Beyond Garcetti: Public employees and the Pickering-Connick test

June 28, 2010

I’ve previously written about the landmark public employee speech case Garcetti v. Ceballos, 547 U.S. 410 (2006), which provides a threshold inquiry as to whether state actors may punish employees for their speech.  Generally, speech made pursuant to employees’ work duties is not protected, while private speech is.  Among the Federal Courts of Appeals, there is growing dissension as to how fact-intensive this inquiry should be.  If, however, an employee is not speaking as a public official, another test is applied: The Pickering-Connick balancing test.

Public employees’ political speech is protected by the First Amendment’s guarantee of free speech, but this is not an unlimited right.  Public employees may be subject to discipline prescribed in the relevant collective bargaining agreement for private speech and even expression about matters of public concern, particularly if made in a disruptive manner.  See generally Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  In Pickering, the Supreme Court held that controversial and factually inaccurate statements made by a teacher could not be the basis for his dismissal because they were a matter of public concern and did not outweigh the government’s interest in effective administration.  391 U.S. at 574-75.  Although the means for determining whether speech is of public concern are not clearly established by the court, it is clear that speech of a public concern is protected by the First Amendment and cannot be the basis for adverse employment action where the government does not reasonably believe it jeopardizes the imposition of discipline and its efficient administration. Id.  As the speech that the court found to be of public concern in both Connick and Pickering related to political issues, there is a relationship between speech’s political content and the public’s interest in it.  462 U.S. at 154; 391 U.S. at 574-75.

In Pickering, the public concern at issue was the raising, collection and allocation of school taxes, a political matter affecting the entire community. Id. at 571.  The manner in which it was raised did not disrupt government operations, undermine supervisory discipline, or otherwise affect workplace harmony; if it had to an extent that outweighed the public’s interest in the speech, the First Amendment would not protect it. Id. at 569-70, 574-75.  The factors for determining whether a statement is a matter of public concern-its “content, form and context, as revealed by the whole record”-are established in Pickering’s successor case, Connick. 461 U.S. at 147-48.  In that case, the questionnaire circulated by Myers had some extremely limited public concern based on its content, form and context, as it related to employment abuses in an ongoing political race, but was not protected because her supervisor reasonably believed it undermined his disciplinary authority and jeopardized office harmony because of the personal attacks it contained. Id. at 153-54.

Combined, these cases comprise the Pickering-Connick test.  When a public employee makes a statement, its content, form and context is examined in the totality of the record to determine if it is a matter of public concern, and the employee’s expression cannot be reasonably believed to cause harm to workplace harmony, discipline or operations.  Because of the many forms employee speech and matters of public concern may take, the Supreme Court did not deem it appropriate or feasible to promulgate a general standard by which all statements are judged.  Id. at 154, citing Pickering, 391 U.S. at 569.

Even if public employees’ statements thread the narrow Garcetti needle and constitute private speech, the Pickering-Connick test must still be overcome for the statements to have First Amendment protection.  This is an imprecise, fact-intensive standard that leads to cases being decided individually.  Though this approach is ideal for employees, as it gives each instance of speech the potential to be spared from employer discipline, it has unpredictable results – especially when the speech and circumstances at issue are dissimilar from other cases.  Indeed, each workplace and its chain of command are unique, and the disruptive effects of speech may vary greatly from one circumstance to another.

The Pickering-Connick standard is also sympathetic to public employers, as speech is protected if it is of a public concern and not reasonably believed by the employer to jeopardize the imposition of discipline and the employer’s efficient administration.  Therefore, if the court find that the employer reasonably believed the speech compromised these goals, the employee’s speech is not protected by the First Amendment, and he or she is subject to appropriate discipline.  This yields a balancing act between the public significance of the speech, how it was made, and the reasonableness of the public employer’s belief.  Employees are protected by the test’s requirement for employer beliefs to be reasonable, but this falls short of a full guarantee of constitutionally protected speech, as the employer retains discretion to punish employees for speech it reasonably believes threatens workplace order and efficacy.

Refining the contours of the First Amendment in public sector unions – Davenport v. Washington Education Association

June 21, 2010

By J. DeVoy

In 2007, the United States Supreme Court upheld a Washington law requiring public sector union members to opt-in for their association dues to be used by the union for election-related activities and speech. Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007).  Without this mandated opt-in, the public union was prohibited from devoting a member’s fees to any electoral purpose. Id. at 190.  The court limited its holding to public sector unions, although the text of the statute could facially be applied to both public and private unions. Id.

Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. Id.

This portion of the holding reinforces the unique role of public sector unions, especially when balancing constitutional concerns.  Because public unions are governed by the state and their employees act with the government’s imprimatur, their actions are within the reaches of the United States Constitution and Bill of Rights. See Id.

I. Private Sector Precedent

Precedent from disputes between private unions and their members indicates that this is not a universal proposition: union members are not given a unilateral veto over union expenditures and activities because they disagree with their money being spent in a certain fashion.  In Communications Workers v. Beck, 487 U.S. 735, 762-63 (1988), the Supreme Court authorized the union to spend dues money pursuant to its obligations as a bargaining representative over a represented non-member’s objection.  Expenditures were only authorized over objection for that purpose, though, and could not be made for the union’s political goals. Id.

Similarly, in Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 450-51 (1984), the Supreme Court held that expenses for materials reporting on the union’s activities as representatives’ exclusive bargaining representatives can be paid with the dues of nonmembers despite their objection.  The court specifically struck down the rebate mechanism used by the union in Ellis, which provided that the union would repay represented non-members who objected to a union political expense their share of the total expense. Id. at 443.  Though the Ellis court considered the potential for anticipatory dues reductions for represented nonmembers, or holding dues in escrow, it ultimately provided no conclusive guidance on those provisions’ legality, finding it sufficient to strike down the union’s rebate provision. Id.

II. Into the Public Sector

This trend came to a head in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  where the Supreme Court prohibited the public union’s use of nonmember fees for purposes outside of collective bargaining, contract administration and grievance adjustment – even when alternative uses were not strictly political.  Abood is remarkable for extending the Beck and Ellis decisions to public unions.  While the prior decisions concerned private unions, the Supreme Court found the principles within those opinions applied identically to public sector unions; the role of the government in the unions’ representation and their members’ employment was immaterial in such situations.

The Abood decision was further solidified in Chicago Teachers Union v. Hudson, 475 U.S. 292, 306-08 (1986).  In Hudson, the union controlled the entire process of collecting, administering and reducing members’ agency fees, despite being an interested party at every step of that transaction. Id. at 308.  The court found that there were inadequate protections where the union did not disclose its expenditures for collective bargaining purposes, but instead revealed only the amount it had spent on purposes that did not benefit “dissenting nonmembers.” Id. at 306-07.

Although the union discounted nonmembers’ annual dues by 5%, the court found there was no adequate explanation for doing so, and thus such a reduction did not pass constitutional muster. Id. at 307.  Indeed, the 95% of agency fees still paid by nonmembers may have gone to speech they opposed and did not authorize.  The Supreme Court ultimately established three requirements for public unions’ collection of agency fees:

-The union must provide an adequate explanation of the basis for the fee

-The union must provide a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker, and

-The union must have an escrow for the amounts reasonably in dispute while such challenges are pending. Id. at 310.

The “adequate explanation” required by Hudson is commonly referred to as a “Hudson packet.”  Davenport, 551 U.S. at 177.  It must be supplied to all nonmembers represented by the union and, under Washington’s law, was supplied biannually to nonmembers represented by a public union. Id.

An important distinction between union purposes arises from these holdings.  While there is a First Amendment issue where unions spend represented nonmembers’ dues on political purposes over their objections, these same represented nonmembers have no First Amendment interest in the union’s operation as a contract administrator and collective bargaining agent.  As noted in Abood, this distinction arises in the public union context because involuntary political support through money may “interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” 431 U.S. at 222.

Fortified in Hudson, this position coalesced into the three requirements set forth by the Supreme Court.  By requiring information explaining agency fees’ bases to be sent to all represented employees, the Supreme Court ensured that the represented would be apprised of how their dues were spent – especially on political matters, to which nonmembers could object.  The additional requirements, of a challenge to the fee before an independent decision-maker and escrow for funds in dispute, further protected the First Amendment rights of nonmembers.  The first of these provisions, requiring objections be heard before an impartial decision-maker, upheld the due process rights of nonmembers in exercising their First Amendment rights, assuring that their will would not be thwarted by union control.  The second assures that neither represented nonmembers’ dues nor interest on them can be applied toward political aims – speech, ultimately – with which the represented non-member disagrees.

III. How Davenport Was Decided

These provisions are found in the Washington statute at issue in Davenport.  By requiring represented non-members to opt-in to political spending within unions, and acting in concert with provisions for information about fees to be distributed and amounts in dispute being held in escrow, the protections the Supreme Court previously established were preserved by the statute.

From a policy perspective, opt-in is more favorable to represented non-members who may otherwise object to a union’s political spending.  Under this regime, their political autonomy is presumed, though they can assent to the union’s political speech and financially contribute to it.  In contrast, the de facto opt-out system established in prior case law benefits unions, as represented non-members must object to the use of their funds for the union’s political goals.  Although the Supreme Court has ratified this practice as valid with some qualifications, it places the burden of seeking political autonomy on the represented non-member.  Even if these non-members have no interest in politics, the presumed contribution of agency fees effectively takes money out of their pockets that otherwise would not have gone to political speech or association.

Colorado Supreme Court strikes down constitutional amendment limiting public employees’ speech

June 16, 2010

By J. DeVoy

Some states have enacted laws and even constitutional provisions that affect public sector labor unions’ political speech and participation.  In Colorado, for example, the state’s constitution was amended to ban political contributions and their inducement by public unions.

Because of a presumption of impropriety between contributions to any campaign and sole source government contracts, contract holders shall contractually agree, for the duration of the contract and for two years thereafter, to cease making, causing to be made, or inducing by any means, a contribution, directly or indirectly, on behalf of the contract holder or on behalf of his or her immediate family member and for the benefit of any political party or for the benefit of any candidate for any elected office of the state or any of its political subdivisions. Colo. Const. Am. 54 § 15.

 The Amendment specifies public sector labor unions as holders of no-bid state contracts in Section 17, subheading 4.5.  In addition to proscribing the union’s ability to make donations on its own, it precludes its members from mobilizing to seek donations from others – a hallmark benefit of winning a union’s political support – due to the “causing to be made, or inducing” language in Section 15 of the amendment.

The Colorado Supreme Court recently considered the constitutionality of this amendment in Dallman v. Ritter, No. 09SA224,  ___ P.3d ___ (Colo. Feb. 22, 2010), available at (last accessed May 12, 2010).  The case, first brought by members of a teachers union, resulted in a preliminary injunction against the Amendment’s enforcement at the trial level.  Id. at 16.  In the court’s opinion, the justices found the amendment so vague and overbroad that the court nullified it in its entirety. Id. at 4.  A substantial portion of the Dallman court’s analysis was based on Buckley, 424 U.S. 1, which allows public labor unions to “participate in political speech, specifically through political contributions.” No. 09SA224 at 49, citing Colo. Educ. Ass’n v. Rust, 184 P.3d 65, 76 (Colo. 2008).  While the thrust of Buckley is found in the decision, its application would be mismatched, as Buckley related to contribution limits while Amendment 54 banned them altogether. Dallman, No. 09SA224 at 51-52.  Indeed, the regime at issue in Dallman was even more restrictive than that in Buckley v. Valleo, 424 U.S. 1 (1976).

The Colorado Supreme Court drew several legal distinctions leading to the nullification of Amendment 54.  First, the amendment completely denied the public unions’ ability to make any donations, which is impermissible under Buckley; the amendment went too far in prohibiting all contributions in light of its stated purpose of targeting “large, potentially corruptive contributions.” Dallman, No. 09SA224 at 51-52.  Second, Amendment 54 prohibited unions from acting through a political action committee or other means, effectively shutting out not only their direct participation, but their influence as well, from the political arena. Id. at 52-53.   This, too, was contrary to Buckley for denying unions any political voice, and therefore contrary to the First Amendment. Id.  Finally, the court found it absurd that a provision intended to avoid the appearance of impropriety would apply to dealings with a labor union, as the state does not and cannot select the union with which it contracts. Id. at 53.  The court further found that collective bargaining agreements are so disparate from traditional procurement contracts that it would be unseemly for Amendment 54 to treat them identically, compromising the unions’ First Amendment rights. Id at 54.

Considering these factors, the Colorado Supreme Court found that Amendment 54 was not a valid limitation on unions’ First Amendment rights.  The amendment was not drawn closely enough to address only the problem of corruptive contribution without trammeling other forms of protected speech. Id at 53.  Additionally, the amendment did not have a sufficiently important government interest to warrant limiting the political speech of public unions. Id. at 54.

The outcome of this decision reveals that public unions’ speech cannot be fully silenced, although limits may be placed upon it.  The Colorado court relied on the Supreme Court’s jurisprudence, especially Buckley, to find that it was contrary to public unions’ First Amendment rights to deprive them of any speech in the political forum.  While the Colorado Supreme Court does not come out and say it, though, it may be receptive to minimal restrictions like those at issue in Buckley, as the Dallman court routinely referred back to that case.  To be consistent with Buckley and pass constitutional muster, though, any restrictions would have to be narrowly tailored to further a compelling state interest, consistent with strict scrutiny review. 424 U.S. at 64.  But as evinced by the Dallman decision, a blanket prohibition on political participation by a public union, even on grounds that could warrant the limitation of other groups’ speech, is inconsistent with the First Amendment and therefore unconstitutional.

Largest. Class. Action. Ever.

April 27, 2010

Yesterday the Ninth Circuit upheld (mostly) a California District Court opinion certifying a nationwide class action against retail giant Wal-Mart. The classes and sub-classes could encompass as many as 1.5 million current and former female employees of Wal-Mart, who may be entitled to billions in back wages and punitive damages. Not to mention the attorney’s fees and costs.

The case was filed in 2001 by The Impact Fund, a Bay Area non-profit organization that takes on large scale civil rights related litigation. The lawsuit alleges that Wal-Mart pays female employees less than their male counterparts (in violation of equal pay laws), and promotes women more slowly than men (in violation of Title VII).

What’s so interesting about this behemoth 137 page decision? Not a lot unless you’re an attorney who practices class action law. But the decision does represent a clear acknowledgement on the part of the judiciary that just because you’re an astonishingly gigantic and absurdly wealthy company doesn’t mean that you can’t be called to court to account on a wholesale basis for your (alleged) bad deeds. At least if you’re sued in the Ninth.  Without question, Wal-Mart will be looking to the Supremes for a reversal.

Garcetti v. Ceballos potentially subsumes public employees’ First Amendment rights

March 30, 2010

By J. DeVoy

Public employees in political jobs often walk a difficult line when they speak about current affairs.  Historically, this speech was protected by the Pickering-Connick test, established in Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983).  Under that test, courts engaged in a two-step inquiry: First, whether the employee’s speech was a matter of public concern based on its content, form and context, and Second, if the speech was a matter of public concern, if the public employer had an adequate justification for treating the employee differently from any other member of the general public.

In 2006, the United States Supreme Court added a new threshold inquiry to this analysis.  In Garcetti v. Ceballos, 547 U.S. 410 (2006), a five-justice majority held that a prosecutor who criticized the circumstances under which a warrant was issued made his statements as a public employee.  As a consequence, the Supreme Court found that his statements were not protected by the First Amendment, and his civil liberties were not violated when the office passed him over for a promotion as a consequence of them.

At the time of this decision, there was considerable concern that this would limit the free speech of government employees.  In Kennedy’s majority opinion, the court addressed this concern, which Souter raised in his dissent.  The majority found it very unlikely that public entities would create positions with excessively broad job descriptions that would effectively muzzle employees.  The court noted that an employee’s actual responsibilities were at issue, which could depart significantly from his or her job description; a task’s mere inclusion in a job description is “neither necessary nor sufficient” to show it was entailed in the employee’s actual job duties.

A Different Problem Arises

While the issue of overbroad job descriptions has not come to pass, a new problem may be brewing in the circuit courts.  There seems to be wide discrepancy in how Garcetti has been applied to subsequent cases, emanating from the Fifth Circuit.  While the Supreme Court engaged in a probing analysis of public employees’ job duties, the Fifth Circuit has taken a more mechanistic view of this inquiry, and repeatedly held that statements relevant to job duties are made as state employees, rather than as private citizens.

In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the Circuit Court held that the defendant’s statements about the University of Texas Health Science Center in Houston’s inadequate response to a child pornography investigation were statements made as an employee because they related to her job duties.  In particular, the court stated:

Activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection.

Davis, 518 F.3d at 313.  The defendant’s statements about the pay for vice presidents in the Health Science Center, statements to the FBI about child pornography on the computers and general concerns about racial discrimination by the Health Science Center were held to be speech made as a private citizen.

Similarly, in Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), a systems analyst’s complaints about racial discrimination in the Texas Lottery Commission were held to be made as a private citizen.  Although this discrimination arose in the course of Charles’s employment, addressing racial equality was not within the purview of his duties as an analyst.  Therefore his statements were made as a private citizen and afforded certain First Amendment protections by the court.

Not every statement made by these employees was snared in a net preventing free speech, but the Fifth Circuit did not analyze the statements it found to be made as public employees beyond acknowledging that they related to work duties.  These statements may have significant value and otherwise be protected under the Pickering-Connick test, but cannot even reach that point.  Simply because the statements relate to work duties, the Fifth Circuit considers them to be statements made within the scope of public employment, rather than speech by a private citizen.

Other Circuits have engaged in more aggressive inquiries about when a speaker makes statements pursuant to their official duties, rather than whether or not the statements were related to their job duties.  Just because an individual makes a statement related to his or her job and the duties within it does not mean he or she is speaking pursuant to those duties.  In Bivens v. Trent, 592 F.3d 555 (7th Cir. 2010), the Seventh Circuit addressed this very concern and acknowledged the ambiguity surrounding statements relating to job duties made to third parties, but held that reports to supervisors, required as part of Bivens’ job duties, were made pursuant to them.  In Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006) the Seventh Circuit declined to find a sheriff’s statements, though relating to his job duties, were made pursuant to them when he spoke in his capacity as a union representative.

Implications for Public Employees

Though the doomsday scenario prophesied by the Garcetti dissents has not come to pass, the Fifth Circuit’s jurisprudence paints a bleak picture of the future for other reasons.  The language of the Davis opinion, quoted above, “activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection,” misses the point of Garcetti and does not square with the holdings of other jurisdictions, such as the Seventh Circuit.

Actions undertaken in the course of performing job duties are distinct from activities arising pursuant to official duties.  As the Seventh Circuit has read the law, speech made pursuant to job duties is essentially required by it.  This is not the case for speech made during the performance of job duties, which case law shows can be quite broad – especially in the case of policy-setting positions, where political statements and criticism can easily relate back to the speaker’s job duties and be denied First Amendment protection.

Therefore, there is a need to more clearly delineate between speech made relating to job duties and pursuant to them.  If the two are treated the same, as is the case in the Fifth Circuit, then virtually all criticism and communication about one’s job will be silenced.  There will be no need for the Pickering-Connick test under this regime, as those who talk frankly about their job duties will never be able to reach it and prove the public import of their speech.

This is a problem for many reasons.  First, it stifles individual freedom of expression.  Second, it interferes with the ability of government employees to identify what’s wrong in their line of work, potentially improving government operations for all and ensuring that finite tax dollars are better allocated.  This is a serious issue for public employees who wish to freely discuss things related to their job duties – but not pursuant to them – in an effort to seek advice or share information here or on racier websites, such as JDUnderground or AutoAdmit.

If all such instances of speech are considered part of the speaker’s work duties, employees will be left with an unenviable decision: speak freely and risk employer retaliation, or say nothing and suffer in silence.  Beyond the constitutional expectations of free speech that we all enjoy, preserving First Amendment protections for such speech helps those who best know how to improve public employers’ efficiency and efficacy to be heard.

H/T: Andrew Rima, my brilliant moot court partner, who helped me wade through this issue for the 2009 National First Amendment Moot Court Competition.

Hiring a Legal Asistant 101

October 27, 2009

"Do you really think that I'm perfect for the job?"

Helpful hints for finding and hiring a legal assistant:

  • Make sure you use an online listing service.  Craigslist is always a good one.
  • Always do a good job of describing what you’re looking for.  Use explicit language, whenever possible.  For example, stating that you are seeking an “energetic woman” for “general secretarial work, some paralegal work and additional duties for two lawyers” seems to be a winner.
  • Next, in addition to a resume, be sure to ask for some personal information, such as photographs and “a description of your physical features, including measurements.”
  • When you receive applications, always follow up with an email, including more information about what the position entails.  Here’s a great example of the kind of thing you should write:

    In addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate.  This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction.

  • To be sure that everyone understands what is expected, you will want to make performing sexually a part of the interview process.


H/T Becky

…and after you’ve hired your dream assistant, here‘s some advice on keeping her.

Another Strip Club Sued for Age Discrimination

May 15, 2009

By Jess Christensen, Employment Law Correspondent

A while ago, I wrote about Kimberlee Ouwroulis and Barbara Sanders, both Canadian exotic dancers in their mid-40s who sued the club that fired them for being too old. Now the can you be too old to work at a strip club? debate comes to America.

The EEOC has filed a lawsuit against Houston’s Cover Girls club on behalf of former waitress Mary Bassi, alleging that the club engaged in age discrimination when it fired her in 2006. At the time of her termination, Bassi was 56 years old, and had worked for the club since 1993. According to reports (the complaint itself does not appear to be available online), club managers called Bassi “old” and teased her about entering into menopause and showing signs of Alzheimer’s disease. According to the EEOC attorney handling the case, Bassi had been a high earner until the club started to assign prime shifts to younger waitresses. Attorneys for the club have so far declined to comment on the case. Bassi now works as a waitress for a competitor club—though, competition isn’t stiff (heh), since Cover Girls burnt down in 2007 and hasn’t yet been rebuilt.

Tempest Storm and Bette Paige

Tempest Storm and Bette Paige

As talked about in my earlier post, an employee’s age cannot be considered as a factor in any employment decision, unless age is a Bona Fide Occupational Qualification (BFOQ)—i.e., that age is relevant to the essential functions of the job. While strip club employers will undoubtedly argue that age relates to beauty, and beauty is certainly an essential qualification for adult entertainment establishments such as strip clubs, they might do well to consider the case of Tempest
Who says 81 isn't hot?

Who says 81 isn't hot?

, who at age 81, is still a crowd pleaser. Although Storm has semi-retired after more than 50 years as a stripper and burlesque dancer, she still makes headliner appearances at such legendary venues as San Francisco’s O’Farrell Brothers Theater and performs frequently in Las Vegas, stripping down to a sheer bra and G-string in front of cheering, packed houses.

And now for a little Friday afternoon entertainment…

Daddy, Why Are The Lunch-Lady’s Boobs So Big?

November 24, 2008

Louisa "Crystal Gunns" Tuck at the AVN Awards

Louisa 'Crystal Gunns' Tuck at the AVN Awards

Former adult entertainer Louisa C. Tuck – a.k.a. “Crystal Gunns” – is stirring up trouble in Vineland, N.J., where she currently works as a lunch-lady and playground monitor at D’Ippolito Elementary School.

Upon learning of Tuck’s background in the adult entertainment industry (where she appeared in such cinematic classics as Busty Dildo Lovers #2 and #5, and Brabusters), parents and school officials sought to have her fired.

Fortunately for Tuck, she’s a public employee. Unlike most people, who work for private employers, public employees have due process rights related to their employment. This is a lesser known function of the Fourteenth Amendment (or the Fifth Amendment for federal employees), which states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In other words, public employees have a property interest in their jobs, and public employers must have cause to terminate them. While one’s background as an adult entertainer is not entitled to any special protection, unless there is an explicit school board regulation prohibiting persons with such backgrounds from employment, the school district cannot terminate her on this basis (unless her adult entertainment work was contemporaneous with her public employment, in which case the school district might be able to invoke some kind of “conduct unbecoming” rationale for her termination).

Tuck’s case provides a good tip for adult entertainers looking for maintstream employment who are worried about how their backgrounds will effect their employment – ironically, government is the way to go.

Too Old To Strip? Canadian Dancers File Age Discrimination Suits

November 24, 2008

By Jessica Christensen, Employment Law Correspondent

Kimberlee Ouwroulis

Kimberlee Ouwroulis

Kimberlee Ouwroulis, age 44, and Barbara Sanders, age 45, are both Canadian exotic dancers who have filed complaints with the Ontario Human Rights Tribunal against their former employer, New Locomotion, for age discrimination.

According to Ouwroulis, she began working for the New Locomotion club in Mississauga, Ontario as an exotic dancer when she was 40 years-old. In June, her manager called her into his office and told her “your time is up” and that the club was going in a new direction, with younger dancers. (source) Sanders, who had only worked for the club for seven months, was told by the same manager that she was too “old and ugly” to continue as an exotic dancer. (source) Both women have since found jobs as dancers at other Toronto area clubs.

Barbara Sanders

Barbara Sanders

While the actual complaints filed with the Tribunal (Canada’s equivalent of the U.S. EEOC) have not yet been made public, news reports seem to suggest that both Ouwroulis and Sanders performed well as dancers, and were capable of performing their job duties. Reports also suggest that the reasons both women were fired – their ages – are not disputed. Assuming this is so, the only real question to be decided by the Tribunal is whether or not under Canadian anti-discrimination laws, it is permissible for a strip club to use age as a Bona Fide Occupational Qualiication (BFOQ).

Canadian law regarding age discrimination in employment is nearly identical to U.S. law (e.g., the Age Discrimination in Employment Act, or ADEA). In both countries, an employer may only use age as a factor in hiring, firing, promotions, etc. if age is a “BFOQ” – in other words, is reasonably necessary for the normal operation of the business. An easy example is the U.S. Constition’s requirement that a person is not eligible to be elected president or vice-president unless he or she is at least 35 years old. This is an easy example because the age related qualification is an objective one.

The ananysis is much more difficult where the qualification is a subjective one, such as “attractiveness.” For example, in Lindsay v. Prive Corp., 987 F.2d 324 (1993), the employer club terminated the plaintiff, who sought promotion from waitress to topless dancer, stating that she was “too old” and that she did not meet the club’s standard that all dancers must be “beautiful, grogeous and sophisticated.” In overturning the lower court’s grant of summary judgment in favor of the employer, the Fifth Circuit noted that while a court cannot second-guess the employer’s determination of what it means to be “beautiful, gorgeous and sophisticated,” it was for a jury to decide if the club’s assertion of this reason for the plaintiff’s termination was credible, or instead was pretext for age discrimination.

The Lindsay case highlights a particularly thorny issue for employers – especially those in the adult entertainment industry – because commercial concepts of “beauty” or “attractiveness” are intimately related to age. Case law has yet to develop any clear standards delineating where attractiveness standards veer into the territory of discrimination, but it’s not hard to imagine the arguments that can be made on either side. If the Canadian women were financially successful as dancers and can establish that they performed well financially in relation to other dancers, the club will have a difficult time establishing that they did not satisfy the club’s attractiveness standards. On the other hand, if a club markets itself as providing “young” dancers, the women may have difficulty overcoming the club’s internal decision about what “young” means.

One thing is clear – with an aging majority workforce, enterntainment employers can expect to face an increase in age discrimination challenges to practices that have until now been accepted as just how the business works.

Hookers! Hookers! Hookers! Or, Why I Love San Francisco

October 23, 2008

Coming soon to the Bay Area?

Coming soon to the Bay Area?

By Jessica Christensen, Legal Satyricon Employment Law Correspondent

“The Barbary Coast is the haunt of the low and the vile of every kind. The petty thief, the house burglar, the tramp, the whoremonger, lewd women, cutthroats, murderers, all are found here. Dance-halls and concert-saloons, where blear-eyed men and faded women drink vile liquor, smoke offensive tobacco, engage in vulgar conduct, sing obscene songs and say and do everything to heap upon themselves more degradation, are numerous. Low gambling houses, thronged with riot-loving rowdies, in all stages of intoxication, are there. Opium dens, where heathen Chinese and God-forsaken men and women are sprawled in miscellaneous confusion, disgustingly drowsy or completely overcome, are there. Licentiousness, debauchery, pollution, loathsome disease, insanity from dissipation, misery, poverty, wealth, profanity, blasphemy, and death, are there. And Hell, yawning to receive the putrid mass, is there also.” (Lloyd, Benjamin Estelle (1876), Lights and Shades of San Francisco)

The Barbary Coast neighborhood Lloyd describes was all but obliterated in the earthquake of 1906 – but, depending on who you ask, many would say this picture of San Francisco holds true even today. We’ve got gay marriage and public bathhouses, the Hustler Club, nearly unionized panhandlers, and dirty hippies. Anarchists roam freely (how else would they roam?) and medical marijuana shops are nearly as prevalent as liquor stores. The only thing missing? Legalized prostitution. But not for long, fingers crossed. Read the rest of this entry »

Court Rules Transgendered Ranger Has a Right to Kick Terrorist Butt, Just Like Everyone Else

September 22, 2008

By Jessica Christensen,
Legal Satyricon Employment Law Correspondent

Last month I reportedon the trial in Schroer v. Billington (Library of Congress), a case involving allegations that the federal government refused to hire a highly decorated former Airborne Ranger for a Terrorism Analyst position because she is transgendered.

Yesterday, U.S. District Court Judge Robertson issued his decision after trial, ruling that the government indeed did discriminate against Ms. Schroer. Judge Robertson held that three of the “legitimate business reasons” the government used to justify its actions were pretext for sex discrimination. Two other reasons – that Schroer would be unable to maintain her military contacts, and her credibility with those contacts, because those contacts would be prejudiced against her due to her gender transition – were held to be facially discriminatory:

Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices. (source)

Judge Robertson also revised his previous summary judgment ruling regarding Schroer’s sex-stereotyping claim. In order to explain, a little background is required. In 1989, the U.S. Supreme Court, in what has become a seminal sex discrimination decision, ruled that employers could not discriminate against employees for failing to conform to traditional stereotypes of masculine and feminine. (See Price Waterhouse v. Hopkins, 490 U.S.228 (1989)). Following this decision, however, the district courts (except the sixth circuit) have also consistently held that transsexuality, in and of itself, is not protected under Title VII. In other words, while an employer is free to discriminate because someone is a transsexual, it cannot discriminate because the employee doesn’t seem feminine or masculine enough. You can see the dilemma this reasoning poses: it implies that a transsexual whose appearance “passes” is entitled to less protection, practically speaking, than a transsexual who is easier to detect.

Previously, Judge Robertson had ruled that Schroer could not make out a Price Waterhouse claim for sex discrimination based on sex-stereotyping based solely on her disclosure that she was making a gender-transition, unless she also presented evidence that the employer maintained sex-stereotypes that adversely affected one gender more than another. After considering all of the evidence presented at trial, Judge Robertson concluded that Schroer had indeed presented evidence that the government engaged in unlawful sex-stereotyping and that regardless of stereotypes, the government’s discrimination based on her transsexuality was unlawful sex discrimination:

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.” (source)

Thankfully, Judge Robertson got it right, and his decision marks a bold step forward in protecting the rights of transgendered people. The Department of Justice, which represented the Library of Congress in this case, has not disclosed whether or not it will appeal Judge Robertson’s decision.
HT: Randy

Federal Government Doesn’t Want Transgendered Employee to Help Fight War on Terror

August 22, 2008

By Jessica Christensen,
Legal Satyricon Employment Law Correspondent

Trial concluded this morning in Shroer v. Billington (Library of Congress), a case that considers whether or not a transgendered job applicant is covered by federal antidiscrimination laws.

After more than 25 years as an Airborne Ranger with Special Forces training, after having served in combat operations in Panama, Haiti and Rwanda, and after having spent years advising top U.S. officials – including Vice-President Cheney – regarding terrorism issues, David Schroer was denied a terrorism specialist position with the Library of Congress because he had decided to finally make the change and live his (now her) life as Diane Schroer. Upon learning of Schroer’s impending switch, the Library rescinded its previous job offer, stating that “for the good of the service” Diane would not be a “good fit.” (source)

Schroer brought claims under Title VII, alleging that she was discriminated against based on her sex. Specifically she claims that (1) the decision to rescind her job offer was unlawful “sexual stereotyping” and (2) that Title VII’s prohibition of sex discrimination prohibits discrimination against transsexuals as transsexuals. The Department of Justice, defending the Library, contends that Title VII doesn’t protect Diane because gender-identity discrimination is not covered by the statute. Judge Robertson denied the DOJ’s multiple motions for summary judgment, noting that the definition of “sex” under the Civil Rights Act is broader than just chromosomal make-up, and extends to social, cultural and identity elements. (source)

Following the bench trial (the case has now been submitted to the court for a ruling) the court will determine whether or not the Library considered Schroer’s “failure to conform to masculinity stereotypes” in rescinding her job offer. In addition, the court will determine whether or not the “legitimate business reasons” offered by the Library were, in fact, legitimate.

The “legitimate business reasons” offered by the Library – that Schroer’s military and intelligence contacts will not be valuable once she completes the male-to-female sexual reassignment, and that military and government contacts will be reluctant to deal with Schroer – highlight the existence and insidiousness of the discrimination at issue in the case. Essentially, the Library contends that the fear of other people’s prejudice absolves the government from having to act in a non-discriminatory manner.

A video of Diane Schroer discussing her military background and her case can be found on the ACLU’s website (here).