New York Law School

No, it's not quite what you may think from reading the headline.  Although the 8th Circuit did affirm a grant of summary judgment to the employer in a case in which a job applicant alleged discrimination based on gender identity in violation of Title VII's ban on sex discrimination in employment, it was not because the Circuit sharply departed from the growing body of precedent accepting such claims.  Rather, the court found in Hunter v. United Parcel Service, 2012 Westlaw 4052503 (September 17, 2012), that the plaintiff failed to show that the employer denied the job due to the applicant's gender identity or sexual orientation.  (There was a supplementary state law sexual orientation discrimination claim that was also rejected as part of the summary judgment in this case.)

District Judge Catherine D. Perry (Chief Judge of the U.S. District Court for Minnesota) joined with two 8th Circuit judges to make up the 3-judge panel, and wrote the opinion for the court.  "Gage Hunter was born female, but has identified as male since he was a child," she wrote.  Hunter first applied to UPS in 2006, presenting as female and using the birth name of Jessica Axt.  Hunter was offered a job, but ended up declining it to accept employment elsewhere.  Hunter applied against in 2008, still under the name Jessica Axt, but by then had begun to dress and groom as male.  Hunter had not yet begun hormone therapy to transition, however.  Hunter was receiving social security disability benefits at that time, based on a diagnosis of psychological disorder that precluded full-time work.  The position for which Hunter applied was a part-timer package handler position.

Hunter was actually solicited to apply, as UPS regularly contacts previous job applicants when they have new openings.  Hunter showed up for a tour of the facility and an interview, and after some confusion about the on-line application form, was finally scheduled for an interview on April 23, 2008.  As described by Judge Perry: "Trendle interviewed Hunter for eight minutes.  In addition to the binder used to bind his breasts, Hunter wore clothing he had purchased from the men's department: a brown long sleeved, button down shirt, brown pants, and dress shoes.  Hunter also had a short haircut."  During the interview, Hunter said he could only work part time due to his social security disability award, and that he was not interested in the health benefits associated with the job because he was already receiving social security disability benefits. 

At the end of the interview, Trendle told Hunter that UPS was not then hiring.  Trendle "coded Hunter's application as 'poor interview answers."" The reason given to Hunter for not hiring him was that UPS was not hiring, but evidence showed that the actually did hire several other individuals during the relevant period of time.  Trendle's deposition testimony indicated that Hunter's job history was "problematic," involving jobs of short duration and quitting a package handler job at rival FedEx.  The court pointed out that evidence in the record showed that others hired by UPS during that period had just as "problematic" job histories as Hunter.

In the absence of direct evidence of discriminatory intent, it was Hunter's burden to allege facts supporting a prima facie case of intentional sex discrimination based on the McDonnell Douglas v. Green framework approved by the Supreme Court early in the history of Title VII.  As described by Judge Perry, this would involve alleging facts to show that "(1) he is a member of a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) he was rejected; and (4) after he was rejected, UPS continued to seek applicants with Hunter's qualifications." The district court found that Hunter failed at the very first step, "because there was no evidence that Trendle knew Hunter was transgendered or perceived his as transgendered and discriminated against him on that basis," and the court of appeals agreed.

Because the case was brought as a disparate treatment case, the plaintiff's burden would be to show that the employer intentionally discriminated on a ground prohibited by Title VII.  The court accepts the growning body of precedent that discriminate due to the applicant's gender non-conformity is a form of sex discrimination, but points out that for intentional discrimination to be established, the plaintiff must show that the employer perceived him to be gender non-conforming. 

"In some cases," wrote Perry, "the claimant's protected status is obvious and it is reasonable to assume the employer was aware of such status, for example, if a woman is nine months pregnant with a protruding stomach she makes no attempt to conceal, awareness can be presumed" in a pregnancy discrimination case.  "But here the evidence does not show that it was obvious that Hunter was born female and attempting to deviate from his traditional gender stereotypes.  In cases of discrimination based on a protected status that is not necessarily obvious, as is sometimes the case with religion or national origin, the employee must show that the employer was sufficiently aware of the employee's status to have been capable of discriminating based on it."

The court pointed out that Hunter had not begun any surgical procedures, had any facial hair, or told Trendle that he "identified as male or transgendered," or that anything Trendle said indicated awareness that Hunter's gender identity was different from that suggested by the name under which he was applying, Jennifer.  "Many fashion trends have called for women to wear short haircuts, men's clothes, or men's shoes," wrote the judge.  "To hang a rule of law on fashions that may change with the times would create an unworkable rule.  Although there is no particular type of evidence that is required to establish a prima facie case of gender or sexual orientation discrimination, some evidence that Trendle was aware of Hunter's protected status was required."

Furthermore, the court found, even if Hunter had been able to plead a prima facie case, which under McDonnell Douglas would create a presumption of discriminatory intent, the employer had adequately rebutted this presumption by the reasons it gave for not offering Hunter a job.  "UPS contends both that Hunter gave poor interview responses and that he had a poor job history," wrote Perry.  This would be enough to place the burden on Hunter of establishing that these reasons were pretextual.  The court was unwilling to infer pretext based on the various holes that Hunter was able to poke in Trendle's testimony, and found that Hunter had not raised a genuine issue of material fact on the issue of pretext that might have defeated the summary judgment motion. 

This part of the court's decision is a bit difficult to follow logically.  Even though none of the individual points that Hunter raised might by themselves be sufficient to support a conclusion that UPS was intentionally discriminating against Hunter, taken together they do suggest a pattern, but the court was unwilling to connect those dots. Hunter had shown that Trendle lied when telling Hunter that UPS was not hiring for the position in question, that UPS had hired other people with similarly poor job histories or even no job history, and that the hiring process appeared to be mostly subjective and thus open to manipulation, but the court found that none of those factors, individually considered, would necessary support a conclusion of intentional discrimination.

"UPS stated legitimate non-discriminatory reasons for not hiring Hunter," wrote Judge Perry, "and Hunter failed to show that a genuine issue of fact exists as to whether those reasons were pretextual.  Summary judgment was appropriate."

The Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), Intervenor-Defendant, filed a petition for certiorari with the Supreme Court on June 29, seeking review of the 1st Circuit

The ACLU has filed suit in the U.S. District Court for the Middle District of North Carolina seeking a declaration that North Carolina

The New York Court of Appeals

Judge Barbara S. Jones of the U.S. District Court for the Southern District of New York (Manhattan) ruled on June 6 that Edie Windsor, the surviving spouse of Thea Spyer, is entitled to a refund of estate taxes of $363,053 plus interest from the Internal Revenue Service (IRS) because she is entitled to the spousal exemption based on their Canadian marriage. 

 Finding that the federal definition of marriage in Section 3 of the Defense of Marriage Act (DOMA) violates the 5^th Amendment

While preparing to give a talk at my synagogue on the current legal status of same-sex marriage in the United States to mark the beginning of Gay Pride Month 2012 and the forthcoming first anniversary of the enactment of the New York Marriage Equality Law, I decided to put together a chronology of same-sex marriage legal developments in the United States over the past five months of 2012. I was amazed at how much has happened in this relatively brief period of time, culminating, of course, in the May 31 decision by the U.S. Court of Appeals for the 1st Circuit, holding that Section 3 of the Defense of Marriage Act (DOMA)violates the 5th Amendment of the Constitution by denying equal protection of the law to same-sex couples who marry under state law. Section 3 of DOMA, which was enacted in 1996, provides that for all purposes of federal law,

Over the past week I've enjoyed several really terrific concerts that I will briefly mention here.

On Saturday night, April 21, I attended the last performance of the Miller Theatre Early Music Series for this concert season.  The British group Stile Antico, a vocal ensemble of six women and six men who perform primarily Renaissance polyphony without a conductor, presented a survey of 16th and early 17th century music at the Church of St. Mary and Virgin in Times Square.  Ranging from Nicolas Gombert through Hieronymus Praetorius, they sang with wonderful precision and beauty, filling the resonant church with a large sound, perhaps less precise at times than the conductor-led Tallis Scholars, a group of similar size, but with greater warmth.  (The Tallis Scholars, who sing the same repertory, tend to focus more on precision and clarity.  Stile Antico strives more for warmth and color.)  After hearing the concert, I pulled out their latest Harmonia Mundi recording, which I had purchased recently but hadn't yet heard, and was delighted to have this permanent souvenir of a great performance, although the repertory differed somewhat.

On Friday evening, April 27, I went to the Church of St. Ann and the Holy Trinity, on Montague Street in Brooklyn, for a Five Boroughs Music Festival concert commemorating the 400th anniversary of the death of Giovanni Gabrieli, the great Italian Renaissance master.  The concert was a collaboration of three ensembles: New York Polyphony, a four-man choir; TENET, a vocal ensemble with theorbo accompaniment; and Dark Horse Consort, a wind group featuring cornetto and three sackbuts (Renaissance trombones).  When they all performed together, they made quite an overwhelming effect in the slightly dry acoustic of the church.  (Unlike St. Mary the Virgin, which is very resonant, St. Ann has a more focused acoustic, just right for Gabrieli.)  The various ensembles performed separately and in combinations, and they made use of the side balconies for as well as the central performing space, the movement of forces adding variety to the program.  After a large-scale Gabrieli motet, they performed selections by Gabrieli's uncle and teacher, Andrea, and his master Orlando di Lasso, to set the stage for an interesting survey of music by Giovanni, culminating is his splendid Magnificat for 12 Parts, which engaged all the players.  A unifying force for much of the program was the expert theorbo playing of Hank Heijink.  I've managed to hear all these musicians at various times, and admire them all.  New York Polyphony is a regular participant in the Miller Theatre Early Music Series, and TENET has a splendid series at St. Ignatius on the Upper West Side (where the entire group repeated the Gabrieli program the next night). 

The following evening, Saturday, April 28, I had a change of pace with Orpheus Chamber Orchestra at Carnegie Hall, the program featuring a world premiere of a commissioned piece by Alex Mincek, "Pendulum IX: 'Machina/Humana'", and violin soloist Viviane Hagner in Henri Vieuxtemps' Concerto No. 5 and Beethoven's Romance No. 2.  They began with a novelty – Franz Schreker's Scherzo for String Orchestra, composed shortly after the composer's graduation from the Vienna Conservatory around 1900.  This was a light confection that provided a welcome introduction to the evening.  Hagner was a gracious soloist in Beethoven, and fiery in Vieuxtemps.  We rarely hear Vieuxtemps' music, which has lost out in the repertory battle to Bruch No. 1 and St.-Saens No. 3, but it is worth an occasional hearing.  The man came up with good tunes – just not quite as memorable or interestingly-worked-out as the aforementioned.  Mincek's piece was unusually engaging for something that did not aspire to tunes at all; it was more an essay in rhythm and sonority without fixed tonality, but listener-friendly all the same, with jazzy flourishes and nice accents from a variety of odd percussion instruments.  At the end, Orpheus gave a vigorous reading to Mozart's Symphony in G Minor, K. 550.  This was the only performance where I felt the lack of a conductor; they really needed somebody to balance the winds and the small string body, especially since they played the revised version with added clarinets.  Many times, especially in tutti passages, I felt that the winds should have been restrained a bit and the violins – especially the first violins – to play out more as their important lines were overcome, at least from my Row A dress circle vantage point.  Perhaps whatever balancing they did in rehearsal in an empty hall just didn't translate well into Carnegie with an audience.  I could not fault them on tempi, ensemble, or expressiveness.  (My one regret about the use of the revised version is that much of the oboe part gets transferred to the clarinets, and Mozart wrote so beautifully for the oboes in the original version….)

On Sunday afternoon, April 29, it was the season's final installment of Classics Declassified, the American Symphony Orchestra's lecture/concert series on major repertory works, this time Bela Bartok's Concerto for Orchestra.  This is held at Symphony Space on the Upper West Side, a congenial auditorium for this kind of program with, unfortunately, less than competent ushering and management at times.  (The refreshment vendor noisily closing up after intermission during the music, ushers seating late-comers during the lecture, etc.  I shouldn't really single out Symphony Space on this – the ushering at Carnegie Hall is frequently just as incompetent.)  On this occasion, I was less impressed than usual with Leon Botstein's lecture.  It seemed to jump around back and forth between biographical and musical points without much discernible organization, and I thought there were many interesting things one could say about this piece that were omitted.  Much was redeemed by the performance, however.  The ASO is not the kind of super-virtuoso ensemble that can play this piece without any signs of strain – they were pushed at times – but they got through it with plenty of spirit and it was fun to hear.  Next year, Classics Declassified will focus on Richard Wagner and his influence on other composers, beginning with Richard Strauss's Alpine Symphony, continuing with Bruckner's 8th Symphony, and concluding with a program of what Bernard Shaw used to call "Bleeding Chunks," orchestral excerpts from some of Wagner's operas.  It should be fun, and is definitely worth subscribing to the three-Sundays series.

Finally, on Monday night, I was happy to accept an invitation from the New York Philharmonic to attend a special chamber music evening for donors to the orchestra.  We were blessed with the presence of one of the great virtuosi of the Philharmonic, principal oboist Liang Wang, who performed the Six Metamorphoses after Ovid for Oboe solo (unaccompanied) by Benjamin Britten.  He provided introductory comments to the piece and then a few remarks prior to each of the six variations depicting various characters who play a role in Ovid's narrative.  Next we heard a Duo in G, K. 423, for violin and viola by Mozart, skillfully rendered by NY Philharmonic members Lisa Kim and Robert Rinehart.  Finally, Wang, Kim and Rinehart were joined by NY Philharmonic cellist Eileen Moon for a thrilling performance of Mozart's Quartet for Oboe and Strings, K. 370, a super workout for the oboe soloist that was played with great brilliance and warmth.  A memorable way to conclude this string of great performances spread over more than a week.

Here's a neat idea.  We know that "The Iliad" and "The Odyssey" were originally lengthy poems recited by rhapsodes to audiences in Greek taverns and other gathering places, passed down and refined over generations until somebody finally transcribed them and attributed them to Homer, about whom virtually nothing is known.  Lisa Peterson had the idea of attempting to recreate in a modern way the idea of a rhapsode – a lyrical reciter – relating the tale of "The Iliad" in a dramatic staging – one actor on the stage – and enlisted actor Denis O'Hare in her project.  Together they put composed an approximately 100-minute long version, based on the Robert Fagles translation, and also enlisted actor Stephen Spinella in the project. 

The production has been presented several times since 2006 in a variety of settings, sometimes with O'Hare as the rhapsode, sometimes with Spinella.  Now they are settled in for a run at New York Theatre Workshop on East 4th Street, with O'Hare and Spinella alternating.  O'Hare opened the production on March 6, and Spinella played his premiere on March 7.  I attended the March 7 performance.

This is an extraordinary experience.  I found myself totally wrapped up in the narrative for the full 100 minutes.  I imagine the experience differs significantly depending upon which of the actors is performing, and I'm a fan of both of them, so now I'm thinking that if there is a way to find the time in my schedule it would be terrific to go again to experience O'Hare's presentation.  Just to avoid false impressions, I have to add that they present this in modern dress – the actors are not impersonating Homer or an ancient Greek rhapsode, just appropriating the role in a modern context.  There is original music by Mark Bennett, some pre-recorded, but much of it performed live on a balcony to the left of the theater by the virtuoso double bass player Brian Ellingsen.  Peterson directs, and it is quite amazing the variety of experience one can get from one talented actor working with one director to bring this class story to vivid life.

This one gets my highest recommendation.  I don't know how long the run will be, but I would not hesitate if you are interested.  The NY Times reviewed it this morning, which is likely to stimulate quite a bit of interest, and it's a small theater, so hesitators may be out of luck.

U.S. District Judge Harry D. Leinenweber (N.D. Ill.) ruled on January 5, 2012, in Revelis v. Napolitano, 2012 WL 28765, that an action by a married same-sex couple seeking a declaration that Section 3 of the Defense of Marriage Act is unconstitutional in the context of their application for a spousal visa meets the requirements for Article III jurisdiction, even though their application has not yet been denied by the United States Citizenship & Immigration Service (USCIS), a unit of the Homeland Security Department. Judge Leinenweber also granted an application by the Bipartisan Legal Advisory Group of the House of Representatives to intervene as a defendant in the case, inasmuch as the named defendants, pursuant to last year

Ruling on February 9, 2012, the Fifth Section of the European Court of Human Rights rejected the free speech claims of four Swedish men who had been convicted of violating a Swedish statute making it a crime to distribute a statement or communication that