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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.

Landmark Federal Appeals Ruling Holds Sexual Orientation Discrimination Violates Title VII

Posted on: April 5th, 2017 by Art Leonard No Comments

The full bench of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, substantially advanced the cause of gay rights on April 4, releasing an unprecedented decision in Kimberly Hively v. Ivy Tech Community College, 2017 WL 1230393, holding that Title VII of the Civil Rights Act of 1964, which applies generally to all employers with fifteen or more employees as well as many federal, state and local government operations, prohibits discriminating against a person because of their sexual orientation.  The text of the statute does not mention sexual orientation, so the interpretive question for the court was whether discriminating against somebody because they are lesbian, gay or bisexual can be considered a form of sex discrimination.

What was particularly amazing about the affirmative decision, the first to rule this way by a federal appeals court, was that the 7th Circuit is composed overwhelmingly of Republican appointees, many of whom were appointed as long ago as the Reagan Administration.  Although the lead opinion for the Circuit was written by Chief Judge Diane Pamela Wood, who was appointed by Bill Clinton, the 8-member majority of the 11-judge bench included more Republicans than Democrats.  Many of the judges in the majority could be generally characterized as judicial conservatives.

Wood’s opinion was joined by Frank Easterbrook (Reagan appointee), Ilana Rovner (George H. W. Bush appointee), Ann Claire Williams (Clinton appointee), and David F. Hamilton (the only Obama appointee on the Circuit). Richard Posner (Reagan appointee) wrote a concurring opinion.  Joel Martin Flaum (Reagan appointee) wrote a concurring opinion which was joined by Kenneth Francis Ripple (Reagan appointee).  The dissent by Diane S. Sykes (George W. Bush appointee) was joined by Michael Stephen Kanne (Reagan appointee) and William Joseph Bauer (Ford appointee).  Ripple and Bauer are senior judges who were sitting on the en banc hearing because they were part of the three-judge panel (with Judge Rovner) that ruled on the case last year.  The Circuit has 11 authorized positions, but there are two vacancies among the active judges, part of the Republican Senate’s legacy of refusing to confirm most of President Obama’s judicial appointees during his second term.

The Circuit’s decision to grant en banc review clearly signaled a desire to reconsider the issue, which Judge Rovner had called for doing in her panel opinion. Rovner then made a persuasive case that changes in the law since the 7th Circuit had previously ruled negatively on the question called out for reconsideration.  Those who attended the oral argument on November 30 or listened to the recording on the court’s website generally agreed that the circuit was likely to overrule its old precedents, the only mystery being who would write the opinion, what theories they would use, and who would dissent.

The lawsuit was filed by Kimberly Hively, a lesbian who was working as an adjunct professor at the college, which is located in South Bend, Indiana. Despite years of successful teaching, her attempts to secure a full-time tenure-track position were continually frustrated and finally her contract was not renewed under circumstances that led her to believe it was because of her sexual orientation.  Since Indiana’s state law does not forbid sexual orientation discrimination, and South Bend’s ordinance (which does forbid sexual orientation discrimination) would not apply to the state college, she filed suit in federal court under Title VII.  She represented herself at that stage.  The trial judge, Rudy Lozano, granted the college’s motion to dismiss the case on the ground that 7th Circuit precedents exclude sexual orientation discrimination claims under Title VII.

Hively obtained representation from Lambda Legal on appeal. The three-judge panel rejected her appeal, while two of the judges urged that the precedents be reconsidered.

Judge Wood found that several key Supreme Court decisions have broadened the meaning of “because of sex” in Title VII, to the extent that she could write that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” The broadening includes launching a complex law of sexual harassment, including same-sex sexual harassment, and discrimination against a person who fails to conform to “a certain set of gender stereotypes.”

As have many of the other judges who have written on this issue, Wood quoted from Justice Antonin Scalia’s opinion for the unanimous court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the same-sex harassment case, in which, after noting that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” this did not mean that the statute could not be interpreted to apply to such a situation. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Scalia wrote, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Woods found convincing Hively’s contention, argued to the court by Lambda Legal’s Greg Nevins, that two alternative theories would support her claim. The first follows a “comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way?”  The second rests on an intimate association claim, relying on the Supreme Court’s 1967 ruling striking down state laws barring interracial marriages, Loving v. Virginia.  The Supreme Court held that a ban on interracial marriage was a form of race discrimination, because the state was taking race in account in deciding whom somebody could marry.  Similarly here, an employer is taking sex into account when discriminating against somebody because they associate intimately with members of the same sex.  After briefly describing these two theories, Wood wrote, “Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination.”

Woods noted at least two rulings by other circuits under Title VII that had adapted Loving’s interracial marriage analysis to an employment setting, finding race discrimination where an employer discriminated against persons who were in interracial relationships, Parr v. Woodmen of the World Life Insurance Co., 791 F.2 888 (11th Cir. 1986), and Holcomb v. Iona College, 521 F.3d 130 (2nd Cir. 2008).  These citations were a bit ironic, since the 11th and 2nd Circuits have in recent weeks rejected sexual orientation discrimination claims under Title VII, in which the plaintiffs advanced the same analogy to support their Title VII claims.  These recent opinions were by three-judge panels that held themselves to be bound by prior circuit rulings.  Lambda Legal has already filed a petition for en banc review in the 11th Circuit case, and counsel for plaintiff in the 2nd Circuit case is thinking about doing the same.

Ultimately, Wood acknowledged, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.  The EEOC concluded, in its Baldwin decision, that such an effort cannot be reconciled with the straightforward language of Title VII.  Many district courts have come to the same conclusion.  Many other courts have found that gender identity claims are cognizable under Title VII.”

Woods recited the now well-worn argument about how it is a basic inconsistency in the law that a person can enter into a same-sex marriage on Saturday and then be fired without legal recourse for having done so when they show up at the workplace on Monday. That is still the state of the law in a majority of the states.

Wood acknowledged that this decision does not end the case. Because Hively’s original complaint was dismissed by the district court without a trial, she has not yet been put to the test of proving that her sexual orientation was a motivating factor in the college’s decision not to hire her or renew her adjunct contract.  And, what passed unspoken, the college might decide to petition the Supreme Court to review this ruling, although the immediate reaction of a college spokesperson was that the school – which has its own sexual orientation non-discrimination policy – denies that it discriminated against Hively, and is ready to take its chances at trial.

Judge Posner submitted a rather odd concurring opinion, perhaps reflecting the oddity of some of his comments during oral argument, including the stunning question posed to the college’s lawyer: “Why are there lesbians?” Posner, appointed by Reagan as an economic conservative and social libertarian, has evolved into a forceful advocate for LGBT rights, having satisfied himself that genetics and biology play a large part in determining sexual identity and that it is basically unfair to discriminate against LGBT people without justification.  He wrote the Circuit’s decision striking down bans on same-sex marriage in Indiana and Wisconsin in 2014.

In this opinion, he takes on the contention that it is improper for the court to purport to “interpret” the language adopted by Congress in 1964 to cover sexual orientation discrimination. After reviewing various models of statutory interpretation, he insisted that “interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text) – a meaning that infuses the statement with vitality and significance today.”  He used as his prime example judicial interpretation of the Sherman Antitrust Act of 1890, adopted “long before there was a sophisticated understanding of the economics of monopoly and competition.”  As a result of changing times and new knowledge, he observed, “for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics.” Basically, the courts have “updated” the Act in order to keep it relevant to the present.

He argued that the same approach should be brought to interpreting Title VII, adopted more than half a century ago. This old law “invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.”  And, after reviewing the revolution in understanding of human sexuality and public opinion about it, he concluded it was time to update Title VII to cover sexual orientation claims, even though “it is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.”  Although some of the history he then recites might arouse some quibbles, he was able to summon some pointed examples of Justice Scalia employing this method in his interpretation of the Constitution regarding, for example, flag-burning and an individual right to bear arms.

“Nothing has changed more in the decades since the enactment of the statute than attitudes toward sex,” wrote Posner, going on to recite the litigation history of the struggle for marriage equality that culminated in 2015 with the Supreme Court’s ruling in Obergefell v. Hodges.

Although it might sound odd at times as a judicial opinion, Posner’s concurrence is eminently readable and packed full of interesting information, including his list of “homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations)” who have made “many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, Andre Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin – a very partial list).”

This brought to the writer’s mind a famous paragraph in Supreme Court Justice Harry Blackmun’s opinion rejecting a challenge to the traditional anti-trust exemption for professional baseball, in which Blackmun included his own list of the greatest professional baseball players in history (compiled through a survey of the Supreme Court’s members and their young legal clerks).

Instead of pursuing Judge Wood’s line of reasoning, Posner was ready to declare that sexual orientation discrimination is a form of sex discrimination without such detailed analysis. “The most tenable and straightforward ground for deciding in favor of Hively is that while in 1964 sex discrimination meant discrimination against men or women as such and not against subsets of men or women such as effeminate men or mannish women, the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten society.  Title VII in terms forbids only sex discrimination, but we now understand discrimination against homosexual men and women to be a form of sex discrimination; and to paraphrase [Oliver Wendell Holmes, Jr.], ‘We must consider what this country has become in deciding what that [statute] has reserved.’”

In his concurring opinion Judge Flaum took a narrower approach, noting that Title VII was amended in 1991 to provide that “an unlawful employment practice is established when the complaining party demonstrates that … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” In other words, discrimination does not have to be “solely” because of sex to violate Title VII.  It is enough if the individual’s sex was part of the reason for the discrimination.  In light of this, Flaum (and Ripple, who joined his opinion) would look to the analogy with discrimination against employees in interracial relationships.  In addition, he noted, “One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ meaningless” in dictionary definitions that define homosexuality in terms of  whether somebody is attracted to persons of “the same” or “their own” sex.  Clearly, “sex” is involved when people are discriminated against because they are gay.

Judge Sykes’s dissent channeled scores of cases going back to the early years of Title VII and argued against the method of statutory interpretation used by the various opinions making up the majority. “The question before the en banc court is one of statutory interpretation,” she wrote.  “The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.  So does Judge Posner in his concurrence.  Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted.  The result is a statutory amendment courtesy of unelected judges.  Judge Posner admits this; he embraces and argues for this conception of judicial power.  The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents.  Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.”

Although Sykes conceded that sexual orientation discrimination is wrong, she was not ready to concede that one could find it illegal by interpretation of a 1964 statute prohibiting sex discrimination at a time when the legislature could not possibly have been intending to ban discrimination against LGBT people. As Posner pointed out, that issue wasn’t on the radar in 1964.  Thus, to Sykes, Bauer and Kanne, it was not legitimate for a court to read this into the statute under the guise of “interpretation.”

Speculating about the ultimate fate of this decision could go endlessly on. There are fierce debates within the judiciary about acceptable methods of interpreting statutes, and various theories about how to deal with aging statutes that are out of sync with modern understandings.

Posner’s argument for judicial updating allows for the possibility that if Congress disagrees with what a court has done, it can step in and amend the statute, as Congress has frequently amended Title VII to overrule Supreme Court interpretations with which it disagreed. (For example, Congress overruled the Supreme Court’s decision that discrimination against pregnant women was not sex discrimination in violation of Title VII.)  Posner’s approach will be familiar to those who have read the influential 1982 book by then-Professor (now 2nd Circuit Judge) Guido Calabresi, “A Common Law for the Age of Statutes,” suggesting that courts deal with the problem of ancient statutes and legislative inertia by “updating” statutes through interpretation to deal with contemporary problems, leaving it to the legislature to overrule the courts if they disagree.  This method is more generally accepted in other common law countries (British Commonwealth nations), such as Australia, South Africa, India and Canada, than in the United States, but it clearly appeals to Posner as eminently practical.

So far the Republican majorities in Congress have not been motivated to address this issue through amendments to Title VII, or to advance the Equality Act, introduced during Obama’s second term, which would amend all federal sex discrimination laws to address sexual orientation and gender identity explicitly. Perhaps they will be provoked to act, however, if the question gets up to the Supreme Court and the 7th Circuit’s view prevails.

With the possibility of appeals now arising from three different circuits with different views of the issue, Supreme Court consideration of this question is highly likely. Public opinion polls generally show overwhelming support for prohibiting sexual orientation and gender identity discrimination in the workplace, which might serve as a brake on conservative legislators who would otherwise respond adversely to a Supreme Court ruling approving the 7th Circuit’s holding.

Louisiana Court Finds Governor Edwards’ Civil Rights Executive Order Unconstitutional

Posted on: December 19th, 2016 by Art Leonard No Comments

A trial judge in Louisiana ruled on December 14 that an Executive Order by Governor John Bel Edwards, forbidding anti-LGBT discrimination in the executive branch of the state government and by state contractors, violates the Louisiana constitution and laws. 19th Judicial District Judge Todd W. Hernandez, in the Parish of East Baton Rouge, said that this Order violates the separation of powers established by the Louisiana Constitution, is outside the governor’s authority to “faithfully execute the laws,” and should be enjoined.  Governor Edwards promptly announced that he would appeal this ruling.  Louisiana Department of Justice v. Edwards, No. 652,283 (19th Judicial District).

Hernandez’s decision came in a lawsuit filed by the Louisiana Department of Justice and Attorney General Jeff Landry, who challenged the authority of the governor to extend anti-discrimination rules to categories not already covered by state statutes. At the same-time, Hernandez ruled on a countersuit filed by the governor as part of his response to Landry’s lawsuit, in which Gov. Edwards challenged Landry’s refusal to approve attorneys who were being retained by executive branch agencies to represent them in litigation.

Landry argued that JBE 16-11, the order signed by Edwards shortly after he took office early in 2016, inappropriately creates “a newly created protected class of persons not recognized by current law.” He also contended that the restrictions placed on state contractors violated the Commerce Clause of the U.S. Constitution and “certain First Amendment rights and privacy interest rights established by the Louisiana and United States Constitutions,” according to Judge Hernandez.  Landry’s reference to “class of persons” mischaracterizes the Executive Order, which does not create protected classes, but rather, in the general approach of civil rights laws, forbids discrimination because of particular characteristics, in this case sexual orientation and gender identity.  Thus, everybody is protected from discrimination because of those characteristics, including non-gay people and cisgender people.

Hernandez declared that the Executive Order “constitutes an unlawful ultra-vires act because, regardless of the defendant’s intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana law as opposed to directing the faithful execution of the existing laws of this state pursuant to the authority granted unto [sic] the office of the Governor to issue executive orders.” Hernandez proclaimed that the governor was improperly exercising legislative authority, which is “an unlawful usurp [sic] of the constitutional authority vested only in the legislative branch of the government.”

Judge Hernandez did not cite any prior Louisiana court decisions to support his ruling. One suspects the state courts have never before addressed this question, or at least not in a way that would support the court’s ruling.  Instead, the judge embraced his literalistic reading of the state constitution, which “declares the office of the Governor as the ‘Chief Executive Officer’ of the State of Louisiana and he/she shall see that the laws of this state are faithfully executed,” and goes on to cite a statute that says, according to the judge, that “the sole purpose for the issuance of an executive order is to provide the office of the Governor with a mechanism to ‘faithfully execute the laws of the State of Louisiana.’”

Hernandez was not accurately quoting the statute, LRS 49:215, which says: “The authority of the governor to see that the laws are faithfully executed by issuing executive orders is recognized.” This is not, on its face, restricted to the laws of Louisiana, and the oath of office of the governor, together with all other state elected officials, requires them to support both federal and state laws, including the federal and state constitutions, both of which provide “equal protection of the laws” to all people in the state.

The U.S. Supreme Court established in 1996 in Romer v. Evans that anti-gay discrimination violates “equal protection of the laws” under the 14th Amendment to the U.S. Constitution, unless the state has a rational basis to treat people differently because of their sexual orientation. Thus, an Executive Order banning anti-gay discrimination in the executive branch of the state government is consistent with the governor’s obligation to see that the laws are faithfully executed, although there might be some controversy about extending this to “gender identity” in the absence of U.S. Supreme Court authority. The 11th Circuit U.S. Court of Appeals, whose jurisdiction covers Alabama, Florida and Georgia, is so far the only federal appeals court that has recognized a constitutional equal protection claim by a transgender public employee, but the logic of Romer v. Evans would surely cover such a claim as well.

Hernandez found that the Executive Order “extends beyond the lawful parameters of executive order authority and its adoption and implementation is found to be either a creation of new law and/or an expansion of existing law. In either case,” he continued, “this is a violation of the separation of powers doctrine of the Louisiana Constitution and is an infringement upon the constitutional authority vested solely upon the Legislature of the State of Louisiana.”

However, Hernandez rejected without explanation Landry’s claim that other federal or state constitutional provisions were violated by the executive order.

Turning to the governor’s counterclaim, Hernandez found that Louisiana statutes specifically authorize the attorney general to approve or disapprove lawyers whose engagement is sought by executive branch agencies, but that once those lawyers have been engaged, the attorney general has no supervisory authority over them and cannot dictate what positions they take in their representation.

As to the governor’s request for a ruling that the office of the governor is superior to the office of the attorney general when a dispute about legal policy arises, Hernandez declined to rule, finding that without the presentation of an actual dispute between the two officers, the question was not “ripe” for judicial consideration. “There is no evidence of a justiciable controversy concerning which constitutionally created officer of this state should prevail if a dispute were to arise between them relating to a legal matter concerning the legal interest of the State of Louisiana,” he wrote.  To express a view in the abstract would be akin to rendering an “advisory opinion” beyond the authority of the court.

Another Federal Judge Lets Gay Plaintiff Pursue Discrimination Claim under Title VII

Posted on: November 22nd, 2016 by Art Leonard No Comments

One of the nation’s most senior federal trial judges, Warren W. Eginton (age 92) of Connecticut, rejected an employer’s motion to dismiss a Title VII sex discrimination claim brought by an openly gay employee in a November 17 ruling.  Boutillier v. Hartford Public Schools, 2016 U.S. Dist. LEXIS 159093, 2016 WL 6818348 (D. Conn.).  Eginton, who was appointed by Jimmy Carter in 1979 and has been a senior judge (semi-retired) since 1992, accepted the argument that Title VII can be interpreted to ban sexual orientation discrimination, despite prior contrary rulings by the U.S. Court of Appeals for the 2nd Circuit, to which his decision can be appealed.

 

Eginton’s ruling came less than two weeks after a federal district judge in Pennsylvania, Cathy Bissoon, appointed by Barack Obama, issued a similar ruling in EEOC v. Scott Medical Health Center, bucking contrary appellate precedent in the 3rd Circuit Court of Appeals.  Could this be the beginning of a trend?

 

Lisa Boutillier, a lesbian who formerly taught in the Hartford Public School system, claimed that she had suffered discrimination and retaliation because of her sexual orientation and physical disability in violation of the Connecticut Fair Employment Practices Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act.  Because Connecticut law explicitly bans sexual orientation and disability discrimination, she could have brought her case in state court and, by confining her claims to state law, she could have avoided ending up in federal court where adverse circuit precedent might have doomed her Title VII claim.  Instead, however, her attorney, Margaret M. Doherty, included the federal claims and filed in the U.S. District Court, prompting the school district to file a motion arguing that Title VII does not cover this case.  The case could remain in Judge Eginton’s court only if he found that Boutillier could assert a potentially valid claim under either or both of the Americans with Disabilities Act or Title VII of the Civil Rights Act. Eginton concluded that Boutillier failed to allege facts sufficient to qualify as a person with a disability under the ADA, so her ability to maintain the action in federal court turned entirely on whether she could allege a sex discrimination claim under Title VII.       There is little doubt from her factual allegations that if Title VII covers this case, Boutillier will have stated a potentially valid claim and avoid summary judgment against her.

 

Judge Eginton devoted most of his opinion to the Title VII question.  He sharply disputed the Second Circuit’s prior rulings refusing to allow sexual orientation discrimination claims under Title VII.  “Early interpretations of Title VII’s sex discrimination provisions reached illogical conclusions based on a supposed traditional concept of discrimination, which, for example, determined that discrimination based on pregnancy was not discrimination based on sex,” he began his analysis, noting that Congress had overruled that mistaken early Supreme Court decision by amending Title VII.  He said that the pregnancy case “and other similar decisions that imposed incongruous traditional norms were misguided in their interpretations regardless of whether Congress had been able to overrule them.”  He charged that these early cases were mistaken because “they failed to take the ordinary meaning of the Act’s text to its logical conclusions . . . .  The converse of the majority’s decision,” wrote Eginton, “and equally absurd, would be to hold that an exclusion in coverage for prostate cancer does not discriminate against men based on sex.  Such conclusion represent a fundamental failure of ordinary interpretation.”

 

He found a similar error of reasoning in the Second Circuit’s approach to sexual orientation claims.  He noted that when Congress overruled the pregnancy case, the House Report stated: “It is the Committee’s view that the dissenting Justices correctly interpreted the Act.”  The 2nd Circuit has premised its view on lack of legislative history showing that Congress intended to protect gay people from discrimination when it included “sex” in Title VII in 1964.  “Acknowledging that the legislative history on whether sexual orientation should be included in the category of sex under Title VII is slight,” wrote Eginton, “it is difficult to glean the absence of prior intention merely from subsequent efforts by Congress to reinforce statutory civil rights protections” by adding “sexual orientation” to federal law, as the 2nd Circuit has repeatedly done.  He pointed out that the Supreme Court has cautioned against relying on legislative inaction as an indication of legislative intent.

 

More importantly, however, he wrote, “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex: the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination.”

 

The judge pointed out the inconsistency between the 2nd Circuit’s approach to sexual orientation and its cases about race discrimination.  The 2nd Circuit has accepted the argument that it is race discrimination when an employer discriminates against an employee for engaging in an interracial relationship.  “The logic is inescapable,” wrote Eginton: “If interracial association discrimination is held to be ‘because of the employee’s own race,’ so ought sexual orientation discrimination be held to be because of the employee’s own sex.”  The 2nd Circuit’s cases are “not legitimately distinguishable,” he argued.  “If Title VII protects individuals who are discriminated against on the basis of race because of interracial association (it does), it should similarly protect individuals who are discriminated against on the basis of sex because of sexual orientation – which could otherwise be named ‘intrasexual association.’”

 

He pointed out that the Supreme Court’s key decision in Price Waterhouse v. Hopkins “bolsters” his conclusion, in holding that “sex stereotyping could constitute discrimination because of sex. . .  Indeed, stereotypes concerning sexual orientation are probably the most prominent of all sex related stereotypes, which can lead to discrimination based on what the Second Circuit refers to interchangeably as gender non-conformity.”  The 2nd Circuit has refused to extend this reasoning to sexual orientation cases, however, using an analysis that Eginton maintains is “inherently unmanageable, as homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”

 

He quoted extensively from a recent 7th Circuit decision, Hively v. Ivy Tech Community College, where a 3-judge panel of that court dismissed a sexual orientation discrimination claim because of circuit precedent, but two members of the panel submitted an opinion suggesting that the circuit should be reconsidering its position.  Since then, the 7th Circuit has voted to grant “en banc” review in the case, with reargument scheduled for November 30.

 

Eginton pointed out the paradox stemming from the 2nd Circuit’s position.  “Essentially, employers are prohibited from discriminating against employees for exhibiting stereotypical gay behavior, yet, at the same time, employers are free to discriminate against employees for actually being gay.”  Thus, Eginton, concluded, he would follow the lead of the 2nd Circuit’s interracial discrimination case instead of its past dismissal of sexual orientation discrimination claims “by interpreting the ordinary meaning of sex under Title VII to include sexual orientation, thereby obviating the need to parse sexuality from gender norms.”  Eginton pointed out that the EEOC adopted this view in 2015, the 7th Circuit agreed to a full rehearing in Hively, and a 2nd Circuit panel will soon rule on appeals from trial court dismissals of sexual orientation claims in several cases from New York.  While the 2nd Circuit’s expected ruling on those appeals “may ultimately decide the fate of plaintiff’s Title VII claims,” he wrote, “in the meantime, summary judgment will be denied.  Plaintiff has adequately established a right to protection under Title VII.”