New York Law School

Art Leonard Observations

Posts Tagged ‘Title VII’

New Court Ruling Shows What May Be Lost Due to Trump/Pence Election

Posted on: November 17th, 2016 by Art Leonard No Comments

A November 4 ruling in a sexual orientation discrimination case that was brought by the Equal Employment Opportunity Commission (EEOC) shows that progress on LGBTS rights may be lost as a result of the election of Donald Trump and Mike Pence. The ruling in EEOC v. Scott Medical Health Center, 2016 U.S. Dist. LEXIS 153744, 2016 WL 6569233 (W.D. Pa.), was issued by U.S. District Judge Cathy Bissoon, who was nominated to the federal district court in Pittsburgh by President Obama in 2010 and confirmed by the Senate in October 2011 by a vote of 82-3.  The judge, a Brooklyn native, was reportedly the first woman of Indian descent to sit as a federal judge when she took her previous position as a U.S. Magistrate Judge in 2008. In this ruling, the judge held that Title VII may be used to protect gay people from sexual orientation discrimination.

In this case, Dale Baxley was hired in mid-July 2013 by Scott Medical Health Center in a telemarketing position. He claims that he was subjected by his manager, Robert McClendon, to “a continuing course of unwelcome and offensive harassment because of his sex” that created a hostile work environment.  According to the Complaint filed in the district court, McClendon “routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’”  The Complaint also alleges that after McClendon found out that Baxley is gay and had a same-sex partner, he “made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’”  Baxley was gone from the job after about a month of McClendon’s verbal abuse, a victim – he claims – of “constructive discharge.”  That is, his working conditions were so miserable that he was compelled to quit.

Ironically, the EEOC’s lawsuit on behalf of Baxley resulted not from a charge he filed but from the agency’s investigation of discrimination charges filed with the Pittsburgh office by five of Baxley’s former female co-workers. These women alleged that they were subjected to sexual harassment by McClendon, including “unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions being taken against them.”  While investigating these charges, the agency learned about McClendon’s treatment of Baxley and Baxley’s claim that he had been constructively discharged.

At the end of the investigation, the EEOC issued a “Letter of Determination” to Scott Medical Health Center stating that the investigation “also revealed that McClendon harassed a male employee because of sex, specifically and repeatedly referring to the male employee as a ‘faggot,’ and repeatedly asking about the employee’s sexual experiences and preferences. The investigation revealed that McClendon targeted this male employee because he did not conform to what McClendon believed was acceptable or expected behavior for a male because of his association with members of the same sex rather than the opposite sex.”  The letter concluded that McClendon’s conduct created a hostile environment resulting in the constructive discharge of Baxley.  The EEOC attempted unsuccessfully to achieve a conciliation agreement with the employer, then filed this lawsuit.

This was the first lawsuit that the EEOC filed on behalf of a gay former employee alleging that his discharge was “because of sex” in violation of Title VII of the Civil Rights Act of 1964. In July 2015, the agency had reversed its position of half a century when it ruled in Baldwin v. Foxx that the U.S. Transportation Department may have violated Title VII when it denied a promotion to a gay air traffic controller.  After accepting the view that sexual orientation claims can be asserted under Title VII, the agency was on the lookout for appropriate private sector cases to bring, in order to vindicate a public policy against such discrimination as well as seeking a remedy for the employee involved.  The agency was seeking to establish court precedents that would lock its interpretation into the case law.  Prior to this case filing, all of the Title VII sexual orientation claims presented to federal courts had been lawsuits filed by individual discrimination victims, not by the federal agency.

The Health Center asked the court to dismiss the EEOC’s complaint, arguing that Title VII does not prohibit discrimination based on sexual orientation, citing two precedents from the U.S. Court of Appeals for the 3rd Circuit, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009), in support of that argument.  But Judge Bissoon found that in those prior decisions, the court of appeals had not been presented with all the arguments that the EEOC has developed in support of its 2015 change of position on this issue, and more recent events have undermined the earlier rulings, so she concluded that those rulings – by the court with direct appellate authority over district court decisions from Pennsylvania – did not compel dismissal of this complaint.

The EEOC advanced three lines of argument in support of its position. First, that Baxley was “targeted because he is a male, for had he been female instead of a male, he would not have been subjected to discrimination for his intimate relationships with men.”  Second, the he was “targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes Baxley’s sex into account.”  And, third, that he was “targeted because he did not conform to his harasser’s concepts of what a man should be or do.”  This last argument is a version of the “sex stereotype” theory that the Supreme Court approved in 1989 in Price Waterhouse v. Hopkins.

Judge Bissoon said that the EEOC’s three arguments were actually just one argument stated three different ways, “with the singular question being whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”

For purposes of ruling on a motion to dismiss a claim, the court assumes that the plaintiff’s factual allegations are true, and asks whether, based on those facts, the plaintiff has a plausible legal claim. Thus, Judge Bissoon was ruling, if the EEOC can prove these factual allegations, it will win the case.

Judge Bissoon held, straightforwardly, that “Title VII’s ‘because of sex’ provision forbids discrimination on the basis of sexual orientation.” This statement directly contradicts the two prior 3rd Circuit rulings, but Judge Bissoon found that it was consistent with how the law had developed under Title VII, dating back as early as 1983 when the Supreme Court began “broadening” its interpretation of sex discrimination in a series of cases culminating with Price Waterhouse in 1989.  She also noted that at least one federal appeals court, the Cincinnati-based 6th Circuit, has already used the sex stereotyping theory to extend protection to a transgender plaintiff.

As the EEOC has done, Judge Bissoon quoted Justice Scalia’s statement in the Supreme Court’s 1998 same-sex harassment case, Oncale v. Sundowner Offshore Services, that “statutory prohibitions often go beyond the principal evil [that Congress intended to address] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Thus, the lack of any evidence that Congress intended to prohibit sexual orientation discrimination in 1964 does not require rejecting a sexual orientation discrimination claim in 2016.

Referring back to Price Waterhouse, the judge wrote, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, ‘discrimination against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about “proper” roles in sexual relationships – that men are and should only be sexually attracted to women, not men.’  This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse.  Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

And the judge found that this argument was not presenting in its fully developed form to the 3rd Circuit in its earlier cases, so it had not been specifically rejected by that court.  In its earlier cases, furthermore, the 3rd Circuit panels had relied on the failure of Congress to pass the Employment Non-Discrimination Act as evidence that Congress did not intend to protect gay people from discrimination.  “However,” she wrote, “subsequent Third Circuit decisions have questioned the value of reliance on Congress inaction.”  Furthermore, she pointed out, many of the cases relied upon in those earlier 3rd Circuit decisions had in turned relied upon circuit court cases that pre-dated Price Waterhouse, and so necessarily had not ruled on the sex stereotype theory.

“The Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation,” wrote the judge. “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.” Thus, the court denied the employer’s motion to dismiss the Title VII complaint.

If the employer appeals this case to the 3rd Circuit, it will be reaching an appellate bench with seven Democratic appointees (by Presidents Clinton and Obama) and five Republican appointees (by Presidents Bush I and II).  There are two vacancies.  There are nine active senior judges of the circuit, mostly appointed by Republican presidents, who might sit on particular three-judge panels but would not participate in “en banc” reviews by the full circuit bench.   By random draw, any particular three-judge panel might by more or less receptive to Judge Bissoon’s reasoning, although one can’t conclusively presume that every Democratic appointee will agree and every Republican appointee will disagree.  But the point to bear in mind is that Obama, through his appointments, switched the 3rd Circuit from a more conservative to a more progressive bench, and Trump can rebalance the circuit by filling the two vacancies and the next one that comes along if a Clinton or Obama appointee takes senior status.

Similarly, at the EEOC, significant progress in protecting LGBT rights came through administrative rulings and litigation decisions undertaken by President Obama’s appointees. The agency has become a vocal proponent of a broad interpretation of Title VII to protect LGBT people from employment discrimination, and its reasoning has been followed by other agencies, such as the Department of Labor and the Department of Education.   It seems unlikely that Trump’s appointees, once attaining full control of the federal agencies and departments, would keep to the same course.  Indeed, it is not a sure thing that Trump will allow Obama’s executive orders banning sexual orientation and gender identity discrimination within the Executive Branch, to stay in place.  The Order requiring federal contractors to have non-discrimination policies is likely on the repeal list.

Luckily, individuals can continue to file discrimination lawsuits under Title VII, so the loss of the agency as a plaintiff in their cases will not shut them out of court. But preserving the gains made so far may be difficult against the tide of new judicial and agency appointments that will be made beginning January 21.  Stalling on confirmations by the Senate has left close to 100 federal judgeships vacant, and there are hundreds of agency appointments to be made as well, which will cumulatively change the direction in which federal anti-discrimination law has been developing during the Obama years.  The appointment of new Supreme Court justices will matter as well, of course, because ultimately the question whether Title VII and other federal sex discrimination laws protect LGBT people will end up before that Court, where a transgender “bathroom” case under Title IX has already been accepted for review.   If these cases are decided after Trump has had two Supreme Court appointments, it is reasonable to speculate that the newly solidified conservative majority will not be inclined to adopt such a broad interpretation of Title VII or other federal sex discrimination laws.  Elections matter.

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court Stays Injunction against Gloucester School District in Transgender Restroom Case

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

On August 3 the U.S. Supreme Court granted an application by the Gloucester (Virginia) County School Board to stay a preliminary injunction that had been issued by U.S. District Judge Robert Doumar (E.D. Va.) on June 23; see 2016 WL 3581852. Gloucester County School Board v. G.G., 136 S.Ct. 2442 (No. 16A52), granting stay. The injunction ordered the school board to allow Gavin Grimm, a transgender boy, to use the boys’ restroom facilities at his high school while the trial court determined whether the school’s policy denying such access violates Title IX of the Education Amendments Act of 1972.  What was unusual about the Supreme Court’s action was the brief concurring statement from Justice Stephen Breyer explaining that he had voted to grant the application as a “courtesy.”  The Court indicated that Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan “would deny the application.”  With the vacancy created by the death of Justice Scalia last winter, the four conservative members of the Court – Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas – could not issue the stay, which requires a majority of the Court.

The court specified that the injunction was stayed “pending the timely filing and disposition of a petition for a writ of certiorari.” If the Court denies the writ (that is, refuses to review the lower court’s ruling on the merits), the injunction will go into effect.  If the Court votes to grant review, the stay would end when the Supreme Court issues its ruling on the merits of the appeal.

The lawsuit involves the hotly disputed question whether Title IX’s ban on discrimination “because of sex” by educational institutions prohibits a school from denying transgender students access to restroom and locker-room facilities consistent with their gender identity. It is undisputed that when Congress enacted Title IX several decades ago, there was no consideration or discussion about whether it would require such a result, and it was made clear in the legislative history and subsequent regulations and guidelines that Title IX did not prohibit educational institutes from designating access to such facilities as male-only or female-only. (Indeed, many states have statutory requirements that educational institutions provide separate restroom and locker-room facilities for males and females.)  Furthermore, a series of cases under the various sex discrimination laws over several decades had rejected claims that they extended to gender identity discrimination. As to Title IX, it was not until relatively recently, when teens began to identify as transgender and to begin transitioning while still in school, that the issue has heated up, and it was not until 2015 that the U.S. Department of Education, charged with interpreting and enforcing Title IX, took the position that the ban on discrimination “because of sex” included discrimination because of gender identity.

The Education Department’s interpretation, expressed first in a letter released in connection with litigation over restroom access in a suburban Illinois school district, was not entirely unprecedented, since several lower federal courts have ruled under a variety of sex discrimination laws that discrimination because of gender identity is form of sex discrimination. These include the San Francisco-based 9th Circuit, in a case under the Violence against Women Act (VAWA), the Boston-based 1st Circuit, in a case under the Fair Credit Act, the Atlanta-based 11th Circuit, in a case interpreting the Equal Protection Clause of the 14th Amendment, and the Cincinnati-based 6th Circuit, in a case under Title VII of the Civil Rights Act of 1964 concerning employment discrimination.  However, challengers to the Education Department’s interpretation have argued that it is, in effect, a “changing of the rules” that can only be effected through a formal regulatory process under the Administrative Procedure Act, and not through a position letter in a pending case or an informal “guidance” memorandum.

In this Gloucester County case, Gavin Grimm had been using the boys’ facilities without incident after his gender transition until some complaints by parents to the school board resulted in a vote to adopt a policy requiring Grimm and any other transgender students to use either the facilities consistent with the gender indicated on their birth certificates (sometimes called “biological sex”) or to use single-user facilities designated for use by either sex, such as the restroom in the school nurse’s office. Since medical authorities will not perform “sex-reassignment surgery” on minors, it is impossible for a transgender youth to qualify for a change of gender designation on their birth certificate in most states, and some states rule out such changes altogether.  Grimm, who presents as male, sued under Title IX, claiming that the school district’s new access rule violated his rights under Title IX and the Equal Protection Clause.  Judge Doumar initially rejected his Title IX claim and reserved judgement on the Equal Protection claim, disagreeing with the Education Department’s interpretation of the statute.  132 F.Supp.3d 736 (E.D.Va., Sep. 17, 2015). This ruling was reversed on April 19 by the Richmond-based 4th Circuit Court of Appeals, 822 F.3d 709, which ruled that Doumar should have deferred to the Education Department’s interpretation of its own regulations and the statute.  The 4th Circuit subsequently voted to deny en banc review of this ruling, 824 F.3d 450 (May 31, 2016).  The 4th Circuit sent the case back to Judge Doumar, who then issued the preliminary injunction, and refused to stay it.  The 4th Circuit also refused to stay it, on July 12, 2016 WL 3743189.  The school district’s application to the Supreme Court indicated that it would be filing a petition for review of the 4th Circuit’s April 23 ruling, but in the meantime it wanted to preserve the “status quo” until there was a final ruling on the merits of the case.  Most pressingly, it wanted to ensure that its existing access rule would be in place when classes resumed at the high school.

At the heart of the disputes about Title IX restroom access cases is a fundamental disconnect between those who reject, based on their religious views or other beliefs, the idea that a transgender man is actually male or a transgender woman is actually female. (This is expressed in the controversial Mississippi HB 1523, which seeks to privilege those whose religious beliefs reject the concept of gender identity being discordant with anatomical sex at birth, by allowing individuals and businesses holding such beliefs to refuse to recognize transgender identity.)  Based on their political rhetoric and the arguments they make in court, it is clear that these critics believe that gender is fixed at birth and always coincides with anatomical sex, rejecting the whole idea of gender transition.  Thus, their slogan: No men in women’s restrooms, and no women in men’s restrooms.  Some premise this opposition on fears about safety, while others emphasize privacy, arguing that people have a “fundamental” constitutional privacy right not to confront transgender people in single-sex facilities.)  On the other side of the issue are those who accept the experience of transgender people and the findings of scientific researchers who have detected evidence that there is a genetic and/or biological basis for individuals’ strong feeling that they are misclassified.

This is, of course, not the only pending case placing in issue the Education Department’s interpretation of Title IX (which has also been endorsed by the Justice Department as it has represented the Education Department in court), or the broader question of whether federal sex discrimination laws are limited to instances of discrimination against somebody because of their “biological sex.” A three-judge panel of the 7th Circuit Court of Appeals recently ruled that circuit precedent required dismissal of a sexual orientation employment discrimination claim under Title VII, and the plaintiffs in that case will be seeking rehearing by the full 7th Circuit “en banc.”  There are also two appeals pending in the New York-based 2nd Circuit appealing dismissals of sexual orientation discrimination claims under Title VII, as well as an appeal in the Atlanta-based 11th Circuit by an employer seeking reversal of a district court’s refusal to dismiss such a claim.

There are also multiple lawsuits pending in North Carolina and Mississippi, and cases involving multiple states as plaintiffs in Texas and Nebraska, challenging the federal government’s interpretations of “sex discrimination” in either or both of the sexual orientation and gender identity contexts. Early in August federal district judges held hearings in several of these cases where litigants were seeking preliminary injunctions, either to bar enforcement of state laws or to block enforcement of Title IX by the Education Department.  The district court in Mississippi has refused to stay its injunction against the Mississippi law, and has been backed up by the New Orleans-based 5th Circuit Court of Appeals.  Mississippi will seek a Supreme Court stay, and in light of the Gloucester County stay, seems likely to receive one.

Justice Breyer cited in support of his “courtesy” vote a 2008 case, Medellin v. Texas, where the four liberal members of the Court had voted to grant a stay of execution of a Mexican national while important issues concerning the consular treaty rights of foreign nationals being tried on criminal charges in U.S. courts were unsettled and no member of the conservative branch of the Court was willing to provide a fifth vote as a “courtesy” to put off the execution until the underlying legal issues could be resolved.  In this case, the four conservative members of the Court clearly believed that the school district should not have to comply with the injunction until the underlying legal issues were settled, and Breyer was willing to extend to them the courtesy that none of them would extend in the 2008 case!

7th Circuit Panel Rejects Lesbian Professor’s Title VII Claim

Posted on: July 29th, 2016 by Art Leonard No Comments

A three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 28 that a lesbian professor could not sue the local community college in South Bend, Indiana, for sexual orientation discrimination under Title VII of the federal Civil Rights Act of 1964, rejecting her argument that anti-gay discrimination is a form of sex discrimination in violation of that law.  Hively v. Ivy Tech Community College, 2016 U.S. App. LEXIS 13746, 2016 Westlaw 4039703.

 

Weighing in on a question that has taken on renewed vitality since last July, when the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, ruled that David Baldwin, a gay air traffic controller, could bring an employment discrimination claim against the U.S. Transportation Department, the court, while describing the existing precedents in the 7th Circuit as “illogical,” nonetheless concluded that it was bound by those precedents.

 

Kimberly Hively began teaching part-time at Ivy Tech Community College in 2000. She applied six times for full-time positions for which she claimed to be qualified, but she was always turned down and her part-time contract was not renewed in July 2014.  By then, she had already filed a complaint with the EEOC on December 13, 2013, representing herself.  This was about 18 months before that agency changed its long-standing position and began to approve gay Title VII claims in the air traffic controller case.   The EEOC’s position, however, is not binding on federal courts.

 

Hively did not file a complaint with the South Bend human rights agency. Although that city’s anti-discrimination law was amended in 2012 to include sexual orientation, the city does not have jurisdiction to legislate about personnel practices at state-operated educational institutions, and they are explicitly exempted from coverage by the local law.  There is no Indiana state law forbidding sexual orientation discrimination.

 

After the EEOC concluded that it did not have jurisdiction, it sent Hively a “right to sue” letter. She filed her claim in federal court on August 15, 2014.  The college filed a motion to dismiss, arguing that sexual orientation discrimination claims are not covered under Title VII.  Hively, citing the advances of gay rights in the courts, urged that the college should not be allowed to discriminate based on sexual orientation.  On March 3, 2015, U.S. District Judge Rudy Lozano granted the college’s motion.   Citing a 7th Circuit decision from 2000 and a 2010 decision by the federal district court in Indiana, Judge Lozano wrote, “While this Court is sympathetic to the arguments made by Hively in her response brief, this Court is bound by Seventh Circuit precedent.  Because sexual orientation is not recognized as a protected class [sic] under Title VII, that claim must be dismissed.”

 

Hively also alleged a violation of 42 U.S.C. Section 1981, which Judge Lozano had to dismiss as well, because the Supreme Court interprets that 19th-century statute to apply only to race discrimination claims.  HiverlyivelyHi also asked to amend her complaint to push a claim for breach of contract, seeking enforcement of the college’s published non-discrimination policy, but that claim would arise under Indiana state contract law, and federal courts usually refuse to address state law claims when they have determined that the plaintiff has no federal law claim.

 

The fate Hively suffered in the district court shows the perils of individuals trying to navigate the complexities of federal employment law without legal representation. A well-versed lawyer might have found a way to construct a 14th Amendment Equal Protection claim on her behalf, which could be directed against individual school officials if she could allege sufficient facts to suggest that they refused to consider her applications because she is a lesbian, although there would be no guarantee of success because the Supreme Court has yet to rule on whether sexual orientation discrimination claims against public officials are entitled to heightened or strict scrutiny.

 

Attorney Gregory Nevins from Lambda Legal’s Atlanta office represented her on appeal to the 7th Circuit, where oral argument took place on September 30 and a long wait began for the court’s opinion.  The wait seemed surprising, because the three-judge panel would most likely easily conclude, as had Judge Lozano, that circuit precedent would dictate affirmance.  But the court took nine months to release its decision.  (By contrast, the 7th Circuit issued its marriage equality decision in 2014 less than two weeks after oral argument.)

 

Judge Ilana Rovner’s opinion obviously took so long because the majority of the panel was not content just to issue a pro forma dismissal in reliance on circuit precedent. The first, shorter, part of Rovner’s opinion, performing that function, was joined by Senior Judges William Bauer and Kenneth Ripple.  But the second, much longer, part, joined by Judge Ripple, provides a lengthy and detailed discussion of how the  EEOC’s Baldwin decision has led to an intense debate in the district courts around the country about how those old precedents are clearly out-of-step with where the country has moved on LGBT rights.

 

Judge Rovner (or, more likely, Lambda Legal in its appellate brief) collected district court decisions from all over the country – particularly from circuits where there were no adverse appeals court rulings – in which judges have decided to follow the EEOC’s reasoning and find that discrimination because of sexual orientation is “necessarily” sex discrimination.

 

The logical pathway to that conclusion runs through the Supreme Court’s 1989 ruling, Price Waterhouse v. Hopkins, which accepted the argument that discrimination against an employee because that employee fails to meet their employer’s sex-stereotypical views about how employees present themselves, is evidence of sex discrimination. That case involved a woman who was denied a partnership because she was perceived as inadequately feminine in her dress and conduct by partners who voted on the partnership decision.

 

Since 1989 some district courts have extended protection under Title VII to LGBT plaintiffs who could plausibly allege that they encountered discrimination because of sex stereotypes, but other courts have refused to take such cases, criticizing them as attempting to “bootstrap” coverage for sexual orientation into Title VII against the intent of Congress. What has emerged is a hodgepodge of decisions, resulting in the odd situation that, at least in some circuits, a gay plaintiff who is also obviously gender-nonconforming in terms of dress and speech may be protected under Title VII using the stereotyping theory, but a “straight-acting” gay plaintiff would have no protection.  Judge Rovner pointed out the irrationality of this, but, unfortunately, the 7th Circuit precedents seemed inescapable to this panel.

 

After discussing how various courts have pointed out the difficulties of distinguishing between a sex-stereotyping case and a sexual orientation case, she observed that the difficult is not necessarily impossible. “There may indeed be some aspects of a worker’s sexual orientation that create a target for discrimination apart from any issues related to gender,” she wrote.  “Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian ‘lifestyle,’ including ideas about promiscuity, religious beliefs, spending habits, child-rearing, sexual practices, or politics.  Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co-workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.  Therefore we cannot conclude that the two must necessarily be coextensive unless or until either the legislature or the Supreme Court says it is so.”

 

In this case, she pointed out, Kimberly Hively had not made any specific allegations of gender non-conformity, other than the implicit contention that being a lesbian, as such, was gender non-conforming in that she was attracted to women rather than men. Although a few district courts, especially after the Baldwin ruling, have found that to be enough to squeeze into coverage under the sex stereotype theory, the 7th Circuit hasn’t gotten there yet, and this panel did not feel empowered to extend circuit precedent to accept that argument.

 

While noting the significant advances in LGBT rights at the Supreme Court from Romer v. Evans (1996) through Obergefell v. Hodges (2015), Judge Rovner pointed out that in none of those cases has the Supreme Court said anything that would deal directly with the question whether anti-gay discrimination must be treated as a form of sex discrimination under Title VII. But she did observe the stark legal anomaly created by last year’s marriage equality decision.

 

“The cases as they do stand, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” she wrote. “For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  From an employee’s perspective, that right to marriage might not feel like a real right if she can be fired for exercising it.  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, ‘You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.’  And the employee would have no recourse whatsoever – unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation.  More than half of the United States, however, do not have such protections.”

 

She pointed out the additional oddity that even a “straight” employee who was discharged because her employer mistakenly thought she was a lesbian would have no protection, unless she could show her overt violation of gender stereotypes aws the reason for the discrimination. Straight people are not protected from “mistaken” sexual orientation discrimination!

 

Judge Rovner observed that this state of the law “leads to unsatisfying results.” It also is inconsistent with Title VII race discrimination cases that impose liability when an employer fires a white employee because he or she is dating or marrying a person of a different race.  It is now well-established that it is race discrimination to single out somebody because of their interracial social life.  Why not, as a logical matter, prohibit discriminating against somebody because of their same-sex social life?  The logic seems irrefutable.  “It is true that Hively has not made the express claim that she was discriminated against based on her relationship with a woman,” wrote Judge Rovner, “but that is, after all, the very essence of sexual orientation discrimination.  It is discrimination based on the nature of an associational relationship – in this case, one based on gender.”

 

Rover found it “curious” that “the Supreme Court has opted not to weigh in on the question of whether Title VII’s prohibition on sex-based discrimination would extend to protect against sexual orientation discrimination” and that even in “the watershed case of Obergefell” the court “made no mention of the stigma and injury that comes from excluding lesbian, gay, and bisexual persons from the workforce or subjecting them to un-remediable harassment and discrimination.” But, frustratingly, the Supreme Court has yet to tackle head-on the direct issue of anti-gay discrimination in a way that would provide guidance to lower federal courts and state courts, and has so far consistently denied review in cases presenting this question.  “In addition to the Supreme Court’s silence,” she observed, “Congress has time and time against said ‘no’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.”

 

Ultimately the judge was very critical of the 7th Circuit’s precedent.  “It may be that the rationale appellate courts, including this one, have used to distinguish between gender non-conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis,” she wrote.  “It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes – with whom a person engages in sexual relationships.  And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms.  We allow two women or two men to marry, but allow employers to terminate them for doing so.  Perchance, in time, these inconsistencies will come to be seen as denying practical workability and will lead us to reconsider our precedent.”  She then quoted Justice Kennedy’s Obergefell decision, pointing out how “new insights and societal understandings” could lead to changes in the law.

 

Rovner concluded that it was “unlikely” that society would tolerate this anomalous situation for long. “Perhaps the writing is on the wall,” she wrote.  “But writing on the wall is not enough.  Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is affirmed.”

 

This conclusion is not totally accurate.  The full 7th Circuit, considering this issue en banc, could decide to overrule the prior precedent within the circuit without waiting for passage of the Equality Act (which would amend Title VII to add sexual orientation and gender identity) or for a Supreme Court ruling.  Judge Rovner’s extended critique implies receptivity to rethinking the precedent, so perhaps a motion for rehearing en banc could find favor with a majority of the judges of the circuit.

 

A little “circuit math” suggests the possibility: There are nine active judges on the 7th Circuit, with two vacancies for which President Obama has made nominations that are stalled in the Senate.  Only one of the active judges was appointed by President Obama, David Hamilton, and two were appointed by President Clinton, Chief Judge Diane Wood and Ann Williams.  All the other judges are appointees of Presidents George H.W. Bush and Ronald Reagan.  (There is no appointee of George W. Bush sitting on the 7th Circuit.)

 

The three-judge panel in this case consisted entirely of Republican appointees: Judge Rovner by the first President Bush, Senior Judges Bauer and Ripple by Presidents Ford and Reagan. Interestingly, Ripple and Rovner, both Republican appointees with long service on the court, agree that the precedent is “illogical” and not “rational.”  Unfortunately, Judge Ripple, as a Senior Judge, would not participate in an en banc rehearing.  But perhaps despite the strong 6-3 overall Republican tilt of this circuit, a full nine-member bench might find a majority for granting en banc rehearing and changing the circuit precedent.  That would require at least one more Republican appointee to join Rovner and the three Democratic appointees to make a 5-4 majority.

 

One of the other Republican appointees, Richard Posner, could be the prime candidate for that. He wrote the 7th Circuit’s magnificent marriage equality decision, which reflected his strong receptivity to reconsidering his views on LGBT issues, a point he has subsequently reiterated in a law review article musing about his changing understanding of LGBT issues since he was appointed to the court by Ronald Reagan in the 1980s.

 

On the other hand, it is possible that this opinion took so long to get out because some attempt was made within the judges’ chambers to provoke a spontaneous en banc reconsideration , but it was unsuccessful.  Who knows?  Mysterious are the inner workings of our courts.

Federal Trial Courts Divided Over Title VII Sexual Orientation Discrimination Claims

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Flood of New Litigation on LGBT Rights

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

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EEOC Rules on Transgender Employee Restroom Rights

Posted on: April 9th, 2015 by Art Leonard No Comments

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of federal bans on sex discrimination in employment, has ruled that a transgender woman employed in a civilian position by the U.S. Department of the Army, is entitled to use restroom facilities consistent with her gender identity, despite the agency’s objection to providing such access before the individual has undergone sex-reassignment surgery.  Although the EEOC had previously ruled that refusal to employ somebody because of their gender identity was a form of sex discrimination in violation of federal law, this was its first pronouncement on one of the great looming issues in transgender workplace rights: restroom access.

The case is Lusardi v. McHugh, the complainant being Tamara Lusardi and the named defendant being Secretary of the Army John M. McHugh.  The EEOC designates this as Appeal No. 0120133395.

Lusardi was hired as a male-identified person in 2004, as a civilian employee with the U.S. Army Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.  The case decided by the EEOC relates to events from October 2010 through August 2011 when she was assigned to the AMRDEC Software Engineering Directorate, and was also doing work at the Project Management office, Aircraft Survivability Equipment, as a Software Quality Assurance Lead.

As early as 2007 she had begun to discuss her gender identity issues with the Division Chief, and she began the actual transitioning process in 2010, obtaining a legal name change from an Alabama court in April of that year from a male-identified first-name to her desired name of Tamara.  She requested that the name be changed in Department records, which was effected on October 13, 2010.  Two weeks later, at the request of the supervisor on the Aircraft Survivability Equipment job, she met with that supervisor and the Division Chief to discuss the process of transitioning to presenting herself in conformance with her gender identity, and the issue of how she would relate to co-workers came up, particularly regarding restroom use once she began presenting as a woman.  An agreement of sorts was reached, and memorialized in writing, that she would use a single-user restroom, referred to as the “executive restroom,” until she had undergone sex reassignment surgery.

She generally adhered to that agreement, but there were a few occasions when that restroom was unavailable or out of order, so she used the restroom designated for women, which brought forth objections from the supervisor and it turned into an issue.  There was also a problem of harassment, derived from another supervisor’s  apparent difficulty in accommodating to Lusardi’s gender identity.  This supervisor persisted in referring to Lusari with masculine pronouns or calling her “sir,” using her former first name, and “smirking” and “giggling” in front of others while stating “What is this, [Complainant’s former male name] or Tamara”?

Lusardi initially spoke with an EEO counselor about these issues in September 2011, and filed a formal complaint of disparate treatment and hostile environment with the agency’s EEO office on March 14, 2012.  A final agency decision was issued on September 5, 2013, concluding that she had failed to show a violation of the applicable ban on sex discrimination.  She appealed this ruling to the EEOC a few weeks later.  She also filed a complaint with the Office of Special Counsel, which is charged with ruling on internal executive branch personnel matters.  That office found that the restroom access denial was improper, in a report that ordered training for Army Department staffers but awarded no remedy to Lusardi.

Reversing the Army Department’s decision, the EEOC found that the disparate treatment in restroom access was a direct violation of the ban on sex discrimination.  Following up on the logical implications of its prior decision, it held that a transgender woman who is presenting as a woman is entitled to be treated by her employer as a woman.  This includes access to women’s facilities, regardless whether the individual has had surgery.  “This case represents well the peril of conditioning access to facilities on any medical procedure,” wrote the Commission.  “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals or anyone else).  An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”

The EEOC also rejected the agency’s findings on the harassment claim, concluding that the insults to Lusardi were intentional, and ordered the agency to take concrete steps to educate its employees and supervisors on their non-discrimination obligations. The EEOC also ordered the agency to undertake a fact-finding investigation to determine compensatory damages for Lusardi in connection with the findings of sex discrimination and hostile environment.

It will be interesting to see whether the federal courts will fall in line with this ruling, which contradicts older court opinions.

Is ENDA Necessary? Or Will Title VII of the Civil Rights Act of 1964 Take Care of LGBT Discrimination

Posted on: April 4th, 2014 by Art Leonard No Comments

One of the major legislative goals of the LGBT rights movement is to get Congress to pass the Employment Non-Discrimination Act (ENDA), a measure that has been pending in Congress in one form or another since 1996 (with predecessor “gay rights” bills having been introduced since the mid-1970s). ENDA would prohibit employment discrimination because of a person’s sexual orientation, gender identity or expression, but would prohibit only intentional discrimination, not employer practices that are neutral on their face but have the effect of discriminating. It is narrowly drafted legislation, and has a big religious exemption that is controversial. And, although the current version was passed by a comfortable majority in the Senate last year, the Republican leadership in the House has refused to hold hearings or schedule a vote, and strategy for a “discharge petition” (a procedural floor vote to get the bill released from Committee and onto the floor for a vote on enactment) is at an early stage.

But what if ENDA is not needed? What if existing law already bans such discrimination? In 1964, Congress passed the Civil Rights Act, whose Title VII bans employment discrimination because of sex. For a long time, both the Equal Employment Opportunity Commission (EEOC) and the federal courts have ruled that discrimination against LGBT people is not prohibited, because in 1964 Congress did not intend to forbid such discrimination. In effect, Title VII was limited to cases where people were suffering discrimination because they are a man or a woman.

But the Supreme Court came to view “sex discrimination” more broadly, ruling in one case that a woman who suffered discrimination because she failed to conform to gender stereotypes (“too butch”) was a victim of sex discrimination, and in another case that a man who encountered a hostile environment in an all-male workplace (treated by his rougher, tougher co-workers as a sex toy) might also have a valid claim under Title VII. The EEOC and some lower federal courts have taken the next step in recent years, holding that discrimination because of gender identity is a kind of sex discrimination, because it is inspired by discomfort or disapproval with people defying conventional gender roles. There is a recent EEOC formal opinion to that effect, and a growing body of federal court decisions support this view.

But what about lesbians, gay men or bisexuals who are not gender-nonconforming in their appearance or conduct, but who encounter discrimination simply because their employer, co-workers or customers are biased against gay people? Before March 31, there were no court opinions suggesting that such a person might be protected from discrimination under Title VII, although some law review commentators had made the argument. On March 31, however, U.S. District Judge Colleen Kollar-Kotelly made history by issuing her opinion in Peter J. Terveer v. James H. Billington, Librarian, Library of Congress, 2014 Westlaw 1280301, 2014 U.S. Dist. LEXIS 43193 (U.S. District Ct., Dist. Columbia), holding that a man who suffered adverse treatment at the hands of an anti-gay supervisor could maintain a claim under Title VII, even though his only gender non-conforming characteristic is his sexual orientation.

According to the court’s opinion, Mr. Terveer was hired in February 2008 to be a Management Analyst in the Auditing Division of the Library of Congress. His first-level supervisor, John Mech, is described in the opinion as “a religious man who was accustomed to making his faith known in the workplace.” According to Terveer’s complaint, Mech said to him on June 24, 2009, that “putting you closer to God is my effort to encourage you to save your worldly behind.” According to the complaint, Terveer became close to Mech and Mech’s family, including his daughter. “In August 2009, Mech’s daughter learned that Plaintiff is homosexual,” wrote Judge Kollar-Kotelly. “Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline ‘Diversity: Let’s Celebrate It.'”

Things went downhill from there. According to the complaint, Mech subjected Terveer to “work-related conversation to the point where it became clear that Mech was targeting Terveer by imposing his conservative Catholic beliefs on Terveer throughout the workday.” Terveer claimed that Mech stopped giving him detailed instructions with his assignments, instead making ambiguous assignments that, in effect, set up Terveer to fail, and assignments that were clearly beyond Terveer’s experience level. Terveer claims he was given one huge assignment that would normally require the attention of half a dozen employees, and then Mech piled additional work on top of that.

Terveer alleged that on June 21, 2010, Mech called an unscheduled meeting that lasted more than an hour, “for the purpose of ‘educating’ Terveer on Hell and that it is a sin to be a homosexual, that homosexuality was wrong, and that Terveer would be going to Hell.” Mech recited Bible verses to Terveer and told him, “I hope you repent because the Bible is very clear about what God does to homosexuals.” A few days later, Terveer received his annual review from Mech, and felt it did not reflect the quality of his work. Terveer believed that the review “was motivated by Mech’s religious beliefs and sexual stereotyping.” Terveer confronted Mech about this unfair treatment, which got Mech angry, vehemently denying that he was partial, and he accused Terveer of trying to “bring down the library.”

Terveer next went to Mech’s supervisor and told him about what was happening. According to Mech’s account of that meeting with Nicholas Christopher, Christopher told him that, in his opinion, “employees do not have rights,” and Christopher took no action to remedy the problem or advise Terveer about appropriate complaint procedures. According to Terveer, Mech’s response to this was to put Terveer under “heightened scrutiny” supervision by Mech and to generate an evaluation of the project to which Terveer had been assigned, even though it wasn’t finished, that was “extremely negative.” Terveer got into an argument with Mech about this evaluation, and Mech told him that he was “damn angry” that Terveer had threatened to bring a claim for wrongful discrimination and harassment. According to Terveer, Mech ended his tirade with the statement, “You do not have rights, this is a dictatorship.”

Early in 2011 Mech issued another negative evaluation of Terveer and put him on 90-day written warning, which could lead to Terveer not receiving the pay increase he would ordinarily receive. Terveer then initiated a discrimination claim with the EEOC. An attempt by another agency officer to get him transferred away from Mech failed when Mech’s supervisor said that Terveer was “on track to be terminated within six months.” As things deteriorated further for Terveer, he finally filed a formal complaint on November 9, 2011, alleging discrimination because of religion and sex, sexual harassment, and reprisal. Terveer had been suffering emotional distress from the situation and ended up taking lots of leave time, ultimately claiming that he was constructively terminated on April 4, 2012, because he could not return to the workplace to confront Mech and Christopher. The Library formally terminated him, and his appeal within the Library’s grievance process was unsuccessful. The agency issued a decision on May 8, 2012, denying his discrimination claims. He filed suit on August 3, 2012, alleging violations of Title VII and the constitution, as well as Library of Congress regulations and policies.

The court faced a variety of legal issues in ruling on the defendants’ motion to dismiss the case, the most serious of which was the failure of Terveer to pursue various administrative remedies before he resorted to a lawsuit. But perhaps the most important part of the opinion addresses the Defendant’s claim that the facts alleged by Terveer would not suffice for a legal claim of discrimination under Title VII. At the time that the Defendants filed this motion, federal courts had limited protection against discrimination for gay men to situations where a supervisor’s discriminatory conduct was motivated by judgments about a plaintiff’s behavior, demeanor or appearance that failed to conform to sexual stereotypes, and Terveer was not alleging that his behavior or appearance failed to conform to stereotypes about “manly men.”

But Judge Kollar-Kotelly saw Title VII’s protection as broader than these traditional gender stereotyping cases. “Under Title VII,” she wrote, “allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim. Here, Plaintiff has alleged that he is ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,’ and that his ‘status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under Mech’s supervision or at the (Library of Congress),’ and that ‘his orientation as homosexual had removed him from Mech’s preconceived definition of male.'” This, found the judge, was sufficient to meet the burden under the Federal Rules of Civil Procedure to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Since Terveer had alleged that the Library had denied him promotions and created a hostile work environment because of his “nonconformity with male sex stereotypes,” Terveer could proceed with his claim.

The judge emphasized that the burden on the plaintiff to state a claim at this stage of the litigation is “relatively low” when a court is deciding a motion to dismiss, before there has been any discovery in the case. Interestingly, the judge found another basis for Terveer’s Title VII claim in the religiously-motivated bias of his supervisor, observing that past courts had allowed claims of discrimination in such cases. “The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual,” she wrote, refusing to dismiss Terveer’s religious discrimination claim under Title VII. The judge also found that Terveer’s factual allegations would be sufficient grounding for a claim of a “retaliatory hostile work environment.” However, she noted, having found that Terveer’s claims are covered, at least at this early stage in the case, under Title VII, the court would have to dismiss his constitutional due process and equal protection claims, as the Supreme Court has made clear that Title VII is the exclusive remedy for federal employees with discrimination claims that come within its scope.

The bottom line for this ruling was that although certain claims were dismissed for failure to exhaust administrative remedies, the court refused to dismiss the sex and religious discrimination claims, as well as the retaliation claim. In so doing, the court made history with its acceptance that a gay man who was not gender non-conforming in appearance or behavior could assert a sex discrimination claim when a supervisor’s own religiously-inspired stereotyped notions of proper sex roles motivated adverse treatment of the gay employee.

While such a ruling is most welcome, it would probably be premature to suggest that ENDA is not needed. This is one non-precedential ruling on a pre-trial dismissal motion by a single federal judge. However, it reflects the broadening trend of defining sex under Title VII reflected in the growing body of cases rejecting motions to dismiss such claims brought by transgender plaintiffs, and may portent more definitive rulings expanding Title VII’s sex discrimination ban to claims brought by otherwise-gender-conforming LGBT plaintiffs.

Justice Department Finds ATF Discriminated Unlawfully in Transgender Discrimination Case

Posted on: July 16th, 2013 by Art Leonard No Comments

The Justice Department’s Complaint Adjudication Office (CAO) issued a decision on July 8 holding that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) violated Title VII of the Civil Rights Act in 2011 when it denied a position as a contract Ballistics Forensic Technician to an applicant who was in the process of transitioning from male to female.  In its first such ruling, the CAO applied an earlier decision in the case by the Equal Employment Opportunity Commission (EEOC), which ruled that discrimination because of an individual’s gender identity is sex discrimination that violates Title VII.  The case is Macy v. ATF, Agency Complaint No. ATF-2011-00751.

Most of the CAO’s opinion, which is signed by Complaint Adjudication Officer Mark L. Gross and Attorney Complaint Adjudication Officer Carl D. Taylor, Jr., is devoted to a detailed exposition and analysis of the evidence obtained during the investigation of this charge, after the EEOC had overruled a prior determination by the Justice Department that Mia Macy’s complaint was not covered by Title VII.  The opinion reads a bit like a detective procedural, since there are conflicting and detailed accounts of what had happened leading to a decision by the ATF Walnut Creek Laboratory Chief Donna Read, apparently on April 5, 2011, to terminate the processing of Macy’s application for the position.

Macy had worked as a detective in the Phoenix (Arizona) Police Department and acquired familiarity with certain technology that was also in use at the ATF lab.  While employed with the PPD, Macy was known as Charles DeMasi.  Macy informed her boss in Phoenix that she was planning to move to the San Francisco Bay Area, and her boss said that he knew of an opening for which she would be qualified at the ATF lab in Walnut Creek near San Francisco.  Upon her expression of interest, he called the Section Chief at the lab and recommended DeMasi, who then followed up with phone conversations with the Section Chief.  Macy’s recollection and notes of the calls reflect that she was told the position would be hers after the background check performed by the contractor, Aspen of D.C., which was charged with screening and hiring applicants.  Macy submitted her information to Aspen, and later in the course of the background process revealed to Aspen her intended transition, including name change, which necessitated presenting additional documentation for the background investigation.

The Walnut Creek lab had been intending to hire two people for this work, and both Macy and another candidate were being put through the background investigation by Aspen.  When the word got back to Walnut Creek about Macy’s gender transition, suddenly there was a decision that they could hire only one person, and would go with the other applicant who was “further along” in the background process.  Macy, who had been previously informed that things were moving forward on her application, and that her gender transition would not be an issue, suddenly received an email communication that due to budgetary concerns the position for which she had applied would not be filled, and that she would be contacted if another position opened up in the future.  Something seemed fishy to Macy, who called for further information and was subsequently told that she could be offered a human resources position with another unit of ATF in Seattle for which she was not qualified and had no interest.  She subsequently filed her discrimination complaint with the Justice Department.

The investigators questioned ATF staff and Aspen staff to try to determine how the decision was made to discontinue processing Macy’s application and to inform her that the position was not available for her.  The staffers all insisted that Macy’s gender identity and transition from male to female had nothing to do with the decision, but the investigators concluded otherwise based on inconsistencies in the stories they were told, the suspicious timing of the decision, and Macy’s superior credentials compared to the other candidate who was hired.  The other candidate did not have the past experience and training with the relevant technology that Macy had, and the background investigation of the other candidate raised various suitability questions that were not present in Macy’s background.  Also, the other candidate’s progress through the background investigation was not really much further along than Macy’s. There were also implausible assertions about training issues, and – most suspiciously – certain internal communications immediately after Read learned of Macy’s gender transition that reflected an abrupt change in direction of the hiring process without any credible non-discriminatory explanation. 

“The finding of Title VII discrimination based on ATF’s apparent consideration of complainant’s transgender status is not a simple one to make,” says the opinion.  “Notably, at the time of the incident at issue here, essentially between March 30 and April 5, 2011, ATF management officials were not aware that taking employment actions based on the fact that an individual was male or female after a transgender transition was legally impermissible.  At that time, the Department of Justice had not yet changed its internal regulations to prohibit employment actions based on transgender status, and the EEOC had not yet held that such action violated Title VII’s ban on discrimination on the basis of sex.  It may have been that ATF officials were taken aback by the sudden and clearly unexpected announcement that the applicant they knew as Charles DeMasi was now Mia Macy.  That does not, however, in any way condone or excuse the actions taken here, which are now a violation of Title VII.”

Focusing on the reason why Macy was denied the position, the Office found that the record supported her claim of discrimination.  “The record established that the ATF intended and began taking steps to hire complainant for the position – until she disclosed that she was transitioning from a man to a woman.  The ATF stopped complainant’s hiring process when it learned that complainant, formerly Charles DeMasi, would become Mia Macy.  In light of the EEOC’s decision in this case to hold that actions based on transgender status are actions based on sex and therefore covered by Title VII, the ATF’s actions were discrimination based on sex and therefore prohibited by Title VII.”  The Opinion observed the close analogy of this case to Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), in which a highly qualified applicant for a technical research position at the Library of Congress, who had been offered the position, was suddenly not an acceptable candidate after having revealed her plan to transition.  In that case, the District Court ruled that the Library violated Title VII’s ban on sex discrimination by rescinding its job offer.  Schroer was an important judicial precedent for the EEOC’s subsequent ruling in Macy’s case that her complaint could be dealt with under Title VII as a sex discrimination claim.

As a remedy for the discrimination, the Decision orders ATF to offer Macy the position she was seeking, giving her fifteen days to respond to any such offer, with backpay and other benefits back to the date she would have started employment in the absence of the discriminatory termination of her hiring process.  The Decision orders ATF to “take appropriate corrective action to prevent any discrimination from occurring” at the Walnut Creek lab.  Macy will also be entitled to compensatory damages “if she can demonstrate that she suffered injuries as a direct result of the discrimination found to have occurred,” including compensation for emotional distress if any can be documented. Also, as prevailing party in the case, Macy will be entitled to be compensated for any attorney fees she has incurred in pressing forward her discrimination claim.