Wednesday, April 12, 2017

Vital Signs of the Rule of Law in California's Workplaces

Republished from California Labor & Employment Law Review, Vol. 32, No. 2, March 2017, Message from the Chair, Bryan Schwartz

Home late again from an out-of-town deposition, I lie very silently next to my three year-old son and smile to hear him breathing. Cracking open the door of my daughter's bedroom, I feel relieved to see her shift slightly while sleeping. I head to bed and listen for my loving partner's heartbeat.
These are the vital signs - the breathing, the gentle movement, the heartbeat. The deposition also - and the many hours it took to prepare for it, the documents my opposing counsel gathered beforehand, the hours we pored over them to learn the facts of the case, and the briefing and hearing that will come soon when we argue our respective points -these constitute the behind-the-scenes lifeblood of the rule of law; and they are also born from love.
This love binds my opposing counsel and me. I sue companies and agencies and people for alleged mistreatment of workers. They defend them. Yet, we are all married to the same system where our respective client's positions are entitled to impartial consideration through a many-layered process, where each of us can be heard and our clients' rights considered against the same body of law. 
We know that sometimes this process is tedious, that it sometimes keeps us away from our loved ones, and that it leaves us sleep-deprived. But, this process keeps America and California alive. By serving this process, we express our patriotism and our love. We know that it takes more than just blood on the battlefield to protect our nation. It takes the law. In our daily practice are the vital signs of democracy.
Even someone as different from me as Dan Burton can agree. He is a Tea Party Republican from Indiana who served for 30 years in the House of Representatives. In 1998, he was seeking appointment of an independent counsel to investigate the Clinton administration and invoked "the need to inform the American people of the threats to our judicial system by an administration which thinks that it is above the law." He said, "No one in this country should be above the law. The law...should be administered equally, whether it is the lowest person in the United States or the person occupying the highest office, the President of the United States."1 Whether or not I agree with his politics, Rep. Burton and I agree about the law's superiority over any individual.
We are in good company. More than two centuries earlier, in The Federalist No. 78, Alexander Hamilton wrote that "the Constitution ought to be preferred to the statute, the intention of the people to the intention I of their agents," thereby fighting for a Constitution that would imbue the judiciary in our nascent republic with the power to interpret the law and the original will of the people. This will exceeds the will of any elected official, or any number of them. We shepherd the judiciary, and the juries of our clients' peers, in this sacred work of nurturing a healthy Constitution. The Bar's Labor and Employment Law Section educates us to better perform this duty-in the most well-informed, ethical, and collegial manner. 
 We know all this, of course, but right now we must remember it every day as labor and employment lawyers in California, listening for democracy's vital signs at all hours. None of us want California workplaces where women are unsafe from harassment and assault, where people with disabilities do not have fair opportunities to contribute, where people of some races and national origins are treated worse than others, where hardworking men and women cannot earn enough to feed their families. None of us want those who violate the law to gain unfair business advantages over those who play by the rules-the rules that are in our charge. Because of us, California employers know how to hire workers fairly, how to pay them lawfully, and how to hold them accountable when they fall short. Sometimes our clients let us down, sometimes we have second thoughts about advice we give, or about a legal strategy we pursue. Our basic commitment to the rule of law, though, persists.
No matter what happens, for the nearly 20 million Californians in the labor force, and many millions more depending on them, nothing could be more important than what we do keeping the organs of our democracy healthy and continuing to shape and enforce a rule of law for the state's workplaces. Though hearing a ping on my phone when an ECF notification comes across is surely not as sweet a sound as my little boy's night time breathing, it is also vital.

1. 144 Cong. Rec. 20416 (Sept. 15, 1998).

Wednesday, April 5, 2017

Seventh Circuit Holds Federal Law Prohibits Employers From Firing People Because they are Gay

Before the full panel, the U.S. Court of Appeals for the Seventh Circuit issued a groundbreaking decision, holding 8-3 that workplace discrimination based on sexual orientation violates federal civil rights law.

The case involved a lesbian, Kimberley Hively, who sued Ivy Tech Community College when it denied her full-time employment and promotions because she was a lesbian and married to a woman. Hively began teaching at Ivy Tech in 2000 as a part-time adjunct professor. Between 2009 and 2014, Hively applied for at least six full-time positions, but each of these efforts were unsuccessful; even worse, in July 2014 her part-time contract with Ivy Tech was not renewed, resulting in her termination.

After she was terminated, Hively filed an administrative complaint with the Equal Employment Opportunity Commission, alleging that Ivy Tech discriminated against her because of her sexual orientation and violated her rights under Title VII of the Civil Rights Act of 1964. After the trial court dismissed the case, the Seventh Circuit initially affirmed the the trial court's decision based on decades of case law that held sexual orientation was not a protected category under Title VII. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). 

Before the Seventh Circuit's full panel, Chief Judge Diane Wood, writing for the majority, brought new life into analyzing claims of sexual orientation discrimination under Title VII. The court framed the main question of the case as a question of statutory interpretation: what does it mean to discriminate on the basis of sex, and in particular, are actions taken on the basis of sexual orientation  a subset of actions taken on the basis of sex?

Guided by the U.S. Supreme Court's approach in a related case addressing whether Title VII covered sexual harassment inflicted by a man on a male victim (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)), the Seventh Circuit acknowledged that discrimination on the basis of sexual orientation may not have been the principal evil Congress was concerned with when it passed Title VII. The Seventh Circuit nonetheless found that "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 [courts] are governed." Id. at 79-80. The court also acknowledged that Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman simply because of her gender.

Hively framed her argument for why she should be covered by Title VII under two approaches: (1) a simple comparison isolating Hively's sex and the significance it played in her employer's decision; and (2) relying on Loving v. Virginia, 388 U.S. 1 (1967), which found that the Fourteenth Amendment of the constitution protects interracial marriages, holding that Title VII protects Hively's right to associate intimately with a person of the same sex. 

Under the first approach, the court found that if Hively had been a man married to a woman, and everything else would have stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. The court stated that "any discomfort, disapproval, or job decision based on the fact that the complainant - man or woman - dresses differently, speaks differently, or dates and marries a same-sex partner, is a reaction purely and simply based on sex," falling within Title VII's prohibition against sex discrimination. 

Addressing the second theory of discrimination presented by Hively, the court, relying on decades of cases holding that Title VII prohibits discrimination based on the race with whom a person associates, found that Ivy Tech's discrimination against Hively based on the sex of the person she associated with is also prohibited under the act. 

The court concluded with a clear holding: a person alleging that he or she experienced employment discrimination on the basis of his or her sexual orientation has put forth a case of sex discrimination for Title VII purposes. 

This is a landmark decision for the LGBTQ community, extending federal employment protections in Wisconsin, Illinois, and Indiana, which previously had state laws that only prohibited employment discrimination on the basis of sexual orientation with regards to state employment. This decision will now cover all private and public employers subject to Title VII. And, this will hopefully lead to other U.S. Circuit Courts revisiting this issue and expanding employment protections across the country for the LGBTQ community.

In California, the state's Fair Employment and Housing Act and Unruh Civil Rights Act have explicitly protected sexual orientation and gender identity from discrimination in employment, housing, and public accommodations for many years. Last year, California's Department of Fair Employment and Housing became the first state civil rights agency to issue guidance to employers regarding transgender employees.

If you have experienced discrimination based upon your sexual orientation, and need help, contact Bryan Schwartz Law.