Friday, September 26, 2008

And High Time, Too: A Transgender Rights Landmark

A federal judge on the D.C. District Court recently issued what may become a landmark decision regarding whether people who are transitioning between genders are protected from gender-based discrimination by Title VII. In Schroer v. Library of Congress, (No. 05-CV-1090(JR)), an opinion both thoughtful and thorough, the Court found that the Library of Congress (LOC) violated Title VII when it withdrew a job offer after the otherwise-highly-qualified plaintiff disclosed that she was in the midst of a gender-transition protocol and would soon begin to dress and otherwise identify as a woman in public. The official to whom Schroer made the disclosure had literally started to write the memo recommending that she be hired when the disclosure was made but, upon learning of Schroer’s plan to change genders, decided not to recommend Schroer and instead offered the job to a significantly less-qualified male candidate who was not going through a sex-change protocol.

The rescinded job offer was for the position of Specialist in Terrorism and International Crime with the Congressional Research Service (CRS) of the LOC. The Specialist’s duties would include providing expert policy analysis to congressional committees, members and staff. Schroer had a very impressive resume, including degrees from the National War College and the Army Command and General Staff Colleges and masters degrees in history and international relations. Schroer had retired as a colonel assigned to U.S. Special Forces Command, and had 25 years of military service, including command and staff positions in the Armored Cavalry, Airborne, Special Forces, and Special Operations units, and combat operations experience in Haiti and Rwanda.

Unfortunately for Schroer, she felt the need to tell LOC about her transition plans before the job offer was formalized. She explained that dressing and presenting as a woman on a daily basis would be the next stage in the transition protocol, and showed the recommending official a photo of herself dressed as a woman. The recommending official was put off by the picture, seeing only, in her words, “a man dressed in women’s clothing,” and expressed bafflement that someone with Schroer’s extensive military background would “want” to become female. Schroer explained that her gender identity was not really a choice. The recommending official immediately contacted LOC’s security officer to ask how transgendering might affect Schroer’s chances of getting the required security clearance. Within twenty-four hours the LOC had revoked Schroer’s job offer.

As its non-discriminatory explanation for failing to hire Schroer, the agency focused on concerns about whether Schroer would be able to get a security clearance given her diagnosed gender-identity disorder (and thus her male-to-female transition). Weirdly, though David Schroer had a clearance, LOC was concerned that Diane Schroer, under her new name, somehow might not. The agency also noted that because CRS Specialists usually provide a brief bio when testifying before Congress, Schroer would lack credibility because no woman could possibly have a resume which included Schroer's particular kinds of military experience. Alternately, Schroer’s bio would tip off everyone who heard it that Schroer was a transsexual, because that was the only way a woman could possibly have such a resume.

Each of these explanations was discredited at trial. As the court noted, the agency overlooked, or made no effort to learn, the salient facts that (1) Schroer already had a security clearance at her old job, (2) clearances are usually honored by new employers as long as the investigative file is complete (Schroer’s was), and (3) Schroer’s military contacts that had so impressed the LOC when it made the job offer were well aware of the impending transition and had no intention of cutting her off because she was becoming female. Also, ironically, the person who got the job instead of Schroer had no clearance for the first several months after he was hired. Thus, none of the LOC's proffered reasons would have posed a real obstacle to hiring Schroer had the LOC made the slightest effort to learn whether they had any merit.

The Court found that the LOC had violated Title VII in two different ways: by sex-stereotyping and by discriminating “because of . . . sex.”

Sex-Stereotyping
The Court invoked a line of cases descended from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female employee not promoted because she was regarded as insufficiently feminine in dress and manner). In Hopkins the Supreme Court held that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” A hiring decision based on an employer’s negative reaction to an employee’s non-compliance with sexual stereotypes violates the statute. The Court called recommending official’s negative reaction to seeing the photos of Schroer in female clothing, and her concern that an overtly female or transgendered Schroer would not be taken seriously by Congress, “direct evidence, and compelling evidence, that the Library’s hiring decision was infected by sex stereotypes.”

Discrimination Because of Sex
The Court found that the LOC’s actions violated the plain language of Title VII, which prohibits discrimination “because . . . of sex.” As Judge Roberts noted, “The evidence establishes that the Library was enthusiastic about hiring David Schroer - until she disclosed her transsexuality. The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination ‘because of . . . sex.’” Further, “[i]magine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.” Refusing to hire a person because he or she is changing sexes - rather than religions - is similarly, and blatantly, discriminatory on the basis of sex.

To date, most courts have held that transgendered folks are not covered by Title VII. The Decision in Schroer expressly repudiates prior caselaw in which courts have refused to find that Title VII covers transsexuals by "focusing too narrowly on the statute’s goal of ensuring that men and women are treated equally." This decision is a major step forward by an extremely influential district court. Let’s hope that other judges within the D.C. Circuit, and the appellate court on review, will build on the enlightened approach articulated in Schroer as appropriate fact patterns present themselves in future.

Wednesday, August 20, 2008

State Ends Extremely Regrettable Ban on HIV-Positive Foreign Service Hires

The State Department’s medical classification system was changed in earlier this year as a result of another D.C. federal court case, Taylor v. Rice, filed in 9/2003. The plaintiff, Lorenzo Taylor, speaks three languages and graduated from Georgetown’s SFS; he “easily” passed the FS exams (per the Washington Blade) and seemed well on his way to becoming a U.S. diplomat. However, after the State Department found out Mr. Taylor was HIV positive, it revoked his job offer because of his HIV status.

Incredibly, until a few months ago this was State’s ironclad no-exceptions-so-don’t-even-ask policy, even for individual applicants whose HIV was asymptomatic and who thus had no specific health needs related to their positive status. State’s rationale for this blanket policy, as in the breast cancer case discussed below, was that HIV patients might have heightened medical care requirements which could not adequately be met in some posts; therefore, it refused to hire any HIV positive foreign service officers - even those who, like Mr. Taylor, did not have any heightened medical needs or special vulnerabilities - for assignments to any posts.

Mr. Taylor sued, with good reason. The legal term of art for a case like this is “a slam-dunk.” It should be needless to say that State’s former policy, which ignored the actual health status of the individual job applicant, was in blatant violation of the Rehabilitation Act. The Act expressly prohibits discriminating against someone because of their disability or perceived disability. (The courts have held for years that HIV can be a disabling condition because of the obvious substantial limitations it places on major life activities like sex and reproduction. State obviously perceived HIV-positive status to be disabling even if it was not in individual cases.)

Given the slam dunk nature of this case, once the case was set for trial, State wisely settled. Lambda Legal represented plaintiff Taylor, with support from attorneys at Arnold & Porter. Unfortunately, the settlement terms required Mr. Taylor to agree not to seek to join the foreign service. This is actually a loss to the Foreign Service, as the tri-lingual Mr. Taylor was a graduate of Georgetown’s SFS and would have been a shoo-in if not for his HIV status.

Under the new policy, new foreign service officers still must be available for world-wide deployment - but FSO candidates are now entitled to a case-by-case analysis of their actual health condition and capabilities, rather than automatic rejection due to a given diagnosis.

Here’s hoping that these recent developments help to ensure in future that the Foreign Service includes the best and brightest that this country has to offer, even if the best and brightest are unlucky enough to have to deal with HIV or cancer. At least in the future we will not be needlessly deprived of the services of talented foreign service officers solely because of their HIV-positive and cancer-survivor status.

See Lou Chibarro, Jr., “State Department Ends HIV Ban for Foreign Service,” Washington Blade Online, available at http://www.washblade.com/2008/2-29/news/national/12125.cfm.

No Cancer Survivors Need Apply. . .

In July the D.C. Circuit reversed summary judgment in Adams v. Rice, No. 05-CV-00941, a disability case filed by a candidate for the Foreign Service against the State Department. Ms. Adams took the Foreign Service exam and passed, scoring 7th out of a class of 200. She received her final security clearance and was notified on October 2, 2003 that she could expect to receive an appointment in the Foreign Service in January 2004. The next day, Ms. Adams notified State that she had recently undergone a mastectomy and removal of her ovaries and fallopian tubes as part of successful treatment of early-stage breast cancer. Shortly thereafter, State asked Ms. Adams to provide medical documentation regarding her current condition and future treatment plans and needs. Ms. Adams’ doctor certified that she was cancer-free and that there were no limits on her ability to serve anywhere in the world. Going forward, Ms. Adams needed only an annual mammogram, one daily anti-cancer pill, and a “clinical breast exam” every six months.

Despite the fact that Ms. Adams was cancer-free, State refused to issue her a Class-1 clearance, which would allow her to serve anywhere worldwide - a requirement for new FS officers. Instead, she was given a Class-5 clearance (for those who have “a medical condition which is incapacitating or for which necessary specialized medical care is best obtained in the [U.S.]”) on grounds that only about half of overseas posts had surgeons or oncologists available to perform the semi-annual breast exams she needed. Consistent with State’s policy, Ms. Adams was automatically denied entry into the Foreign Service because she was not “worldwide available.” State later denied Ms. Adams’ request for a waiver even after her doctor explained that any competent physician or nurse-practitioner could perform the semi-annual breast exams.

Ms. Adams sued, arguing, among other things, that she is “disabled” within the meaning of the Rehabilitation Act (and the ADA) because she has a record of a disabling condition - her recent successful bout with breast cancer. She alleged that the State Department discriminated against her on the basis of her disability by refusing to offer her the Foreign Service appointment to which she was otherwise entitled because of her breast cancer. The district court, though calling State’s refusal to accept the medical certifications that Ms. Adams was healthy or to find a way to meet her few medical needs “callous and unreasonable,” granted summary judgment because it found that she was not covered by the Act. The D.C. Circuit reversed, finding that Ms. Adams is “disabled” because she has a record or history of a medical condition (breast cancer) which has substantially limited at least one major life activity - sexual reproduction. Ms. Adams testified that her cancer treatment has had residual psychological effects - a severe fear of rejection based on her changed physical appearance and a loss of libido - which have left her “limited in the major life activity of sexual contact and romantic intimacy.” The government did not challenge Ms. Adams’ assertions regarding her post-cancer psychological state, and the Circuit Court held that engaging in sexual relations qualifies as a major life activity. It further held that she had alleged a substantial impairment in that activity. Therefore, she is “disabled” within one meaning of the disability statutes, and her case was remanded for trial.

Message to State: after a federal judge has called you “callous and unreasonable,” you would do well to keep the facts in question away from a jury. Break out the checkbook and do the right thing.

Tuesday, May 20, 2008

The GAO Strikes Back!!

On May 14, the House Agriculture Committee conducted a hearing into USDA’s "progress" in improving its treatment of minority farmers and employees. At the hearing, the GAO reported that USDA’s claims about its progress in reducing a backlog of employment or program complaints of discrimination cannot be verified, due to poor record-keeping. The Washington Post quoted Lisa Shames of the GAO, who testified that “at a basic level, the credibility of USDA’s efforts has been and continues to be undermined . . . by faulty reporting of data on discrimination complaints and disparities in . . . data.” She added. “Even such basic information as the number of complaint is subject to wide variation in . . . reports to the public and the Congress.”

According to the Post, the EEOC and GAO have repeatedly criticized USDA for taking an average of two years longer than standard to process employment complaints. This has lead to serious, though apparently unquantifiable, complaint backlogs. Even worse, according to Rep. Edolphus Towns (D -NY), USDA civil rights employees are subject to retaliation when they report discrimination. Meanwhile, John Boyd of the National Black Farmers Association said, “We think civil rights is going backwards at the department . . .They can’t tell us what’s going on with the cases. There’s no commitment whatsoever to rights. The GAO testimony supports what we’ve been saying for the past couple of years.”

USDA Civil Rights was in the news earlier this year when Civil Rights employees were ordered by managers not to speak to GAO auditors and the auditors themselves were ejected from the building. See “USDA Shuts Down Congressional Audit,” Associated Press, 2/28/2008. The thwarted auditors were seeking - wait for it - information for an ongoing audit on USDA Civil Rights and its handling of discrimination complaints. USDA OCR actually instructed employees, in writing, “not to meet with any member of the [GAO] today, or until this matter is resolved.” In writing!

USDA CR's open attempt to keep its employees from talking to GAO was simply amazing given that a hearing was already in the works. Senator Grassley announced back in January that he would hold a hearing on USDA's "progress" in shaking off its disgraceful history as the last of the "old-line" agencies. (For the uninitiated, "old-line" is code for "openly hostile to minority employees and farmers.") Not sure how the House got there first, but the question remains: what could USDA have been thinking?

The moral of this story: unless you’re Dick Cheney, don’t fight the GAO. They know the big guns on the Hill and the scuffle will end with you sitting in a hearing room having your head handed to you while the Post and the AP take notes.

A Tale of Two Branches

It’s interesting the different approaches of the Executive and Legislative branches to the whole whistleblower thing. The 110th Congress has been working for quite some time towards increasing the protections available to federal employees who make protected disclosures and out their federal employers as having violated some law. The Whistleblower Protection Enhancement Act (H.R. 985) is intended to strengthen protections which are supposed to be in the Whistleblower Protection Act but have been significantly eroded by Federal Circuit case law over the years. The House version is excellent, including protections for:

(1) national security whistleblowers at the FBI and intelligence agencies;

(2) government contractors; and

(3) federal baggage screeners;

(4) jury trials for a fair day in court; and

(5) reinforced protections for federally-funded scientists.

The House passed H.R. 985 in March 2007 and the Senate passed a somewhat less impressive version of the same legislation (S.274) unanimously in December 2007. Yay, Congress! The bill, which has been hatching for the last eight years, is now in conference committee. Presumably, at some point, it will emerge and will go to President Bush. Who will then veto it.

Why? Good question. This administration’s hostility to whistleblower rights is both totally irrational and quite startling. Congress earlier cleverly packaged some defense contractor whistleblower protections in H.R. 4986 - the National Defense Authorization Act for Fiscal Year 2008 - which the president could hardly veto. Section 846 of the NDAA08 would protect employees of defense contractors when they report fraud to Congress, an inspector general, the GAO, or a DOD employee charged with overseeing contracts. Who could possibly disagree with that?

The Decider, that’s who. Unfortunately, the President had recourse to one of his infamous and almost certainly unconstitutional signing statements. The signing statement for H.R. 4986 reads, in pertinent part:

Provisions of the Act, including sections 841, 846, 1079 and 1222, purport to impose
requirements that could inhibit the President’s ability to carry out his constitutional
obligation
to take care that the laws be faithfully executed, to protect national security, to
supervise the
executive branch and to execute his authority as Commander in Chief. The
executive branch
shall construe such provisions in a manner consistent with the
constitutional authority of the
President.

Got that? No matter the plain language of the statute that was enacted by Congress consistent with all constitutional requirements. The Executive Branch will not enforce it.

Umm, how can they do that? Again, good question.

(Thanks to the Whistleblower Protection Blog for reporting this issue.)

Unsurprisingly, elsewhere in the Executive Branch, whistleblowers are having a hard time of it under the current state of the law. On March 25, a group called Public Employees for Environmental Responsibility (PEER) released its analysis all of the decision by Labor Secretary Elaine Chao’s Administrative Review Board (ARB) from 1996 through 2006 under the Whistleblower Provisions of the Clean Air Act, Safe Drinking Water Act, Superfund, Clean Water Act, Toxic Substances Control Act, Solid Waste Disposal Act and the Energy Reorganization Act. The ARB reviews all recommended decisions by non-partisan administrative law judges following evidentiary hearings into each whistleblower’s claim.

Our readers will no doubt be shocked to learn that reversals of pro environment whistleblower decisions rose 250% during the Bush years. PEER reports that the Bush ARB reversed 7 out of 10 pro-whistleblower decisions, in stark contrast to the Clinton ARB, which affirmed 7 out of 10. Incredible.

Monday, February 25, 2008

Retirement Becomes Slightly More Realistic ...

As employment lawyers, we inevitably deal with retirement and other employee benefit issues, but at this firm we aren't employment benefits specialists. (They would be the geeks who aced all the tax courses in law school.) However, no tax expertise is required to recognize the importance of the Supreme Court’s recent ruling that individual employees who participate in a 401(k) have a right to sue for equitable relief when the value of their individual retirement assets has been depleted due to a fiduciary breach by plan administrators. In LaRue v. DeWolff, Boberg & Associates, Inc., et al., Slip op. 06-856, decided on February 20, 2008, the Court held that §502(a)(2) of the Employment Retirement Income Security Act of 1974 (ERISA) “does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account.” Interestingly, there were no dissents, but every justice signed on either to the majority opinion (by Justice Stevens) or to the concurrences by Chief Justice Roberts (wondering whether §502(a)(1)(B) is not a better fit) and Justice Thomas (construing “losses to the plan due to fiduciary breach” to include losses within LaRue’s individual plan account).

The majority opinion is short and to the point. Primarily, it distinguished LaRue’s 401(k) problems from those at issue in an earlier case, Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985), which the lower courts had referenced in dismissing LaRue. Mr. LaRue argued that a failure to reallocate his plan assets as he had instructed had lowered their value by approximately $150,000. He was seeking to recover those losses. The Court noted that ERISA’s definition of fiduciary obligations is primarily concerned with payment of benefits to beneficiaries, the financial integrity of the plan and plan asset management and stated, “The misconduct alleged by [LaRue] falls squarely within that category.” By contrast, the employee in Russell suffered secondary losses due to an improper temporary termination of benefits but did eventually receive all of the benefits to which she was entitled under the plan. In Russell the Court held that ERISA §502(a)(2) does not permit individual beneficiaries to recover compensatory or punitive damages for delayed payment of benefits.

From the employee’s perspective, LaRue is a very positive development. ERISA was enacted in 1974 and, as I seem to recall from that extremely interesting class way back in law school, has not been updated in particularly helpful ways since then. Back in 1974, many employers offered honest-to-goodness pension plans ("defined benefit plans") wherein, if you gave the company twenty or thirty years, the company would take care of you in old age. (Health care costs were much more reasonable back then, too.) Many of ERISA’s retirement-security provisions are concerned with old-style pension plans, which are increasingly irrelevant today. Today, pensions are almost solely available to public sector employees; most private-sector employees do not expect to receive anything other than social security benefits and the proceeds of whatever they themselves have invested through 401(k)’s and other "defined contribution" investment vehicles. If you are lucky, your employer matches your 401(k) contribution. Thus it is crucial that individuals have the right to seek redress if a plan fiduciary violates its duty of care in ways that could seriously diminish the value of individual retirement savings.

ERISA is based on the law of trusts. The decision in LaRue is consistent with the idea that a person who willingly accepts responsibility for managing a retirement plan has a heightened duty of competence and loyalty to plan participants - like a trustee or the executor of an estate. If a plan administrator pockets retirement funds, invests retirement funds for his or her own benefit, or, as in LaRue, fails to comply with employee requests to reallocate funds within a reasonable amount of time, s/he shouldn’t be in charge of a retirement plan with millions of dollars in assets. And the employee now has a way to recover the lost value.

Importantly, in LaRue the court did not address whether a fiduciary breach had actually occurred in the case, whether the depletion in value was as great as the employee claimed, or whether the depletion in value was attributable to the alleged breach. Now that the Supreme Court has decided that Mr. LaRue has the right to sue, he must prove all of these key points in the trial court.

The Court also expressly stated that it was not ruling on whether Mr. LaRue was required to exhaust the complaint process specified in his plan’s handbook and other documents before bringing his case in court. This is a very dangerous issue: it may well turn out that, though he has scored a great victory for employees who have 401(k)s, he forfeited his own right to obtain relief by failing to complain timely about the plan’s failure to reallocate his assets in a timely manner or to exhaust the entire dispute resolution process specified in the plan before going to court. It is an (all too common) recipe for disaster. The moral of nearly every story that involves ERISA is this: you must be familiar with the plan documents because they establish the rules of the game. If the plan documents say that you have to complain about or grieve a problem within a set amount of time, make sure you do it. For his sake, we hope Mr. LaRue did.

Thursday, January 17, 2008

Opening Argument

Hello! Welcome to KCNBLAWG, the blog of law firm Kalijarvi, Chuzi & Newman, P.C. Located in downtown Washington, D.C., this firm was founded thirty years ago by June Kalijarvi, one of the first women to graduate from Georgetown University Law Center. When she graduated, June found that literally no employer was willing to hire her because she was a woman, her Georgetown law degrees notwithstanding. Thus, she had no choice but to start her own firm, and she decided to specialize in the then-brand new field of employment discrimination. Thirty years later, we’re still going strong, and still practicing in the ever-evolving and absolutely crucial area of employment law - the one practice area which impacts nearly every person in this country every day.

Due to our location, we specialize in federal employment cases but we also represent private sector clients as well. We represent employees, agencies, private-sector employers and non-profits. Our practice is nationwide: we travel to all fifty states and abroad for federal cases and have worked with local counsel in jurisdictions where our attorneys are not licensed to practice. Just FYI, the attorneys of this firm are licensed to practice in Maryland, Virginia, Pennsylvania, New Jersey, New York, California, and, of course, the District of Columbia.

The “vision” for this blawg is to be a weekly-updated employment law blog which will point out interesting developments (okay, “interesting” to people who care deeply about employment law) either by posting our own content or by providing links to other websites or articles of interest. We will of course also provide you with our take on the issues, because (we are constantly told) we are extremely argumentative. (Hello, we’re litigators!) We won’t be discussing our own cases unless and until there is a final disposition that is a matter of public record and/or a settlement that is not subject to a confidentiality clause.

Caveats: Please note that this blawg will emphatically NOT be providing legal advice. Employment law, like most practice areas, is extremely fact-specific. Title VII, the ADA and the ADEA are complicated, to put it mildly. Even the most basic considerations - like the deadlines for filing complaints - can vary depending on what seems like negligible details to the average person. If we happen to discuss a certain case (or statute or reg) herein and it sounds like the case might have some applicability to problems you are experiencing at work, please do not think that you can rely on the blog entry as legal advice. Just to be clear: you can’t rely on the advice of anyone who isn’t your attorney. And you aren’t our client unless you have (1) called us to make an appointment, (2) come in for a consult, (3) received an offer by us to represent you, and (4) signed a retainer agreement. So, if you think you may have an employment claim or lawsuit, even if you don’t call us, please contact an attorney and be prepared to pony up the money to get professional advice about your individual case. Even if you find out that you don’t have a case, it could be the wisest money you’ve ever spent because you won’t spend the next two years trying to convince a judge that your case should not be dismissed even though you missed a filing deadline or forgot to mention something crucial until a year into the case (e.g., that in addition to being a racist/sexist/ageist jerk, your boss also demoted you two years ago after you refused to go out with him (or her)).

Also, please don’t assume that we will be posting everything that you need to know about current developments in employment law. Frankly, there will be weeks when we’ll simply be too busy to fiddle with the blog, for which we apologize in advance.

Last of all, the editor for KCNBLAWG is me, Heather White. I’m an associate attorney at KCN and have practiced both labor and employment law for the last four years, in New York and then D.C., since graduating from Tulane Law School. Your emails, should you choose to send us any, will come to me. And most of the time, our blog entries will be posted by me, thus the “HGW” signature.

Any questions? Let us know! And thanks for stopping by. Check with us on Mondays for the latest, and bookmark us if you like what you read - or if you at least find it interesting. You don’t have to like us. You just have to read us.