sexual discrimination

Arbaugh v. Y & H Corp.

Issues

Whether a defect in a claim as to the nature of “employment” under Title VII of the 1964 Civil Rights Act, which prohibits discrimination by employers with fifteen or more employees, limits the subject-matter jurisdiction of the Federal courts in hearing Title VII claims, as held by the Fourth, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits, or if it only raises an issue going to the merits of the claim, as held by the Second, Seventh, and Federal Circuits?

 

In November of 2001, Jenifer Arbaugh brought suit against her former employer, Y & H Corporation under Title VII of the 1964 Civil Rights Act, alleging that she was discriminated against because of her sex, and was forced to resign her position as a bartender and waitress. Y & H admitted to the questions of jurisdiction and its status as an employer under Title VII. In a district court trial, a jury found for Arbaugh. Y & H then advanced the claim that the court lacked subject-matter jurisdiction to hear Arbaugh’s claim because Y & H did not have fifteen full-time employees at the time of the incident, and thus did not actually qualify as an “employer” under § 2000e(b) of Title VII. If an employer’s status is a question of subject-matter jurisdiction, as Y & H proposes, then Arbaugh’s suit would have to be dismissed even though a verdict had already been passed because jurisdiction cannot be admitted to or waived by a defendant, and a challenge to jurisdiction may be brought up at any point in the litigation, even after a verdict has been given. Arbaugh responded that the definition of “employer” is a question of merit and not of subject-matter jurisdiction. As such Y & H could have and did indeed waive the matter in its admission. The district court, after a lengthy determination of whether Y & H did qualify as an employer, ruled in favor of Y & H, and dismissed Arbaugh’s case. The Court of Appeals for the Fifth Circuit affirmed the district court’s ruling, holding that the so-called “employee-numerosity” issue is a jurisdictional question. The Supreme Court’s decision is expected to definitively determine whether the employment status of a Title VII defendant is a jurisdictional matter or one going to the merits of the case to be decided by the trier of fact. The Supreme Court will also resolve existing conflicts between and within the various circuits as to this question, and will hopefully establish a uniform standard for all plaintiffs and defendants in Title VII employment claims.

Questions as Framed for the Court by the Parties

Section 701(b) of Title VII of the 1964 Civil Rights Act applies the Title VII prohibition against employment discrimination to employers with fifteen or more employees. Does this provision limit the subject-matter jurisdiction of the Federal courts, or does it only raise an issue going to the merits of a Title VII claim?

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Bostock v. Clayton County, Georgia

Issues

Does employment discrimination on the basis of an employee’s sexual orientation constitute a form of sex discrimination prohibited by Title VII of the Civil Rights Act?

This case consolidates two lawsuits, each containing a claim by an employee alleging that he was terminated by his employer because of his sexual orientation. These employees argue that Title VII of the Civil Rights Act, which proscribes discrimination “because of . . . sex,” inherently prohibits sexual orientation discrimination because one’s sexual orientation necessarily depends on one’s sex. To further support this argument, the employees contend that Title VII’s plain language, statutory and judicial history, and other provisions all support interpreting the statute to prohibit discrimination on the basis of sexual orientation. The employers counter that the plain meaning of “because of . . . sex” at the time of Title VII’s enactment, and courts’ reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. The case’s outcome will have heavy implications for LGBT workers and business’ bottom lines.

Questions as Framed for the Court by the Parties

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.

This case consolidates two cases: the first brought by Gerald Lynn Bostock (“Bostock”) and the second by Altitude Express, Inc. and Raymond Maynard (collectively “Altitude Express”).

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Burlington Northern & Santa Fe Railroad Co. v. White

Issues

Does an employer engage in an adverse employment action, and thereby violate Title VII of the Civil Rights Act of 1964, when he retaliates against an employee who files a discrimination claim by temporarily suspending her without pay and reassigning her to a position with different responsibilities?

 

Title VII of the Civil Rights Act of 1964 forbids employers from retaliating against an employee who opposes discriminatory practices. However, the requisite provision, 42 U.S.C. § 2000e-3(a), does not define what kinds of adverse employment decisions are actionable. Courts of appeal have adopted three different standards to guide this determination: the Sixth Circuit prohibits any “materially adverse change in the terms of employment;” the Ninth Circuit prohibits any adverse treatment “reasonably likely to deter” the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits only prohibit an “ultimate employment decision.” In this case, the Sixth Circuit held that a temporary suspension rescinded by the employer with full back pay, or an inconvenient reassignment, constituted actionable adverse employment decisions. The Supreme Court must now determine which of the foregoing standards is correct.

Questions as Framed for the Court by the Parties

Whether an employer may be held liable for retaliatory discrimination under Title VII for any "materially adverse change in the terms of employment" (including a temporary suspension rescinded by the employer with full backpay or an inconvenient reassignment, as the court below held); for any adverse treatment that was "reasonably likely to deter" the plaintiff from engaging in protected activity (as the Ninth Circuit holds); or only for an "ultimate employment decision" (as two other courts of appeals hold).

On June 23, 1997, Burlington Northern hired Sheila White to work in its Maintenance of Way department at the Tennessee Yard. White v. Burlington Northern & Santa Fe Railroad Co.,364 F.3d 789, 792 (6th Cir. 2004). Marvin Brown, roadmaster of the Yard, assigned White to operate the forklift, a position formerly held by Ralph Ellis until his June 1997 resignation. Id.

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Fitzgerald v. Barnstable School Committee

Issues

Does Title IX’s implied right of action provide an exclusive remedy for claims of gender discrimination in federally-funded academic institutions, therefore limiting the right to bring a separate claim for a violation of constitutional right to Equal Protection?

 

Lisa and Robert Fitzgerald brought suit against the Barnstable School Committee (“Barnstable”) under both § 1983 and Title IX, claiming the district was deliberately indifferent to their daughter’s claims of sexual harassment by an older student on her school bus. Neither the police nor the school’s own investigation found enough evidence to charge or punish the alleged perpetrator. The federal district court dismissed the Fitzgeralds’ Title IX sexual discrimination claim on summary judgment. The court indicated that because Title IX prescribed the remedy for allegations of sexual discrimination in federally funded educational institutions, it foreclosed a separate § 1983 claim alleging a violation of a constitutional right to Equal Protection. The Fitzgeralds claim there are fundamental differences between the rights of action in § 1983 and Title IX, and that a statute intended to expand rights would never limit a constitutional right of action. Barnstable, however, maintains that Congress’s efforts to pass Title IX represented an entirely separate standard to govern sex discrimination in schools. Women’s rights groups claim that a decision to foreclose liability under § 1983 will make it more difficult to bring claims of sexual discrimination in educational institutions, while Barnstable claims that maintaining both causes of action would overexpose educational institutions to suits for violations committed by individuals, rather than just the institution itself.

Questions as Framed for the Court by the Parties

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), has been interpreted to provide an implied private right of action for sex discrimination by federally funded educational institutions. Section 1983 of Title 42 of the United States Code creates an express remedy for violations of the U.S. Constitution. Three courts of appeals have held that Title IX’s implied remedy does not foreclose Section 1983 claims to enforce the Constitution’s prohibition against invidious sex discrimination. In contrast, four circuits, including the First Circuit in this case, have held that Title IX’s implied right of action is the exclusive remedy for sex discrimination by federally funded educational institutions.

The question presented is:

Whether Title IX’s implied right of action precludes Section 1983 constitutional claims to remedy sex discrimination by federally funded educational institutions.

After several months of displaying atypical behavior, kindergartner Jacqueline Fitzgerald reported to her parents (the “Fitzgeralds”) in February 2001 that an older student on her school bus was harassing her by forcing her to lift her skirt when she wore dresses. See Fitzgerald v. Barnstable School Committee, 504 F.3d 165, 169 (1st Cir.

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Additional Resources

· U.S. Department of Education—Title IX and Sexual Discrimination http://www.ed.gov/about/offices/list/ocr/docs/tix_dis.html

· Workplace Prof Blog: Another Right Without a Remedy on the Way: Court Grants Cert in the Title IX Preclusion/Peer Sex Harassment Case (June 9, 2008)

· Comment from Lisa and Robert Fitzgerald in The Flat Hat, student newspaper at The College of William & Mary http://flathatnews.com/content/68983/supreme-court-will-hear-title-ix-case

· Criticism of U.S. Supreme Court’s decision to grant certiorari in Fitzgerald v. Barnstable School Committee: http://www.openmarket.org/2008/07/22/fitzgerald-v-barnstable-school-committee-a-stealth-assault-on-the-state-action-doctrine/

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