Who Judges the Judges? Federal Judiciary Adopts New Workplace Conduct RulesIn light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating employees to report any misconduct behind the bench. The conference amended the Code of Conduct and Judicial Conduct and Disability Act rules to make clear that misconduct includes:

  1. Sexual harassment or assault.
  2. Creating a hostile work environment for judicial employees.
  3. The broad category of treating judicial employees in a “demonstrably egregious and hostile manner.”
  4. Intentionally discriminating on the basis of race, color, sex, gender, religion, pregnancy, national origin, age or disability. Interestingly, judges are also prohibited from discriminating on the basis of gender identity or sexual orientation – two categories that are the basis of a current split among the courts.
  5. Retaliating against complainants, witnesses or others for participating in the complaint process or for reporting misconduct or disability.
  6. Failing to notify the chief district or circuit judge of reliable information reasonably likely to constitute judicial misconduct or disability.

The amendments also streamline how employees can report misconduct and implement training in identifying judicial misconduct. These requirements will primarily be accomplished through the new Office of Judicial Integrity, which will collect the confidential complaints.

Now what?

No one thinks that the judges didn’t know their legal obligations or that they were allowed to harass employees prior to these amendments. However, it is a sign of the times that the courts decided to explicitly state their commitment to prohibiting harassment, to make it easier to report, and to reiterate non-retaliation protections. It may be interesting to see how judges in the circuits who have ruled specifically against protecting against discrimination based on gender identity and sexual orientation will react to the fact that their own Judicial Code of Conduct recognizes those as protected classes.

Why does this matter to regular folks?

Although the courts knew what the law said, judges will now have a written guideline for how a policy should look. In the future, when a judge needs to assess the sufficiency of a company’s harassment policy and complaint-reporting procedure, that judge may look to these new judicial requirements as a minimum. Companies would be well served to make sure their policies at least hit the high points.

Fifth Circuit Rejects Title VII Transgender Protection, but Grants Summary Judgment on Other GroundsIn Wittmer v. Phillips 66, Judge James Ho of the Fifth Circuit wasted no time stating the Fifth Circuit’s position on whether sexual orientation or transgender status are protected classes under Title VII – they are not. Interestingly, however, the defendant did not even raise that as a defense. In fact, the lower court and the Fifth Circuit both found in favor of Phillips 66 on other grounds. But it is pretty obvious from the majority opinion, and Judge Ho’s concurring opinion, that the Fifth Circuit wanted the world to know how it feels about the extent of sex discrimination protection under Title VII.

Nondiscriminatory Reason: Misrepresentation during the Interview

Nicole Wittmer, a transgender woman, applied for a position with Phillips 66. During her interview, Wittmer talked about her current employment with another company and the fact that travel with that job was why she wanted to change jobs. However, when Phillips 66 did a background check, it learned that Wittmer had actually been terminated from that company a month before. Disturbed by this inconsistency, Phillips 66 decided not to give Wittmer the job. Wittmer then wrote to them and alleged that Phillips 66 discriminated against her because of her transgender status. For its part, Phillips 66 said it had no idea about Wittmer’s transgender status before she sent that after-the-fact email and told her that the information would not have affected its decision anyway. Disagreeing, Wittmer filed a lawsuit alleging discrimination under Title VII based on her transgender status.

Phillips 66’s Defense

At the lower court level, Phillips 66 took no position on whether Title VII prohibits transgender discrimination. Instead, it moved for summary judgment arguing that Wittmer had not stated a prima facie case of transgender discrimination and, even if she had, that Phillips 66 had a legitimate, non-discriminatory reason for not hiring her—misrepresentation in her interview. The lower court granted summary judgment, and Wittmer appealed.

On appeal, Phillips 66 again decided not to take a position on whether Title VII prohibits transgender discrimination. Instead, it stood on the defense that it chose not to hire Wittmer because she didn’t tell the truth during her interview about her current employment.

Fifth Circuit Opinion

Although the Fifth Circuit ultimately agreed with the lower court that Wittmer didn’t establish a claim of discrimination and that Phillips 66’s reason for not hiring her was not pretextual, the court went out of its way to address the transgender Title VII issue. (The one that the defendant didn’t raise.) Judge Ho wrote the majority opinion and stated that although three other circuits have found that Title VII prohibits discrimination on the basis of sexual orientation or transgender status, the Fifth Circuit does not recognize that prohibition. Relying upon its 1979 Blum v. Gulf Oil Corporation decision holding that Title VII does not prohibit discrimination on the basis of sexual orientation, the Fifth Circuit rejected Title VII coverage for transgender status. Judge Ho also authored a 14-page concurring opinion in which he strongly takes issue with some of the developments in gender identity and transgender discrimination law.

Where Does That Leave Us?

This opinion leaves little doubt that the Fifth Circuit (which covers Mississippi, Louisiana and Texas), as of right now, does not recognize sexual orientation or transgender status as automatically protected classes under Title VII. Although Judge Ho’s concurring opinion takes some shots at the U.S. Supreme Court’s Price Waterhouse v. Hopkins decision on gender-stereotyping discrimination, the majority opinion did not hold that the Fifth Circuit rejected such gender-stereotyping protection. This opinion further sets up a circuit split that is likely to be decided by the U.S. Supreme Court sometime in the future.

Take Two: Alabama’s City Versus State Minimum Wage Dispute to Get Full Appellate ReviewMinimum wage laws invite controversy, and Alabama’s latest tug-of-war between the state and its largest city is going to get another wider review. You may recall that back in 2015, Birmingham, Alabama, passed a local minimum wage law. On the heels of that move, the Alabama Legislature then passed a state-wide minimum wage law, preempting local city laws. In response to the state’s new law, some Birmingham citizens, along with the NAACP, contended that the law discriminated against minorities and filed suit. After the federal district court dismissed the case, in July 2018 a three-judge panel of the Eleventh Circuit reversed, finding the plaintiffs asserted a plausible 14th Amendment claim. Under that decision, the litigation could go forward. That ruling, however, was recently vacated, and now every judge on the Eleventh Circuit court will weigh in on the matter.

Minimum Wage Controversy

In April 2015, the Birmingham City Council passed a resolution calling on the Alabama Legislature to raise the minimum wage to $10 per hour. The Alabama Legislature declined, so the Birmingham City Council adopted its own ordinance to raise the minimum wage, first to $8.50 per hour and then to $10.10 per hour.

Almost immediately thereafter, a state representative introduced a bill to quash the local ordinance and establish a uniform minimum wage throughout the state. The state has no minimum wage above the current federal minimum wage of $7.25 per hour. The Alabama House passed the bill in February 2016. In the meantime, the Birmingham City ordinance raising the minimum wage to $10.10 per hour went into effect, but only briefly. The next day, the Alabama Senate passed, and then Gov. Bentley signed, the Minimum Wage Act mandating the minimum wage be set at the federal minimum of $7.25 per hour and preempting all local laws. The law preempts all local labor and employment laws that a city or municipality might attempt.

Procedural Background

A few months later, a group of Birmingham residents, along with public interest groups, filed suit against the governor and state attorney general claiming racial discrimination under the 13th, 14th, and 15th Amendments of the U.S. Constitution and Section 2 of the Voting Rights Act. The plaintiffs contended that the state law has both a discriminatory purpose and effect. The state argued in response that the law is facially neutral. The federal district court dismissed all claims in February 2017, and the plaintiffs appealed to the Eleventh Circuit.

The three-judge panel of the Eleventh Circuit affirmed the dismissal of the claims under the 13th and 15th Amendments, as well as under the Voting Rights Act. However, it reversed the district court’s dismissal as to one claim, finding that the plaintiffs stated a plausible claim that the Minimum Wage Act purposely discriminated against Birmingham’s black citizens in violation of the 14th Amendment. In reversing, the panel highlighted that, according to the complaint, the act denied 37 percent of the city’s black wage earners a higher wage, compared to only 27 percent of white workers. Further, according to the complaint, black workers earn, on average, $1.41 less per hour in the city and $2.12 less per hour statewide than white workers. The panel’s ruling found it plausible that the act bore more heavily on black workers and that the plaintiffs had indeed stated a viable claim, deeming the legislative vote to have been “rushed, reactionary, and racially polarized.”

Shortly after the panel’s ruling, the State of Alabama and its attorney general filed a motion to have the matter reheard by the entire Circuit Court. In its motion, the state said the case “raises fundamental questions about the dignity of States, the efficacy of federal-court proceedings, the standard for finding state-sanctioned racism, and the role of courts in shaping public discourse” making it “an exceptionally important [case] that absolutely requires the full Court’s attention.”

Ruling Vacated and To Be Reviewed by Entire Circuit Panel

On January 30, the Eleventh Circuit granted the rehearing request (called “rehearing en banc”), thereby vacating the previous decision. Now the entire Circuit Court (12 judges) will review the claims and the district court’s dismissal. A rehearing of this nature is generally rare and granted only when necessary to maintain uniformity of decisions or for questions of “exceptional importance.” Reading the tea leaves of the decision suggests that the court will alter or revise the panel’s previous ruling in some way, but that is far from certain. Stay tuned for what will be a significant ruling related to Alabama’s minimum wage law and the discrimination allegations. For now, however, the minimum wage in Birmingham is still $7.25 an hour.