Lawrence: An Unlikely Catalyst for Massive Disruption in the Sphere of Government Employee Privacy and Intimate Association Claims

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of \u27free adults to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public employment, the foundations of which, he contends, are now undermined because of the Court\u27s overruling of Bowers. This article presents a strong argument that the massive disruption theory is unfounded in the area of government employee privacy and intimate association claims. Such claims typically arise when a government employee is terminated or otherwise sanctioned because he or she is involved in a relationship the public employer claims conflicts with the employer\u27s interests. Several reasons support the narrow reading of Lawrence with regard to these claims

What's So Reasonable About Reasonableness? Rejecting a Case Law-Centered Approach to Title VII's Reasonable Belief Doctrine

This is the published version

Same-Sex Sex and Immutable Traits: Why \u3ci\u3eObergefell v. Hodges\u3c/i\u3e Clears a Path to Protecting Gay and Lesbian Employees from Workplace Discrimination Under Title VII

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court\u27s clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution\u27s Fourteenth Amendment Due Process Clause and (2) the Court\u27s recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation discrimination should be recognized as sex discrimination for purposes of Title VII. Part IV explores instances in which courts have permitted employers to discriminate because of sex as a matter of judicial interpretation of Title VII. One such instance involves the sex plus theory. Part V argues that under this line of sex plus authority, sexual orientation discrimination is not only sex discrimination, but consistent with Obergefell, it is the type of discrimination that Title VII forbids

Lawrence: An Unlikely Catalyst for Massive Disruption in the Sphere of Government Employee Privacy and Intimate Association Claims

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of \u27free adults to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public employment, the foundations of which, he contends, are now undermined because of the Court\u27s overruling of Bowers. This article presents a strong argument that the massive disruption theory is unfounded in the area of government employee privacy and intimate association claims. Such claims typically arise when a government employee is terminated or otherwise sanctioned because he or she is involved in a relationship the public employer claims conflicts with the employer\u27s interests. Several reasons support the narrow reading of Lawrence with regard to these claims

Express Yourself: Striking a Balance Between Silence and Active, Purposive Opposition Under Title VII\u27s Anti-Retaliation Provision

In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn

What\u27s So Reasonable About Reasonableness? Rejecting a Case Law-Centered Approach to Title VII\u27s Reasonable Belief Doctrine

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have rejected this literal interpretation and have held that the opposition clause protects employees who complain about conduct reasonably believed to be unlawful discrimination, courts have failed to settle on a uniform standard for determining reasonableness. Most courts require that employees demonstrate the reasonableness of a belief about the illegality of alleged discrimination in light of existing substantive law. Case law is the objective criterion on which reasonableness is based, and employees are given no leeway for error about judicial interpretations of Title VII. The article argues that the courts have been correct to reject a literal interpretation of the opposition clause, but as a normative matter proposes a totality of the circumstances approach to assessing reasonableness. The article also sets forth factors that courts should generally take into account in the reasonableness calculus. The test articulated in the article is consistent with recent U.S. Supreme Court precedent interpreting Title VII, promises broader protection than the case-law approach and better effectuates the original purposes of the reasonable belief doctrine than current standards

Family, Cubicle Mate and Everyone in Between: A Novel Approach to Protecting Employees from Third-Party Retaliation Under Title VII and Kindred Statutes

This article joins the discussion of when employees should be protected against third-party retaliation under Title VII of the Civil Rights Act of 1964 and analogously worded statutes. In Thompson v. N. Am. Stainless, LP., 131 S.Ct. 863 (2011), the U.S. Supreme Court held that third-party retaliation was cognizable under Title VII, an issue that had divided the lower courts for decades. Prior to Thompson, lower courts that recognized the viability of such claims often imposed limits on the classes of relationships for which third-party retaliation was unlawful. For instance, courts often found such claims viable where after an employee complained about discrimination (engaged in “protected activity”), an employer punished that employee’s spouse or other family member as a result. Where the relationship was deemed to be too attenuated (e.g., an amity or professional relationship) protection was uneven at best. This article argues against such a formalistic approach to third-party retaliation. The article argues that an employee should be protected against third-party retaliation whenever there is proof that the employer targeted him or her to get back at a coworker who engaged in protected activity regardless of the relationship between the coworkers — family, friend, cubicle mate or otherwise. It argues for protecting that coworker whenever that individual suffers an adverse action that would have sufficed for an actionable retaliation claim had the employer taken the same action against the employee who engaged in protected activity. Thus, the proposal would bar employers from doing indirectly (to a third party) what they are prohibited from doing directly to the third-party’s associate who engaged in protected activity. The article cogently argues that this approach to analyzing third-party retaliation claims is consistent with Thompson, Title VII’s broadly worded anti-retaliation provision and the purposes that underlie it

Family, Cubicle Mate and Everyone in Between: A Novel Approach to Protecting Employees from Third-Party Retaliation Under Title VII and Kindred Statutes

This article joins the discussion of when employees should be protected against third-party retaliation under Title VII of the Civil Rights Act of 1964 and analogously worded statutes. In Thompson v. N. Am. Stainless, LP., 131 S.Ct. 863 (2011), the U.S. Supreme Court held that third-party retaliation was cognizable under Title VII, an issue that had divided the lower courts for decades. Prior to Thompson, lower courts that recognized the viability of such claims often imposed limits on the classes of relationships for which third-party retaliation was unlawful. For instance, courts often found such claims viable where after an employee complained about discrimination (engaged in “protected activity”), an employer punished that employee’s spouse or other family member as a result. Where the relationship was deemed to be too attenuated (e.g., an amity or professional relationship) protection was uneven at best. This article argues against such a formalistic approach to third-party retaliation. The article argues that an employee should be protected against third-party retaliation whenever there is proof that the employer targeted him or her to get back at a coworker who engaged in protected activity regardless of the relationship between the coworkers — family, friend, cubicle mate or otherwise. It argues for protecting that coworker whenever that individual suffers an adverse action that would have sufficed for an actionable retaliation claim had the employer taken the same action against the employee who engaged in protected activity. Thus, the proposal would bar employers from doing indirectly (to a third party) what they are prohibited from doing directly to the third-party’s associate who engaged in protected activity. The article cogently argues that this approach to analyzing third-party retaliation claims is consistent with Thompson, Title VII’s broadly worded anti-retaliation provision and the purposes that underlie it

What\u27s So Reasonable About Reasonableness? Rejecting a Case Law-Centered Approach to Title VII\u27s Reasonable Belief Doctrine

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have rejected this literal interpretation and have held that the opposition clause protects employees who complain about conduct reasonably believed to be unlawful discrimination, courts have failed to settle on a uniform standard for determining reasonableness. Most courts require that employees demonstrate the reasonableness of a belief about the illegality of alleged discrimination in light of existing substantive law. Case law is the objective criterion on which reasonableness is based, and employees are given no leeway for error about judicial interpretations of Title VII. The article argues that the courts have been correct to reject a literal interpretation of the opposition clause, but as a normative matter proposes a totality of the circumstances approach to assessing reasonableness. The article also sets forth factors that courts should generally take into account in the reasonableness calculus. The test articulated in the article is consistent with recent U.S. Supreme Court precedent interpreting Title VII, promises broader protection than the case-law approach and better effectuates the original purposes of the reasonable belief doctrine than current standards

The Politicization of Judicial Elections and its Effect on Judicial Independence

This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where judges are elected. Daniel Takoji, professor of law at the Ohio State University\u27s Moritz College of Law, discusses, the role of money in judicial elections and more broadly its effect on judicial independence. Cleveland-Marshall College of Law Professor Susan Becker provides an overview of the struggle for LGBT rights, and discusses various factors that likely have influenced and will continue to influence judicial independence when addressing LGBT rights. Camilla Taylor, of Lambda Legal, who successfully litigated the Varnum decision through the Iowa courts, discusses her efforts in Iowa prior to litigating the Varnum case and whether the backlash that occurred after Varnum might affect Lambda\u27s efforts to challenge laws affecting LGBT rights in other states where judges are elected. The Hon. Marsha K. Temus recounts her experience and offers her unique perspective on whether politicized judicial elections might undermine judicial independence