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New York Federal Judge Vacates Trump Administration “Conscience” Regulation

Posted on: November 12th, 2019 by Art Leonard No Comments

U.S. District Judge Paul A. Engelmayer issued an extraordinarily lengthy opinion on November 6, concluding that a regulation adopted by the Trump Administration’s Department of Health and Human Services (HHS) intended to protect from discrimination employees in the health care industry who refused to provide services because of their religious beliefs is invalid.   The case is State of New York v. U.S. Department of Health and Human Services, 2019 WL 5781789, 2019 U.S. Dist. LEXIS 193207 (S.D.N.Y.).

 

The lawsuit was brought by a coalition of states, cities, Planned Parenthood, and a Family Planning and Reproductive Health services organization, that stood to lose substantial federal funding for their programs if they were found to violate the regulation, which imposed substantial compliance requirements on them.  They argued that the measure violated the First Amendment’s prohibition on an “establishment of religion.”  But Judge Engelmayer, rejecting a “facial” Establishment Clause challenge, instead premised his ruling on other arguments by the plaintiffs, asserting violations of the Administrative Procedure Act (APA) and the Spending Clause and Separation of Powers requirements of the Constitution.

 

Judge Engelmayer summarized the Rule, which was adopted on May 21 (84 Fed. Reg. 23,170 – codified at 45 C.F.R. pt. 88), originally set to go into effect on July 22, to “interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection.”  The statutory provisions, usually added to particular laws as amendments offered by legislators during congressional consideration of the bills, are usually referred to as “conscience provisions.” After this lawsuit was filed, HHS agreed to delay the effective date of the regulation until November 22, so it has never actually gone into effect and will not go into effect any time soon unless the government obtains a stay of Judge Engelmayer’s opinion pending an appeal.

 

Most of the conscience provisions are intended to protect employees who refuse to participate in performing abortions, sterilizations, or assisted suicides, but some go further, extending to any medical practice or procedure, and theoretically could protect employees who refuse to provide services to LGBTQ people due to religious or moral objections.  While some of the provisions were aimed specifically at licensed health care professional employees who actually perform such procedures, others could theoretically apply to any employee – such as an orderly, an ambulance driver, or anybody else employed in a supportive or administrative role – whose religious or moral beliefs would be compromised by providing the service in question.

 

In addition to describing the various statutory conscience provisions, Judge Engelmayer noted a provision in Title VII of the Civil Rights Act of 1964, which requires employers to make a “reasonable accommodation” to the religious practices or beliefs of employees, with the test of reasonableness being whether the accommodation would impose an undue hardship on the employer.  The Supreme Court has traditionally interpreted this provision to require employers to bear no more than a “de minimus” expense to accommodate religious objectors.

 

The George W. Bush administration promulgated a conscience regulation late in 2008 that was to take effect on the first day of the Obama Administration, but a legal challenge was filed and although “much of the rule” did take effect while the litigation continued, many contentious provisions were never rigorously enforced and HHS rescinded much of that Rule in 2011.

 

After taking office, President Trump issued an executive order titled “Promoting Free Speech and Religious Liberty,” which directed the Attorney General to “issue guidance interpreting religious liberty protections in federal law” and generally stating that the federal government should protect religious freedom to the extent possible under the Constitution.  On October 6, 2017, Attorney General Jeff Sessions issued a memorandum proclaiming that under the 1st Amendment’s Free Exercise Clause, an individual has “the right to perform or abstain from performing certain physical acts in according with one’s beliefs,” mentioning many of the statutory conscience provisions.  HHS then proceeded to issue a notice of proposed ruling-making to translate Sessions’ memorandum into written regulations, publishing its “final rule” on May 21, 2019.

 

Judge Engelmayer found that the 2019 Rule “substantially expands” on the 2008 Rule, applying to more than 30 conscience provisions (where the 2008 Rule applied to only three of them). He includes a detailed description of the Rule, including its very broad definition of which employees and entities are covered, a very broad definition of what counts as “discrimination,” and detailed procedures that employers in the health care field are supposed to follow to ensure that employees know about their rights to object or abstain, including requirements to certify their compliance with the Rule as a condition of receiving funding under federal programs, such as Medicare.  The stated intent of the Rules is to go as far as the Constitution and statutes allow in protecting those who object to doing their job because of religious, moral or ethical objections to particular procedures or practices by holding the loss of funding over employers who fail to accommodate religious objectors to the extent spelled out in the Rule.

 

The plaintiffs advanced five constitutional arguments against the rule.  They first argued that it violates the Establishment Clause, by forcing recipients of federal funds to “conform their business practices to the religious practices of their employees, imposing an absolute duty to accommodate such practices,” going far beyond the existing accommodation duty under Title VII of the Civil Rights Act.  Second, they argued it violates the Spending Clause because the threat to withhold all federal funding for is “unconstitutionally coercive” and because the conditions it imposes are “ambiguous, retroactive, not reasonably related to the purpose of HHS’s programs under which the funds are provided, and thus unconstitutional.”  They argued that the Rule violates the constitutional separation of powers by, among other things, empowering the executive branch to unconstitutionally impound funds that Congress has appropriated.  They also made two Fifth Amendment arguments: void for vagueness as a result of ambiguities and inconsistences with other federal laws, inviting arbitrary enforcement; and violating the due process rights of patients to privacy and liberty, in particular by interfering with patients’ ability to obtain abortions and other procedures to which some health care workers object.

 

Judge Engelmayer rejected the government’s argument that the rule was merely a “housekeeping” measure intended to consolidate enforcement of the various statutory conscience provisions by centralizing enforcement in HHS’s Office of Civil Rights and to standardize definitions and requirements that varied among the thirty statutes.  Instead, he found, the Rule made substantive changes in the law.

 

“On this threshold dispute,” wrote the judge, “there is a definite answer.  Although the 2019 Rule has housekeeping features, plaintiffs’ description of it as largely substantive – and, indeed, in key respects transformative—is correct.  And HHS’s characterization of the Rule as solely ministerial cannot be taken seriously.”  He noted that the government had actually abandoned this position during oral argument.  “Whether or not the rule was properly adopted,” he wrote, it “unavoidably would shape the primary conduct of participants through the health care industry. It would upend the legal status quo with respect to the circumstances and manner in which conscience objections must be accommodated.  And the maximum penalty the Rule authorizes for a violation of the Conscience Provisions – the termination of all of a recipient’s HHS funding, from whatever program derived – is new, too.”

 

Supporting this conclusion, Judge Englemayer explained how the rule vastly expanded employers’ religious accommodation requirements under Title VII of the Civil Rights Act, how it substantially broadened the definition of “protected activities” of religious objectors, down to the level of protecting a receptionist who might refuse to schedule a patient for a procedure to which the receptionist has ethical objections.  Unlike the statutory conscience provisions, he noted, the Rule would “for the first time” permit “abstention from activities ancillary to a medical procedure, including ones that occur on days other than that of the procedure.”  It also extended the definition of “covered entities” from health care providers to pharmacists and medical laboratories, and significantly expands the financial exposure of covered entities by authorizing draconian cut-offs of funding.

 

Judge Engelmayer decided the Rule is not a facial violation of the Establishment Clause, which would require finding that all of its provisions are unconstitutional in all their potential applications, but he acknowledged that it could be challenged “as applied” to particular situations – a test that might never arise because of his action in declaring the Rule invalid on other grounds.

 

First, the judge found that HHS did not comply with the requirements of the Administrative Procedure Act governing the adoption of regulations, by going beyond the limits of rulemaking authority.  Agencies must base their rules and regulations on statutory policy decisions expressed by Congress, and cannot engage in legislating beyond those policy decisions.  The judge found that in this Rule HHS went over the line into legislation, especially noting the way the Rule expanded definitions, covered entities, enforcement authority, and penalties.  He found that HHS did not have authority under the APA to make all of these substantive legal changes without specific authorization in the statutes.

 

The sheer scale of the Rule’s potential impact played a large part in the decision.  The judge found that the Rule “puts in jeopardy billions of dollars in federal health care funds.  In fiscal year 2018, for example,” he wrote, “the State Plaintiffs received $200 billion in federal health care funding.  New York alone received $46.9 billion. The Provider Plaintiffs similarly received hundreds of millions in funding from HHS.”  He also noted the political significance of the Rule, as it took positions beyond those actually taken by Congress on such controversial issues as abortion and assisted suicide.

 

“In a case involving economic consequences and political dynamics on such a scale,” wrote the judge, “the Supreme Court teaches that ‘we expect Congress to speak clearly’ were it to delegate rulemaking authority. . .  Far from speaking clearly here, in none of the three statutes at issue did Congress give any indication that it intended to subcontract the process of legal standard-setting to an administrative agency in particular, or HHS in particularly,” noting that the three principal statutes with Conscience Provisions don’t even mention HHS.  And, the judge rejected the government’s contention that such a delegation was “implicit” in the enactment of those conscience provisions.  He noted that the Supreme Court had rejected a similar “implicit delegation” argument in connection with its interpretation of Title VII’s accommodation provisions and the attempts by the EEOC to interpret them.

 

He also concluded that HHS did not act in accordance with law in promulgating the rule, having taken shortcuts (rather typical of the Trump Administration) in skirting the detailed procedures set out in the APA.  The two most important flaws the court found were establishing rules that conflict with Title VII, and rules conflicting with the Emergency Medical Treatment and Labor Act (EMTLA), by purporting to authorize employees with religious objections to withhold services in emergency situations.  The judge found that two basic Title VII concepts that the Rule “overrides” are key components of the specific language Congress adopted in 1972 amendments to Title VII “to address workplace religious objections.”  An agency cannot displace express statutory provisions by adopting a contrary rule.  Similarly, he noted that EMTLA “does not include any exception for religious or moral refusals to provide emergency care” and courts had declined to “read in” exceptions to that statute’s mandates, but the HHS Rule “applies in emergency-care situations,” purporting to create a “conscience exception” in a law that does not have one.

 

Also, turning to the APA’s substantive requirements, an agency that is adopting a rule that changes the law is required to document the need for such a change.  In this case, HHS just lied, claiming that there had been a substantial increase in complaints by health care employees about being forced to perform objectionable procedures or being disciplined for refusing to do so.  “In fact, upon the Court’s review of the complaints on which HHS relies,” wrote Engelmayer, “virtually none address the Conscience Provisions at all, let alone indicate a deficiency in the agency’s enforcement capabilities as to these laws.  And HHS, in this litigation, admitted that only a tiny fraction of the complaints that its Rule invoked as support were even relevant to the Conscience Provisions.  A Court ‘cannot ignore the disconnect between the decision made and the explanations given,’” he wrote, quoting from Chief Justice John Roberts’ opinion in June striking down the Trump Administration’s attempt to add citizenship questions to the 2020 Census Forms.  In that case, the Supreme Court found evidence that the Administration wanted to add the questions for political purposes, but prompted the Justice Department to come up with a phony justification invoking data needs to enforce the Voting Rights Act, even though experts in the Census Bureau warned that adding the questions would make the Census count less accurate by deterring non-citizens resident in the U.S. from participating.  He pointed out that the large majority of religiously-connected complaints received by HHS had to do with vaccinations, “which HHS admits fall outside the scope of the Conscience Provisions and the Rule.”

 

He also found unconvincing other explanations offered by HHS, and was especially critical of ways in which the Final Rule differed from the Rule as it was originally proposed and published for public comment concerning the definition of “discrimination.”  The judge concluded, in sum, that failed procedures in adopting the Rule under the APA were sufficient to invoke the court’s authority to declare the rule invalid and order it to be “vacated.”

 

But there was more, because the judge also found constitutional violations both of separation of powers and the Spending Clause.

 

Judge Engelmayer focused on the Rule’s remedial provision authorizing the termination of all HHS funding to an entity found to have violated the Rule, finding that this had not been authorized by Congress.  Thus, its adoption was a serious violation of the separation of powers.  He agreed with plaintiffs that the Rule “is inconsistent with the separation of powers because it allows HHS to withhold congressionally-appropriated federal funds to an extent that neither the [statutory] Conscience Provisions nor any other statute authorizes.  By claiming the power to do so, plaintiffs argue, HHS arrogates to itself, an executive agency, a power the Constitution allocates uniquely to Congress.”

 

Responding to this argument, the judge pointed out that an agency “must exercise its delegated spending authority consistent with specific congressional grant” and that an “agency may not withhold funds in a manner, or to an extent, unauthorized by Congress.” Thus, the remedial provision of the Rule exceeds the agency’s authority.

 

Furthermore, he found other violations specifically routed in the Supreme Court’s interpretation of the Spending Clause.  He noted four principles relevant to this case: “conditions based on the receipt of federal funds must be set out unambiguously,” the “financial inducement offered by Congress” must not be “impermissibly coercive,” the conditions must relate “to the federal interest in the project and to the overall objective thereof,” and “the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”  Judge Engelmayer found it clear that the Rule violated at least the first two of these principles, pointing to specific ambiguities and internal contradictions in the Rule. And the draconian forfeiture of all funding as a remedy for a violation of the Rule was “impermissibly coercive.”

 

Finally, he concluded that the faults he had detected merited an order to the agency to vacate the Rule.  He pointed out that it has long been “standard practice under the APA” for a court to order that a rule be vacated when the court determines that “agency regulations are unlawful.”  He quoted a Supreme Court opinion on point, stating that “regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the statutory minimum found in that Act.”  The APA itself says that a court shall “hold unlawful and set aside agency action, findings and conclusions” that the court finds to be “arbitrary and capricious, not in accordance with law, in excess of statutory authority, unconstitutional, or made without observance of procedures required by law.”

 

The judge rejected the government’s suggestion that he could go through the Rule stripping out objectionable parts and letting the rest go into effect, commenting that “the APA violations that the Court has found… are numerous, fundamental, and far-reaching.  The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes.  The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting health care employment and emergency contexts.  The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule.”  Letting a few selected provisions go into effect would “ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”

 

He also rejected HHS’s suggestion, common to Trump Administration arguments when courts are finding its executive actions invalid, that his order should be limited in effect to the Southern District of New York, or just to the named plaintiffs in the case, pointing out that this would lead to a proliferation of litigation around the country “to assure that such a Rule was never applied,” finding plenty of precedential support for this position in prior court of appeals opinions supporting trial court orders to vacate unlawfully promulgated rules.

 

“The Conscience Provisions recognize and protect undeniably important rights,” wrote Engelmayer.  “The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions.  In the future, however, the agency must do so within the confines of the APA and the Constitution.”

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).

Second Round of Briefing in LGBT Title VII Cases Before the Supreme Court Completed During August

Posted on: September 7th, 2019 by Art Leonard No Comments

On October 8, the second day of hearings in the Supreme Court’s October 2019 Term, the Court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17-1618, and Altitude Express, Inc. v. Zarda, Case No. 17-1623, appeals from the 11th and 2nd Circuits on the question whether sexual orientation discrimination claims are actionable as sex discrimination under Title VII of the Civil Rights Act of 1964, and in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18-107, an appeal from the 6th Circuit on the question whether gender identity discrimination claims are actionable as sex discrimination under Title VII.  The Court consolidated the two sexual orientation discrimination cases, in which the plaintiff-employee is appealing in Bostock and the defendant-employer is appealing in Altitude Express, for a single argument of one hour.  The argument in Harris Funeral Homes, in which the employer is appealing, will be argued next.  Transcripts of the arguments will be posted on the Supreme Court’s website shortly after each argument has concluded (usually within an hour or two), and links to audio recordings of the arguments will be made available on the Court’s website later in the week.

Harris Funeral Homes presents an unusual situation; the victorious party in the 6th Circuit Court of Appeals, the Equal Employment Opportunity Commission (EEOC), is represented in the Supreme Court by the Solicitor General, who, reflecting the change of administration since the original complaint in this case was filed by the EEOC, is now joining with the employer to ask the Court to reverse the 6th Circuit.  The only party defending the 6th Circuit’s decision is the charging party in the EEOC proceeding, transgender funeral director Aimee Stephens, who intervened as a co-appellant in the 6th Circuit, is named as a Respondent in Harris Funeral Homes’ cert. petition, and is represented by the American Civil Liberties Union. Harris Funeral Homes is represented by Alliance Defending Freedom (ADF), the conservative religious litigation group that is a frequent litigant opposing LGBT rights in the courts.

For purposes of briefing, the Court decided to treat all the employee-plaintiffs in the three cases as if they were Petitioners (although only Bostock is a Petitioner in the Supreme Court), and the three employer-defendants as if they were Respondents (even though two of them are actually Petitioners).  Thus, the first round of briefing, which was concluded early in July, consisted of the main briefs for Gerald Bostock, the Estate of Donald Zarda, and Aimee Stephens, and the amicus briefs (more than 40) filed in support of their claims that Title VII does extend to sexual orientation and gender identity discrimination claims.  The second round of briefing, which concluded during August, consisted of the briefs for the three employers – Clayton County, Georgia; Altitude Express; and Harris Funeral Homes; and the EEOC, which is technically a respondent even though the government, as such, is now siding with the Petitioner.

Interestingly, despite earnest efforts by the Solicitor General’s Office, the EEOC’s General Counsel, who would ordinarily be a signatory on the brief purporting to represent their agency, did not join in the submission of the government’s brief, since as of the date of filing the EEOC had not disavowed its position that gender identity discrimination claims are covered by Title VII.  Indeed, the amicus brief filed by the Solicitor General in the sexual orientation cases on behalf of the employer also lacked the EEOC’s signature, since the agency that enforces Title VII (and whose interpretation of the statute is entitled to judicial deference, under existing precedents), has not disavowed its position (argued as an agency amicus in the 2nd Circuit) that Title VII covers sexual orientation claims.  Quite a tangle for the Supreme Court to confront. During oral argument of Zarda v. Altitude Express in the 2nd Circuit, the en banc bench reflected some puzzlement and bemusement about being confronted with a lawyer from the S.G.’s office and a lawyer from the EEOC arguing against each other.

Simultaneously with the filing of the government’s brief, the Solicitor General filed a request that argument time be divided evenly (15 minutes each) between the Solicitor General’s office and ADF, counsel for Harris Funeral Homes.

Law Notes gave an overview of the first round of filings in our August 2019 issue.  Herewith is a brief summary of the second round of filings.

Altitude Express’s brief was signed by Saul D. Zabell, Counsel of Record who has represented the company throughout this litigation, and Ryan T. Biesenbach of Zabell & Collotta, P.C., a Bohemia, N.Y., law firm.  It predictably argues that the meaning of Title VII must be its “original public meaning” – the meaning that members of the public would attribute to the statutory language when it was enacted by Congress in 1964.  The brief claims that the Supreme Court has never interpreted Title VII in a manner that “conflicts” with “the original public meaning of ‘sex’.”  It also describes as “wrong” the various legal theories offered by Bostock for construing “sex” to include “gender identity.”  It argues that subsequent legislative developments – the repeated introduction of bills to amend federal anti-discrimination law to add “sexual orientation” that have never achieved enactment, as well as the enactment of some other statutes that use ‘sexual orientation’ such as the Hate Crimes Law – show Congress’s understanding that the term must be used to address such discrimination, noting also that after the EEOC and several lower federal courts had rejected sexual orientation discrimination claims in the early period of Title VII’s history, Congress passed a package of amendments to Title VII in 1991 but did not overrule any of those rulings legislatively.  The brief also rejects certain other arguments that some lower court judges had accepted as reasons for extending Title VII to cover sexual orientation claims.  None of these arguments was new or unanticipated, and they were all rejected in one way or another not only in the 2nd Circuit (en banc) but also in the 7th Circuit (en banc) in 2017 in Hively v. Ivy Tech Community College, a case where the employer decided not to seek Supreme Court review.

Clayton County’s brief (Bostock), signed by Counsel of Record Jack R. Hancock and other attorneys from the Forest Park, Georgia, law firm of Freeman Mathis & Gary LLP, carries the same argument headings as Altitude Express’s brief.  Indeed, they appear to be a joint product, making identical arguments.

The main brief that drew most of the press commentary when it was filed, of course, was the Solicitor General’s brief, on which S.G. Noel J. Francisco is Counsel of Record.  The other signatories are attorneys in the Solicitor General’s office and main Justice Department.  As noted above, and deemed newsworthy, no attorneys from the EEOC signed this brief which is presented as the brief of the Federal Respondent (which, technically, is the EEOC).   The brief urges the Court to adopt a narrow interpretation of key Title VII Supreme Court precedents on which the EEOC had relied in the 6th Circuit, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, contending that the 6th Circuit had extended them beyond their holdings to reach the conclusion that allowing gender identity discrimination claims is consistent with Supreme Court precedent.  Most of the arguments in the brief are variants of one or more of the arguments in the Altitude Express and Clayton County briefs, effectively countering the EEOC’s justifications for applying Title VII to gender identity claims in Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012).  Even though the EEOC has not overruled Macy, it is anticipated that it may do so in due course as the new majority resulting from Trump’s appointments to the Commission either rules on a federal sector gender identity discrimination case, proposes a new regulatory interpretation, or takes a position in litigation in the lower federal courts embracing a change of position.  The Commission could just instruct its regional offices to dismiss gender identity claims on jurisdictional grounds, similar to the action of the U.S. Department of Education which now refuses to process gender identity discrimination claims under Title IX of the Education Amendments of 1972.

The brief on behalf of Harris Funeral Homes, submitted by Alliance Defending Freedom, attracted comparatively little attention, with the Solicitor General being the “elephant in the room.”  Mainstream press coverage clearly sees Harris as part of the Trump Administration’s overall opposition to transgender rights as part of its systemic attempt to reverse the civil rights positions taken by the Obama Administration. Clearly, the president feels that he was elected to overturn everything that the Obama Administration did, if possible.  This was certainly reflected in his transgender military service ban and former Attorney General Jeff Sessions’ October 2017 memorandum disavowing the Obama Administration’s positions on both sexual orientation and gender identity discrimination.

Beginning on August 16 and extending through August 23, the Supreme Court clerk added to the docket forty amicus briefs supporting Harris Funeral Homes’ (and the Solicitor General’s) position that Title VII does not extend to gender identity discrimination claims.  Some were from the “usual suspects” familiar to anybody who had scanned the amicus lists in Obergefell and Windsor, the cases concerning marriage equality.  They include states whose anti-discrimination laws do not cover gender identity, Republican members of Congress, companies that don’t want to be forced to employ transgender people, individual legal scholars, polemicists, think tanks and policy institutes, and, of course, religious entities that argue that requiring employers to accommodate transgender people excessively burdens their religious freedom.  (In Harris, the owner of the funeral homes stated his religious beliefs as a justification for his refusal to continue employing the plaintiff after she wrote to him about her gender transition. As a result of this, the district court ruled in favor of Harris Funeral Homes in reliance on the Religious Freedom Restoration Act, employing an interpretation subsequently rejected by the 6th Circuit.  Surprisingly, in light of its religious freedom orientation, ADF did not include in its cert petition a question about the application of the RFRA to this case, so technically the religious arguments made by many of the amici are not pertinent to the questions on which cert was granted.

Particular press attention was drawn to briefs of some feminist groups who are particularly perturbed about any legal recognition of transgender women, making arguments that fall far outside the mainstream of the professional medical and mental health communities about the nature of human sexuality, contending that transgender women are men in drag who should not be given admission to women-only spaces and should not be accorded the treatment under anti-discrimination law that has been accorded to women.  Vox.com devoted a lengthy article to explaining the opposition of some feminist groups to transgender rights.  See Katelyn Burns, The Rise of Anti-Trans ‘Radical’ Feminists, Explained” (posted September 5, 2019).

Also during August, 24 amicus briefs (including one from the Solicitor General, as the federal government is not a party in the sexual orientation cases) were filed in support of the employers in the sexual orientation discrimination cases, Bostock and Altitude Express.  Of course, the EEOC’s legal staff is not represented among the signers of the Solicitor General’s amicus brief, again a newsworthy absence denoting that at least as of the time when briefs were due, the agency had not abandoned its position in Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), that Title VII covers sexual orientation discrimination claims.  Many of these amicus briefs were noted as addressing all three pending Title VII cases and thus were also filed and counted among the Harris Funeral Home amicus briefs.  When it announced the filing schedule, the Court also directed that amicus briefs for the Altitude Express case were to be filed on the Bostock docket. The same mix of amici that one finds on the Harris Funeral Homes docket generally show up on the Bostock list, minus those groups who have a specific focus on opposing transgender rights.  The arguments in the amicus briefs are similar as well, although, of course, the argument that gender is identified at birth is permanent and not changeable is absent here, while it predominates in many of the amicus briefs filed in Harris Funeral Homes.

Several of these amicus briefs emanate from groups that may have been formed for the specific purpose of filing amicus briefs in these cases.  All of the docketed amicus briefs can be examined on the Supreme Court’s website, where they are available to be downloaded in pdf format.

The deadline for the third round of briefing set by the Court is September 16, when Reply Briefs can be filed, responding to the briefs that were filed in August.  Reply briefs, if any, will be reported in the October issue of Law Notes.

Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

Posted on: April 22nd, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination

Posted on: October 31st, 2018 by Art Leonard No Comments

The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.

The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.

The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.

In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.

Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.

Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”

This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.

President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.

Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”

Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.

They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.

The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.

The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.

Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.

Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.

With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.

Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.

Illinois Federal Court Allows Discharged Gay Organist to Pursue ADA Hostile Environment Claim against Archdiocese of Chicago

Posted on: October 2nd, 2018 by Art Leonard No Comments

U.S. District Judge Edmond E. Chang ruled on September 30 that Sandor Demokovich, a church organist and choir director who was fired from his position at St. Andrew the Apostle Parish, Calumet City, in the Archdiocese of Chicago, after marrying his same-sex partner, may pursue a hostile environment disability harassment claim against his former employers under the Americans with Disabilities Act (ADA). Demkovich v. St. Andrew the Apostle Parish, 2018 U.S. Dist. LEXIS 168584 (N.D. Ill.).  In previous motion practice, Judge Chang found that Title VII and state and local antidiscrimination claims against the defendants for discriminatory discharge because of his sexual orientation and marital status are barred by the “ministerial exception” recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  In this ruling, he found that claims of hostile environment harassment because of the plaintiff’s sex, sexual orientation and marital status are also barred, due to Free Exercise and Establishment Clause concerns.

Demkovich began working as Music Director, Choir Director and Organist at St. Andrew in September 2012, and was fired in September 2014. His immediate supervisor, Reverend Jacek Dada, St. Andrew’s pastor, knew that Demkovich was gay and that he was engaged to another man, and, according to Demkovich’s allegations, subjected him to abusive and harassing behavior, which built to a crescendo as the date of Demkovich’s impending wedding approached.  Witnesses averred that Dada told them he would fire Demkovich if Demkovich married, and he was true to his word.  In addition, Demkovich, who had an obvious weight problem traceable to his struggles with diabetes, also suffered under Dada’s unwelcome comments about his weight and medical condition.  “Reverend Dada made harassing remarks about Demkovich’s weight, often urging him to walk Dada’s dog to lose weight, and telling Demkovich that he needed to lose weight because Dada did not want to preach at his funeral,” wrote Chang, summarizing the allegations in the complaint.  “Dada also repeatedly complained about the cost of keeping Demkovich on the parish’s health and dental insurance plans because of his weight and diabetes.  In 2012, when Demkovich declined a dinner invitation from Dada because he did not have his insulin with him, Dada asked if Demkovich was diabetic and told him that he needed to ‘get his weight under control’ to help eliminate his need for insulin.”

Being an organist and choir director seems to be a profession that attracts gay men, to judge by the number of cases we have seen over the years, including some of the earliest sexual orientation discrimination cases. Lawsuits challenging dismissals of gay church organists and choir directors almost invariably founder on the courts’ solicitude for defenses based on the First Amendment protection of the decisions by churches about whom to employ in positions directly implicated in carrying out their religious mission, and there is little disagreement among those judges who have faced the question that a church organist and choir director plays a ministerial role in the life of a church.  As to that, Judge Chang found that Demkovich’s concession that his is a “minister” for this purpose precludes his pursuit of wrongful discharge discrimination claims, whether premised on Title VII and the ADA or similar state or local laws, based on the Supreme Court’s determination that the government should never be involved in telling a church whom to employ as a minister.

However, Chang found, the Supreme Court’s Hosanna-Tabor case was a discharge case, and can be read to be limited to discrimination claims with respect to tangible employment issues, such as hiring, promotion, assignments, compensation. The Court spoke in that case about the right of a church to decide whom to employ as its minister, but not necessarily how that individual would be treated based on characteristics other than their religion, as to which Title VII provides for an express exception allowing religious institution employers to establish religious criteria for employment.  On the other hand, he found, one must resort to circuit court precedent to determine whether the ministerial exemption should also bar hostile environment harassment claims by a ministerial employee against a religious employer.  Since these claims involve “intangible” harms, he concluded that it was possible that the ministerial exception does not apply to them.  Instead, on a case-by-case basis, the court would have to determine whether allowing a hostile environment claim to go forward would raise significant 1st Amendment free exercise or establishment concerns.

As to this, he concluded, given the Catholic Church’s well-known public opposition to same-sex marriage, alleging a hostile environment based mainly on adverse comments by a supervisor about an employee’s proposed same-sex marriage would intrude unduly into the 1st Amendment rights of the church, thus ruling out that claim as well. “Although the ministerial exception does not bar Demkovich’s hostile-environment claims (to repeat, he does not challenge a tangible employment action), the Court concludes that litigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion.”  He noted that defendants offered a “religious justification for the alleged derogatory remarks and other harassment: they ‘reflect the pastor’s opposition, in accord with Catholic doctrine, to same sex marriage,’” he wrote.

“Whether Catholicism in fact dictates opposition to same-sex marriage is not subject to court scrutiny,” wrote the judge, quoting 7th Circuit authority to the effect that “once the court has satisfied itself that the authorized religious body has resolve dthe issue, the court may not question the resolution.”  Furthermore, he observed, the Church’s “official opposition to gay marriage is commonly known (nor does Demkovich question it), and there is no reason to question the sincerity of the Archdiocese’s belief that the opposition is dictated by Church doctrine.”  Also, Demkovich’s ministerial role “weighs in favor of more protection of the Church under the First Amendment,” he continued, noting that “the church has absolute say in who will be its ministers.”  Chang pointed out several different ways in which allowing this hostile environment claim to proceed would raise Establishment Clause as well as Free Exercise Clause problems.

On the other hand, found Chang, there seemed no salient 1st Amendment concern in allowing Demkovich to pursue a hostile environment disability claim under the ADA, assuming that hostile environment claims are actionable under that statute – an issue not yet addressed by the Supreme Court.  Although the Church’s ministerial exemption bars suing it about a decision concerning whom to employ as a minister, wrote Chang, it was hard to discern a First Amendment right of the Church that would be abridged by questioning the disability-related hostile treatment of a minister whom the Church was willing to employee.

He wrote, “The Court first notes that the Seventh Circuit has not yet expressly decided that the ADA ever permits a hostile work environment claim. Instead, the Seventh Circuit has assumed – in both published and unpublished decisions – that there is such a claim under the ADA.  In light of the similarity between Title VII and the ADA in protection against discriminatory workplace conditions, this Court too assumes that the ADA does provide for hostile work environment claims.  When analyzing hostile work environment claims under the ADA, the Seventh Circuit has ‘assumed that the standards for proving such a claim would mirror those established for claims of hostile work environment under Title VII.”

Significantly, he noted, the Archdiocese “offers no religious explanation for the alleged disability discrimination. The Archdiocese justifies [Rev. Dada]’s comments as ‘reflecting the pastor’s subjective views and/or evaluation of Plaintiff’s fitness for his position as a minister.’  But this is not a religious justification based on any Church doctrine or belief, at least as proffered so far by the defense.  So the disability claim does not pose the same dangers to religious entanglement as the sex, sexual orientation, and marital-status claims.  Nothing in discovery should impose on religious doctrine on this claim.  Rather, the inquiry will make secular judgments on the nature and severity of the harassment (and whether it even happened), as well as what, if anything, the Archdiocese did to prevent or correct it.  The Religious Clauses do not bar Demkovich from pursuing the hostile-environment claims based on disability.”

The Archdiocese had also argued that “the alleged conduct was not severe or pervasive, was not physically threatening, and is not alleged to have altered the terms and conditions of Plaintiff’s employment,” but Chang noted that “this case is at the pleading stage, so Demkovich need not plead more facts than necessary to give the Archdiocese ‘fair notice of his claims and the grounds upon which those claims rest, and the details in his Amended Complaint present a story that holds together.’”  Judge Chang found that the allegations thus far were sufficient to place a hostile environment claim in issue for purposes of defeating a motion to dismiss.

Thus, the bottom line is that defendants’ motion to dismiss was granted as to the hostile environment claims based on sex, sexual orientation, and marital status, but denied as to the claims based on disability.”

Demkovich is represented by Kristina Buchthal Regal of Lavelle Law, Ltd., Palatine, IL.

Supreme Court Receives Two New Certiorari Petitions on Title VII Sexual Orientation Discrimination Claims

Posted on: May 31st, 2018 by Art Leonard No Comments

At the end of May the Supreme Court had received two new petitions asking it to address the question whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation.

Altitude Express, the former employer of the late Donald Zarda, a skydiving instructor who claimed he was dismissed because of his sexual orientation in violation of Title VII, has asked the Court to reverse a February 26 ruling by the U.S. Court of Appeals for the 2nd Circuit.  The 2nd Circuit ruled in Zarda v. Altitude Express, 883 F.3d 100 (en banc), that the district court erred in dismissing Zarda’s Title VII claim as not covered under the statute, and sent the case back to the U.S. District Court, holding that sexual orientation discrimination is a “subset” of sex discrimination.

Gerald Lynn Bostock, a gay man who claims he was fired from his job as the Child Welfare Services Coordinator for the Clayton County, Georgia, Juvenile Court System because of his sexual orientation, is asking the Court to overturn a ruling by the 11th Circuit Court of Appeals, which reiterated in his case its recent ruling in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017), that an old precedent requires three-judge panels within the 11th Circuit to dismiss sexual orientation claims under Title VII.  As in the Evans case, the 11th Circuit refused Bostock’s request to consider the question en banc. See Bostock v. Clayton County Board of Commissioners, 2018 U.S. App. LEXIS 12405, 2018 WL 2149179 (11th Cir., May 10, 2018).

The question whether Title VII can be used to challenge adverse employment decisions motivated by the worker’s actual or perceived sexual orientation is important as a matter of federal law, and even more important nationally because a majority of states do not forbid such discrimination by state statute. Although Title VII applies only to employers with at least 15 employees, thus leaving regulation of small businesses to the states and localities, its applicability to sexual orientation discrimination claims would make a big difference for many lesbian, gay and bisexual workers in substantial portions of the country where such protection is otherwise unavailable outside those municipalities and counties that have local ordinances that cover sexual orientation claims. It would give them both a federal forum to litigate their employment discrimination claims and substantive protection under Title VII.  For example, not one state in the southeastern United States forbids sexual orientation discrimination by statute.  In Georgia, individuals employed outside of a handful of municipalities are, like Gerald Bostock in Clayton County, out of luck unless the federal law can be construed to protect them.  Thus, an affirmative ruling by the Supreme Court would be especially valuable for rural employees who are unlikely to have any state or local protection.  (The question whether a county or city ordinance provides protection depends on where the employer does business, not where the employee lives, so somebody living in Birmingham, Alabama, but working in a factory or a retail business outside the city limits, would not be protected by the city’s ordinance.)

During the first several decades after Title VII went into effect on July 2, 1965, every attempt by LGBT plaintiffs to assert sexual orientation or gender identity discrimination claims was rejected by the Equal Employment Opportunity Commission (EEOC) and the federal courts. Two Supreme Court decisions adopting broad interpretations of the meaning of discrimination “because of sex” have led to a movement to reconsider that old position.  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court accepted the argument that an employer who discriminates against a worker because of the worker’s failure to comport with stereotypes the employer holds about sex and gender may have acted out of a forbidden motivation under Title VII.  And in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), holding that the interpretation of “because of sex” was not limited to the factual scenarios envisioned by Congress in 1964, the Court rejected the 5th Circuit’s holding that Title VII could not apply to a case where a man was being subjected to hostile environment harassment of a sexual nature by male co-workers.  In that case, the Court (speaking unanimously through Justice Antonin Scalia) said that Title VII could be applied to “comparable evils” to those envisioned by Congress.  Taking these two cases together as precedents, lower federal courts began to interpret federal laws forbidding sex discrimination to be susceptible to broader interpretations, first in cases involving transgender plaintiffs, and then more recently in cases involving lesbian, gay or bisexual plaintiffs.

The EEOC embraced this movement in the lower federal courts during the Obama Administration in rulings reversing half a century of agency precedent to extend jurisdiction to gender identity and sexual orientation claims. The key sexual orientation ruling is Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), issued just weeks after the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  The EEOC’s rulings are not binding on the federal courts, however, and the agency does not have the power to enforce its rulings without the courts’ assistance.  It does have power to investigate charges of discrimination and to attempt to persuade employers to agree to settle cases that the agency finds to be meritorious. The decision that the statute covers sexual orientation also provides a basis to ground retaliation claims under Title VII when employees suffer adverse employment actions because they oppose discrimination or participate in enforcement proceedings.

Plaintiffs bringing these sexual orientation cases in federal courts have had an uphill battle because of the weight of older circuit court decisions rejecting such claims. Under circuit court rules, old appellate decisions remain binding not only on the district courts in each circuit but also on the three-judge circuit court panels that normally hear appeals.  Only a ruling en banc by an expanded (eleven judges in the huge 9th Circuit) or full bench of the circuit court can overrule a prior circuit precedent, in addition, of course, to the Supreme Court, which can overrule circuit court decisions.  Some have argued, as the petition recently filed in Bostock argues, that Price Waterhouse and Oncale implicitly overrule those older precedents, including the case that the 11th Circuit cites as binding, Blum v. Golf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), a case from the old 5th Circuit.  (Congress subsequently split the 5th Circuit, separating off its eastern half to create a new 11th Circuit, which treats as binding old 5th Circuit precedents that have not been overruled en banc by the 11th Circuit.)  The 2nd Circuit ruling in Zarda specifically looked to Price Waterhouse and Oncale as well as the EEOC’s Baldwin decision to overrule several earlier panel decisions and establish a new interpretation of Title VII for the federal courts in Vermont, New York, and Connecticut.

Before the Zarda decision, the only circuit court to issue a similar ruling as a result of en banc review was the 7th Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).  At the time of Hively, two out of the three states in the 7th Circuit – Wisconsin and Illinois – already had state laws banning sexual orientation discrimination, so the ruling was most important for people working in Indiana.  A three-judge panel of the 8th Circuit, covering seven Midwestern states, most of which do not have state laws banning sexual orientation discrimination, will be hearing argument on this issue soon in Horton v. Midwest Geriatric Management, 2017 U.S. Dist. LEXIS 209996, 2017 WL 6536576 (E.D. Mo. Dec. 21, 2017), in which the U.S. District Court dismissed a sexual orientation discrimination claim in reliance on a 1989 decision by an 8th Circuit panel.

Bostock’s petition argues that circuit courts should not be treating as binding pre-Price Waterhouse rulings on this issue.  Under this logic, the 8th Circuit panel in Horton should be able to disclaim that circuit’s 1989 ruling, although it is more likely that an overruling would require an en banc hearing, unless, of course, the Supreme Court grants one of the new petitions and sides with the plaintiffs in these cases.

Altitude Express’s petition, by contrast, relies on the Supreme Court’s general disposition against recognizing “implied” overruling, arguing that the 2nd and 7th Circuits have erred in interpreting Title VII to apply to claims that Congress did not intend to address when it passed Title VII in 1964, and that neither Price Waterhouse nor Oncale has directly overruled the old circuit court precedents.  While the Altitude Express petition states sympathy, even support, for the contention that sexual orientation discrimination should be illegal, it lines up with the dissenters in the 2nd and 7th Circuits who argued that it is up to Congress, not the courts, to add “sexual orientation” through the legislative process.

A similar interpretation battle is playing out in the circuit courts of appeals concerning gender identity discrimination claims. However, plaintiffs are having more success with these claims than with sexual orientation claims because it is easier for the courts to conceptualize gender identity – especially in the context of transition – as non-conformity with gender stereotypes, and thus encompassed directly within the scope of Price Waterhouse.  Although only one circuit court – again the 7th – has gone so far as to embrace the EEOC’s determination that gender identity discrimination claims can be considered discrimination “because of sex” without resorting to a stereotyping theory, most of the courts of appeals that have considered the question have agreed that the stereotyping theory can be put to work under Title VII to allow transgender plaintiffs to pursue their claims in federal court, and many have also applied it under Title IX of the Education Amendments Act of 1972 to find protection for transgender students. If the Supreme Court were to take up the sexual orientation issue, a resulting decision could have significance for gender identity claims as well, depending on the Court’s rationale in deciding the case.

The timing of these two petitions, filed late in the Term and after all oral arguments have been concluded, means that if the Court wants to take up this issue, the earliest it could be argued would be after the new Term begins on October 1, 2018. As of now, nobody knows for certain what the composition of the Court will be when the new term begins.  Rumors of the possible retirement of Justice Anthony Kennedy (who will turn 82 in July), likely to be the “swing” voter on this as on all LGBT rights cases, are rife, and although Justices Ruth Bader Ginsburg (recently turned 85) and Stephen Breyer (turning 80 in August) have expressed no intentions of stepping down, they are – together with Kennedy – the oldest members of the Court.  Justice Clarence Thomas, a decisive vote against LGBT rights at all times, who was appointed by George H.W. Bush in 1991, is the second-longest serving member of the Court after Kennedy (a Reagan appointee in 1987), but Thomas, who was relatively young at his appointment, will turn 70 on June 23, and most justices have continued to serve well past that age, so occasional speculation about his retirement is probably premature.  With the exception of Jimmy Carter, who did not get to appoint any Supreme Court justices during his single term, every president in modern times has gotten to appoint at least two justices to the Court during their first (or only) term.  So there is considerable suspense as to the composition of the Court for its 2018-2019 Term.  If the Justices are thinking strategically about their certiorari votes on controversial issues, they might well hold back from deciding whether to grant these petitions until they see the lay of the land after the Court’s summer recess.

The Altitude Express petition was filed by Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y. The Zarda Estate is represented by Gregory Antollino and Stephen Bergstein, of Bergstein & Ullrich, LLP.  The Bostock petition was filed by Brian J. Sutherland and Thomas J. Mew IV of Buckley Beal LLP, Atlanta, Georgia.  The Trump Administration Justice Department sided with Altitude Express in the en banc argument before the 2nd Circuit in Zarda, while the EEOC sided with the Estate of Zarda.  The Bostock petition seizes on this divided view from the government representatives in the Zarda argument as yet another reason why the Supreme Court should take up the issue and resolve it once and for all.  Numerous amicus briefs were filed for the 2nd Circuit en banc argument.  The Bostock 11th Circuit appeal attracted little notice and no amicus briefs.

 

Federal Appeals Court Rules for Transgender Funeral Director in Title VII Discrimination Suit

Posted on: March 11th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669, 2018 U.S. App. LEXIS 5720, that a Michigan funeral home violated federal anti-discrimination law by terminating a funeral director who announced that she would be transitioning during her summer vacation and would return to work as a woman.  The 6th Circuit has appellate jurisdiction over federal cases from Michigan, Ohio, Kentucky and Tennessee.

Rejecting a ruling by U.S. District Judge Sean F. Cox that the funeral home’s action was protected by the federal Religious Freedom Restoration Act (RFRA), Circuit Judge Karen Nelson Moore wrote for the court that the government’s “compelling interest” to eradicate employment discrimination because of sex took priority over the religious beliefs of the funeral home’s owner.

This is the first time that any federal appeals court has ruled that RFRA would not shelter an employer from a gender identity discrimination claim by a transgender plaintiff.  Although the 6th Circuit has allowed Title VII claims by transgender plaintiffs in the past under a “gender stereotype” theory, this is also the first time that the 6th Circuit has explicitly endorsed the Equal Employment Opportunity Commission’s conclusion that gender identity discrimination is a form of sex discrimination, directly prohibited by Title VII.  Judge Moore drew a direct comparison to a Title VII decision by the 7th Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held similarly that sexual orientation discrimination is a form of sex discrimination, thus potentially joining in the widening split of federal appellate courts over a broad construction of Title VII to extend to both kinds of claims.

Alliance Defending Freedom’s involvement as volunteer counsel for the funeral home makes it highly likely that the Supreme Court will be asked to review this ruling.

The lawsuit was filed by the EEOC, which sued after investigating Aimee Stephens’ administrative charge that she had been unlawfully terminated by the Michigan funeral home.  After the district court ruled in favor of the funeral home, the EEOC appealed to the 6th Circuit and Stephens, represented by the ACLU, was granted standing to intervene as co-plaintiff in the appeal.

“While living and presenting as a man,” wrote Judge Moore, “she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan.  Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.”

Rost identifies himself as a Christian who espouses the religious belief that “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if he were to permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”

“In particular,” related Judge Moore, “Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”

As such, Rost claimed that his company’s obligation to comply with Title VII should be excused in this case because of the later-enacted Religious Freedom Restoration Act (RFRA), which provides that the federal government may not substantially burden a person’s free exercise of religion unless it has a compelling justification for doing so, and that the rule the government seeks to apply is narrowly tailored to burden religious practice no more than is necessary to achieve the government’s goal.

The funeral home moved to dismiss the case, arguing that Title VII does not ban discrimination against a person because they are transgender or transitioning, that the funeral home could reasonably require compliance with its dress code, and that requiring the funeral home to allow a “man dressed as a woman” to serve as a funeral director would substantially burden the funeral home’s free exercise of religion, as defined by Rost, and violate its rights under RFRA.

Prior to the Supreme Court’s 2014 decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, there was no Supreme Court authority for the proposition that a funeral home, or any other for-profit business, could claim to “exercise religion,” but in that case the Court ruled that because business corporations are defined as “persons” in the U.S. Code, they enjoy the same protection as natural persons under RFRA.  At least in the case of a closely-held corporation such as Hobby Lobby, with a small group of shareholders who held the same religious beliefs on the issue in question – a federal regulation requiring that employer health plans cover various forms of contraception to which Hobby Lobby’s owners took exception on religious grounds – the corporation was entitled to protection under RFRA based on the religious views of its owners.  The Harris Funeral Home is analogous to Hobby Lobby Stores, albeit operating on a smaller scale, so Rost’s religious views on gender identity and transitioning can be attributed to the corporation for purposes of RFRA.

Interestingly, this would not have been an issue in the case had Stephens brought the lawsuit on her own behalf, without the EEOC as a plaintiff.  The 6th Circuit has interpreted RFRA to impose its restriction on the federal government but not on private plaintiffs suing to enforce their rights under federal statutes.  Since EEOC is the plaintiff, however, this is a case of the government seeking to impose a burden on the free exercise of religion by a business corporation, and RFRA is implicated.

District Judge Cox, bound by 6th Circuit precedent to find that Stephens had a potentially valid discrimination claim under Title VII (see Smith v. City of Salem, Ohio, 378 F. 3d 566 (2004)), nonetheless concluded that ordering a remedy for Stephens would substantially impair the Funeral Home’s rights under RFRA, granting summary judgment to the funeral home.  In another contested issue in the case, Judge Cox ruled that the EEOC could not pursue in this lawsuit a claim that the Funeral Home’s policy of paying for male employees’ uniforms but not for female employees’ uniforms violated Title VII’s sex discrimination provision.  Cox held that this claim did not grow naturally out of the investigation of Stephens’ discrimination charge, and so must be litigated separately.

The 6th Circuit reversed on both points.  As to the uniform issue, the Court found that the EEOC’s investigation of Stephens’ discrimination claim naturally led to investigating the company’s uniform policy, since the question of which uniform Stephens could wear was directly involved in Rost’s decision to terminate her.  The court reversed the summary judgment and remanded the question back to the district court to determine whether the uniform policy, which the funeral home has since modified to provide some subsidy for the cost of women’s uniforms, violates Title VII.

More significantly, the court found that Judge Cox erred on several key points in his analysis of the company’s summary judgment motion.

Cox had determined that the 6th Circuit does not recognize gender identity claims under Title VII, as such, but in rejecting a prior motion to dismiss the case had concluded that Stephens could proceed on the theory that she was fired for failing to conform to her employer’s stereotype about how men are supposed to present themselves and dress in the workplace.  Rost stated in his deposition that he objected to men dressing as women – which is how he views Stephens in light of his religious belief that gender identity is just a social construct that violates God’s plan and not a reality.

After reviewing the court’s prior transgender discrimination decisions, Judge Moore concluded that the EEOC’s view of the statute to cover gender identity discrimination directly, without reference to sex stereotypes, is correct.  “First,” she wrote, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

She referred to the 7th Circuit’s Hively decision, a sexual orientation case, which employed the same reasoning to find that Title VII covers sexual orientation claims.  “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code.  The answer quite obviously is no.  This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens.”

The court also referred to a landmark ruling by the U.S. District Court in the District of Columbia, Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008), which allowed a transgender discrimination claim against the Library of Congress, which had withdrawn an employment offer when informed that the applicant was transitioning.

And, of course, the court noted the Supreme Court’s Price Waterhouse v. Hopkins ruling (490 U.S. 228 (1989)), stating that Title VII requires “gender” to be “irrelevant to employment decisions.”  Moore wrote, “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”

Of course, Moore noted, transgender discrimination implicates the sex stereotype theory as well.  Referring to Smith v. City of Salem, she wrote, “We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much – both by this circuit and others,” and then proceeded to say as much!  “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”

In light of this holding, the funeral home had to be found in violation of the statute unless it was entitled to some exception or some affirmative defense.  One argument made in an amicus brief in support of the funeral home suggested that a person employed as a funeral director could be covered by the constitutionally-mandated ministerial exception recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  The Supreme Court said that it is a component of free exercise of religion that if somebody is being employed to perform religious functions, the government could not dictate the hiring decision.  The court rejected this defense, noting that the funeral home has conceded that it is not a “religious organization” and was not claiming the “ministerial exception” for any of its employees.  Furthermore, even if the funeral home tried to claim the exception, the court found it would not apply to the position of a funeral director in a for-profit funeral home business.  Stephen was not employed to serve a religious function, and the duties of a funeral directly only incidentally involved any religious function in the way of facilitating participation of religious funeral celebrants.

Turning to the RFRA defense, the court first dispensed with the argument that as Stephens had intervened as a co-plaintiff, RFRA had been rendered irrelevant because this was no longer purely a government enforcement case.  The EEOC remains the principal appellant in the case, and the court would not dismiss the RFRA concern on that basis.

However, the court found, significantly, that requiring the funeral home to employ Stephens after her transition would not impose a “substantial” burden within the meaning of RFRA.  The funeral home argued that the “very operation of the Funeral Home constitutes protected religious exercise because Rost feels compelled by his faith to serve grieving people through the funeral home, and thus requiring the Funeral Home to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – the Funeral Home’s ability to carry out Rost’s religious exercise of caring for the grieving.”

Rost suggested two ways this would impose a substantial burden.  First, he suggested, letting Stephens dress as a woman “would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and the Funeral Home’s ministry),” and second, “forcing the Funeral Home to violate Rost’s faith would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.”  The court did not accept either of these as “substantial within the meaning of RFRA.”

For one thing, a basic tenet of anti-discrimination law is that businesses may not rely on customer preferences or biases as an excuse to refuse to employ people for a reason forbidden by Title VII.  Courts have ruled that even if it is documented that employing somebody will alienate some customers, that cannot be raised as a defense to a valid discrimination claim.  “We hold as a matter of law,” wrote Moore, “that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”

The court rejected Rost’s argument that the EEOC’s position put him to the choice of violating his religious beliefs by, for example, paying for a women’s uniform for Stephens to wear, or otherwise quitting the funeral business.  The court pointed out that there is no legal requirement for Rost to pay for uniforms for his staff.  This is distinguishable from the Hobby Lobby case, where the issue was a regulation requiring employers to bear the cost of contraceptive coverage.  Further, wrote Moore, “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” because “as a matter of law, tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”

Since the court found no substantial burden, it did not necessarily have to tackle the question of the government’s justification for imposing any burden at all.  But with an eye to a likely appeal of this case, the court went ahead to determine whether, if it is wrong about this and the Supreme Court were to find that this application of Title VII to Rost’s business does impose a substantial burden, it passes the strict scrutiny test established by RFRA.

As to this, the court reached perhaps its most significant new ruling in the case: Having identified gender identity claims as coming within the ambit of sex discrimination claims, the court had to determine whether the government has a compelling interest and that enforcing Title VII is the least intrusive way of achieving that interest.  Even the Funeral Home was willing to concede that on a general level the government has a compelling interest, expressed through Title VII, in eradicating sex discrimination in the workplace, but the Funeral Home argued that interest did not justify this particular case, compelling it to let a man dress as a woman while working as a funeral director.  “The Funeral Home’s construction of the compelling-interest test is off-base,” wrote Moore.  “Rather than focusing on the EEOC’s claim – that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior – the Funeral Home’s test focuses instead on its defense that the Funeral Home merely wishes to enforce an appropriate workplace uniform.  But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies.”  The question, according to the court’s interpretation of Supreme Court precedents, is whether “the interests generally served by a given government policy or statute would not be ‘compromised’ by granting an exemption to a particular individual or group.”

“Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person – Stephens – to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” And, continued Moore, “here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.”

The court specifically rejected the Funeral Home’s argument that its religious free exercise rights should take priority as being derived from the 1st Amendment, because that would go directly against Supreme Court precedent, which has rejected the idea that individuals and businesses generally enjoy a 1st Amendment right to refuse to comply with laws because of their religious objections.  Congress did not have authority, in the first version of RFRA that it passed and that was invalidated by the Supreme Court, to overrule a Supreme Court decision.  What RFRA does is to create a statutory right, not to channel a constitutional right, and the statutory right is circumscribed to cases where a federal law imposes a substantial burden on free exercise without having a compelling justification for doing so.  This does, not, according to the 6th Circuit, elevate a business’s free exercise rights above an individual’s statutory protection against discrimination.  (Indeed, Justice Samuel Alito said as much in his Hobby Lobby opinion for the Supreme Court, albeit in the context of race discrimination.)

Finally, as required by RFRA, the court found that requiring compliance with Title VII was the least restrictive means available for the government to achieve its compelling interest in eradicating employment discrimination because of sex.  The district court had suggested that the EEOC could pursue a less restrictive alternative by getting the parties to agree to a gender-neutral uniform for the workplace, thus removing Rost’s objection to a “man dressed as a woman.”  “The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire,” wrote Judge Moore.  “Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man,’ the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.”  It was not just about the uniforms.

The court could have reversed the summary judgment and sent the case back to the district court to reconsider its holding and determine whether a trial was needed, but in fact there are no material facts in dispute once one treats the 6th Circuit’s opinion as presenting the law of the case on interpreting Title VII and RFRA.  With no material facts to be resolved at this stage, the 6th Circuit directly granted summary judgment to the EEOC on its claim that the Funeral Home violated Title VII and is not entitled to a defense under RFRA.  Stephens won on the merits, unless the Funeral Home is successful in getting the Supreme Court to take the case and reverse the 6th Circuit’s decision.

The appeal was argued for the EEOC by Anne Noel Occhialinio, and for Stephens by ACLU attorney John A. Knight.  Douglas G. Wardlow of Alliance Defending Freedom argued on behalf of the Funeral Home.  The case attracted amicus briefs from Lambda Legal, Americans United for Separation of Church and State, Cleveland-Marshall College of Law, Private Rights/Public Conscience Project (New York) and various law firms offering pro bono assistance to amici on briefs.

Judge Moore was appointed to the court by President Bill Clinton.  The other judges on the unanimous panel were Helene N. White, appointed by President George W. Bush, and Bernice W. Donald, appointed by President Barack Obama.  Showing a recent trend in diversifying the federal bench, the panel was, unusually, made up entirely of female circuit judges.  As a result of several appointments by President Obama, half of the active judges on the 6th Circuit are women, the only federal appellate court yet to achieve gender parity.

2nd Circuit, En Banc, Votes 10-3 That Sexual Orientation Discrimination Violates Federal Employment Discrimination Law

Posted on: February 26th, 2018 by Art Leonard No Comments

The U.S. Court of Appeals for the 2nd Circuit, with appellate jurisdiction over federal cases from New York, Connecticut and Vermont, ruled on February 26 that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of an individual’s sex, also makes it unlawful for employers to discriminate against a person because of his or her sexual orientation.

 

The ruling in Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608, was not unexpected, as the questions and comments of the judges during the oral argument held on September 26, 2017, suggested general agreement that it was time for the 2nd Circuit to bring its case law in line with the evolving understanding that sexual orientation discrimination is a form of sex discrimination.

 

The Zarda ruling widens a split among federal appeals courts, as the 2nd Circuit joins the Chicago-based 7th Circuit, which ruled the same way last spring in Hively v. Ivy Tech Community College, in departing from the consensus of all the other circuit courts that have previously addressed the issue.  Although the Supreme Court recently refused to review a three-judge panel decision from the Atlanta-based 11th Circuit, Evans v. Georgia Regional Hospital, which had decided the other way, the Zarda ruling makes it more likely that the Court will soon take up the issue, especially if an employer on the losing end of the argument petitions the court to do so.

 

The Zarda case dates from the summer of 2010, when Donald Zarda, an openly gay sky-diving instructor, was fired by Altitude Express after a female customer’s boyfriend complained that Zarda had “come out” to his girlfriend while preparing for a “tandem skydive” during which they would be strapped together.

 

Zarda complained to the Equal Employment Opportunity Commission (EEOC), which at that time had not yet accepted the idea that sexual orientation claims violate Title VII. In his EEOC charge, Zarda asserted that he suffered discrimination because of his gender, complaining that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”  The EEOC, which did not then take a position on the merits of his claim, issued him a letter authorizing him to bring a lawsuit, which he did in the U.S. District Court for the Eastern District of New York.

 

Zarda’s court complaint cited Title VII, alleging sex discrimination (including discrimination because of a failure to conform to gender stereotypes), and the New York Human Rights Law, which explicitly outlaws sexual orientation discrimination.  The district court rejected his Title VII claim, following 2nd Circuit precedent, but allowed his state law claim to go to trial, where a jury ultimately ruled against him.  By the time of the trial, unfortunately, Zarda had died in a sky-diving accident, but the lawsuit was continued by his estate, seeking damages for employment discrimination.

 

In July 2015, the EEOC changed its view of the sexual orientation issue under Title VII, issuing a decision in the case of David Baldwin, a gay air traffic controller suing the U.S. Transportation Department.  The EEOC held that when an employer discriminates because of a person’s sexual orientation, the employer is unlawfully taking account of the person’s sex in making an employment decision.  Zarda’s Estate sought reconsideration of its Title VII claim from the district court, but was turned down, and encountered the same rejection from a three-judge panel of the court of appeals last spring.  The three-judge panel consisted of Circuit Judges Dennis Jacobs, Robert Sack, and Gerard Lynch.

 

However, in a different case decided last spring, Christiansen v. Omnicom Group, also presenting the sexual orientation issue under Title VII, a three-judge panel applied 2nd Circuit precedent to reject a sexual orientation claim but, in a concurring opinion, Chief Judge Robert Katzmann, taking note of the 7th Circuit’s Hively ruling and the EEOC’s Baldwin decision, suggested that the 2nd Circuit should reconsider its precedent in an appropriate case.  That would require a rare “en banc” review by the full bench of the Circuit.  The Zarda case, decided shortly after Christiansen, provided the opportunity for this, and the Circuit voted to grant a petition for reconsideration.

 

The panel that heard arguments on September 26 included all eleven active judges of the circuit plus two senior judges, Robert Sack and Gerard Lynch, who were part of the three-judge panel whose decision was being reconsidered.

 

All ten judges in the majority agreed with the proposition that individuals can bring a sexual orientation discrimination claim under Title VII, but only five judges agreed to base their decision on the three different theories that the EEOC and the 7th Circuit had embraced in their decisions.

 

Judge Katzmann wrote what the court described as the “majority opinion,” basically channeling his concurring opinion from the Christiansen case.  “Logically, because sexual orientation is a function of sex and sex is a protected characteristic under title VII, it follows that sexual orientation is also protected,” wrote Katzmann, explaining the first of three theoretical bases for the ruling, continuing that “because sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils longs recognized as violating Title VII, the statute must prohibit it.”

 

“Our conclusion is reinforced by the Supreme Court’s test for determining whether an employment practice constitutes sex discrimination,” he continued.  “This approach, which we call the ‘comparative test,’ determines whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different ‘but for that person’s sex.’”  Here her reverted to the 7th Circuit’s Hively decision, where that court found that a lesbian college professor, a woman who was attracted to women, would not have been fired if she was attracted to men.  “But for” her being a woman, her attraction to women would not have led to her discharge.

 

“To determine whether a trait operates as a proxy for sex,” he wrote, “we ask whether the employee would have been treated differently ‘but for’ his or her sex.  In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to a woman would have been treated differently if she had been a man who was attracted to women.  We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

 

The second theory is the gender stereotype theory.  “Specifically,” wrote Katzmann, “this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”  He reviewed the history of Supreme Court rulings developing the stereotype theory in the context of sex discrimination.

 

Finally, he turned to the associational theory, noting that the 2nd Circuit had accepted this theory in the context of race discrimination in a 2008 decision involving a white man who was discharged because he had married a black woman.  The court had found that this was discrimination because of both his race and the race of his wife, and thus violated Title VII.  Applying the reasoning of that case, he wrote, “if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because ‘the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him,’” quoting from the EEOC’s Baldwin decision.

 

Katzmann rejected the argument that the failure of Congress to approve any of more than fifty bills that have been introduced since the 1970s to add sexual orientation to the prohibited grounds for discrimination under federal law should defeat Zarda’s claim, or that the failure of Congress to address this issue when it amended Title VII in 1991 to overrule several Supreme Court decisions on other discrimination issues should be construed to constitute congressional approval of the three court of appeals decision that had up to that time rejected sexual orientation claims under Title VII.

 

This appeal was unusual in that the government filed amicus briefs and made arguments on both sides of the issue.  The EEOC filed a brief supporting the Zarda Estate’s claim that Title VII covers sexual orientation claims, consistent with its ruling in the Baldwin case, but the Justice Department filed a brief and participated in the oral argument on the other side, taking the view, consistent with Attorney General Jeff Sessions’ announced position, that Title VII does not cover sexual orientation or gender identity claims.  A large portion of Judge Katzman’s opinion, which runs over 65 pages, was devoted to refuting various arguments made by the Justice Department.

 

Several of the concurring judges joined the result but limited their agreement to the associational discrimination theory, finding it to be consistent with the Circuit’s 2008 race discrimination case.  Judge Dennis Jacobs went further, explaining why he was not convinced by the other theories accepted by Judge Katzmann.  Judge Raymond Lohier, Jr., premised his agreement on Judge Katzmann’s “but for” argument.

 

Judge Jose Cabranes concurred in the judgment without signing on to any of the other opinions, characterizing this as “a straightforward case of statutory construction.” He wrote, “Zarda’s sexual orientation is a function of his sex.  Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.  That should be the end of the analysis.”

 

Judge Lynch’s dissenting opinion was actually longer than Judge Katzmann’s majority opinion, providing a detailed history of the adoption of Title VII to support his agreement with Judge Diane Sykes of the 7th Circuit (who dissented in the Hively case) that the court must confine its interpretation of Title VII to what the legislators thought they were enacting in 1964.  Their argument is that the role of the court in statutory interpretation is relatively modest, and does not extend to “updating” statutes to embrace new legal principles that are not clearly logical extensions of what the legislature intended to address.  Lynch went out of his way to say multiple times that he thinks sexual orientation discrimination is a bad thing, to laud the states that have banned such discrimination, and to bemoan the failure of Congress to address the issue.  But, he insisted, it was not the role of the court to impose new legal obligations on private employers under the guise of interpreting a statute adopted more than fifty years ago. Judges Debra Ann Livingston and Reena Raggi also dissented, agreeing with Judge Lynch.

 

Thus, the three dissenters premised their view on a judicial philosophy concerning the statutory construction rather than a view about whether sexual orientation discrimination should be illegal.

 

New York, Connecticut and Vermont already have state laws banning sexual orientation discrimination in the workplace, so the 2nd Circuit’s ruling does not alter the obligations of employers and the rights of employees in a substantial way.  But it opens the doors of the federal court houses to such discrimination claims, and there are some ways in which Title VII can provider a broader range of protection than the state laws.  For example, at the Zarda trial, the judge gave a jury charge that required a finding that Zarda’s sexual orientation was the motivating factor in his discharge.  Such a charge would be too narrow under Title VII, where a jury could find a statutory violation as long as sexual orientation was “a factor,” even if there were other factors contributing to the decision.  Thus, the jury’s verdict on the state law claim will not preclude a ruling in favor of Zarda’s Estate when the case is returned to the district court for disposition of the Title VII claim.

 

New York solo practitioner Gregory Antollino has represented first Zarda and then his Estate throughout the proceedings, with Stephen Bergstein as co-counsel for the Estate. Altitude Express, which now has to decide whether to petition the Supreme Court for review or to defend the case back in the Eastern District court, is represented by Saul D. Zabell of Bohemia, New York.  Arguing as amicus in support of Zarda were Jeremy Horowitz from the EEOC and Gregory Nevins from Lambda Legal.  Arguing as amicus in support of Altitude Express were Hashim M. Mooppan from the Justice Department and Adam K. Mortara, of Bartlit Beck Herman Palenchar & Scott LLP, Chicago, as a court-appointed amicus. The case attracted many other amicus curiae filings, including from the LGBT Bar Association of Greater New York, and a wide array of civil rights, civil liberties, and LGBT rights groups in support of Zarda’s appeal.  On the other side were arrayed the Justice Department and some conservative groups, including the Christian Legal Society, the National Association of Evangelicals, the U.S. Justice Foundation, and the Conservative Legal Defense and Education Fund.

 

 

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.