Promising Developments for LGBTQ Workers

After four years under a President who did everything in his power to strip LGBTQ people of their rights, things are finally looking up for LGBTQ workers. On his first day in office, President Biden issued an Executive Order instructing his administration to vigorously enforce the federal anti-discrimination laws which prohibit discrimination on the basis of sexual orientation and gender identity. And this week, the House of Representatives voted to pass the Equality Act, which would amend the Civil Rights Act of 1964 to explicitly encompass protections for gay, lesbian, bisexual, transgender, and queer people.

 

Biden’s Executive Order requires federal agencies to follow the landmark Supreme Court decision in Bostock v. Clayton County, which Bryan Schwartz Law has written about before. The Court in Bostock interpreted Title VII’s prohibition on discrimination “because of sex” to encompass discrimination based on sexual orientation and gender identity. It held, “An employer who fires an individual merely for being gay or transgender violates Title VII.” Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1734 (2020). The Court reasoned that it is impossible for an employer to discriminate against employees based on sexual orientation without discriminating against them on the basis of sex. Id. at 1741. Justice Gorsuch provided the example of a man being fired because he was married to a man, whereas a woman would not have been fired for being married to a man. Id. Therefore, because men and women are treated differently, there exists sex discrimination in this scenario. Id.

 

At the end of his presidency, in January, Trump’s Justice Department issued a last-minute memo seeking to limit the scope of Bostock’s applicability. Thankfully, Biden both revoked the memo and explicitly instructed his administration to interpret Bostock broadly in his Executive Order. In adopting a broad construction of Bostock, the Executive Order says loudly that the Biden administration will consider discrimination on the basis sexual orientation and gender identity to be a form of sex discrimination, prohibited by Title VII. This is an encouraging development, but because it is an Executive Order rather than legislation, it leaves open the possibility that future presidents could take steps backward again, like Trump did.

 

This is where the Equality Act comes in. Instead of including protections for LGBTQ people under the umbrella of “sex discrimination,” the Equality Act would Amend the Civil Rights Act of 1964 to add “sexual orientation and gender identity” as their own bases for protection under the Act. Currently, these bases are race, color, religion, sex, and national origin. The Equality Act would replace the word, “sex,” from the Act with, “sex (including sexual orientation and gender identity).” The Civil Rights Act of 1964 is one of the greatest sources of protection for American workers, with Title VII of the Act prohibiting employment discrimination nationwide. The Equality Act would therefore expand these meaningful protections for American workers to explicitly encompass members of the LGBTQ community. 

 

It is important to pass federal protections for LGBTQ workers because currently, 27 states have no state-level laws prohibiting discrimination based on sexual orientation or gender identity.  Further, passing the Equality Act would ensure federal-level protection from discrimination even in the unfortunate case that we end up with another President who does not support LGBTQ workers. It is crucial that we do not leave this important civil rights issue up to the whims of a bigoted future President.

 

Thanks to decades of hard work by LGBTQ advocacy groups, the House of Representatives voted to pass the Equality Act on February 24, 2021. Hopefully the Senate will look past partisan divides and vote this Act into law swiftly.

 

Bryan Schwartz Law stands with LGBTQ workers. The firm has written about Title VII many times before. If you believe you have been discriminated against based on your sexual orientation or gender identity, please contact Bryan Schwartz Law.

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.

Court Forces Jones Day to Produce Salary Documents in Gender Discrimination Suit

Last week, U.S. District Judge Randolph Moss ruled from the bench that Jones Day must produce salary information for all its associates nationwide in a discovery dispute. This ruling is a huge win for the plaintiffs—a group of former female associates—in a $200 million gender discrimination lawsuit against Jones Day, a global law firm with more than 2,500 lawyers across five continents.

Judge Moss required Jones Day to provide salary information about every associate nationwide from 2012 to 2018. Jones Day had argued that it should only have to provide salary data for 580 associates who worked in its New York, Atlanta, and California offices from 2016 to 2018. The plaintiffs had requested salary data for every associate nationwide from 2012 to present. Judge Moss found that there would be little burden on Jones Day to produce the salary data until 2018, after which time none of the plaintiffs continued to work at the firm. Judge Moss also highlighted that not giving the plaintiffs all the salary information would just prolong proceedings. To protect the privacy of the associates, the data will be filed under seal, but analysis of the data can still appear in future filings.

The plaintiffs--Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams, Saira Draper, Jaclyn Stahl and Katrina Henderson—sued Jones Day in 2019 for gender discrimination through its compensation model, leadership structure, and “fraternity culture.” Jones Day is known for having a black box compensation structure, which keeps attorney pay completely under wraps. However, Jones Day allegedly does promise to compensate associates who produce high-quality work at or above the market. Despite this, the plaintiffs were not compensated within the “Cravath” market scale, which is considered top-of-line pay in Big Law. The plaintiffs’ attorneys have highlighted that the wide data set will ensure greater accuracy in any analysis completed for the case and help prove that Jones Day has been systemically discriminating against women.

Bryan Schwartz Law has written about gender discrimination many times before. If you believe you were discriminated against on the basis of sex, please contact Bryan Schwartz Law today.

Certified: Thousands of Oracle Women Permitted to Proceed as a Class in a Significant Win for Gender and Pay Discrimination Actions

Last week, the San Mateo County Superior Court in Jewett v. Oracle granted the representative plaintiffs’ motion for class certification, permitting plaintiffs to proceed as representatives of a class of over 4,100 women. The case alleges systematic underpayment of women, in violation of California’s Equal Pay Act (EPA), Labor Code 1197.5 and California’s Unfair Competition Law, Business & Professions Code 17200.

While the ruling does not reach the merits of the allegations, it nevertheless is a crucial victory and an important breakthrough in pay and sex discrimination class action cases. In recent years, plaintiffs have sometimes met resistance in trying to bring class claims of systemic gender-based discrimination. For example, in Huang v. Twitter, the California courts declined to certify a class of approximately 135 software engineers in an action alleging that Twitter’s discretionary promotion policy had a disparate impact on women in violation of California’s Fair Employment and Housing Act. Similarly, in Moussoris v. Microsoft, the federal district and appellate courts declined to certify a class of approximately 8,600 women in technical and engineering roles in an action alleging that Microsoft’s policies and practices had a disparate impact on women with respect to compensation, promotions, and performance evaluations, in violation of Title VII of the Civil Rights Act and Washington state law. In both cases, the courts cited to Wal-Mart v. Dukes in concluding that commonality could not be established because the discrimination that the women faced was a result of an individualized exercise of discretion, so the inquiry was not suitable for a class case. In a sense, the employers were able to avoid liability on a classwide basis by granting decision-makers the type of discretionary authority that perpetuated the very structural, implicit biases that these cases sought to challenge.

In the instant case, plaintiffs’ claims differed in two notable ways. First, the claims were brought under California’s EPA, which is a strict liability statute – meaning there is no requirement to prove intent, discriminatory animus, or motive for the identified pay disparity. Second, plaintiffs contended that much of this pay disparity arose from Oracle’s use of prior salary at jobs before Oracle, an impermissible factor with respect to pay disparity under the statute (see Labor Code 1197.5(a)(1)(D)(4)).¹

In support of their claims, Plaintiffs submitted evidence that Oracle has a detailed, company-wide system of job codes that groups employees by job function, job specialty, job family, and responsibility level. Plaintiffs subsequently elicited Person Most Qualified (PMQ) testimony that individuals within job code share basic skills, knowledge, and abilities, and similar levels of responsibility and impact. Plaintiffs also introduced expert reports establishing that: (1) work within Oracle’s specific job codes were substantially equal with respect to skills, effort, and responsibilities; and (2) that women working in the same job codes as men receive less base pay, fewer bonuses, and lower stock compensation, to a statistically significant degree, such that the discrepancy could not be explained by job definition, tenure at Oracle, tenure in position, job performance, years of job experience, or location of work site.

The Superior Court found that Plaintiffs’ theory of recovery was suitable for class-wide proof because Oracle’s job codes would allow for comparison of salary data between individuals that performed work similar in skill, effort, and responsibility. The Court concluded that Plaintiffs’ evidence supported a finding that Oracle employed a top-down, centralized compensation system that was appropriate for classwide resolution.

Oracle argued that there was sufficient variance within each job code with respect to the specific duties of each employee that a comparison at the job code level was improper. However, the Court concluded that this was inconsistent with Oracle’s own PMQ testimony, and the EPA’s requirement that jobs only share similarities with respect to a composition of skill, effort, and responsibility performed under similar working conditions. Further, at the certification stage, Plaintiffs need only offer a theory that is susceptible to common proof, which they had done here.

Oracle also argued that it was entitled to present individualized evidence with respect to each and every class member to attempt to establish that there was a “bona fide” factor responsible for that woman’s lower pay compared to every man in her job code who is paid more. The Court rejected Oracle’s argument, finding that to be “bona fide” and applied “reasonably,” any job-related factor that Oracle could point to would have to have been applied consistently with respect to employees performing the same work. As the Court explained: “it is not reasonable or consistent with the purposes of the EPA to permit an employer to pick and choose factors inconsistently and idiosyncratically to justify disparate pay decisions for employees performing substantially similar work.” Although Jewett is not directly responsive to the decisions in the Twitter, Microsoft, and Wal-Mart cases, the Jewett order rebuffs the notion that an employer can insulate itself from classwide gender discrimination claims with respect to pay disparity by letting decision-makers operate with unchecked discretion.

Jewett thus marks an important step in bridging the gender pay gap as it provides employees with a simpler mechanism to bring their claims. Specifically, the Jewett order has solidified the California EPA as a pathway forward to challenging systemic gender discrimination in pay on a classwide basis.

If you believe you are being paid less because of your sex, contact Bryan Schwartz Law.

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1 The 9^th Circuit recently reiterated that reliance on prior pay history does not insulate an employer from liability under the federal EPA, which this firm has blogged about here.^↩

The Supreme Court Continues to Hinder Efforts to End Retaliation and Workplace Harassment: Univ. of Texas Southwestern Med. Center v. Nassar and Vance v. Ball State University

Very quietly, over the past several years, the Supreme Court has been making it more difficult for Americans to sue businesses for class actions, retaliation and/or discrimination.  The Court seems far more concerned with protecting employers from lawsuits than vindicating employees’ statutory rights.  Two decisions by the Supreme Court on Monday continue this unfortunate trend.

On June 23, 2013, a sharply divided Supreme Court issued two decisions that reveal the Court is out touch with the realities of the workplace and out of touch with the realities of workplace harassment and retaliation.  The Court issued University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (opinion, here) and Vance v. Ball State University, No. 11-556 (opinion here), two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two dissents that she read from the bench.

In the first case, Nassar, who is of Middle Eastern descent, alleged that the University of Texas Southwestern Medical Center blocked him from getting a new job.  According to Dr. Nassar, the Medical Center denied him the new job after he complained that his supervisor discriminated against him based on his race and ethnicity.  The U.S. Equal Employment Opportunity Commission found “credible, testimonial evidence” that the Medical Center retaliated against Dr. Nassar, and a jury found that the University violated the anti-retaliation provision of Title VII.  Nassar, Slip Op., Dissent at p. 4. The U.S. Court of Appeals for the Fifth Circuit upheld the jury verdict.

Supreme Court overturned the decisions of the district and appellate courts, and the Equal Employment Opportunity Commission.  Instead of applying the same standard of proof that is used for race and gender discrimination claims, the Court adopted a more stringent standard for retaliation, which Justice Ginsburg, in her dissenting opinion, recognized “lacks sensitivity to the realities of life at work.”  Nassar, Slip Op., Dissent at p. 25. The lack of sensitivity to the realities of life at work is further reflected in Justice Kennedy’s words that convey empathy for the employer and disdain for employees: “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”  Nassar, Slip Op., at p. 19.  Moreover, the majority’s lack of concern for the financial, reputational and emotional cost of retaliatory harassment to the employee in comparison to the Courts’ desire to reduce the number of retaliation claims filed, regardless of merit, is reflected in the acceptance of the following hypothetical considered by the Court: “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.” Nassar, Slip Op., at p. 18.

For race and gender discrimination, the Court ruled that Title VII requires an employee to show only that race or gender was one of multiple “motivating” reasons for the employer’s decision-making.  Nassar, Slip Op., at p. 23.  However, for a claim of retaliation, the Court ruled that the employee must show that the employer would not have made the decision “but for” its improper retaliatory motive.  Id.  The Court remanded the case to the trial court to apply this higher standard to Dr. Nassar’s retaliation claim.

Unfortunately, the Court’s decision to raise the burden of proof for retaliation claims is in contrast to the strong safeguards necessary to shield employees who protest discriminatory actions.  These protections particularly are important since the number of Equal Employment Opportunity Commission complaints has nearly doubled in the past 15 years from over 16,000 in 1997 to 31,000 in 2012. Nassar, Slip Op., at p. 18.

In Vance v. Ball State the Court ruled that in Title VII cases a person must be able to take “tangible employment actions against the victim, such as hiring and firing someone to be considered a supervisor in discrimination lawsuits, thereby making it harder to blame a business for a co-worker's unlawful and discriminatory behavior.  Vance, Slip Op., at p. 30.  Maetta Vance, the only African-American employee in the Ball State University kitchen, was exposed to racial slurs from Saundra Davis, the kitchen staff worker who gave Ms. Vance her daily work assignments.

The Court previously held that an employer is accountable under Title VII when one of its supervisors harasses an employee.  In Vance, the Court ruled that Ball State was not responsible for Davis’s discriminatory conduct because Davis did not fit the Court’s narrow definition of “supervisor.”  Vance, Slip Op., at p. 30.  The Court’s ruling also rejected EEOC’s guidance regarding who is a supervisor.  Vance, Slip Op. at pp. 20-21. The Court determined that because Davis did not have the power to make certain formal employment decisions, such as hiring, firing, or promoting, she was not a “supervisor” under Title VII, despite the fact that she controlled and supervised Ms. Vance’s day-to-day activities. Vance, Slip Op. at pp. 29-30.

Unfortunately, the Vance decision will leave employees without judicial recourse when faced with harassment by supervisors who may not have the ability to fire workers, but do have the ability to harass them in the workplace.

Both decisions show that the Court is out of touch with the realities of today’s workplace.  In the real world, a coworker who assigns work, even without hiring and firing responsibility, can use that authority to make the conditions of another employees’ life miserable or unsafe because of a protected category. When there is unlawful behavior in the work place, the law should protect employees who try to make the workplace safe for everyone by reporting the situation.  When there is unlawful behavior in the work place, the employer should be required either to fix the situation or be held accountable for not doing so. This is not just the reality of the workplace but this is common sense because everyone-regardless of race, gender or other-wants to work in a workplace free from harassment. Instead of ensuring justice and equality to all, the Court continues to listen to one singular voice-business. As Justice Ginsburg noted in her dissent, “[t]he ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”

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.

Can You Be Fired For Being Gay? The Supreme Court Will Soon Decide.

Next month, the Supreme Court will hear three cases about workplace discrimination. Under Title VII of the 1964 federal Civil Rights Act, it's illegal for an employer to discriminate against an employee on the basis of sex. What "sex" encompasses is what's at issue in these cases. Up until now, federal law has treated "sex" to include gender only, meaning an employer can't discriminate against you just because you're a man or a woman. The question at issue in these cases is whether the word "sex" also encompasses sexual orientation and gender identity. If you identify as LGBTQ+, are you protected from discrimination in the workplace? That's what SCOTUS will soon decide.

In one case, a transgender woman was fired from her job after revealing that she was transgender and would be dressing in accordance with the female dress code for the office. In the other two cases, gay men were fired because of their sexual orientation. 28 states currently have no protections for LGBTQ+ employees in the workplace (although a few of those states protect public sector workers). The Obama Administration had interpreted federal non-discrimination statutes to include discrimination on the basis of sexual orientation and gender identity, but the Trump Administration reversed course, and is essentially saying an employer may fire someone for being gay or transgender, without consequences under Title VII. That shouldn't be surprising coming from an Administration that implemented a transgender military ban (which Bryan Schwartz Law has written about before); denies citizenship for the foreign-born, adopted children of gay couples; and nominates judges to the federal bench who are openly hostile to LGBTQ+ people. The Democrat-controlled House passed the Equality Act earlier this year, which would enshrine LGBTQ+ workplace protections into federal law, but the Republican-controlled Senate has not advanced the Act, making the Supreme Court's upcoming hearing especially important.

In this climate, and given the current composition of the Supreme Court, LGBTQ+ advocates and allies are understandably worried. Some are hopeful that since these cases don't involve interpreting the Constitution (as was required in the same-sex marriage case of Obergefell), but rather a statutory interpretation of Title VII, some of the conservative justices who voted no in Obergefell might vote yes in these cases. Advocates also hope that Chief Justice Roberts will remember what he famously said in 2015 when the Court heard arguments about same-sex marriage: “I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” Excellent question, Chief Justice. We look forward to your answer - which could come anytime between next month and next summer.

If you've been discriminated against in the workplace because of your sexual orientation or gender identity, contact Bryan Schwartz Law today.

Revisiting Evidentiary Standards in Gender Discrimination Class Actions

On Monday April 2, 2018, the U.S. District Court, Southern District of New York, excluded arbitrary expert testimony and accepted generalized proof of statistical evidence to grant, in part, Plaintiffs’ class certification motion in Chen-Oster, et al. v. Goldman Sachs, 2018 WL 1609267, at *1 (S.D.N.Y. Mar. 30, 2018).

The Class, consisting of approximately 2,300 female current and former Associates and Vice Presidents in the Investment Banking, Investment Management, and Securities Divisions of Goldman Sachs, are challenging the company’s practices of paying women less, giving them worse reviews, and passing them over for promotion. Specifically, Plaintiffs allege that Goldman’s “360 review” performance evaluation process, “forced ranking,” and “cross ruffing” (i.e., cross-checking procedure that involves teams of Goldman partners interviewing each other about potential candidates) are policies and practices that inherently discriminate against women, particularly when those policies and practices are exercised within a “boy’s club” culture, where for example, managers/decision-makers exclude women from events such as barbeques, drinks, and golf outings, hire scantily dressed female escorts to attend holiday parties, etc.

The Court first addressed Goldman Sachs’ attempt to use “experts” in the financial industry to explain custom and practice for evaluation and promotion; however, the Court rejected Goldman’s expert. In United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003), the Second Circuit, interpreting the Daubert expert-certification approach and applying Rule 702, held that expert testimony should be excluded if the witness is not actually applying expert methodology. The Honorable Judge Analisa Torres, writing in Chen-Oster for the District Court, stated “[u]nder Daubert, the Court must exercise its gatekeeping function accordingly, and ‘exclude unreliable expert testimony and junk science from the courtroom.’” Chen-Oster, 2018 WL 1609267, at *8 (citing, inter alia, Almeciga v. Ctr. for Investigative Reporting, Inc., 185 F. Supp. 3d 401, 415 (S.D.N.Y. 2016)). Judge Torres went on to state, “[g]eneral knowledge about the financial services industry (or, indeed, uninformed speculation about Goldman Sachs) could hardly be relevant or reliable on the question of whether a statistician’s methodology is sound or supported.” Chen-Oster, 2018 WL 1609267, at *8. Judge Torres specifically cited SEC v. Tourre, 950 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2013), in which the Court had excluded testimony because the expert’s knowledge and expertise was in “so broad a category as to become meaningless when particularized” to the issues of the case. Judge Torres, was emphatic: “Defendants cannot circumvent the requirements of Rule 702 and Daubert by labeling a statistical expert’s statistical exercises a ‘real world check.’ A wolf in sheep’s clothing is still a wolf.” Chen-Oster, 2018 WL 1609267, at *8.

The Court also, recognizing the realities of large class actions, allowed Plaintiffs to use “generalized proof” of statistical evidence to show causation prima facie that Goldman Sachs’ policies and practices have a disparate impact on women. Relying on Dukes v. Walmart, Goldman Sachs attempted to argue that individual managers applied Goldman’s practices in “highly individualized ways,” such that Plaintiffs could not show that Defendants used a “common mode of exercising discretion.” Id. at *12. But the Court “decline[d] to indulge in Defendants’ semantic somersaults.” Id. Hitting at the root, the District Court made clear that in Dukes the plaintiffs lost because they had not identified a “common job evaluation procedure.” Here, Plaintiffs did. Id.

Defendants also, relying on a disaggregated business unit argument, contended that gender disparities were the result of “anomalies specific to individual Business Units.” Id. at *14. However, the Court rejected this argument, reasoning that “business units” at Goldman Sachs were not fixed. Id. For years, Goldman had transferred business units to different divisions, and moreover, the personnel in those units regularly transferred to other units and/or divisions. Id. Ultimately, the Court found the Class expert’s cross-unit modelling of the correlation between the performance/promotion process and gender to be persuasive, as it controlled for, among other things, division, year, office, education, and experience. Id. at *15. The expert’s report thereby provided significant proof of commonality for the purposes of showing the disparate impact of Goldman Sachs’ practices on women.

The Court also certified the disparate treatment claim, but not based on the Goldman Sachs “boy’s club” culture. Interestingly, the Court applied a “statistics and anecdotal evidence” approach in which it considered internal complaints, external complaints, survey answers, emails, articles, business records, and declarations from class members to ground its disparate treatment analysis. While Courts may not be recognizing the “boy’s club” phenomenon as evidence in and of itself, they are putting the pieces together to show that misogynist attitudes and practices continue to pervade certain workforces and injure women’s careers.

Although Dukes still presents challenges, the Chen-Oster analysis is a boon to class certification in discrimination cases.

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

Celebrating the 50th Anniversary of the Civil Rights Act of 1964

This article, co-authored by Bryan Schwartz Law's principal and legendary civil rights leader Eva Jefferson Paterson, along with Danielle Tizol Fong, is reprinted with the permission of the State Bar of California.

Civil Rights at 50 
The Civil Rights Act of 1964 was enacted fifty years ago this month. The three authors of this article come from different backgrounds, but this historic legislation has been equally momentous in each of our lives.  Although only one of us was born when Plessy v. Ferguson was the law, none of us take civil rights for granted.

The authors are from communities that experienced invidious job discrimination. Our Black, Jewish, Puerto Rican, and Chinese families suffered in America because of immutable characteristics. The women in our families also were held back in their careers because of stereotypes. Title VII of the Act was designed to abolish employment discrimination, and has provided us, along with millions of other Americans, a vehicle for redress and redemption unlike any other.

To understand the significance of Title VII, it is important to remember what America was like before the enactment of the Civil Rights Act, and how Title VII has become both a powerful sword and shield for all Americans.

White Supremacy Governed Pre-1964
Fifty years ago, when President Lyndon Baines Johnson, from the Deep South state of Texas, signed the Civil Rights Act into law, America was a far different place than it is today.

The Civil Rights Act of 1964 was born from our nation’s original sin: white supremacy. Under the cloak of white supremacy, we took land from Native Americans, kidnapped and enslaved Africans, took Mexico from Mexicans, passed the Chinese Exclusion Act, and subjected Japanese-Americans to internment camps during WWII, to name several examples.

Resistance has gone hand in hand with oppression, from slave revolts to present day struggles for racial equality. The chapter of resistance that led to the signing of the Civil Rights Act of 1964 can be traced directly to Alabama.

In Montgomery, Alabama, in December 1955, activist Rosa Parks refused to give up her seat to accommodate white passengers, kicking off a year-long boycott of Montgomery buses led in part by Dr. Martin Luther King, Jr.[1] In December 1956, the Supreme Court ordered the buses desegregated. In 1963, Rev. Fred Shuttlesworth invited Dr. King to help organize a campaign targeting business owners in Birmingham, Alabama. On April 3, 1963, demonstrators began sit-ins at lunch counters protesting inequality. Over the next nine days, police arrested nearly two hundred demonstrators, including Dr. King who, while in custody, famously penned his “Letter from a Birmingham Jail.”

The demonstrators were not deterred. On May 2, 1963, they began the “children’s marches.”  Over several days, Birmingham police attacked and arrested thousands of children who marched peacefully.  Police blasted the children with water cannons that broke ribs, tore the clothes from their backs, and lifted them off their feet. Police dogs attacked the children, requiring three of them to be hospitalized.

After Birmingham, Dr. King barnstormed the country fundraising for the movement. He was shocked to be welcomed at various airports by multi-racial throngs who were both sickened and energized by the images of snarling police dogs and children being assaulted by fire hoses.

Bayard Rustin and A. Phillip Randolph had long been calling for a March on Washington for Jobs and Freedom.  The national reaction to Birmingham provided energy for the March.  One of the key demands of the more than 200,000 people who marched was passage of an omnibus civil rights act, which eventually became the Civil Rights Act of 1964.

During the second week of June 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama, in bold defiance of a federal court order desegregating that institution.  Later that week, President John F. Kennedy delivered his “Civil Rights Announcement”—one of the first times since Abraham Lincoln that an American president addressed race relations as a moral issue. Invoking the tragedy in Birmingham, President Kennedy recognized that “the rights of every man are diminished when the rights of one man are threatened.”[2]  Later that night, hate-mongers gunned down NAACP Field Organizer Medger Evers in his driveway in Jackson, Mississippi, for his temerity in helping blacks register to vote, adding an exclamation point to the President’s address.

In September 1963, white supremacist terrorists bombed the 16th Street Baptist Church in Birmingham, Alabama, blowing up black children in Sunday school.  It was time for the government to take decisive action on equality.

The Kennedys had been reluctant to push for this legislation because they feared alienating racist Southern Democrats, but the President ultimately stood up for one of the most loyal parts of his Democratic coalition. It would take more than a year, the assassination of Kennedy, the ascension of President Johnson and thousands of Americans of all backgrounds, working together, to secure  passage of the Civil Rights Act of 1964. [3]

Title VII Becomes a Sword and Shield Against Discrimination
On June 19, 1964, one year to the day since Kennedy’s bill had first gone to the House, nearly seven months into Johnson’s presidency, and exactly 101 years since the Emancipation Proclamation, the Senate passed the Act with bipartisan support, with a vote of 73-27.  On July 2, 1964, the House finally passed the amended version of the Civil Rights Act by a wide margin among both Republicans and Democrats: 289 to 126.

As originally enacted, Title VII banned employment discrimination on racial, religious, and national origin grounds, and on the basis of sex, providing remedies against private companies.  It further fueled other important laws to broaden equality for all Americans.  A few years later, the Age Discrimination in Employment Act added protections for workers 40 and older.  In 1972, public entities came within both statutes’ reach, and pregnancy discrimination was outlawed in 1978. People with disabilities gained protections in the 1973 Rehabilitation Act and the 1990 Americans with Disabilities Act.  (We are still looking forward to national protections based upon sexual orientation.)
The Civil Rights Act breathed life into a country’s vision that Americans of all backgrounds would live and work together in equality. No one knew what type of growing pains America would experience, nor how many more battles would still need to be waged to ensure that equality became embedded in American society.

As President Kennedy noted in his seminal Civil Rights Announcement, before the Act, black children born in the United States, compared to white children, had one-third the chance of becoming a professional, twice as much chance of being unemployed, and one-seventh as much chance of earning a good living (defined as $10,000 per year or more in 1963).  Blacks being born at the time of the Act generally were expected to earn only half as much as whites.

Dr. King’s leadership of the civil rights protests, the March, and the legislation that grew out of it did not change these disadvantages overnight.  Some of them persist today.  But, they helped lessen inequality and the sense of terror experienced by many people of color and women. After the Act’s passage, people of color and women no longer had to accept biased treatment silently. They could sue someone. They could apply for a job, sit at the lunch counter, and participate equally in society without regard for their skin color, gender, or other now-protected characteristics. There were now laws to protect them if these rights were violated.

The bill as enacted, however, included amendments that slowed the implementation of Title VII’s prohibition on job discrimination and weakened government enforcement. Until 1972, though the Civil Rights Division of the Department of Justice made strides, especially toward integrating police and fire departments, the U.S. Equal Employment Opportunity Commission could not prosecute Title VII suits.[4]  But amendments favoring court rulings over public enforcement actions spurred vigorous action by “private attorneys general.”[5]

Because the Act reduced blatant job discrimination—outlawing vacancies announcing that “No Jews or Blacks Need Apply”—the law evolved mechanisms for proving discrimination by inference. Chief Justice Warren Burger’s court sharpened the edges of the Title VII sword to cut down discrimination, with its unanimous decisions announcing the disparate impact theory in Griggs v. Duke Power[6] and creating the disparate treatment model of proof in McDonnell Douglas v. Green.[7]

The 1971 Griggs decision rejected requirements for a high school diploma and IQ test for power plant positions in North Carolina. Before the Act, the company explicitly relegated blacks to the lowest-paying positions, but after its passage, the company had to eliminate the expressly discriminatory restriction.  The day the Act became effective—July 2, 1965—however, the company escalated its “academic” requirements, where whites registered much higher than blacks.  In the 1960 census, less than 7% of nonwhite males in North Carolina had graduated high school—just over one-third the rate of white males.[8]

The Burger Court in Griggs recognized the long history of inferior education in segregated schools provided to North Carolina blacks, stating, “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.  The touchstone is business necessity.”[9]  After Griggs, if an employment practice operates to exclude protected groups, and cannot be shown to be related to job performance, the practice is prohibited. Unlike a constitutional violation, a prima facie “disparate impact” case under Title VII may be established without any proof of intentional discrimination.[10]  In Griggs, the Court concluded that neither the high school completion requirement nor the general intelligence test “bore a demonstrable relationship to successful performance of the jobs” for which they were used.[11]

The 1973 McDonnell Douglas decision arose from events soon after the Act’s passage.  In 1965, Green—a laid off McDonnell Douglas mechanic and technician— organized as part of a civil rights protest a “stall-in” to have cars block the roads used to access the St. Louis-based aerospace manufacturing plant during morning rush hour.  Police arrested him.  The civil rights protesters also staged a “lock-in” during a picketing demonstration to prevent employees from entering or leaving the company’s offices.  Three weeks later, McDonnell Douglas was hiring mechanics, and Green applied.  The company refused to rehire him because of his role in the “stall-in” and “lock-in.”

McDonnell Douglas built upon Griggs “to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case.”[12]  A prima facie showing under the anti-discrimination statutes, following McDonnell Douglas, includes: articulating a protected basis, such as race or sex; showing that an individual (in the non-selection context) applied for a job vacancy but was not selected (i.e., an adverse action); and that the employer continued to seek applicants with similar qualifications (i.e., others similarly situated, not in the protected class, were treated differently).  The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Assuming the employer articulates one (e.g., in Green’s case participating in disruptive protests,), McDonnell Douglas shifts the burden to the complainant to prove the employer’s asserted reason is false, and further gives a roadmap for doing so.

The Court explained: “While Title VII does not, without more, compel rehiring of [Green], neither does it permit [McDonnell Douglas] to use [Green]’s conduct as a pretext” for prohibited discrimination.[13]  The Court remanded to allow Green to prove pretext with evidence, such as:

“that white employees involved in acts against [the company] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired;” “as to [the company’s] treatment of [Green] during his prior term of employment; the company’s reaction, if any, to [Green’s] legitimate civil rights activities; and [of the company’s] general policy and practice with respect to minority employment. On the latter point, statistics as to [the company’s] employment policy and practice may be helpful to a determination of whether [its] refusal to rehire [Green] in this case conformed to a general pattern of discrimination against blacks.”[14]

As a measure of its impact, Westlaw reflects nearly 137,000 citing references to the McDonnell Douglas decision.

It took a while longer, but in 1986, a unanimous Burger Court, with the first female Justice, Sandra Day O’Connor, participating, fashioned Title VII into a shield against sexual harassment, in Meritor Savings Bank v. Vinson.[15]  The Court in that decision embraced the “hostile working environment” theory.  The Bank’s Vice President constantly propositioned Vinson for sex—and, out of fear of losing her job, she eventually agreed. The Court built its decision on the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex,[16] which outlined two types of sexual harassment—economic quid pro quo, and hostile working environment

The Court noted that “[t]he prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives”[17]—and therefore, little legislative history explained what was intended in the ban on sex discrimination.[18]  The Bank argued that “in prohibiting discrimination with respect to ‘compensation, terms, conditions, or privileges’ of employment, Congress was concerned with . . . ‘tangible loss’ of ‘an economic character,’ not ‘purely psychological aspects of the workplace environment.’”[19] The Supreme Court rejected this view, holding that Title VII was not “limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.”[20]

The conservative Supreme Court majorities since the Burger Court have continued to expand Title VII’s protection from retaliation against those who engage in protected activity by complaining of discrimination. For example, in Burlington N. & Santa Fe Ry. Co. v. White,[21] the Court held that the anti-retaliation provision of the Act proscribes not only employment-related adverse actions, but any action that might deter someone from opposing discrimination.

For almost three decades since the Burger Court’s landmark decisions, advocates have also used Title VII class actions to make greater strides in the war against discrimination.  The 2011 Wal-Mart Stores v. Dukes decision appeared as a major setback, making it more difficult to certify a class action alleging an unwritten policy limiting promotion of women to management roles.[22]

Major anti-discrimination class action victories since Dukes demonstrate that anti-discrimination forces remain committed to the pursuit of equality.  For example, in McReynolds v. Merrill Lynch, black financial advisors for Merrill Lynch struck a major victory against a policy of “teaming” up between brokers, resulting in major disparities between the income of blacks and whites.[23]  As Judge Richard Posner of the Seventh Circuit noted, the teams were effectively “little fraternities,” “and as in fraternities the brokers choose as team members people who are like themselves,” leading white brokers to team with other whites.[24] In 2014, the class will divide a $160 million settlement, and receive injunctive relief designed to end the unlawful policy and increase opportunities for African-American financial advisors and trainees.[25]

Title VII—the Next 50 Years
Just blocks from where slave ships once docked, Rosa Parks boarded that Montgomery, Alabama bus in 1955 across the street from a pre-Civil War sign still hanging, which read, “Slaves and Livestock Sold Here.”  People thought they could go to Africa, kidnap black people and put them in ships, bring them here, and work them without pay, without consequences.  That is the subtext of Title VII of the Civil Rights Act.

In 2014, America is a better place.  We elected the first Black President.  But we are not yet free of discrimination, especially in the workplace.  There is still much work to be done by each of us, especially those of us who practice employment law.

Educational attainment to enable workforce participation is up from 1963, when President Kennedy’s address profiled the crisis in the African-American community.  Now, 80% of blacks have high school diplomas (slightly less than non-blacks), and 19% have at least a bachelor’s degree.[26]  One-third of employed black women have management or professional occupations, and almost two-thirds of black women have “white collar” occupations.[27]

But, blacks graduate four-year colleges 10% less than the national average.[28]  Blacks continue to have the lowest labor force participation rate of any major race or ethnic group.[29] Although African-Americans are more likely than other populations to have government jobs, in 2014, blacks still have an unemployment rate almost double that of the overall population.[30]  Blacks are much less likely than other ethnic groups to own their own businesses.[31]  In 2012, the U.S. Census Bureau reported that blacks were still approximately twice as likely as other races to live in poverty.[32]  Apart from these economic indicators, studies show that many Americans harbor a latent fear that blacks will be as terrible to the rest of the country as the rest of the country was to blacks.[33]

Not only blacks, but women of all races continue to suffer a wage gap, earning 77 cents for each dollar earned by men, more than 50 years after the original implementation of the Equal Pay Act.[34]

Through Title VII, we can advance as much in the next fifty years as we have in the last fifty, if we continue to work together toward equality in a variety of settings.  As corporate counsel, we can fight on the inside—advising employers to take strong actions to combat discrimination in all its forms. We fight externally, as advocates and litigators, by bringing meaningful cases against wrongdoers. No matter where we are in the labor and employment bar, we can make a difference. Remember, Thurgood Marshall was just a law student when he became part of the team that overturned Plessy v. Ferguson.
  
The late Maya Angelou’s poem, “And Still I Rise,” says, “I am the dream and the hope of the slave.” The message rings true not just for blacks, and not just for plaintiffs’ lawyers. Someone in the Middle Passage, or living through the Holocaust, or any of the other great human indignities, never could never have imagined such a diverse group determined to ensure workplace fairness for black people, all people of color, men and women, Jews, Christians, and Muslims, gays and lesbians. We are all the dream and the hope of the slave.

ENDNOTES

[1] The historical notes in this essay are provided with help from David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F. L. Rev. 645 (1994-95) and Todd S. Purdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (Henry Holt and Co. 2014).

[2] President John F. Kennedy, Civil Rights Announcement (June 11, 1963)  (transcript available at: http://www.Pbs.Org/Wgbh/Americanexperience/Features/Primary-Resources/Jfk-Civilrights/).

[3] Two recent books highlighting the critical intervention of the National Council of Churches and other conservative, religious activists in aligning bipartisan support and achieving the Act’s passage are Purdum, supra n.1, and Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (Bloomsbury Press 2014).

[4] The Federal Civil Rights Enforcement Effort—1977, A Report of the United States Commission on Civil Rights (December 1977), p. 225, n.41.

[5] Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 715 (7th Cir. 1969); Jenkins v. United Gas Corp., 400 F.2d 28, 32, 33 n.10 (5th Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968).

[6] 401 U.S. 424 (1971).

[7] 411 U.S. 792 (1973).

[8] U.S. Census Bureau, 1960 Census, Vol. 1, “Characteristics of the Population,” pt. 35, Table 47.

[9] Griggs, 401 U.S. at 431.

[10] Gay v. Waiters' & Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 537 (9th Cir. 1982).

[11] Griggs, 401 U.S. at 431.

[12] McDonnell Douglas, 411 U.S. at 801.

[13] Id. at 804.

[14] Id. at 804-5.

[15] Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).

[16] 29 CFR § 1604.11(a) (1985).

[17] Citing 110 Cong. Rec. 2577–84 (1964).

[18] Meritor, 477 U.S. at 63-4.

[19] Id. at 64.

[20] Id.

[21] 548 U.S. 53, 64 (2006).

[22] 131 S. Ct. 2541 (2011).

[23] 672 F.3d 482 (7th Cir. 2012) cert. denied, 133 S. Ct. 338 (2012).

[24] Id. at 489.

[25] Merrill Class Action Disparate Impact Race Discrimination Class Action Home Page, http://www.merrillclassaction.com/settlementnotice.html (last visited May 6, 2014).

[26] Black Demographics Poverty Page, http://blackdemographics.com/education-2/education/ (last visited May 6, 2014) and U.S Census Bureau, 2009-11 3-Year American Community Survey, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_S0201&prodType=table (last visited May 6, 2014).

[27] Bureau of Labor Statistics, The Editor’s Desk, http://www.bls.gov/opub/ted/2011/ted_20110914.htm (last visited May 6, 2014) and Black Demographics, Employment Page, http://blackdemographics.com/economics/employment/ (last visited May 6, 2014).

[28] Black Demographics, Education Page, http://blackdemographics.com/education-2/education/ (last visited May 6, 2014) and U.S. Census Bureau, 2009-2011 3-Year American Community Survey, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_S0201&prodType=table (last visited May 6, 2014).

[29] Bureau of Labor Statistics, Labor Force Statistics by Race and Ethnicity, 2010,  http://www.bls.gov/cps/cpsrace2010.pdf (last visited May 6, 2014) and Black Demographics, Employment Page, http://blackdemographics.com/economics/employment/ (last visited May 6, 2014).

[30] Black Demographics, Employment Page, http://blackdemographics.com/economics/employment/ (last visited May 6, 2014) and Bureau of Labor Statistics, Charting the Labor Market Data from the Current Population Survey (CPS), http://www.bls.gov/web/empsit/cps_charts.pdf (last visited May 6, 2014).

[31] Black Demographics, Black Owned Businesses Page, http://blackdemographics.com/economics/black-owned-businesses/ (last visited May 6, 2014) and U.S. Census Bureau, Survey of Business Owners, http://www.census.gov/econ/sbo/getsof.html?07black (last visited May 6, 2014).

[32]Black Demographics, Poverty Page, http://blackdemographics.com/households/poverty/ (last visited May 6, 2014) and U.S Census Bureau, 2012 1-Year American Community Survey,    http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_S1703&prodType=table (last visited May 6, 2014).

[33] See, Charles Lawrence, The Id, Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987) and Mahazarin R. Banaji and Anthony G. Greenwald, Blind Spot: Hidden Biases of Good People (Delacorte Press 2013).

[34] National Partnership for Women and Families Study, http://go.nationalpartnership.org/site/DocServer/Wage_Gap_National.pdf?docID=12421 (last visited June 3, 2014), citing  U.S. Census Bureau. (2012). Current Population Survey, Annual Social and Economic (ASEC) Supplement: Table PINC-05. Work Experience in 2011.