New York Law School

Art Leonard Observations

Posts Tagged ‘Title VII of the Civil Rights Act of 1964’

1st Circuit Affirms Jury Verdict for Lesbian Firefighter in Title VII “Sex-Plus” Case

Posted on: January 29th, 2018 by Art Leonard No Comments

A three-judge panel of the Boston-based 1st Circuit Court of Appeals affirmed a Title VII jury verdict for Lori Franchina, a lesbian firefighter who won her claim of hostile environment sexual harassment and retaliation against the Providence, Rhode Island, fire department.  The January 25 decision harshly condemned the Providence Fire Department for its treatment of Franchina, concluding, “The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent and, as this case demonstrates, employers should be cautioned that turning a blind eye to blatant discrimination does not generally fare well under anti-discrimination laws like Title VII.”  Franchina v. City of Providence, 2018 WL 550511, 2018 U.S. App. LEXIS 1919 (1st Cir., Jan. 25, 2018).

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of the sex of an individual. Whether Title VII forbids discrimination because of sexual orientation or gender identity is one of the hot questions in employment discrimination law, but the Supreme Court’s recent decision not to review a negative answer to that question by a three-judge panel of the Atlanta-based 11th Circuit has put off a definitive answer.  In the meanwhile, gay people encountering discrimination continue to file claims and sometimes, given the nature of the problems they encounter, have been able to win victories, even in federal circuits where the courts officially do not allow sexual orientation discrimination claims.

The 1st Circuit has a twenty-year old precedent barring sexual orientation claims, but this case shows that they can be brought of the sexual orientation issues mingle with more traditional sex discrimination issues.  Courts refer to such cases as “sex-plus” cases.  The opinion by Circuit Judge Ojetta Rogeriee Thompson explained that Franchina’s evidence clearly supported liability under the sex-plus theory.

Franchina joined the Fire Department in 2002, assigned to the North Main Street Fire Station, where she experienced neither discrimination nor harassment and quickly advanced to a leadership position, eventually becoming a Rescue Lieutenant in charge of a rescue vehicle squad. Her problems began in 2006 when she was assigned to work a shift with Andre Ferro, “a firefighter with a history of sexually harassing female colleagues,” under her supervision.

On his first day under Franchina’s command, Ferro bluntly asked if she was a lesbian. When she said this was none of his business, he said, “I don’t normally like to work with women; but, you know, we like the same thing, so I think we’re going to get along.”  She told him not to say such things, and immediately went into her office to avoid him, but soon an emergency call came in and their squad was dispatched to respond.  During the run, Ferro “continued with his inappropriate prattle” and sexually charged talk, including suggesting that if Franchina wanted to have a child, “I could help you with that.”  Franchina found his chattering so distracting that she asked him several times to stop talking and she refused to engage with him.  In a subsequent run that day, he embarrassed her in front of nurses, doctors, patients, and patient families in a hospital holding room, as he “began rubbing his nipples in a circular fashion, leapt up in the air, and screamed at Franchina, ‘My lesbian lover!  How are you doing?’”  Franchina testified that she was “horrified and felt belittled,” and other firefighters present were “similarly appalled.”

The court’s opinion goes on in detail about Ferro’s continued misbehavior, which became the talk of the Department. As a result, Chief Curt Varone initiated a complaint against Ferro, and when word of the resulting disciplinary proceeding got around, other male firefighters at that station “began to treat Franchina with contempt and disdain.”  The court’s opinion documents in detail a litany of slights, insubordination, and even an attempt by a firefighter serving as a cook for the company to cause her food poisoning.  Co-workers took to referring to Franchina by epithets such as “Frangina” (a play on her name and vagina), “bitch,” and “lesbo.”  Some of the insubordination resulted in danger to patients her squad was assigned to rescue.

Even after she was transferred to a different station, the harassment continued when one of her persecutors from North Main Street showed up at the new station on an assignment and quickly spread the word about her. Franchina sought an obtained a state court injunction against one of her persecutors, but the Department failed to effectively execute an order that he not be assigned in any stations that had a rescue unit.

Although some disciplinary steps were eventually taken against individual employees, the Department never effectively put an end to the harassment, and “the constant ridicule and harassment Franchian experienced caused her to be placed on injured-on-duty (IOD) status, where she performed administrative tasks and eventually was requested not to come to the fire station.

At her discrimination trial, other women in the Department testified to a culture of discrimination, supporting Franchina’s claim that the hostile environment she encountered was due to her sex as well as her sexual orientation. This led the court to conclude that her Title VII sex discrimination claim could go forward.  The jury, resolving all issues against the Department, awarded her substantial damages, including “front-pay” which was adjusted by the trial judge to over half a million dollars and punitive damages (which the trial judge removed from the award).

Providence appealed the verdict and substantial damage award, claiming that most of Franchina’s allegations were barred by the statute of limitations and that the trial judge had erred in allowing certain objectionable evidence to be shown to the jury, but the court of appeals rejected these arguments.

Most significantly, the court rejected Providence’s argument that this was really a sexual orientation discrimination case that should have been dismissed by the trial judge under the circuit’s precedent. Judge Thompson responded that this was a “sex-plus” case, which she described as “a flavor of gender discrimination claims where ‘an employer classifies employees on the basis of sex plus another characteristic.”  The city argued that Franchina could not bring such a claim unless she could present evidence at trial of a comparative class of gay male firefighters who were not discriminated against.  The city argued that absent such evidence, she could not establish the treatment she suffered was due to her sex.

The court rejected this argument, quoting earlier decisions holding that “the effect of Title VII is not to be diluted because discrimination adversely affects only a portion of the protected class.” Thompson pointed out that the city’s position conflicts with the text of Title VII as amended in 1991 to provide that if there are more than one causative factors for discrimination, some covered by Title VII and some not, as long as the plaintiff shows a factor covered by Title VII, they can establish a sex discrimination claim under the statute.  Thus, “the sex-plus label is no more than a heuristic, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment and obtain a favorable verdict at trial even when not all members of a disfavored class are discriminated against” because another factor in addition to sex contributed to the discrimination – in this case, Franchina’s sexual orientation.

The court found that the jury had a sufficient evidentiary basis to conclude that the Department violated Title VII in Franchina’s case, because there was plenty of evidence to suggest that her sex as well as her sexual orientation were involved. The court pointed out that Franchina was not attempting to overturn the circuit’s precedent against sexual orientation claims, and in fact the trial judge had dismissed a count of her complaint specifically based on sexual orientation, so that claim was not part of the trial.

The court upheld the trial judge’s charge to the jury, which told them that Franchina “did not have to prove that all women were discriminated against or were harassed, but she must prove that she was harassed, at least in part, because she is a woman. In other words, she may meet this element by proving that she was harassed because she is part of a subclass of women, in this case lesbians, if she also proves that this harassment was at least in part because of her sex or gender.”

The court also rejected the city’s argument that an award of front-pay was inappropriate where the plaintiff did not present an expert witness to discuss how to determine the present value of future pay, which should be taken account of in the final damage award. The court pointed out that the trial judge had adjusted the jury award to take account of this factor, and that 1st Circuit precedents did not, strictly speaking, forbid awarding front-pay in the absence of expert testimony.

Franchina is represented by John Martin, Benjamin H. Duggan, and Kathy Jo Cook and KJC Law Firm LLC. The court received a joint amicus brief from GLBTQ Legal Advocates & Defenders (GLAD), Lambda Legal, the National Center for Lesbian Rights and the ACLU.

TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard No Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

 

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

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

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

Posted on: November 24th, 2017 by Art Leonard No Comments

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.

Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law

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

The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.  Not surprisingly, the Trump Administration’s answer is “No.”

 

Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law.  Both the administrative agency and the federal courts held fast to that position until relatively recently.

 

That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex.  The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.

 

By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination.  Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.

 

Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination.  Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college.  The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.

 

Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory.  In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes.  In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim.  One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff.  Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims.  A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim.  The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision.  Lambda has until the first week of October to file its petition.

 

Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims.  Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.  A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.

 

In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence.  The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench.  In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”  However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!

 

Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.)    Briefs were due by July 26 from the employer and any amicus parties supporting its position.  After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.

 

It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama.  They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting.  Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands.  But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January.  On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.

 

Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination.  This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination.  A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation.  The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress.  On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.

 

The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments.  The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter.  The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law.  It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.

 

The 2nd Circuit will not be oblivious to the political nature of the government’s opposition.  The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents.  And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.  The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided.  It is likely to see that theory’s applicability here, as the district judges have commented.  However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken.  Interesting timing issues will arise this fall.  The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.

 

The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined.  That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes.  That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim.  Zarda only pressed a sexual orientation claim under the New York State Human Rights Law.  Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim.  There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.

 

In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.  Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year.  The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.

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.

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.

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

N.Y. Federal Judge Refuses to Remand Sexual Orientation Discrimination Claim to State Court

Posted on: February 28th, 2016 by Art Leonard No Comments

Elizabeth Koke filed an action in New York State Supreme Court against the City University of New York, The Feminist Press and its executive director, Jennifer Baumgardner, alleging that she suffered unlawful employment discrimination because of her gender and actual or perceived sexual orientation in violation of Title VII and the New York State and City Human Rights laws, and also asserting other state law claims. CUNY, “with the consent of the other defendants,” removed the case to federal district court, where it was assigned to U.S. District Judge Lewis Kaplan (S.D.N.Y.). Removal was grounded on the inclusion of a Title VII claim, which gives the federal district court “original jurisdiction.”  Koke then moved to remand the case back to state court, unless Judge Kaplan was willing to issue a declaratory judgment that her “Title VII claims of discriminatory treatment are valid and that Title VII is applicable to this matter.”  Koke v. Baumgardner, 2016 U.S. Dist. LEXIS 1979, 2016 WL 93094 (Jan. 5, 2016).  Judge Kaplan refused to remand the matter.

Kaplan’s opinion does not mention any of the particulars of Koke’s discrimination charges, focusing primarily on the issue of sexual orientation discrimination under Title VII. The 2nd Circuit ruled in Simonton v. Runyon, 232 F. 3d 33 (2000), that sexual orientation discrimination claims  are not actionable under Title VII, but that claims of discrimination against a plaintiff because she fails to conform to sex stereotypes could be actionable as sex discrimination claims under that statute.  Judge Kaplan took note of the EEOC’s decision last summer in the Baldwin case (2015 WL 4397641, 2015 EEOPUB LEXIS 1905 (July 16, 2015)) that “sexual orientation is inherently a sex-based consideration,” thus rendering all sexual orientation discrimination cases actionable under Title VII.  Of course, as a district judge within the 2nd Circuit, Kaplan is bound by Simonton and may not recognize Koke’s sexual orientation discrimination claim as actionable unless the case presents sex stereotype issues, regardless of what the EEOC has said, until such time as the 2nd Circuit changes its position or the Supreme Court definitively pronounces on the issue.

“It remains to be seen,” he wrote, “whether plaintiff has stated, or can prove, a Title VII claim related to her professed sexual orientation, given that she probably cannot state a legally sufficient Title VII claim based on sexual orientation alone absent a change in law.  But even if she has not and cannot plead or make out such a claim, this would be a case over which the federal courts ‘have original jurisdiction’ for two reasons.  First, plaintiff sues under Title VII.  The jurisdictional inquiry, which is the critical point with respect to removability, is distinct from whether a complaint states a legally sufficient claim for relief except where the complaint is ‘wholly insubstantial and frivolous.’  In other words, a complaint purporting to allege a federal claim is one over which a district court has subject matter jurisdiction unless ‘the federal right claimed in a complaint is insubstantial, unsubstantiated, or frivolous.’  Given the door left ajar by Simonton for claims based on ‘failure to conform to sex stereotypes,’ the EEOC’s recent holding that Title VII prohibits discrimination on the basis of sexual orientation, and the lack of a Supreme Court ruling on whether Title VII applies to such claims, I cannot conclude, at least at this stage, that plaintiff’s Title VII claim is ‘wholly insubstantial and frivolous.’  While it may be that the Title VII claim will not survive the rigors of further testing, even to whatever extent it relates to sexual orientation on a theory of non-conformity to sexual stereotype, it nevertheless arises under the laws of the United States.”  The second point, of course, is that Koke also alleged discrimination because of gender in her complaint, and that claim clearly arises under Title VII.

Kaplan also rejected the suggestion that this was an appropriate case to decline jurisdiction over the state and local law claims, pointing out that all the claims arose out of the same nucleus of operative facts and that the anti-discrimination provisions of the federal, state and local laws substantially overlap, at least as to sex discrimination, keeping in mind the requirement to give a more liberal construction to the NY City Human Rights law than to the state or federal laws in light of a particular provision requiring that in the city ordinance.

This opinion by Judge Kaplan is quite interesting for anybody trying to track the potential impact of the EEOC’s ruling last summer. Since a majority of the states still do not ban sexual orientation discrimination expressly in their state anti-discrimination laws and Congress is unlikely to enact the pending Equality Act (which would add “sexual orientation and gender identity” to Title VII) within the foreseeable future, the availability of relief from such discrimination under Title VII could be quite valuable in those states in cases involving employers large enough to be subject to Title VII (at least 15 employees).  Furthermore, were federal courts to fall in line solidly behind the EEOC’s conclusion that sexual orientation is necessarily sex discrimination, this might lead to more expansive interpretation of state law bans on sex discrimination in the jurisdictions that don’t expressly include sexual orientation in their statutes.

Koke is represented by Erica Tracy Kagan, The Kurland Group, New York City. CUNY is represented by Steven Leon Banks of the State Attorney General’s Office.  Baumgardner and the Feminist Press are represented by Bertrand B. Pogrebin and Adam Jeremy Roth of Littler Mendelson PC, also of New York City.