Monday, July 24, 2017

Ninth Circuit Protects Immigrant Workers

In an era of increasing uncertainty and danger for immigrants, two recent Ninth Circuit decisions demonstrate a commitment to protecting all workers’ rights. 

In April, the Ninth Circuit held that conditioning an employee’s reinstatement on his or her immigration status violates California public policy. In Santillan v. USA Waste of California, Inc., 853 F.3d 1035 (9th Cir. 2017), Gilberto Santillan was a residential garbage truck driver for 32 years. In 2011, Santillan filed a formal grievance through his union asserting that he was wrongfully terminated. In a settlement, USA Waste agreed to reinstate Mr. Santillan, provided that he provide proper work authorization pursuant to the 1986 Immigration Reform and Control Act (IRCA). Santillan could not provide an expiration date for his work authorization, and six days later USA Waste again terminated Santillan, citing his failure to comply with IRCA. 

Santillan subsequently filed a complaint alleging wrongful termination in violation of public policy. The Ninth Circuit reversed summary judgment for USA Waste, holding that the employer failed even to provide a legitimate non-discriminatory reason for termination. The court first reasoned that Mr. Santillan was exempt from IRCA’s requirements, because it only requires authorization for new employees hired after 1986. Mr. Santillan was hired in 1979 and was reinstated, not newly hired. The court then held that the 2011 settlement agreement violated California public policy, reasoning that an employer cannot condition reinstatement on immigration status. 

Last month, the Ninth Circuit held that an employer’s attorney can be liable for retaliation where they report an employee to Immigration and Customs Enforcement (ICE). In Arias v. Raimondo, No. 15-16120, 2017 WL 2676771, (9th Cir., June 22, 2017) José Arnulfo Arias filed claims against his employer, Angelo Dairy, for violations of the Fair Labor Standards Act (FLSA) in 2006. The state court trial was set for August 2011. In June 2011, Defendant’s attorney, Anthony Raimondo notified ICE that Arias may be undocumented, to get him deported. Raimondo had reported employees to ICE in at least five other cases. Arias then filed a FLSA retaliation complaint against both Angelo Dairy, which settled prior to the Ninth Circuit decision, and Raimondo. The Ninth Circuit held that Raimondo could be held liable under FLSA for retaliation, reasoning that retaliation provision broadly refers to any person and expressly extends to legal representatives. It further reasoned that the purpose of anti-retaliation provisions is to ensure that workers can exercise their rights without interference. 

These decisions are important victories for immigrant workers and their advocates. In California, immigrant workers – even undocumented workers – have the same entitlement to employment protections as other workers. Though dangers remain for immigrant workers, the Ninth Circuit has created stronger protections by removing barriers to reinstatement for immigrant workers. Employers and their agents may also be liable if they report employees to ICE after they assert their rights.

Thursday, July 13, 2017

The California Supreme Court Holds PAGA Representative Plaintiffs are Entitled to Robust Discovery

Today, the California Supreme Court issued an important decision, holding that workers prosecuting wage violations under California’s Private Attorneys General Act of 2004 (“PAGA”) are entitled to receive witnesses’/class members’ contact information without having to prove their entire case first. As explained in Williams v. Superior Court (Marshalls of CA), “California law has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse.”[1] The entire decision is required reading for any wage and hour and/or class action practitioner in California, but a few points are worth highlighting here.

I.            PAGA Plaintiffs Are Not Required to Prove the Merits of Their Case Before Receiving State-wide Contact Information for Witnesses/Potential Class Members.

For California employees, the biggest win from the Williams decision is the California Supreme Court’s holding that a worker bringing a representative PAGA enforcement action, like any other plaintiff in a civil state court lawsuit, is not required to prove their case before receiving the information and documents needed to prove their case on behalf of themselves and their co-workers.

The outcome in Williams flows from a plain reading of PAGA and California’s discovery statute, neither of which impose the “modicum of substantial proof” standard MarshallsCA advanced, i.e., “a PAGA-specific heightened proof standard at the threshold, before discovery.”[2] To the contrary, “to insert such a requirement into PAGA would undercut the clear legislative purposes the act was designed to serve” because it would necessarily undermine a representative plaintiff’s ability “to advance the state‘s public policy of affording employees workplaces free of Labor Code violations, notwithstanding the inability of state agencies to monitor every employer or industry.”[3]

Of course, a trial court retains discretion for a “special reason to limit or postpone a representative plaintiff‘s access to contact information for those he or she seeks to represent, but the default position is that such information is within the proper scope of discovery, an essential first step to prosecution of any representative action.”[4]

II.             High Court Reaffirms the Broad Scope of Discovery in California.
The California Supreme Court also used the Williams case to reaffirm the broad scope of civil discovery in California state court. While broad discovery requests may result in “a defendant’s inevitable annoyance,” the Court recognized that the California Legislature “granted such a right anyway, comfortable in the conclusion that ―[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”[5]

The Court also clarified that the three-step framework established in Hill v. National Collegiate Athletic Assn.[6], not the “compelling interest” analysis in White v. Davis, should be applied to resolve most parties’ privacy objections to discovery requests unless a request constitutes an “obvious invasion[] of interests fundamental to personal autonomy.”[7] The Court made clear that routine requests for witnesses’/class members’ contact information typically do not warrant “compelling interest” scrutiny, and strongly implied that the Hill test should frequently result in the production of witness/class member contact information, particularly where the parties agree to use a Belaire-West notice and opt-out process.[8]

III.            Defendants Asserting “Burden” Objections to Discovery Requests Must Provide Specific Facts About the Cost and/or Administrative Difficulty of Complying.

The Court also underscored that a defendant may not refuse to produce discovery merely because a defendant disagrees with a plaintiff’s legal theory. In so holding, the Court emphasized that “the way to raise” a perceived legal deficiency in a plaintiff’s case “is to plead it as an affirmative defense, and thereafter to bring a motion for summary adjudication or summary judgment, not resist discovery until a plaintiff proves he or she” can overcome the defendant’s affirmative defense.[9] This aspect of the Williams decision will hopefully go a long way towards incentivizing defendants to defend against plaintiffs’ claims on the merits instead of engaging in discovery gamesmanship, typically resulting in unnecessary and costly motion practice.

Moreover, if responding to a discovery request poses a genuine burden for a company, then the company must provide “evidence of the time and cost required to respond” to support its burden objection.[10] While unsurprising, this portion of the opinion should be used by workers’ advocates who receive generalized “burden” objections from defendants which lack any specific facts regarding the nature of the supposed burden to respond. 

In Williams, the Court illustrated its point with an example: “depending on the nature of any computer database Marshalls might maintain, providing information for 10,000 employees might prove little different than for 1,000, or 100.” If Marshalls had shown that, for example, each store had its own computer database of employees’ information unconnected to any other store’s database and no other centralized employee database existed, then the company might have had solid grounds to assert that coordinating data retrieval between “approximately 130 stores” in California would have been too costly and time-consuming.[11] In that case, the trial court might have ordered cost sharing between the parties, or a narrower production of information.[12] On the other hand, if Marshalls had been able to produce contact information relatively easily regardless of whether it produced employee information for one store as opposed to all of its stores, then Marshalls’ burden objection likely would not have been sustained. 

In the actual case, Marshalls provided no “supporting evidence” regarding the nature of the “time and cost required to” produce contact information for the witnesses/potential class members.[13] Accordingly, the company’s “burden” argument lacked any legal merit.[14]

IV.            Conclusion

Williams will be cited by wage and hour practitioners for years to come because it both provides much needed clarification regarding the scope and operation of California’s civil discovery rules as applied to PAGA representative actions, and also affirms the common sense principle that a worker should not have to prove his or her case before receiving the basic information he or she needs to do so.

Workers and workers' advocates should celebrate this tremendous victory weighing in favor of access to justice, and ultimately, robust enforcement of California’s vital labor laws.


If you have believe that you and your co-workers are or have been subject to unlawful pay practices, then please contact Bryan Schwartz Law.

[1] Williams v. S.C. (Marshalls of CA), No. S227228, 2017 WL 2980258, slip op. at 20 (Cal. July 13, 2017) (“Williams”)
[2] Williams slip op. at 12, 14.
[3] Williams slip op. at 13.
[4] Williams slip op. 11.
[5] Williams slip op. at 20.
[6] 7 Cal. 4th 1, 35. (1994).
[7] Williams slip op. at 29.
[8] Williams slip op. at 25-29.
[9] Williams slip op. at 31 (citing Union Mut. Life Ins. Co. v. Superior Court, 80 Cal. App. 3d 1, 12 (1978)).
[10] Williams slip op. at 18 n. 6.
[11] Williams slip op. at 4.
[12] Williams slip op. at 18 n. 5.
[13] Williams slip op. at 18.
[14] Williams slip op. at 19 (citing Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, 148 Cal. App. 4th 390, 402 (2007)).

Wednesday, July 5, 2017

Ninth Circuit Holds Mortgage Underwriters are Entitled to Overtime Under the Fair Labor Standards Act

Today, the Ninth Circuit held in McKeen-Chaplin v. Provident Savings Bank that mortgage underwriters are entitled to overtime compensation under the federal Fair Labor Standards Act (“FLSA”). The McKeen-Chaplin opinion clarifies the legal analysis for evaluating whether an employer has met the second prong of the administrative exemption test under the FLSA by strongly endorsing the “administrative-production dichotomy.”[1] McKeen-Chaplin, No. 15-16758, 2017 WL 2855084, at *7 (9th Cir. July 5, 2017) (“McKeen-Chaplin”). Under the administrative-production dichotomy framework, “whether [an employee’s] primary duty goes to the heart of internal administration—rather than marketplace offerings” is the key test in determining whether an employer has met the second prong of the FLSA’s administrative exemption. Based upon this important precedent, generally speaking, if an employee’s duties are focused on the core business of a company – like underwriters, working on a bank’s mortgage products – then the employee is not administratively exempt, and is entitled to overtime.
All employees are guaranteed minimum and overtime compensation under the FLSA unless their job duties fall under a specific exemption, such as the administrative exemption. McKeen-Chaplin, at *2. The burden is on the employer to show that a particular exemption defense “plainly and unmistakably” applies to a particular job position. Id. For the administrative exemption to apply, an employee must:

(1) be compensated not less than $455 per week;
(2) perform as her primary duty office or non-manual work related to the management or general business operations of the employer or the employer’s customers; and
(3) have as her primary duty the exercise of discretion and independent judgment with respect to matters of significance.

McKeen-Chaplin, at *3. An employer must completely satisfy all three prongs of this test for the administrative exemption to apply (i.e., for an employer to avoid paying overtime and minimum wage compensation by claiming the administrative exemption applies to its workers). Id.

In McKeen-Chaplin, the Ninth Circuit held that mortgage underwriters are entitled to overtime under the FLSA. In so holding, the Court summarized the operative facts as follows:

Provident’s mortgage underwriters do not decide if Provident should take on risk, but instead assess whether, given the guidelines provided to them from above, the particular loan at issue falls within the range of risk Provident has determined it is willing to take. Assessing the loan’s riskiness according to relevant guidelines is quite distinct from assessing or determining Provident’s business interests. Mortgage underwriters are told what is in Provident’s best interest, and then asked to ensure that the product being sold fits within criteria set by others.

Id. at *4.

In other words, because mortgage underwriters follow their employer’s policies to produce their employer’s products and do not set the employer’s policies or determine their employer’s business objectives, the employer failed to meet the second prong of the three-part administrative exemption test. Because the employer failed to meet all three prongs of the administrative exemption test, and no other exemption applied, the Ninth Circuit held that mortgage underwriters are entitled to overtime compensation.

The Ninth Circuit rejected the lower court’s reasoning that mortgage underwriters performed “quality control” work as a basis to assert that they engaged in work directly related to the company’s management or general business operations. Id. at **6-7. The Ninth Circuit noted, as a factual matter, that the employer maintains a separate, multi-step quality control process which “is not staffed by mortgage underwriters.” Id. at *6.
To drive home the point that merely because a “role bears a resemblance to quality control” does not make such a position exempt from overtime/minimum wage protections, the Ninth Circuit analogized the duties of mortgage underwriters to the undisputedly non-exempt “assembly line worker who checks whether a particular part was assembled properly.” Id. at *7. Even though an assembly line worker inspects a widget on the assembly line to ensure it meets the standards of the employer, the assembly line worker – like the underwriters in McKeen-Chaplin - nevertheless is bound by the product quality standards set by the employer.
Unless employees’ job duties “plainly and unmistakably” make them “administrators or corporate executives” responsible for the employer’s “internal administration,” employers may not avoid paying overtime by classifying them as exempt using the administrative exemption. Id. at **2, 7.

If you have concerns that you may have been incorrectly classified as an exempt employee and deprived of overtime pay, then please contact Bryan Schwartz Law.

[1] The Ninth Circuit was careful to acknowledge that “the [administrative-production] dichotomy is only determinative if the work falls squarely on the production side of the line.” McKeen-Chaplin, at * 4 (citing 69 Fed. Reg. 22122, 22141 (Apr. 23, 2004).
In addition, because the Ninth Circuit decided this case solely with respect to the second prong of the administrative exemption test, it did not need to address prong (3), i.e., whether mortgage underwriters have as their primary duty the exercise of discretion and independent judgment with respect to matters of significance. McKeen-Chaplin, at *1 n. 1.

Wednesday, June 28, 2017

Beginning July 1, California will require Employers to Provide Notice to Employees about Rights to Domestic Violence Leave

On September 14, 2016, Governor Brown signed AB 2337, a bill that requires employers of twenty-five (25) employees or more to provide notice to employees of their rights to take protected time off for domestic violence, sexual assault, or stalking. Existing California law already prohibited an employer from discharging or in any manner discriminating or retaliating against an employee for taking time off for specified purposes related to addressing domestic violence, sexual assault, or stalking. Existing law also provides that any employee who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief, and is allowed to file a complaint with the Division of Labor Standards Enforcement.

Employees can use this protected leave for matters that arise from being a victim of domestic violence, sexual assault, or stalking, including but not limited to:

Seeking medical attention for injuries;
Obtaining services from domestic violence shelters, programs, or rape crisis centers;
Obtaining psychological counseling; 
Participating in safety planning and taking related actions such as seeking a temporary or permanent relocation.

Employees are also entitled to use any available vacation or sick leave for such purposes.

This new law signed by Governor Brown requires California employers to “inform each employee of his or her rights” when a new employee is hired and to other employees upon request. The Labor Commissioner will develop a form for employers to use for these purposes, which will be published on the Commissioner’s website on July 1, 2017.  Notice requirements for employers also take effect on July 1, 2017.

Thursday, June 15, 2017

Ninth Circuit Rejects Latest Version of Trump’s Muslim Ban on Statutory Grounds, Stating: “Immigration, Even for the President, is Not a One-Person Show”

On Monday, the U.S. Court of Appeals for the Ninth Circuit upheld the Hawaii district court’s nationwide preliminary injunction against President Trump’s revised “travel ban.” This travel ban was Trump’s second attempt at delivering on his bigoted and callous campaign promise to prevent Muslims from entering the United States: it sought to deny entry to all nationals of six majority-Muslim countries and to impose draconian restrictions on refugees, including temporarily banning the entry of all refugees and reducing the cap on refugees for fiscal year 2017 by more than fifty percent.

The revised travel ban largely followed the original Muslim ban’s template, except that it does not include Iraq in its list of majority-Muslim countries, it does not apply to current visa-holders, it does not contain explicit preferences for non-Muslim refugees, and it provides for case-by-case waivers at the discretion of consular or border control officers. Nonetheless, the intent of the revised travel ban is clear, as Trump has repeatedly referred to it as a continuation of his efforts to deny entry to Muslims.
Notably, the Ninth Circuit rejected the travel ban because it overstepped the President’s authority as delegated by Congress under the Immigration and Nationality Act (“INA”), which includes a prohibition on national origin discrimination. This approach stands in contrast to the Ninth Circuit’s prior ruling on the original Muslim ban and the Fourth Circuit’s ruling on the revised ban, which both affirmed lower-court injunctions on constitutional grounds. By avoiding the constitutional questions and deciding the case on statutory grounds, the Ninth Circuit highlighted an alternate legal theory to defeat the travel ban, based on canons of statutory interpretation rather than the more overtly political process of constitutional analysis. No doubt the unanimous three-judge panel of the Ninth Circuit had the conservative-majority Supreme Court in mind when it took this more unassuming approach.

In addition to constitutional claims based on the Establishment Clause of the First Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendment, Plaintiffs the State of Hawaii and Dr. Ismail Elshikh also alleged that the revised travel ban ran afoul of the INA by: (1) discriminating on the basis of nationality; (2) ignoring and modifying the statutory criteria for denying entry based on terrorism-related concerns; and (3) exceeding the scope of statutory authority delegated to the President by Congress. 

Article I, section 8 of the Constitution grants Congress the power to “establish a uniform rule of naturalization,” but Congress has delegated some of that authority to the President under the INA. That delegation, however, requires that the President make a finding that the entry of a “class of aliens . . . would be detrimental to the interests of the United States” before denying entry to that group. The Court correctly observed that the Trump Administration had made no such finding that the 180 million nationals of the six countries were inherently dangerous based on their nationality alone. It cited to one of Trump’s tweets to support the position that Trump intended to target countries, not individuals from those countries who had, for example, engaged in terrorist activities or other dangerous behavior. It also cited to leaked Homeland Security reports which had concluded that excluding individuals based on nationality would be ineffective in preventing terrorist attacks. As to the refugee ban, the Court noted that refugees already undergo the most lengthy and involved vetting process of anyone seeking admission to the United States, and determined that the Trump Administration had provided no justification for how suspending or dramatically reducing the number of refugees admitted would promote public safety. By failing to make any such a finding of detriment – beyond xenophobic conjecture – Trump exceeded the authority Congress granted to him under the INA.

Similarly, the revised travel ban was found to violate the INA’s prohibition on national-origin discrimination, enacted in 1965 to eliminate the prior immigration system based on racial quotas – i.e., favoring immigrants from northern Europe and heavily restricting immigration from Asia and Africa. As discussed above, the ban’s emphasis on nationality as the sole criterion for exclusion, as opposed to culpable conduct, could not satisfy the INA’s nondiscrimination mandate, “because it would enable the President to restore discrimination on the basis of nationality that Congress sought to eliminate.” The Ninth Circuit also addressed the fact that the INA contains detailed provisions governing terrorism-related admissibility, which require reasonable grounds to believe that an individual alien is likely to engage in terrorist activity, which would be rendered superfluous by the revised travel ban.

Finally, the Court took a broad view and addressed the scope of the President’s authority under the tripartite framework established by Justice Jackson’s concurrence in the Steel Seizure Case. The Ninth Circuit concluded that “the President took measures that were incompatible with the expressed will of Congress, placing his power ‘at its lowest ebb.’”

In short, once more, Trump and his inexperienced team of white nationalists and corporate cronies have failed to achieve one of their goals because they could not be bothered to do their homework. And the Ninth Circuit – like the Fourth Circuit and various district courts – once again affirmed the role of the judicial branch to ensure that we remain a nation of laws which do not wither in the face of an impulsive, unprincipled, and uninformed Executive.

Given the nationwide injunction and the importance of these issues, the Supreme Court is likely to confront the revised travel ban – possibly in the next three weeks before the end of the current term. When it does, the High Court may find that the Ninth Circuit’s example of constitutional avoidance and rigorous interpretation of the INA is the most prudent way to dispose of the Muslim Ban once and for all.

Thursday, June 8, 2017

Trump Administration Withdraws Guidance to Protect Workers

Trump won the White House by invading the traditional Democratic base – working Americans – promising them greater wages and job security. Renegotiated treaties, clamping down on job exporters, investing in infrastructure-related job creation – these were just a few of his signature promises that attracted the working class Wisconsin, Pennsylvania, and Michigan voters who made President Trump.

Now that Trump is in office, he is singing a different tune – the same old, Republican tune that is only music to the ears of the richest Americans (like Trump and his family). This week, the Trump administration announced that his Department of Labor (DOL) has withdrawn Obama-era administrative guidance which made it more difficult for employers to avoid their responsibilities to workers.

The 2015 guidance adopted an expansive definition of employment under the Fair Labor Standards Act (FLSA) so that most workers would be covered employees, not misclassified as independent contractors. It specifically abandoned the “common law control” test, which focuses on the employer’s control over the employee, in favor of the broader “economic realities” test, which focuses on an employee’s economic dependence on the employer. As a result, most workers were covered under the FLSA and had access to important protections including minimum wages, overtime pay, worker’s compensation, and unemployment insurance.

The Obama administration issued additional guidance in 2016 for joint employers. It broadly defined the scope of joint employment, making it harder for corporations to play a shell game with workers who are just trying to get their hard-earned pay. It specifically required joint employers to aggregate the total hours employees worked for joint employers. Joint employers could no longer claim that an employee worked for Company A for 30 hours per week and Company B for 25 hours per, just to avoid paying her overtime each pay period. Instead, the employee was entitled to receive 15 hours overtime as she actually worked 55 hours per week for the joint employer.

Misclassification affects 10-20 percent of employees and costs them – and states –  hundreds of millions of dollars in unpaid wages and taxes. It affects workers in every industry, from domestic workers to truck drivers. Recent court cases highlight the pervasiveness of misclassification. FedEx settled for $228 million dollars after the Ninth Circuit found that 2,300 delivery drivers had been misclassified as independent contractors. Lyft is paying up $27 million to settle misclassification claims. The Obama administration’s guidance was an essential step to combat this massive problem and protect all workers.  

Withdrawing the guidance will affect middle-class people nationwide. The DOL has now signaled that employee misclassification will no longer be a priority. Employers will again more easily be able to misclassify employees as independent contractors, to avoid paying workers properly and protecting their safety and health. It will also be more difficult to establish a joint employer relationship, and therefore to hold all the involved parties responsible, where workers’ rights are violated. Big corporations love the Trump administration’s withdrawal of the Obama-era guidance – it puts more money in the executives’ pockets, at the expense of their workers.

Moving forward, workers and employment attorneys should pay attention to whether and how DOL enforces misclassification cases and who Trump appoints to the two open spots on the National Labor Relations Board (NLRB). In a 3-2 decision, the Obama-era NLRB adopted the broad interpretation of joint employer. If the DOL does not aggressively enforce misclassification cases, and the NLRB returns to a narrow interpretation of which companies are responsible to workers, everyone will begin to feel the effects of Trump’s abandonment of American workers.  

Monday, June 5, 2017

Seventh Circuit Holds that Discrimination against Transgender Student is Cognizable Sex Discrimination under Title IX and the 14th Amendment

The U.S. Court of Appeals for the Seventh Circuit has affirmed a preliminary injunction requiring a Wisconsin high school to permit a transgendered male student to use the boys’ bathrooms. (Link to the landmark opinion in Whitaker v. Kenosha Unified School District here.) In affirming the preliminary injunction, the Court ruled that the student – Ash Whitaker – could state a claim for sex discrimination based on his transgender status under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment. The decision has wide-ranging implications outside the context of education, particularly for employment law, as the Court described the close relationship between Title IX and Title VII (of the Civil Rights Act of 1964, prohibiting employment discrimination), and largely relied on case law developed under Title VII to reach its conclusion. The ruling is also significant because it comes on the heels of the Trump Administration’s cruel decision in February 2017 to rescind President Obama’s administrative guidance stating that schools should permit students to use bathrooms consistent with their gender identity.

Ash, a high school senior who has just graduated, first came out as a transgender male to his family in eighth grade and began to publicly transition shortly thereafter, a process that included hormone replacement therapy and a legal name change. Ash and his mother repeatedly requested permission for him to use the boys’ bathroom while at school. The school repeatedly denied the requests, telling Ash he could only use the girls’ bathrooms or a staff-only gender-neutral bathroom located far from his classes. Ash did not want to undermine his transition by using the girls’ bathroom, and did not want to draw further attention to himself as the only student with access to the staff-only bathroom (not to mention the fact that using the staff-only bathroom made it impossible to get to class on time).

Ash alternated between restricting his water intake, resulting in adverse health effects, and sneaking into the boys’ bathroom. Ash and his mother continued to ask the school for relief, without results. The school demanded medical documentation, which Ash provided, but, ultimately, the school stated that it could not honor the request unless Ash completed a surgical transition, notwithstanding that the procedure is prohibited for minors. At one point, the school instructed its security guards to monitor Ash’s bathroom use, and he was removed from class for failing to comply with the school’s unwritten and inconsistent policies. Throughout this course of events, Ash’s symptoms of depression worsened, leading to suicidal ideation.

Ash filed suit the summer before his senior year, and obtained a preliminary injunction from the district court which required the school to allow Ash to use the boys’ bathroom and prevented the school from further monitoring his bathroom use. The school then appealed the preliminary injunction to the Seventh Circuit.

The Court (in a unanimous decision authored by Judge Anne Claire Williams) first determined that Ash had made a showing of irreparable harm and that no adequate remedy at law existed, casting aside the school’s argument that monetary relief could make him whole, stating: “We cannot say that this potential harm – his suicide – can be compensated by monetary damages.” The Court then addressed the likelihood of success on the merits in the underlying lawsuit and the balance of harms.

As to Ash’s Title IX claim, the Court looked to the development of sex-discrimination based on sex-stereotyping under Title VII, starting with the Supreme Court’s 1989 Price Waterhouse v. Hopkins decision, in which an employer was found to have discriminated against a female employee because she was perceived as too masculine. The Seventh Circuit also looked to its own en banc decision earlier this year, which established that Title VII also prohibits sexual orientation discrimination based on a sex-stereotyping theory. The argument is straight forward: if discrimination based on an individual’s lack of conformity to established gender norms is sex discrimination, then it follows that discrimination based on lack of conformity to one’s gender assigned at birth also qualifies. The Court noted that both the 11th and 6th Circuits had previously applied Price Waterhouse to determine that transgender discrimination qualifies as sex discrimination.

With respect to the Equal Protection Clause, the Court explained that, because transgender discrimination is sex discrimination, heightened scrutiny rather than rational basis review applies. Sex-based stereotypes are an insufficient basis to meet this heightened scrutiny, and thus the Court found a likelihood of success as to the 14th Amendment claim as well. The Court did not decide whether discrimination based upon transgender status is per se entitled to heightened scrutiny across the board.

Finally, in considering the balance of harms, the Court eviscerated the school district’s privacy arguments as entirely speculative. The Court also pointed to the fact that Ash had used the boys’ restroom for a six-month period without any student complaints (it was a teacher who eventually reported Ash) as evidence that the privacy argument was based on conjecture alone. The argument that transgender individuals’ presence in public bathrooms not matching their birth gender poses a heightened risk to the safety and privacy of other bathroom users has been advanced by opponents of transgender rights as an unsubstantiated scare tactic. As stated by the Court: “Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect privacy and those who have true privacy concerns are able to use a stall.”

Although not the first appellate-court decision to recognize this theory of transgender discrimination as sex discrimination, Whitaker is a significant step in the fight to expand school, workplace, and other civil rights protections for transgender individuals and the LGBTQ community generally. School administrators and employers must not stigmatize transgender individuals based on speculation about the harms to other students and employees. The fact that the decision followed the Trump Administration’s rescinding of the Obama Administration’s bathroom guidance – and declined to consider or mention it – shows that despite the current Administration’s bigoted attempts to roll back the clock on LGBTQ rights, the critical statutory and constitutional framework for protecting those rights already exists. Protections will continue to become more robust through subsequent judicial decisions like this one.

Supreme Court review of transgender bathroom access appears inevitable, whether through this case, Gavin Grimm’s case in the Fourth Circuit, or another. Once again, all eyes will turn to Anthony Kennedy, who will have another opportunity to cement his unique legacy with respect to LGBTQ rights.