Holding the Line on Gender Stereotyping

Is what a divided panel of the 6th Circuit tried to do today as it affirms a district court's dismissal on the pleadings of a complaint brought by an individual who argued that taunts and harassment based on his perceived homosexual status was actionable under the 6th Circuit's developing body of law prohibiting gender stereotyping. See my earlier post here. Vickers v. Fairfield Medical Center (6th Cir. 7/19/06) [pdf].

Playing out the end game of Vickers' proposed theory, the Court wrote:

Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.

In fact, the Court concluded that was the intent of the 71 page complaint.

The dissent was from a district judge sitting by designation, so it will be interesting to see if there are enough votes on the Court to give this case a broader hearing. My guess -- no.

Update: Having hit the publish button prematurely, I was remiss in not giving a hat tip to Howard Bashman at How Appealing for the first mention of the court's decision in Vickers and also two links to stories from the Gay People's Chronicle which have in depth coverage about the case and allegations, both when it was originally filed here (3rd story down) and when it was argued on appeal here. One fact which I learned from the 2nd article, the attorney who argued the case for Vickers, Randi A. Barnabee, also represented Jimmy Smith in the initial 6th Circuit case which first extended protection to transgendered individuals, and is transgendered herself.

No Appeal of Conditional Certification of FLSA Class

At least not in two circuits. Today, the 6th Circuit joins the 5th in holding that it has no jurisdiction to consider an appeal of a district court's order conditionally certifying a wage and hour class action and authorizing notice to be mailed to potential class members. According to the Court:

The correct inquiry examines whether Wal-Mart may now appeal the court’s conditional conclusion that the 1,200 ASMs, or however many choose to opt into the suit, are similarly situated for the purposes of § 216(b). When viewed through the appropriate lens, the district court’s order clearly fails to satisfy the Cohen test. The order describes itself as conditional and temporary, and there is no reason our court could not, following an appeal from final judgment, determine that part or all of the plaintiff group was improperly deemed to be similarly situated and therefore improperly notified and included by opt-in. We see no obstacle to our court’s later review of this issue.

Comer v. Wal-Mart Stores, Inc. (6th Cir. 7/19/06) [pdf]. The Court admitted that there would be no way to "de-notice" the 1,200 assistant store managers who would now be invited to join the lawsuit, but that practical impact was not enough to provide jurisdiction.

As I have mentioned many times in this blog, federal courts jealously guard their role as courts of limited jurisdiction. As a philosophical matter that is sound -- few things are more dangerous than unchecked power. Still, I think reviewing this type of decision makes a lot of sense. The solution is not for courts to stretch to find jurisdiction where it does not exist, but for Congress to give them the power; unfortunately, that is not likely to happen.

Positive Discrimination - An Oxymoron?

More accurately it semes to be a debate heating up in the UK where advocates are pushing for changes that would allow the hiring of "ethnic minorities" because of their lack of representation in certain jobs. According to the story, Positive race discrimination row: The end justifies the mean:

The spectre of positive discrimination being allowed in the UK has moved a step closer, with the head of an influential new government advisory body calling for changes to the law.

Since I don't know the history of what we called affirmative action here, I don't know whether the UK is years ahead or behind this argument in America. Certainly, we have been down this road before and although there is increased attention to the importance of diversity I don't see much stomach for recognition of legalized discrimination to accomplish that goal.

Fighting Over 15 - 7th Circuit Adds Another Wrinkle

Any time a bright line exists between coverage or not, there will be fights as to how to determine the line. Wading into one such fight, the 7th Circuit today holds that two individuals -- even though given unfettered reign by the sole proprietor to run her restaurant-- were employees for purpose of determining the 15 needed for coverage under Title VII. Smith v. Castaways Family Diner (7th Cir. 7/18/06) [pdf].

Although the Supreme Court had focused on that issue in Clackamas Gastroenterology Assocs.
v. Wells, 538 U.S. 440, 123 S. Ct. 1673 (2003), Judge Rovner focused on an issue not mentioned in Clackamas, the source of the two individuals' power. Unlike Clackamas, where the physicians whose status in question were also shareholders and members of the Board of Directors, at Castaways, the power derived strictly because the sole owner delegated it. As Judge Rovner explains that is a distinction that makes a difference:

[A] distinction must be drawn between the power that a supervisor or manager exercises as of right and the power that he exercises by delegation. It is not at all unusual for the owner of a business enterprise to bring someone else in to run the business on her behalf, just as Gonzalez has done. In practice, that person may be given virtually unbounded day-to-day discretion and authority in operating the business. Nonetheless, he exercises that discretion and authority at the pleasure of the business owner; he has no inherent right, as the owner does, to control the business. In that respect, his position is no different from that of any other worker: he could be overruled (and, depending on the terms of his employment contract, fired) just as summarily as the lowest ranked employee. By contrast, the owner of a business, even if he chooses not to exercise it, always has the right to control the direction and operation of the business.

And the fact that there was a family relationship, the two in question were the husband and mother of the owner, by itself was not legally significant.

Although obviously important to the small group at the Knox, Indiana diner, my guess is this opinion will be even more intently read at a much larger institution located at One South Dearborn, Chicago. There it will be an effort to discern which way the 7th Circuit might be leaning on the issue headed their way of whether ex-partners of Sidley, Austin are themselves employers and thus not proper plaintiffs, either directly or through the proxy of the EEOC in a discrimination suit.

Prior decisions from that fight, which has already been to the circuit twice on procedural issues, were cited. My guess is that today's focus on the source of power, not how effective one was in wielding it -- is a slightly different and certainly welcome slant that will not be overlooked by the defendant as the Sidley litigation continues.

Four Years .....

Is one U.S. presidential term, the length of time traditionally spent in acquiring an undergraduate degree and how long I have been offering my thoughts on developments in employment law at this particular spot.

On July 17, 2002, inspired by Denise Howell and Ernie Swenson, who were pioneers and remain guiding lights in the world of legal blogs, I wrote my first post.

As far as I know I was the first to write with a focus on employment law, but quickly there were others who not only started (the easy part), but continue day in and day out occupying the same "space" (to use a term that has thankfully been heard a lot less since the tech bust.) Among those colleagues are Ross Runkel, who actually has a group of blogs on different facets of employment law, George Lenard, Michael Fitzgibbon, Diane Pfadenhauer and more recently, but closer geographically, Chris McKinney. And then there are those who write in related fields, Janell Grenier in benefits, the folks at Lynch Ryan on workers compensation and Jordan Barab on safety. And of course there are those who are newer, but no longer new, the academic duo at Workplace Prof Blog, Suits in the Workplace, and those who write from the standpoint of organized labor (as does Jordan Barab) at The House of Labor, or from the employees' perspective, Paul Mollica and Paula Brantner who writes Today's Workplace, and others that I am sure I am overlooking.

I hope collectively, and certainly for my part, that we are contributing useful information. Thanks for coming around to check it out.

Errata: Thanks to Paula Brantner for correcting my error on the author of the blog at Workplace Fairness. As Paula noted I also got the name of the blog wrong as it is actually called Today's Workplace and is on the website of the organization Workplace Fairness. Instead of "the folks at NELI" which was contained in the original post, I meant to type NELA, for National Employment Lawyer Association, although that too would have been wrong. In the past the two organizations were joined, but now, though pursuing the same goals, operate separately according to a joint statement at the NELA website. My apologies.

If You Are Preparing Your CEO To Testify - You Need to Read This

Ross Laguzza is a great source of information (and a nice guy as well) and is quoted extensively in an article by commercial litigator, Linda Listrom, Keep Executive Witnesses From Falling Off the Credibility Cliff, that should be on your reading list if you are preparing an executive to give testimony.

Over the last couple of years I have been fortunate enough to be invited to give a presentation, How Employers Make Juries Mad and Pay For It With Big Verdicts, to several groups across the country. One area I stress is the danger of what I refer to as "top dog behavior." I now have a great new quote from Dr. Laguzza:

Show me a highly verbal executive and I will show you the fast lane to punitive damages.

That one is close enough to the mark to merit your close attention.

First Burlington Northern v. White Reversal

The 6th Circuit becomes the first appellate court I am aware of to cite the recent Supreme Court decision in Burlington Northern v. White in reversing a summary judgment in a retaliation case on the element of "adverse, retaliatory action." Randolph v. Ohio Department of Youth Services(6th Cir. 7/13/06)[pdf].

Here the complaining employee was first suspended, then terminated, but later reinstated with 70% backpay. The district court had held this did not rise to the level of an actionable adverse action.

It is fitting that the 6th Circuit got to be the first to use Burlington Northern since it was the court from which the case came. Still today's decision is not that big a deal, since the 6th Circuit in its own Burlington Northern opinion had held that termination, with later reinstatement at 100% backpay was an actionable adverse action. Thus the Supreme Court decision did not alter the result. The more important first use of Burlington Northern will be the case where the ultimate outcome is changed by the Supreme Court's action -- that decision is forthcoming -- stay tuned.