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Federal Court Rules That Charlotte (N.C.) Catholic High School Violated Title VII by Discharging Gay Substitute Teacher 

Posted on: September 6th, 2021 by Art Leonard No Comments

In 2014, after federal courts ruled that North Carolina had to allow same-sex couples to marry, Lonnie Billard and his long-time partner Richard Donham decided to marry and Billard posted an exuberant announcement on his Facebook page for his friends only.  He ended that announcement by stating, “If you don’t agree with this. . . keep it to yourself.  You never asked my opinion about your personal life and I am not asking yours.”

Among Billard’s Facebook friends were staff and parents associated with Charlotte Catholic High School, where he had taught as a substitute English teacher since 2012, after a decade as a full-time member of the faculty teaching English and Drama.  His friends did not keep the news to themselves, and the school stopped calling Billard as a substitute.  When he asked why, he was told by the assistant principal that it was because he “announced his intention to marry a person of the same sex.”

Billard had been a very successful teacher at Charlotte Catholic.  He won the Inspirational Educator Award from North Carolina State University in 2011 and the Charlotte Catholic Teacher of the Year Award in 2012.  He had been nominated for that award “every year since its inception,” according to the man who was principal of the school at that time.  He had been associated with the school since 2000, and throughout that time he had been in a “romantic relationship” with Donham, whom he listed on Charlotte Catholic employee contact forms as his “friend” or “housemate,” and who was identified on some forms as living at the same address as Billard.  Donham came to Charlotte Catholic events with Billard, accompanying him on class trips to New York City with the drama students to see musicals, and had even served as a substitute teacher when Billard was teaching English full-time.  Donham also substituted at the Charlotte Diocese’s middle school.  Billard claimed that members of the high school’s administration knew that he was gay, but the current principal and assistant principal both claimed, rather incredibly, that they were not aware of his sexual orientation until his Facebook post in December 2014.

The Catholic Church is outspokenly opposed to same-sex marriage, and Catholic schools, which have employed many lesbians and gay men as teachers, have consistently dismissed those employees, regardless of how they have performed their jobs, upon finding out that they intended to or had married same-sex partners.  The de facto position of the Church sounds like the federal government’s old “don’t ask, don’t tell” policy on gay military service.  They were happy to employ qualified gay people as ministers (especially church musicians) and teachers, so long as the employees were quiet about being gay and did not go public on same-sex marriages, which the Church saw as defying Catholic doctrine and setting a bad example for congregants and students.

Billard filed a charge with the Equal Employment Opportunity Commission in May 2015, claiming a violation of his rights under Title VII, but at that time the EEOC had not yet issued its ruling that it would investigate and prosecute sexual orientation claims under Title VII’s ban on discrimination because of sex.  Ironically, the EEOC issued such a decision, in the case of gay air traffic controller David Baldwin, in July 2015, shortly after the Supreme Court ruled in June 2015 in the Obergefell case that same-sex couples had a constitutional right to marry.  Billard’s charge was still pending with the EEOC at that time, but perhaps the school’s religious defenses discouraged the EEOC from pursuing Billard’s case directly, as it decided not to sue Charlotte Catholic High School on his behalf, instead issuing a “Notice of Right to Sue Letter” to him in November 2016.  He obtained representation from the ACLU Foundation and its North Carolina affiliate, which filed suit against the school in January 2017.   On September 3, 2021, U.S. District Judge Max O. Cogburn, Jr., of the federal district court in Charlotte, granted summary judgment to Billard and denied summary judgment to the school, finding that Billard had proven a clear violation of Title VII and that none of the defenses argued by the school were valid.

The school argued that it had not fired Billard because is gay, but rather because he supports gay marriage, which the Catholic Church opposes.  The school argued that under the First Amendment’s protection for free exercise of religion, it is privileged to discharge teachers who disagree with the Church’s positions.  The school also argued that it was protected from liability by two sections of Title XII that relieve religious institutions, including religious schools, from complying with the statute’s ban on discrimination because of religion.  The school also cited a “church autonomy doctrine” under the First Amendment, which prohibits “excessive government intrusion upon religion” and which includes the so-called “ministerial exception” that the Supreme Court has identified as sheltering religious institutions from any liability for their employment decisions regarding ministers.  The school also cited the Religious Freedom Restoration Act, arguing that this federal statute would prevent the court from holding it liable for discrimination under Title VII.

The school actually disclaimed any contention that Billard comes within the ministerial exception, but to be on the safe side, Judge Cogburn explained why Billard’s duties as a substitute teacher did not come within the scope of that exception, as most recently described by the Supreme Court last year in a Catholic schoolteacher case, Our Lady of Guadalupe School v. Morrissey-Berru.  Despite the Supreme Court’s broad definition of the exception to extend to any religious school teacher who performed any religious functions, the judge concluded that Billard’s charge to lead a prayer at the beginning of each class was too minimal to excuse the School from complying with Title VII in his case.  He was not hired to teach religion.

Judge Cogburn rejected the school’s argument that discharging somebody for announcing his plans to marry a same sex partner was not discriminating against him because of his sex (or sexual orientation), drawing a comparison to Supreme Court Justice Neil Gorsuch’s reasoning in the Bostock decision of 2020.  The judge pointed out that a female teacher who posted an announcement on Facebook that she was marrying a man would not be discharged, but when Billard, a man, posted the announcement that he was marrying a man, he was discharged, so clearly his sex was a reason for his discharge.  Justice Gorsuch had described similar hypothetical situations in explaining the Supreme Court’s conclusion that firing an employee for being gay was inescapably due, in part, to the employee’s sex, and thus prohibited by Title VII, even though members of Congress in 1964 would not have expected such a ruling.  Gorsuch, a “textualist,” takes the view that the words of the statute take priority over the expectation or intentions of the legislators who passed it, and his view won the support of six of the Court’s nine members.

As to the express religious institution exemptions included in Title VII, the court concluded that they were not intended to excuse religions institutions from complying with Title VII’s ban on discrimination because of sex. Rather, they were enacted to allow religious institutions to prefer members of their faith in making employment decisions.  Billard is a Catholic, and the court was unwilling to accept the school’s argument that a provision allowing it to discriminate because of religion also gave it a right to discriminate because of sex if it had a religious reason for doing so.  Under that theory, a religious institution would be free to discriminate on the basis of race, color, national origin or sex, the other categories prohibited under Title VII, which stretches the religious exception too far and would expose thousands of employees of religious institutions to discriminatory treatment.  Congress has not given religious institutions free reign to discriminate against employees for reasons other than the employees’ religion.

As to the Religious Freedom Restoration Act, many federal appeals courts have ruled that it applies only to situations where the government is suing to enforce a federal statute against a religious defendant, but not to lawsuits brought by private individuals.  Although the Supreme Court has yet to rule on this question, and at least one appeals court has disagreed with that conclusion, Judge Cogburn found based on a close reading of the text of RFRA that it was clearly aimed to restricting enforcement actions by the government, and that a court decision in a lawsuit brought by a non-governmental litigant, such as Lonnie Billard, would not be subject to RFRA’s requirement that the government prove it had a compelling interest to enforce a federal law that burdens the defendant’s free exercise of religion. The court itself is not a “party” to a non-governmental lawsuit, and in the absence of a governmental party, the affirmative defense provisions of RFRA have no application.

Several lawsuits are pending around the country in which employees of Catholic institutions who were discharged over the same-sex marriage issue are seeking relief under Title VII.  In many of them, the plaintiffs’ job duties were such as to bring them within the ministerial exception.  Billard’s is the rare case that was not, at least according to Judge Cogburn’s analysis.

Having granted Billard summary judgment on the merits of his claim, Judge Cogburn ordered that the case “Proceed to trial to determine the appropriate relief that should be granted.”  It is likely that to avoid a court order to reinstate Billard as a substitute teacher, the school may offer a substantial financial settlement.  Title VII specifically lists “reinstatement” as a remedy for a wrongful discharge.  If the case doesn’t settle and Judge Cogburn orders reinstatement, the school and the Roman Catholic Diocese of Charlotte, a co-defendant, are likely to appeal to the 4th Circuit Court of Appeals.

Judge Cogburn was appointed to the court by President Barack Obama.  In 2014, he wrote the decision striking down North Carolina’s ban on same-sex marriage, a decision that was upheld by the 4th Circuit and denied review by the Supreme Court, and it was the decision that led Billard and Donham to decide to get married that led to this lawsuit!

Iowa Supreme Court Reverses Gay Workers’ Compensation Commissioner’s Jury Verdict and $1.5 Million Damage Award

Posted on: July 3rd, 2021 by Art Leonard No Comments

Christopher J. Godfrey, an out gay man who served as Iowa’s Workers Compensation Commissioner beginning in 2006, won a jury verdict in 2019 of $1.5 million dollars on claims of sexual orientation discrimination and retaliation by Governor Terry Branstad, Branstad’s legal counsel, and the state government.  The jury found a violation of the state’s statutory ban on sexual orientation discrimination in employment, and a violation of Godfrey’s constitutional due process rights.  But on June 30, the Iowa Supreme Court reversed the jury verdict in Godfrey v. State of Iowa, 2021 WL 2671324, 2021 Iowa Sup. LEXIS 92, finding that the trial judge should have ruled that the defendants, now-former Governor Branstad, his Legal Counsel Brenna Findley, and the State of Iowa were entitled to judgment as a matter of law, and that the judge should not have submitted the case to the jury for decision. Justice Christopher McDonald wrote the opinion for the court.

Godfrey was appointed to a full six-year term as Commissioner of Workers Compensation by Governor Chet Culver, a Democrat, and was confirmed unanimously by the state Senate in 2009.  He was openly gay at the time.  He had previously received interim appointments to that position beginning in 2006 from prior Governor Tom Vilsack, also a Democrat who served as Secretary of Agriculture in the Obama Administration (a position to which he was appointed again this year by President Biden), and Godfrey was reappointed to an interim vacancy as Commissioner by Governor Culver, before receiving the full-term appointment.

In 2010, Republican Terry Branstad, a former Iowa governor who had taken a position as a university president, came out of political retirement and defeated Governor Culver’s bid for reelection.  As was customary with a change of administration, his staff notified all Commissioners who had been appointed by Branstad’s Democratic predecessors to submit letters of resignation, leaving the decision to the governor-elect whether to continue them in office.

Godfrey refused to submit such a letter, telling Governor-Elect Branstad (in the only in-person meeting he ever had with Branstad) that he was appointed and confirmed for a full six-year term and intended to serve the full term through 2015.  Under Iowa law, Governor Branstad could not replace Godfrey on his own initiative, but Godfrey could be removed by the Executive Council of the state, made up of the governor and several other top executive branch officials, for causes specified by statute which were not present in this situation.  So Branstad was stuck with Godfrey if Godfrey would not resign.

Upon taking office, Branstad turned his attention to other matters, but at the end of the legislative session on June 30, 2011, he returned to the Godfrey situation, having received complaints about Godfrey’s perceived “anti-business” stance from the leadership of the Iowa Association of Business and Industry (ABI), the state’s chamber of commerce, who told Branstad that the Commission was creating an adverse climate for business in the state.  In consultation with his staff, Branstad determined that he could reduce Godfrey’s salary, hoping that would induce him to quit.  State law specified a salary range for Commissioners and Godfrey was being paid at the top of the range at $112,070.  Branstad decided to reduce his salary to the bottom of the range, $73,250, if he rejected another request to resign.  Two members of the governor’s staff met with Godfrey to reiterate the governor’s demand for his resignation, which Godfrey refused.  He was then told the Governor had decided to reduce his salary to the bottom of the statutory range.

Godfrey quickly let others know about his salary reduction, contacted the attorney general seeking possible intervention, and contacted legislators to see if they would intervene.  Senator William Dotzler phoned one of Branstad’s aides, saying “you guys might want to consider the action you’re taking on Chris Godfrey.  He is an openly gay man, and that can be an issue down the road.”  When Godfrey announced publicly the next day that he was being subjected to sexual orientation discrimination, Branstad claimed that he, the sole decision-maker in reducing Godfrey’s salary, had not known that Godfrey was gay until the day after the salary reduction was communicated to Godfrey, when Godfrey leveled his public accusation.

Godfrey sued the State, Branstad and other executive branch officials in January 2012, asserting claims under the Iowa Civil Rights Act, which bans employment discrimination because of sexual orientation, and the Iowa Constitution.  Before the case came to trial, various pretrial motions came up to the Supreme Court involving immunity claims by particular state officials and the question whether Godfrey could sue for damages against Branstad and other officials on his constitutional claims.  One question that did not come up in those proceedings was whether the Iowa Civil Rights Act’s ban on employment discrimination and retaliation applied to a state agency commissioner who was appointed by the governor and confirmed by the Senate for a fixed term.

Much of the focus of the trial, which is described in great detail in Justice McDonald’s opinion, went to the question whether Branstad personally knew that Godfrey was gay when he took action to pressure Godfrey to resign by reducing his salary.  Branstad insisted that he had not known, but evidently the jury did not believe him, relying on testimony from numerous witnesses about how Godfrey’s sexual orientation was known and reported in the press when he was appointed by Vilsack and Culver, was known to the Senators who voted to confirm him (and even came up at one point in a confirmation hearing), was known by the lieutenant governor (now Governor Reynolds since Branstad’s retirement to become Ambassador to China in the Trump Administration), who had actually been introduced to Godfrey’s husband, and was known by members of Branstad’s staff and the staff of the ABI.

Godfrey also put in plenty of evidence about the anti-LGBT stance of the Iowa Republican Party, about the vicious campaign against members of the Iowa Supreme Court who were denied retention by the voters after they had unanimously ruled in favor of same-sex marriage under the state constitution, about the party’s platform in Branstad’s election campaign seeking to amend the constitution to overrule the court’s marriage decision and to amend the Civil Rights Act to remove sexual orientation and gender identity as prohibited grounds of discrimination.  There was also substantial evidence, which was not contested by the defendants, about the emotional distress that Godfrey suffered as a result of the pressure campaign to get him to resign.

At the end of the trial, the defendants moved for judgment as a matter of law, but Jasper County District Judge Brad McCall denied the motion.  The jury awarded Godfrey $500,00 in emotional distress damages on his claims for sexual orientation discrimination and retaliation against the state, and $1 million in emotional distress damages against Governor Branstad and one of his aides on Godfrey’s constitutional claims.  The defendants appealed to the state Supreme Court.

The court concluded that the trial record showed no direct evidence that Branstad was personally aware that Godfrey was gay.  Branstad had served as governor before Vilsack.  When he left office, he became president of Des Moines University, an “osteopathic school of medicine,” and, wrote Justice McDonald, “At the time he was hired, Branstad committed to the trustees of the university that he would stay out of and away from politics while serving in the position.”  He claimed that he paid no attention to whom Vilsack or Culver was appointing as Commissioners, and that he was personally unaware of Godfrey until during his campaign to defeat Culver for re-election, when ABI officials first complained to him about Godfrey’s anti-business bias, but that they did not mention that Godfrey was gay.  Indeed, although he was surrounded by people who knew Godfrey was gay, Branstad swore that the first he heard of that was when Godfrey accused him of sexual orientation discrimination after the salary reduction was communicated to Godfrey.

The court decided that all of Godfrey’s evidence on this point was circumstantial, none of it directly showing that Branstad knew Godfrey was gay, and therefore, since Branstad was the sole decision maker on dealing with Godfrey, the case should have been dismissed as a matter of law for lack of evidence of discriminatory motive.  The court also rejected the constitutional due process claim, finding no denial of Godfrey’s procedural due process rights.

Dissenting Justice Brent Appel objected to the court substituting its judgment for that of the jury.  He agreed with the court’s disposition of the constitutional claim, but pointed out that under the Civil Rights Act a plaintiff can win a discrimination case based on circumstantial evidence, and it was up to the jury to weigh all the evidence and decide whether the defendants violated the statute.  Appel conceded that it was possible that a jury could find for Branstad, but taking account of all the evidence, it was also possible that a reasonable jury could decide for Godfrey, and it was inappropriate for an appellate court to make that determination.  Contested questions of fact are supposed to be decided by juries, unless it would be impossible for a reasonable jury to resolve such questions in favor of the plaintiff.  Appel argued that the evidence about the Republican Party’s anti-LGBT stance was relevant to the jury’s determination of the motive for attempting to force Godfrey from his position.

Chief Justice Susan Christensen and Justice Matthew McDermott, while also agreeing with the majority as to the ultimate outcome of the case in favor of defendants, argued in an opinion by McDermott that the claims under the Civil Rights Act should have been dismissed on the ground that Godfrey, as an appointed and Senate-confirmed officer of the state government, was not an “employee” within the meaning of the Act, and thus that the Act’s employment discrimination provisions did not apply to him.

Godfrey did not serve out his full term as Commissioner, eventually resigning to take a position in the Obama Administration at the Employees’ Compensation Appeals Board (ECAB), where he continued to serve until January 20, 2021, when he was sworn in to his current position as Director of the Office of Workers’ Compensation Programs in the U.S. Department of Labor.

Godfrey is represented by Roxanne Conlin, Devin Kelly, and Jean Mauss of Roxann Conlin & Associates, Des Moines.

U.S. Education Department to Publish Official Interpretation of Title IX Covering Sexual Orientation and Gender Identity Discrimination

Posted on: June 16th, 2021 by Art Leonard No Comments

Following up on President Joe Biden’s Executive Orders of January 20 and March 8, 2021, and a March 26 Memorandum by the Civil Rights Division of the Department of Justice, the U.S. Department of Education announced on June 16 that it is publishing a “Notice of Interpretation” in the Federal Register confirming that Title IX of the Education Amendments of 1972, which prohibits educational institutions that received federal funding from discriminating against students “on the basis of sex,” applies to discrimination because of sexual orientation or gender identity (transgender status).

The announcement came just a year after the Supreme Court interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” to include discrimination because of sexual orientation or transgender status, in Bostock v. Clayton County, Georgia.  In Bostock, the Court combined cases from the 2nd, 6th and 11th Circuit Courts of Appeals involving two gay men and a transgender woman, and voted 6-3 that any discrimination against an employee because they are gay, lesbian or transgender is necessarily at least in part because of their sex.  President Donald J. Trump’s first appointee to the Court, Justice Neil Gorsuch, wrote the opinion for the Court by assignment from Chief Justice John Roberts, who joined the opinion together with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.

Although the Bostock decision directly interpreted only Title VII, its reasoning clearly applied to any law that prohibits discrimination “because of sex” or “on the basis of sex,” as the Education Department’s Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, wrote in the Notice issued on June 16.  In his January 20 Executive Order, President Biden directed all Executive Branch agencies to consider the implications of the Bostock decision for their policies and programs, and to apply the reasoning of that decision to the extent it was consistent with purposes of the particular policies and programs.  His March 8 Executive Order explicitly referenced sexual orientation and gender identity in “guaranteeing an educational environment free from discrimination on the basis of sex.”

“After reviewing the text of Title IX and Federal courts’ interpretation of Title IX,” wrote Goldberg, “the Department has concluded that the same clarity [that the Supreme Court found under Title VII] exists for Title IX.  That is, Title IX prohibits recipients of Federal financial assistance from discrimination based on sexual orientation and gender identity in their education programs and activities.  The Department has also concluded for the reasons described in this Notice that, to the extent other interpretations may exist, this is the best interpretation of the statute.”

The Notice listed “numerous” lower federal court decisions that were issued over the past year taking this position, including the most recent ruling by the 4th Circuit Court of Appeals in the Gavin Grimm case, concerning a transgender boy who was denied access to restroom facilities at a Virginia high school.  The school board in that case filed a petition seeking Supreme Court review on February 24, which would present the Supreme Court with a ready vehicle to weigh in on this issue if it wants to do so.

Reversing the position taken by the Education Department during the Trump Administration, the Notice announces that the Department will investigate sexual orientation and gender identity discrimination allegations by students.  “This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity,” wrote Goldberg.  She pointed out that a determination whether Title IX was violated will depend on the facts of individual cases, and of course Title IX applies only to schools that receive federal funds.

In a footnote, Goldberg pointed out that “educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets,” citing 20 U.S.C. section 1681(a)(3).  There is a pending federal lawsuit against the Education Department by a group of students from such religious schools claiming that this section violates the 1st Amendment Establishment Clause.  Religious schools have moved to intervene as parties in that lawsuit, claiming that the government may not sufficiently defend their exemption.  The Justice Department has opposed their motion in a recent court filing, asserting that the government will “vigorously” defend the challenged provision.  The religious exemption was a politically necessary compromise to get Title IX adopted by Congress.

While the June 16 Notice states that its interpretation of Title IX “supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation or gender identity,” it goes on to say that this “interpretation does not reinstate any previously rescinded guidance documents.”  This comment is significant, because during the Obama Administration the Education Department issued guidance documents on Title IX compliance requirements that took positions on many of the controversial issues that have been subject to litigation.  Those guidance requirements were cited by school boards and administrators in defending actions they took, even after the guidances were formally rescinded by the Education Department shortly after Betsy DeVos was confirmed as Secretary of Education.  DeVos took the position, later bolstered by a memorandum by Attorney General Jeff Sessions in October 2017, that Title IX did not cover sexual orientation or gender identity discrimination.

Miguel Cardona, Biden’s Secretary of Education, told The New York Times in an interview published on June 16 that “Students cannot be discriminated against because of their sexual orientation or their gender identity,” but left unclear the question whether his Department would be challenging state laws that ban transgender girls from competing in school sports.  He stated, “We need to make sure we are supporting all students in our schools,” but he did not get specific about particular challenged policies.  Making clear that “all” really means “all,” the Notice says that the Department’s Office of Civil Rights “carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.”

The U.S. Court of Appeals for the 9th Circuit recently heard arguments in the State of Idaho’s appeal from a district court decision finding that the state’s ban on transgender girls playing sports, the first such ban to be enacted, violates the constitutional rights of the transgender girls.  If this issue ends up in the Supreme Court, the Biden Administration will have to take a position one way or the other, just as it will be pressed to take a position if the Court grants the petition by the Gloucester County School Board in the Gavin Grimm case.  A federal court in Connecticut recently dismissed a lawsuit by a group of cisgender female high school athletes challenging a state policy of allowing transgender girls to compete, finding that the plaintiffs lacked standing to bring the issue to the court.

The Education Department’s interpretation of Title IX is not binding on the federal courts, but is entitled to some degree of deference under principles of administrative law.   After DeVos and Sessions “rescinded” the Obama Administration’s interpretation and guidance documents, many federal courts continued to rule in favor of transgender students and school administrators who had adopted policies allowing transgender students to use restroom facilities.  The lower federal courts have been united up to now in rejecting claims by parents and students that allowing transgender students to use restroom and locker room facilities violates the constitutional privacy rights of non-LGBTQ students, and the Supreme Court has so far refrained from hearing those cases.

As President Biden has boasted about how many LGBTQ people he has appointed, it is worth noting that both the Justice Department Civil Rights Division March 26 Memo and the June 16 DOE Notice were authored by out lesbian appointees, Pamela Karlan and Suzanne Goldberg.

Michigan Claims Court Issues Split Ruling on State’s Public Accommodations Law

Posted on: December 13th, 2020 by Art Leonard No Comments

Michigan Court of Claims Judge Christopher M. Murray issued an opinion on December 7 in Rouch World v. Michigan Department of Civil Rights, Court of Claims Case No. 20-000145-MZ, holding that the state’s Elliot-Larsen Civil Rights Act (ELCRA), which, among other things, prohibits businesses from discriminating against customers because of their sex, cannot be interpreted by his court as banning sexual orientation discrimination, because the state’s Court of Appeals rejected the argument that sexual orientation discrimination is covered by the Act in a 1993 ruling.

On the other hand, finding that there is no Michigan court ruling on whether the ELCRA’s sex discrimination ban can be applied to discrimination against transgender people, Judge Murray followed the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, 140 S. Ct. 1731, which interpreted the federal ban on sex discrimination in employment to apply to claims of discrimination based on transgender status.

Michigan Attorney General Dana Nessel announced that she would appeal Murray’s ruling as to sexual orientation discrimination, while the business that faces a gender identity discrimination claim announced that it would appeal that ruling.

Murray’s opinion concerned discrimination claims against two businesses.  Rouch World, an events venue that rents space for weddings and other celebrations, refused to book an event for a same-sex couple, citing the owners’ religious objections to same-sex marriages.  Uprooted Electrolysis, which provides permanent hair-removal treatment, turned down a transgender person seeking their service as part of her transition, also citing religious objections.

In both cases, the rejected customers filed complaints with MDCR, which began investigations pursuant to its Interpretative Statement 2018-1, which states that the ELCRA can be interpreted to cover such claims.  In both cases, the businesses subsequently filed suit in the Court of Claims, arguing that the Department does not have jurisdiction over sexual orientation and gender identity claims, and even if it did, that their religious objections privileged them to deny the services.  The plaintiffs asked the court to put an end to the investigations.

Judge Murray explained that the ELCRA does not define the word “sex” as used in the provision applicable to claims of discrimination by “a place of public accommodation,” which includes businesses selling goods or services to the public.  In 1993, the Michigan Court of Appeals ruled in Barbour v. Department of Social Services, 497 N.W. 2d 216, that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the Act.”  That decision is binding on trial courts in Michigan.  Judge Murray explained that “whether Barbour’s reasoning is no longer valid in light of Bostock v. Clayton County, and cases containing similar reasoning, is a matter for the Court of Appeals, not this court.”  Consequently, Attorney General Nessel, herself an out lesbian who helped persuade the Department to issue Interpretative Statement 2018-1, will appeal this part of the ruling to the Court of Appeals.

On the other hand, Murray found no prior opinion by a Michigan court addressing the question of whether gender identity discrimination claims are covered by the ELCRA.  Lacking such authority, Michigan courts will look to decisions concerning other statutes with similar language as well as federal rulings for interpretative guidance.  This brings the Bostock decision into play.

Significantly, the Michigan Supreme Court recently vacated a Michigan Court of Appeals ruling in a case under the ethnic intimidation statute for reconsideration in light of Bostock.  In that case, People v. Rogers, 331 Mich. App. 12, vacated, 950 N.W. 2d 48 (2020), the Court of Appeals ruled that the ethnic intimidation statute’s listing of sex does not cover hate crimes against transgender people.  The Michigan Supreme Court told the Court of Appeals to reconsider that ruling in light of Bostock, a clear signal that the Michigan court is prepared to treat the Bostock decision as a persuasive precedent for interpreting the state’s sex discrimination laws.

“Following the Bostock Court’s rationale,” wrote Murray, “if defendants determine that a  person treated someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures.  Nothing in the ELCRA would preclude that action.”

The bottom line of Judge Murray’s decision is that the Department does not have jurisdiction of the sexual orientation discrimination claim against Rouch World unless the Michigan Court of Appeals decides to overrule its old Barbour decision, but that the Department does have jurisdiction to investigate Uprooted Electrolysis’s denial of service to a transgender client, at least so far as interpretation of the ELCRA goes.  Of course, the Supreme Court’s remand in the ethnic intimidation case is likely to persuade the Court of Appeals that it should also reconsider Barbour in light of Bostock.

The court refrained from ruling on the religious exemption claims, stating that issue “has not been sufficiently briefed to resolve at this juncture.”  The question of federal constitutional religious exemptions from compliance with state or local anti-discrimination laws is now before the U.S. Supreme Court in Fulton v. City of Philadelphia, which was argued on November 4 and will be decided sometime in 2021.  It is likely that many state agencies and courts dealing with religious exemption claims by civil rights defendants may delay ruling on such claims until the Supreme Court rules in Fulton.

Judge Murray ended his opinion by stating, “This is not a final order as it does not resolve all of the pending issues in this case.”  This cryptic remark implies that Uprooted Electrolysis may not immediately appeal the court’s determination that the ELCRA applies to the transgender discrimination claim, since its religious exemption claim has not yet been ruled upon.  However, the declaration that the MDCR does not have jurisdiction over the sexual orientation claim against Rouch World seems final as to that complaint, so Attorney General Nessel may be able to appeal that ruling.

Supreme Court May Address Parental Presumption for Children of Married Lesbians This Term

Posted on: November 26th, 2020 by Art Leonard No Comments

Now that there is a 6-3 conservative majority on the Supreme Court, it is possible that the Court will begin a process of cutting back on marriage equality.  This is at least one interpretation of the Court’s request for additional briefing on a cert petition filed by the state of Indiana in Box v. Henderson, No. 19-1385, seeking review of the 7th Circuit’s January 17, 2020, decision in Henderson v. Box, 947 F.3d 482, in which the court of appeals applied the Supreme Court’s rulings in Obergefell v. Hodges, 576 U.S. 644 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), to rule that a state must apply the parental presumption regarding newborn children regardless of the sex of the birth mother’s spouse, if it always applies the presumption when the birth mother’s spouse is male.

When the petition was filed with the Court in June, the Respondents (same-sex mothers challenging the state’s policy) waived their right to file a response, apparently assuming that the Court would not be interested in revisiting an issue that it had decided per curiam with only three dissenting votes as recently as June 2017.   The petition was circulated to the justices for their conference of September 29, which would be held the week after the death on September 18 of Justice Ruth Bader Ginsburg, who was part of the Pavan v. Smith majority.  Another member of that majority who is no longer on the Court is Anthony M. Kennedy, whose retirement led to Justice Brett Kavanaugh’s appointment.  By the time the Court was to hold its conference on  the 29th, it was clear that Trump would nominate a conservative replacement for Ginsburg and that the Senate would rush to confirm the nominee to fulfil Trump’s goal to ensure a 6-3 Republican conservative majority on the Court in case he sought to contest adverse election results.

Evidently the Box v. Henderson petition, lacking a responsive filing, caught the eyes of one or more of the conservative justices, who had the Clerk of the Court send a request to the plaintiffs to file a responding brief, which was filed on November 10.  On November 23, the state of Indiana filed a Reply brief, which provided a news hook for media to report on November 24 that the new conservative majority might take up the case as a vehicle to cut back on marriage equality by holding that a state may decide that it is not required to presume that the wife of a birth mother is the other parent for purposes of officially recording the birth.

An argument that has been persuasive to lower courts, apart from the “equal treatment” for same-sex marriages statements in Obergefell and Pavan, is that states have applied the presumption in favor of the husbands of birth mothers even when it was clear that the husband was not the biological father, as for example when donor sperm was used to inseminate the wife with the husband’s consent, or when the husband and wife were geographically separated when the wife became pregnant.  Thus, under existing policies in many states, the parental presumption has not been limited to cases in which it was rational to assume that the birth mother’s husband was the child’s biological father.  In this connection, even if Chief Justice Roberts, part of the per curiam majority in Pavan despite his dissent in Obergefell, sticks with his vote in Pavan, there are now five conservatives to vote the other way, two of whom joined Justice Neil Gorsuch’s dissent in Pavan asserting that the issue was not decided simply on the basis of Obergefell.

With the filing of the state’s reply brief, the Petition has been redistributed for the Court’s conference of December 11.  Sometimes the Court rolls over cert Petitions for many conferences before reaching a decision whether to grant review.  If the Court grants certiorari before the end of January, the case would likely be argued during the current term and decided by the end of June. A later grant would most likely be argued during the October 2021 Term.

Counsel listed on the Respondents’ Brief in Opposition include Karen Celestino-Horseman (Counsel of Record) of Austin & Jones, P.C., Indianapolis; attorneys from the National Center for Lesbian Rights (Catherine Sakimura, Shannon Minter, and Christopher Stoll), San Francisco; Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington (who was one of the oral advocates in the Obergefell case); Joshua E. Goldstein, also of Ropes & Gray LLP, Boston office; Raymond L. Faust, of Norris Choplin Schroeder LLP, Indianapolis, William R. Groth of Vlink Law Firm LLC, Indianapolis; and Richard Andrew Mann and Megal L. Gehring, of Mann Law, P.C., Indianapolis.  Several same-sex couples joined in this case, resulting in several Indianapolis law firms being involved.

Federal Court Blocks Trump Regulation Revoking Health Care Protections for Transgender People

Posted on: August 18th, 2020 by Art Leonard No Comments

U.S. District Judge Frederic Block ruled on August 17 that a new Trump Administration Rule that rescinded the Obama Administration’s Rule prohibiting gender identity discrimination in health care will not go into effect on August 18, its scheduled date, and he granted a preliminary injunction against the new Rule’s enforcement.  Judge Block sits in the U.S. District Court for the Eastern District of New York, in Brooklyn. Walker v. Azar, 2020 U.S. Dist. LEXIS 148141.

After President Obama signed the Affordable Care Act (ACA) into law in 2010, the Department of Health and Human Services (HHS) decided to adopt a rule providing an official interpretation of the non-discrimination requirements contained in Section 1557 of that statute.  Section 1557 incorporates by reference a provision of Title IX of the Education Amendments of 1972, which forbids discrimination because of sex in educational institutions that get federal funding.  In the past, HHS and federal courts have looked to decisions interpreting the sex discrimination provision in Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment, in interpreting Title IX.

By the time HHS had finished writing its rule in 2016, both the Equal Employment Opportunity Commission and several federal appeals courts had interpreted Title VII to ban discrimination because of an individual’s gender identity.  The Obama Administration followed these precedents and included a prohibition on gender identity discrimination in its ACA rule.  Several states and a religious health care institution then joined together to challenge the rule before a federal district judge in Fort Worth, Texas, who was notoriously receptive to issuing nationwide injunctions against Obama Administration policies, and the court was true to that practice, holding that the inclusion of gender identity was contrary to the “original meaning” of the term “because of sex” when it was adopted by Congress in Title IX back in 1972.  The case is Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).

The new Trump Administration rule that was challenged in the August 17 ruling was intended by the Department of Health and Human Services to codify the decision by district court in Franciscan Alliance.  Franciscan Alliance was issued in December 2016, just weeks before the Trump Administration took office.  Had Hillary Clinton been elected president, the incoming administration would likely have appealed the Fort Worth decision to the U.S. Court of Appeals for the 5th Circuit. But the Trump Administration informed the district court that it was not appealing and instead would not enforce the Obama Administration rule and would eventually replace it.

Judge Block emphasized this history as he set out his reasons for finding that Human Rights Campaign (HRC) and its volunteer attorneys from Baker & Hostetler LLP, were likely to succeed on the merits of their claim that the Trump Rule was both inconsistent with the ACA, and that HHS was “arbitrary and capricious” in adopting this new Rule and publishing it just days after the Supreme Court had ruled in Bostock v. Clayton County that discrimination against a person because of their transgender status was “necessarily discrimination because of sex.”

The Supreme Court had heard oral arguments in the Bostock case, which concerned the interpretation of Title VII, on October 8, 2019, while HHS was working on its proposed new rule.  The HHS attorneys knew that the Supreme Court would be issuing a decision by the end of its term, most likely in June 2020.  One of the three cases consolidated in Bostock involved a gender identity discrimination claim by Aimee Stephens against Harris Funeral Homes. The Equal Employment Opportunity Commission (EEOC) had sued the employer on Stephens’ behalf.  The 6th Circuit Court of Appeals ruled that Harris Funeral Homes violated Title VII by discharging Stephens for transitioning, and the Supreme Court granted review on the specific question whether discrimination because of transgender status violates Title VII.  HHS concedes in the “preamble” of its new rule that interpretations of Title IX (and thus Section 1157) generally follow interpretations of Title VII.

October 2017, then-Attorney General Jeff Sessions issued a memorandum to the Executive Branch explaining the Trump Administration’s position that bans on sex discrimination in federal law did not extend to claims of discrimination because of sexual orientation or gender identity.  Thus, although the U.S. Solicitor General normally represents federal agencies such as the EEOC when their decisions are appealed to the Supreme Court, that office actually joined in  arguing on behalf of Harris Funeral Homes, leaving it to the ACLU LGBT Rights Project to represent Aimee Stephens before the Supreme Court.

The Trump Administration was so confident that the Court would rule against Stephens that it decided to go ahead with its new Rule, effectively revoking the Obama Administration’s Rule, although the “preamble” did acknowledge that a decision by the Supreme Court in the Title VII case could affect the interpretation of Section 1557.  LGBTQ rights advocates waited impatiently for a ruling in the Bostock case as the Court began to wind up its Term in June.  The Trump Administration was no more patient, announcing its new Rule a few days before the Supreme Court announced its decision in Bostock, apparently assuming that the Court would rule against Stephens.  Without publicly reacting to the Supreme Court’s opinion, or even revising its new Rule to acknowledge that the Trump Administration’s interpretation of “discrimination because of sex” had been rejected by the Supreme Court (in an opinion by Trump’s first appointee to the Court, Justice Neil Gorsuch), HHS went ahead and published the new Rule five days later.

Over the following weeks, challenges to the new Rule were filed in four different federal courts.  HRC filed suit on behalf of two transgender women who had encountered discrimination from health care institutions covered by the ACA.  Judge Block found that their experiences gave them formal standing to challenge the new Rule. Judge Block reached his decision the day before the new Rule was to go into effect.

He found that the well established practice of following Title VII interpretations in sex discrimination cases was likely to be followed under the ACA, just as it was under Title IX, and thus the plaintiffs were likely to succeed in their claim that the new Rule was inconsistent with  the statute.  He noted that just two weeks earlier, the 11th Circuit Court of Appeals had followed the Bostock decision in finding that a Florida school district violated Title IX by denying appropriate restroom access to a transgender student.

Furthermore, the failure of the new rule, published after the Bostock decision, to mention that ruling or to offer any reasoned explanation why it should not be followed, was likely to be found to be “arbitrary and capricious,” so the adoption of the new Rule probably violated the Administrative Procedure Act (APA), the federal law that details how federal agencies are to proceed in adopting new rules and regulations or rescinding old ones.

Because of the December 2016 ruling in Franciscan Alliance and the subsequent non-enforcement policy by the Trump Administration, the Obama Administration’s Rule has not been enforced by HHS since December 2016.  But the ACA allows individuals who suffer discrimination to sue on  their own behalf to enforce the statute, and there have been numerous lawsuits under Section 1557 successfully challenging exclusion of transgender health care from coverage under health insurance policies that are subject to the ACA.

Judge Block’s stay of the effective date and injunction against enforcing the new Rule gives the green light to HHS to resume enforcing Section 1557 in gender identity discrimination cases consistent with the Bostock ruling.  While there are probably plenty of career agency officials in the HHS Office of Civil Rights who would like to do so, any significant effort in that direction seems unlikely so long as Trump remains in office.  For now, the main impact of Judge Block’s order will be to clear a potential obstacle for transgender litigants under Section 1557, as the opinion persuasively explains how Justice Gorsuch’s reasoning in Bostock compels protecting transgender health care patients under the ACA.

The  practical effect of Judge Block’s ruling now is to place the burden on HHS if it wants to  continue defending its new Rule.  HHS must provide a reasoned explanation to the Court about why the Bostock interpretation of “discrimination because of sex” should not be followed under Section 1557.  The simplest way for HHS to proceed consistent with the court’s order would be to strike those portions of the preamble discussing this subject, and to substitute a simple statement that Section 1557’s ban on discrimination because of sex includes claims of discrimination because of sexual orientation  or gender identity consistent with  the U.S. Supreme Court’s interpretation of similar statutory language in the Bostock case.

2nd Circuit Court of Appeals Revives Religious Adoption Agency’s Challenge to New York Anti-Discrimination Rule

Posted on: July 22nd, 2020 by Art Leonard No Comments

The U.S. Court of Appeals for the 2nd Circuit, based in New York, has revived a Syracuse religious adoption agency’s constitutional challenge to the New York Office of Children and Family Service (OCFS) regulation prohibiting discrimination because of marital status or sexual orientation by adoption agencies. New Hope insists, based on its religious principles, that it cannot provide adoption services to unmarried people or same-sex couples.  OCFS threatened to terminate New Hope’s status as an approved agency if it does not comply.  New Hope Family Services, Inc. v. Poole, 2020 WL 4118201, 2020 U.S. App. LEXIS 22630 (2nd Cir., July 21, 2020).

New Hope Family Services has been an approved adoption service provider for more than fifty years and estimates that it has placed more than 1,000 children for adoption.  Although it is not affiliated with any church or formal religious movement, it identifies as a Christian agency, requires its employees to subscribe to articles of faith, and will not, consistent with its belief that children are best served in a “Biblical” family constructed of a husband, wife and child, screen potential adoptive parents who do not conform with this model.  New Hope alleges that if single people or same-sex couples seek its services, it would refer them to another agency that is willing to provide the services.  Thus, it claims, nobody is ultimately denied the ability to adopt a child based on their marital status or sexual orientation, and it has not received inquiries from same-sex couples seeking its services.

Under New York law, only agencies “authorized” by the state may provide adoption services, which include evaluating potential adoptive parents, matching them with children needing placements, supervising placements, and preparing reports to the court that will ultimately decide whether to approve an adoption.  State law and regulations set out detailed criteria concerning who may adopt a child and the factors that an approved agency, such as New Hope, are supposed to consider in determining whether it would be in the best interest of a child to be adopted by a particular person or couple.

Although adoption was traditionally limited to married couples, over the years the legislature amended the law to widen the scope of individuals who are permitted to adopt. In 2010, the adoption law was amended to state that an “adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.”  The amendment was intended to reflect court decisions that had allowed the same-sex partners of parents to adopt their children, some going the next step by allowing same-sex couples to adopt.  As of 2010, same-sex couples could not legally marry in New York, but the courts had begun to recognize same-sex marriages performed in other jurisdictions, including Canada and several states. When Governor David Paterson signed the bill into law, he stated that the law would not require any agency to change its current practices, since it was “permissive,” not mandatory.

The adoption statute authorizes OCFS to adopt regulations to implement the law.  In 2011, after the new statutory provision went into effect, OCFS adopted a regulation providing that an applicant to adopt children could not be rejected “solely on the basis of homosexuality.” OCFS sent an informational letter to the adoption agencies stating that the purpose of the regulation “is to prohibit discrimination based on sexual orientation in the adoption study assessment process,” and that “OCFS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”

Two years later, OCFS issued a new regulation which requires authorized adoption agencies to “prohibit discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability, and to take reasonable steps to prevent such discrimination or harassment by staff and volunteers, promptly investigate incidents of discrimination and harassment, and take reasonable and appropriate corrective or disciplinary action when such incidents occur.”

In 2018, OCFS undertook an audit of every adoption agency’s policies and practices.  New Hope passed the on-site audit with ease, but when their written policies were reviewed, OCFS took note of the policy of declining services to single people and same-sex couples, and advised OCFS that it needed to change its policy to comply with the non-discrimination policy.  New Hope dug in its heels, and eventually OCFS warned New Hope that it would have to close its operation if it would not comply with the non-discrimination policy.  Significantly, this did not occur as a result of anybody having been turned away or filed a complaint.

New Hope filed this lawsuit in the U.S. District Court for the Northern District of New York, claiming a violation of its constitutional rights, but the district court dismissed the lawsuit and denied New Hope’s request for a preliminary injunction to stop the state from ending their authorized status while the case was pending.  The judge, Mae D’Agostino, found that under the U.S. Supreme Court’s 1990 decision, Employment Division v. Smith, 494 U.S. 872, New Hope was not entitled to claim an exemption from compliance with the law based on its religious beliefs.  Justice Scalia’s opinion for the Court in that case said that there is no free exercise of religion exemption from complying with state laws of “general application” that are “neutral” regarding religion.

New Hope appealed to the 2nd Circuit, which reversed the district court on July 21.  The three-judge panel found, in an opinion by Circuit Judge Reena Raggi, that the complaint filed for New Hope by Alliance Defending Freedom contained sufficient factual allegations to at least raise an issue of whether New Hope had been targeted due to hostility by OCFS to its religious beliefs.  The court’s opinion notes that the adoption statute itself does not ban discrimination based on sexual orientation, but rather broadens the previous categories of individuals who are legally authorized to adopt children, leaving some question whether OCFS could adopt a non-discrimination requirement through a regulation.  Furthermore, the court noted Governor Paterson’s statement when the law was amended to allow unmarried couples to adopt that it was not intended to require any agencies to change their policies, because the statute was merely “permissive.”  The court also noted in quotations from the correspondence between OCFS and New Hope various statements that could be construed as hostile to or disapproving of New Hope’s religious beliefs.

In light of these and other factors, the court concluded that it was “premature” for the district court to dismiss the case outright.  In deciding a motion to dismiss, the trial court is supposed to treat as hypothetically true all the facts alleged by the plaintiff and to decide whether those facts, if proven, might provide the basis for a valid legal claim.  And, since the court found dismissal to be premature, it directed the trial court to reinstate the lawsuit on the active docket and to analyze whether New Hope is entitled to a preliminary injunction to allow it to carry on its operations while the case is being litigated.

The court was careful to make clear that was not deciding the merits of the case.  The opinion provides a detailed and searching discussion of the concepts of “neutral state laws” (meaning “neutral” regarding religion) and laws that are “generally applicable.”  The court noted that the Supreme Court has ruled that the rule of Employment Division v. Smith does not necessarily apply to situations where a law that looks neutral and generally applicable on its face is shown to have been motivated by government animus towards a particular group or, in the case of religion, animus towards particular religious practices.  The court also took note of the Supreme Court’s 2018 decision in Masterpiece Cakeshop, 138 S. Ct. 1719, in which it reversed a state court ruling that Masterpiece violated a public accommodations law by refusing to make a custom wedding cake for a same-sex couple.  The reversal was based on the Court’s conclusion that the state’s civil rights agency had displayed hostility to the baker’s religious views in the administrative hearing process.

Government discrimination against religious organizations was also targeted by the Supreme Court this Term when it held that the state of Montana’s scholarship program for students attending private schools could not exclude religious schools from participating, since this would be “discrimination” against religion.

The court also rejected the trial court’s analysis of New Hope’s argument that requiring it to evaluate and endorse same-sex couples as adoptive parents was a form of compelled speech.  Judge D’Agostino found that this would be “government speech,” because by authorizing New Hope to evaluate applicants the government was delegating to New Hope a governmental function.  Judge Raggi’s opinion questioned this conclusion, pointing out that New Hope was not a government contractor and was not paid by the government to undertake this activity.  Rather, it is an independent agency supported by fees for its services and charitable contributions.  New Hope has always avoided taking government money because it wanted to preserve its freedom to operate consistently with its religious beliefs.

The court also took note of the U.S. Supreme Court’s decision to review the 3rd Circuit Court of Appeals’ decision in Fulton v. City of Philadelphia, a case similar in many respects to this case.  The 3rd Circuit held that the City did not violate Catholic Social Services’ constitutional rights when it dropped that agency from participating in the City’s foster care system because of its refusal to deal with same-sex couples.  That case also relied on Employment Division v. Smith.  Judge Raggi observed that at least four justices of the Supreme Court have expressed the view in various dissenting or concurring opinions that the Court should “revisit” the holding of Smith, which was a controversial case when it was decided and which provoked Congress into passing the Religious Freedom Restoration Act, which was then imitated by many states (although not New York).  If the Supreme Court reverses the Fulton decision or modifies Employment Division v. Smith, the rules governing the New Hope case will be changed.  Judge Raggi also pointed out key distinctions between the two cases.  In Fulton, the Catholic agency was a city contractor and relied heavily on compensation from the city to perform its services, while New Hope, as noted above, is an independent operator that is “authorized” by the state to perform services but is not a contractor or funding recipient.

The case now goes back to District Judge D’Agostino to consider New Hope’s request for a preliminary injunction and to conduct discovery which may culminate in a summary judgment or a trial on the merits if the parties don’t settle the case first through some compromise.  In light the pace at which such proceedings take place, it is likely that the Supreme Court will have ruled in Fulton v. City of Philadelphia before Judge D’Agostino has to render a final decision on the merits in New Hope’s case.

Judge Raggi was appointed to the Court of Appeals by President George W. Bush.  She previously served on the District Court, having been appointed by President Ronald Reagan.

Kentucky Supreme Court Avoids Ruling on Clash Between Free Speech and Anti-Discrimination Law in T-Shirt Case

Posted on: November 3rd, 2019 by Art Leonard No Comments

In a case that drew 26 amicus briefs – an unusually high number for an argument in a Midwestern state high court, the Kentucky Supreme Court found an off-ramp from having to decide whether a small business that produces custom t-shirts has a right to refuse an order to print a shirt with whose message the business owner disagrees in Lexington-Fayetteville Urban County Human Rights Commission v. Hands on Originals, 2019 Ky. LEXIS 431, 2019 WL 5677638 (October 31, 2019).  The court decided that the appellant, the local human rights commission that had ruled against the business, had no jurisdiction because the entity that filed the discrimination complaint in the case was not an “individual” within the meaning of the local civil rights ordinance.

The case originated in February 2012 when a representative of the Gay & Lesbian Services Organization (GLSO), an advocacy organization in Lexington that was planning for its fifth annual Lexington Pride Festival, came to Hands On Originals, the t-shirt business, with an order for t-shirts to be used in connection with the Festival.  Hands on Originals is a small business with three owners, all of whom identify as Christians who operate the business consistently with their understanding of the Bible.  Their website has a non-discrimination statement, which includes “sexual orientations”, but says that “due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”  The design that GLSO presented bore the name “Lexington Pride Festival” with rainbow-colored circles around an enlarged number “5” in recognition of the 5th year of the Festival, and no other text.  The employee who took the order reviewed it and quoted a price.

“The following month,” wrote Justice Laurence V. VanMeter in the court’s opinion, “a different GLSO representative contacted Hands On about the price quote and spoke with Adamson [one of the owners], who had not yet viewed the t-shirt design.  Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community.  Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+.  Adamson offered to refer GLSO to another printing shop.”  In the event, after word about this got out, a Cincinnati business printed the t-shirts for GLSO free of charge.  But GLSO’s president filed a complaint on behalf of the organization with the local human rights commission, charging violation of the Lexington-Fayetteville Human Rights Ordinance, which forbids discrimination against any individual based on their sexual orientation or gender identity by public accommodations.

The commission ruled in favor of the complainants, but was overruled by the Fayette Circuit Court, which instructed the commission to dismiss the charges.  The commission and GLSO appealed.  The Court of Appeals affirmed the circuit court, but the panel split, producing three opinions, out of which a majority concluded that the anti-discrimination provision was not violated by Hands On engaging in viewpoint or message censorship as a non-governmental entity.

Justice VanMeter’s opinion focused on the language of the ordinance, which provides that an “individual” claiming to be aggrieved by an unlawful practice can file a complaint with the commission.  The court concluded, by examining both the context of the ordinance and the contents of other states referenced in the ordinance, that “only an individual – being a single human – can bring a discrimination claim” under the ordinance.  Although an individual, a representative of GLSO, had filed the original complainant with the Commission, it was not filed in his individual capacity but rather as a representative of GLSO.  Thus, because “GLSO itself was the only plaintiff to file a claim” and “it did not purport to name any individual on whose behalf it was bringing the claim,” therefore GLSO “lacked the requisite statutory standing” to invoke the jurisdiction of the Human Rights Commission.

The court pointed out that Hands On “argued first to the Hearing Commissioner that GLSO, as an organization, did not have standing under the ordinance to bring a claim.”  The Hearing Commissioner rejected that argument, reaching a conclusion that the court rejects in this opinion: that an “individual” as named in the ordinance could also be an organization.  Hands On continued to push this argument through all levels of review, so it was not waived when the Kentucky Supreme Court agreed to review the lower court decisions.

“While this result is no doubt disappointing to many interested in this case and its potential outcome,” wrote Justice VanMeter, “the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion.  Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class.  And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because of the conduct cited is so closely related to that individual’s status.  But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discrimination against.”

VanMeter insisted that the court finds “impossible to ascertain” in this case whether the organization that filed the discrimination charge is a “member of the protected class.”  “No end user may have been denied the service who is a member of the protected class, or perhaps one was.  If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden” under the law.  “But without an individual . . .  this analysis cannot be conducted.”

This reasoning strikes us as hair-splitting in the extreme, but is not surprising considering that courts prefer to avoid deciding controversial issues if they can find a way to do so.  The Lexington-Fayetteville ordinance, by its terms, does not have protected classes.  Like the federal Civil Rights Act of 1964, it is a “forbidden grounds” measure, not a “protected class” measure.  Everybody, regardless of their race, is protected from race discrimination, for example.  There are no “protected classes” who have an exclusive claim to being protected against discrimination on any of the grounds mentioned in the ordinance.  Thus, VanMeter’s explanation is premised on a misconception of the ordinance.  But, as a decision by the Kentucky Supreme Court on a question of state law, it is final unless or until it is overruled by the Kentucky Supreme Court or rendered irrelevant by an amendment to the ordinance.  As it stands, however, it creates a large loophole in the coverage of the ordinance that was probably not intended by the local legislative bodies that enacted the measure.

Six members of the seven-member court sat in this case.  Four members of the court concurred in VanMeter’s opinion.  Justice David Buckingham wrote a separate concurring opinion.  Although he agreed with the court that GLSO lacked standing to file the charge, he wanted to express his view that the “Lexington Fayette Human Rights Commission went beyond its charge of preventing discrimination in public accommodation and instead attempted to compel Hands On to engage in expression with which it disagreed.”  He found support in the U.S. Supreme Court’s 1995 decision overruling the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston Saint Patrick’s Day Parade case had violate the state’s human rights law by excluding a gay Irish group from marching in the parade, and a ruling earlier this year by the 8th Circuit court of Appeals reversing a district court decision concerning a videographer who sought a declaration that his business would not be required under Minnesota’s civil rights laws to produce videos of same-sex marriages.  In a lengthy opinion, Justice Buckingham cited numerous cases supporting the proposition that the government crosses an important individual freedom line when it seeks to compel speech.  “Compelling individuals to mouth support for view they find objectionable violates that most cardinal constitutional command,” he wrote, “and in most contexts, any such effort would be universally condemned.”  While reiterating his support for the ruling on “standing” by the majority of the court, he wrote, “if we were to reach the substantive issues, I would affirm the Fayette Circuit Court’s Opinion and Order,” which was premise in this First Amendment free speech argument.

Because the court’s decision is based entirely on its interpretation of the local ordinance and various Kentucky statutory provisions and avoids any ruling on a federal constitutional issue, it is not subject to appeal to the U.S. Supreme Court, which a straightforward affirmance of the Court of Appeals ruling on the merits would have been.

Most of the amicus briefs were filed by conservative and/or religious groups seeking affirmance of the Court of Appeals on the merits, and it is clear that the amici were determined to make this a major “culture wars” case in the battle against LGBTQ rights.  One amicus brief was filed on behalf of ten states that do not forbid sexual orientation or gender identity discrimination in their state civil rights laws.  There were also amicus briefs from progressive groups (including progressive religious groups) urging the court to reverse the Court of Appeals on the merits.  The only LGBT-specific organizational brief was filed by Lambda Legal.

2nd Circuit Holds That It Was Not “Clearly Established” That Sexual Orientation Discrimination in Public Employment is Actionable Under the Equal Protection Clause Prior to Obergefell and Windsor

Posted on: September 8th, 2019 by Art Leonard No Comments

In the course of deciding an appeal by some supervisory public employees of a district court’s refusal to accord them qualified immunity from a discharged employee’s claim of discrimination because of perceived sexual orientation (that took place in 2010), a panel of the U.S. Court of Appeals stated in Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (Aug. 12, 2019), that it was not then “clearly established” by the Supreme Court or the 2nd Circuit prior to the rulings in U.S. v. Windsor and Obergefell v. Hodges that sexual orientation discrimination is actionable under in a 42 U.S.C. Sec. 1983 claim alleging a violation of the Equal Protection Clause.

The opinion for the panel by Circuit Judge Jose Cabranes suggests that it might be “possible today that sexual orientation discrimination in public employment may be actionable under Section 1983,” but at the time of the conduct challenged in this case “such a constitutional prohibition was not yet ‘clearly established’” so the defendants were entitled to qualified immunity from the claim.  In a footnote, Judge Cabranes acknowledged that as early as 1996, in Romer v. Evans, 517 U.S. 634, and again in 2003, in Lawrence v. Texas, 539 U.S. 558, the Supreme Court “had already begun to scrutinize laws that reflected ‘animosity’ toward gays,” but in this case the plaintiff had not alleged “such class-based animosity or desire to harm.”  He also noted that under Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), the plaintiff could not bring a “class of one” equal protection case “simply on the basis that her termination was individually arbitrary.”

On March 10, 2010, Binghamton University’s Athletic Director, James Norris, informed Elizabeth Naumovski, then assistant coach of the women’s basketball team, that she would be discharged if she did not resign.  She resigned and filed her discrimination charges with the NY State Division of Human Rights and the EEOC.  After exhausting administrative remedies against the school, she filed suit in federal court, adding discrimination claims under the Constitution against the Athletic Director and the Head Coach of the team as well as the university employer.  Norris and Scholl sought unsuccessfully to get U.S. District Judge David Hurd to dispose of the claims against them on grounds of qualified immunity, as part of his overall ruling on motions for summary judgment, and this appeal to the 2nd Circuit concerns Judge Hurd’s failure to grant their motions, which he implicitly did by denying them summary judgment.

Naumovski, a single woman in her thirties, became the subject of rumors concerning her possible relationship with a woman on the team, identified in the opinion as J.W.  Complaints from other students that Naumovski was showing favoritism to this woman came to the head coach and the then-assistant athletic director, James Norris, who, according to Judge Cabranes, “states that he understood the rumors to refer to a relationship of favoritism between a coach and a student-athlete, rather than to a sexual relationship between the two.”  Norris discussed these rumors with the Athletic Director, “who assured him that the allegations were the baseless fabrications of disgruntled former members of the Binghamton Athletics community.”  Norris was promoted to the athletic directorship on September 30, 2009.

In response to the persisting rumors during the fall term of 2009, Head Coach Nicole Scholl “imposed various restrictions on interactions between coaches and student-athletes to avoid any perception of impropriety.”  According to Naumovski’s allegations, “As a result of the increased scrutiny triggered by these restrictions, Naumovski began to suffer from depression and stress-induced weight loss.” She met with Norris to address the rumors, and claims he told her that “your problem is that you’re a single female in your mid-30s,” implying that the rumors were due to a perception that she was a lesbian.  Norris denies having made that comment, a potential material fact in the overall scheme of the litigation, in terms of the school’s potential liability.

The rumors persisted into 2010, as Norris continued to receive complaints about “favoritism” by Naumovski towards J.W. Friction developed between Naumovski and Head Coach Scholl, who felt that “Naumovski was trying to undermine her leadership of the team.”  Wrote Cabranes, “Naumovski does not deny tension between herself and Scholl; rather, she claims that any such tension ceased after a February 9, 2010 meeting with Scholl.  Naumovski further claims that Scholl and Norris never expressed any additional concerns about her coaching performance after that time.”  However, during a phone call on February 21, Scholl and Norris agreed that Naumovski’s employment should be terminated at the end of the basketball season in March. “The decision was purportedly based on Naumovski’s demonstrated favoritism toward certain student-athletes and the disruptive impact of her workplace conflicts with Scholl,” writes Cabrances, relating the defendants’ claims.  Meanwhile, Norris continued to receive student complaints and things came to a head when J.W.’s family received “an anonymous, vulgar letter accusing her of ‘screwing’ Naumovski,” which J.W. told Naumovksi about, and which led J.W.’s mother to call Norris; it is disputed whether the letter was mentioned in that phone call.  However, a week after that call, Norris informed Naumovski that she was being fired for performance reasons, but she could resign to forestall being fired, which she did.

Naumovski’s suit alleges discrimination based on her sex, perceived sexual orientation, and national origin (Canadian), in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Equal Protection Clause and the First Amendment (42 USC 1983), as well as the NY Constitution and NY Human Rights Law.  Defendants moved for summary judgment after discovery.  “The motion remained pending for several years,” write Cabranes, not being decided until April 17, 2018, when District Judge Hurd granted summary judgment to Binghamton University and the State University of New York on all constitutional claims but allowed statutory claims to proceed to trial. (Perhaps Judge Hurd was waiting to rule on the motions for a final resolution by the Circuit of whether sexual orientation claims are actionable under Title VII, which emerged with the Zarda v. Altitude Express en banc ruling in February 2018.) As to the individual defendants, Scholl and Norris, Hurd dismissed all claims except for Naumovski’s sex-based disparate treatment and hostile work environment claims under 42 USC 1983 (Equal Protection), failing to address the issue of their qualified immunity from constitutional claims even though they sought to invoke immunity in their summary judgment motion.  Judge Hurd subsequently denied a motion by Norris and Scholl for reconsideration on the immunity argument as untimely under local rules, asserting that it did not raise any new issues, and they appealed to the 2nd Circuit.

Judge Cabranes devoted considerable space in his opinion to explaining the different proof requirements on the statutory claims and the constitutional claims.  In particular, he noted, under Title VII, the plaintiff can win by showing that her sex or perceived sexual orientation was a “motivating factor” for discrimination, but on the constitutional equal protection claim, her burden would be to show that it was a “but-for” factor.  He also devoted a portion of the opinion to itemizing the various other ways in which the statutory and constitutional claims receive different treatment, finding that the district court seems to have conflated the two separate modes of analysis in its decision.  Furthermore, he pointed out that the statutory claims under employment discrimination law run only against the institutional employer, not against individuals, while the constitutional claims could be asserted against individuals who are “state actors,” but who enjoy qualified immunity from personal liability unless it is “clearly established” by appellate precedent that the discrimination with which they are charged is, if proven, unconstitutional.

Turning to the subject of the appeal, Judge Hurd’s implicit denial (or failure to recognize) qualified immunity from the constitutional claims for Norris and Scholl, Cabranes noted that the 2nd Circuit’s review of the district court’s “implicit” rejection of the qualified immunity claims “is complicated by several factors.  First, the District Court never addressed the claims of qualified immunity in its Memorandum-Decision and Order; it is therefore impossible to review its specific reasoning in denying relief on this ground.  Second, while both the Complaint and the District Court’s Memorandum-Decision and Order conclude that Defendants’ alleged conduct constitutes sex discrimination (either through disparate treatment or subjection to a hostile environment), neither explains precisely how Defendants’ conduct can be so construed.  Third, the District Court opinion conflates its analysis of Naumovski’s Title VII and Sec. 1983 claims, rendering our task of reviewing only the Sec. 1983 claims more difficult.”  Attempting to “reconstruct the logic” of the District Court’s denial of immunity to Scholl and Norris on the constitutional claims, the court concluded that “no theory can sustain the District Court’s implicit denial of Defendant’s qualified immunity.”

First addressing the sex discrimination claim, the court found that there was a lack of evidentiary allegations to support the claim, apart from Naumovski’s allegation about Norris’s remark concerning her status as a single woman in her 30s, which the court concluded did not “constitute sufficient evidence to make out a case of employment discrimination,” characterizing it as “the sort of ‘stray remark’ that is insufficient to support an inference of discriminatory intent.”  While Judge Hurd referred to “other indicia” of discrimination intent, the appeals court was not convinced:  “The only ‘other indicia,’ however, is evidence suggesting that Scholl and Norris interpreted the rumors as alleging a sexual relationship between Naumovski and J.W., rather than mere favoritism from one to the other.  The invocation of such evidence is unavailing.  Even if we assume Scholl and Norris interpreted the allegations against Naumovski as sexual in nature, that fact provides no additional support for a conclusion that Scholl’s and Norris’s own actions were based on discriminatory animus toward women in general or any subcategory of female employees in particular,” wrote Cabranes.  Thus, the conclusion that summary judgment should have been granted on the sex discrimination claim.

The court also discussed the possibility that Naumovski could succeed on a sex-stereotyping claim; i.e., “Norris and Scholl stereotyped Naumovski based on her sex (possibly in combination with other characteristics) as more likely to have engaged in a romantic or sexual relationship with J.W.  Defendants then fired Naumovski (at least in part) because of their wrongful and discriminatory belief that she engaged in sexual impropriety with a student and, subsequently, attempted to conceal that stereotyping played any role in their termination decision.”  While the court agreed that such a theory might work in some cases, “Naumovski cannot succeed on such a theory” because of the “but-for” proof requirement for a constitutional violation.  In order to prevail, “Naumovski must establish that a reasonable jury could find that Defendants would not have terminated her based on their stated reasons alone.  To be sure, there may well be cases in which misconduct findings based on sex stereotyping meet the ‘but-for’ discrimination standard,” Cabranes continued.  “Here, however, we do not think that the evidence, even construed in the light most favorable to Naumovski, satisfies that standard.”  Cabranes gives an extended explanation for this conclusion, noting in particular that “Naumovski does not materially dispute that Scholl’s personality and coaching style clashed with her own,” which on its own would be a legitimate reason to let go an assistant coach who was an at-will employee.

Turning to the perceived sexual orientation discrimination claim, Cabranes came to the issue of most direct relevance to Law Notes: whether public officials enjoy qualified immunity from constitutional liability for discriminating against their employees because of actual or perceived sexual orientation.  He pointed out that if the district court was relying on the 2nd Circuit’s 2018 Zarda decision for this proposition, “it erred for at least two reasons.”  First, Zarda was a statutory interpretation case under Title VII, not a constitutional case, thus the Circuit’s decision that discrimination “because of sex” under Title VII includes discrimination because of sexual orientation was not a ruling the sexual orientation claims should be treated the same as sex discrimination claims under the 14th Amendment.  Second, the conduct at issue in this case (2009-2010) predated Zarda by many years.  Given the 2nd Circuit’s pre-Zarda caselaw, Cabranes pointed out, at the time Naumovski was fired, “the ‘clearly established law’ … was that sexual orientation discrimination was not a subset of sex discrimination.”

“Nor could the District Court rely on freestanding constitutional principles separate from Zarda,” continued Cabranes.  “To date, neither this court nor the Supreme Court has recognized Sec. 1983 claims for sexual orientation discrimination in public employment.  Moreoever, when the conduct in this case occurred, neither of the Supreme Court’s landmark same-sex marriage cases – United States v. Windsor and Obergefell v. Hodges – had been decided.  It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect.”  At this point, Cabranes wrote a footnote acknowledging the existence of Romer and Lawrence, but distinguishing them based on Naumovski’s factual allegations. Cabranes’ opinion does not explicitly state that a public official would not enjoy qualified immunity today from an adverse personnel decision based on sexual orientation, but he implies that after Windsor and Obergefell, “state distinctions based on sexual orientation” are “constitutionally suspect,” a point that some scholars have argued, attempting to give more teeth to Justice Kennedy’s opinions in those cases than some might see in them.  To be clear, neither of those cases explicitly states that government distinctions based on sexual orientation are to be treated the same as sex discrimination cases and enjoy heightened scrutiny under the 14th Amendment.  Justice Kennedy did not employ that vocabulary, and arguably placed more weight on the liberty interest in marriage in those cases.

The court also found that Norris and Scholl would clearly enjoyed qualified immunity from a claim that their decision relied on biased student claims against Naumovski, and also that a constitutionally-based hostile environment claim based on sex or perceived sexual orientation in a public employment context was not clearly actionable under 42 USC 1983, as the precedential basis for such claims has been developed thus far only under Title VII.

Summarizing the Court of Appeals holding, Cabranes wrote that Section 1983 claims for discrimination in employment require plaintiffs to establish that the defendants’ discriminatory intent was a “but-for” cause of the adverse employment action, that because of the intent requirements under the Equal Protection clause, a Section 1983 claim for employment discrimination “cannot be based on a respondeat superior or ‘cat’s paw’ theory to establish a defendant’s liability (thus ruling out liability for Scholl and Norris based on complaints by discriminatory students), and defendants were entitled to qualified immunity because, “even when interpreted in the light most favorable to Naumovski, the record cannot support the conclusion that they violated her ‘clearly established’ constitutional rights.”

Naumovski is represented by A. J. Bosman of Rome, N.Y.  Judge Cabranes was appointed by President Bill Clinton.  The other two judges on the 2nd Circuit panel were Ralph Winter (Reagan) and Renee Raggi (George W. Bush).