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Sexual Orientation Discrimination Under Title VII in the 2nd Circuit: A Work in Progress

Posted on: May 11th, 2017 by Art Leonard No Comments

As the 2nd Circuit Court of Appeals ponders three petitions asking for en banc consideration of the question whether Title VII of the Civil Rights Act of 1964 can be interpreted to ban sexual orientation discrimination as a form of sex discrimination, a federal trial judge in Manhattan has ruled that “in light of the evolving state of the law,” it would be “imprudent” for the court to grant a motion to dismiss a gay plaintiff’s sexual orientation discrimination claim.

Senior District Judge Alvin K. Hellerstein, appointed by Bill Clinton in 1998, issued his ruling in Philpott v. State University of New York on May 3, the day after the third en banc petition was filed.   An en banc hearing in the 2nd Circuit involves participation by all eleven active judges in the circuit, plus any senior judges who participated in a three-judge panel decision that is being reheard en banc.  Appeals are normally heard by three-judge panels, which are bound to follow existing circuit precedents.  Only an en banc panel (or the Supreme Court) can reconsider and reverse such precedents.

The 2nd Circuit ruled in 2000, in the case of Simonton v. Runyon, that Title VII could not be interpreted to forbid sexual orientation discrimination.  This holding was reiterated by a second panel in 2005, in Dawson v. Bumble & Bumble, and yet again this year on March 27 in Christiansen v. Omnicom Group.  However, the 2nd Circuit’s Chief Judge, Robert Katzmann, who was sitting as a member of the panel in Christiansen, wrote a concurring opinion, joined by one of the other judges, arguing that the issue should be considered en banc in “an appropriate case.”  Katzmann’s discussion basically embraced the arguments articulated by the Equal Employment Opportunity Commission in its 2015 decision holding that David Baldwin, a gay air traffic controller, could bring a sexual orientation discrimination claim under Title VII against the U.S. Department of Transportation.

The first of the en banc petitions was filed on April 19 in Cargian v. Breitling USA, Inc., in which another Manhattan trial judge, George B. Daniels, dismissed a gay watch salesman’s Title VII sexual orientation discrimination claim, finding that 2nd Circuit appellate precedents binding on the court rejected sexual orientation claims as a form of sex discrimination.  Judge Daniels ruled on September 29, 2016, and Frederick Cargian filed an appeal to the 2nd Circuit.  When the Christiansen decision was issued on March 27, it became clear that Cargian’s appeal to a three-judge panel would be a waste of time and judicial resources, and the American Civil Liberties Union, representing Cargian along with the New York Civil Liberties Union and solo plaintiffs’ attorney Janice Goodman, decided to petition the Circuit to take the case up directly en banc.

The second petition was filed on April 28 by Matthew Christiansen’s attorney, Susan Chana Lask.   The three-judge panel in Christiansen’s case had refused to allow the case to continue on a sexual orientation discrimination theory, but had concluded that it was possible that Christiansen would be able to proceed under a gender stereotype theory.  The panel clarified the 2nd Circuit’s approach in such cases, rejecting the trial judge’s conclusion that if the factual allegations suggest that sexual orientation played a role in the discrimination suffered by the plaintiff, he would be not be allowed to proceed under Title VII.  The trial court’s approach overlooked an important element of Title VII, an amendment adopted in 1991 providing that a plaintiff is entitled to judgment if sex is a “motivating factor” in his or her case, even if other factors contributed to the employer’s discriminatory conduct.  The Supreme Court ruled in 1989 that discriminating against an employee because the employee fails to conform to gender stereotypes is evidence of discrimination because of sex.  In such a case, the sexual orientation of the plaintiff would be irrelevant, so long as the plaintiff could show that gender stereotyping was a motivating factor in their mistreatment.

At first it appeared that Christiansen would not seek en banc review, despite Judge Katzmann’s concurring opinion, as the panel unanimously voted to send the case back to the district court for consideration as a gender stereotyping case. Attorney Lask was quoted in newspaper reports as preparing to proceed to trial on the stereotyping theory.  The ACLU’s en banc petition changed the game plan, evidently, and Christiansen’s en banc petition was filed on April 28.

Meanwhile, on April 18, a different panel of the 2nd Circuit decided Zarda v. Altitude Express, once again holding that a gay plaintiff could not advance a sexual orientation discrimination claim under Title VII.  Gregory Antollino, an attorney for an executor of the Estate of Donald Zarda, a gay skydiving instructor who had died in a skydiving accident after the being discharged from his employment, filed a petition for en banc rehearing on May 2, with Stephen Bergstein of Bergstein & Ullrich as co-counsel representing a co-executor.

The very next day Judge Hellerstein issued his ruling, allowing Jeffrey Philpott, the gay former Vice President of Student Affairs at the State University of New York’s College of Optometry to pursue his Title VII sexual orientation discrimination, hostile environment and retaliation claims. Judge Hellerstein rejected the defendant’s alternative argument that even if sexual orientation discrimination is covered by Title VII, Philpott’s factual allegations were insufficient to support his claims.  However, Judge Hellerstein joined with several other district judges within the 2nd Circuit in ruling that an employee of an educational institution may not bring an employment discrimination claim under Title IX of the Education Amendments of 1992, which bans sex discrimination by educational institutions that receive federal money.  Although the plain language of Title IX can be interpreted to cover employment discrimination claims, Hellerstein agreed with other courts that have found that Congress did not intend to supplant Title VII, with its specific time deadlines and administrative exhaustion requirements, for employees of educational institutions who have sex discrimination claims.

After briefly describing the 2nd Circuit precedents, Hellerstein noted defendant’s argument that the court must dismiss the sexual orientation claims, and also Philpott’s request for leave to file an amended complaint focused on gender stereotyping.  “Neither relief is appropriate,” wrote the judge.  “The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon.  In light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper.”

Hellerstein then provided a summary of Judge Katzmann’s Christiansen concurrence, which he referred to more than once as a “majority concurrence” as it was signed by two of the three panel members. Hellerstein pointed to the 7th Circuit Court of Appeals en banc decision in Hively v. Ivy Tech Community College, issued on April 4, in which “the Seventh Circuit became the first Court of Appeals to unequivocally hold that ‘discrimination on the basis of sexual orientation is a form of sex discrimination’ and therefore cognizable under Title VII.”

“Among other reasons,” wrote Hellerstein, “the Seventh Circuit made this ruling ‘to bring our law into conformity with the Supreme Court’s teachings.’ The Seventh Circuit was also compelled by ‘the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex.’”

Hellerstein asserted that because Philpott “has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial.  I decline to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country.”

A few days after Hellerstein’s ruling, another panel of the 2nd Circuit avoided dealing with the same question in Magnusson v. County of Suffolk, an appeal from a May 2016 ruling by District Judge Sandra Feuerstein in the Eastern District of New York (Long Island).  Judge Feuerstein had rejected Arline Magnussen’s sexual orientation harassment Title VII claim on alternative grounds: that 2nd Circuit precedent does not allow sexual orientation claims, and that the employer could not be held liable under Title VII because Magnussen had unreasonably failed to invoke the employer’s internal grievance procedure to deal with her harassment complaint.  In a short memorandum signed by the Clerk of the Court, the 2nd Circuit ruled on May 11 that it need not address the Title VII interpretation issue in light of the district court’s finding that the employer could not held liable for whatever harassment the plaintiff might have suffered.

In terms of en banc review, in both Cargian and Zarda the court would face a case where the only stereotyping claim that would be viable would be that as gay men the plaintiffs did not conform to the stereotype that men should be attracted to women, so it would have to deal directly with the question whether sexual orientation is, as the EEOC stated and the 7th Circuit accepted, “necessarily” sex discrimination.  In Christiansen, the appellate panel found that the plaintiff might invoke other gender stereotype issues to make a viable claim under Title VII under the Circuit’s existing precedents, thus providing a less certain vehicle for getting the Circuit to confront the central legal issue.

If the 2nd Circuit grants the Christiansen or Cargian petitions, the en banc panel would consist of the eleven active members of the court.  If it grants the Zarda petition, those judges could be joined by two senior judges, Robert Sack and Gerard Lynch, who sat on the three-judge panel.  Of the eleven active judges, a majority were appointed by Democratic presidents: three by Clinton and four by Obama.  If the senior judges are added, a thirteen-member panel would include four appointed by Clinton and five appointed by Obama.  It is not clear from the Circuit’s published rules whether the senior judges could participate if the Circuit decides to consolidate the cases for rehearing en banc, but it is possible that they could only participate in deciding the Zarda case.

Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law

Posted on: April 27th, 2017 by Art Leonard No Comments

Arthur S. Leonard, Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law, New York Law School, April 26, 2017

A Battle Over Statutory Interpretation: Title VII and Claims of Sexual Orientation and Gender Identity Discrimination

I feel particularly honored to have my name associated with that of United States Senator Robert F. Wagner, Sr., NYLS Class of 1900, a hero of the New Deal whose legislative leadership gave us such important achievements as the National Labor Relations Act – commonly known among labor law practitioners as the Wagner Act – and the Social Security Act — laws that have shaped our nation for generations.   Senator Wagner was an immigrant who made an indelible mark on the United States. I hope that in some small way I have made a contribution that makes this named chair fitting.

I decided to select a topic for this talk that would bring together the two major areas of my teaching and scholarship: labor and employment law, and sexuality law. These intersect in the question whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination against an individual because of his or her sex, will be open to claims by job applicants and workers that they have suffered discrimination because of their sexual orientation or gender identity. We are at a decisive point in the judicial battle over that question, having achieved just weeks ago the breakthrough of our first affirmative appellate ruling on the sexual orientation question, following several years of encouraging developments on the gender identity question.

To understand the significance of this, we have to go back more than half a century, to the period after World War II when the modern American gay rights movement began stirring with the protests of recent military veterans against unequal benefits treatment, with the formation of pioneering organizations like the Mattachine Society in Los Angeles and New York and The Daughters of Bilitis in San Francisco, and with the vital behind-the-scenes work undertaken by gay scholars as the great law reform effort of the Model Penal Code was being launched by the American Law Institute. That postwar period of the late 1940s and 1950s played out alongside the rise of the Civil Rights Movement, for which the passage of the Civil Rights Act of 1964 was a signal achievement.

The early gay rights advocacy groups had their lists of goals, and some kind of protection against discrimination was prominent among them, but that task seemed monumental, at a time when there was no federal statute prohibiting employment discrimination of any kind. Until Illinois adopted the Model Penal Code in 1960, which effectively repealed criminal sanctions for private consensual gay sex, it was a crime in every state; a serious felony with long prison sentences in many. President Dwight Eisenhower issued an executive order shortly after taking office banning the employment of “homosexuals” and “sexual perverts” in the federal civil service. A major immigration law passed during the 1950s for the first time barred homosexuals from immigrating to the U.S. and qualifying for citizenship by labeling us as being “afflicted by psychopathic personality,” making us excludable on medical grounds. The military barred gay people from serving on similar grounds, and many lines of work that required state licensing and determinations of moral fitness systematically excluded LGBT people. To be an ‘openly gay’ lawyer or doctor was virtually unthinkable in the 1950s and on into the 1960s.

When Congress was considering the landmark civil rights bill, first introduced during the Kennedy Administration and shepherded into law by Lyndon Johnson, the idea that lesbians, gay men, bisexuals and transgender people might seek or obtain assistance rather than condemnation from Congress seemed a pipe dream. None of the legislators involved with the bill proposed protecting members of these groups from discrimination. Title VII, the provision of the bill dealing with employment discrimination, was limited in its original form to discrimination because of race or color, religion, or national origin. A floor amendment, introduced by Howard Smith of Virginia, a conservative Southern Democrat who was opposed to the bill, proposed to add “sex” to the prohibited grounds for discrimination. The amendment carried, the bill passed, and it went to the Senate where it was held up by one of the longest filibusters in history – at a time when filibusters involved unbroken floor debate by the opponents of a pending measure, with no vote on the merits until the Chamber was thoroughly exhausted and no opponent could be found to continue speaking. The leadership of the Senate, trying to avoid having the bill bottled up in committees headed by conservative senior Southern senators, had sent the bill direct to the floor with a tight limit on amendments. Thus committee reports that would have provided a source of legislative history on the meaning of “sex” in the bill are missing. The only floor amendment relating to the addition of “sex” to Title VII was to clarify that pay practices that were authorized under the Equal Pay Act, which had been passed the year before, would not be held to violate Title VII. The statute contained no definition of “sex,” and in the early years after its passage, the general view, held by the courts and the Equal Employment Opportunity Commission, was that the ban on sex discrimination simply prohibited employers from treating women worse than men – with little agreement about what that meant. In fact, in an early interpretive foray, the Supreme Court decided that Title VII did not prohibit discrimination against women because they became pregnant. The resulting public outcry inspired Congress to amend the statute to make clear that discrimination against a woman because of pregnancy or childbirth was considered to be discrimination because of sex.

Early attempts by gay or transgender people to pursue discrimination claims under Title VII all failed. The EEOC and the courts agreed that protecting people from discrimination because of their sexual orientation or transgender status was not intended by Congress. They embraced a literalistic “plain language” interpretation of Title VII, including a narrow biological understanding of sex.

But something began to happen as the courts considered a wider variety of sex discrimination claims. It became clear that a simplistic concept of sex would not be adequate to achieve the goal of equality of opportunity in the workplace. Legal theorists had been advancing the concept of a “hostile environment” as a form of discrimination, first focusing on the open hostility that many white workers showed to black, Latino and Asian workers in newly-integrated workplaces. During the 1970s the courts began to expand that concept to women who experienced hostility in formerly all-male workplaces as well. Lower federal courts were divided about whether such “atmospherics” of the workplace could be considered terms or conditions of employment when they didn’t directly involve refusals to hire or differences in pay or work assignments. Finally the Supreme Court broke that deadlock in 1986, holding in Meritor Savings Bank v. Vinson that a woman who experienced workplace hostility so severe that it could be said to affect her terms and conditions of employment would have a sex discrimination claim under Title VII, and subsequent cases clarified that the plaintiff did not have to show a tangible injury, although a finding that working conditions were so intolerable that a reasonable person would quit would clearly meet the test of a hostile environment. Some courts began to extend this reasoning to complaints by men, in situations where male co-workers subjected them to verbal and even physical harassment.

The Court also began to grapple with the problem of sex stereotypes, and how easily employers and co-workers could fall into stereotyped thinking to the disadvantage of minorities and women. Stereotypes about young mothers’ ability to balance work and home obligations, stereotypes about the ability of women to do physically challenging working, stereotypes about female longevity and the costs of retirement plans – all of these issues came before the Court and ultimately led it to expand the concept of sex discrimination more broadly than legislators of the mid-1960s might have imagined.

The key stereotyping case for building a theory of protection for sexual minorities was decided in 1989 – Price Waterhouse v. Hopkins. Ann Hopkins’ bid for partnership was denied because some partners of the firm considered her inadequately feminine. They embraced a stereotype about how a woman partner was supposed to look and behave. Hopkins, with her loud and abrasive manner and appearance, failed to conform to that stereotype. Communicating the firm’s decision to pass over her partnership application, the head of her office told her she could improve her chances for the next round by dressing more femininely, walking more femininely, toning down her speech, wearing make-up and jewelry, having her hair styled. Her substantial contributions to the firm and her leadership in generating new business counted for little, when decision-makers decided she was inadequately feminine to meet their expectations. In an opinion by Justice William J. Brennan, Jr., the Court accepted Hopkins’ argument that allowing such considerations to affect the partnership decision could be evidence of a prohibited discriminatory motivation under Title VII. The Court’s opinion embraced the idea that discrimination because of “gender,” not just discrimination because of biological sex, came within the scope of Title VII’s prohibition. The statutory policy included wiping away gender stereotypes that created barriers to equal opportunity for women in the workplace.

Although Ann Hopkins was not a lesbian and nothing was said about homosexuality in her case, the implications of the ruling became obvious over time as federal courts dealt with a variety of stereotyping claims. A person who suffered discrimination because she did not appear or act the way people expected a woman to appear or act was protected, and that sounded to lots of people like a description of discrimination against transgender people and some – but perhaps not all – lesbians, gay men and bisexuals. The argument seemed particularly strong when an employer discriminated against a person who was hired appearing and acting as a man and then began to transition to living life as a woman.

At the same time, legal academics had begun to publish theoretical arguments supporting the idea that discrimination against gay people was a form of sex discrimination. Among the earliest were Professor Sylvia Law of New York University, whose 1988 article in the Wisconsin Law Review, titled “Homosexuality and the Social Meaning of Gender,” suggested that anti-gay discrimination was about “preserving traditional concepts of masculinity and femininity. Law’s pioneering work was quickly followed by the first of many articles by Andrew Koppelman, first in a student note he published in the Yale Law Journal in 1988 titled “The Miscegenation Analogy: Sodomy Law as Sex Discrimination,” later in his 1994 article in the New York University Law Review titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination.” Both Koppelman, now a professor at Northwestern University, and Law proposed theoretical arguments for treating anti-gay discrimination as sex discrimination.

Seizing upon the Price Waterhouse precedent, transgender people and gay people began to succeed in court during the 1990s by arguing that their failure to conform to gender stereotypes was the reason they were denied hiring or continued employment, desirable assignments or promotions. A strange dynamic began to grow in the courts, as judges repeated, over and over again, that Title VII did not prohibit discrimination because of sexual orientation or gender identity, as such, but that it did prohibit discrimination against a person because of his or her failure to conform to gender stereotypes and expectations, regardless of the plaintiff’s sexual orientation. Many of the courts insisted, however, that there was one gender stereotype that could not be the basis of a Title VII claim – that men should be attracted only to women, and women should be attracted only to men. To allow a plaintiff to assert such a claim would dissolve the line that courts were trying to preserve between sex stereotyping claims and sexual orientation or gender identity discrimination claims. Decades of past precedents stood in the way of acknowledging the unworkability of that line.

Ten years after the Price Waterhouse decision, the Supreme Court decided another sex discrimination case, Oncale v. Sundowner Offshore Services, with an opinion by Justice Antonin Scalia that helped to fuel the broadening interpretation of Title VII. The 5th Circuit Court of Appeals had ruled that a man who is subjected to workplace harassment of a sexual nature by other men could not bring a hostile environment sex discrimination claim under Title VII. The court of appeals reasoned that Congress intended in 1964 to prohibit discrimination against women because they were women or men because they were men, and that such a limited intent could not encompass claims of same-sex harassment, which would be beyond the expectations of the legislators who passed that law. In reversing this ruling, Justice Scalia, who was generally skeptical about the use of legislative history to interpret statutes, wrote for the Court that the interpretation of Title VII was not restricted to the intentions of the 1964 Congress. While conceding that same-sex harassment was not one of the “evils” that Congress intended to attack by passing Title VII, he wrote:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits discrimination because of sex in employment. This must extend to sex-based discrimination of any kind that meets the statutory requirements.”

Thus, as our collective, societal understanding of sex, gender, sexuality, identity and orientation broadens, our concept of sex discrimination as prohibited by Title VII also broadens. With the combined force of Price Waterhouse and Oncale, some federal courts began to push the boundaries even further during the first decade of the 21st century.

By the time the Equal Employment Opportunity Commission ruled in 2012 in Macy v. Holder, a federal sector sex discrimination case, that a transgender plaintiff could pursue a Title VII claim against a division of the Justice Department, its opinion could cite a multitude of federal court decisions in support of that conclusion, including two Title VII decisions by the 6th Circuit Court of Appeals involving public safety workers who were transitioning, and a 2011 ruling by the 11th Circuit Court of Appeals that a Georgia state agency’s discrimination against an employee because she was transitioning violated the Equal Protection Clause as sex discrimination. There were also federal appellate rulings to similar effect under the Equal Credit Opportunity Act and the Violence against Women Act, as well as numerous trial court rulings under Title VII. So the EEOC was following the trend, not necessarily leading the parade, when it found that discrimination against a person because of their gender identity was a form of sex discrimination.

After the Supreme Court’s landmark ruling in Lawrence v. Texas in 2003, striking down a state sodomy law under the 14th Amendment, and further rulings in 2013 and 2015 in the Windsor and Obergefell cases, leading to a national right to marry for same-sex couples, the persistence by many courts in asserting that Title VII did not prohibit sexual orientation discrimination appeared increasingly archaic. Just weeks after the Obergefell decision, the EEOC issued another landmark ruling in July 2015, David Baldwin v. Anthony Foxx, reversing half a century of EEOC precedent and holding that sexual orientation discrimination claims were “necessarily” sex discrimination claims covered by Title VII. The Commission ruled that a gay air traffic controller could bring a Title VII claim against the Department of Transportation, challenging its refusal to hire him for a full-time position at the Miami air traffic control center because of his sexual orientation.

Building on the Price Waterhouse, Oncale and Macy decisions, the EEOC embraced several alternative theories to support this ruling. One was the now well-established proposition that an employer may not rely on “sex-based considerations” or “take gender into account” when making employment decisions, unless sex was a bona fide occupational qualification – a narrow statutory exception that is rarely relevant to a sexual orientation or gender identity case.

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” wrote the EEOC. “Sexual orientation as a concept cannot be defined or understood without reference to sex. Sexual orientation is inseparable from and inescapably linked to sex and, therefore, allegations of sexual orientation discrimination involve sex-based considerations.” By the summer of 2015, the agency was able to cite several federal trial court decisions applying these concepts in particular cases.

Another theory was based on the associational discrimination theory. Courts had increasingly accepted the argument that discrimination against a person because he or she was in an interracial relationship was discrimination because of race. The analogy was irresistible: Discriminating against somebody because they are in a same-sex relationship must be sex discrimination, because it involved taking the employee’s sex into account. Denying a job because a man is partnered with a man rather than with a woman means that his sex, as well as his partner’s sex, was taken into account by the employer in making the decision.

Finally, the Commission embraced the stereotyping theory that some courts had refused to fully embrace: that sexual orientation discrimination is sex discrimination because it necessarily involves discrimination based on gender stereotypes, not just those involving appearance, mannerisms, grooming, or speech, but also stereotypes about appropriate sexual attractions. Quoting a Massachusetts federal trial court ruling, the agency wrote, “Sexual orientation discrimination and harassment are often, if not always, motivated by a desire to enforce heterosexually defined gender norms. . . The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real’ men should date women, and not other men.” Professor Law’s theoretical proposition of 1988 was now surfacing in court and agency rulings a quarter century later.

The EEOC also rejected the view that adopting this expanded definition of sex discrimination required new congressional action, pointing out that the courts had been expanding the definition of sex discrimination under Title VII continually since the 1970s, with minimal intervention or assistance from Congress.

Since 2015 the issue of sexual orientation discrimination under Title VII has risen to the level of the circuit courts of appeals. In most of the circuits, there are precedents dating back decades holding that sexual orientation claims may not be litigated under Title VII. These precedents are softened in some circuits that have accept discrimination claims from gay men or lesbians who plausibly asserted that their visible departure from gender stereotypes provoked discrimination against them. But many of these appeals courts have strained to draw a line between the former and the latter, and have rejected stereotyping claims where they perceived them as attempts to “bootstrap” a sexual orientation claim into Title VII territory.

Ironically, one judge who emphatically rejected such a case several years ago with the bootstrapping objection, Richard Posner of the 7th Circuit, is the author of a concurring opinion in this new round of circuit court rulings in which he argues that it is legitimate for federal courts to “update” statutes without waiting for Congress in order to bring them into line with current social trends. This was part of the 7th Circuit’s en banc ruling in Kimberly Hively v. Ivy Tech Community College, the April 4, 2017, decision that is the first by a federal appeals court to embrace all aspects of the EEOC’s Baldwin decision and hold that a lesbian could pursue a sexual orientation claim under Title VII. Posner’s argument echoes one made decades ago by Guido Calabresi, then a professor at Yale, now a judge on the 2nd Circuit, in a series of lectures published as a book titled “A Common Law for the Age of Statutes,” in which he argued that legislative inertia would justify courts in updating old statutes to meet contemporary needs. Although Posner did not cite Calabresi’s book, his argument is much the same. He quoted both Justice Scalia’s statement from Oncale and an earlier iteration of similar sentiments in an opinion by Justice Oliver Wendell Holmes from 1920, in which Holmes wrote: “The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The federal circuit courts follow the rule that when a three-judge panel of the circuit interprets a statute, it creates a binding circuit precedent which can be reversed only by the full bench of the court in an en banc ruling, or by the Supreme Court, or by Congress changing the statute. The Hively ruling reversed a three-judge panel decision that had rejected the plaintiff’s Title VII claim based on prior circuit precedents. The vote was 8-3. Incidentally, 5 of the judges in the 8-member majority were appointees of Republican presidents. The employer in that case quickly announced that it would not seek Supreme Court review, but this ruling creates a split among the circuit courts, so it is only a matter of time before the Supreme Court receives a petition asking for a definitive interpretation of Title VII on this question.

The 7th Circuit opinion by Chief Judge Diane Wood accepted all of the EEOC’s theories from the Baldwin decision. Judge Wood concluded that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” “We hold that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

Dissenting Judge Diane Sykes criticized the majority for deploying “a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.” Here the battle is joined. For the majority, it is appropriate to trace the development of case law over decades, treating the concept of sex discrimination as evolving. For Judge Posner, concurring, it is legitimate for the court to set aside the pretense of ordinary interpretation and to “update” an old statute to reflect contemporary understandings. And for Judge Sykes, these are both illegitimate because it violates the division of authority between the legislature and the courts to adopt an “interpretation” that would be outside the understanding of the legislators who enacted the statute.

Now the scenario is playing out in other circuits. In recent weeks, the Atlanta-based 11th Circuit and the New York-based 2nd Circuit have issued panel rulings refusing to allow sexual orientation discrimination claims under Title VII. The panels did not consider the issue afresh and decided to reaffirm the old rulings on the merits, but rather asserted that they were powerless to do so because of the existing circuit precedents. In both of the cases decided in March, Evans v. Georgia Regional Hospital and Christiansen v. Omnicom Group, the panels sent the cases back to the trial court to see whether they could be litigated as sex stereotyping cases instead of sexual orientation cases. But one judge dissented in the 11th Circuit, arguing that an old pre-Price Waterhouse precedent should not longer be treated as binding. The 2nd Circuit panel rejected the trial judge’s conclusion that because the gay plaintiff’s complaint included evidence that his treatment was tainted by homophobia he could not assert a sex stereotyping claim, and two members of the panel wrote a concurring opinion virtually accepting the EEOC’s view of the matter and suggesting that the circuit should reconsider the issue en banc.. In both cases, the panels took the position that sex stereotyping claims could be evaluated without reference to the sexual orientation of the plaintiff. And, in both of these cases, lawyers for the plaintiffs are asking the circuits to convene en banc benches to reconsider the issue, as a preliminary to seeking possible review in the Supreme Court. A different 2nd Circuit panel has also issued a ruling where sex stereotyping of the sort that is actionable in the 2nd Circuit is not part of the case, and counsel in that case is also filing a petition for en banc review.

One or more of these petitions is likely to be granted. While we may see more en banc rulings in favor of allowing sexual orientation discrimination claims, at some point a new circuit split may develop, leading inevitably to the Supreme Court. Or the issue could get to the Supreme Court by an employer seeking further review, since older rulings in other circuits still present the kind of circuit splits that the Supreme Court tries to resolve.

That leads to the highly speculative game of handicapping potential Supreme Court rulings. Neil Gorsuch’s confirmation restores the ideological balance that existed before Justice Scalia’s death. The Court as then constituted decided the historic same-sex marriage cases, Windsor and Obergefell, with Justice Kennedy, a Republican appointee, writing for the Court in both cases, as well as in earlier gay rights victories, Romer v. Evans and Lawrence v. Texas. These opinions suggest a degree of empathy for gay litigants that might lead Kennedy to embrace an expansive interpretation of Title VII. He is part of a generation of appellate judges appointed by Ronald Reagan during the 1980s who made up half of the majority in the recent 7th Circuit ruling: Richard Posner, Frank Easterbrook, Joel Flaum, and Kenneth Ripple. Another member of that majority, Ilana Rovner, was appointed by Reagan’s successor, George H.W. Bush. This line-up underlies optimism that Kennedy might join with the Clinton and Obama appointees on the Supreme Court to produce a five-judge majority to embrace the EEOC’s interpretation. Such optimism may also draw on Kennedy’s decisive rejection of the argument that legal rules are frozen at the time of their adoption and not susceptible to new interpretations in response to evolving social understandings. This was the underlying theme of his opinions in the four major gay rights decisions.

Since the 1970s supporters of gay rights have introduced bills in Congress to amend the federal civil rights laws to provide explicit protection for LGBT people. None of those attempts has succeeded to date. If the judicial battle reaches a happy conclusion, those efforts might be rendered unnecessary, although there is always a danger in statutory law of Congress overruling through amendment, but that seems unlikely unless the Republicans attain a filibuster-proof majority in the Senate.

On that optimistic note, I conclude with thanks for your attention, and I am happy to answer questions now.

 

2nd Circuit Panel Rejects Sexual Orientation Discrimination Claim Under Title VII, but Revives Sex-Stereotyping Claim by Gay Man

Posted on: March 27th, 2017 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, based in Manhattan, has issued a mixed ruling concerning a gay man’s claim that he was sexually harassed in his workplace in violation of Title VII of the Civil Rights Act of 1964.  In a per curiam opinion in Christiansen v. Omnicom Group, 2017 U.S. App. LEXIS 5278, 2017 WL 1130183, the court ruled on March 27 that plaintiff Matthew Christiansen could not sue under Title VII on a claim of sexual orientation discrimination because of existing circuit precedents, but that he  could maintain his lawsuit on a claim that he was the victim of unlawful sex stereotyping by his employer.  Thus, the case was sent back to U.S. District Judge Katherine Polk Failla (S.D.N.Y.), who last year had granted the employer’s motion to dismiss all federal claims in the case and to decline to exercise jurisdiction over state law claims; see 167 F. Supp. 3d 598.

The ruling on this appeal, which was argued on January 20, was much awaited because it was the first time for the 2nd Circuit to address the sexual orientation issue since the Equal Employment Opportunity Commission (EEOC) reversed its position, held for half a century, and ruled in 2015 that sexual orientation discrimination claims should be treated as sex discrimination claims subject to Title VII, which prohibits discrimination “because of sex.”

In a separate concurring opinion, Chief Judge Robert Katzmann, joined by U.S. District Judge Margo K. Brodie, suggested that if the full 2nd Circuit bench, which can change a circuit precedent, were to consider the question, Katzmann and Brodie would find that sexual orientation discrimination claims can be litigated under Title VII.  The other member of the panel, Circuit Judge Debra Ann Livingston, did not join the concurring opinion.

Christiansen, described in the opinion as “an openly gay man who is HIV-positive,” worked at DDB Worldwide Communications Group, an advertising agency based in New York that is a subsidiary of Omnicom Group. He alleged that his direct supervisor subjected him to humiliating harassment “targeting his effeminacy and sexual orientation.”  This began in the spring and summer of 2011, a time when marriage equality in New York was much in the news as the legislature prepared to vote upon and pass the marriage equality bill.  The supervisor, who is not named in the opinion, “drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard.”  These graphic drawings “depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, ‘I’m so pumped for marriage equality.’”

There was another picture that “depicted Christiansen in tights and a low-cut shirt ‘prancing around.’” Yet another showed his “torso on the body of ‘a four legged animal with a tail and penis, urinating and defecating.’” Later in 2011, the same supervisor “circulated at work and posted to Facebook a ‘Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire,” including Christiansen’s head “attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

The supervisor also made remarks about “the connection between effeminacy, sexual orientation, and HIV status,” and allegedly told other employees that Christiansen “was effeminate and gay so he must have AIDS.”  The supervisor made other references to AIDS in connection with Christiansen, although at the time Christiansen was keeping his HIV-status private.  Christiansen included a disability discrimination claim in his complaint, but the district court found that his factual allegations were not sufficient to maintain a claim under the Americans with Disabilities Act, a conclusion that Christiansen did not appeal.

Christiansen filed a complaint with the EEOC in 2014, describing the harassment in detail, and upon receiving the agency’s notice of right to sue, filed his lawsuit in the federal court in Manhattan, which the defendants quickly moved to dismiss. Christiansen alleged violations of the Americans with Disabilities Act and Title VII for his federal claims, and also alleged violations of New York State and city anti-discrimination laws. The employer argued that his claim under Title VII was really a sexual orientation discrimination claim rather than a gender stereotyping claim, and the district judge agreed.

The state of precedent in the 2nd Circuit has frequently been questioned by federal trial courts in the circuit as confusing and difficult to apply.  The Circuit has ruled that under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), an employee, including a gay or lesbian employee, can bring a sex discrimination claim involving sex stereotyping, but if the court perceives that the employer’s mistreatment of the employee was really due to the employee’s sexual orientation, the claim will be rejected.  These precedents date from 2000 (Simonton v. Runyon, 232 F.3d 33) and 2005 (Dawson v. Bumble & Bumble, 398 F.3d 211).  They predate the Supreme Court’s decisions striking down the Defense of Marriage Act (U.S. v. Windsor, 133 S.Ct. 2675) and state bans on same-sex marriage (Obergefell v. Windsor, 135 S. Ct. 2584), as well as the EEOC’s 2015 ruling recognizing sexual orientation discrimination claims under Title VII.  While none of these later rulings produced a precedent binding on the 2nd Circuit that sexual orientation claims are covered under Title VII, they have “changed the landscape,” as Judge Katzmann wrote in his concurring opinion.

The per curiam opinion premised its holding squarely on the rule that circuit precedents can only be revised or reversed by the Supreme Court or the full circuit bench sitting en banc. Thus, the panel ruled that it was precluded from reconsidering Simonton and Dawson.

However, the panel disagreed with Judge Failla’s conclusion that there was too much about sexual orientation in Christiansen’s complaint to allow him to proceed with a gender stereotyping sex discrimination claim under Title VII. The panel pointed out that the 2nd Circuit has never ruled that gay people may not sue under Title VII when they have substantial evidence of gender stereotyping to present, provided that such evidence is not limited to the argument that sexual orientation discrimination is itself a form of sex stereotyping.  That is, the Title VII claim may not based, under current circuit precedent, on the argument that men loving men and women loving men is a violation of gender stereotypes in and of itself.  In this case, the panel wrote that there were enough allegations of gender stereotyping as such to survive the employer’s motion to dismiss.

“The district court commented that much more of the complaint was devoted to sexual orientation discrimination allegations than gender stereotyping discrimination allegations and that it thus might be difficult for Christiansen to withstand summary judgment or prove at trial that he was harassed because of his perceived effeminacy and flouting of gender stereotypes rather than because of his sexual orientation.” But the court pointed out that Christiansen’s burden at this initial stage of the litigation was not to show that he would prevail at later stages. Rather, it was enough for him to “state a claim that is plausible on its face” that he was subjected to harassment because of non-conformity to male gender stereotypes.

Judge Katzmann noted in his concurrence that because Christiansen was also alleging violations of state and local laws forbidding sexual orientation discrimination as well as a violation of Title VII, it was to be expected that his factual allegations would cover both kinds of claims. While joining in the per curiam opinion, Judge Katzmann wrote separately to express his view “that when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.”

He went on to identify three theories under which sexual orientation discrimination claims should be treated as sex discrimination claims under Title VII, drawing heavily on the EEOC’s 2015 decision. First, he wrote, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.”  The EEOC has observed, he wrote, that “sexual orientation ‘cannot be defined or understood without reference to sex,’ because sexual orientation is defined by whether a person is attracted to people of the same sex or opposite sex (or both, or neither).”  Thus, according to the EEOC, “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The second theory follows a 2nd Circuit ruling from 2008, Holcomb v. Iona College, 521 F.3d 130 (2008), where the circuit formally embraced the associational discrimination theory that other courts have applied in race discrimination cases.  If an employee suffers discrimination because he is involved in an interracial relationship, the courts will recognize his claim of race discrimination in violation of Title VII.  By analogy, discriminating against an employee because of a same-sex relationship is quite simply sex discrimination.  In Price Waterhouse, the Supreme Court had commented that Title VII “on its face treats each of the enumerated categories exactly the same.”  Thus, if employees in interracial relationships are protected from race discrimination, then employees in same-sex relationships should be protected from sex discrimination.

Finally, of course, there is gender stereotyping, including the kind of stereotyping that the 2nd Circuit has not yet accepted as violating Title VII, the stereotype that men should be attracted only to women and women only to men.  “Relying on common sense and intuition rather than any ‘special training,’” wrote Katzmann, “courts have explained that sexual orientation discrimination ‘is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.  In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.’”  Katzmann noted that the circuit in Dawson had pointed out that “stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  He continued, “Having conceded this, it is logically untenable for us to insist that this particular gender stereotype is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse,” and concluded that this particular stereotype about sexual attraction is “as clear a gender stereotype as any.”

At the same time, he rejected the argument, raised by some courts, that because Congress has been considering unsuccessful efforts to pass a federal ban on sexual orientation discrimination since the 1970s, the courts are precluded through interpreting Title VII to ban such discrimination. When the circuit decided Simonton in 2000, it reached the same conclusion that all other federal circuit courts had then reached on this issue.  “But in the years since,” he wrote, “the legal landscape has substantially changed,” citing Lawrence v. Texas, 539 U.S. 558 (the sodomy law case) and Obergefell v. Hodges (the marriage equality case), “affording greater legal protection to gay, lesbian, and bisexual individuals.  During the same period,” he observed, “societal understanding of same-sex relationships has evolved considerably.”  Thus, he wrote, despite the failed legislative proposals, there is “no justification in the statutory language for a categorical rule” excluding sexual orientation claims.

“I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”

The other cases are in the 7th Circuit, where the full bench heard argument on November 30 on this question, and the 11th Circuit, where a petition for en banc review is being filed by Lambda seeking reversal of a 2-1 adverse panel decision issued a few weeks ago.  There is also another panel case argued in January in the 2nd Circuit, although the circuit rule on precedent will likely produce the same result in that case, which does not include a separate gender non-conformity allegation.

Christiansen is represented by Susan Chana Lask, a New York attorney whose Complaint in this case originally cast the federal claim as a sex stereotyping claim. Now that the case is being sent back to the district court to be litigated on the stereotyping theory, the plaintiff need not seek full circuit en banc review to proceed and seek discovery to produce evidence in support of his claim.

The case attracted widespread amicus participation, including a brief filed by the EEOC, another from a long list of civil rights organizations led by the ACLU, and briefs on behalf of 128 members of Congress, the National Center for Lesbian Rights, and Lambda Legal, all arguing that the court should allow the case to proceed as a sexual orientation discrimination case.

Federal Court in NYC Dismisses Sexual Orientation Discrimination Claim under Title VII

Posted on: March 10th, 2016 by Art Leonard No Comments

In 2000, the U.S. Court of Appeals for the 2nd Circuit, which has appellate jurisdiction over cases in the federal trial courts in New York, rejected the argument that sexual orientation discrimination claims could be dealt with as sex discrimination claims under federal law, but was open to the possibility that a gay litigant who had suffered discrimination because of failure to conform with the employer’s stereotypical views of appropriate gender behavior could pursue such a claim.  On March 9, a gay litigant informed the 2nd Circuit that he will appeal a Manhattan trial court’s dismissal of his federal sexual orientation claim, joining the trial judge in urging the appeals court to reconsider its 2000 decision.

Since the 2nd Circuit decided Simonton v. Runyon, 232 F.3d 33 (2000), the law affecting LGBT rights has drastically changed.  In 2003, the Supreme Court ruled that gay sex between consenting adults could no longer be outlawed.  In 2002, New York State joined New York City in outlawing sexual orientation discrimination in employment, housing and public accommodations, and the next year New York City extended the local law to gender identity discrimination claims.  In 2009 the federal government added sexual orientation and gender identity to the national Hate Crimes Law, and subsequently repealed the “don’t ask, don’t tell” anti-gay military policy.   In 2011 New York passed a Marriage Equality Act, in 2013 the Supreme Court ruled that the federal government must recognize same-sex marriages formed under state law, and last year the Supreme Court ruled that same-sex couples are entitled to marry and have their marriages recognized by state governments everywhere in the country.

Through all this change, however, the principal federal anti-discrimination law, the Civil Rights Act of 1964, has never been amended to extend explicit protection against discrimination to LGBT people. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, the employment provisions of the Civil Rights Act, has interpreted the federal ban on sex discrimination as extending to gender identity and sexual orientation discrimination, but federal courts are not bound by that interpretation, and federal trial judges have differed about how to handle sexual orientation discrimination claims.  So far, no federal appeals court has ruled on the question since the EEOC issued its decision last summer, but cases are pending on appeal in several circuits.

On March 9, U.S. District Judge Katherine Polk Failla, ruling on an employer’s motion to dismiss a Title VII claim filed by a gay man in Christiansen v. Omnicom Group, 2016 U.S. Dist. LEXIS 29972, found that his attempt to squeeze the case into the sex stereotype theory was unsuccessful and dismissed his claim, concluding that she was bound by the 2nd Circuit precedent to reject a sexual orientation discrimination claim under Title VII.  Reviewing the facts alleged by Matthew Christiansen against Omnicom Group (the parent company) and DDB Worldwide Communications (the business by which he is employed in New York), the judge found that all but one of the incidents he described in his complaint related to sexual orientation.

Indeed, Christiansen’s allegations clearly state that his supervisor, Joe Cianciotto, was “openly resentful and hostile toward Plaintiff because of his sexual orientation.” The various incidents of harassment that Christiansen described in his complaint all involved Cianciotto’s expression of such hostility in some form.  Only once did he refer to Christiansen as “effeminate,” which might have supported a sex stereotype claim, but most of the time Cianciotto’s razzing focused on Christiansen’s “big muscles” (as described by Cianciotto), pictorial invocations of exaggerated masculinity, and references to gay stereotypes.

Judge Failla focused on the difficulty of distinguishing between sexual orientation and sex stereotyping claims, quoting from several other court decisions illustrating that difficulty, and warning against using passing stereotypical references by a supervisor to “shoehorn” a sexual orientation claim into Title VII coverage.

“The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims,” she wrote. “Yet the prevailing law in this Circuit – and, indeed, every Circuit to consider the question – is that such a line must be drawn.  Simonton is still good law, and, as such, this Court is bound by its dictates.  Consequently, the Court must consider whether the Plaintiff has pleaded a claim based on sexual stereotyping, separate and apart from the stereotyping inherent in his claim for discrimination based on sexual orientation.  The Court finds that he has not.”

Christiansen’s complaint alleges that Ciancotto told a coworker that Christiansen was “effeminate and gay so he must have AIDS,” but this was not enough for Judge Failla. “This is the sole mention of Plaintiff as effeminate or otherwise non-conforming to traditional gender norms in the whole of the [first amended complaint],” she wrote.  “It alone cannot serve to transform a claim for discrimination that Plaintiff plainly interpreted – and the facts support – as stemming from sexual orientation animus into one for sexual stereotyping.  While Plaintiff provides virtually no support in his [complaint] for an allegation of discrimination based on sexual stereotyping, he provides multiple illustrations of Cianciotto’s animus toward gay individuals.  The [complaint] notes, for instance, the fact that ‘most of the pictures Cianciotto drew were of men fornicating, and they always involved a gay employee’; that he repeatedly expressed a belief that gay men were reckless and disease-prone; and that he commented at a meeting that he did not want an advertisement to be ‘too gay.’  All of these examples lend further support to the inference that Cianciotto’s harassment was motivated by sexual-orientation-based discriminatory animus, not sexual stereotyping.”

Failla conceded that she might be able to “latch onto the single use of the word ‘effeminate’ and the depiction of Plaintiff’s head on a woman’s body, strip these facts of the context provided by the rest of the [complaint], and conjure up a claim for ‘sexual stereotyping.’ But while the ends might be commendable, the means would be intellectually dishonest; the Court would obliterate the line the Second Circuit has drawn, rightly or wrongly, between sexual orientation and sex-based claims.  In light of the EEOC’s recent decision on Title VII’s scope, and the demonstrated impracticability of considering sexual orientation discrimination as categorically different from sexual stereotyping, one might reasonably ask – and, lest there by any doubt, this Court is asking – whether that line should be erased.  Until it is, however, discrimination based on sexual orientation will not support a claim under Title VII; Plaintiff’s Title VII discrimination claim must therefore be dismissed.”

Reading Christiansen’s factual allegations, one would have to be amazed that a supervisor behaving the way Joe Cianciotto is alleged to have behaved would be tolerated by a socially conscious employer in New York, much less a large advertising agency. As far as society has advanced over the past few decades in treating gay people with simple human dignity, the facts one reads in employment discrimination complaints filed by LGBT suggest that there is still a long way to go.

Christiansen, who is HIV-positive, also asserted an Americans With Disabilities Act claim, but Judge Failla found it was not timely, since the only incident on point occurred more than 300 days before Christiansen filed his charge with the EEOC, and in that charge he didn’t even mention the ADA. She also found that his factual allegations would not support a claim under the ADA in any event, since there was scant evidence that he was mistreated by the company because of his HIV status, and that the facts also did not support his claim to have suffered retaliation for filing his discrimination charges.  His complaint asserted a “constructive discharge” claim, which he had to withdraw since he was still working for the company when the complaint was filed

However, it is a fair inference from Judge Failla’s characterization of the evidence that if she felt Title VII could be construed to cover sexual orientation discrimination, she would not have granted the motion to dismiss. She also granted a motion to dismiss filed on behalf of various supervisory and managerial officials of the employer, as the federal anti-discrimination laws do not pose personal liability on company officials.  Having dismissed all the federal statutory claims that Christiansen made, the judge declined to extend jurisdiction over his state law claims, so he should be able to pursue his case further in state court, where the statutes do expressly forbid sexual orientation discrimination.

In the meantime, however, Christiansen’s reaction to the March 9 dismissal was immediate, as his attorney filed a notice of appeal with the 2nd Circuit the same day.  Little more than a week earlier, the EEOC had advanced its campaign to win judicial acceptance of the agency’s interpretation of Title VII by filing its first affirmative sexual orientation discrimination claims against employers in other parts of the country.  The EEOC had already intervened as a co-plaintiff in several other pending cases since last year’s administrative ruling.

Christiansen is represented by Susan Chana Lask, a New York City trial lawyer.

 

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

Posted on: July 15th, 2015 by Art Leonard No Comments

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.