Bostock v. Clayton County: An Unexpected Victory

Posted on Categories Alumni Contributor, Circuit Splits, Civil Rights, Human Rights, Labor & Employment Law, Public, U.S. Supreme Court2 Comments on Bostock v. Clayton County: An Unexpected Victory

A photo of the White House with rainbow lights shown on it[The following is a guest post from Alexa Bradley (L’18).]

The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer.

Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were always meant to be. On June 15, 2020, in Bostock v. Clayton County Board of Commissioners, the United States Supreme Court ruled in a 6-3 decision that Title VII’s prohibition of workplace “sex” discrimination clearly encompasses discrimination based on one’s sexual orientation or transgender status because “homosexuality and transgender status are inextricably bound up with sex.” This long-awaited decision was an unexpected victory for the LGBTQi community, of course, but also for the sanctity of Title VII.

Before I get into the weeds of the Bostock opinion, a little background may be helpful. I’ll first explain Title VII and some of the early Supreme Court case law interpreting “sex.” Then, before I explain the opinion itself, I’ll explain how the circuit courts had interpreted “sex” when it came to claims involving sexual orientation and transgender status. Finally, after explaining the majority opinion, I’ll unravel the dissenting arguments.

 Title VII Background
Title VII was enacted by Congress in 1964 to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee’s “sex” was not relevant to their selection, evaluation, or compensation. According to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), Congress drafted Title VII in broad terms to “strike at the entire spectrum of disparate treatment between men and women.” Since Title VII’s passage, the Court has been tasked on a number of occasions with clarifying the scope of protection provided by Title VII’s ban on “sex” discrimination.

For example, in 1971, the Court held in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), that an employer who hired men with school-aged children but would not hire women with school-aged children had engaged in sex discrimination in violation of Title VII. The Court’s decision in Phillips created the “sex-plus” theory of discrimination. Sex-plus discrimination is found when an employer, explicitly or in effect, classifies an employee on the basis of sex plus another characteristic, such as “women who have children.” So, in Ms. Phillips’s case, her employer discriminated against her because she was (A) a woman, who had (B) school aged children. Thus, her employer’s decision was motivated, in part, by Ms. Phillips’s sex, which violates Title VII.

In 1978, the Court considered in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), whether Title VII permitted an employer to require women to make larger contributions to the pension fund than men. The employer argued that the policy was justified because women are likely to live longer than men, so women would receive more over time from the pension fund. However, recognizing Title VII’s clear focus on the individual rather that a group, the Court rejected the employer’s justification. The Court reasoned that it may be true that women, as a whole, live longer than men, but an individual woman may die as early as a man, and that the individual, therefore, is the proper focus for Title VII. Thus, the Court held that an employer engages in sex discrimination in violation of Title VII when the employer uses generalizations or assumptions about an entire class of employees that results in individual disparate treatment.

In 1986, the Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that claims of workplace sexual harassment fall under the umbrella of “sex discrimination” claims contemplated by Title VII, and in 1989, the Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination on the basis of an employee’s failure to conform to expectations of gender norms – or sex-stereotyping – constitutes “sex” discrimination in violation of Title VII.

Finally, in 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), an opinion written by the late Justice Antonin Scalia, the Court found that Title VII’s prohibition on “sex” discrimination applies to cases of workplace harassment between members of the same sex. In so holding, Justice Scalia explained “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. 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.” Id. at 79.

In considering the above-cited opinions, one central theme seems to ring through: “sex” must be interpreted broadly.

This theme becomes unavoidably clear when considered with Congress’ abrupt response to the Court’s holding in General Electric Co. v. Gilbert. 429 U.S. 125 (1976).  In Gilbert, the Court found that a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide such benefits for any absence due to pregnancy did not constitute sex discrimination. In response, Congress passed the Pregnancy Discrimination Act of 1978, which explicitly overturned Gilbert and expanded Title VII’s definition of “sex” to cover “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. § 2000e(k). Congress’ swift action to overturn Gilbert sent a clear message to the Court – the protected characteristics enumerated in Title VII are to be afforded broad interpretations.

How We Got Here
This is the landscape of Supreme Court decisions against which Bostock must be understood. Continue reading “Bostock v. Clayton County: An Unexpected Victory”

Don’t Forget About Women Lawyers of Color

Posted on Categories Feminism, Labor & Employment Law, Legal Profession, Public, Race & LawLeave a comment» on Don’t Forget About Women Lawyers of Color

[For Black History Month, we invited some of our alumni to provide their reflections as guest bloggers of the month. This post is from Kristen D. Hardy L’14.]

When probing and prodding at the legal profession’s existential, ever-persisting diversity and inclusion (D&I) crisis, race and gender are routinely discussed in separate vacuums. Thus, inclusion efforts focusing on the improvement of gender diversity have largely come to consider only one subset of women — the majority. Similarly, inclusion efforts targeting racial diversity also tend to focus on the majority, which in most cases refers to men. Articles and conferences promising to break down barriers and unpack bias for women lawyers either completely ignore, or barely mention, the added layer of complexity for women lawyers of color. And without the voices of minority women attorneys, spaces promising to offer diverse perspectives begin to feel homogeneous and exclusive.

There is no denying that many women, regardless of race or background, share similar instances of gender bias and discrimination. But women of color must grapple with a separate set of unique challenges that remain largely disregarded. When the D&I conversation shifts to improving gender diversity, the challenges associated with women of color are frequently, perhaps unintentionally, ignored. Consequently, solutions intended to eliminate barriers for all women in the profession are falsely presented as equally effective for White, Black, Hispanic, Asian, and Indigenous women. This phenomenon is not only isolating, but arguably detrimental to the progression of minority women within the legal profession.

Double-Bind and Double-Barreled Bias

Most know, at least anecdotally, about the double-bind bias apropos to women in leadership. This type of implicit bias is a haphazard blend of gender stereotypes and ostensible leadership characteristics that gum together to form what feels like a catch-22 for women. Continue reading “Don’t Forget About Women Lawyers of Color”

An Anti-Labor Secretary of Labor

Posted on Categories Labor & Employment Law, Public1 Comment on An Anti-Labor Secretary of Labor

Given the never-ending political tumult within the Washington, D.C., Beltway, it was easy to overlook the Senate confirmation on September 26, 2019, of Eugene Scalia as Secretary of Labor.  The party-line confirmation vote irritated workers and their representatives, who pointed out that Scalia’s claims to be a neutral advocate of his clients’ interests helped obscure his long-standing anti-labor politics.

The Department of Labor was established as a Cabinet-level agency on March 4, 1913, the last day of the Taft presidency.  The Department’s purpose was to foster the well-being of wage earners by improving their working conditions and protecting their work-related rights.  Throughout the remainder of the twentieth century, nobody doubted the Department of Labor’s job was protecting working people.

Eugene Scalia’s career, by contrast, has been devoted to fighting workers and their unions on behalf of big business and the rich.  The son of late Supreme Court Justice Antonin Scalia, Eugene Scalia was employed for twenty years in the Washington, D.C. office of Gibson, Dunn & Crutcher.  He represented, among others, Boeing, Chevron, SeaWorld, UPS, and Walmart, not to mention assorted Wall Street banks. Continue reading “An Anti-Labor Secretary of Labor”

Implicit Bias and the Gender Leadership Gap

Posted on Categories Alumni Contributor, Feminism, Labor & Employment Law, Legal Practice, Legal Profession, PublicLeave a comment» on Implicit Bias and the Gender Leadership Gap
A woman carrying buckets looks up at a ladder leading to the sky; the ladders' rungs are labeled with the various opportunities that have been historically available to women, beginning with "Slavery" at the bottom and "Presidency" at the top.
E.A. Bushnell cartoon from the New York Times, October 1920

On April 29, 2019, I moderated a panel discussion for the State Bar of Wisconsin’s Diversity Counsel Program titled “Closing the Gender Leadership Gap.”  The following statistics were shared at the program.  According to a study by the American Bar Association, “A Current Glance at Women in the Law,” half of the students graduating from law school with a J.D. are women.  Yet, only 22.7% of law firm partners are women, 22% of state court judges are women, and 26.4% of Fortune 500 general counsel positions are held by women.  A significant barrier for women in the workplace is implicit bias.  After serving on this panel, I was curious to explore how the concept of implicit bias might contribute to the gender leadership gap in the legal profession.

Implicit bias is the term that describes how the subconscious mind categorizes people.  The concept was first developed by psychologists Mahzarin Banaji and Anthony Greenwald in the 1990s.  Through the use of implicit association tests (“IAT”) Banaji and Greenwald evaluated the time it took for a participant to categorize concepts such as family or career with gender.  The quicker the applicant could categorize concepts, the stronger the implicit association.  The most frightening aspect of implicit bias is that a person may be consciously opposed to gender discrimination but may unknowingly discriminate against women due to an implicit bias that exists only in the subconscious mind.

Studies suggest that implicit bias may play a role in explaining why men are systematically preferred for positions over women.  For example, a Yale study demonstrated a statistically significant preference for men in the field of science.  The study involved sending a fictional resume to 100 faculty members at top universities.  The only difference was that 50 fictional students were named John, while the other 50 fictional students were named Jennifer.  Even though the candidates had identical experience and qualifications, faculty members were more likely to find John competent and were more likely view him as a suitable candidate for lab positions. Continue reading “Implicit Bias and the Gender Leadership Gap”

The Costs of Janus v. AFSCME

Posted on Categories Business Regulation, Constitutional Interpretation, Constitutional Law, First Amendment, Labor & Employment Law, Legal Profession, Marquette Law School, Public, Speakers at Marquette, U.S. Supreme Court1 Comment on The Costs of Janus v. AFSCME

Photo of statue depicting a bust of Janus, the two-headed Roman God.On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society.  The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.”  The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME.  What follows are my prepared remarks.

In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees.  The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.

In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.

Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party.  One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.

This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case. Continue reading “The Costs of Janus v. AFSCME”

Congratulations to the Marquette Law Mock Trial Team

Posted on Categories Labor & Employment Law, Marquette Law School, Public1 Comment on Congratulations to the Marquette Law Mock Trial Team

Congratulations to the Marquette Law Mock Trial Team who competed at the ABA Section of Labor and Employment Trial Advocacy Competition on November 3, 2018.

The team advanced to the Semi-final round of the competition, placing within the top four teams.  Team members include Cole Altman, Katie Dvorak, Dan McCrackin, and Rohit Rangarajan.  The team was coached by Katie Halopka-Ivery and Emil Ovbiagele.

Congratulations, Team!  We are proud of your hard work and success.

Right-to-Work or Right-to-Free Ride?

Posted on Categories Labor & Employment Law, Public, Student ContributorLeave a comment» on Right-to-Work or Right-to-Free Ride?

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Frank Capria.

Labor and employment law is an area of law that is of high importance. However, it gets little coverage or recognition. It does not get the publicity like criminal law does in hit TV shows like “Better Call Saul.” But, the Supreme Court is about to decide Janus v. AFSCME, which could dramatically change the entire public sector and make it right-to-work. This case will have a serious impact on teachers, firemen, police officers, and other public employee union members. If the Supreme Court rules mandatory collection of agency fees is unconstitutional, public sector unions will be weakened.

Policy

Right-to-work is a policy that allows dissenting union members to not pay non-political dues, or agency fees, to unions. Because of the exclusivity provision in the National Labor Relations Act (NLRA), unions must still represent these dissenting members when negotiating the collective bargaining agreement or when the member is in an arbitration proceeding. The NLRA permits states to have right-to-work laws. Continue reading “Right-to-Work or Right-to-Free Ride?”

Equal Pay Day, Rhetoric, and Reality

Posted on Categories Civil Rights, Feminism, Labor & Employment Law, PublicLeave a comment» on Equal Pay Day, Rhetoric, and Reality

Today was Equal Pay Day, the date that indicates how much longer a woman had to work to earn what a man earned in the previous year. More than 20 years ago, the National Committee on Pay Equity started selecting one day a year—always a Tuesday in April—to highlight the continued disparity between men’s and women’s wages.

Now, you can quibble with me about the precise numbers or you can try to explain to me that there isn’t really a gender gap (both of which have been done and probably will be done again); however, as the Pew Research Center noted last summer, though some groups of women have narrowed the gap, there in fact remains some gap in wages between white men and all groups of women.

Much of that gap in wages can be explained by differing levels of education, workforce experience, or occupation. But even when you control for all of those more concrete and measurable variables, there remains an unexplained gap that may—may not—have to do with gender discrimination. Continue reading “Equal Pay Day, Rhetoric, and Reality”

Marquette Wagner Moot Court Team–2017 Semifinalists

Posted on Categories Labor & Employment Law, Legal Education, Legal Practice, Legal Writing, Marquette Law School, Public1 Comment on Marquette Wagner Moot Court Team–2017 Semifinalists

Marquette’s labor and employment moot court team had an incredibly successful performance at New York Law School’s Wagner Moot Court Competition.  On March 24th and 25th, Carly Gerards, Nick Sulpizio, and Corey Swinick competed and performed very well in both their oral advocacy and brief writing.

After the preliminary rounds, the team advanced to the octofinals with the 8th best score of the 40 teams competing.  The team then advanced to the quarterfinals and eventually the semifinals–a Final Four team for Marquette.

In addition to advancing to the top four of the entire competition, the team took home the award for best overall Petitioner Brief.  The team worked exceptionally hard on the brief and in their advocacy practices, and that hard work paid off.  Great job, team!

The team is advised by Professor Paul Secunda and coached by Attorney Laurie Frey.

Uber Retirement

Posted on Categories Business Regulation, Labor & Employment Law, Public3 Comments on Uber Retirement

Although by no means a new question regarding retirement, the noteworthy growth of gig companies in the sharing economy has renewed concerns that even more American workers will lack access to employment-based retirement plans.  Although some argue that the gig economy offers workers advantages including more independence and flexibility, company-sponsored retirement saving is not one of them.  This is a dangerous state of affairs, as employment-based retirement plans make up a critical part of an individual’s strategy for retirement security.

Such retirement plans, like the nearly-ubiquitous 401(k) plans, provide a necessary bulwark against destitution in old age, especially given that Social Security provides only partial income replacement and few Americans have put away much in private savings.  Yet, independent contractors, which is how most gig companies classify their workers, are approximately two-thirds less likely than standard employees to have access to an employer-provided retirement plan.

Much academic and judicial ink has already been spilt over whether Uber drivers and other members of the sharing economy are members of the so-called “contingent” workforce or “precariat” (part-time, leased, temporary, and per diem workers), not entitled to receive retirement benefits as part of their employment.  Whether these employees are statutory employees is of utmost importance because it largely determines whether gig workers are covered by employment laws, as most such laws center on the employer-employment relationship.

What all these jobs have in common is that the work activity is happening outside of the traditional safety net of employment and are highly unstable.  Whereas statutory employees are covered in the United States by numerous labor and employment law statues that provide security and protection in the workplace, workers in these alternative work arrangements are not.  Once stable employment relationships have given way to relationships that are much more arms-length, regardless of whether it is a contractor situation, temporary employment, or a one-time encounter. Continue reading “Uber Retirement”

A New Era: The Rule of Law in the Trump Administration

Posted on Categories Civil Rights, Constitutional Law, Federal Law & Legal System, Federalism, First Amendment, Human Rights, Immigration Law, Labor & Employment Law, Legal History, Political Processes & Rhetoric, Public, Race & Law1 Comment on A New Era: The Rule of Law in the Trump Administration

Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Continue reading “A New Era: The Rule of Law in the Trump Administration”

That Extra Incentive

Posted on Categories Business Regulation, Federal Civil Litigation, Health Care, Labor & Employment Law, PublicLeave a comment» on That Extra Incentive

Most of us are familiar with wellness programs—programs sponsored by our employer or health plan that try to incentivize us to eat healthier, sleep well, and get more exercise.  If you’re anything like me, it helps to have that extra push or incentive, especially around the holidays when sweets abound, to stay on track—or at least, to not stray too far from health goals. Most of these programs have the added advantage of lowering health care costs, both by providing financial incentives to reduce immediate costs to the individual employees and by boosting the overall health of the employees as a whole, which could reduce future health care costs.   However, extensive technical regulations and recent litigation by the AARP make implementing health and wellness programs increasingly tricky for employers.

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and the regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) thereunder, generally prohibit “an employer [from] request[ing], require[ing], or purchas[ing] genetic information [which includes an individual’s family medical history] with respect to an employee or a family member of the employee.”  42 U.S.C. § 2000ff–1(b). However, there is an exception for wellness programs, as long as employers jump through a set of hoops. 29 CFR § 1635.8(b)(2).  While not without its own problems and excesses, the exception in the EEOC regulations at least allows employers to provide incentives to those employees willing to participate in employer-sponsored wellness programs.

The AARP doesn’t like this whole “incentive” idea to begin with. It recently filed a lawsuit against the EEOC in an attempt to vacate the regulations entirely.  AARP v. U.S. Equal Employment Opportunity Commission, No. 1:16-cv-02113 (D. D.C. 2016) (hereafter the “AARP Complaint”).  This actually might not be a bad idea, except for the fact that the AARP thinks that the regulations do not have enough hoops.  In fact, the AARP would prefer that the regulations abolish any permission for any incentives or penalties to induce participation in employer-sponsored wellness programs. The AARP alleges in its complaint that all employer incentives or penalties to induce participation in employer-sponsored wellness programs violate Title I of the ADA and Title II of GINA.  AARP Complaint at 3Continue reading “That Extra Incentive”