The Second Circuit has reversed the grant of summary judgment in a Title VII case, holding in a split decision that the totality of the evidence permits the inference that female job applicant was denied a bricklayer position because of her gender.
The case is Walsh v. New York City Housing Authority, decided on July 7. The job interviewers met with five candidates, including Walsh, the only female candidate. They asked Walsh about her experience working with brick and block. She said he had once constructed a glass block shower at a Home Depot Expo, and had done "little things on her own." The interviewers testified that they were surprised that Walsh had limited experience with brick and block, but she testified that the interviewers did not ask about her extensive experience with tile. No one asked about physical strength. After the interview, the man who oversaw the interview process told Walsh that the interviewers wanted somebody stronger. No woman had ever been hired for the position. Defendants said she was not hired because she lacked experience with brick and block.
Summary judgment was granted for the Housing Authority, but the Court of Appeals (Hall and Calabresi) reverses, ruling that the jury could find that Walsh was denied the job because of her gender. The Court emphasizes that discrimination cases must be examined as a whole, and that "no one piece of evidence need be sufficient, standing alone, to permit a rational finder of fact to infer that defendant's employment decision was more likely than not motivated in part by discrimination." Drawing from the movie My Cousin Vinnie, the Second Circuit says that "plaintiff may satisfy her burden by building a wall out of individual evidentiary bricks."
The following evidence brings this case to a jury: (1) no woman has ever worked for the NYCHA as a bricklayer. The Court reaches this holding for the first time, citing a district court ruling in another case for the proposition that something funny's going on when an agency as large as the Housing Authority never had a woman performing certain tasks, and that "zero is not just another number"; (2) although in failure to hire cases the plaintiff must show her credentials were far superior to the selectees (a legal standard that is rarely satisfied in the Second Circuit), the jury could find Walsh had far superior qualifications than at least two of the men, as she much more experienced as a tile setter, one of the main tasks of a bricklayer; (3) the supervisor -- who "was tasked with facilitating the interview process" and was present when the hiring decisions were made -- told Walsh that the interviewers wanted a stronger person for the position, betraying the stereotype that men are stronger than women. The fact that this party-opponent admission arrives through plaintiff's own testimony does not mean the jury need not believe it. This so-called "self-serving" testimony can suffice at trial.
One side note is that the majority makes passing reference to pretext, even though most disparate treatment cases require proof that the employer's reason for the adverse decision was a knowingly false one. The majority instead looks at the big picture and asks if the jury can find that plaintiff has proven an intent to discriminate. Another side note is that this is the second major case in a year in which the Court of Appeals has emphasized the "totality of the circumstances" approach to discrimination cases. The other was Vega v. Hempstead Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which said plaintiffs can win through "bits and pieces" of evidence that may form a "mosaic" of discrimination.
It occurs to me that federal judges, most of whom did not handle discrimination cases when they were practicing law, have to master the complex burden-shifting scheme governing Title VII and other discrimination statutes without ever having briefed or argued these issues in their prior lives, and without counseling or representing plaintiffs or defendants in this area. Eventually, each judge figures this out quickly, as the federal docket is loaded with these cases. But even under settled legal standards, these cases are often judgment calls. What is discrimination? What inferences can we draw from the evidence? What do we allow jurors to conclude based on the evidence? When do we take the case away from the jury and dismiss the case outright?
I raise this because Judge Livingston turns in a lengthy dissent that says Walsh probably does not even have a prima facie case (as she had no bricklaying experience), and that the majority "comes close to eviscerating the plaintiff's burden at step three of the McDonnell Douglas test" (which asks whether the employer's reason for the adverse action was a pretext). In suggesting Judges Hall and Calabresi have stretched the evidence past the breaking point, Judge Livingston further says, "one is left wondering what the majority means by 'reasonable' and 'inference.'" She even interprets the significance of "My Cousin Vinny" differently. In response, Judge Hall defensively says the Court has not changed the rules governing these cases, writing:
What the dissent perceives as weak evidence or mere scintillae, comprise a set of facts from which, if proven, a reasonable jury could conclude that NYCHA’s proffered reason for not hiring Walsh was a pretext for discrimination. That two members of a panel of this Court view a particular factual record as sufficient to pass muster at the summary judgment stage while the third member views the same record as insufficient does not amount to a change in the substantive underlying law. It is the job of judges to “apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the [decision below] and the record” supporting it. It is inevitable that, some of the time, reasonable judges conducting this process will reach conclusions different from those of their colleagues on the same set of facts.
As the Supreme Court winds down another term, the focus is on immigration, affirmative action and abortion. We tend to overlook the other cases that also impact our lives and could result in your being thrown in the slammer.
The case is Utah v. Streiff, decided on June 20. Under the exclusionary rule, if the police conduct an unlawful search and find something illegal, that illegal find cannot be used against you in court. We call it the "fruit of the poisonous tree." But there are exceptions to the exclusionary rule, and this case highlights one of them. Along the way, Justice Sotomayor dissents and tells us what Justice Thomas's majority decision means for the real world.
It all started when the police got a tip about a house that was the site of narcotics activity. The police followed one guy out of the house and approached him. That was Strieff. In the parking lot at the nearby convenience store, the police asked him for ID. The police relayed Strieff's information to a dispatcher, who found there was an outstanding warrant on a traffic violation. Strieff was arrested on that warrant, and in searching him incident to that arrest (normal police procedure), they found drug paraphernalia. Problem was, the initial stop of Strieff was illegal because there was no reasonable suspicion for it. The drug paraphernalia was the fruit of the poisonous stop. But that does not mean it cannot be used against him.
The 5-3 majority notes the exclusionary rule doesn't count in certain instances: (1) if the evidence would have been found through an independent source other than the guy who was stopped, (2) if the evidence would have been found even without the unconstitutional stop (the inevitable discovery rule) and (3) the attenuation rule, which says that "evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that 'the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."
Strieff gets nailed on the attenuation exception. The Court holds for the first time that the attenuation doctrine applies when the illegal stop results in the police discovery of a valid warrant against the defendant, and the arrest from that warrant reveals something illegal. As Justice Thomas puts it, the issue is whether "the discovery of a valid arrest warrant is a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff's person." The answer is yes. And another exception to the exclusionary rule is on the books.
Justice Sotomayor dissents, noting that outstanding warrants are common, particularly for traffic offenses, and that rulings like this have real-life consequences for people, including humiliating arrests that can include intrusive body searches and more incarceration:
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights. Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
. . .
Writing only for myself, and drawing on my professional experiences, I would add that unlawful "stops" have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Most remarkable for me is the dissent's reference to recent literature about the high rates for incarceration for minority groups. Justice Sotomayor writes:
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone's dignity can be violated in this manner. See M. Gottschalk, Caught 119-138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95-136 (2010). For generations, black and brown parents have given their children "the talk"— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
The Fair Labor Standards Act is the law that requires employers to pay you minimum wage and overtime if you work more than 40 hours a week. The overtime rule has a zillion exceptions, however. This case from the Supreme Court looks at one of them and holds that the U.S. Department of Labor lacked any legal authority to rewrite the rules governing overtime pay for service advisors who work at car dealerships.
The case is Encino Motorcars v. Navarro, decided on June 20. This case is a little boring, so let's spruce it up. The second you step foot into the parking lot at an auto dealership, a salesman will come-a-running in the hopes that you buy a car that will grant him a commission so he can feed his family. This case does not involve overtime for the salesmen. After you buy the car and it starts to fall apart because someone cut corners at the factory in Detroit or Japan, you have to return to the dealership to get it fixed. If you have a warranty or there is a recall, you have taken the car to the right place. Otherwise, as George Costanza once said, noting the excessive charges for dealership repairs, you'd have to be out of your mind to bring your car to a dealer. But the repair people have to make a living, too. This case involves the repair people, specifically the service advisors.
In 1966, Congress said there is no overtime requirement for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements or aircraft." The Department of Labor then issued regulations to enforce that law in 1970. That rule defined "salesman" to mean employees who are primarily engaged in making sales or obtaining orders or contracts for the sale of vehicles. The regulation also excluded service advisors -- who sell repair and maintenance services but not vehicles -- from the minimum wage requirements, which meant the dealerships could deny them overtime. In 2011, the DOL issued a new set of rules that said "salesman" only covers people who sell vehicles. In this case, service advisors sued to recover lost wages. The lower court said service advisors are no longer covered under the exemption, which means they can enjoy full FLSA protection and get their overtime. The employer appeals, claiming service advisors should still be exempt, consistent with the law passed in 1966; they argued the 2011 regulation is illegitimate.
A word or two about administrative law. When Congress passes a law, an executive agency like the Department of Labor, Department of Education, etc., has to issue regulations that help us to interpret and apply the law. This is what we call the bureaucracy. The regulations have to be consistent with the laws, to ensure that the agencies are not in essence writing up new laws. A good regulation fills in the blanks left by a vague law while remaining consistent with the law's aims. Since the regulators are not elected, they have to comply the Supreme Court's guidelines in the Chevron decision from 1984, which says the regulations have to be rational and consistent with Congressional intent.
The 2011 regulation in this case is not legitimate, the Supreme Court says, because it rewrote prior rules that the industry had relied on for years but did not provide any "reasoned explanation" for the change of course. This means the regulation is stricken and the case has to be decided under the law as written in 1966. More broadly, the Court is telling executive agencies to do a better job in explaining themselves when they rewrite rules that were in place for years and that the industry had relied upon.
This employment dispute asks whether an employer had cause to fire two employees who did not comply with an order to explain themselves in the context of a government investigation into possible criminal conduct.
The case is Gilman v. Marsh & McLennan, decided on June 16. The State Attorney General was investigating whether insurance brokers were steering clients toward particular insurance carriers. Marsh & McLennan hired a law firm to conduct an internal investigation into all of this. Plaintiffs were to be interviewed in this internal investigation. The AG's office then shifted its investigation into an alleged bid-rigging scheme involving Marsh and several insurance carriers. After people at AIG pleaded guilty to bid-rigging and identified plaintiffs as co-conspirators, plaintiffs were directed to sit for interviews and threatened with termination if they failed to comply with that directive. Meanwhile, the State Attorney General told management that it would forego criminal prosecution of the company if it cooperated with the investigation. Plaintiffs refused to sit for interviews. One was fired; the other resigned and was denied certain post-retirement benefits "for cause."
The Court of Appeals (Jacobs, Kearse and Winter) says plaintiffs were fired for-cause because they disobeyed a lawful order from management. The order was lawful because the employer was entitled to seek information from its employees about possible job-related criminal conduct. True, the employees may have had the personal right not to sit for these interviews. But management has rights, too.
The Court reasons:
Marsh’s demands placed Gilman and McNenney in the tough position of choosing between employment and incrimination (assuming of course the truth of the allegations). But though Gilman and McNenney “may have possessed the personal rights to [not sit for interviews], that does not immunize [them] from all collateral consequences that come from [those] act[s],” including leaving Marsh “with no practical option other than to remove [them].” “[T]here would be a complete breakdown in the regulation of many areas of business if employers did not carry most of the load of keeping their employees in line and have the sanction of discharge for refusal to answer what is essential to that end.” Marsh had to use the “sanction of discharge for refusal to answer,” id., because in the absence of an exculpatory explanation, Marsh needed to assume the worst: that the bid‐rigging allegations were true and that Marsh was vicariously liable for their criminal conduct.
The Second Circuit holds that a town in western New York may have violated the Fair Housing Act after it gave homeowners a chance to modify their property to accommodate their disabled child but required them to eliminate the improvements once the child stops living there.
The case is Austin v. Town of Farmington, decided on June 21. When plaintiffs moved to the town with their severely disabled son, they ran into zoning restrictions. The problem was the parents wanted to install a fence to keep the child within the yard, and an above-ground pool that would provide aquatic therapy. The town granted plaintiffs a variance and allowed them to put up the fence and pool. The catch was that the fence and pool must be removed from the property after the child stopped living at the property, or when plaintiffs sold the property. It cost the family over $30,000 to put in the fence, pool and deck. They then sued the town under the Fair Housing Act.
At first glance, I did not see the legal issue here, and there is not much case law governing disputes like this. The town granted plaintiffs the accommodation when they moved in. But while the town does not want the variance to run with the land -- allowing later occupants to enjoy the improvements -- plaintiffs want to avoid the cost of tearing down the improvements. They also want to capture the increase in value of the property caused by the modifications if they ever sell the property. The Second Circuit (Winter, Raggi and Droney) says a juror "might find that a restoration requirement in some circumstances so burdens a party wanting to modify a property to accommodate a disabled person that it amounts to a refusal of a reasonable accommodation."
As always in reasonable accommodation cases, the issue of "reasonableness" is complicated, with balancing factors that often require a full evidentiary record. When you draft a law that turns on "reasonableness," you are asking for a lawsuit. Here is how the Court of Appeals sums up the competing interests and balancing factors:
Applied to the context of land-use regulations, relevant factors may include the purposes of the restriction, the strength of the Town’s interest in the land-use regulation at issue, the need for uniformity, the effect of allowing later landowners without a disability to enjoy the lack of a restriction on pools, decks, and fences, while all their neighbors are subject to it, the likelihood that a permanent variance will cause other landowners subject to the regulation to seek similar variances, etc.
Balanced against those factors is the cost of removal –- again, whether out of pocket or in a reduced sale price. We say no more because there are undoubtedly a host of relevant factors looking in both directions to be considered. Moreover, we do not want to make gratuitous statements that may seem to address other of the multitude of land-use regulations, e.g. historic landmarking, etc.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.