Will SCOTUS Take Another Crack at ADEA Preclusion of s1983 Claim?

The SCOTUSblog Petition of the Day is Hildebrand v. Allegheny County out of my beloved home circuit (aka the 3d Cir.). The issue presented is:

Does the Age Discrimination in Employment Act, which forbids age-based discrimination against state and local government employees, preclude those employees from bringing a section 1983 action to redress age discrimination that violates the Equal Protection Clause?

If that sounds familiar, it's because that is essentially the same issue presented in Madigan v. Levin. The Supreme Court granted certiorari in that case, the parties briefed it, and the Court even heard oral arguments . . . but, wah wah . . . the Court dismissed Madigan v. Levin as improvidently granted.

The Court obviously has an interest in this issue, so the prospects for a cert grant in Hildebrand seem pretty strong. The Court will consider the case at its February 20, 2015 conference.

Surprise! Justice Alito issues one-man employment law opinion

Well, I wasn't expecting a SCOTUS opinion this morning. But, surprise! - we got one. First, some background....

Approximately one year ago, the Sixth Circuit held that an employee suffered an adverse employment action in Deleon v. Kalamazoo Cnty. Rd. Comm'n. The case was a mix of Equal Protection Clause, Title VII, and ADEA claims. What was the adverse employment action? Well, the employer involuntarily transferred the employee to . . . (here's where things get weird) . . . a position that he had previously applied for just a few months earlier, which was a lateral transfer and the employee himself viewed as "possessing better potential for career advancement."

The lone dissenting judge had a different (and colorful) perspective:

Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

We'll put you down as a "strong disagree" your honor. Maybe Ohio employment lawyer, Jon Hyman, saw it differently . . . . nope: "There is so much wrong with this opinion that I don’t know where to start."

That brings us to today. The Supreme Court (aka SCOTUS) issued an order denying certiorari in a bajillion cases (rough estimate). But alllll the way down at the bottom we have a surprise opinion from Justice Alito in Deleon:

JUSTICE ALITO, dissenting from denial of certiorari. 

Certiorari is appropriate when “a United States court of appeals . . . has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power.” Supreme Court Rule 10(a). The decision of the Sixth Circuit in this case—holding that respondent suffered an adverse employment action when his employer transferred him to a position for which he had applied—qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is warranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undisturbed, will stand as a binding precedent within the Sixth Circuit. I would grant review and correct the Sixth Circuit’s obvious error . . . . 

The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based. I would grant the petition for certiorari and summarily reverse.

Alas, Justice Alito was the only one.

Another One Bites the Dust . . . Texas SSM Ban Struck Down

I guess I feel some kind of obligation to keep reporting these decisions. Earlier today, a federal judge in Texas struck down the state's ban on same-sex marriage as unconstitutional. You can read the decision here. And, of course, the obligatory link explaining why this matters to Pennsylvania employers here.

SCOTUS Dismisses Constitutional Age Discrimination Case

Oh, Madigan v. Levin, we hardly knew ye. I blogged about this case when cert was granted, it was just my Case of the Week two weeks ago, and I briefly addressed it again in my annual SCOTUS preview. The Court was supposed to address whether a public employee had to comply with the administrative exhaustion requirements of the ADEA, or if the employee could instead just file an age discrimination claim under the Equal Protection Clause of the Constitution and skip that EEOC (or other agency) stuff.

Today, the Court issued this order: "The writ of certiorari is dismissed as improvidently granted." Or "DIG'd" as the kids say. Hardly a surprise, SCOTUSblog suggested this might be the outcome following oral arguments. Happy trails Madigan v. Levin.

SCOTUS Returns on Monday with Age Discrimination Case - COTW #163

It takes more than a federal government shutdown to stop the Supreme Court! They granted certiorari in eight cases on Monday, including two labor and employment law issues. I may jump on them next week - in the meantime check out Ross Runkel's blog for details on the issues in the two cases:

1. Constitutionality of compelled payments to labor union; and
2. FICA Tax on Severance Payments to Involuntarily Terminated Employees.

The Court has announced that it will remain open and continue to hear oral arguments until October 11 (at which point they'll reassess the situation if need be).

The first day of oral arguments features an interesting confluence of age discrimination statutory law and constitutional law. When plaintiffs file age discrimination claims under the ADEA they must "exhaust their administrative remedies" - i.e. they must go through the EEOC process before running to court.

However, public employees can file suit under the United States Constitution (and a statute that allows lawsuits for infringement of constitutional rights, 42 USC s1983). Specifically, the Fourteenth Amendment's Equal Protection Clause prohibits certain types of discrimination. Can 14th Am plaintiffs just run straight to court without jumping through those administrative hurdles?

SCOTUS will hopefully answer that question (there's another qualified immunity issue at play here too). The case is Madigan v. Levin, you can check out the SCOTUSblog page here, and my initial post when the Supreme Court granted cert here.

SCOTUS Grants Cert. in Constitutional Age Discrimination Case

This morning, the Supreme Court agreed to hear Madigan v. Levin (SCOTUSBlog entry here). Per the Petition for Certiorari, the question presented is:

[Whether] state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

In other words, can a state or local employee skip all of that EEOC stuff (required by the ADEA) and just go straight to court with his or her age discrimination claim (under the Constitution)?

The Constitution includes the Equal Protection clause, which (via § 1983) could allow an employee to go straight to court with a discrimination claim against a state actor. However, Congress has set forth a thorough framework to resolve age discrimination claims under the ADEA. That framework includes administrative requirements, like filing an EEOC charge. The employer argues that the ADEA displaces the constitutional claim.

There's a circuit split on the issue (and "muddled" case law in my home 3rd Circuit - see p. 11 of Petition), so hopefully the Court will resolve the issue. There's also a side issue about whether the defendant in this case has qualified immunity.

First Amendment Right to Condom-less Porn? - COTW #118

Los Angeles voters recently passed the Safer Sex in the Adult Film Industry Act, which mandates condom use on adult film sets. Porn rights as the employment law case of the week!? Hey, porn stars make a living off of this, so I say it's fair game!

I had constitutional concerns the moment I heard about this law, and apparently I'm not the only one. Antonio Haynes has some nice analysis over at Justia's Verdict: Condoms and Content-Based Discrimination.

Government restrictions on the content of films are generally frowned upon. I know, I know - people will argue that this isn't about restricting the artistic expression of porn producers, it's about public health. There are problems with that argument though. As Haynes points out:

Since 2004, more than 350,000 sex scenes have been shot without condoms, and there has not been a single instance of HIV transmission on set . . . . But even if we assume that STD transmission on adult film sets is an "actual problem," it is unclear whether the Act is narrowly tailored. Narrow tailoring requires that no more speech that is necessary be curtailed. In this instance, the Act makes subject to civil and criminal penalties all sexual speech in which a condom is not used. A required testing regime, much like the one the industry has imposed on itself, would achieve the same ends without curtailing any speech.

There also might be an equal protection problem. After all, does anybody doubt that risky sexual encounters are taking place all over Los Angeles that have nothing to do with the porn industry? If this law isn't about restricting the speech rights of pornmakers, then why doesn't it apply to people having unprotected sex off-camera? In fact, as Haynes notes, many off-camera encounters are even riskier than filming porn because people rarely demand STD test results prior to sexual encounters; whereas, demanding results is standard in the porn industry.

I am not aware of any actual lawsuits yet, but I suspect they're coming. I also anticipate that they will be successful, but only time will tell.

Too Smart to Hire? - COTW #73

Ordinarily, I try to pick new cases for the employment law Case of the Week. But, as the old saying (or advertising slogan) goes... if you haven't seen it yet, it's new to you. Thus the Case of the Week is Jordan v. City of New London, 225 F.3d 645 (2d Cir. 2000).

Robert Jordan, then 46, applied to be a police officer with New London. He was told that he "didn't fit the profile" and suspected age discrimination. Nope. In fact:

The city responded that it removed Jordan from consideration because he scored a 33 on the WPT (Wonderlic Personnel Test and Scholastic Level Exam), and that to prevent frequent job turnover caused by hiring overqualified applicants the city only interviewed candidates who scored between 20 and 27.

In short, Jordan was rejected because he was too smart!

Jordan filed a lawsuit, alleging that the city had violated his fourteenth amendment equal protection rights. The Second Circuit rejected his claim, concluding that:

[E]ven absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed-on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC-that there was such a connection.

Welcome to "rational basis" review, Mr. Jordan! No evidence that the policy is actually "rational" required (heck, cases have even held that the rationale doesn't even need to be the actual "basis"). Thus, the Second Circuit affirmed the lower court's grant of summary judgment in favor of the city.

Sidenote: New London is also the city that took Susette Kelo's home for the "public use" of building a private conference center (which was never actually built, if I recall). The Supreme Court infamously allowed the taking in Kelo v. New London. Yes folks, "rational basis" need not be "rational" or the "basis" - and "public use" can mean "private conference center." The law is funny sometimes.

HT: Discover Magazine - Too Smart to be a Good Cop.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Transsexual Employee Protected by Constitution (and Title VII by Implication?) - COTW #70

In Glenn v. Brumby, the Eleventh Circuit analyzed whether the Equal Protection Clause of the Fourteenth Amendment of the Constitution prohibits public employer discrimination against transsexuals. But, it's also a big case for private employers.

The facts are pretty straightforward, which allows the Court to focus almost entirely on the transsexual discrimination issue:

[Defendant] testified at his deposition that he fired [Plaintiff] because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that [Plaintiff] would appear wearing women’s clothing. [Defendant] testified that his decision to dismiss [Plaintiff] was based on his perception of [Plaintiff] as "a man dressed as a woman and made up as a woman," and [Defendant] admitted that his decision to fire [Plaintiff] was based on "the sheer fact of the transition."

Are you there God? It's me Phil. Please send me a plaintiff terminated by a defendant who is this discriminatory and honest.

The Court did not address this as class-based discrimination against transsexuals though. Instead, the Court analyzed the equal protection claim as a gender-stereotyping, sex-based discrimination claim. Why does that matter? Two important reasons:

1. Sex- and gender- based discrimination receive a heightened standard of review, "intermediate scrutiny" (I'm not aware of case law on this point, but I'm guessing transsexual-based discrimination would warrant only rational basis review); and


2. If discrimination against transsexuals is sex-based discrimination... and Title VII prohibits sex-based discrimination by private employers... the unavoidable conclusion is that Title VII prohibits discrimination against transsexuals by private employers too.

The Court concluded that "a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

The idea that discrimination against transsexuals is actually sex-based discrimination is hardly new. The Court provides a plethora of case law supporting the point. Although this was a public employer case under the Constitution, private employers should recognize the implications.

HT: Russ Runkel via Twitter:

Transsexualism is a protected classification under the federal Equal Protection Clause tinyurl.com/c6zbhtj
— Ross Runkel (@RossRunkel) December6, 2011

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Update: Same-Sex Partners Benefits Case Settles

You may recall a Case of the Week from back in May: Same Sex Partner Benefits and the Constitution. In short, two women filed suit against my hometown school district (State College Area School District) alleging unconstitutional sexual orientation discrimination. The school did not provide certain benefits to same-sex partners but did provide them to unmarried opposite-sex "domestic partners."

I previously blogged about a partial settlement in which the school district would provide health insurance benefits to same-sex couples and add sexual orientation and gender identity to its anti-discrimination policies. Now, news of a full settlement from StateCollege.com:

Board members voted 7-0 to approve a negotiated settlement payment of $42,500 -- for damages -- to employee Kerry Wiessmann and partner Beth G. Resko . . . . The vote also authorized a payment of $47,000 -- through the district's insurance carrier -- to Wiessmann and Resko's attorneys, including those with the American Civil Liberties Union.

The school district didn't put up much of a fight - but it didn't sound like they had much of a defense either.

Case closed... unless there are other same-sex couples who meet the school district's requirements for "domestic partners." Seems like they would have a pretty easy time getting a settlement deal.

HT: McQuaide Blasko legal secretary, Lori Haberstroh via email.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

The Right to Make and Sell Caskets

I have an offbeat employment law slash Constitutional law post today. In the United States, individuals generally have a right to engage in a lawful occupation of their choosing - what Thomas Jefferson might call the "pursuit of happiness" - what parents describe to their children as "you can be whatever you want when you grow up." Of course, this is subject to some regulation in modern America, including occupational licensing.

Now, let's say a group of Benedictine monks choose to make and sell caskets as part of their ministry and to make money for their monastery. And, let's assume they're located in Louisiana. Bad news for them: they're not licensed funeral directors and their Abbey is not a licensed funeral establishment. Under Louisiana law, they are therefore prohibited from making and selling caskets.

Enter the Constitution. While it does not expressly include a "right to sell caskets," it does include a right to due process and equal protection under the law. These clauses generally prohibit state infringements of liberty absent a legitimate government interest. Under the lowest level of scrutiny, courts only require a "rational basis" for most "economic liberty" cases.

So, what government interest is served by forcing monks to obtain funeral director licenses before making and selling wooden boxes in which to bury people? Well, a Louisiana federal court couldn't find one:

There is no rational basis for the State of Louisiana to require persons who seek to enter into the retailing of caskets to undergo the training and expense necessary to comply with these rules. Simply put there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets. The license has no bearing on the manufacturing and sale of coffins. It appears that the sole reason for these laws is the economic protection of the funeral industry which reason the Court has previously found not to be a valid government interest standing alone to provide a constitutionally valid reason for these provisions.

The licensing restriction was therefore held unconstitutional. For now, the monks have vindicated their right to make and sell caskets.

Citation: St. Joseph Abbey v. Castille, No. 10-2717 (E.D. La. July 21, 2011).

Image: St. Benedict public domain.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

UPDATE: Same Sex Partner Benefits Partial Settlement

Things move pretty fast around here... you may remember back in May, a Case of the Week in which same-sex domestic partners sued the State College, PA school district because of alleged discrimination. Specifically, the school had a policy which provided benefits for spouses of employees, and domestic partners of employees who provided certain documentation (joint credit accounts, joint home ownership, mutually beneficial wills, etc.). But the policy expressly excluded domestic partners who were the same gender.

The school district initially said the policy was part of a collective bargaining agreement and that they would consider a change if it was brought to the bargaining table. Now, not even two months after the Complaint was filed, the Centre Daily Times reports a partial settlement:

The ACLU of Pennsylvania announced that a vote by the State College Area School Board to extend health insurance benefits to same-sex partners of its employees will partially settle a discrimination lawsuit brought against the school district by the ACLU . . . . [T]he district also will add "sexual orientation" and "gender identity" to anti-discrimination policies.

This doesn't completely resolve the conflict, however, as the parties are still negotiating outstanding damages claims.

Because the policy expressly discriminated against same sex couples, I think it would have been a tough case for the school district to litigate. Looks like we'll never know. The ACLU was involved here, so I wonder if they have similar cases against other school districts. Drop a comment if you know of any. Thanks!

Image: That's a picture of a State College sunset as viewed from Mount Nittany. It's symbolic of the sun setting on this lawsuit (or just the closest thing to a good picture of downtown State College that I could find on my phone's photos...).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Women Can't be Bartenders - SCOTUS Flashback

Can a state ban women from bartending except for the wives or daughters of male owners? You bet!... if it's 1948. The Supreme Court upheld just such a law, from Michigan, in Goesaert v. Cleary, 335 U.S. 464 (1948). I came across this case while reading Rehabilitating Lochner by Prof. David Bernstein (pictured). Sidenote: Bernstein was my Con Law II - Individual Rights professor at George Mason. It's an interesting book about the infamous liberty of contract case, Lochner v. New York, 198 U.S. 45 (1905), and its impact on subsequent civil rights issues.

But back to these female bartenders. The Court's analysis reflects a different time, and begins with the premise that "Michigan could, beyond question, forbid all women from working behind the bar." Although the Court recognized "vast changes in the social and legal position of women," Justice Frankfurter wrote that "[t]he Constitution does not require [state] legislatures to reflect . . . shifting social standards." The analysis was therefore limited to whether the Michigan law "play[ed] favorites among women without rhyme or reasons."

The Court found that the distinction between all women, and wives and daughters of owners, was grounded in sound reason:

Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition.

And, "oversight [by a] husband or father minimizes hazards that may confront a barmaid without such protecting oversight." Thus, the Michigan law was a-ok.

Prof. Bernstein notes that 26 states prohibited women from working as bartenders by 1960. Such laws became illegal discrimination following enactment of Title VII and a "series of Supreme Court cases in the early 1970s." I can't help but think of the movie Coyote Ugly as a great contrast to the "protective" bartending laws of the mid-20th century.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

UPDATE: School Responds to Same Sex Partner Benefits Discrimination Claim

In last week's Case of the Week, I blogged about a lawsuit filed against the State College Area School District alleging unconstitutional discrimination against same sex domestic partners. In short, the school provides certain benefits to unmarried opposite-sex domestic partners, but expressly excludes same-sex partners. The Centre Daily Times reports that the school district has issued a response.

In an email, a spokesperson explains that the "policy" is a result of "collective bargaining between the board and the State College Area Educational Association." Accordingly, the district cannot unilaterally change this term for individual members. If the association brings it to the bargaining table, the district will consider it.

Same Sex Partner Benefits and the Constitution - COTW #41

A close-to-home employment law Case of the Week, here in State College, PA: Wiessman v. State College Area School District (SCASD)(complaint). Two women filed the lawsuit on Tuesday (with a little help from the ACLU and local counsel), alleging that the school district was violating the U.S. and Pennsylvania Constitutions by not giving medical benefits to its employees' same-sex partners. One plaintiff is a school district employee, and the other is her partner.

One thing that I find particularly interesting about this case, is that (according to the Complaint) the school district's policy expressly discriminates on the basis of sexual orientation (and arguably gender). It provides benefits to "domestic partners" who can provide certain documentation. For example, the plaintiffs would qualify because they own a home together, have joint credit accounts, executed mutually beneficial wills, etc. Except the plaintiffs don't qualify because the policy expressly provides that "Domestic partners cannot be the same gender."

Thus, the District can't argue that it is depending on state marriage laws (same-sex marriage is not allowed in Pennsylvania currently). To the extent it attempts to justify the policy on the basis of fraud prevention, the extensive documentation requirements at least weaken that argument. It will be interesting to see the District's Answer and arguments.

The Plaintiffs raise four claims:

1. Sexual orientation discrimination in violation of the U.S. Constitution's Equal Protection Clause (14th Amendment);
2. Sex discrimination in violation of the U.S. Constitution's Equal Protection Clause (14th Amendment);
3. Violation of the Pennsylvania Constitution's Equal Rights Amendment (Art. I, s. 28, commonly called "PERA"); and
4. Violation of the right to intimate association (U.S. Const. 1st Amendment, incorporated via the 14th Amendment).

It will be interesting to see how this thing plays out...

Side-note: I attended SCASD schools for grades 1-12 and my child (coming in August, if you haven't heard) will likely attend as well. SCASD was also involved in a noteworthy 1st Amendment case from the Third Circuit, with an opinion authored by now-Justice Alito: Saxe v. SCASD.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Ricci, Scalia, Equal Protection and the Future of Disparate Impact

Earlier this week, the Supreme Court issued its opinion in Ricci v. DeStefano, the case in which white New Haven firefighters alleged "reverse discrimination." I covered the Ricci majority opinion on Tuesday. Today I will address Scalia's concurring opinion.

Scalia agreed with the majority opinion "in full" but wrote separately to opine on an issue left unresolved by the majority, the Constitution's equal protection mandate. After the majority decided that the City lost under the Court's Title VII analysis, there was no reason to address the equal protection issue. The Court avoids Constitutional issues whenever possible as they did here.

The Conflict

Justice Scalia framed the unresolved Constitutional question as:

"Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?"

The underlying inherent conflict is similar to that presented by competing provisions of Title VII: If equal treatment yields different outcomes, requiring an equal outcome necessitates unequal treatment.

The Opinion

Scalia all but tells us the disparate impact provisions of Title VII violate the equal protection clause calling them "a racial thumb on the scales." He writes that policies designed to produce equal results are no different from an absolute quota, "Intentional discrimination is still occurring, just one step up the chain."And he reminds us, "The Government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class." (quoting Miller v. Johnson, 515 U.S. 900 (1995)).

Scalia ends, however, by offering an olive branch. Perhaps disparate impact can be used as an evidentiary tool to "smoke out" discriminatory treatment. He then closes with the line:

"But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them."

Thus concludes Scalia's brief (3-page) but extremely important opinion.

What it Means

I once took a seminar course from Justice Scalia and I can assure you he is a crafty guy who uses his opinions to plant seeds for future cases. This opinion was written for a reason and it's not just that Scalia loves to tell us his thoughts on the Constitution (though I can assure you he does!). I cannot read his mind but I have a few thoughts on why he may have issued this opinion.

First, I think he's telling one of the other Justices (if I had to guess, Kennedy), "you can't run forever!" I suspect there were a few votes to knock down disparate impact as unconstitutional but the Title VII-based decision allowed the more tentative Justice(s) to duck the issue... for now.

Second, I think Scalia's planting the seed in the public's mind. When that "evil day" comes, get ready for disparate impact to drop. Start preparing from the day they grant certiorari.

Finally, I think it's a warning to Congress. As my previous Ricci post explained, the majority took a middle of the road approach. Employers can still engage in disparate treatment in order to obtain equal results... but only where there is a "strong basis in evidence" that the employer faces disparate impact liability.

In the field of employment law, Congress has repeatedly denounced Supreme Court decisions by enacting legislation to essentially "reverse" the Court. Recent examples include the Ledbetter Act and the ADA Amendments Act of 2008. I think Scalia is trying to say (I emphasize that this is my take and not his words):

"Look, we compromised and let disparate impact prevail in very limited circumstances. If you try to cram this down our throats by enacting legislation to expand those circumstances... we still have the nuclear option: the equal protection clause. Once the disparate impact provision is ruled unconstitutional, the game's over. You can't legislate around that."

Maybe I'm reading too much into it. Maybe he just meant to say, "boy, I guess we're gonna have to do that equal protection analysis someday." I think, however, there's more to his opinion than that.