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82 posts categorized "Employment law"

October 13, 2011

Federal court case in Cleveland shows weakness of local anti-discrimination laws

Late last month, U. S. District Judge James Gwin denied summary judgment to the defendants in Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394). Shari Hutchinson alleged that she was denied several jobs in the county agency responsible for child support enforcement because she is lesbian. Hutchinson was able to produce indirect evidence of discrimination from statements by other employees to the effect that, while she consistently was ranked as a leading contender for the jobs, the Commissioners themselves repeatedly singled her out to block promotions despite excellent performance reviews.

Cuyahoga County is bascally the greater Cleveland area. Its voting patterns are heavily Democratic, so no surprise that there were official policies against discrimination based on sexual orientation when the alleged discrimination against Hutchinson occurred. According to the complaint, Cleveland has an ordinance barring such discrimination in employment and the county has the same provision in its employment policies. Unfortunately, these laws appear to have provided no protection for Hutchinson. 

This decision is not of great legal import because it is unlikely to establish new law. Under the Fourteenth Amendment's Equal Protection Clause, public employers cannot treat lgb employees differently based on their sexual orientation without demonstrating a rational basis for doing so, and dislike of or discomfort with gay people does not satisfy even the rational basis test in ordinary public employment cases.

But the Hutchinson case does illustrate how employers that have adopted anti-discrimination policies or that are subject to local civil rights ordinances can nonetheless engage in informal, unstated, but repeated patterns of hostile conduct toward lgb workers. No form of law is a panacea, of course, but a federal law with the same authority as Title VII would be far more likely to be effective.  

It's called ENDA.

October 05, 2011

Supreme Court struggles with how to reconcile "ministerial exception" with secular jurisdiction of civil rights

Mucho commentary about reactions from the Justices to the arguments this morning in the Hosanna-Tabor case, a dispute with potentially major ramifications in cases involving religious defendants seeking exemptions from enforcement of anti-discrimination laws. Full transcript is here. From HuffPo:

...[T]he Court is considering for the first time the scope of the "ministerial exception" -- a doctrine developed by the lower courts over the past 40 years. Under the ministerial exception, the federal courts decline to hear certain discrimination lawsuits brought by employees of religious organizations. The exception is meant to preserve the First Amendment wall between church and state.

In 2000, Hosanna-Tabor, a Lutheran grade school in Michigan, made Cheryl Perich a "commissioned minister" so that she could be promoted from a year-to-year contract employee to a "called" teacher deemed religiously fit for a permanent position at the school. As a called teacher, Perich taught a variety of secular subjects as well as a religion class. In 2004, she went on disability leave for what was soon diagnosed as narcolepsy. Per its policy, the school asked her to resign once her absence exceeded six months, but she refused. Rather than submit to the school's request that her complaint be handled within the Lutheran church's own adjudicative process, Perich threatened to file suit with the EEOC under the Americans with Disabilities Act. In response, the Hosanna-Tabor congregation rescinded Perich's "call," which drove her to follow through on her threat to file with the EEOC.

On Wednesday morning, Douglas Laycock, a law professor at the University of Virginia who represented Hosanna-Tabor..., began by proclaiming that "the churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

Justice Sonia Sotomayor didn't buy Laycock's aphorism. "We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children. Regardless of whether it's a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable," asked Sotomayor. "And once we say that's unacceptable, can and why shouldn't we protect the people who are doing what the law requires [by] reporting it?"...

Turning from hypotheticals to the facts of the case, Justice Anthony Kennedy, who is known for his robust view of the courts' role, expressed astonishment that Perich "was fired for simply asking for a hearing." And Laycock's response -- that Perich could get a hearing from the church for her claims against the church -- hardly heartened Kennedy. "You're asking for an exemption so that these issues can't even be tried," said the justice...

The paradigmatic ministerial exception for the Roman Catholic Church against sexual discrimination lawsuits brought by would-be female priests loomed large during oral argument. Scalia, Breyer, Alito and Roberts all took turns pressing Kruger and Perich's lawyer, former Acting Solicitor General Walter Dellinger, on why a Lutheran tenet commanding internal dispute resolution did not deserve the same respect as Catholicism's male-only priesthood. The lawyers could not answer to the justices' satisfaction.

During Laycock's argument, Justice Ruth Bader Ginsburg did have a hard time finding consistency in Hosanna-Tabor's policy on employee complaints. In his written briefs, Laycock had said that an employee could bring some suits, such as a complaint about unsafe working conditions, against Hosanna-Tabor without running into the ministerial exception. "I don't follow why" such a claim "would not fall under the same ban on keeping disputes in-house?" said Ginsburg.

From Lyle Denniston at SCOTUSblog:

...University of Virginia law professor Laycock, perhaps the country’s leading academic expert on the Constitution’s religion clauses, was there to argue for the church that anyone holding “an ecclesiastical office” and teaching the faith, among other “important religious functions,” was a “minister” and could not sue under anti-discrimination law.  But, while he faced criticism from the other side that his rule was too categorical, he had significant difficulty keeping it within a well-defined compass.  At one point, for example (and to the seeming astonishment of Justice Scalia), he suggested that the definition of “minister” was a legal issue, not a religious question. So, Scalia said, “you would allow the government courts to probe behind the minister’s suggestion that this person is a minister?”

As members of the Court, especially Justice Sonia Sotomayor and Justice Anthony M. Kennedy, expressed some alarm at shutting off government inquiries into claims of retaliation for pursing one’s rights, Laycock began making concessions, suggesting, for example, that “there has to be some kind of qualitative threshold” for invoking the “ministerial exception.”  And, he said, “there will be line-drawing problems” — supposedly, something that a court would have to probe in order to know whether the exception applied.

He also said that, if the claim of the “ministerial exception” was only a “sham,” the courts could go ahead with the case.  But, since he had resisted allowing a case to proceed if the claim of the exception was merely “a pretext” for a biased employment action, Scalia wondered whether there was a difference between a sham and a pretext.   Justice Samuel A. Alito, Jr., did give Laycock some support on his resistance to judicial inquiry into a “pretext” claim against the invocation of the “ministerial exception.”  In doing so, Alito began the exploration of whether church-state separation required a hands-off policy for the doctrines of one faith, but not of another.

After a series of seeming concessions by Laycock, Justice Kennedy suggested that they embraced this very case.  Noting that the professor would allow judicial inquiry into the number of secular functions a parochial teacher had, Kennedy said “that’s what this case is.  But you don’t even want that issue to be tried.  You say that issue can’t even be explored.”  It was apparent that several members of the Court were growing frustrated with where Laycock’s argument was actually going.   They seemed to be hoping for some simplicity, but they were not getting it in any significant measure...

More after the jump -->

Continue reading "Supreme Court struggles with how to reconcile "ministerial exception" with secular jurisdiction of civil rights" »

September 28, 2011

Arizona seeks rehearing en banc in Ninth Circuit benefits case

The state of Arizona has filed a Petition for Rehearing En Banc in Diaz v. Brewer, the Lambda challenge to an Arizona law that eliminated partner benefits for state employees. In my view, it's a sleeper of a case - one that appears to raise a fairly narrow issue, but which could have important ramifications.

The state's lead argument is that the Ninth Circuit panel improperly affirmed a preliminary injunction blocking a facially neutral law (benefits were eliminated for different-sex as well as same-sex employees) despite the absence of evidence that state lawmakers intended to discriminate against gay couples. This runs counter to a series of court decisions requiring that facially neutral laws be upheld under the Equal Protection Clause unless plaintiffs can show that there was discriminatory intent. The state also cites a string of cases applying that principle to uphold policies in other states that limited benefits to married couples. None is a federal court decision, however, and none are binding on the Ninth Circuit.

There are several problems with this analysis. Most obviously, the question of whether the Arizona law is truly neutral depends on how superficial the test for neutrality is found to be.  Arizona law forbids recognition of same-sex marriage, so only different-sex couples have the option to marry to get the benefits. (Whether this should be considered impermissibly coercive is a different point.) While both sets of couples are affected by the elimination of benefits, neutrality should be determined against the backdrop of the ban on gay marriage.

Additionally, the case is still at the preliminary injunction stage.  As a threshold requirement for issuing the preliminary injunction, the district court found, and the court of appeals affirmed, that plaintiffs had demonstrated a likelihood of success. However, there has been no final determination on the merits and no permanent injunction. Realistically there may not be much more evidence submitted by either side if the case returns to the trial court, but there nonetheless could be a fuller analysis of the merits and, especially and most intriguingly, of the meaning of facial neutrality in this context.

September 18, 2011

Challenge to Arizona law ending same-sex partner benefits for state employees may go en banc or beyond

In a ruling just after Labor Day, the Ninth Circuit upheld a preliminary injunction against enforcement of an Arizona law eliminating partner benefits for unmarried couples insofar as it affects same-sex couples. In Diaz v. Brewer, a panel consisting of Judges Schroeder, Thomas and Bennett affirmed the order issued by the District Court in 2010 (727 F.Supp.2d 797). 

In its opinion, the Ninth Circuit found that there no was no rational relationship between the statute and a legitimate state interest. The state's primary defense was cost savings. Both the lower and appellate courts rejected that rationale, based on evidence that the cost of providing benefits for same-sex couples was minimal and on the fact that different-sex couples could marry and thereby obtain access to the benefits. Perhaps most notably, the Court of Appeals found that there was an Equal Protection violation based on the disparate effect on same-sex couples of the rule, which is to say, the court did not require a finding of discriminatory intent behind the law.

If it is not upset by a subsequent ruling, the decision in Diaz may play an important role in the Ninth Circuit's consideration of the constitutionality of Prop 8. The Diaz plaintiffs, represented by Lambda Legal, are waiting for Arizona to decide whether to seek rehearing en banc; the state has until September 27 to file.

The big question is whether this case could take the inside track to the U.S. Supreme Court. If the Ninth Circuit denies the motion for rehearing or if the case does go en banc and the state loses again, Arizona could seek Supreme Court review.

July 11, 2011

EEOC asserts jurisdiction over anti-gay harassment claim

In Veretto v. Donohue, 2011 WL 2663401, the Office of Federal Operations (OFO) of the EEOC reinstated a discrimination complaint filed by a gay male employee of the Postal Service who works in Connecticut. Veretto alleged that a co-worker ("CW1") harassed him after reading in a local newspaper that Veretto was about to marry his partner, and alleged that had he been a woman engaged to marry a man, the harassment would not have occurred.

The Postal Service ("the Agency") dismissed the complaint on the ground that sexual orientation discrimination is not prohibited by Title VII. OFO reversed the dismissal, ruling that the EEOC has jurisdiction under a sexual stereotyping theory to investigate whether the claim has merit.

The key text in the opinion states:

The Agency is correct that the Title VII's prohibition of discrimination does not include sexual preference or orientation as a basis. [citations omitted]

Title VII does, however, prohibit sex stereotyping discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (finding that an employer's decision to withdraw a job offer from a transsexual applicant constituted sex stereotyping discrimination in violation of Title VII)... In Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission made clear that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. In this case, we find that Complainant has alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail. He alleges that he was subjected to a hostile work environment because CW1 learned that he was marrying a man. He has essentially argued that CW1 was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when Complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper. In other words, Complainant alleges that CW1's actions were motivated by his attitudes about stereotypical gender roles in marriage. Complainant further alleges that the Agency should be held liable for CW1's actions because it failed to take appropriate corrective action once the harassment was reported to management. These allegations are sufficient to state a viable hostile work environment claim under Title VII. 

This decision illustrates that, although no court has found that sexual orientation discrimination is covered under sex discrimination, a gay person who is subjected to harassment or other sexual stereotyping is as entitled as anyone else to bring a claim under Title VII.

How same-sex marriage, without more options, can set back progressive goals

Once again, the NY Times has discovered an issue that many of us have been wrestling with for years: how to preserve alternatives to marriage for gay and straight couples who want other options.

This problem will be somewhat alleviated in 2014, when the health insurance exchanges mandated by the health reform law will come into effect. Exchanges will guarantee that every individual, regardless of marriage or other relationship, will be able to purchase a health insurance policy at group rates. But those policies are likely to be inferior to what is available through employer-sponsored insurance and will cost more than the incremental "family" premium that applies to most workplace policies. Moreover, the policies offered on exchanges will do nothing to address the range of non-workplace related issues that often come with partner or marital status, such as visitation and inheritance rights.

Now that same-sex marriage has been legalized in New York, at least a few large companies are requiring their employees to tie the knot if they want their partners to qualify for health insurance.

Corning, I.B.M. and Raytheon all provide domestic partner benefits to employees with same-sex partners in states where they cannot marry. But now that they can legally wed in New York, five other states and the District of Columbia, they will be required to do so if they want their partner to be covered for a routine checkup or a root canal.

On the surface, this appears to put the couples on an even footing with heterosexual married couples. After all, this is precisely what they have been fighting for: being treated as a spouse. But some gay and lesbian advocates are arguing that the change may have come too soon: some couples may face complications, since their unions are not recognized by the federal government.

“Even with the complications, many people will want to get married for the reasons people want to get married,” said Ross D. Levi, executive director of the Empire State Pride Agenda. “But from our perspective, to hinge something as important as insurance for your family to what is still a complicated legal matter for same-sex couples doesn’t seem to be a fair thing to do.”

He said that there were a variety of reasons — legal, financial and personal — that companies should keep the domestic partnership option at least until gay marriage was recognized at the federal level. Legally speaking, getting married could create immigration issues or it could potentially muddy the process of adopting a child. In some instances, he added, an employee may work in a gay marriage state but live in a neighboring state that does not recognize the marriage. The couple may want to wait to marry until they can be legally wed in their home state.

“There are certainly reasons why a couple may not wish to marry,” added Camilla Taylor, marriage project director at Lambda Legal. “People with certain immigration statuses might want to think very carefully before getting married. There are some types of visas that are meant to be temporary, and if you get married to someone who is a citizen, it could flag your renewal application and reflect your more permanent decision to stay.”

When it comes to adopting a child, couples may run into trouble if they are trying to adopt from a place that restricts same-sex married couples from adopting. Having one parent adopt while still single may be easier. “If you want to be able to answer honestly in paperwork, multiple interviews and background checks, then you won’t want to get married,” Ms. Taylor said, adding that many foreign countries ban adoptions to same-sex couples.

Marrying could also have serious implications for couples who relocate to a nonmarriage state, and ultimately decide to split up. Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

The employers making the changes said they spoke regularly with their gay and lesbian employee groups and planned to phase in the requirement. Corning, based in Corning, N.Y., said it would offer a reasonable grace period, though it had not completed the details.

“After waiting so much time for that right, we want them to have the opportunity to enjoy that,” said Christy Pambianchi, a senior vice president for human resources at Corning, which put the policy into effect in New Hampshire and Massachusetts when gay marriage became legal there. She said employees did not raise concerns about the requirement. “They are delighted,” she said.

Raytheon, based in Waltham, Mass. — another state where gay marriage is legal — said it would give employees several months to comply with its marriage requirement. Like Corning and I.B.M., the company said domestic partner benefits would remain in states where couples cannot marry (Raytheon also has an exemption for active members of the military, so they are covered for benefits without having to marry. Getting married violates the “don’t ask, don’t tell” policy, which is being phased out).

I.B.M., based in Armonk, N.Y., said its workers would have up to a year to get married to maintain their current benefits.

At least for now, these companies seem to be in the minority, though it is unclear whether more employers will follow their lead. Eastman Kodak, based in Rochester, said it would continue to offer domestic partner coverage to both same-sex and opposite-sex partners.

“My impression is that there has been lots of discussion about dropping domestic partner coverage when marriage is first opened up to same-sex couples, but very few employers actually end up taking this step,” said Jennifer C. Pizer, legal director at the Williams Institute, which studies sexual orientation law and policy issues. “Some employers initially believe that it is fairer of them to impose the same marriage requirements on all employees, regardless of sexual orientation. But then employees and others explain that employees with a same-sex life partner remain in difficult circumstances due to the continuing federal discrimination.”

Whether same-sex couples marry, they will still be responsible for paying federal income taxes on the value of their partner or spouse’s benefits since they are not recognized by the federal government as an economic unit, unless the person covered is considered a dependent. Couples will not owe those taxes at the state level in places like New York that recognize gay marriage.

But it should become easier for gay employees who marry and live in New York to obtain insurance for their spouses. (There are an estimated 42,000 same-sex couples in New York, according to the Williams Institute.) Not only are the same-sex spouses of state workers eligible for spousal coverage, but the same goes for many people who work for private employers.

There could be some exceptions, however. Employers who do not contract with an insurance company but instead pay for health benefits out of their own assets — so-called self-insured plans — are not subject to the state’s insurance laws but are governed by federal law.

Most large employers have self-insured plans, said Helen Darling, president of the National Business Group on Health, a membership organization that focuses on health policies for large employers. That means they can choose to cover same-sex employees, but they do not have to. While virtually all large company plans cover legal spouses, she added, some companies offer domestic partner benefits only to gay employees who do not have the option to marry. (Some companies also extend the benefits to heterosexual unmarried couples.)

“I am getting a lot of questions about what other employers are doing,” Ms. Darling said. “I see a movement coming where marriage will be a factor where marriage is possible.”

July 06, 2011

Connecticut becomes 15th state to prohibit anti-trans discrimination

Connecticut Governor Daniel Malloy signed legislation today amending the state's anti-discrimination law to include "gender identity or expression" as a prohibited basis for discrimination in employment, housing, public accommodations, education and other fields. Earlier in the month, a number of trans-phobic amendments were defeated in the state senate, leaving the original bill intact. The amended statute is here.

The Connecticut law takes effect October 1.

The 14 other states with similar bans are California, Colorado, D.C., Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

March 02, 2011

How the Obama position on DoMA will strengthen public employment rights

Following are excerpts from a column posted on Bilerico by former Hill staffer Tico Almeida:

...[C]onsider the hypothetical examples of a lesbian employee of the Alabama State Department of Agriculture, a gay male employee of the Arizona State Department of Transportation, and a bisexual employee of the Alaska State Department of Tourism. These three states have more in common than alphabetical privilege. Alabama, Arizona, and Alaska each currently lacks a state ENDA statute that protects against discrimination based on sexual orientation. As noted, there is no federal ENDA statute either. 

As of today, the lesbian employee in Alabama can be fired just because she is a lesbian. The gay employee in Arizona can receive lower pay and fewer promotions just because he is gay. The bisexual employee in Alaska can be severely harassed and subjected to hostility just because he is bisexual. Without a state ENDA statute or the proposed federal ENDA, these three employees would have very little to absolutely no legal recourse for sexual orientation discrimination in either state or federal court. 

Now imagine that the U.S. Supreme Court eventually agrees with President Obama and Attorney General Holder that gays and lesbians deserve "heightened scrutiny." At that point, the lesbian employee in Alabama, the gay employee in Arizona, and the bisexual employee in Alaska have a far greater chance of successfully arguing in federal court that the discrimination by their employers - each one a state government actor - was a violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. 

Under current constitutional law, it is possible, though sadly unlikely, that a gay or lesbian employee of a state government could win this type of constitutional case based on the lower level of constitutional protection called "rational basis review." Some plaintiffs have won cases at this lower level of protection, but it is such an uphill climb that victory is the exception and not the rule. The spillover effect of the Obama Administration's decision to argue for "heightened scrutiny" in the DOMA cases is that these three hypothetical employees would have a far greater chance than they currently do of winning their lawsuit based on sexual orientation discrimination and securing justice in the workplace - even if neither a state ENDA nor the proposed federal ENDA has passed yet... 

Continue reading "How the Obama position on DoMA will strengthen public employment rights" »

January 04, 2011

Tracking employers that do and don't equalize partner benefits coverage

From the NY Times:

A growing number of companies are covering the extra costs that same-sex couples pay for domestic partner benefits — and even more companies are thinking about it. So we’ve decided to keep track of who is doing what in a chart at the bottom of this post.

While many companies offer domestic partnership coverage — an important benefit on its own since same-sex couples’ unions are not recognized by the federal government — some pioneering organizations are extending an even more generous policy. They’re essentially reimbursing gay employees for the extra taxes they may incur as a result of that coverage, something that married heterosexual people don’t have to worry about.

Why is this an issue? Gay and lesbian employees who are lucky enough to work at places that have domestic partner coverage are taxed on the value of those benefits (if the partner is not considered a dependent). A handful of companies cover those extra costs, but not until Google adopted that policy earlier this year did the movement to equalize benefits begin to gain traction. Apple is the latest boldface name to join the effort.

A provision within a draft of the health care overhaul bill would have eliminated the tax, but it was ultimately dropped. The Human Rights Campaign said it continued to work on getting a bill passed, but until that happens — if it ever does — employees or their employers must pay the extra tax. (Many companies will cover the costs only for same-sex partners, since opposite-sex couples have the option to marry.)...

The biggest deterrent, of course, is the cost. Many companies support efforts to eliminate the tax altogether, but they’re unwilling to cover the costs employees now face.

Wish your company’s name was on the list with a “Yes” next to it? The Human Rights Campaign has a proposal and other information on its Web site that employees can use to help build their case...

[Chart is after the jump -->]

Continue reading "Tracking employers that do and don't equalize partner benefits coverage" »

November 16, 2010

Should American women go Dutch?

A fascinating report by Jessica Olien for Slate, but to me it seems silly to imagine that one could transplant one aspect of progressive culture, in a way that would benefit women, without the rest of the welfare state that everyone in the Netherlands enjoys.  Decide for yourself:

I've been in the Netherlands for nearly three months now, and I've come to one overwhelming conclusion: Dutch women are not like me. I worry about my career incessantly. I take daily stock of its trajectory and make vicious mental critiques of my endeavors. And I know—based on weekly phone conversations with friends in the United States—that my masochistic drive for success is widely shared among my female friends. Meanwhile, the Dutch women around me take a lackadaisical approach to their careers. They work half days, meet their friends for coffee at 2 p.m., and pity their male colleagues who are stuck in the office all day.

Though the Netherlands is consistently ranked in the top five countries for women, less than 10 percent of women here are employed full-time. And they like it this way. Incentives to nudge women into full-time work have consistently failed. Less than 4 percent of women wish they had more working hours or increased responsibility in the workplace, and most refuse extended hours even when the opportunity for advancement arises. Some women cite the high cost of child care as a major factor in their shorter hours, but 62 percent of women working part time in the Netherlands don't have young children in the house, and mothers rarely increase their working hours even when their children leave home.

It's hard not to wonder: Have we gotten it all wrong? In the United States, the race for equality has gone mostly in one direction. Women want to shatter the glass ceiling, reach the top spots in the hierarchy, and earn the same respect and salaries as men do. But perhaps this situation is setting us up for a world in which none of us is having any fun. After all, studies of female happiness in the U.S. find that even as our options have increased and we have become financially more independent than in any previous time in our history, American women as a whole are not getting any happier. If anything, the studies show that we are emotionally less well-off than we were before. Wasn't the whole point of the fight for equality in the workplace to improve our wellbeing?

Dutch women could be considered extremely progressive when compared with most other women in the world—they have enviable reproductive rights and rates of political participation. But they are often responsible for only a small portion of the family income—25 percent of Dutch women do not even make enough money to be considered financially independent. The gap in pay between genders is among the highest in Europe, but because women are working only part time, this is not fodder for gender wars. Instead, women are more concerned with protecting their right to part-time work. In 2000, a law was passed mandating that women have the right to cut back hours at their jobs without repercussions from employers.

"We look at the world of management—and it is a man's world—and we think, oh I could do that if I wanted," says Maaike van Lunberg, an editor at De Stentor newspaper. "But I'd rather enjoy my life." Jacob Vossestein's book Dealing With the Dutch echoes that sentiment. He argues that people in the Netherlands view the hierarchical work environment with skepticism and do not generally envy those who climb its ranks.

Dutch women's refusal to seek longer hours has long bewildered economists. In the spring, the United Nations, suspicious that there was something keeping women from full-time jobs, launched an inquiry to see whether the Netherlands was in compliance with the women's rights treaty. A comprehensive 2009 study by Alison L. Booth & Jan C. Van Ours looked at the amount of time women in the Netherlands spend at work compared with women in other European countries. The authors assumed that part-time work was less desirable but ultimately confirmed that Dutch women don't want to spend more time at work. The NIS News Bulletin interpreted the results of the study as: "Attempts to get more women working full-time are doomed to failure because nobody has a desire for this. Both the women themselves and their partners and employers are satisfied with the Dutch part-time culture for women."

Continue reading "Should American women go Dutch?" »

October 03, 2010

Equality Act takes effect in Britain, modernizing civil rights law

Britain's new Equality Law has now taken effect. As I described in greater detail earlier, the Equality Law seeks to integrate and harmonize multiple civil rights statutes into one law with both fundamental requirements that cut across categories, as well as specific provisions geared to particular forms of discrimination. (This summary describes each of its provisions and the changes from current law.)

Regarding an issue with which Americans are quite familiar, the new law forbids discrimination based on gender identity in a range of areas. For both sex/o and g/i, discrimination is prohibited in the provision of goods and services (what we classify as public accommodations), as well as in employment. Another familiar theme in the debates on the bill was the conflict between equality principles and the practice of religion. One of the most controversial aspects of the new law concerned pay equity; the original provisions were watered down after lobbying by business. 

Professor Maleiha Malek of Kings College School of Law (London) has critiqued the conceptualization of equality that the new law represents on the ground that it is unlikely to be effective in countering structural discrimination. ["Modernising Discrimination Law: Proposals for a Single Equality Act for Great Britain," 9 International Journal of Discrimination and the Law 73 (2007)] That seems correct to me. And although some of the provisions are no more progressive than those in American law (such as the quandary over intersectional claims), the integrated approach nonetheless looks quite intriguing, even if not ideal. 

Australia is reportedly considering a similar move.

September 21, 2010

Administration adds another domestic partner benefit for federal employees

The Office of Personnel Management (OPM) has published a memorandum adding another workplace benefit for federal employees with same-sex partners. Employees can receive three days (24 hours) of leave without pay a year to cover categories of leave not authorized under the Family and Medical Leave Act: for school and early childhood educational activities; routine family medical purposes; and care for elderly relatives.

President Clinton authorized the leave program as an administrative measure in 1997 and submitted legislation to amend the FMLA to include the same categories, but Congress never enacted it. The Obama administration has now specified that the Clinton authorization covers same-sex partners in addition to spouses, and the children or elderly relatives of partners, in addition to stepchildren and elderly relatives of spouses.

September 17, 2010

Glass ceiling for women in Capitol Hill jobs

Politico reports that fewer than 180 women fill the 535 chief of staff jobs available on the Hill, and among male Senators, the number is dropping. Only 35 percent of House offices employ a female chief of staff, and less than a quarter of senators do, according to an annual survey by the Women’s Campaign Forum” ...

Over the past four years, the number of male members who employ a female chief of staff has dropped to 20 percent in the Senate, WCF estimates. Female House members have a much better record, which has continually improved over the past four years, but the ratio of female chiefs of staff to female members of Congress is still below 50 percent.

...The average House chief of staff rakes in $134,000, according to the employment studies. A POLITICO review of several House compensation studies last spring found that the number of female chiefs of staff in the House had increased by only about 6 percentage points over the past five years.

The number of female legislative directors, a second-tier position that is largely influential in the formation of policy, increased by only 1 percentage point, to 36.5 percent, in the same five-year period.

But women are eating up the middle- to lower-level jobs on the Hill, at least on the House side. According to last year’s House Compensation Study, women filled 84 percent of executive assistant and 82 percent of scheduler jobs. These positions, which typically pay an average of $48,000 to $59,000, include orchestrating office functions and keeping tabs on a member’s schedule.

July 30, 2010

Benefits decision establishes pretext basis for Equal Protection claim

In Collins v. Brewer, [2010 WL 2926131] a U.S. District Court Judge in Arizona ruled that a law rescinding partner benefits for state employees was unconstitutional as applied to same-sex partners because it, together with the ban on same-sex marriage, amounted to a pretext for discrimination based on sexual orientation.  The law would have limited employee benefits to spouses.

The judge noted that because different-sex partners can marry, the effect of dropping partner benefit coverage was to legislate invidious treatment for gay employees. The pretext ruling is an important precedent for other courts to consider when facially neutral restrictions based on marriage are being challenged.

Having reached that conclusion, Judge John Sedwick granted a preliminary injunction against the new law taking effect. One imagines that the state will appeal and seek to lift the injunction while the appeal is pending, but I think chances are good that the Ninth Circuit will leave it in place.

Another significant aspect of Collins is that the court explicitly adopted the heightened rational basis standard of review from Justice O'Connor's concurring opinion in Lawrence v. Texas, noting that it applies when "a classification harms a politically unpopular group or personal relationships." The judge stated that "some form of heightened scrutiny might apply..., but it is unnecessary to decide whether or which type of heightened scrutiny might apply" because plaintiffs had demonstrated a likelihood of success (the standard for a preliminary injunction) based on the rational basis test.

Judge Sedwick considered each of the state's proffered rationales for the change in benefits and found a rational relationship lacking. The state's strongest argument was cost savings, but the court noted that the amount saved from cutting off same-sex partners would be minuscule because they are so few in number.

One downside to the opinion is dicta to the effect that the state's interest in promoting marriage furnished a reasonable basis for dropping different-sex partners. "It is only by denying benefits to heterosexual domestic partners that marriage might be promoted." (The court noted that the cost savings argument did not work as a rationale, because different-sex couples could marry and immediately claim the benefits.)

Congrats to the Lambda Legal team, led by Jenny Pizer, who is representing the plaintiffs.


July 06, 2010

Federal court judge finds anti-trans discrimination unconstitutional

U.S. District Judge Richard Story 90_vbeth has ruled in Glenn v. Brumby that the Georgia state legislative counsel's office acted unconstitutionally when it fired Vandy Beth Glenn from her job as an editor after learning that she would transition from her former identity as male. Glenn, who was a terrific witness at the ENDA hearing before the House Education and Labor Committee last September, is the most recent in what is becoming a long list of successful trans plaintiffs suing on sex discrimination grounds. Lambda Legal brought the case on her behalf.

The caveat in this case is that the court accepted the defendant's argument that the anticipated negative consequences of Glenn's use of the women's restroom (lawsuits by coworkers) was a rational basis for her firing. The standard of review in sex discrimination cases requires that the defendant show that its actions were substantially related to an important government interest. Because he found that speculation about reactions to bathroom use did not meet that standard, Judge Story granted summary judgment to Glenn on her sex discrimination claim. However, he denied summary judgment to her on her other ground for relief, which asserted an Equal Protection violation based on her medical condition. Medical condition claims require only a rational basis for governmental actions.

There was no evidence that the defendant's concern with restroom use was an actual reason for the decision to fire Glenn, rather than an argument offered after the fact, nor was there any evidence that Glenn had used the women's restroom or would have been likely to do so, since there were multiple single-occupancy bathrooms available near her office. Under the higher standard of review applicable to sex discrimination, these missing facts - plus the supervisor's admission that he decided to fire her because he felt that a biologically male person presenting as female would be "unnatural" - were fatal to the defense. The court distinguished this case from decisions in the Sixth and Tenth Circuits in which plaintiffs lost on the ground that employers feared that women co-workers would sue the employer if an MTF person were allowed access to the women's bathroom. In those cases, the Georgia judge said, there was evidence that bathroom use issues were the actual reasons for the firings.

The most distressing part of the Glenn decision was the court's reasoning that

Terminating an employee with male genitalia who intends to present as a woman and thus could use women's restrooms would further the purpose of avoiding lawsuits resulting from that use. Avoiding the costs of lawsuits, even meritless suits, is a rational legitimate government interest. Terminating an individual that could increase the prospects of such suits is rationally related to the goal of avoiding such suits.

What we see, therefore, is the development of a line of employment cases in which trans plaintiffs have essentially succeeded in establishing the legal principle that discrimination based on gender identity is a form of sex discrimination. However, even those courts may ultimately rule against the plaintiff if the defendant can demonstrate that it acted pursuant to what a judge may perceive as legitimate bathroom access issues.

It is starting to seem that it matters less and less whether job discrimination based on gender identity is dealt with under ENDA or Title VII. At the same time, however, the need to resolve the bathroom access problem through negotiated statutory language is becoming more important.  That is the sticking point that is holding up ENDA's progress in Congress and, as these cases demonstrate, it is also the issue on which advocates are most vulnerable under a sex discrimination approach.