this claim, but Carney found that Fowlkes had adequately alleged discriminatory referral practices occurring within the six-month period before his pro se complaint was filed with the court.  She also rejected the union’s argument that because Fowlkes received some referrals, he could not bring this claim, asserting that “the mere fact that Fowlkes was referred for some work during the relevant period does not defeat a claim that he was subjected to arbitrary, discriminatory, or bad-faith treatment by a Local’s overall distribution of work.  A union need not completely eliminate a member’s employment opportunities before the member may be entitled to relief.”  She also rejected the union’s argument that it could defeat this claim with a motion to dismiss based on an argument that Fowlkes should have exhausted internal union grievance proceedings first, stating that “a cursory invocation of an intra-union exhaustion requirement in their appellate brief certainly does not suffice to bar the duty of fair representation claim from proceeding past the pleadings stage.”  Having concluded that Fowlkes “has stated a claim for breach of the duty of fair representation against the Local,” the court found alternative grounds to “vacate the District Court’s determination that Fowlkes stated federal claims under only Title VII, and we remand for further proceedings on his duty of fair representation claim.”

Since the 2nd Circuit had identified an alternative ground for federal jurisdiction, it was also appropriate to have the district court reconsider its decision to dismiss the supplementary state and local law discrimination claims.  “Because we have now concluded that (1) Fowlkes’s failure to exhaust administrative remedies did not deprive the District Court of jurisdiction over his Title VII claims, and (2) Fowlkes has stated a claim under the NLRA for breach of the duty of fair representation, we vacate the dismissal of Fowlkes’s pendent state- and city-law claims to allow the District Court to reconsider on remand whether exercising supplemental jurisdiction is appropriate given our conclusions regarding his federal claims.”

If the defendants don’t offer a decent settlement in response to this decision, they are missing a good opportunity to avoid lengthy and expensive litigation, since the panel clearly signaled its view that Fowlkes’s allegations, if proven, would provide multiple grounds for liability by the union.  The other members of the 2nd Circuit panel were Circuit Judges Pierre Leval and Denny Chin.

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Federal Court Refuses to Dismiss Transgender Professor’s Sex Discrimination Lawsuit

U.S. District Judge Robin J. Cauthron denied a motion to dismiss a Title VII sex discrimination claim filed by the Justice Department on behalf of a transgender woman against Southeastern Oklahoma State University, alleging that she suffered discriminatory treatment and a denial of tenure after she announced her intent to transition.  %United States v. Southeastern Oklahoma State University%, 2015 U.S. Dist. LEXIS 89547 (W.D. Okla., July 10, 2015).

Dr. Rachel Tudor, the University faculty member who filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC), intervened in the lawsuit as the co-plaintiff.  She is represented by Brittany Novotny of Oklahoma City and Ezra I. Young and Jillian T. Weiss of the Law Office of Jillian T. Weiss PC of New York.

Judge Cauthron rejected the University’s claim that Dr. Tudor’s complaint to the EEOC was insufficient to meet the requirement to exhaust administrative remedies before filing suit, finding that the EEOC’s own procedural regulations basically allow “notice” filing, and that the U.S. Court of Appeals for the 10th Circuit had adopted a policy of “utmost liberality” in construing EEOC charges for this purpose.  Judge Cauthron concluded that the letter Dr. Tudor sent to the EEOC was sufficiently detailed to meet the exhaustion requirement, putting the defendant on notice that she was asserted a hostile work environment and discrimination claim.

The court also rejected the University’s argument that Dr. Tudor’s claim fell short on the theory that she is not a member of a “protected group” under Title VII, which does not specifically mention gender identity.  The judge noted 10th Circuit precedent stating that “like all other employees, [Title VII] protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”

“Here,” wrote the judge, “it is clear that Defendants’ actions as alleged by Dr. Tudor occurred because she was female, yet Defendants regarded her as male.  Thus, the actions Dr. Tudor alleges Defendants took against her were based upon their dislike of her presented gender.”  This means that the first element of a Title VII discrimination claim, that the complainant had been discriminated against due to a characteristic listed in the statute, had been adequately pleaded in the complaint.

As to Dr. Tudor’s factual allegations, the court said that the defendant’s reading of her Complaint was unduly narrow.  “When taken as a whole, it is clear that the factual allegations set forth by Dr. Tudor demonstrate that she was subjected to unwelcome harassment based on the protected characteristic and that the harassment by Defendants’ employees was sufficiently severe or pervasive to alter a term, condition, or privilege of her employment and thereby create an abusive work environment.”  Among her allegations is discrimination regarding insurance coverage for gender transition expenses, which is not explicitly mentioned in the court’s opinion but was included in the factual allegations presented to the court.  She also complained about denial of her tenure application.

Dr. Tuder also alleged discrimination concerning restroom access, which is a recurring feature of transgender employment discrimination claims, and recounted being told by a Human Resources Administrator that a management official of the University had responded to news of Dr. Tudor’s gender transition by urging her discharge, stating that transsexuality offended his religious beliefs.  The notion that the religious beliefs of a public university administrator should play any role in personnel decisions raises serious 1st Amendment Establishment Clause concerns.

The court also rejected the University’s argument that the lawsuit was barred under the doctrine of laches (undue delay in filing suit), finding that Dr. Tudor had begun the administrative process to redress her complaint promptly and that any delay in filing the lawsuit was attributable to the EEOC’s administrative process, which should not be held against her claim.

This lawsuit is one of several filed by the Justice Department in various different federal district courts around the country on behalf of transgender complainants seeking to vindicate sex discrimination claims under Title VII.  Another such complaint was recently filed by the government against a Minnesota-based printing and financial services company, Deluxe Financial Services, in mid-June.  That case, based on a complaint filed with the EEOC by Britney Austin, a transgender woman, also focuses on restroom access, as well as name-calling by co-workers and refusals to use the correct pronoun in referring to the complainant.  The government’s strategy is to establish Judicial precedents in many different courts holding that discrimination against transgender individuals because of their gender identity or expression violates the sex discrimination ban in Title VII, before a case presenting the issue finally percolates up to the level of the Supreme Court.

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Dangers of Home-Made Wills Shown by New York Appellate Ruling

A New York Appellate Division four-judge panel has affirmed a ruling by New York County Surrogate Nora Anderson that Ronald D. Myers’ home-made will should be construed to leave his stock portfolio, apart from some IBM stock, to his mother rather than to his same-sex life partner.  Ephraim v. O’Connor, 2015 WL 4002277 (N.Y. App. Div., 1st Dep’t, July 2, 2015).  The ruling turned on the ambiguities of a document drafted without the assistance of a lawyer and the application of standard rules of contract construction that appear to contradict the likely intention of the gay testator.

In his will, Ronald Myers wrote that he left “all monies” to his mother, and “all stocks of I.B.M.” and “all personal property” to his life partner, whom he referred to as his “close friend.” He designated his mother and his life partner to be co-executors.

At the time he made his will, Myers’ sole stock ownership was I.B.M. shares, but by the time of his death his portfolio included other significant stock holdings.  He never revised his will to explicitly indicate how the rest of his stock should be distributed.  The dispute between the co-executors was whether the rest of the stock portfolio would go to Myers’ mother or his life partner (who is not named in the court’s opinion, the case being litigated by Martin Ephraim as “fiduciary of the deceased executor for the Estate of Ronald D. Myers”).

The surviving partner argued that corporate stock is “personal property” and thus should go to him.  Myers’ mother argued that by specifically designating I.B.M. stock to his partner, Myers signaled that he did not intend his other stock to go to the partner as well.

New York County Surrogate Anderson opted for the mother, who is now deceased as is Myers’ former life partner, so the dispute is actually between successors in interest on both sides.

Attorney Tom Shanahan, representing the fiduciary for the deceased life partner, argued that the stock should come within the term “personal property” rather than “monies” and go to his client, and that Surrogate Anderson had improperly favored the mother over the life partner in resolving this interpretive dispute, based on a traditional preference of resolving ambiguities on inheritance in favor of legal relatives.  Farrell Fritz, attorney for the mother’s estate, pressed the general rule of construction that the specific bequest of I.B.M. stock implies that Myers did not consider his other stock holding to come within the general category of “personal property” so it should go to the mother.

The Appellate Division was not sympathetic to Shanahan’s argument, writing: “The court properly interpreted the will as intending to bequeath to decedent’s mother the stock in companies other than IBM, in view of the limiting language of the bequest to his life partner and the broad language of the bequest to his mother.  If decedent viewed stock as ‘personal property,’ he would not have expressly noted the bequest of the IBM stock, since it would have been included in the more general bequest to his life partner.”  Since Myers did not own any stock other than I.B.M. stock at the time he wrote the will, one could argue that his failure to mention other stock specifically was not evidence of such an intention, but rather the oversight of somebody unaware of the intricacies of drafting wills.

Finding that the court’s reliance on this linguistic distinction was “proper,” the court also found that because the will itself referred to the partner as his “close friend,” the court’s “reference to decedent’s life partner as a ‘friend’ does not show that the court relied on a presumption in favor of relatives or that it marginalized or disregarded decedent’s long-term relationship with his life partner.”  Thus, the court rejected Shanahan’s argument that Surrogate Anderson’s reference to the surviving partner as a “friend” of Myers in her opinion was dismissive of the men’s relationship.  Of course, at the time the will was made many years ago, it might have been prudent for a gay testator to refer to his partner as a “close friend,” since a reference to somebody as a “lover” could open the door to “undue influence” arguments, which had traditionally been raised by surviving legal relatives in contesting gay people’s bequests to their surviving partners.  At the time this will was drafted, New York State did not provide any legal status for same-sex partners, so Myers’ partner could not have been referred to as a “spouse” or “husband.”

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Federal Court Rules on Veterans Cemetery Burial Dispute for Married Same-Sex Couple

In light of Obergefell v. Hodges, the decision in Taylor v. Brasuell, 2015 WL 4139470 (D. Idaho, July 9, 2015), seems obvious.  Taylor is a 74-year-old veteran of the U.S. Navy.  She married Jean Mixner in a religious ceremony in 1995, and then the women married again in a legal civil ceremony in California in 2008.  Mixner passed away in 2012 and was cremated.  Taylor kept the ashes, intending that when the time came she would be cremated as well and they would be buried together in a military cemetery.

In December 2013, Taylor went to the Idaho State Veterans Cemetery in Boise to make the arrangements and filed an application. On June 4, 2014, she received a letter from the Director of the cemetery informing her that she could be buried there, but not together with her spouse, because the marriage was not recognized under Idaho law.  Taylor filed suit on July 7, 2014, requesting an injunction to compel the cemetery to honor her request.

A few months later, the 9th Circuit ruled in Latta v. Otter that Idaho’s recognition ban was unconstitutional, on October 10, 2014, the Supreme Court denied a motion for stay pending appeal by Idaho, and on October 28, 2014, the cemetery allowed interment of Ms. Mixner’s ashes, having concluded that Idaho’s recognition ban was ended.  The defendant in this case, David Brasuell, administrator of the cemetery, filed a motion to dismiss, claiming that the case was moot since Mixner’s ashes had been interred and the Idaho Division of Veterans Services had granted Taylor’s request.  Taylor responded with a motion for summary judgment, asking the court to issue the requested injunction, just to be sure that her request to be buried with her spouse would be honored.

Idaho subsequently filed a cert petition in Latta v. Otter, which the Supreme Court held without decision while the appeal in Obergefell v. Hodges was pending.  That petition was denied on June 30, 2015, after the Supreme Court had issued its ruling on the merits in Obergefell.  Meanwhile, the cross-motions in this case had been pending before U.S. Magistrate Judge Ronald E. Bush, who evidently held up on ruling until a decision was rendered in Obergefell.  The defendants pressed their mootness argument in support of dismissal, but Judge Bush came down in favor of Taylor, issuing the requested injunction.

“There is no question but that those on both sides of the argument raised in the Latta and Obergefell cases have firm and deeply-felt convictions about the ‘rightness’ of their particular position,” he wrote.  “Further, the landscape left by Latta and Obergefell is still very warm to the touch.  However, the remaining issues in this case must be decided against the judicial finish line of those cases, not against the arguments raised along the way.  In that space, this Court is not persuaded that Veterans Services, via Mr. Brasuell, has borne its ‘formidable’ burden of establishing that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ Concentrated Phosphate, 393 U.S. at 203.  Perhaps, even without an enforceable order ensuring that Ms. Tayler and Ms. Mixner will be permanently interred together at the Idaho Veterans Cemetery, they would nonetheless be so laid in perpetuity.  But notwithstanding the rulings in Latta and Obergefell, a future director at Veterans Services or the Idaho State Veterans Cemetery (or some other applicable state actor) may come to view his or her role as being responsible for deciding what is/is not constitutional under the law on matters that may impact Ms. Taylor’s claimed right to be interred there with her same-sex spouse.  It is not unusual for legal precedent – even Supreme Court decisions – to be tested in such ways over time to ‘settle the pond’ on novel and evolving issues.  Dismissal on the grounds of mootness would be justified only if this possibility was categorically foreclosed or, said another way, if it was absolutely clear that Ms. Taylor no longer had any need of the judicial protection that she seeks.  The record now before the Court does not support such a conclusion.  For this separate reason, Mr. Brasuell’s Motion to Dismiss is denied.”

The court then concluded that, in light of Latta and Obergefell, it was clear that Taylor was entitled to summary judgment and the issuance of the injunction she was seeking.

In a footnote, the judge explained the particular predicament that might arise if the case were dismissed as moot and then after Taylor’s death the cemetery’s administration might change their mind and deny burial.  At that point, it would be questionable whether her executor or administer would have standing to bring an action under Section 1983 (the federal civil rights enforcement statute), since only living persons have legal rights to assert.  The judge concluded that Taylor was entitled to the peace of mind of obtaining injunctive relief now.

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National Youth Orchestra at Carnegie Hall

The National Youth Orchestra of the United States of American presented its 2015 concert last night at Carnegie Hall, and lived up to the high standard set for the past two years.  I’ve been attending these concerts since they began in 2013 and have continued to be amazed by what can be accomplished in two weeks of rehearsals by an assembly of talented youngsters who are not music conservatory students.  The results meet the high standards of professional orchestras.  One can concentrate on listening to the music, confident that the performers are up to the task.

And the task here was a very challenging program: a newly-commissioned concert-opener by Tan Dun, Beethoven’s Emperor Concerto with a leading young professional pianist – Yundi – as soloist, and Berlioz’s Symphonie fantastique, one of the most challenging symphonies in the standard orchestral repertory, full of exposed solo passages for every section of the orchestra.  Charles Dutoit, a veteran conductor, led spirited performances that made no compromise to the youth of the performers.  And it was a long program — perhaps stretched out a bit by too lengthy an intermission — running from 8 pm to 10:30, lengthened even more by an encore – the final movement from L’Arlesienne Suite No. 2 by Bizet.

One could single out various soloists for praise, but not by name, since the program lists the musicians alphabetically by section, presumably because the roster had to be submitted in advance of the rehearsals and final assignments undoubtedly emerged during the rehearsal process.  I was particularly struck by the calm virtuosity of the horn section, especially in the Beethoven concerto, the solo oboes (they seem to have switched off principal roles between numbers) in the Berlioz, and the depth and tight ensemble of the strings throughout.  But there was plenty of glory to go around.

If there is anything to criticize, it is the choice of the Beethoven concerto, which calls for a standard classical-size orchestra, as a result of which many of the wind and percussion players, as well as the excellent harpists, were excluded from a significant part of the program. As long as one is assembling such an ensemble, it would make sense to me to put together a program that requires the entire ensemble throughout.  Also, why would one devote all but 5 minutes (the Tan Dun piece) to music from the early 19th century?  Young performers are fearless in confronting modern music, as they showed quite well with Tan Dun, and so one could easily put together a program calling on the full group of more recent music.  As well, the absence of American music was noticeable and unfortunate in light of the touring schedule.

Yundi is a spectacular pianist, but on this occasion I was a bit critical of one aspect of his playing.  Fast scale passages tended to be rushed into a blur, at times getting away from the orchestra.  I fault Yundi for this, not Dutoit, who was doing a fine job of moving the orchestra along to keep up.  But Beethoven needs majesty, not just excitement.  That said, the slow middle movement was exquisitely done, and I marveled at the ability of this large aggregation of youngsters to play with quiet subtlety when that was called for.

Altogether an excellent evening, and the Chinese audiences they will be meeting over the next few weeks are in for a treat.  Bravo to Carnegie Hall for instigating and supporting this project!

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