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Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

7th Circuit Says Federal Law Protects Transgender Students

Posted on: May 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit upheld a trial court’s preliminary injunction that requires a Wisconsin school district to allow Ashton Whitaker, a transgender boy, to use the boys’ restroom facilities at his high school during his senior year.   Whitaker v. Kenosha Unified School District No. 1 Board of Education, 2017 U.S. App. LEXIS 9362, 2017 WL 2331751.  Circuit Judge Ann Claire Williams wrote the court’s opinion, joined by Circuit Judges Diane Pamela Wood and Ilana Rovner.  This May 30 decision is a landmark ruling: For the first time, a federal appeals court has ruled that Title IX of the Education Amendments Act of 1972, which bans sex discrimination by educational institutions that get federal money, prohibits discrimination against transgender students. The court also ruled that a transgender student subjected to discriminatory treatment by a public school could sue under the Constitution’s Equal Protection Clause.

In a prior ruling involving Gavin Grimm, a transgender boy who is about to graduate from a Virginia high school, the Richmond-based 4th Circuit Court of Appeals ruled that the federal courts should defer to the Obama Administration’s “reasonable” interpretation of Title IX providing protection to transgender students, but that ruling was vacated by the U.S. Supreme Court recently after the Trump Administration withdrew the Obama Administration’s interpretation after the Court had agreed to review the 4th Circuit’s decision.  Gavin Grimm’s appeal from a district court’s denial of his Title IX claim is still pending before the 4th Circuit, although the case may be mooted by his graduation.

Judges Williams and Wood were appointed to the court by President Bill Clinton. Judge Rovner was appointed by President George H. W. Bush. Throughout the opinion, Williams refers to the plaintiff as “Ash,” using the name he prefers and used throughout the papers filed in this lawsuit.

Judge Williams succinctly summarized what the case is about in her matter-of-fact opening sentence: “Ashton (‘Ash’) Whitaker is a 17 year-old high school senior boy who has what would seem like a simple request: to use the boys’ restroom while at school.” The request did not seem simple to Kenosha school authorities, however, because Whitaker is a transgender boy and, as far as the school district is concerned, should be treated as a girl unless or until Ash presents documentation of a completed surgical gender transition resulting in a new birth certificate designating him as male.  However, under the recognized standard of care for gender dysphoria, genital surgery may not be performed until the individual reaches age 18, and his birth state of Wisconsin will not issue such a birth certificate without proof of surgical sex reassignment, so there is no way that Ash Whitaker can satisfy the district’s unwritten policy for being treated as a boy while he is a student there.

According to the court’s opinion, Ash was in the 8th grade when he told his parents that “he is transgender and a boy.”  When he entered Tremper High School as a freshman in the fall of 2013, he identified himself as a boy, cutting his hair short, wearing masculine clothing, and using the name Ashton and male pronouns to refer to himself.  “In the fall of 2014, the beginning of his sophomore year, he told his teachers and his classmates that he is a boy and asked them to refer to him as Ashton or Ash and to use male pronouns,” wrote Williams.  He also began to see a therapist, who formally diagnosed him with gender dysphoria.  After his junior year, he began hormone replacement therapy under the supervision of an endocrinologist and petitioned a local court for a legal name change, which was granted in September 2016.

Ash and his mother began to meet with school authorities in the spring of his sophomore year to request that he be permitted to use the boys’ restrooms at school, but the authorities were resistant. Although the school district has no written policy on the matter, the administration informed him that he was not allowed to use the boys’ restroom, and that they would make an exception to the usual rules and allow him to use a gender-neutral restroom in the school’s main office.  This was not particularly helpful to him, since the main office was “quite a distance from his classrooms.”  Using that restroom between classes would make him late for class.  And, explained Judge Williams, “because Ash had publicly transitioned, he believed that using the girls’ restrooms would undermine his transition.”  And since he was the only student authorized to use the gender-neutral bathroom in the office, “he feared that using it would draw further attention to his transition and status as a transgender student at Tremper.”

There was also a medical complication. Ash has been diagnosed with vasovagal syncope, a condition that makes him susceptible to fainting or seizures if he becomes dehydrated, so he has to drink liquids frequently, which means he needs those bathroom breaks between classes and he can’t easily get by with “holding his water” throughout the day.  In an attempt to avoid having to use bathrooms during the day, he did attempt to restrict his water intake, but with predictable results: fainting and dizziness. In addition, the restrictions placed on him led him to suffer stress-related migraines, depression, and anxiety.  “He even began to contemplate suicide,” wrote Williams.

When he began his junior year in the fall of 2015, he decided to take a risk and use the boys’ restrooms, hoping not to be caught or disciplined. “For six months, he exclusively used the boys’ restrooms at school without incident,” wrote Williams, “but, in February 2016, a teacher saw him washing his hands at a sink in the boys’ restroom and reported it to the school’s administration.”  A guidance counselor contacted his mother and reiterated the restrictive restroom policy.  Ash and his mother met with the assistant principal, who stood firm, pointing out that Ash was listed on the school’s official records as female and any change would require “legal or medical documentation.”  Subsequent correspondence eventually clarified that written certification of his gender dysphoria and of his name change would not be sufficient for the school.  They wanted a male-designated birth certificate before they would make any change.

Despite this incident, Ash continued to use the boys’ restrooms, causing him anxiousness and depression. From the court’s description, it sounds like a “cat and mouse game” was going on at the high school, as security guards were “instructed to monitor Ash’s restroom use” and he sought to evade their gaze.  He was caught a few times and removed from classes to get dressed down by administrators, however, leading classmates and teachers to ask about what was going on.  In April 2016, the school expanded Ash’s restroom access to include two single-user, gender-neutral locked restrooms on the opposite side of the campus from where his classes were held.  He was the only student issued a key to these restrooms.  But again, due to their location they were of little use to him if he wanted to avoid being late for classes, and he felt further stigmatized, avoiding these restrooms entirely.  “In addition,” wrote Williams, “Ash began to fear for his safety as more attention was drawn to his restroom use and transgender status.”  He also began to suffer various other kinds of discrimination connected with the school’s insistence on treating him as a girl, but when he decided to take legal action he restricted his complaint to the bathroom issue.

Ash found a lawyer, who sent a demand letter to the school district, which declined to change its position. Then Ash filed a complaint with the U.S. Education Department’s Office of Civil Rights, alleging a violation of Title IX.  But when it became clear that the administrative process would take too much time to provide relief for him before his senior year began, he withdrew the complaint and filed his lawsuit, seeking a preliminary injunction that would get him restroom access for his senior year.

The school district filed a motion to dismiss the lawsuit, claiming that neither Title IX nor the Constitution provided a legal cause of action for Ash. District Judge Pamela Pepper denied the motion to dismiss and granted Ash’s motion for a preliminary injunction that would allow him to use the boys’ restrooms at school while the case was pending.  A prerequisite for issuing the injunction was Judge Pepper’s determination that Title IX and the Equal Protection Clause both gave Ash legal claims on which he had a “better than negligible” chance of succeeding and that he would suffer irreparable injury, greater than any injury suffered by the school district, if he was denied this relief.

The school district attempted to appeal Judge Pepper’s denial of its motion to dismiss, but the 7th Circuit refused to consider that appeal last year.  A denial of a motion to dismiss a lawsuit is not a final judgment, because it just means that the lawsuit will continue, and if the defendant loses, then the defendant can appeal the final judgment.  Although there is a narrow set of circumstances in which a court of appeals will consider an appeal by a defendant whose motion to dismiss has been denied, this case did not fit within them, a point the court reiterated in its May 30 ruling.  The school district also appealed from Judge Pepper’s preliminary injunction, but the 7th Circuit panel unanimously affirmed Judge Pepper.

The court easily rejected the school district’s argument that Ash would not suffer irreparable harm because the district had made available to him gender-neutral restrooms. The school district also contested the expert testimony offered by a psychologist about the harm that its policies were inflicting on Ash.  Judge Williams quoted Dr. Stephanie Budge’s testimony that the district’s treatment of Ash “significantly and negatively impacted his mental health and overall well-being.”  Clearly, such an effect could not be compensated by an award of monetary damages at a later date, and was thus “irreparable” as that term is used by the courts.  Dr. Budge testified that the school district’s actions, including its bathroom policy, which identified Ash as transgender and therefore, “different,” were “directly causing significant psychological distress and place him at risk for experiencing life-long diminished well-being and life-functioning.”  The court of appeals found no clear error in Judge Pepper’s reliance on this expert testimony, which was not effectively rebutted by the school district.   Furthermore, his experience of using the boys’ restrooms for six months without any incident or complaints from students or teachers belied the school district’s argument that it would suffer serious injury if he were allowed to use those restrooms.

As to the likelihood that Ash would prevail on the merits of his claim at trial, the court did not have to strain much to reach that conclusion. Judge Williams noted that the 7th Circuit, like other courts of appeals, has looked to cases decided under Title VII of the Civil Rights Act of 1964 to determine the scope of the ban on sex discrimination.  On April 4, the 7th Circuit ruled in Hively v. Ivy Tech Community College, 853 F.3d 339, an employment discrimination case, that a lesbian who was denied a faculty position because of her sexual orientation could bring a sex discrimination claim under Title VII.  That ruling was heavily based on a line of federal cases under Title VII that had adopted a broad interpretation of “discrimination because of sex,” and Judge Williams found that the logic of those cases had clearly overruled the 7th Circuit’s decision in Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), in which it had denied a Title VII claim by a transgender airline pilot.  The Ulane case predated the Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Court found that discrimination against a person because of their failure to conform to sex stereotypes could be found to violate Title VII.  In effect, the Court said that Title VII applied to discrimination because of gender, not just because of biological sex.

“By definition,” wrote Williams, “a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” The judge cited a long list of federal court rulings that have reached this conclusion and applied Title VII to cases of gender identity discrimination.  The court rejected the school district’s argument that Congress’s failure to amend Title IX or Title VII to expressly protect people based on their transgender status required a different conclusion, and held that “Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender.”  She also pointed out that the school district was misrepresenting Ash’s claim when it argued that he may not “unilaterally declare” his gender, ignoring the medical diagnosis of gender dysphoria.

“Since his diagnosis,” wrote Judge Williams, “he has consistently lived in accordance with his gender identity. This lawsuit demonstrates that the decision to do so was not without cost or pain.  Therefore, we find that Ash has sufficiently established a probability of success on the merits of his Title IX claim.”  The court held similarly regarding Ash’s alternative constitutional equal protection claim, rejecting the school district’s argument that because it has a “rational basis” for adopting its restroom access rule – protecting the privacy of male students who did not want to use a restroom with a girl – it could prevail over Ash on the constitutional claim.  Because the court had concluded that a gender identity discrimination claim is in actuality a sex discrimination claim, it followed that the level of judicial review would be the same that courts use for sex discrimination claims: heightened scrutiny.  Under this standard, the discriminatory policy is presumed to be unconstitutional and the school district has the burden to show that it has an “exceedingly persuasive” justification for adopting the policy.

Such a justification cannot rely on “sheer conjecture and abstraction,” but that’s all the school district had. Judge Williams observed that the administration had never received any complaint from other students about Ash using the boys’ restrooms.  “This policy does nothing to protection the privacy rights of each individual student vis-à-vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.”  Indeed, Williams might have gone on to write, it would be ludicrous to suggest that a transgender boy is going to expose himself at a urinal, or stand at a urinal and glance over at other boys using the adjacent facilities.

“A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions,” wrote the judge. “Or for that matter, any other student who uses the bathroom at the same time.  Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.”

In an interesting excursion into the hotly contested science of sexual identity, Williams added that the school administration’s insistence on treating people in accord with sex markers on birth certificates would not necessarily address their concerns. “The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex,” she wrote.  “Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.  It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that are ambiguous in nature.  In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.”

She also noted the lack of consistency among the various states in what they require to change birth certificates. Depending where a transgender student was born, they might be able to get a new certificate without a surgical sex reassignment procedure, thus defeating the school’s underlying purpose in relying on the birth certificate.  She also pointed out that the school district did not have a policy requiring newly registering students to present birth certificates, allowing them to present passports as identification as an alternative. The U.S. State Department no longer requires proof of sex-reassignment surgery for a transgender man to get a passport correctly identifying his gender, so a transgender boy who had obtained an appropriate passport could register in the Kenosha School District as a boy.

Thus, having found that Ash’s allegations fulfilled all the tests required for obtaining a preliminary injunction, the court denied the school district’s appeal and affirmed the injunctive relief. There were no immediate indications that the school district would seek en banc review or petition the Supreme Court for a stay.

Ash is represented by Robert Theine Pledl of Pledl & Cohn, Milwaukee; Joseph John Wardenski and Sasha M. Samberg-Champion, of Relman, Dane & Colfax PLLC, Washington D.C.; and Shawn Thomas Meerkamper, Alison Pennington and Ilona M. Turner, with the Transgender Law Center of Oakland, California. Amicus briefs in support of Ash’s case were received from a variety of groups representing school administrators, parents, students, and LGBT rights organizations.  Among those joining in were Lambda Legal, PFLAG, Gay-Straight Alliances, and women’s rights groups, with several major law firms stepping up to author the amicus briefs.  The only amicus support for the school district came from Alliance Defending Freedom (ADF), the anti-gay religious litigation group that has championed lawsuits attacking school districts for allowing transgender students to use facilities consistent with their gender identity.

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.

 

Appeals Courts Issue New LGBT-Related Rulings

Posted on: April 26th, 2017 by Art Leonard No Comments

Several appellate courts have issued significant LGBT-related rulings in recent days. Here is a brief summary of the new developments.

Roy Moore Loses Reinstatement Appeal before “Alabama Supreme Court”

The Alabama Supreme Court normally consists of seven justices elected by the people of the state, but when Roy Moore, who was suspended as chief justice by order of the state’s Court of the Judiciary on September 30, 2016, sought to exercise his right to appeal that ruling to the state’s Supreme Court, all of the other justices recused themselves. What to do?

The Supreme Court invoked a special procedure to authorize the Acting Chief Justice (who was appointed to occupy Moore’s seat for the duration of his elective term) to “participate” with then-Governor Bentley (who has since resigned because of a sex scandal) to create a substitute supreme court to consider Moore’s appeal. They assembled a list of all the retired judges in the state who were deemed “capable of service,” then conducted a lottery to compile a list of fifty potential judges, with the first seven names drawn to make up this special substitute version of the court unless one or more recused themselves or were disqualified for some other reason, in which case they would go back to the list of 50 until they had a full bench.

Moore was suspended because of his activities in opposition to marriage equality. After U.S. District Judge Callie Granade ruled on January 23, 2015, that the Alabama Marriage Amendment and the Alabama Marriage Protection Act, both of which prohibited formation or recognition of same-sex marriages, were unconstitutional, Moore sprang into action.  He undertook various efforts to block implementation of Judge Granade’s order by denouncing it as illegitimate, then encouraging and later directing the state’s probate judges to refrain from issuing marriage licenses to same-sex couples.  As chief justice, Moore both presided over the Supreme Court and acted as the administrative head of the state court system, in which capacity he could issue directives to lower court judges.

As the marriage equality issue rose through the courts to the U.S. Supreme Court’s June 26, 2015, Obergefell v. Hodges ruling, finding a federal constitutional right for same-sex couples to marry, Moore remained outspokenly opposed, making every effort both publicly and behind the scenes to stave off the evil day when same-sex marriage might be fully accepted in Alabama. Although he recused himself from some of the Supreme Court’s actions after having issued his initial public denunciations of Granade’s rulings, he ultimately decided to participate in the court’s decision in 2016 to dismiss all pending proceedings and allow the probate judges to do their duty. But Moore wrote separately from the rest of the court, first to justify his decision not to recuse himself despite his prior actions and public statements, and then to inveigh against the federal constitutional ruling, reiterating his view that Alabama was entitled as a sovereign state to reject federal interference with its marriage laws.

This led to allegations that he was violating several provisions of the ethical code for judges, and charges were filed against him before the Court of the Judiciary, which found a string of ethical violations and suspended him from office.

In this appeal, Moore challenged the jurisdiction of the Court of the Judiciary to make its decision and contended that he had not violated any of the judicial ethical rules. He also contended that his suspension, which would run for over two years until the end of his elective term, was not warranted and was unduly long: far longer than any past disciplinary suspension of any sitting judge.

The specially-constituted substitute Supreme Court disagreed with Moore on every point, announcing on April 19 its determination, unanimously, that “the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence,” so the court “shall not disturb the sanction imposed.”

This might not be the end for Moore as a “public servant,” however. Earlier in his career he had been ejected from the state supreme court for defying a federal court order to remove a 10 Commandments Monument he had installed in the lobby of the Supreme Court building.  He bided his time and eventually came back and won election to a new term as Chief Justice.  On April 26, he announced that he would enter the contest for the U.S. Senate seat that was vacated by Jeff Sessions when he became Trump’s Attorney General.  Former Governor Bentley had appointed the state’s attorney general, Luther Strange, to fill the seat pending a special election, and Strange has already announced he will be a candidate for the Republican nomination.  The deadline for candidates to qualify for the primary is May 17 and the party primaries will be held on August 15.  If no candidate wins an outright majority for the Republican nomination, a run-off will be held September 26, and the general election is December 12.

Over $600,000 Awarded to Victorious Lawyers in Texas Marriage Equality Case

In an appeal that has been pending before a panel of the 5th Circuit Court of Appeals for more than a year, the court decided to reject an attempt by Texas Governor Greg Abbott, Attorney General Ken Paxton, and Commissioner John Hellerstedt of the Department of State Health Services to win a reduction of the large attorneys’ fees and costs awarded by U.S. District Judge Orlando Garcia to the victorious attorneys who represented the plaintiffs in the Texas marriage equality case, DeLeon v. Perry (now titled DeLeon v. Abbott).

Two same-sex couples filed suit in 2013 against then-governor Rick Perry and other state officials seeking the right to marry and to win recognition of same-sex marriages performed out of state. In February 2014 Judge Garcia ruled in favor of the plaintiffs, but the decision was stayed as the state appealed to the 5th Circuit.  That court put off oral arguments until shortly before the Supreme Court announced that it would consider appeals in marriage cases from the 6th Circuit.  Then the 5th Circuit delayed ruling until after the Supreme Court announced its Obergefell decision, which made the 5th Circuit appeal purely academic.  That court quickly affirmed Judge Garcia’s decision, making the plaintiffs “prevailing parties” who were entitled to seek an award of attorneys’ fees and costs.

Judge Garcia awarded fees of $585,470.30 and costs of $20,202.90, more than $600,000 in all. In December 2015, the new line-up of official state defendants filed their appeal.  The 5th Circuit panel issued a brief opinion upholding Garcia’s award, emphasizing that the trial judge has “broad discretion” to award fees and costs if the judge “provides a concise but clear explanation for its reasons for the fee award.”    In this case, the court found that this standard had been met, but one member of the court, Circuit Judge Jennifer Walker Elrod, issued a dissent on three points.

She objected first to awarding fees for time spent opposing a motion by an anti-gay group to intervene as a co-defendant so that they could make arguments that the state was unlikely to make in defending the statute. Although the plaintiff’s lawyers were successful in beating back the intervention effort, Judge Elrod thought the state should not be required to pay them fees for doing so, since the state had not supported the intervention effort and was not the “losing party” on that issue.

She also objected to awarding fees for time that the attorneys spent “interacting with the media.” Plaintiffs’ lawyers in controversial public interest cases frequently spend time cultivating the media to win favorable coverage of the litigation and help build public support for the resulting court decision.  That was a key part of the litigation strategy in the marriage equality cases, and arguably the successful media cultivation helped to move public opinion so that the ultimate Supreme Court decision and its implementation did not arouse widespread opposition.  But Elrod argued that awarding fees for that time was “improper.”  “Plaintiffs have offered no explanation for how the media-related tasks included in the fee award were directly and intimately related to their successful representation, or were aimed at achieving their litigation goals,” she wrote.  As such, the state should not have to pay for them.

Finally, she objected to awarding fees for much of the time spent by the plaintiffs’ attorneys in recruiting and assisting various amicus curiae (so-called “friends of the court’) to file briefs supporting the plaintiffs in the case. She would have denied fees for such time on the theory, articulated by the 11th Circuit in a prior case, that because “amici are not entitled to attorneys’ fees as a ‘prevailing party,’ it would not allow this result to be changed ‘by the simple expedient of having counsel for a party do some or all of the amicus work.’’”  She would, however, agree to order the state to pay for time that plaintiffs’ attorneys spent reviewing the amicus briefs after they were filed, because the issues and arguments raised by amici might come into play during the trial or appeals of the case.  But she rejected the view that soliciting amicus parties and helping the amici to prepare their briefs was part of the work of representing the plaintiffs.  This seems the least plausible of her objections, since lawyers consider the presentation of forceful amicus briefs, carefully coordinated to avoid inconsistent arguments and assure coverage of all potential points of argument, to be an integral part of their strategy to educate the court and provide significant supplementation to the evidentiary record.  The courts of appeals and the Supreme Court have cited amicus briefs in their opinions in favor of marriage equality, showing that they are not merely peripheral window dressing in the effort to achieve the plaintiffs’ litigation goals.

Judge Elrod stated her objections in terms of concepts rather than dollar amounts, not suggesting how much she would have reduced the fee award, and the per curiam opinion does not respond to any of her arguments. The state could seek Supreme Court review, and Elrod’s partial dissent implicitly encouraged this by contending that some of the points she raised involved departures from 5th Circuit precedent or created splits between the 5th Circuit and other Circuit courts on the basis for awarding fees to prevailing parties.  The Supreme Court is rarely interested in cases about attorneys’ fees, but a circuit split in a high profile case might catch its attention.

2nd Circuit Panels Follow Christiansen Precedent in Title VII Sexual Orientation Cases

On March 27, a three-judge panel of the New York-based 2nd Circuit Court of Appeals released a ruling in Christiansen v. Omnicom Group, holding that prior 2nd Circuit decisions blocked any reconsideration by the panel of the question whether sexual orientation discrimination claims can be litigated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex.  In an unusual move, two of the judges on the panel concurred in an opinion virtually accepting the argument that the circuit should reconsider and change its position on this question if presented with a petition for rehearing before the full bench of the circuit.

The 2nd Circuit has eleven active judges, of whom seven were appointed by Presidents Clinton or Obama, the rest by Republican presidents, holding out hope that an en banc review could lead to a favorable circuit precedent.  Although the panel ruled against Matthew Christiansen’s appeal on the sexual orientation question, it sent the case back to the district court to consider his claim of gender-stereotyping, which the Circuit may allow under the rubric of sex discrimination.

Since then, two different three-judge panels of the 2nd Circuit have issued decisions in other cases presenting the same question: whether sexual orientation discrimination claims are covered by Title VII.  In both cases, the courts found themselves bound by Christiansen and the prior precedents to reject a sexual orientation discrimination claim.

On April 18, a panel ruled in Zarda v. Altitude Express, per curiam, that it was bound by circuit precedent to uphold the trial court’s dismissal of a sexual orientation discrimination claim.   The case involved a gay male skydiver and instructor, since deceased, who was in no way gender-nonconforming – other than his failure to conform with the stereotype that men should be sexually attracted only to women, which the 2nd Circuit does not now recognize as the kind of stereotype that can give rise to a sex discrimination claim.

On April 25, a different panel ruled in Daniel v. T&M Protection Resources, a hostile environment case, that the district court correctly allowed Otis Daniel to maintain his sex discrimination claim, because the court found that the verbal harassment to which Daniel was subjected by his male supervisor could support a gender stereotyping claim. His supervisor “frequently called him ‘homo’ and told him to ‘Man up, be a man.”  The court pointedly observed that the case could not be litigated as a sexual orientation discrimination case because of prior 2nd Circuit rulings, including Zarda and Christiansen.

Attorneys for Christiansen (Susan Lask) and for Zarda’s estate executors (Gregory Antollino) have both indicated that they are filing petitions for en banc rehearing before the full 2nd Circuit.

In addition, Lambda Legal filed a petition on March 31 with the Atlanta-based 11th Circuit Court of Appeals seeking an en banc rehearing in Evans v. Georgia Regional Hospital, in which a three-judge panel voted 2-1 on March 10 to reject a sexual orientation discrimination claim under Title VII.  The panel sent the case back to a trial judge for possible litigation under a gender stereotyping theory.  Eight of the eleven active judges on the 11th Circuit are appointees of Clinton or Obama.

The 2nd and 11th Circuits both had many vacancies filled during President Obama’s first term, tipping the ideological balance of both circuits in a much more liberal direction, leaving hope that they might follow the lead of the Chicago-based 11th Circuit, which on April 4 became the first federal appeals court to ruled that sexual orientation claims are covered by Title VII, in a case brought by lesbian college instructor Kimberly Hively, represented before the appeals court by Lambda Legal.  The issue might be brought to the Supreme Court by a disappointed plaintiff or employer, depending how the courts rule on these continuing appeals.

 

 

 

11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

Posted on: March 12th, 2017 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

Gay and Trans Plaintiffs Advance Title VII Discrimination Claims Using Sex Stereotyping Theory

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

Two federal trial courts have allowed Title VII claims by law enforcement officers, one gay and the other transgender, to proceed over employer protests early in October. On October 4, U.S. District Judge Jennifer A. Dorsey granted summary judgment to Bradley Roberts, a transgender man employed as a police officer by the Clark County School District in Nevada, on his claim of gender discrimination in violation of Title VII and the Nevada Equal Rights Law, while referring claims of harassment and retaliation to a magistrate judge for trial.    Roberts v. Clark County School District, 2016 U.S. Dist. LEXIS 138329, 2016 WL 5843046 (D. Nevada).  On October 7, Chief U.S. Magistrate Judge John E. Ott of the Northern District of Alabama denied the City of Pleasant Grove’s motion to dismiss a Title VII claim by an openly gay man, Lance Smith, who had been discharged from the city’s Police Department.  Smith v. City of Pleasant Grove, 2016 U.S. Dist. LEXIS 139575, 2016 WL 5868510 (N.D. Alabama).  In both cases, the judges referred to the Supreme Court’s 1989 decision, Price Waterhouse v. Hopkins, 490 U.S. 228, which endorsed the view that employees who suffered adverse consequences because of their failure to comply with the employer’s sex-stereotypical views could sue for sex discrimination under Title VII.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, issued an administrative decision finding that the statute forbids gender identity discrimination, and the EEOC issued a similar ruling regarding sexual orientation discrimination in 2015. The EEOC rulings relied upon and extended the sex-stereotyping theory.  The agency’s rulings are not binding on the federal courts, but federal trial judges have begun over the past year to acknowledge them and, in some cases, to follow their reasoning.

The Clark County School District first hired Bradley Roberts as a campus monitor in 1992. At that time Roberts was known by a female name and hoped to become a police officer. Roberts graduated from a law enforcement academy in 1994 and was then hired by the District to be a police officer, a position Roberts held without incident for seventeen years until he began to transition.

In 2011, Roberts began dressing as a man, grooming as a man, and identifying himself as a man. He started using the men’s bathroom at work, leading to complaints from some of the other officers.  His commanding officers confronted him for an explanation, which he gave, explaining that he was transgender and in the process of transitioning.  He said he wanted to be known henceforth as Bradley Roberts and to use the men’s bathrooms.  They told him he could not do so, but that because he now appeared as a man, he should also refrain from using the women’s bathrooms.  There were some gender-neutral bathrooms in the District schools, and he was instructed to use them “to avoid any future complaints.”  Roberts followed up by sending  a letter to his superiors summarizing what he had told them and again expressing his desire to be called Bradley Roberts, for co-workers to use male pronouns in referring to him, and he promised to comply with the men’s grooming code for the District police force.

Roberts’ letter prompted another meeting with his superiors and his union representative. His request to use men’s bathrooms was again denied, and he was told he would not be referred to as a man or allowed to use the men’s bathrooms until he could provide official documentation of a name and sex change.  However, two days later, at yet another such meeting, he was told that the District would allow him to use a man’s name informally, but all “official and formal documents” would continue to use his female name until he got a court-ordered name change and processed it through the Human Resources department.  He would still be required to use only the gender-neutral bathrooms.

 

Roberts then received a proposed memo summarizing these arrangements, including his concern that co-workers and commanding officers be cautioned that asking “below the belt” questions about his anatomy “may constitute sexual harassment.” Roberts thought this memo was only going to be distributed among supervisors and managers, and claims he was “blindsided” when it went by email to everybody in the Department, generating questions and what he considered to be harassing conduct from some co-workers.

In December 2011, a court granted his name change petition, he updated his driver’s license to reflect his name and gender, and he submitted paperwork to Human Resources, which resulted in yet another email going out to the entire department explaining his name change and stating that it would take effect for purposes of his official records. However, he subsequently discovered that he was still listed as “female” on the new insurance card he was issued for 2012.

Roberts then filed a discrimination complaint with the Nevada Equal Rights Commission, alleging gender identity discrimination in violation of state law. (Nevada’s statute specifically includes gender identity.)  He cited the bathroom ban as discriminatory, and described several incidents, including the meetings with supervisors as harassment.  The District claimed that the steps it had taken had resolved any problem and refused to participate in mediation with the NERC, but in the face of a scheduled hearing the District issued a new bathroom policy, allowing Roberts to use the men’s bathrooms.  NERC then closed Roberts’ discrimination case as “moot,” but he filed a second charge, citing the bathroom ban, offensve comments from co-workers, and the department-wide emails that had essentially “outed” him to the Department without his permission.  He also alleged retaliation for filing the earlier charges and improper questions, comments and gestures by co-workers.  Ultimately he received a “right-to-sue” letter from the EEOC and sued the District in federal court.

In response to motions for summary judgment, Judge Dorsey undertook a thorough historical review of the treatment of gender identity under Title VII, emphasizing how the 9th Circuit Court of Appeals, which has appellate jurisdiction over the federal trial courts in Nevada, has embraced a broad understanding of sex discrimination under Title VII and other federal laws, such as the Violence Against Women Act.  She explained how the Price Waterhouse case had generated a growing body of decisions in other circuits allowing gender identity claims under Title VII in reliance on the sex stereotyping theory, and she noted the EEOC’s decisions in 2012 and 2015 extending this to bathroom access for transgender employees.

“I join the weight of authority and hold that discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII,” she wrote, continuing that “because it appears that the Ninth Circuit would hold that gender-identity discrimination is actionable under Title VII, I see no reason to depart from the heavy weight of this authority. Nothing in the few contrary decisions cited by the school district persuades me otherwise.  The contrary Seventh and Tenth Circuit decisions provide no cogent analysis of Title VII’s language or the Supreme Court case law,” as they relied heavily on outdated precedents.  Further, she concluded that Roberts was entitled to summary judgment on his sex discrimination claims, because it was clear that he had suffered discrimination on that basis at the hands of the District.

“Direct evidence established the department’s discriminatory intent here,” wrote Judge Dorsey. “It banned Roberts from the women’s bathroom because he no longer behaved like a woman.  This alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes.  And the department also admits that it banned Roberts from the men’s bathroom because he is biologically female.  Although CCSD contends that it discriminated against Roberts based on his genitalia, not his status as a transgender person, this is a distinction without a difference here.  Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as – in sum, because of his transgender status.”

Dorsey found that the bathroom ban was “an adverse employment action,” that Roberts was treated differently than similarly situated employees, and that the District failed to articulate a legitimate non-discriminatory reason for restricting his bathroom use.

However, she found that factual disputes precluded granting summary judgement on the harassment and retaliation claims, since there was a dispute about whether the conduct experienced by Roberts was sufficiently severe to meet the harassment standard or whether any adverse treatment he experienced was actually a response to his complaining about his treatment. Thus, summary judgment was denied as to those charges, and the judge referred them to a magistrate judge for further proceedings to resolve those factual disputes.

The Smith case involves straightforward sexual orientation discrimination by a local Alabama police department. Lance Smith interviewed with Lt. Jennifer Fredrick for an available position in the Pleasant Grove Police Department (PGPD) in 2014.  She told him he would be offered a position at a specific salary.  At the end of the interview, Smith told Fredrick that he is gay and has a same-sex partner.  Smith says that Fredrick’s demeanor immediately changed and she advised him to “reconsider” his desire to work in the PGPD.  However, after the interview Smith received an email from Fredrick informing him that “his homosexuality would not be an issue,” wrote Judge Ott.  This was evidently untrue, to judge by subsequent events related by Smith in his Title VII complaint.

After Smith completed the required physical exam, he was directed to meet with the Chief of Police, Robert Knight, who told him he would receive a lower salary than he had been promised by Lt. Fredrick. In his complaint, he claims he was paid $5,000 less than other new recruits.  Smith claims that he received only two weeks of field training instead of the three normally provided to new recruits, and then was assigned to a night shift patrol on his own rather than the usual assignment for new officers to patrol with a partner.  Smith claims that he was informed by the night shift sergeant that “Lt. Fredrick had instructed the sergeant to write down everything Smith did wrong so Lt. Fredrick could fire him.”  Smith says another officer warned him to be “careful” because a police corporal was a “homophobe.”

After a few months, Lt. Fredrick told Smith he was “not going to work out” and needed to resign, but refused to tell him what he had done wrong. In fact, he claims, she told him he was a good officer and would find another department that would “fit” him better.  Fredrick gave him a previously-prepared resignation letter and told him he would be grounded, suspended, and then fired if he did not resign.  Smith signed the letter and attempted to find police work elsewhere in the county, relying on Fredrick’s statement that she would advise prospective employers and the Jefferson County Personnel Board that he resigned in good standing, but he claims he was unable to find employment because Knight and Fredrick had “falsely reported that he was an unsatisfactory employee.”

Smith filed a sex discrimination charge with the EEOC, which issued him a right to sue letter. He filed his suit on March 1, 2016, claiming he was subjected to “discriminatory terms and conditions of employment because of his sexual orientation, and stereotypes associated with his sex and his gender,” in violation of Title VII.  He also alleged a violation of his rights under the Equal Protection Clause of the 14th Amendment, and asserted a state tort claim that the City, Knight and Fredrick had interfered with his “contractual or business relationship with prospective employers” by giving him a bad employment report.  The defendants moved to dismiss on various grounds, including the claim that Title VII does not apply to his case.

“Traditionally, court in this circuit have held that Title VII does not provide a remedy for discrimination based on sexual orientation,” wrote Judge Ott, citing a long list of cases, and adding a list of cases from other circuits with similar holdings. “The Equal Employment Opportunity Commission, however, recently concluded that ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,’” he wrote, and “at least one court in this circuit, noting that the question is an ‘open one,’ has agreed with the EEOC and has found that ‘claims of sexual orientation-based discrimination are cognizable under Title VII.’”

More importantly, wrote Ott, “Smith has also alleged discrimination based on his failure to conform to sex and gender stereotypes.” While Ott rejected Smith’s argument that discrimination based on his association with his male partner is prohibited sex discrimination, he found that the 11th Circuit, which has appellate authority over federal courts in Alabama, had accepted a broad view of sex discrimination in the Brumby case in 2011, involving a transgender state employee asserting an equal protection claim.  In that case, the 11th Circuit relied on sex-stereotype theory to conclude that Brumby had a valid equal protection claim, finding that his claim should be analyzed under the same “heightened scrutiny” standard used for sex discrimination claims.

“In his amended complaint,” wrote Ott, “Smith alleges that ‘sexual and gender-stereotyping comments’ were made to him during his employment with the Pleasant Grove Police Department, including the comment that ‘men should be men,’ which led him to conclude that other members of the department did not feel that he was ‘manly’ enough to be a police officer. He also alleges that other officers made jokes about his attire and mannerisms.  These factual allegations are ‘enough to raise a right to relief [under Title VII] above the speculative level,’” Ott continued, citing a Supreme Court ruling on the required factual allegations to ground a civil complaint.  “They are sufficient to allow the court to draw the reasonable inference that the City of Pleasant Grove could be liable for discriminating against Smith because of his failure to conform to sex and gender stereotypes.”  Thus, Ott refused to dismiss the Title VII claim, which will next proceed to discovery.

However, Ott dismissed the Equal Protection claim, asserting that Smith had failed to allege facts that would support an inference that he was denied equal protection of the laws because he failed “to adequately allege the existence of a similarly situated comparator, an essential component of an equal protection claim. To prevail on his equal protection claim, Smith must show ‘a satisfactory comparator who was in fact similarly situation and yet treated differently.’”  Ott found two relevant allegations in Smith’s complaint: that he was paid less than “similarly situated employees” and that he was “singled out because of his association with his male partner while similarly situated employees were not.” But Ott found that Smith had failed to identify particular specific “similarly situated employees” to illustrate these claims.  “He does not identify a single comparator who was allegedly treated more favorably than he was,” concluded Ott.

However, Judge Ott refused to dismiss Smith’s claim against Chief Knight and Lt. Fredrick in their individual capacities for “interference with a contractual or business relationship,” rejecting their argument that any adverse comments they made were privileged due to the city’s relationship with the county personnel board. “In their individual capacities,” wrote Ott, “Chief Knight and Lt. Fredrick did not have a ‘legitimate economic interest in and a legitimate relationship to’ any contract of business relationship Smith might secure through the Jefferson County Personnel Board.”  On the other hand, Ott rejected Smith’s claim that the City could be held liable for maintaining an “official custom or policy” of discrimination, finding insufficient factual allegations to support such a claim.

Bradley Roberts is represented by a team of lawyers led by Jason Maier of Las Vegas, with amicus assistance from Lambda Legal staff lawyers and cooperating attorneys. Lance Smith is represented by Cynthia Wilkinson of Birmingham, Alabama.

Judge Dorsey was appointed by President Barack Obama. Judge Ott was appointed by President Bill Clinton.

Federal Trial Courts Divided Over Title VII Sexual Orientation Discrimination Claims

Posted on: June 21st, 2016 by Art Leonard No Comments

Last July the Equal Employment Opportunity Commission (EEOC), reversing its position dating back fifty years, issued a ruling that a gay man could charge a federal agency employer with sex discrimination in violation of Title VII of the Civil Rights Act of 1964 for denying a promotion because of his sexual orientation. The Baldwin v. Foxx decision is an administrative ruling, not binding on federal courts, and federal trial judges are sharply divided on the issue.

During May and June, federal district judges in Virginia, New York, Illinois, Mississippi and Florida issued rulings in response to employers’ motions to dismiss Title VII claims of sexual orientation discrimination.  In each case, the employer argued that the plaintiff’s Title VII claim had to be dismissed as a matter of law because the federal employment discrimination statute does not forbid sexual orientation discrimination.

Title VII was enacted as part of the Civil Rights Act of 1964. Although the House committee considering the bill took evidence about sex discrimination, it decided to send the bill to the House floor without including “sex” as a prohibited basis for discrimination, because this was deemed  too controversial and might sink the bill. During the floor debate, however, a southern representative, Howard Smith of Virginia, a conservative Democrat who was opposed to the proposed ban on race discrimination, proposed an amendment to add “sex” to the list of prohibited grounds.  Most historical accounts suggest that Smith’s strategy was to make the bill more controversial, thus ensuring its defeat.  More recent accounts have suggested that Smith, although a racist, was actually a supporter of equal rights for women and genuinely believed that sex discrimination in the workplace should be banned.  (His amendment did not add “sex” to the other titles of the bill addressing other kinds of discrimination.)  The amendment passed, and ultimately the bill was enacted, going into effect in July 1965.

Because “sex” was added through a House floor amendment, the Committee Report on the bill says nothing about it, and the subsequent debate in the Senate (where the bill went directly to the floor, bypassing committee consideration) devoted little attention to it, apart from an amendment providing that pay practices “authorized” by the Equal Pay Act of 1963 would not be outlawed by Title VII. As a result, the “legislative history” of Title VII provides no explanation about what Congress intended by including “sex” as a prohibited ground of discrimination.

During the first quarter century of Title VII, the EEOC and the federal courts consistently rejected claims that the law outlawed sexual orientation discrimination. In the absence of explanatory legislative history, they ruled that Congress must have intended simply  to prohibit discrimination against women because they are women or against men because they are men, and nothing more complicated or nuanced than that.  This interpretation was challenged in 1989, when the Supreme Court ruled in Price Waterhouse v. Hopkins that a woman who failed to conform to her employer’s sex stereotypes could bring a sex discrimination case under Title VII, adopting a broader and more sophisticated view of sex discrimination.

Since 1989, some lower federal courts have used the Price Waterhouse ruling to allow gay or transgender plaintiffs to assert sex discrimination claims in reliance on the sex stereotype theory, while others have rejected attempt to “bootstrap” sexual orientation or gender identity into Title VII in this way.   More recently, several federal appeals courts have endorsed the idea that gender identity discrimination claims are really sex discrimination claims, and a consensus to that effect has begun to emerge, but progress has been slower on the sexual orientation front.

Last summer the EEOC’s decision in Baldwin v. Foxx presented a startling turnabout of the agency’s view. The EEOC does not adjudicate discrimination claims against non-governmental and state employers, but it is assigned an appellate role concerning discrimination claims by federal employees.  In Baldwin v. Foxx, the EEOC reversed a ruling by the Transportation Department that a gay air traffic controller could not bring a sexual orientation discrimination claim under Title VII.  Looking at the developing federal case law since Price Waterhouse and seizing upon a handful of federal district court decisions that had allowed gay plaintiffs to bring sex discrimination claims under a sex stereotype theory, the agency concluded that a sexual orientation discrimination claim is “necessarily” a sex discrimination claim and should be allowed under Title VII.

Since that July 15 ruling, many federal district judges have had to rule on motions by employers to dismiss Title VII sexual orientation discrimination claims. The precedential hierarchy of the federal court system has required some of them to dismiss those claims because the circuit court of appeals to which their rulings could be appealed had previously ruled adversely on the issue.  In other circuits, however, the question is open and some judges have taken the EEOC’s lead.

On May 5, U.S. District Judge Robert E. Payne in Virginia found that he was bound by 4th Circuit precedent to reject a sexual orientation discrimination claim under Title VII, even though the plaintiff, an openly-gay administrative assistant at Virginia Union University, had alleged clear evidence of anti-gay discrimination by the university president.  Judge Payne found that a 1996 decision by the 4th Circuit, Wrightson v. Pizza Hut of America, was still binding.  Payne noted that other federal trial courts were divided about whether to defer to the EEOC’s Baldwin ruling, but in any event he felt bound by circuit precedent to dismiss the claim.

A district judge on Long Island, Sandra J. Feuerstein, reached a similar result in Magnusson v. County of Suffolk on May 17, dismissing a Title VII claim by an openly-lesbian custodial worker at the Suffolk County Department of Public Works, who alleged that her failure to comply with her supervisors’ stereotypes of how women should dress had led to discrimination against her. Relying on prior decisions by the New York City-based 2nd Circuit Court of Appeals, Judge Feuerstein refrained from discussing more recent developments and dismissed the claim, asserting that the plaintiff’s “claims regarding incidents of harassment based on her sexual orientation do not give rise to Title VII liability.”

However, on May 31, a senior district judge in Illinois decided that prudence in light of the developing situation counseled against dismissing a pending “perceived sexual orientation” claim in the case of Matavka v. Board of Education. Judge Milton I. Shadur confronted the school district’s motion to dismiss a discrimination claim by  an employee at J. Sterling Morton High School, who alleged that “he experienced severe harassment from his coworkers and supervisors, including taunts that he was ‘gay’ and should ‘suck it,’ frequent jokes about his perceived homosexuality, and hacking of his Facebook account to identify him publicly as ‘interested in boys and men’, and an email stating ‘U. . . are homosexual.’”  Judge Shadur observed that the Chicago-based 7th Circuit Court of Appeals had in the past rejected sexual orientation discrimination claims under Title VII, which “would appear to bury” Matavka’s Title VII claim.  But, he noted, Baldwin v. Foxx, while not binding on the court, may prompt a rethinking of this issue, and that the 7th Circuit heard oral argument on September 30 of a plaintiff’s appeal from a different federal trial judge’s dismissal of a sexual orientation discrimination claim in the case of Hively v. Ivy Tech Community College.  “Should Hively follow recent district court decisions in finding Baldwin persuasive,” he wrote, “that finding plainly would affect the disposition of Morton High’s motion.  That being so, the prudent course at present is to stay this matter pending the issuance of a decision in Hively.”

The 7th Circuit has not issued a decision in Hively as of this writing.  Judge Shadur stayed a ruling on the motion until July 29, and said that if the 7th Circuit had not issued a ruling by then, he might stay it further.

The federal appeals courts are not bound by any rules about how soon after oral argument they must issue opinions. Sometimes the 7th Circuit moves quickly.  During 2014 it took just a week after the August 26 oral argument to rule affirmatively on a marriage equality case on September 4, giving the states of Wisconsin and Indiana time to petition the Supreme Court for review before the start of the Court’s October term.  The panel that heard the Hively argument has not ruled in more than eight months, suggesting that an extended internal discussion may be happening among the nine active judges of the 7th Circuit, to whom the panel’s proposed opinion would be circulated before it is released.  Panels may not depart from circuit precedent, but a majority of the active judges on the circuit can overrule their past decisions.  A 7th Circuit ruling reversing the district court’s dismissal of the Hively complaint would be a major breakthrough for Title VII coverage of sexual orientation claims.

Meanwhile, two decisions issued in June have taken opposite views on the question. In Brown v. Subway Sandwich Shop of Laurel, U.S. District Judge Keith Starrett of the Southern District of Mississippi bowed to prior 5th Circuit rulings rejecting sexual orientation claims under Title VII, and he even claimed, somewhat disingenuously, that the EEOC’s Baldwin decision did not support the plaintiff’s claim, stating that Baldwin “takes no position on the merits of the claim and resolves only timeliness and jurisdictional issues.”  While this may appear to be technically true, since the EEOC was ruling on an appeal from the Transportation Department’s dismissal of the claim and not ultimately on the merits, on the other hand the EEOC definitely did take a “position” on the question whether sexual orientation discrimination claims are covered by Title VII; it had to address this question in order to determine that it had jurisdiction over the claim.  The EEOC clearly stated in Baldwin that sexual orientation discrimination claims are “necessarily” sex discrimination claims.

By contrast, U.S. District Judge Mark E. Walker of the Northern District of Florida, finding that the 11th Circuit Court of Appeals has not issued a precedential ruling on the question, refused to dismiss a “perceived sexual orientation” discrimination claim in Winstead v. Lafayette County Board of County Commissioners on June 20.  Pointing out that the 11th Circuit had ruled in 2011 in Glenn v. Brumby that a gender identity discrimination claim could be considered a sex discrimination claim under the Equal Protection Clause using a sex stereotyping theory, Judge Walker found that the Baldwin ruling, which also discussed sex stereotyping as a basis for a sexual orientation claim, was persuasive and should be followed.

Judge Walker rejected the argument made by some courts that using the stereotyping theory for this purpose was inappropriately “bootstrapping” claims of sexual orientation discrimination under Title VII. “These arguments seem to this Court to misapprehend the nature of animus towards people based on their sexual orientation, actual or perceived,” he wrote.  “Such animus, whatever its origin, is at its core based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be ‘inappropriate’ for members of a certain sex or gender.”

He concluded: “This view – that discrimination on the basis of sexual orientation is necessarily discrimination based on gender or sex stereotypes, and is therefore sex discrimination – is persuasive to this Court, as it has been to numerous other courts and the EEOC.” He also contended that it “follows naturally from (though it is not compelled by) Brumby, which is binding Eleventh Circuit precedent.  Simply put, to treat someone differently based on her attraction to women is necessary to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily discrimination on the basis of sex.”

Ironically, Judge Walker turned to an opinion written by the late Justice Antonin Scalia, an outspoken opponent of LGBT rights, to seal the deal. He quoted from Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services, a 1998 decision that same-sex harassment cases could be brought under Title VII.  “No one doubts,” wrote Judge Walker, “that discrimination against people based on their sexual orientation was not ‘the principal evil Congress was concerned with when it enacted Title VII,’” quoting Scalia, and continuing the quote,  “’But 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.’”  Scalia was opposed to relying on “legislative history” to determine the meaning of statutes, instead insisting on focusing on the statutory language and giving words their “usual” meanings.

Judge Walker concluded that his decision not to dismiss the Title VII claim “does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that ‘in forbidding employers to discrimination against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,’” a quote from a 1971 court of appeals ruling that had been cited by the Supreme Court.

Judge Walker’s decision provides the most extended district court discussion of the merits of allowing sexual orientation discrimination claims under Title VII, but it will not be the last word, as the EEOC pushes forward with its affirmative agenda to litigate this issue in as many federal courts around the country as possible, building to a potential Supreme Court ruling. So far, the Supreme Court has refused to get involved with the ongoing debate about whether sexual orientation or gender identity discrimination claims are covered under Title VII.  It refused to review the 11th Circuit’s decision in Glenn v. Brumby.  But it can’t put things off much longer.  An affirmative 7th Circuit ruling in Hively would create the kind of “circuit split” that usually prompts the Supreme Court to agree to review a case.  That may not be long in coming.

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 Judge Says Straight but Not Gay Students Are Protected from Homophobic Harassment Under Title IX

Posted on: March 15th, 2016 by Art Leonard No Comments

Ruling on pretrial motions in a case brought by the estate of a student who committed suicide after allegedly suffering severe harassment from fellow students at a public school, Chief U.S. District Judge Glenn T. Suddaby (N.D.N.Y.) allowed the plaintiff to amend the complaint to add a Title IX cause of action for sex discrimination by an educational institution, based on the homophobic nature of slurs aimed at the decedent in Estate of D.B. v. Thousand Islands Central School District, 2016 U.S. Dist. LEXIS 32054, 2016 WL 945350 (March 14, 2016), but only because the proposed amendment does not allege that the student was gay.

Judge Suddaby’s opinion lacks any coherent narration of the facts, only mentioning individual factual allegations in passing while analyzing the various motions before the court. From what one discerns, however, the case concerns a male public school student who was subjected to bullying and harassment by fellow-students, that school officials failed to protect him, and that he committed suicide at home.

The original complaint alleged violations of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, the 14th Amendment, the Individuals with Disabilities Education Act, the New York State Education Law and the N.Y. Dignity for All Students Act.  The opinion does not identify the nature of D.B.’s alleged disability. The First Amended complaint sought to add sex discrimination claims under federal and state law, most significantly Title IX of the Education Amendments Act, which the U.S. Department of Education has construed to protect gay students from bullying and harassment.  There are also state law tort claims alleging infliction of emotional distress and negligent supervision.  The defendants raised a variety of jurisdictional and procedural arguments in support of their motion to dismiss, and opposed the cross-motion to add new counts, including the Title IX count.  The opinion is mainly interesting for the way in which Judge Suddaby analyzed the motion to add a Title IX sex discrimination claim.

Judge Suddaby found that because of 2nd Circuit precedent rejecting the idea that sexual orientation discrimination is actionable as sex discrimination under federal statutes, a student who is harassed with homophobic slurs would have an action under Title IX if the student alleged that the harassment was due to his incorrectly perceived sexual orientation but not his actual homosexual orientation!

There is a sort of “Through the Looking Glass” quality to the judge’s discussion of the Title IX claim. For example, the judge rejects the allegation that calling a boy a “pussy” could be seen as a sexually-related slur.  The complaint alleges: “[Another student] called the Decedent a ‘pussy,’ and told him ‘You’re a pussy and you need the shit kicked out of you.’ These are the types of anti-gay and gender-related slurs Decedent was consistently subjected to.’”  Judge Suddaby begs to differ. “As shocking as this slur may be,” he wrote, “the Court is not persuaded that it is related to gender under the circumstances.  Rather, as Defendants point out, the slur ‘pussy’ is more likely to mean ‘coward’ than anything gender related.  Even if the other student did intend the slur to relate to gender, Plaintiff has not made a proper showing of that fact.  Rather, most of Plaintiff’s reference to ‘gender-related slurs’ are nothing more than conclusory statements.”

On the other hand, Judge Suddaby accepted the argument that explicitly homophobic slurs could support a “gender stereotyping” claim of sex discrimination under Title IX, provided that the plaintiff was not gay!  “The Second Circuit recognizes a fine line between gender stereotyping and bootstrapping protection for sexual orientation,” he wrote.  “Because a Title IX sex discrimination claim is treated in much the same way as a Title VII sex discrimination claim, Title VII jurisprudence therefore applies.  Under the ‘gender stereotyping’ theory of liability under Title VII, individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class.  However, courts in the Second Circuit do not recognize sexual orientation as a protected classification under Title VII or Title IX.  The critical fact under the circumstances is the actual sexual orientation of the harassed person.  If the harassment consists of homophobic slurs directed at a homosexual, then a gender-stereotyping claim by that individual is improper bootstrapping.  If, on the other hand, the harassment consists of homophobic slurs directed at a heterosexual, then a gender-stereotyping claim by that individual is possible.”

In this case, the plaintiff is not alleging that D.B. was gay. To the contrary, wrote Suddaby, “D.B.’s own alleged statements refer to accusations that he was homosexual as ‘stupid gay rumours [sic].’  Moreover, the Amended Complaint alleges that the bullying was based on D.B.’s ‘actual or perceived sexual orientation’ and his ‘perceived and/or presumed sexual orientation.’  Under the circumstances, the Amended Complaint alleges facts plausibly suggesting a gender-stereotyping claim to survive a [dismissal] motion; and the amendment to include this claim is not futile.  As a result, Plaintiff’s cross-motion to amend is granted as to the inclusion of the Title IX claim.”

The judge rejected the rather bizarre argument that certain federal claims should be dismissed for failure to exhaust administrative remedies, in light of the difficulty of a deceased person pursuing administrative remedies. But he accepted the argument that the negligent supervision claim could not apply to the suicide, as such, because D.B. took his life at home, not at school.  On the other hand, this tort claim could extend to the alleged failures of school officials to respond to the ongoing bullying of D.B.  The court rejected plaintiff’s motion to add claims under the N.Y. Civil Rights Law, on the ground that statutory notice of claims had not been served on the school district as a jurisdictional prerequisite to filing suit.

The opinion reflects the retrograde state of the law within the federal 2nd Circuit as a result of a 2000 court of appeals decision, Simonton v. Runyon, which rejected a Title VII sex discrimination brought by a gay plaintiff subjected to sexually-oriented workplace harassment.  Attempts are under way to get the Circuit to reconsider this precedent in the context of ongoing litigation asserting sexual orientation discrimination claims under federal sex discrimination statutes, in line with a ruling by the Equal Employment Opportunity Commission in July 2015 that sexual orientation discrimination is “necessarily” sex discrimination in violation of Title VII.  EEOC rulings are not binding on the courts, however, and the persuasiveness of this particular EEOC ruling is somewhat compromised by the fact that it represents a reversal of almost half a century of agency precedent.

The Estate of D.B. is represented by Michael D. Meth of Chester, N.Y. Charles C. Spagnoli and Frank W. Miller of East Syracuse represent the school district.  Judge Suddaby was appointed to the district court by President George W. Bush during the last year of his second term in office.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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