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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.

 

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.”

Federal Court in Connecticut Finds Transgender Plaintiff’s Sex Discrimination Claim Actionable Under Title VII

Posted on: March 20th, 2016 by Art Leonard No Comments

U.S. District Judge Stefan R. Underhill has ruled that a transgender doctor could go forward with her sex discrimination claim under Title VII of the Civil Rights Act of 1964 against a Connecticut hospital. Noting a split of authority among federal circuit courts of appeals and the lack of a controlling ruling from the U.S. Supreme Court or the Court of Appeals for the 2nd Circuit, Judge Underhill found more persuasive the more recent opinions finding that “sex” in the Civil Rights Act should be broadly construed to include gender identity, as opposed to older rulings rejecting such an argument.  Fabian v. Hospital of Central Connecticut, 2016 U.S. Dist. LEXIS 34994 (D. Conn., March 18, 2016).

According to her complaint, Dr. Deborah Fabian had applied and was very nearly hired as an on-call orthopedic surgeon at the Hospital of Central Connecticut. She was recruited for the position by Delphi Healthcare Partners, a third-party provider of physicians and management services to health care institutions.  Fabian, who initially presented herself in the hiring process as Dr. David Fabian, claims that she was “all but hired” and had even been sent a proposed contract, which she had signed, and that she considered the final interview with hospital officials to be a “formality.”  Indeed, relying on representations from Delphi, she and her wife sold their home in Massachusetts, contemplating the move to Connecticut.  During the interview she disclosed that she was a transgender woman in the process of transition and would be reporting to begin work as Dr. Deborah Fabian.  She was later informed that she would not be hired.

She took her discrimination claim and the hospital and Delphi to the EEOC, alleging a violation of the federal sex discrimination statute as well as Connecticut’s statute. At the time, Connecticut’s statute had not yet been amended to add an explicit prohibition of discrimination because of gender identity, so under both statutes her claim was that the employer failed to hire her due to her gender identity and that this was sex discrimination.

In moving for summary judgment, the hospital focused on several lines of attack. It argued that she was not being considered for a staff employee position, but rather to be an independent contractor retained through Delphi, and thus in effect a subcontractor of a subcontractor.  Since the anti-discrimination laws apply only to employment, the hospital argued that they did not apply to this case.  Secondly, the hospital argued that its decision not to hire her was based on its conclusion from the interview that she was reluctant to take late-night calls to the Emergency Department, was uncomfortable with their new electronic records system, and that she wanted a job that involved performing more surgery.  Finally, and cutting to the chase, the hospital argued that gender identity discrimination claims are not actionable under Title VII or under the Connecticut state law as it was when this case arose.

Attacking the subcontractor point, Judge Underhill found that many factual issues would have to be resolved before determining whether Dr. Fabian was applying to be an employee of the hospital. Formal titles and contractual arrangements are less significant in these types of cases than a broad array of factors that the Supreme Court has identified in determining whether somebody is an employee or an independent contractor.  In the health care field, companies frequently try to structure their relationship with professional staff in such a way as to avoid the legal entanglements of an employment relationship, and some health care professionals may prefer the autonomy of not being full-time employees.  The Supreme Court has identified more than a dozen distinct factors to consider in making this determination, with particular emphasis on the degree to which the alleged employer controls the work of the employee.  The court found that there were enough disputed factual issues here to preclude making a determination based on a pre-trial motion without the benefit of an evidentiary hearing.  The judge found that Fabian’s factual allegations were sufficient to create a material factual issue on such questions as “control,” so denied the motion on this ground.  The judge also found that factual issues would need to be resolved concerning the hospital’s contentions, disputed by Fabian, about her willingness to handle late-night calls, deal with the information system, or enthusiastically take the job despite the amount of surgery involved.

The main question, to which the judge devoted most of his opinion, was whether Fabian was alleging a kind of discrimination covered by these statutes. Judge Underhill reviewed the history of the inclusion of sex in Title VII and its subsequent interpretation, noting that for many decades after the statute went into effect in 1965 the Equal Employment Opportunity Commission (EEOC) and the courts had taken the view that gender identity claims were not covered.  However, things began to change after the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, where the Court accepted the plaintiff’s contention that her promotion had been denied because various of the firm’s partners objected to her failure to conform to their stereotyped views about how a “woman partner” should act, groom and dress.  With sex stereotyping accepted as evidence of a sex-discriminatory motivation, courts began to accept the argument that discrimination against transgender persons involves sexual stereotypes in violation of Title VII. By early in the 21st century, some federal circuit courts had adopted this view, which was finally embraced by the EEOC in a 2010 decision involving federal employment, which was subsequently endorsed by the Justice Department.

Judge Underhill stated his agreement with the courts “that have held that %Price Waterhouse% abrogates the narrow view” that had been taken in earlier decisions.  “The narrower view relies on the notion that the word ‘sex’ simply and only means ‘male or female,’” he continued.  “That notion is not closely examined in any of the cases, but it is mistaken.  ‘Male or female’ is a relatively weak definition of ‘sex’ for the same reason that ‘A, B, AB, or O’ is a relatively weak definition of ‘blood type’: it is not a formulation of meaning, but a list of instances.  It might be an exhaustive list, or it might not be, but either way it says nothing about why or how the items in the list are instances of the same thing; and the word ‘sex’ refers not just to the instances, but also to the ‘thing’ that the instances are instances of.  In some usages, the word ‘sex’ can indeed mean ‘male or female,’ but it can also mean the distinction between male and female, or the property or characteristic (or group of properties or characteristics) by which individuals may be so distinguished. Discrimination ‘because of sex,’ therefore, is not only discrimination because of maleness and discrimination because of femaleness, but also discrimination because of the distinction between male and female or discrimination because of the properties or characteristics by which individuals may be classified as male or female.”  The judge cited historical references to support his contention that such broader understandings of sex date back as far as 1755, in Dr. Samuel Johnson’s dictionary of the English language, and he found a similarly broad understanding in dictionaries contemporary with the adoption of Title VII in the 1960s.  Thus, even in the absence of direct evidence about what the drafters of the “sex” amendment thought in 1964, there is indirect evidence that a broader understanding of the word and concept then existed.

The judge also quoted a favorite hypothetical case put by proponents of coverage for gender identity discrimination: just as an employer who had no bias against Christians or Jews could be held to have discriminated because of religion if she discharged an employee for converting from one religion to the other, an employer who has no particular bias against men or women could be held to discriminate because of sex if he discharged an employee for transitioning from male to female.   He insisted that no court would make the mistake of finding no discrimination because of religion in the case of the religious convert.  “Because Christianity and Judaism are understand as examples of religions rather than the definition of religion itself,” he wrote, “discrimination against converts, or against those who practice either religion the ‘wrong’ way, is obviously discrimination ‘because of religion.’  Similarly, discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination on the basis of the properties or characteristics typically manifested in sum as male and female – and that discrimination is literally discrimination ‘because of sex.’”

Thus he concluded, “on the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgment that gender-stereotyping discrimination is discrimination ‘because of sex, . . . discrimination on the basis of transgender identity is cognizable under Title VII.”  In a footnote, he observed that he would reach the same conclusion under the pre-amended Connecticut statute.  The legislature’s subsequent addition of the term “gender identity” to the statute did not require a different conclusion “because legislatures may add such language to clarify or settle a dispute about the statute’s scope rather than solely to expand it.”

With the denial of the hospital’s summary judgment motion, the case can proceed to trial unless a settlement is reached. The court noted that Delphi did not join in the motion for summary judgment.

Dr. Fabian is represented by Theodore W. Heiser of Sullivan Heiser LLC, of Clinton, Connecticut.

Judge Underhill was appointed to the District Court by President Bill Clinton.

Federal Discrimination Agency Says Gays Are Protected Against Employment Discrimination

Posted on: July 19th, 2015 by Art Leonard No Comments

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

 

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

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

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

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

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

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

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

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

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

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

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

Posted on: July 13th, 2015 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

Fixing Problems Before They Occur – The Need to Redraft ENDA (the Employment Non-Discrimination Act).

Posted on: June 25th, 2013 by Art Leonard No Comments

The Employment Non-Discrimination Act (ENDA), a bill now pending in Congress, would make it an unlawful employment practice for employers that are now covered by Title VII of the Civil Rights Act of 1964 to discriminate in hiring, firing and terms and conditions of employment because of the sexual orientation or gender identity or expression of an individual.  The version of the bill introduced in Congress this year uses language almost identical to that found in Title VII in its operative provisions, and of course also incorporates protection of employees against employer retaliation for opposing discrimination prohibited by the statute or for filing charges or participating in an enforcement proceeding.

Two decisions issued by the Supreme Court yesterday interpreting Title VII suggest that some changes need to be made to ENDA before it is pushed to a vote in Congress.  In Vance v. Ball State University, No. 11-556, the Court narrowed employer vicarious liability for discriminatory workplace harassment.  In University of Texas Southwestern Medical Center v. Nassar, No. 12-48, the Court made it more difficult for employees to prevail on retaliation claims.  Both cases were based on an interpretation of the statutory language in Title VII, which means that Congress could amend Title VII if it disagreed with the Court.  Since both rulings favor employers, it seems unlikely that the Republican-controlled House would approve such amendments, and they would even be a hard sell in the Senate, where Republicans have more than 40 votes and thus can block legislation they dislike through the filibuster.  Indeed, the current political balance in Congress is such that enactment of ENDA in this session looks pretty much impossible.

Which means that we have time to go back to the drawing board and make revisions to the ENDA bill to take care of the problems created by the Vance and Nassar decisions.

As presently worded, ENDA forbids discrimination because of an individual’s sexual orientation or gender identity.  In a case called Price Waterhouse, the Supreme Court interpreted such “because of” language as meaning that a plaintiff in a “status discrimination” case has to show that the sole reason for the adverse action against them (refusal to hire, demotion, discharge, disparity in treatment) was their sex, for example, or their race.  If the employer could show that there was some non-discriminatory justification that would independently justify its action, it would win the case.  Such a case is called a “mixed motive” case, because there are more than one motivation involved in the challenged employer action.

Congress partially overruled Price Waterhouse on this point by adding an amendment to Title VII, Section 703(m), providing that in such cases, if the plaintiff proved that their protected status was a motivation for the employer’s action, then the employer would be found to have violated the act, regardless whether the employer had an independent, non-discriminatory reason for its actions; however, in an amendment to the remedial provision of the statute, Congress provided that the remedy for the violation would be limited in such cases.  If an employer had an independent non-discriminatory justification for discharging the employee, for example, the remedy would not include reinstatement or damages.  However, the plaintiff could get a declaration of rights, injunctive relief, and an award of attorney’s fees.  In a subsequent ruling under the Age Discrimination in Employment Act, the Supreme Court said that because the amendment to Title VII only  applied by its terms to status discrimination cases arising under Title VII, it did not apply to age discrimination cases, so the Court’s interpretation of the “because of” language in Title VII still applied to age discrimination claims.   In yesterday’s ruling, the Court went further, to hold that because the amendment only applied to status discrimination claims, it did not apply to retaliation claims brought under Title VII.

In the case, Dr. Nassar, who had quit the medical school faculty over discrimination issues, claimed that the school’s head retaliated against him for raising the discrimination issue by blocking his appointment to the staff at the hospital.  The school showed that under its working agreement with the hospital, only members of school’s faculty could be appointed to the staff, so that Nassar’s appointment could be blocked on that basis.  Thus, this was potentially a “mixed motive” case.  But the Supreme Court ruled that the mixed motive theory of Section 703(m) would not apply to a retaliation case.  Thus, even if retaliation was one of the motivations for blocking Nassar’s appointment, the working agreement served as an independent, non-discriminatory justification and would require dismissal of Nassar’s retaliation claim.

Because ENDA uses the same “because of” language found in ADEA, we need to redraft it to incorporate the concept of Section 703(m) if we want to allow gay and transgender plaintiffs under ENDA to be able to benefit from the mixed motivation theory.  Otherwise, ENDA would be construed by the Court to allow employers to defeat discrimination (and retaliation) claims under ENDA by showing independent, non-discriminatory reasons for taking the challenged actions.

Vance deals with the issue of discriminatory harassment under Title VII.  Title VII does not by its own terms forbid workplace harassment, as such, but it has been interpreted by the Supreme Court to prohibit severe or pervasive harassment because of the sex of the victim.  Congress has not amended Title VII to address the various evidentiary and liability issues of workplace harassment, leaving the Court to fill the void.  One issue is whether an employer can be held liable for harassment by co-workers of the employee.  The Court has ruled that an employer can be liable for co-worker harassment when the employer is informed about the harassment and does not take reasonable steps to end it, that is, when the employer is “negligent” for allowing harassment to continue.  If the harassing co-worker is a supervisor, however, the Court has held that the employer can be vicariously liable (that is, liable without its own negligence or other fault), because a supervisor is the agent of the employer, unless, the Court goes on, the employer succeeds in proving an affirmative defense that it had adopted a policy against harassment and provided an appropriate mechanism for its enforcement, which the victim failed to use.  If the harassment actually culminated in a tangible employment action, however, the employer would be held strictly liable.

The Vance case concerned the definition of “supervisor” for this purpose.  Title VII does not define that term.  Vance argued that she was being harassed by a supervisor and thus could hold the University liable, but the University argued that the harasser in this case was not a supervisor because that individual did not have the ability to take tangible employment actions against Vance.  The Supreme Court sided with the employer, finding that low-level “supervisors” who have authority to direct the activities of workers but not the ability to affect such “tangible” things as pay or promotions, would be treated as mere co-workers, not supervisors, for purposes of employer liability for harassment.

Workplace harassment is one of the foremost problems confronted by LGBT employees, and a major reason why we need ENDA.  At present, employees who suffer workplace harassment due to their gender non-conformity may find protection under Title VII because of another aspect of the Price Waterhouse case: the Court’s acceptance of the argument that “gender stereotyping” may be evidence of sexist attitudes and thus of discrimination “because of” the sex of the victim.  Some lower federal courts and the EEOC have built on this theory to find a fair amount of protection against workplace discrimination for transgender individuals, and some protection for gay or bisexual people who are in some respect perceived by other employees as failing to meet the stereotypes of appearance or conduct for their gender.  But gay people whose victimization is clearly due to their sexual orientation, as such, are not protected.  Adoption of ENDA would replace the stereotyping theory with straightforward protection. 

However, as a result of Vance, such protection would be less effective when harassment is perpetrated by low-level supervisors, because the victim would have to prove employer negligence and could not rely on the vicarious liability theory.  Thus, it would be a good idea to include in ENDA (and to amend Title VII to include) a broad definition of “supervisor” and specific language applying the vicarious liability theory to cases where supervisors harass employees because of their sexual orientation, gender identity, or other protected characteristic.

Actually, it would be ideal were ENDA to go a step beyond Title VII and expressly incorporate the discriminatory harassment theory.  Indeed, some critics of Title VII have even suggested that perhaps we could use a separate federal statute dealing with workplace harassment, but passage of such a law does not seem to be in the cards at present.  The best we can do, for now, is to anticipate the problems created by the Vance and Nassar opinions and amend the ENDA bill to anticipate these issues.

Justice Ginsburg Calls for New Civil Rights Restoration Act

Posted on: June 24th, 2013 by Art Leonard No Comments

Dissenting from two 5-4 decisions by the Supreme Court in employment discrimination cases issued on June 24, Justice Ruth Bader Ginsburg called for a new Civil Rights Restoration Act, referring to a 1991 statute that overruled or modified several Supreme Court decisions on federal employment discrimination law.  In University of Texas Southwestern Medical Center v. Nassar, the Court interpreted Title VII’s anti-retaliation provision narrowly to apply only to cases where the plaintiff showed that the employer’s retaliatory conduct was motivated solely by the employee’s claim of discrimination.  In Vance v. Ball State University, the Court ruled that an employer could not be held vicariously liable for workplace harassment unless the harasser is a “supervisor” who is “empowered by the employer to take tangible employment actions against the victim” of the harassment.

In both cases, the Court was resolving a diversity of views about the correct interpretation of Title VII by the lower federal courts.  The Nassar ruling on retaliation reversed a decision by the U.S. Court of Appeals for the 5th Circuit, while the Vance ruling affirmed a decision by the 7th Circuit Court of Appeals, which had disagreed with the 2nd and 4th Circuits and the EEOC as to when the vicarious liability rule governing harassment by supervisors should be applied.  In both cases, the Court’s 5-4 majority came down on the side favored by employers, cutting back on the protection Title VII provides to workers against workplace discrimination.  Thus Justice Ginsburg’s call for corrective action.

Both majority opinions reach their results by avoiding the realities of the workplace, as dissenting opinions by Ginsburg, joined by Justice Breyer, Sotomayor and Kagan, point out.

As to the retalation case, the Court seized upon the complexities of a statute amended in response to prior Supreme Court decisions with which Congress disagreed.  The Court had ruled, in a prior case, that when an employee proves that his or her race or color, religion, national origin or sex was a motivating factor for adverse action by the employer, an employer could defeat the discrimination claim by showing that it would have taken the same action for a non-discriminatory reason.  This is the so-called “mixed motive” case.  Congress disagreed with this result, amending the statute in 1991 to provide that as long as an employee showed that one of the prohibited grounds for discrimination was a factor in the employer’s action, the statute was violated.  Congress also provided, however, that an employer’s proof of a non-discriminatory motive could result in limiting the remedy imposed by the court, eliminating damages and reinstatement orders in such situations. 

The EEOC and some lower federal courts took the view that the 1991 amendments applied to all discrimination claims under Title VII, whether they involved status discrimination (discrimination because of an individual race or color, religion, national origin or sex) or discrimination against an employee who had opposed unlawful discrimination or filed a discriminate claim against the employer.  However, in this case, the Court seized upon the particular wording of the 1991 amendment to hold that it applied only to status discrimination claims.  The Court pointed out that Title VII has separate provisions dealing with status discrimination and retaliation, and that Congress appeared (at least to the Court) to have been concerned only with the former when it amended the statute in 1991.  The Court also drew an analogy to its treatment of the Age Discrimination in Employment Act, a separate statute, which the Court has construed to impose liability on employers only when an employee proves that discrimination was solely because of the employee’s age.  The Court had reached that result by observing that the 1991 amendment did not, by its terms, apply to the ADEA.  The Court also suggested that adopting the mixed motivation standard of the 1991 amendment for retaliation claims would open the floodgates to retaliation claims by making them too easy for plaintiffs to win.

Responding to Justice Kennedy’s opinion for the Court, Justice Ginsburg charges that “the court appears drive by a zeal to reduce the number of retaliation claims filed against employers,” although, she asserted, “Congress had no such goal in mind” when it adopted the 1991 amendment.  “Today’s misguided judgment, along with the judgment in Vance v. Ball State University, should prompt yet another Civil Rights Restoration Act.”

In Vance, where Justice Samuel Alito wrote for the 5-4 majority, the Court dealt with the ever-contentious issue of employer liability for workplace harassment of one employee by another.  In earlier cases, the Court had ruled that when an employee is harassed by a supervisor because of the employee’s sex, the employer could be held “vicariously liable” for such harassment because the supervisor is acting as the employer’s agent, empowered by the employer to make decisions affecting the employment of the victim.  But the Court had left it to subsequent cases to work out exactly how “supervisor” should be defined for this purpose.

Many lower courts, and the Equal Empoyment Opportunity Commission, have taken the view that any employee who has authority or power over another employee, such as to direct where, when or how that employee does their work, should be deemed a supervisor for this purpose, but the majority of the Court disagreed, holding that only a worker who can take “tangible” actions against an employee, such as actions affecting their pay or benefits, discharge or demotion or the like, would be deemed a supervisor for whose harassing conduct an employee could be held “vicariously liable.”  (In the absence of vicarious liability, an employee suffering harassment would have to show that the employer was negligent in order to hold the employer liable for harassment by a co-worker.  Even in cases of potential vicarious liability, if an employee subject to harassment does not also suffer “tangible” adverse consequences, an employer can escape liability by showing that it has a policy against harassment and a workplace grievance system to address complaints that was not properly invoked by the employer.)

Justice Alito said that the prior caselaw contemplated a clear distinction between supervisors and other employees, and a definition based on authority to make such decisions concern tangible factors provided the basis for such a clear distinction.  He criticized the approach taken by the EEOC and some lower courts as a “nebulous definition” that was not easy to apply, noted that the term is not expressly defined by Congress in Title VII, and thus concludes that it should be construed in light of the elaborate framework the Court had adopted in prior cases to determine whether it was appropriate to hold the employer liable for harassing conduct by employees.  In both of the cases, it was clear that the harassing employees were “supervisors” as the majority of the Court defines the term in this case: individuals having authority regarding “tangible employment actions.”   The Court found such a characterization to be “implicit in the characteristics of the framework that we adopted” in those cases, that the ability to impose “direct economic harm” was the “defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.”  Justice Alito commended the relative ease of determining supervisory status under this test, pointing out that “the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.”  In other words, this decision is intended, like many prior decisions of the Court, to enhance the ability of federal trial judges to dispose of employment discrimination cases without a trial by deciding, as a matter of law, that the employer cannot be held liable because the harasser was not a supervisor and the plaintiff introduced no substantial evidence of employer negligence.

Justice Ginsburg sharply responded:  “The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions.  The limitation the court decrees diminishes the force” of its prior decisions on employer liability for harassment by supervisors, “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”  Ginsburg points out that low-level supervisory personnel can, nonetheless, make a subordinate’s life in the workplace very uncomfortable, because they are empowered by the employer to make decisions that affect employees in their day-to-day work. 

The Court’s decision, says Ginsburg, “is blind to the realities of the workplace, and it discounts the guidance of the EEOC,” which had taken a broader view under which any worker to whom the employer has given authority “to controlt he conditions under which subordinates do their daily work” is a supervisor for purposes of imputing liability for harassment.  Ginsburg argued that prior decisions by the court had reached such conclusions, including — contrary to Justice Alito’s assertions — one of the very cases in which the  Court had established the framework for analyzing employer liability.  Ginsburg also pointed out that the narrow definition of supervisor adopted by the Court in this case will result in employers having a “diminished incentive to train those who control their subordinates’ work activites and schedules, i.e., the supervisors who actually interact with employees.”    She argued that the Court majority is “insistent on constructing artifical categories where context should be key,” and charged that it “proceeds on an immoderate and unrestrained course to corral Title VII.” 

As in her dissent in the other case, Ginsburg points out that Congress has repeatedly had to step in and amend the statute to restore the protection against discrimination that Congress intended to provide for workers.  “The ball is once again in Congress’s court to correct the error into which this Court has fallen,” she concludes, “and to restore the robust protections against workplace harassment the Court weakens today.”