Monday, October 14, 2019

Teacher sues school after getting fired for using wrong gender pronouns

Fascinating case out of Virginia - from WaPo, A Virginia teacher was fired for refusing to use a trans student’s pronouns. Now, he’s suing his school district - and, props to WaPo for including a copy of the Complaint.

From the story:
Citing his religious beliefs, [the teacher] promised to use only the student’s name and avoid pronouns entirely . . . .  
Then, on Oct. 31, 2018, his second-year French students wore virtual-reality goggles and walked around the classroom. The transgender student seemed about to crash when the teacher told another student to help. “Don’t let her hit the wall,” Vlaming shouted. 
The student withdrew from the class, and the school board fired the teacher. In his Complaint, the teacher describes his views as:
But this case is about far more than pronouns. It is about whether the government may force Mr. Warning to express ideas about human nature, unrelated to the school's curriculum, that he believes are false. If he were to comply with Defendants' demands, he would be forced to communicate that gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans, that our sex can change, and that a woman who identifies as a man really is a man. But if he refers to students based on their biological sex (as he has, with reasonable accommodations), he communicates the views he actually believes—that our sex shapes who we are as humans, that this sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires.
Obviously, teachers have certain rights to speech and religious beliefs. The teacher claims that using only transgender students' proper names was a reasonable accommodation to which he was entitled. Religious accommodations must not, however, impose an undue hardship on the employer.

Here, the school has certain policy interests, such as providing a welcoming and enriching environment for its students. It also may have legal obligations to address and correct a hostile education environment based on a student's gender identity (SCOTUS is wrestling with the scope of gender identity protection under Title VII's employment protections as I type).

The teacher filed his lawsuit in Virginia state court under state law and constitutional claims. It will be interesting to see how this case plays out - but I suspect these issues will spawn more and more litigation over the next few years until we get some clearer lines drawn.

Tuesday, October 8, 2019

Today is the day! SCOTUS args on sexual orientation and gender identity discrimination

SCOTUS is back for a new season, and oral arguments kicked off yesterday. We've got a great double feature lined up for today:

Bostock v. Clayton County, Georgia (SCOTUSblog page) and Altitude Express Inc. v. Zarda (SCOTUSblog page):
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (SCOTUSblog page):
Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Asking a court that leans heavy on textualism and originalism to re-imagine a 1964 sex discrimination statute to cover sexual orientation and gender identity might be a tall order. That said, the Court has issued a string of gay rights-friendly opinions lately, ranging from Lawrence v. Texas in 2003 to Obergefell v. Hodges in 2015. So, we'll see.

Do you want my entirely useless prediction? Of course you do. Chief Justice Roberts cobbles together a compromise position that reaffirms that sex stereotyping violates Title VII, but that Title VII does not cover sexual orientation per se. The four-justice liberal bloc concurs but writes separately to note that they would hold that Title VII does cover sexual orientation per se. In Harris Funeral Home, the Court holds that Title VII covers gender identity per se.

Don't take that to Vegas.

Finally, two reminders:

  • These cases only matter because Congress has not amended Title VII to expressly cover (or not) sexual orientation or gender identity - Congress can moot these cases at any time and effectively reverse them after the fact; and
  • Many state and local laws prohibit sexual orientation and gender identity discrimination - these cases do not change that. 

Wednesday, September 25, 2019

NLRB proposes new rule regarding university students

Some federal agency issues just seem to swing back and forth like a pendulum - like, whether college students are employees who can unionize under the NLRA. A brief history:
Not official use.
  • NLRB’s 2000 NYU decision: Certain graduate students are “employees”; 
  • NLRB’s 2004 Brown University decision: college and university students are “primarily students” and not employees; 
Well, guess what? The Trump NLRB is swinging the pendulum back the other way. Per the announcement, "[T]he proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies." Such services specifically include teaching and research. You can read the Notice of Proposed Rulemaking (NPRM) here.

Comments are due by November 22nd. 

Tuesday, September 24, 2019

It's official - New DOL overtime rule is here!

The U.S. Department of Labor Wage & Hour Division published the final rule for the new overtime regulations today. Some links:
Not official use.
Some highlights:
  • raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker); 
  • raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year; and
  • allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices.
Effective date: January 1, 2020. 

Thursday, September 12, 2019

Third Circuit on the Federal Arbitration Act and Uber drivers

Do you love the arcane scope language of the Federal Arbitration Act (FAA)? Do you also love the convoluted mess of employee-independent contractor classification analysis? Who doesn't!? The Third Circuit just issued a precedential opinion in Singh v. Uber Technologies, Inc.

The plaintiff brought this putative class action on behalf of himself and other similarly situated Uber drivers in New Jersey. He claimed that Uber misclassified them as independent contractors, and that Uber owes them money for overtime and business expenses that they would be entitled to if they had been properly classified as employees. Classification of Uber drivers (and "gig" workers generally) is a hot topic these days.

But wait . . . before we get to that hot topic . . . the plaintiff driver had an arbitration agreement. So, Uber moved to compel arbitration. But double wait . . . the FAA excludes transportation workers that are engaged in interstate commerce. So, can Uber compel arbitration or not?

Standard of Review
Not official use. 

The first interesting issue in this case is the standard of review on a motion to compel arbitration. The Supreme Court recently held in New Prime Inc. v. Oliveira that the Court decides whether the FAA exemption applies (also relevant to this case, SCOTUS held that the exemption applies to both employees and independent contractors). But what standard of review applies? The Court has some options, including the motion to dismiss
standard (a low bar) and the summary judgment standard (a relatively high bar). Orrr, how about a hybrid?
[T]he motion to dismiss standard applies if the complaint and incorporated documents provide a sufficient factual basis for deciding the issue. But where those documents do not, or the plaintiff responds to the motion with additional facts that place the issue in dispute, the parties should be entitled to discovery on the question of arbitrability before a court entertains further briefing with an application of the summary judgment standard to follow.
(internal citations and quotations omitted).

Does the FAA exemption apply to Uber drivers? 

Here, the Third Circuit identified two issues regarding the coverage of the FAA:
(1) if § 1 [the exemption] only applies to transportation workers who transport goods, or also those who transport passengers, and  
(2) whether Singh belongs to a class of workers that are engaged in interstate commerce.
Cutting to the chase - the Third Circuit held that the FAA exemption applies to transportation workers regardless of whether they are transporting goods or people. Therefore, it would apply to Uber drivers "engaged in interstate commerce."

The Court's analysis stops there. The Court remanded the case back to the district court to allow the parties to engage in discovery to explore the issue of whether the driver was engaged in interstate commerce.