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Podcast: The Recent Evolutions in Employment Law

Podcast: The Recent Evolutions in Employment Law

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Podcast with Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

and Rhonda Reaves
Law Professor, Florida A&M College of Law

Employment law is intended to define how employers and employees can work together. These laws also protect employees from discrimination, unsafe working conditions and unfair labor practices. But employment law also evolves over time.

Start a legal studies degree at American Public University.

How has employment law recently evolved in the federal courts? In this podcast, APU Business Faculty Director Dr. Gary Deel interviews law professor Rhonda Reaves about the history of employment law and recent updates that affect protections under the Civil Rights Act and other key employment statutes. Hear details about three landmark employment law cases and what the future may hold for decisions regarding protected characteristics.

Read the Transcript

Dr. Gary Deel: Welcome to the podcast Intellectible. I’m your host, Dr. Gary Deel. Today we’re talking about recent evolutions in employment law.

My guest today is Professor Rhonda Reaves. Rhonda is a professor of law at Florida A&M University College of Law in Orlando, Florida. She teaches classes in employment law, employment discrimination law and property law. She writes in the area of race and gender discrimination in employment law.

Rhonda is a graduate of Yale University and Stanford Law School. Rhonda originally hails from Los Angeles, California, where she practiced law for several years before becoming a law professor. Rhonda, welcome to Intellectible, and thank you for being our guest today.

Dr. Rhonda Reaves: Thank you, Gary, for inviting me.

Dr. Gary Deel: Absolutely. It’s a pleasure. So I know that there’s been some recent happenings, particularly at the Supreme Court, federal Supreme Court level, that I want to get into.

But in the interest of giving our listeners a proper context — you know, a lot of our listeners are not attorneys and may not be completely familiar with how employment law works, particularly in the area of discrimination protections.

There are a lot of misunderstandings out there about what is and is not protected. Of course, going state by state, there’s a lot of changes and variations in those laws.

But can you provide a brief history, a summary, of sort of what the federal law, at least at the national level says about what’s protected, what an employer can or can’t do in terms of employment action toward people based on the protected characteristics, and what is not protected in that context?

Dr. Rhonda Reaves: I would be happy to. So when it comes to federal law, most of this area is governed by a few federal statutes. The main statute is Title VII of the Civil Rights Act of 1964. Title VII basically says it’s unlawful for an employer to discriminate because of someone’s protected status.

So it doesn’t mean that it prohibits all discrimination. It prohibits discrimination on a few specific bases, and those are race, color, religion, sex, and national origin. So the statute says that it’s unlawful for an employer to discriminate in employment on those bases.

There is another federal statute, the Age Discrimination in Employment Act, which is relevant for our discussion. It’s a separate federal statute, but it basically says the same. It’s unlawful to discriminate because of someone’s age.

One of the main misconceptions about the age discrimination act is that it applies [to] all age discrimination. In fact, it only applies to discrimination against employees that are age 40 and over.

Then one other statute, the Americans with Disabilities Act, protects against discrimination because of someone’s disability.

Dr. Gary Deel: Perfect. Now when we talk about the Civil Rights Act, and I just know because I’ve experienced that these terms are often misinterpreted or confused for one another. When we say something like “race” versus “color,” how does the law recognize or distinguish a difference between those two classes as protected? Is there a difference at all, and what does that mean for employees and employers?

Dr. Rhonda Reaves: That is a great question. I was just talking to my class about this yesterday.

Unfortunately, Congress doesn’t say what it means, so it’s been left completely to the courts to interpret what these terms really mean. When it comes to race and color, you really don’t see the courts willing to take that on, so generally they just accept how the plaintiffs frame their case. Whether you’re bringing a race claim, which is by far the most common, versus a color claim, courts discuss the difference.

Sometimes you might see a color discrimination claim when you have sort of this intra-group claim where someone is saying, “Yes, this is a minority employer. Let’s say it’s a Black employer, and I’m a Black employee, but they discriminated against me because I was either too dark or too light.”

This sort of colorism claim is where you can sometimes see that play out as a distinction between just a race claim. But for the most part, courts take a hands-off approach and don’t very often interrogate what that means.

Dr. Gary Deel: Sure. It seems that the important takeaway there is that there’s a lot of nuance. People tend to think that the law’s very back and white in these areas, but obviously as you just pointed out, there’s some lack of clarity that evolves over time as we kind of figure out what these terms mean through cases and arguments.

Dr. Rhonda Reaves: No. You’re absolutely right. That’s one of the most difficult things about this area, just our social conception of what race means, people have different conceptions of that. There’s no one standard definition or understanding of what it means.

Well, look at the census, for example. I mean the census over time has created categories of race and erased them 10 years later, for example. So it really is something that lacks a sort of black-and-white definition.

Dr. Gary Deel: And to throw one more term in there that makes things even more confusing and complicated is ethnicity. I know this from seeing job applications and helping to structure job applications. You usually if you have the EEOC questionnaire in your job application, there’s usually a question on race and this involves the white/Black or Caucasian/African American/Pacific Islander/Native American, and so on.

Then you have ethnicity, and that question is usually either Hispanic or not. So do you have any context? That seems to be an odd one [to] leave out of the rest.

Dr. Rhonda Reaves: Ah, I so wish for your listeners that there was some easy explanation for all of this. But again, I mean we think of race, it’s not a biological characteristic. It’s a social construct that has changed over time.

Again, when you’re talking about job applications, employers are required to keep certain statistics, so that’s why you encounter these things. A lot of times, the categories that you see on an employment application are pretty much paralleling what the census is asking you.

So, the census changed to ask that ethnicity question, Hispanic or non-Hispanic. Then once you answered that question, they’d have you do the race question. So I’m non-Hispanic, but I’m white/Black/Pacific Islander. I mean it’s fascinating. I’ve been recently reading articles about the background for how those categories have appeared and disappeared from the census, and groups who have spent years advocating for their own category and the meanings behind that. It’s really fascinating.

Dr. Gary Deel: So obviously there’s tons of different sort of variations there that one might be able to compile between the different characteristics. Then, of course, national origin seems a little bit more straightforward in the sense that it would denote one’s country of origin, but also it doesn’t necessarily require that you have been born in that country to avail yourself of protections.

Let’s say if you’re an Italian-American, but you weren’t born in Italy. If someone discriminates against you based on your Italian-American heritage, that could be construed as a type of national origin discrimination. Is that correct?

Dr. Rhonda Reaves: In a sense, yes. So there really isn’t very much case law on this. Again, Congress offered really not much in the way of explanation. But the simple definition that most courts follow is national origin means a place where you or your ancestors came from.

Now in terms of the relationship between national origin and ethnicity, there’s certainly a lot of overlap, but it’s not clear they mean exactly the same thing. But in your situation, if you’re saying, “I was discriminated against because I’m Cuban-American or because I was raised in Haiti,” then you can bring it as a national origin claim.

But remember you have to think about how this is going to play out in court. You have to show that you were discriminated against because of your national origin, because of where you or your ancestors came from.

Dr. Gary Deel: Right. So I guess to provide that bigger question there with regard to any of these cases, how does a person establish that? I mean short of an employer saying to you or putting in writing, “The reason that I didn’t hire you is because you are Black,” or because you are from a particular country, how does one establish that that’s the reason?

Dr. Rhonda Reaves: So that’s, of course, the hardest part. Because rarely do you have an employer that’s going to admit that they took an action because of your race or something along those lines.

So you have to prove it, usually offering circumstantial evidence, offering indications from which a jury can infer that the reason was because of your protected characteristic. For example, they treated all of the white people one way, and they treated you a different way. So even though they may not have said it’s because of your race, the question is could a jury or a fact-finder infer that that’s why it was.

Dr. Gary Deel: Sure. Absolutely. And we talked about some of the Title VII protected classes. I know you mentioned the ADEA, the Age Discrimination and Employment Act, earlier. The cutoff is 40, as you mentioned, that people 40 years of age and older are protected, and those at least at the federal level are not, although some state laws cover the entire spectrum of age.

But for those thinking about that and going, “Why in the world did Congress decide that 40 was an important threshold there?”, is there any context? Is there any clue as to what the reason for that was?

Dr. Rhonda Reaves: Again, I think it’s because there is a good amount of data that sort of suggests that as you get older employees are more likely to make decisions based on age, to make assumptions about you because of your age. So that it makes it harder for you to gain employment as you get up in age.

And there can be lots of reasons for that. One is sometimes the stereotype that as you get older, you lose a step. You’re not going to be as willing to embrace new technology, for example. Or they think you’re going to cost them more in terms of healthcare costs.

So whenever you’re making these sorts of group-based distinctions, it’s not perfect. Forty is an arbitrary cutoff, and there are certainly people; my mom’s in her 80s and is in better shape than most people I know. But it’s to get to the sort of idea that employers may have an incentive to not hire people or to treat them differently as they age.

Dr. Gary Deel: Got it. Now there’s a few other fundamentals that I think it’s worth covering here to set the proper stage for what we’ll be talking about in the second half.

So one of the other concepts that I think it’s important to demystify for our listening audience, and I think this is as good as time as any to disclose that the reason that I invited Professor Reaves here is that you were one of my law professors at Florida A&M years ago. So I appreciate you once again being here with us.

I think that the concepts of what the law refers to as disparate treatment and disparate impact are really important for listeners to understand in the employment discrimination context, so that people realize how different cases are made for discrimination in the workplace. So could you offer a little bit of thought in terms of what the difference between those two concepts are and how they’re argued in a legal context?

Dr. Rhonda Reaves: Absolutely. So again, going back to Title VII of the Civil Rights Act of 1964, it talks about it’s unlawful to discriminate because of someone’s race or sex or national origin. It was left to the courts to determine how do you prove such a thing; what does that “because of” language mean?

There are basically two major theories that have arisen. One is called disparate treatment. That means you basically have to show intent, that the employer intentionally discriminated against you because of your protected characteristic.

Disparate impact, on the other hand, does not have an intent requirement. So basically, you’re looking at whether an employer’s policy had a disparate impact on a group, whether or not they intended that impact.

Dr. Gary Deel: Got it. For the sake of clarity, could you give us an example of each so that we can kind of understand? Like a policy that would likely be found to be culpable under disparate treatment versus a policy that would be a problem under disparate impact?

Dr. Rhonda Reaves: Of course. Under disparate treatment, you’re really looking at the motivations of the decision maker. So if you’re discriminated against, you wouldn’t hire them, or you terminated them because they were Black, for example. It was an intentional act; that’s what they meant to have happen. What motivated them was someone’s race.

As opposed to disparate impact where you’re looking at a policy. Let’s say you have a policy about height requirements. That height requirement, depending on where it’s set, may have a disparate impact on women, who tend as a group, to be shorter than men.

Now, of course, there are exceptions to all of that, but as a rule, that’s probably going to have a disparate impact on women. There have been cases about height and weight requirements when it comes to employment in, let’s say, law enforcement.

So with the disparate impact, the courts are really interrogating employers to say, once we’ve established that it has a disparate impact, you have to show us that you really need it, or is it unnecessarily excluding otherwise qualified people?

Dr. Gary Deel: I think the takeaway from that, if I understood you correctly, is that we’re interested not just with whether you intended to discriminate, but whether the policies that you carry as an employer have the effect of discriminating.

I think that can sort of be muddied in cases where people might intentionally try to discriminate but hide it through facially benign policies. I use the classic example in my business law classes of the old, old days, the Jim Crow laws, where in order to vote, it wasn’t a prohibition on voting based on race because that would have been illegal per se. But it was a requirement that if you want to be able to vote, you have to be literate.

So although that is facially neutral in the sense that anybody who’s literate, be they Black or white or any other color, is eligible to vote. It had the effect of discriminating on one portion of the population much more than the other due to literacy level difference in the post-slavery society that we lived in the late 1800s.

Dr. Rhonda Reaves: I think you’re absolutely right about that. That was one of the considerations for why the Supreme Court determined that recognizing disparate impact was so important, because they recognized that it would be easy to circumvent the disparate treatment, or the intentional discrimination provisions, by coming up with some facially neutral policy that had the exact same impact.

Dr. Gary Deel: Absolutely. One other piece that I wanted to cover to set the proper stage for the listening audience is the concept of a bona fide occupational qualification. This is, of course, a tool that can be used, or I want to use the term loosely, a loophole, in the law that allows for certain types of legal discrimination that would otherwise be illegal provided certain circumstances are present. So can you offer a little bit on what a BFOQ is and how it’s typically used?

Dr. Rhonda Reaves: Absolutely, and your description’s right. It is a loophole. It is an exception to the prohibition on discrimination, and it’s a statutory exception in Title VII.

But what’s important, and people often don’t realize, is that BFOQ does not apply to race. So they’ve made a determination, the Congress, that there is never a bona fide occupational reason for discriminating on the basis of race.

So BFOQ applies to the other bases that are protected under Title VII. Sort of the rationale behind it was this concept that Congress thought that there were relevant differences on the basis of gender, for example, and that where there is a relevant difference that’s necessary to the job, then employers can discriminate on the basis of sex, for example. But it was intended to be a very narrow exception.

Dr. Gary Deel: Got it. And I think the reason why I was reluctant to use the word “loophole” is that it often has such a negative connotation, and I don’t mean to imply that every instance of a BFOQ is somehow morally indefensible.

So you mentioned gender. Are there examples in industries that you can offer in terms of where a gender BFOQ has been substantiated by the courts and is arguably appropriate under the circumstances?

Dr. Rhonda Reaves: I think those may be in my mind two different questions. There are certainly examples where the courts have upheld BFOQs. I can’t swear to you that I agree that in all of those cases they were morally right in their decision to uphold the BFOQ.

Dr. Gary Deel: Sure.

Dr. Rhonda Reaves: And some of these are older cases, because a lot of times when you talk about BFOQs as it relates to gender, there are a lot of gender stereotypes that play into the perceived difference that employers are making.

So, for example, there is a case where BFOQ was upheld for not allowing women prison guards at a maximum-security prison in Alabama. This is an old case from the ‘70s. But the idea is that BFOQ means that there is a reason why women can’t do the job.

But in that case, the reasons that were offered were because they would be subject to prisoners’ sexual abuse, or the other guards might feel paternalistic towards them, or things like those which I have some questions about. In the dissent by Justice Thurgood Marshall, he talks about you can’t blame women because of the poor state of prisons, that they’re so dangerous.

Dr. Gary Deel: Sure. That brings up in that specific context, another question that is still being wrestled with and that is for gender-isolated prisons or gender-specific prisons. Usually male prisoners are held in one facility and females in another. There aren’t a lot of examples of co-ed prisons.

Is it appropriate under the law, or has it been legally substantiated that you can justify staffing a male prisoner prison with only male security officers, or vice versa, so as not to create privacy conflicts or the propensity for abuse issues? Is there any BFOQ precedent on that level in the prison context?

Dr. Rhonda Reaves: Perhaps, at lower levels. But just in general when you’re talking about BFOQs on the basis of gender, the kinds of situations that courts have recognized BFOQs include ones where there are privacy concerns like you were mentioning. The other has been safety concerns, that is another area where BFOQs have been upheld at least in the lower courts.

Dr. Gary Deel: Sure. And when I think about safety, I think about the Federal Aviation Administration’s ban on pilot employment after 60. That was challenged in the courts on BFOQ grounds, but ultimately was upheld that the Federal Aviation Authority or administration can rightfully force pilots into retirement at 60 on the grounds, or the belief—right, wrong, or indifferent and that’s an entirely separate discussion—that after a certain age, we know that faculties and reaction time decline with age.

Now that’s not to say that every pilot that hits the age of 60 or 61 is so untrustworthy or decrepit at that point that they can’t be trusted to fly an airplane. But that’s the current state of affairs, at least in that regard.

Dr. Rhonda Reaves: Right. You think about how 60-year-olds today, and 60-year-olds 50 years ago, right, in terms of the fitness and the health, those sorts of things. I was actually on a plane once where the pilot was forced to retire. They announced, “Oh, it’s his birthday, and his last flight.”

But in the case you’re talking about, there’s actually an FAA requirement about pilots. But the case where the Supreme Court took this up was whether pilots could move to the third position in the cockpit, the flight engineer position, I forget what exactly the title of that position is. And why couldn’t they still be that?

And you’re right, the Court ultimately said, “It’s too hard to tell which 60-year-olds are likely to have a cardiac event at 20,000 feet, so we’re just going to uphold the rule that none of them can do the job.”

Dr. Gary Deel: Right. And one could argue that in the interest of safety that might be the most cautious approach, and perhaps on that grounds the best approach. But it’s interesting when accidents due to motor vehicle fatalities on the road are so much higher, and yet there are not requirements that people give up their driver’s license at certain ages or that they even have to retest.

And we’ve all seen our share of folks out there that we question at all ages whether they should be behind the wheel. Sometimes, it seems antithetical to the logic of the issue.

Dr. Rhonda Reaves: Well, the conflict is really between making decisions based on general group characteristics and individual characteristics. So, for example, for older drivers, a lot of times states have requirements that you get tested more frequently. So we’re trying to make sure that the individual driver of whatever age has the skills to be safely on the road, rather than barring all drivers over a certain age.

Dr. Gary Deel: Sure. Absolutely. Some type of testing to establish their fitness to continue doing what they’re doing.

When I think about BFOQ, I often think about the famous Hooters case, because I teach in hospitality. The argument there, of course, was Hooters was alleging they should only be able to hire female waitstaff and restaurant staff on the grounds that this was essential to their brand image.

Ultimately, they never reached a verdict on that case. They settled pre-verdict. But usually when that happens, it’s a good indication that they were not anticipating winning. So it’s one of those things.

Dr. Rhonda Reaves: Well, that’s because in these cases where the Supreme Court has upheld BFOQS, it has talked about the employer has to show that the characteristics that they’re discriminating based on is essential to their business. The problem with the Hooters cases is they are servers.

So the argument that’s raised is anybody can serve wings. You don’t have to be wearing a tight tee shirt and short shorts to serve wings. So the employer’s argument is, “Oh, well, the essence of the business is to serve wings in a sexually titillating atmosphere,” or something along those lines.

Dr. Gary Deel: Sure. Yeah. Which ultimately was I think unpersuasive or was thought to be unpersuasive, hence the several million-dollar settlements and the concession by Hooters that they would make some staff positions, I believe like bartenders and bar backs, et cetera, were open to males as previously were not.

Dr. Rhonda Reaves: And remember, most of these cases come down to money. You get better tips in the serving positions than the men who were just going to be the host seating people. So that’s where these conflicts arise.

Dr. Gary Deel: Now one other question before we move to the cases at hand that have recently come up before the Supreme Court — the question under BFOQ about entertainment. I know that this has gone on for some time, and it seems to be unsettled.

Lin-Manuel Miranda, among others, was sort of criticized for this because I believe he has made some public statements when selecting cast for the hit show “Hamilton.” He said, “Look, we are going to promote minorities no matter what.” That seemed to be prima facie discrimination based on protected class as we discussed previously.

Can you offer any clarity as to the rules in entertainment? If I want to make a movie about Abraham Lincoln, am I allowed to exclude an African-American woman because she doesn’t fit the historical likeness? If I have a fictional story about, say, Harry Potter, am I allowed to exclude women because the character that I invented is a male? How does that work with regard to performance and entertainment?

Dr. Rhonda Reaves: So, again, it really is unsettled. The Supreme Court has never taken up this issue. There is quite a bit of academic literature out there. So in terms of the legal rules — the BFOQ as I mentioned earlier — there is no BFOQ for race.

So, in theory, you can’t make decisions, employment decisions, casting decisions that exclude people based on race. But what’s unique about the entertainment industry is also those sort of First Amendment potential issues that arise in terms of artistic freedom. Also, I think a lot of the literature talks about, it may be a difference in terms of authenticity, whether that should be recognized as an essential concern.

Dr. Rhonda Reaves: So, for example, if you’re making an historical film. I always use the example of if you’re retelling the story of Malcolm X or Martin Luther King, Jr., would the law really prohibit you from only casting Black actors in that role? So that’s the sort of rationale that underlies some of these concerns when it comes to entertainment is what do you need to authentically portray the role consistent with the artistic vision?

Dr. Gary Deel: Right. And I think there are persuasive arguments on both sides of those kinds of debates. But I know that that’s reared its head in the past and will continue to do so until we get some kind of precedent.

I’m thinking about —and this is again an example of a fictional character — but there was a lot of uproar in the last few years around the public support for the actor Idris Elba to play James Bond. There was a lot of debate about that.

Or should there be a female James Bond in the future or someone to take on that mantle? There’s divisive opinions, of course, among the public about it, but whether or not you can do that legally, of course, is another matter.

Dr. Rhonda Reaves: I think it’s very different than trying to accurately portray a historical event like the civil rights movement or something along that, an actual person, versus a fictional character.

So what some academics have recommended, because a lot of this comes up into how things are cast, is that many of the roles that we’re casting for don’t necessarily need to be cast along racial lines in order to make the product that you’re seeking to make. To make it entertaining, for example.

So there has been a press, especially by minority actors in the entertainment industry, that the current casting roles or the procedures exclude them when there is really no basis for doing that other than that somebody, when they described the character, they said a white person as opposed to this. As opposed to the characteristics that are necessary for the role, and race really isn’t relevant to that.

Dr. Gary Deel: So in the first half of this episode, we talked about the foundations of employment law that go back as far as the ‘60s, and forward with recent evolutions.

So one of the cases that recently came up because we talked about the protected classes that are covered under the Civil Rights Act, Title VII specifically, the race, color, national origin. The Age Discrimination and Employment Act that added age to that list.

I guess I should set the stage this way before we get to the Bostock vs. Clayton County, Georgia case. Was gender recognized in the original Title VII employment coverage of the Civil Right Act?

Dr. Rhonda Reaves: Another interesting question. What Congress said in the statute was sex, but certainly our conceptions of sex and gender have evolved over time. So they do not make any specific reference in the statute to gender. What they say is “because of sex.”

Dr. Gary Deel: Right. Okay. Perfect. And so that brings us to a recent case this summer. We’re having this episode, of course, in 2020. The Supreme Court ruled on the Bostock case regarding the interpretation of sex and the historical precedent that gender was protected under the language of sex in the statute.

But, of course, this is an application not just to gender, but also to sexual orientation and gender identity. So can you talk a little bit about what that case involved, and how it changed the precedent?

Dr. Rhonda Reaves: Yes, absolutely. You’re right to say that that has been a seminal case in the area, groundbreaking in its interpretation. It’s actually three separate cases that the Court heard.

Two of the cases involved gay men. That’s the Bostock, and then the Altitude Express versus Zarda. One case involved a trans woman, and that was R.G. and G.R. Harris Funeral Home versus Stephens.

Just for the listeners to know, the reason the Supreme Court heard the cases together is because they raised similar issues. Because all three cases involved an interpretation of the same statutory language, specifically what it means to discriminate because of sex. So the issue was does that language, “because of sex,” include sexual orientation and gender identity?

Dr. Gary Deel: Sure. Frankly, it was brilliant the way that this was argued from the standpoint of interpreting sex and how an argument towards sexual orientation can be made on the basis of a gender protection without needing specific additional Congressional action to protect sexual orientation.

Can you talk a little bit about how the argument was made to interpret protections for sex as also protecting specifically, we can make the logical leap to say that if males are protected for their attribute of being male and females are protected for their attribute of being females. I think it’s only a small step forward to make the additional leap that if someone is a person of different gender, someone who identifies as a gender that’s different from their biological origin or their anatomy that’s listed on their driver’s license, that that too would be protected regardless of those particular dynamics or characteristics.

I think it was really interesting how the argument was made that this should also extend to sexual orientation. Can you talk a little bit about how that argument was weaved to pave the way for those protections?

Dr. Rhonda Reaves: Certainly. And you’re right; part of what’s fascinating about this case is the sort of legal strategy behind how the case was presented, for example. So what’s curious about this case is we have a conservative majority in the Supreme Court. So generally, not progressive in their approaches.

But in this case, the majority opinion is written by Justice Gorsuch, one of the conservative members of the Court. And the case comes out in the plaintiff’s favor. So for a lot of people, that was a surprising outcome.

But from listening to the strategies that the lawyers employed, they weaved, or they focused their arguments on, Justice Gorsuch because he’s what’s called a textualist. When interpreting statutes, he says we go by the text.

So their argument to him was the text says, “because of sex.” It doesn’t matter whether Congress intended to include members of the LGBTQ community or not, it says “because of sex.” And anytime an employer makes a decision — for example, a man’s attraction to another man — when they wouldn’t have done that if a woman was attracted to a man, then that’s because of sex.

Dr. Gary Deel: Absolutely. And I think what was at least most compelling to me, and is most persuasive when I have these conversations with friends and family and community members who might otherwise disagree with the ruling, is that gender was again, by precedent, previously protected under Title VII, and that’s the way the language was construed.

So the argument was that you could not refuse to hire someone, or fire someone, or take any kind of adverse action towards someone in the employment context based on their gender. The argument towards freedom to discriminate against sexual orientation is that that is a completely different dimension of a person’s identity.

I think what was most persuasive for me was that if you can imagine a scenario where I’m applying for a job to work with you. You are the potential employer. You’re interviewing me and through the scope of this conversation, you discover that I am in a gay relationship with another man. You could, if we interpret this as being separately distinct from anything previously protected, choose to discriminate against me based on my sexual orientation, and my gay relationship or my gay marriage.

But if I was a female, if I was a woman and every other circumstance in that scenario was the same. In other words, I’m in love with the same partner at home, that same man, that I’m in a heterosexual relationship and that is ostensibly okay with you. So the only difference between those two hypothetical scenarios is my gender.

I think that that was brilliant on the part of the argument being made that we don’t need an additional protection. It certainly would be nice if Congress would have the courage to add, by statute and by code, sexual orientation to the list of protected classes. But we need not have that step, because we can already see that this is tantamount to a gender argument.

Dr. Rhonda Reaves: Yes, I agree. In the sense that these cases were really a change in the trajectory of the Court. Because prior to these cases, the lower federal courts had generally said sexual orientation was not discrimination because of sex. As a result of that, there was a push to have a statutory fix.

There’s the Employment Nondiscrimination Act, which has been introduced in Congress year after year and gone down to defeat, which basically said you want to have explicit federal protection for employees based on sexual orientation.

So for many years, we thought that the only way to get sexual orientation discrimination covered was to have a separate statute. So for Justice Gorsuch to agree with the plaintiffs and say, “We don’t need separate language. It was there all along. Right in front of your faces.” That “because of sex” includes sexual orientation and gender identity. So truly, a monumental shift in the interpretation.

Dr. Gary Deel: Absolutely. Let’s talk about Babb vs. Wilkie. This is a case that concerns the Age Discrimination and Employment Act, and distinctions or clarifications between its application in the public sector versus the private sector.

So this was another key case that went before the Supreme Court in recent periods. How did that change the traditional interpretation of the ADEA?

Dr. Rhonda Reaves: I don’t know if it was a change so much as a clarification. So this case involved a pharmacist at the Department of Veteran Affairs Medical Center, who claimed she was discriminated against because of her age.

In this case, the issue became whether she had to prove what’s called “but for causation.” So she has to prove that the explanation for the employer’s action, if you take age out of the equation, if it wasn’t for her age, they would have done something differently.

Dr. Gary Deel: Sure.

Dr. Rhonda Reaves: This is the traditional interpretation of the language in Title VII, the “because of” language. What’s different in this case is that there is a separate section in the Age Discrimination and Employment Act that applies specifically to federal employers. And the language there is slightly different than the language in another section that applies to private employers and state and local government employers.

So again, this is really a textual argument. So again, you’re talking a conservative Court that comes down in favor of the plaintiffs which in and of itself is unusual. But both of these cases, Babb and Bostock, turn on interpretations of the statutory language itself.

So in Babb, the Court agreed with the plaintiff that the use of different language in that section that applies strictly to federal employers argues against the employer’s interpretation that she had to show the same level of causation that she would if she brought the case against a private employer.

Dr. Gary Deel: I think the distinctions between public and private employers are often elusive to a lot of folks. Particularly if they haven’t worked in the public sector environment, they aren’t aware of these special proscriptions or differences in the way the rules are applied.

But you brought up an interesting point that I think is important for people to appreciate, and that is the concept of “but for causation.” In other words, the effect would not have occurred but for your actions or something that happened in this context, and the need to look beyond that in a context that is deeper.

We look at this often in the negligence context, of course, which is not an employment discrimination subject per se. But I think it’s really important to look at that.

I often use the example when I’m discussing this with my students, that if I stop you to shake your hand in the hallway as I see you at work today, and that takes two seconds out of your day, and that later on in the day puts you two seconds behind on your calendar, and you happen to be at the wrong place at the wrong time and in an intersection to be hit by a drunk driver. Can you come back to me and say, “Well, if you hadn’t shaken my hand, I wouldn’t have been in that exact place at that exact time for this to happen?” That’s obviously absurd, which is what leads us to the need for an assessment of proximate causation and the other elements that go into the totality of the circumstances.

Dr. Rhonda Reaves: Exactly. I’m having law school flashbacks. It’ll have your head spinning, the concept of causation and what it means.

Dr. Gary Deel: Yeah. It’s definitely a nebulous piece, and particularly as it pertains, again, to public sector, private sector. I often think about the different rules around things like affirmative action policies and hiring standards as they apply to public-sector employees that are vastly different from what the private sector has to deal with.

Dr. Rhonda Reaves: Yes. Exactly. Yeah. I mean, in the Babb case itself, the Court had an example of trying to distinguish between but-for causation and other forms of causation. They gave the example of an employer who promotes an employee who’s 35, who has a choice to promote an employee who’s 35 or 55.

Then they said, “What if the employer’s policy requires candidates to be given numerical scores, and these scores based on non-discriminatory factors?” But then they have this requirement that any employee over 40 has to be docked five points. So that’s where you’re treating someone differently because of age.

But in the example, it ends up not making a difference because even with the lower score, even if the older employee had had a higher score, it wouldn’t have changed the outcome in the decision because the younger employer still scored higher.

So for them, that’s an example of where age made a difference because you only applied the rule of docking five points to the people within the protected group. But it wasn’t the but-for cause of the outcome, because the younger employee still had a higher score. But under the Court’s interpretation, the decision was not made free from discrimination because you did apply a rule to those older people for no reason other than their age.

Dr. Gary Deel: Right. It was tangential to the ultimate outcome, but it was still an instance of inappropriate discrimination. That’s the takeaway, I think.

Dr. Rhonda Reaves: Yes. Yes. Yes.

Dr. Gary Deel: Absolutely. Our Lady of Guadalupe School v Morrissey-Berru. I hope I’m pronouncing that correctly. What is a ministerial exception, and how does this apply to our daily lives?

Dr. Rhonda Reaves: Well, I don’t know that it applies to everyone’s daily life. Only if you are working for a religious employer, for example, would this come up.

Dr. Gary Deel: Right.

Dr. Rhonda Reaves: But it’s actually a judge-made exception under Title VII. So in this case, there were two fifth-grade teachers who were suing religious employers. The employers’ defense is “they can’t bring these claims because our actions fall within what’s called the ministerial exception.”

So under Title VII, there are two statutory exceptions for religious employers. But there’s also this ministerial exception which is really a judge-created exception. It’s based on a case that the Supreme Court decided a few years ago where basically they’re saying, if people hold ministerial positions then the Court is not going to interrogate, look into, the reasons why an employer fires someone, because that is too close to the line of interfering with the First Amendment concerns of free exercise of religion in the Establishment Clause.

Dr. Gary Deel: Sure.

Dr. Rhonda Reaves: The question, of course, becomes who fits under this ministerial exception? So clearly if you’re the pastor or you’re the priest or something, the exception applies to you.

But in these cases, these are all about lay people who work for these religious employers. Are they considered ministerial? Meaning, are they part of the ministry of the organization or separate? And if so, then the exception applies.

Dr. Gary Deel: Were these schools, and honestly, I had read a little bit about it. But were they religiously based teaching curriculum, or was it just the fact that the namesake and the foundation, perhaps the endowment of the school, happened to be some type of religious affiliation?

Dr. Rhonda Reaves: No. I think it was both, at least from the cases. It said these were elementary school fifth graders. So they taught everything, including religion. So part of the curriculum was the indoctrination into the religion itself, learning about the religious practices. So that was part of what they were teaching.

Dr. Gary Deel: Sure. So we can certainly draw that out into an argument ad infinitum where you say, okay, does the person that sweeps the floor in a church or a religious school qualify as ministry? And then, does the teacher’s assistant? Does the cafeteria staff? And so on and so forth. It kind of becomes a very slippery slope.

Dr. Rhonda Reaves: That’s right. And that’s another one of those loopholes, right, those exceptions that can potentially swallow the rule. That’s exactly, the line drawing, is where the courts are having trouble.

So basically it was in the Supreme Court case, Hosanna versus Tabor, which was a few years ago, where they first recognized this ministerial exception. They looked at four factors when they made the decision that the teacher in that case was part of the ministry.

So the argument by the plaintiffs in Our Lady of Guadalupe, and in the combined or consolidated case, St. James, was that they were saying they…we’re different from the plaintiff in that earlier case, Hosana vs. Tabor. They argued, “We don’t have the same sort of background and training in religious doctrine that she had, and for these other reasons you should treat us differently. So we shouldn’t fall within the ministerial exception whereas she in the Hosanna case did.”

Dr. Gary Deel: Right. Because the courts will generally honor their precedents unless a case for a significant or a legitimate distinction can be made.

Dr. Rhonda Reaves: Absolutely.

Dr. Gary Deel: Perfect. Well, I know there’s plenty of other cases here, but I want to make sure we have time to talk about the future. So I wanted to ask, we’ve seen some significant evolution in recent years, and obviously the Supreme Court will continue to hear cases into the future.

Do you see other major battlegrounds on the horizon in terms of protected classes that have not yet been addressed or particular cases in employment that need to be fleshed out in more detail? We talked about a few already with respect to BFOQs in different contexts. But is there anything else that the Court is looking forward to, or that people are anticipating the Court will opine on, to offer some type of rule or guidance moving forward?

Dr. Rhonda Reaves: I don’t know if there’s a specific case that you would point to, but just in terms of general trends. And remember a lot of this has to do with the extent to which what’s going on in our society gets then reflected back into our rules.

So one of the things, the “Me Too” movement, for example, and what effect that will have on the law and how we interpret our laws on sexual harassment, for example, is something that continues to be an issue that people are talking about.

Dr. Gary Deel: Sure. And we haven’t talked about this much yet, but with respect to wage-based discrimination. Of course, back in 2009 then-President Obama signed in the Lilly Ledbetter Fair Pay Act, which extended the statute of limitations on claims against wage-based discrimination.

Do we see anything happening with that arena in terms of further evolution of law around paying fair wages and equal pay, pursuant to the EPA?

Dr. Rhonda Reaves: I haven’t looked to see if there’s been a significant increase in the cases. My understanding is it hasn’t led to a huge number of these types of cases. A lot of these cases come down to procedural issues. But also, just in the wage context in general, one of the things we talked about is just what the difference a change in administration means.

So many of the things that were on the radar in the Obama administration — for example, it was the EEOC under the Obama administration that made the ruling that sexual orientation was because of sex in employment are not priorities of the current administration.

The Obama administration also took some progressive stances on the wage and hour laws, which the Trump administration has either reversed or seriously undercut. So in an election year, one of the things we look at in employment law is if there is a change in administration, what that’s going to mean for a lot of these policies?

Dr. Gary Deel: Sure. You mentioned earlier the “Me Too” movement and the sexual harassment, sexual discrimination related matters. Just to provide context for our listeners, are there current prescriptions?

Obviously, the act of harassing someone in most contexts, to the extent that it involves words or actions, probably qualifies as sexual assault or sexual battery, which is criminal on its own. But are there any prescriptions that are required under federal law now that businesses have to abide by?

We could argue, of course, that it’s a good idea to have things like sexual harassment training and making sure that people understand what they can and can’t do. But are those legally prescribed, or are they just good advice and nothing that the employer really has to do?

Dr. Rhonda Reaves: In the employment area, harassment is most definitely prescribed. Title VII “because of sex” language, has been interpreted to include sexual harassment as a violation of Title VII. Harassment on any basis is a violation of Title VII, whether it’s religion or national origin. Under the disability discrimination act, the Americans with Disabilities Act, it also has a provision against harassment on the basis of someone’s disability.

Dr. Gary Deel: Absolutely. And I wanted to go back in the context of our discussion about Our Lady of Guadalupe School, because we discussed how there are certain exemptions or loopholes with respect to religious institutions and churches and so on.

So with respect to anything that we’ve talked about today, including the “Me Too” sexual harassment concerns and the prescriptions in Title VII thereto, is there anything in Title VII that is hard and fast, relevant and applicable, to the religious institution world? Or is that world pretty much exempt from all manner of protections against discrimination or harassment of that kind?

Dr. Rhonda Reaves: No. They’re not. So the Title VII statutory exemptions talk about exempting religious employers from claims of discrimination on the basis of religion. But it, at least on its face, doesn’t exempt them from discrimination on the basis of other characteristics, based on race for example.

But we were talking before about trends that are coming up. What we’re really starting to see in employment law is really this crossover, this conflict or potential conflict, between protections under Title VII, now including sexual orientation and gender identity, versus religious objections.

So one of the issues that was raised in the Court in Bostock is this concern about what will religious employers do? Or not just religious employers who have an exemption, but employers who have religious or moral objections to the employee’s change in gender, the gender identity claims, or something like that. How will the courts will resolve that conflict?

Dr. Rhonda Reaves: Will they expand the concept of who can be considered exempt to accommodate those sorts of concerns? Or will they enforce the laws against these employers and say that despite your moral objections, you still can’t discriminate against someone just because of who they love.

Dr. Gary Deel: Right. And I think that’s pertinent because I was thinking back to Our Lady of Guadalupe’s case. Obviously, the key factor there, as I understand it, was the age. It wasn’t that the teachers had suddenly decided that they were no longer going to subscribe to the religious denomination of the school for which they worked.

It was the argument that there was an age-related claim there, but an exclusion or a reluctancy to pursue that on the ministerial grounds which you would think would only be specific to the religious context and one’s religious beliefs.

Dr. Rhonda Reaves: No. Absolutely. I think that’s what’s probably most disturbing about these cases, is that one of the plaintiffs is claiming you didn’t renew my contract because I got old, not because I wasn’t being faithful to the religion. And the other one was, you didn’t renew my contract because I have cancer.

Dr. Gary Deel: Right. Yeah. Medical issues.

Dr. Rhonda Reaves: Yes. And in this case, by upholding the exemption, they’re basically saying, “Yeah, if you are a ministerial employee then your religious employer can just say, ‘I don’t care if you have cancer, I’m going to fire you.’”

Dr. Gary Deel: Yeah. It arguably opens a door for discrimination on the rest of the protected classes if age or disability or a medical condition is no longer relevant grounds for protection.

Dr. Rhonda Reaves: That’s exactly what the ministerial exception does. It expands the ability to discriminate on these other bases, which they otherwise would not be able to do.

Dr. Gary Deel: Absolutely.

Dr. Rhonda Reaves: So in your janitor example, they wouldn’t be able to fire the janitor, assuming a janitor can’t be a ministerial employer, because he isn’t a ministerial employee. You couldn’t fire the janitor because he got cancer, but you can fire this teacher.

Dr. Gary Deel: Right. As long as they can be properly qualified as a minister.

Dr. Rhonda Reaves: Yes.

Dr. Gary Deel: Well, perfect. I want to thank you for sharing your expertise and perspectives on this topic, and thanks for joining me today for this episode of Intellectible.

About the Speakers

Gary DeelDr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

Rhonda ReavesDr. Rhonda Reaves is a professor of law at Florida A&M University College of Law in Orlando, Florida. She teaches classes in employment law, employment discrimination law and property law. She writes in the area of race and gender discrimination in employment law. Rhonda is a graduate of Yale University and Stanford Law School. Rhonda originally hails from Los Angeles, California, where she practiced law for several years before becoming a law professor.

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