CalEmployeeRights

More Schroer Information

     As promised, here are some additional links and some additional information on the ruling in Schroer v. Library of Congress.

     A very full analysis of the opinion and the course the case took on its path to finally reaching a verdict can be found here.  Additionally, this blog entry contains an analysis of the ruling and how Judge James Robertson carefully crafted and supported his opinion in this case.  The full text of the Court's opinion is available here.  The interesting thing to note is how the Court found for Schroer both on the sex stereotypes theory discussed below, and even more importantly found that discrimination on the basis of gender identity is sex discrimination.

     A more general overview can be found in this CNN story or in this story.     

     Finally, if you are interested in this topic or the general topic of how 9th Circuit Courts view the "because of sex" language in Title VII sex stereotyping cases, I recommend reading two cases cited by Schroer in support of her position: Rene v. MGM Grand Hotel, Inc., (9th Cir. 2002) 305 F.3d 1061 and Nichols v. Azteca Rest. Enters., Inc., (9th Cir. 2001) 256 F.3d 864.  Both cases find that the Title VII's "because of sex" language protected homosexual male plaintiff's who were harassed because they failed to fit into gender stereotypes. 

     Based on these prior Ninth Circuit rulings, it's my gut feeling that even prior to the ruling in Schorer, the Ninth Circuit would have found that Title VII protected transgender plaintiffs under sex stereotyping theories as the Sixth Circuit did in Smith v. Salem (6th Cir. 2004) 378 F.3d 566.

    I'm quite sure that the government will appeal the ruling in Schroer so this issue is far from closed, but at least in the meantime, this gives plaintiffs more ammunition under Title VII.

     --Michael Sachs

Court Finds For Plaintiff In Transgender Discrimination Case

     Just in time for your weekend.  The Court in the Schroer v. Liabrary of Congress finally reached a verdict, finding for the plaintiff.  The court ruled that the Library of Congress illegally discriminated against Schroer when she was denied a job after disclosing her intention to transition from male to female. 

     As it had with the Library's previous motion to dismiss, the Court found that discriminating against someone for changing gender is "sex discrimination" under Title VII.  Interestingly, the Court analogized this to religious discrimination, saying, "Imagine that an employee is fired because she converts from Christianity to Judaism.  Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.' No Court would take seriously the notion that 'converts' are not covered by the statute."

     The ACLU's press release is available here.  I'm sure there will be a large amount of coverage on this case, so I'll follow up with some links as they become available and I'll include a discussion of how California has treated cases under Title VII. 

     My previous blog entries about this case are available here and here and here. 

     --Michael Sachs

EEOC can Continue to Investigate after Issuing a "Right-to-Sue" Letter

     In EEOC v. Federal Express Corporation (9th Cir. 2008) ___F.3d_____ (06-16864), the 9th Circuit held that even after the EEOC issues a right to sue letter and the individual commences a civil action, the EEOC retains the right to perform an investigation, including the issuing of subpoenas. 

     Briefly, Tyrone Merritt, a minority employee of FedEx, discovered that a cognitive test FedEx required its employees to pass prior to promotion, had a statistically significant adverse impact on African Americans and Latinos.  Merritt than filed a charge with the EEOC on behalf of himself and other similarly situated African American and Latino employees.  Upon Merritt’s request, the EEOC issued him a right-to-sue letter.  Merritt then joined a class of plaintiffs suing FedEx.

     Despite issuing the right-to-sue letter, the EEOC continued to investigate the matter.  Almost five months after Merritt joined the class action, the EEOC issued and served a subpoena on FedEx requesting information about the computer files it maintains.  FedEx refused to comply and the EEOC filed an action in district court.  FedEx argued that because Merritt had already instigated an action, the EEOC was divested of authority to investigate and issue subpoenas.  The district court disagreed, finding that the EEOC still had jurisdiction to conduct an investigation.  FedEx appealed.

   The 9th Circuit agreed with the district court and found the subpoena enforceable.  Title VII, 42 U.S.C. § 2000e-5(b), grants the EEOC the authority to investigate and remedy complaints of discrimination.  The Court reasoned that while the EEOC usually stops its investigation when it issues a right-to-sue letter, it is not required to, especially when rights of others are involved.  In fact the EEOC’s own polices state that it should ordinarily continue to investigate when the charge covers people other than just the requester. 

   This was the first time this issue had been addressed before the 9th Circuit.  But, the 5th Circuit had previously addressed this issue in the case of EEOC v. Hearst Corp., (5th Circ. 1997) 103 F.3d 462.  In that case, the 5th Circuit ruled that when the requesting party receives a right-to-sue letter and is engaged in a civil action, that charge no longer provides a basis for EEOC investigation. 

   Thus, there is now a conflict between the two circuits, with the 9th Circuit taking the view more beneficial to the EEOC and therefore the employee as well.

     --Michael Sachs

Employment Cert Petitions Before US Supreme Court

The final two employment cases before the Supreme Court on Cert petitions to be decided on January 11, 2008 are James v. Metropolitan Government of Nashville and Progress Energy, Inc. v. Taylor.  James asks who, the judge or the jury, should decide if retaliatory actions are severe enough to violate Title VII, 42 U.S.C. 2000e et seq   Taylor relates to whether or not an employee can retroactively release claims under the Family and Medical Leave Act, 29 USC 2601 et seq.

More after the jump.

Title VII Retaliation Claim Before US Supremes

An interesting Title VII retaliation case is now before the Supreme Court on a cert. petition, to be considered at the Court's conference on January 18.  Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. asks the Court to decide whether Title VII’s protections against retaliation should extend to employees who participated in an internal investigation of sexual harassment, prior to the filing of any EEOC complaints. 

Interestingly, the Solicitor General is taking the employee's side, and urging the Court to accept cert.

The facts are well laid out in the U.S.'s  amicus brief, available here.  In 2002, Defendant began an internal investigation after the legal department learned of several complaints of inappropriate behavior by its new employee relations director, Dr. Gene Hughes.  During its internal investigation, Defendant interviewed Ms. Crawford, a thirty year employee, who recounted numerous instances of inappropriate behavior by Dr. Hughes including sexual comments and sexual touching.  Shortly after this conversation Ms. Crawford was terminated. 

In an unpublished decision the 6th Circuit held that (a) because the company approached Crawford and not the other way around, it did not satisfy the “opposition” requirement of Title VII and (b) because the investigation was not conducted pursuant to an EEOC charge, Crawford did not satisfy the “participation” requirement of Title VII.

There is ample precedent to support the Supreme Court in granting cert and reversing the 6th Circuit ruling.  For example, courts have stated that the  “opposition” requirement is satisfied even where complaints are made informally regardless of whether a complaint was actually filed.  (See e.g. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., (2d Cir. 1992) 957 F.2d 59, 65; Rollins v. State of Fla. Dep’t of Law Enforcement, (11th Cir. 1989) 868 F.2d 397, 400.)  Additionally, as the amicus curiae brief argues, Title VII’s objective is to prevent harm, and a rule which limits “participation” as the 6th Circuit does would leave a gap in Title VII’s protection.  The brief also notes that employer internal investigation programs should provide protection to employees who participate the investigation.  (See e.g. Faragher v. City of Boca Raton, (1998) 524 U.S. 775, 807; Kolstad v. American Dental Ass’n., (1999) 527 U.S. 526, 545-546.)

There seems little doubt that the outcome in California would favor the plaintiff here, as this is an area where FEHA's protections are broader than Title VII's.  FEHA makes it unlawful

“[f]or any employer. . . or person to . . . discriminate against any person because the person opposed any practices forbidden under this part or because the person filed a complaint, testified, or assisted in any proceeding under this part.”

(California Government Code Section, 12940(h)). 

California courts hold that the provisions of FEHA are liberally construed to provide employees broad protection against employment discrimination.  (Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1054).  Therefore, FEHA retaliation claims in California are not necessarily bound by the outcome of this Supreme Court case. 

Discussion of this case may also be found at  SCOTUSblog.

                                                                                --- Michael Sachs