Talk about a treat: in May, I participated in an employment law panel at the 2018 Fifth Circuit Judicial Conference: “No Bursting Bubble: The Unending March of Employment Law Claims—the Whys, Whats, and Whens.” First up, the #MeToo Movement. While a cultural zeitgeist doesn’t always translate into a legal ones, the second needs the first in order to flourish.
So, take a look at the precedent shattering en banc decision of the Ninth Circuit in Rizo v. Yovino, April 9, 2018. Post-Rizo, employers can no longer argue the following in an Equal Pay Act claim: ”Yes, I pay women less than men for the same job but I am blameless because the women came to work for me already making less money than the men.”
Think about that for a minute. The same argument was made in the 1960s and 1970s when employers argued that they would like to promote a black employee but they could not because of a seniority system. Problem was that the system itself was infected with race discrimination. Same here. In a perceptive concurrence, Judge Watford took a slightly different tack and wrote: “If an employer seeks to justify paying women less than men by relying on past pay, it bears the burden of proving that its female employees’ past pay is not tainted by sex discrimination, including discriminatory pay differentials attributable to prevailing market forces … in most instances that will be exceedingly difficult to do.”
And as the cultural zeitgeist is blowing away the lack of transparency of sexual exploitation, so too is a legislative zeitgeist forcing transparency of hidden conduct. Buried in the recent Tax Cuts and Jobs Act (section 13307 to be exact) is the following provision: an employer who settles a claim of sexual harassment can no longer claim a tax deduction for the settlement payments. And two bills pending in Congress would end forced arbitration (in short, resort to a private court, not a public forum). They are H.R. 4570 and S. 2203 “Ending Forced Arbitration of Sexual Harassment Act.” And rounding out this trifecta is action on the state level to outlaw nondisclosure provisions a la Stormy Daniels. New York and Washington State have taken such action, the Governor of Arizona will be presented with a bill to do so, and California is on deck with S. B. 820 “Stand Together Against Non-Disclosure Act.”
I guess Louis Brandeis nailed it in “Other People’s Money and How the Bankers Use It (1914)” when he wrote “publicity is a remedy for social and industrial diseases. Sunlight is said to be the best disinfectant; electric light the most efficient policeman.”
We also covered twin developments under the Americans with Disabilities Act that are expanding their reach. Check out the 2018 decision by the Fifth Circuit in Williams v. Tarrant County. The plaintiff was extremely emotional at work and would cry uncontrollably. Her employer ultimately terminated her. The Fifth Circuit reversed a trial court’s summary judgment on her regarded as disabled claim noting that she satisfied the minimal showing needed: Her employer believed she had an emotional impairment and allegedly took an adverse employment action against her because of the belief. That’s all that is needed.
And on a claim that has not yet made it to Texas but is on its way: Protection for temporary medical conditions. Read over Valenzuela v. Bill Alexander Ford Lincoln Mercury Inc., (D. Ariz. 2017) in which summary judgment was denied an employer in an ADA claim in which the plaintiff alleged that he went blind for a month and was later terminated because he did. The court rejected that argument that ADA protection was lacking because the condition was transitory. The court wrote that all that matters is whether a temporary condition existed (it did) and that it substantially effected a major life function (you bet) and that an adverse employment action was taken as a result (the jury will get to decide). The genesis of this ADA theory is Summers v. Altarum Inst. Corp., 740 F. 3d 325 (4th Cir. 2014).
Finally, we are on the cusp of Title VII protecting sexual orientation and transgender status. How can this be you ask? Surely, Congress never intended in 1964 to extend the umbrella of protection that far. And you would be right. Yet as Justice Scalia wrote in the Oncale case extending Title VII protections to same sex harassment: “Statutory provisions 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 we are governed. This passage begat Zarda v. Altitude Express, Inc., 883 F. 3d 100 (Second Cir. 2018)( en banc) (“because sexual orientation is a function of sex, and is comparable to sexual harassment (and) gender stereotyping and other evils long recognized as violating Title VII, the statute must prohibit it.”
And EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F. 3d 560 (Sixth Cir. 2018) (if converting from Christianity to Buddhism is protected from discrimination by Title VII because it is an act taken “because” of religion than surely changing from male to female (or its reverse) is protected because it is an act taken “because” of sex).
What do all three of these developments share? I leave you with Karl Marx (he did get a few things right): ”Every emancipation is restoration of the human world and of human relationships to man himself.”