Circuit Splits

Wide Divide Over the Right to Reject Unwanted Sexual Advances in the Workplace

In 1998 the Supreme Court construed Title VII to prohibit "sexual harassment so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (construing 42 U.S.C. § 2000e-2(a)(1)). Where an employee partakes in a “protected activity,” Title VII similarly prohibits employers from retaliating against them for engaging in that protected activity.

Today’s post looks at whether an employee’s rejection of their colleague or supervisor’s unwanted sexual advances is a “protected activity” within the meaning of Title VII. As Judge Richard Roberts of the U.S. District Court for the District of Columbia pointed out last week, the courts are deeply divided over the issue. Dozier-Nix v. District of Columbia, Civil Action No. 09-593 (RWR) (Dist. D.C. Mar. 31, 2012) (mem. op.). Here is a look at where the courts stand on the issue:

1. Rejecting unwanted sexual advances is a protected activity under Title VII.

• Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372, 392 (Dist. N.J. 1998), aff'd in part, rev'd in part on other grounds, 206 F.3d 271 (3d Cir. 2000).

• Ogden v. Wax Works, 214 F.3d 999, 1007 (8th Cir. 2000).

• Williams v. Verizon Wash. D.C., 266 F. Supp. 2d 107, 122-23 (Dist. D.C. 2003).

• Frentz v. City of Elizabethtown, Civil Action No. 08-621, 2010 U.S. Dist. LEXIS 118565, 2010 WL 4638768, at *5 (W.D. Ky. Nov. 4, 2010).

• Roberts v. Cnty. of Cook, No. 01-C-9373, 2004 U.S. Dist. LEXIS 8089, 2004 WL 1088230 at *4-5 (N.D. Ill. May 12, 2004) (mem. op.).

• Black v. City & Cnty. of Honolulu, 112 F. Supp. 2d 1041, 1049 (D. Haw. 2000).

• Fleming v. South Carolina Dep't of Corrections, 952 F. Supp. 283, 288 (Dist. S.C. 1996).

• Armbruster v. Epstein, 1996 U.S. Dist. LEXIS 7459, No. Civ. A 96-CV-1059, 1996 WL 289991, at *3 (E.D. Pa. May 31, 1996).

• EEOC v. Domino's Pizza, 909 F. Supp. 1529, 1536 (M.D. Fla. 1995).

• Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995).

• Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987).

 2. Rejecting unwanted sexual advances is not a protected activity under Title VII.

• LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 389-90 (5th Cir. 2007).

• Jones v. Cnty. of Cook, 2002 U.S. Dist. LEXIS 13075, No. 01 C 9876, 2002 WL 1611606, at *4 (N.D. Ill. July 17, 2002).

• Rachel-Smith v. FTData, Inc., 247 F. Supp. 2d 734, 748-49 (D. Md. 2003).

• Fitzgerald v. Henderson, 36 F. Supp. 2d 490, 499 (N.D.N.Y. 1998), aff'd in part, rev'd in part on other grounds, 251 F.3d 345 (2d Cir. 2001).

• Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996).

Please feel free to add to this list by leaving a comment.

Does Title II of the ADA Provide an Employment Cause of Action?

Under Title II of the Americans with Disabilities Act (ADA), “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In a recent decision out of Hawaii, a federal judge called attention to a circuit split over whether Title II of the ADA provides a cause of action for disabled Americans in the employment context. See Motoyama v. Hawaii, Civ. No. 10-00464 ACK-RLP (Dist. Haw. Mar. 29, 2012).

The split occurred back in 1999 when the Ninth Circuit held that Title II did not provide a cause of action for disability discrimination in the employment context. Zimmerman v. Oregon DOJ, 170 F.3d 1169, 1182–84 (9th Cir. Or. 1999). In doing so, the court acknowledged that its “decision creates an inter-circuit split of authority,” adding, “[a]lthough we are hesitant to create such a split, and we do so only after the most painstaking inquiry, we must follow the unambiguously expressed intent of Congress.” Id. at 1183–84.

The Ninth Circuit’s “painstaking inquiry” consisted of looking to the plain meaning of the statutory text found in Title II, “including the definition of ‘qualified individual with a disability’ from that Title and the surrounding words in 42 U.S.C. § 12132.” Id. at 1183. With the exception of the Eleventh Circuit, the panel pointed out, the other circuits that had addressed the issue “ignored the wording of Title II altogether.” Id.

To justify its position as the lone dissenter, the Ninth Circuit in Zimmerman attacked the positions taken by its sister circuits as follows:

they have: (1) assumed without analysis that Title II applies to employment,¹² (2) relied only on the Attorney General's regulation and the legislative history of the ADA, without discussion of the statutory text and context,¹³ (3) relied on the Rehabilitation Act without analyzing whether Congress intended to incorporate its prohibition against employment discrimination into Title II,¹⁴ or (4) relied solely on the foregoing precedent without independent consideration of the problem.¹⁵ Because of the limited analysis performed in those cases - in particular, their failure to consider the statutory text and context carefully - we simply do not find them persuasive.

12. See, e.g., Holmes v. Texas A & M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998); Doe v. University of Maryland Med. Sys., 50 F.3d 1261, 1264-65 & n.9 (4th Cir. 1995); Motto v. City of Union City, 1997 U.S. Dist. LEXIS 23401, No. 95-5678, 1997 WL 816509, at *8 (D.N.J. Aug, 27, 1997); Davoll v. Webb, 943 F. Supp. 1289, 1297 (D. Colo. 1996); Dertz v. City of Chicago, 912 F. Supp. 319, 323-25 (N.D. Ill. 1995), reconsidered in part on other grounds, 1997 WL 85169 (Feb. 24, 1997); Doe v. County of Milwaukee, 871 F. Supp. 1072, 1074 (E.D. Wis. 1993); Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78, 83-84 (W.D. Mich. 1993); Finley v. Giacobbe, 827 F. Supp. 215, 219 n.3 (S.D.N.Y. 1993).

13. See, e.g., Hernandez v. City of Hartford, 959 F. Supp. 125, 133 (D. Conn. 1997) ("On its face, Title II prohibits discrimination in 'public services'. A plain reading of the section does not reveal whether Title II covers employment discrimination addressed more specifically in Title I. The regulations under and the legislative history of ADA Title II make it clear, however, that § 12132 prohibits employment discrimination by public entities on the basis of disability.") (footnote and citation omitted); Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1309 (S.D. Tex. 1996) ("Although it is not apparent from the plain language of § 12132, the regulations issued by the Department of Justice make it clear that the prohibition against discrimination by public entities includes employment discrimination."). See also Winfrey v. City of Chicago, 957 F. Supp. 1014, 1023 n.7 (N.D. Ill. 1997) (similar); Silk v. City of Chicago, 1996 U.S. Dist. LEXIS 8334, No. 95 C 0143, 1996 WL 312074, *10 (N.D. Ill. June 7, 1996) (similar); Benedum v. Franklin Township Recycling Center, 1996 U.S. Dist. LEXIS 21929, No. 95-1343, 1996 WL 679402, at *5 (W.D. Pa. Sept 12, 1996) (similar); Petersen v. Univ. of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993) (similar).

14. See, e.g., Bledsoe, 133 F.3d at 821; Alberti, 1998 WL 954876, at *5; Downs, 13 F. Supp. 2d at 135; Ethridge, 847 F. Supp. at 906.

15. See, e.g., Saylor v. Ridge, 989 F. Supp. 680, 688 (E.D. Pa. 1998) ("We are inclined to follow the reasoning and holdings of our brethren which also appears to be the view followed by the majority of courts nationwide which have confronted this issue."). See also Magee v. Nassau County Medical Center, 27 F. Supp. 2d 154, 159 (E.D.N.Y. 1998) (similar); Fobar v. City of Dearborn Heights, 994 F. Supp. 878, 885 n.3 (E.D. Mich. 1998) (similar); Bruton v. Southeastern Penn. Transp. Auth., 1994 U.S. Dist. LEXIS 12087, No. 94- CV-3111, 1994 WL 470277, at *2 (E.D. Pa. Aug. 19, 1994) (similar).

Id. at 1183 & n.13–15.

Why the GPS-Tracking Case is Just the Beginning for the Supreme Court

So far, the Supreme Court’s October 2011 term has lived up to the hype. Yesterday, the Supreme Court issued its highly anticipated opinion in the GPS-Tracking Case, in which it unanimously held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” under the Fourth Amendment. Although the Court avoided directly addressing the issue, this may mean that law enforcement must now obtain a search warrant before installing a GPS-tracking device on a suspect’s car. You can read the full opinion on the Supreme Court's website here.

It's worth noting that when the Court first surveyed the privacy landscape some forty years ago in Katz v. U.S., telephones were connected by wires and global positioning required a map and compass. Today, however, modern technology allows us to connect by "texting," "tweeting," or "facebooking." And finding our precise latitude and longitude on the globe is a matter of simply turning on our cell phones.

The reasonable expectation of privacy test is, not suprisingly, beginning to show signs of aging. As emerging technologies continue to reshape the nature and volume of personal information we share with others, expect to see courts continue to struggle with hitting the moving target that is our "reasonable expectation of privacy." Take, for example, the following circuit conflict over the warrantless search of cell phones, which was recently identified by a federal court in Oregon:

Compare, e.g., United States v. Hill, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011) (upholding warrantless search of iPhone photos incident to arrest); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (upholding warrantless search of cell phone incident to arrest); United States v. Wurie, 612 F.Supp.2d 104, 109-111 (D. Mass. 2009) (same); People v. Diaz, 2011 WL 6158 (Cal. Jan 3, 2011), (same) with United States v. Quintana, 594 F.Supp.2d 1291, 1298-99 (M.D. Fla. 2009) (holding warrantless search of cell phone not justified as search incident to arrest); United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007) (same); United States v. Lasalle, 2007 WL 1390820 (D.Hawai'i May 9, 2007) (finding warrantless cell phone search invalid where it was not clear that phone was on defendant's person and search not contemporaneous with arrest); State v. Smith, 920 N.E. 2d 949 (Ohio 2009) (suppressing warrantless cell phone search). . . . 

Schlossberg v. Solesbee, No. 10-6014-TC, at n.2 (D. Or. Jan. 13, 2012).

Related Reading

• Julia Angwin & Scott Thurm, Judges Weigh Phone Tracking, WSJ.com (Nov. 9, 2011) (available here).

• Bill Mears, Justices rule against police, say GPS surveillance requires search warrant, CNN.com (Jan. 23, 2012) (available here).

• Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights, NY Times (Jan, 23, 2012) (available here).

• Mike Sacks, Warrantless GPS Tracking Unconstitutional, Supreme Court Rules, HuffingtonPost.com (Jan. 23, 2012) (available here).

(Image courtesy of WSJ.com).