justice gorsuch

But For Causation is not Sole Causation and Other Matters: the Supreme Court LGBT Decisions

June 17, 2020 by William Goren 2 Comments

This week the Supreme Court came down with the decisions in the LGBT cases, which I previously discussed here. The decision will have an absolute huge impact on people with disabilities in both positive and possibly negative ways. Before moving onto the decision, I do want to say that my wife and I and my daughter for the last seven years have been members of Congregation Bet Haverim, which was originally founded as the home for the LGBT community in Decatur, Georgia some 25 years ago. My daughter and I have also taught at the religious school there for the last several years. So, on a policy level I couldn’t be happier about the decision that came down yesterday. Did they get it right on the law? I will leave that for readers to decide after going through the reasoning of each of the opinions, which I explore in detail. I will say that I always enjoy reading Justice Gorsuch’s opinions. Regardless of whether I agree with him or not, his writing is one of the most accessible I have seen for a judge. I felt the same way when he was on the 10^th Circuit Court of Appeals. For those interested in where Justice Gorsuch might stand on the rights of people with disabilities excluding this case, check out this blog entry. This blog entry will be divided into the categories of Justice Gorsuch’s majority opinion; Justice Alito’s dissenting opinion; Justice Kavanaugh’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. I will say that you will want to read at a minimum Justice Gorsuch’s majority opinion section and the thoughts/takeaways section.

Justice Gorsuch’s Majority Opinion

An employer who fires an individual for being homosexual or transgender terminates that person for traits or actions it would not have questioned in members of a different sex. That is, sex plays a necessary and undisguisable role in the decision, which is exactly what title VII forbids.
While it is true that the Civil Rights Act might not have anticipated that it would lead to the protection of those in the LGBT community, it is also likely that the drafters of the Civil Rights Act were not thinking about consequences that became apparent over the years, including prohibition against discrimination on the basis of motherhood and its ban on sexual harassment of male employees.
The limits of the drafters’ imagination supply no reason for ignoring the law’s demands. When the express terms of the statute give one answer and an extratextual consideration another, it is no contest. Only the written word is the law, and all persons are entitled to its benefits.
Title VII of the Civil Rights Act prohibits employers from taking certain action because of sex. The ordinary meaning of “because of,” is “by reason of,” or on, “account of.” That means, title VII’s “because of,” test incorporates the simple and traditional standard of but for causation.
In other words, a but for test directs us to change one thing at a time and see if the outcome changes. If it does, you have found a but for cause.
Oftentimes, events have multiple but for causes. For example, if a car accident occurs both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, each is a but for cause of the collision.
So long as the plaintiff’s sex was one but for cause of that decision, that is enough to trigger the law.
If Congress didn’t want to deal with but for causation, it could have said as much. For example, it could have added solely to indicate that actions taken because of multiple factors do not violate the law (our blog has discussed numerous times how the Rehabilitation Act, 29 U.S.C. §794, works that way). Another possibility is that Congress could have used the term “primarily because of,” to indicate that the prohibitive factor had to be the main cause of the defendant’s challenge employment decisions. However, Congress didn’t do that. If anything, Congress moved in the opposite direction by amending title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait, such as sex, is a motivating factor.
The but for causation standard continues to afford a viable, if no longer exclusive, path to relief under title VII.
The term “discriminate,” in 1964 meant roughly what it means today. That is, to make a difference in treatment of favor (of one as compared with others). So, to discriminate against a person would seem to mean treating that individual worse than others were similarly situated. In such cases, the Supreme Court has also held that the difference in treatment based upon sex must be intentional.
Title VII focus is on individuals and not groups. What is an individual is has not changed from 1964. That is, a particular being as distinguished from a class, species, or collection.
Where an employer fires a woman for being insufficiently feminine and also fires a man for being insufficiently masculine, the employer fires an individual in part because of sex.
An employer violates title VII when it intentionally fires an individual employee based in part on sex. It simply doesn’t matter that other factors besides the plaintiff’s sex contributed to the decision. It also doesn’t matter if the employer treated women as a group the same when compared to men as a group.
If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee (if changing the employee’s sex would have yielded a different choice by the employer), then a statutory violation has occurred.
An individual’s homosexuality or transgender status is not relevant to employment decisions because it is impossible to discriminate against the person for being homosexual or transgender without discriminating against that individual based on sex.
Where you have a man and a woman both attracted to men, if the employer fires a male employee for no reason other than the fact that he is attracted to men, the employer discriminates against the male employee for traits or actions it tolerates in his female colleagues. In other words, in that situation the male employee is fired in part based upon the employee’s sex and the affected employee’s sex is a but for cause of his discharge.
In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates an employee as female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the termination. In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Homosexuality and transgender status are inextricably bound up with sex.
It doesn’t matter when an employee treats one employee worse because of an individual’s sex that other factors may contribute to the decision.
Title VII simply doesn’t care when two causal factors may be in play. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met and liability may attach. For example, intentionally burning down a neighbor’s house is arson even if the perpetrator’s ultimate intention or motivation is only to improve the view. The same can be said for intentional discrimination based on sex violating title VII even if it is only intended as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.
Where an employer discriminates against homosexual or transgender employees, the employer is inescapably intending to rely on sex in the decision-making.
Title VII makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of title VII.
It is no defense for an employer to discriminate intentionally against an individual only in part because of sex. It is also no defense that the employer may happen to favor women as a class.
A world that appears evenhanded at the group level can prove discriminatory at the level of individuals.
An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention or motivation.
It is irrelevant the label put on what an employer might call its discriminatory practices or what else might motivate it. That is, labels and additional intentions or motivations don’t make a difference when it comes to title VII liability.
The plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. So, it has no significance if another factor might also be at work or even plays a more important role in the employer’s decision.
Sorting out the true reason for an adverse employment decision is often a hard business, but none of that matters in this case.
It doesn’t matter that in common parlance a person may say that they were terminated because of sexual orientation or trans status rather than saying that they were terminated because of sex. In conversation, the speaker is likely to focus on what seemed most relevant or informative to the listener. So, an employee who had just been fired is likely to identify the primary and most direct cause rather than list every single but for cause. To do otherwise, would be really tiring. Even so, conversational norms or conventions do not control title VII’s legal analysis, which focuses on whether sex was a but four cause.
Where sex isn’t the only factor or maybe even the main factor, there still can be liability under title VII if it is a but for cause.
Nothing in title VII turns on the employer’s labels or any further intention for motivation for its conduct beyond sex discrimination.
By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Anyway you slice it, the employer intentionally refuses to hire applicants in part because of the affected individual’s sex regardless of whether it learned of the applicant’s sex in the first place.
Discrimination based on homosexuality or transgender status cannot happen without it also being discrimination based on sex.
Title VII prohibits all forms of discrimination because of sex regardless of how they manifest themselves or what labels someone might attach to them.
Just because Congress had never successfully added sexual orientation to title VII, that is not controlling. That is, speculation about why a later Congress declined to adopt new legislation offers a particularly dangerous basis and for the interpretation of an existing law a different and earlier Congress did adopt.
Title VII’s plain terms and the Court’s precedents don’t care if an employer treats men and women comparably as groups. If an employer fires both lesbian and gay men equally, that doesn’t diminish their liability but doubles it.
Often in life and in law, two or more factors combined to yield a result that could’ve also occurred in some other way. For example, if it’s a nice day outside and your house is too warm, you might decide to open the window. Both the cool temperature outside and the heat inside are but for causes of your choice to open the window. That decision doesn’t change just because you would’ve also opened the window had it been warm outside and cold inside.
For employer’s to say that sex must be the sole or primary cause of an adverse employment action for title VII liability, that suggestion is at odds with everything known about title VII.
Imposing a stricter causation test for use in cases involving sexual orientation or transgender status would create a curious discontinuity in the law to put it mildly.
Where the meaning of a statute is plain, the Court’s analysis ends there. That is, people are entitled to rely on the law as written without fearing that the court might disregard its plain terms based upon some extra-textual consideration.
Legislative history is meant to clear up ambiguity not create it.
The fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity, rather it demonstrates the breath of legislative command. It is the provisions of legislative command rather than the principal concerns of legislators that govern judicial interpretation.
When a new application emerges that is both unexpected and important, the dissenting opinions would have the question merely be pointed out and referred back to Congress while declining to enforce the plain terms of the law in the meantime. That type of reasoning has long been rejected by the Court.
It doesn’t make sense to say that a law is only as good as far as legislators intended its expected applications or its purpose at the time the law was enacted.
It isn’t necessarily clear that no one in 1964 or for some time after would have anticipated a holding that title VII protects people from discrimination if they are attracted to people of the same sex or are transgender. Shortly after title VII was passed, gay and transgender employees began filing title VII complaints. In the debate over the equal rights amendment, some people argue that the equal rights amendment might also protect homosexuals from discrimination.
Often lurking behind the objection about unexpected applications, is a cynicism that Congress could not possibly have meant to protect a disfavored group. For example, when the Court applied the ADA to prisons, some demanded a closer look. The Court emphatically rejected that view explaining that where the text was unambiguous, whether a specific application was anticipated by Congress was irrelevant.
To refuse enforcement just because you are applying protective laws to a group that was politically unpopular at the time of the law’s passage, not only requires the Court to abandon its role as interpreter of statutes, but it would also tilt the scales of justice in favor of the stronger popular group and neglect the promise that all persons are entitled to the benefit of the law’s terms.
If title VII’s plain text was only applied to the group expected in 1964, there would be a lot of law to overturn. In fact, many now obvious applications of title VII met with heated opposition early on even among those tasked with enforcing the laws. All you have to do to see that to see how the EEOC has evolved over the years with respect to what title VII covers.
Title VII prohibition of sex discrimination in employment is a major piece of federal civil rights legislation and was written in starkly broad terms. It has repeatedly produced unexpected applications. Congress’s key drafting choice to focus on discrimination against individuals rather than on groups and to hold employers liable whenever sex is a but for cause of the plaintiff’s injuries, virtually guaranteed that unexpected applications emerge over time.
Drafting new legislation or addressing unwanted consequences of old legislation is the responsibility of Congress.
With respect to parade of portables that may result from the decision, none of those are currently before the Court. To figure out those issues, you would need adversarial testing. Under title VII, bathroom, locker room, or anything else of the kind are not being addressed by this decision. Whether other policies and practices might or might not qualify as unlawful discrimination or find justification under other sections of title VII are questions for future cases (that includes any cases dealing with the issue of how protecting religious liberty interact with title VII, which in any event none of the parties argue was the case here).

Justice Alito’s Dissent

Sexual orientation and gender identity do not appear on the list of what employers may not do in title VII of the Civil Rights Act.
Since Congress had never amended title VII to include sexual orientation and transgender, title VII’s admonition that sex discrimination is prohibited means what it has always meant.
The Court has essentially taken a bill to amend title VII, which would specifically include sexual orientation and gender identity, and issued it under the guise of statutory interpretation. Such an approach is a brazen abuse of the Court’s authority to interpret statutes.
The concept of discrimination because of sex is entirely different than the concept of discrimination because of sexual orientation or gender identity.
The Court’s duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time the statutory term was written. Accordingly, in 1964, it would have been hard to find anyone who thought that discrimination because of sex meant discrimination because of sexual orientation not to mention gender identity, a concept essentially unknown in 1964.
While the majority decision sails under a textualist flag, what it actually does is apply the theory that courts should update statutes so they better reflect the current values of society. That is an approach that Justice Scalia couldn’t stand. If that is the theory for what the court is doing, they should own up to it as Justice Posner did in the Hively
In 1964, it was as clear as clear could be that discrimination because of sex meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. You will not be able to find a single dictionary from that time defining “sex,” to mean sexual orientation, gender identity, or transgender status.
If sex and title VII mean biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
The majority opinion spends a lot of time talking about what but for causation is and how it allowed for multiple causation. However, none of that matters if sexual orientation or gender identity does not inherently constitute discrimination because of sex in the first place.
There is not a shred of evidence that any member of Congress interpreted the statutory text to include sexual orientation or general identity when title VII was enacted.
Until 2017, every single Circuit Court to consider the question interpreting whether title VII prohibition against sex discrimination said that sex discrimination meant on the basis of biological sex. Further, the EEOC saw it that way for the first 48 years after title VII became law.
Even the Court concedes that sexual orientation and gender identity are different concepts then discrimination based upon sex. Further, neither sexual orientation nor gender identity is tied to either of the two biological sexes.
Just because the majority opinion repeats over and over again that discrimination because of sexual orientation or gender identity inherently and necessarily entails discrimination because of sex does not make it true.
It is quite possible for an employer to discriminate based upon sexual orientation or transgender status without taking the sex of an individual applicant or employee into account. The US military did that for years. Also, the attorney representing the employees conceded at oral argument that it was possible for an employer to discriminate based upon sexual orientation or transgender status without taking sex into account.
Title VII prohibits discrimination because of sex itself and not because of everything that is related to, based on, or defined with reference to sex.
The Court draws a distinction between things that are inextricably related and those that are related in some vague sense. However, that approach creates arbitrary lines separating the things that are related closely enough from those that are not.
Absolutely true that many people in 2020 and perhaps Congress if the majority had not intervened, believe that it is sound policy to hold that homosexuality or transgender status is not relevant to employment decisions. However, that is not the policy in title VII in its current form. Title VII prohibits discrimination based upon five specified grounds and sexual orientation or gender identity are not on the list. So as long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are relevant to its employment decisions. By proclaiming that sexual orientation and gender identity are not relevant to employment decisions, the court is updating title VII to reflect what it regards at 2020 values.
Until title VII adds sexual orientation as a protected characteristic, employers are free to discriminate based upon sexual orientation. Same for transgender status.
Title VII allows employer to decide whether two employees are materially identical. Even idiosyncratic criteria are permitted. While applying idiosyncratic criteria may be unfair and foolish, title VII permits it. Similarly until title VII is amended, discrimination against gays lesbians or transgender individuals is permitted.
Something that is not sex discrimination cannot be converted into sex discrimination by slapping on the label. Rather, the Court needs to show that a label is the correct label.
The employer’s real objection in the case before it is not attraction to men but homosexual orientation.
Homosexuality and transgender status are distinct concepts from sex. It is simply indefensible for the Court to say that the only possible interpretation is to conflate sex with transgender status and sexual orientation.
Title VII forbids discrimination because of sex and not because of sex stereotypes. Sexual stereotype evidence is related to showing that discrimination occurred because of sex, but that isn’t the same thing as saying title VII prohibits discrimination because of sex stereotyping.
In cases involving discrimination based on sexual orientation or gender identity, the employer’s decision that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with the biological sex applies equally to men and women.
Discrimination because of sexual orientation is not historically tied to a project aiming to subjugate either men or women. An employer discriminating on that ground might be called homophobic or trans phobic but not sexist.
The primary definition of “sex,” in every dictionary refers to male and female based upon biology. That is true today as well as in 1964.
When interpreting a statute, a court has to consider how would the statute have been understood by ordinary people at the time of enactment. That is, judges should ascribe to the words of the statute what a reasonable person conversing with applicable social conventions would have understood them to mean at the time of adoption. So, slicing a statute into phrases while ignoring the setting of the enactment is a formula for disaster.
Textualism calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what words were understood to mean at the time of enactment. That is to say, that you consider communication in the context of the community existing in a particular place and at a particular time. Therefore, those communication must be interpreted as they were understood by the community at the time.
In 1964, ordinary Americans reading title VII would not have dreamed that discrimination included sexual and orientation and gender identity.
In 1964, because of sex meant equal treatment for men and women.
Stretching back in time, 1879 even, you can look at many state and federal laws using language indistinguishable from title VII’s critical phrase, “discrimination because of sex.” In all those situations, the laws were part of a campaign for equality waged by women’s rights advocates for more than a century and meant equal treatment for men and women. Including sexual orientation or transgender status would have clashed in spectacular fashion with the societal norms of the day.
Looking at the norms of the day, Congress could have never included sexual orientation or transgender status within the definition of sex because at the time homosexuality was thought to be a mental disorder, morally culpable, and worthy of punishment.
It wasn’t until 1991 when agencies began to change their security policies and practices regarding sexual orientation.
While society has now come to recognize the injustice of past practices and that provides an impetus to update title VII, that is not the job of the judiciary.
Transgender as a term didn’t come up until the 1970s. Gender identity didn’t appear until 1964 in an academic article. Also, common parlance and dictionaries of the time were still focused on biological sex. It wasn’t until 1980 that the DSM recognize transgender status in some way. Sex reassignment surgery were not performed until 1966, and the great majority of physicians surveyed in 1969 thought that a person seeking sex reassignment surgery was severely neurotic or psychotic. So, it defies belief that the public meaning of discrimination because of sex in 1964 could have possibly encompassed sexual orientation and transgender status.
What the public thought in 1964 is relevant and important because it helps explain what the text was understood to mean when it was adopted.
The Court’s citation of various cases are of no help because all of those cases clearly focus on sex.
In the thinking of Congress and the public in 1964, discrimination based upon sexual orientation and transgender status would not have been evil at all.
The essential question of whether discrimination because of sexual orientation or gender identity constitute sex discrimination is the same regardless of what causation standard is applied. Accordingly, the Court’s extensive discussion of causation standard is just blowing smoke.
An employer discriminating equally on the basis of sexual orientation or transgender status applies the same criteria to every affected individual regardless of sex.
When there is an ambiguity in the terms of the statute, the Court has found it appropriate to look to other evidence of congressional intent, including legislative history. However, the Court refuses to do so here.
The person who added sex to title VII of the Civil Rights Act would have been better off looking for a poison pill by inserting the term sexual orientation or gender identity rather than sex. However, all of the legislative history reveals that the debate was exclusively focused on biological sex.
Since 1975, legislators have tried to add sexual orientation the title VII to no avail. Accordingly, you would be hard-pressed to say that sexual orientation is the same thing as sex discrimination and the courts have said as much. Until 1991, the EEOC agreed.
The Court has no qualms about disregarding over 50 years of uniform judicial interpretation of title VII’s plain text.
The majority decision is going to have a huge impact on the law in a variety of ways. For example, over 100 federal statutes prohibit discrimination because of sex. The court’s refusal to consider the consequences of its reasoning is irresponsible. The Court would have been better off allowing the legislative process to take its course so that they could consider competing interests and find a way to accommodate at least some of them. By intervening this way, the Court has greatly impeded and perhaps effectively ended any chance of a bargained legislative resolution.
Other ways this decision may impact the law include: 1) whether transgender individuals can now use a bathroom or locker room reserved for persons of the sex they identify with; 2) whether a gender fluid person has the right to use a bathroom or locker room they identify with; 3) whether a transgender individual has the right to participate on a sports team or in an athletic competition previously reserved for members of one biological sex (Justice Alito notes this kind of litigation is already happening); 4) whether a college can refuse to prevent opposite biological sex as roommates; 5) whether religious organizations can refuse to hire people based upon sexual orientation or transgender status. True, religious organization get a pass if the employee is a minister, as we discussed here, but not all employees of religious organizations are ministers; 6) whether transgender employees can challenge employer-provided health insurance plans not covering costly sex reassignment surgery; and 7) whether a person can claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination; and 8) whether sexual orientation and transgender individuals are now subject to a heightened standard review with respect to constitutional law. Although the Court does not want to think about the consequences of the decision, it will not be able to avoid these issues for long. The entire federal judiciary will be tied up for years with these kind of disputes.

III

Justice Kavanaugh’s Dissent

The responsibility to amend title VII belongs to Congress and to the president not to the Court.
Bills to include sexual orientation in title VII have always failed before Congress.
Title VII did not include disability discrimination or age discrimination when enacted. Congress had to come up with separate laws for that.
Judges cannot simply rewrite the law because of their own policy views. Rather, that is for the legislature to do.
Since judges interpret the law as written not as they wish it would be to written, it makes perfect sense that the first 10 United States Court of Appeals to consider whether title VII prohibit sexual orientation all said no.
Whether a literal meaning or an ordinary meaning of the terms is used to approach this decision, the inescapable conclusion that sexual orientation and transgender status is not the same at discrimination based upon sex.
Ordinary meaning approach is the preferred way to go because of respect for the rule of law and democratic accountability. The Court over time has consistently use ordinary meaning rather than literal meaning when looking at statutes. When ordinary meaning and literal meaning conflict with each other, courts have to follow the ordinary meaning.
Courts have to look to the ordinary meaning of the phrase as a whole and not just to the meaning of the words in the phrase. That is because the phrase may have a more precise or combined meaning than the literal meaning of the individual words and the phrases.
Assessing ordinary meaning is not difficult in this case. Both common parlance and common legal usage view of sex discrimination and sexual orientation discrimination as distinct categories of discrimination, back in 1964 and even today.
To say that sexual orientation and transgender status includes sex rewrites history. The women’s rights movement is not the gay rights movement, though many people support both. To say that sexual orientation discrimination is just a form of sex discrimination is a mistake of history and sociology.
Where sexual orientation is prohibited, every single federal statute has explicitly stated this much.
Differences in language convey differences in meaning.
Presidential executive orders also reflect the common understanding that sexual orientation is not the same as sex discrimination. Same goes for federal regulations.
In all the prior cases dealing with sexual orientation that have come before the court, not a single Justice even stated or hinted that sexual orientation discrimination is a form of sex discrimination and therefore gets heightened scrutiny under the equal protection clause. There is not even a trace of any such reasoning in those cases because presumably everyone understood that sexual orientation is distinct from sex discrimination.
The majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. The majority decision will also promote cynicism about the role of judges because judges need to decide on the law rather than on personal preference.

Thoughts/Takeaways

So, what do you think? Do you think Justice Gorsuch has it right or do you think Justices Alito and Kavanaugh have it right? In addition to your political views, your answer very much might depend upon how you view the role of the judiciary. This blog entry is comprehensive, and so you have plenty of information to make that decision with.
This case is going to be absolutely huge persons with disabilities in several respects. First, we know from this blog entry that retaliation is but for. It was debatable as to whether but for causation applied to title I matters, such as we discussed here. Now, that discussion is academic. We now know that but for can still be the rule even if it is does not mean sole cause. That is, this case makes clear that there can be more than one but for cause. Often times, in employment matters there is more than one but for cause. So, the debate over whether title I has a different causation standard than the retaliation provision of title V is now academic. It’s pretty clear that the rule is but for. However, but for does not mean sole cause. Over and over again, Justice Gorsuch says in his opinion that multiple but for causes are perfectly possible. Where any one of those but for causes exist, liability attaches regardless of whether it is just one part of a larger whole. Many years ago I recall asking a plaintiff attorney for a nonprofit disability rights group about his view of motivating factor litigation. He had told me that jurors didn’t understand motivating factor, and he simply did not understand all the litigation over motivating factor jury instructions. I specifically remember him telling me that jurors are much more likely to understand but for. I can’t remember his name, but he was a prophet.
The second way this case will have an absolutely huge impact on people with disabilities is in the area of equal protection and in the area of sovereign immunity. As you may recall from this blog entry, both of those areas involve figuring out what equal protection classification persons with disabilities fall into. From there, you figure out whether the equal protection clause was violated or not. On the sovereign immunity side, the classification matters because that is what dictates whether the scheme is proportional to the harm being redressed. When it comes to persons with disabilities, we know per this blog entry, that when it comes to accessing the courts, persons with disabilities are at least in the intermediate if not higher level of scrutiny. However, everything else is on a case-by-case basis when it comes to persons with disability. For example, with respect to employment people with disabilities are in the rational basis, lowest, class per this case. Since sexual orientation and transgender discrimination is now sex discrimination, an argument can be made that for purposes of equal protection clause and for purposes of sovereign immunity litigation, people alleging discrimination based upon sexual orientation or transgender status receive a heightened level of scrutiny. If that is the case, that would mean that people facing discrimination on the basis of sexual orientation or transgender status are often times in a higher equal protection classification than persons with disabilities.
The third way this case impacts upon people with disabilities is through the Rehabilitation Act. Under 29 U.S.C. §794 causation is, “solely by reason of.” That means under this case that causation in Rehabilitation Act matters is truly sole cause. One wonders if the upcoming election results in a complete turn over to control this November, certainly no guarantees that it will, whether you would not see an effort to amend the Rehabilitation Act to delete the word, “solely” from 29 U.S.C. §794.
When I was teaching people how to be paralegals, one of the classes I taught was an introduction to philosophy course. In that course, the student learned that the slippery slope argument, which we lawyers are so fond of using, is actually a logical fallacy. That is, everything depends upon its facts, especially in the law, and so there isn’t such a thing as a slippery slope. That may not be the case here. We are already seeing litigation over bathrooms, and in Connecticut we are seeing litigation over whether transgender students can compete on athletic teams of the gender they identify with rather than their biological gender. I already mentioned the equal protection and sovereign immunity piece. I am also already aware of litigation over failure to provide insurance for sex reassignment surgery. Of course, you have the litigation over how the military currently treats trans individuals. It is also perfectly realistic to expect litigation against religious-based entities that discriminate on the basis of sexual orientation or transgender status where that individual is not a minister.
Previously, as mentioned at the top of this blog entry, I have gone through all of Justice Gorsuch’s opinions on disability rights to try and figure out how he might handle disability related cases at the United States Supreme Court. From that review, I did see a stream going through his opinions of how common sense matters. You see some of that in his decision in this case. I have his book that came out shortly after he was put on the Court. I now plan to read it with an eye to see if I can figure out how he got to where he got with respect to the majority opinion.
Justice Roberts also joined the opinion. Previously, he had dissented in gay-rights decisions earlier, such as Masterpiece Cake and Obergefell.
Interesting that Justice Gorsuch brings up the debate about the equal rights amendment. I am pretty sure that the arguments about how the ERA would protect homosexuals from discrimination was a big point made by the anti-ERA activist and not by the pro-ERA side.
Interesting that both Justice Gorsuch and Justice Alito say they are squarely in Justice Scalia’s way of looking at things. That shows just how huge of an impact Justice Scalia has had on the Supreme Court.
Very unclear now why a trans individual would even consider ADA claims when they can now proceed under title VII. After all, the ADA has an exception that can make it difficult for trans individual to proceed under the ADA. See also this blog entry.

Kisor Decided: What Does it Mean for Auer Deference?

July 2, 2019 by William Goren 1 Comment

I had a great time last week doing two CLEs with my colleague and foil Richard Hunt in Dallas. Those webinars can be found here and here. We had an absolute blast. I also got some personal time in as well with a really close friend and his family in nearby Fort Worth. So, ready to go for another week. Shortly before we did the first webinar, I got news from Robin Shea, the person behind the Labor And Employment Law Insider blog in my blogroll, that Kisor v. Wilkie came down. It’s timing could not have been better because the case explicitly and implicitly came up in both webinars. As promised last week, the blog entry of the week is on Kisor v. Wilkie. As usual the blog entry is divided into categories and they are: introduction; why Auer deference makes sense; Auer deference from here on out; why Auer deference doesn’t get overruled; stare decisis must be respected; why case must be remanded; Chief Justice Roberts concurring opinion stating that the majority opinion and Justice Gorsuch are not that far apart; Justice Gorsuch concurring opinion setting forth the case why Auer deference should have died; and takeaways. Of course, the reader can focus on any or all of the categories. That said, at a minimum, the reader is going to want to read III, Auer deference from here on out, and IX, takeaways, for sure. For those with a more academic bent, it’s interesting comparing Justice Kagan’s take on why Auer deference had good policy reason behind it (II), with Justice Gorsuch’s take on why Auer deference should be blown up (VIII). Similarly, the stare decisis section (V) is interesting in light of how the Supreme Court is not always following stare decisis of late.

Introductory Thoughts

Unanimous decision. However, unanimous in result only and not in its reasoning.
The swing vote was clearly Chief Justice Roberts. Of particular significance, he joined the section circumscribing Auer deference, the section talking about how stare decisis mattered, and the section discussing the merits of the case. Otherwise, he pointedly did not join the majority opinion.
Justice Kavanaugh did write a concurring opinion. That opinion essentially says he agrees with what Chief Justice Roberts said about how there is not much daylight between Justice Gorsuch and Justice Kagan.
We previously discussed the oral argument in this case here. Just to recap, what happened here was a veteran lost a benefits case because an agency interpretation of its regulations was given Auer deference. He then appealed through the system, and it eventually came before the United States Supreme Court.
Kenneth Culp Davis, widely recognized as the Dean of administrative law and cited to by Justice Gorsuch in his concurring opinion, actually taught administrative law while I was at the University of San Diego getting my JD degree. He had an absolutely brutal reputation, and I was too scared to take his class. I do remember some who did.

Why Auer Deference Makes Sense (plurality)

For various reasons, regulations may be genuinely ambiguous. That can happen for a variety of reasons. For example, the subject matter of a rule could be so specialized or varying in nature so as to be impossible to capture it in every detail. Or, it could be a situation where the agency when drafting the regulation could not have reasonably foreseen. Either way, real uncertainties about a regulation’s meaning arise.
Justice Kagan gives five different examples of how regulations have real uncertainty about their meaning, including: whether the ADA line of sight rule applies to only when people in the stadium are seated or whether it applies when people in a stadium are standing and a person with a mobility impairment needs to see over them; whether a Transportation Security Administration regulation applying to liquids, gels, and aerosols in carry-on baggage would apply to any kind of liquid or just to liquids that the policy is designed to protect against; whether a Mine Safety And Health Administration rule requiring employers to report occupational diseases within two weeks after they are diagnosed would include the results of a chest x-ray; an FDA regulation concerning what an active moiety is; whether a Police Department making disciplinary infractions subject to pay deductions factors in the whether police captains are eligible for overtime under the Fair Labor Standards Act (Auer). The first example pertaining to the ADA is interesting because both the Seattle Mariners and the Baltimore Orioles are engaged in litigation at this time on this very point.
Auer deference operates on a presumption that Congress generally wants the agency to play a primary role in resolving regulatory ambiguities.
The Supreme Court has held in the past that the power of an agency to interpret its own regulations is a part of the agency’s delegated lawmaking powers.
Agencies writing a regulation often have direct insight to what the rule was intended to mean.
If you want to know what a rule means, ask its author.
Resolving genuine regulatory ambiguities often entails the exercise of judgment grounded in policy concerns. For example, what comparable line of sight means is complicated in the sports arena when spectators sometimes stand up. The question arises as to how costly is it to insist that the stadium owner take that sporadic behavior into account and is the viewing value received worth the added expense. That is a policy question rather than a legal question.
Agencies have unique expertise often of a scientific or technical nature relevant to applying a regulation to complex or changing circumstances.
Agencies can conduct factual investigations, can consult with affected party, and can consider how their experts have handled similar issues over a long course of administering a regulatory program.
Agencies have political accountability because they are subject to the supervision of the president who in turn answers to the public.
Congress frequently has expressed a preference for resolving interpretive issues by uniform administrative decision rather than piecemeal through litigation.

III (majority)

Auer Deference from Here on Out

For Auer deference to apply, the regulation must be genuinely ambiguous. We mean it we mean it. That is, the regulation must be genuinely ambiguous even after a court has resorted to all the standard tools of interpretation.
If the reason for the presumption do not apply or there are other reasons outweighing the reason behind the presumption, courts should not give deference to an agency’s reading except to the extent it is persuasive authority.
Deference is not warranted where court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.
The new version of Auer deference gives agencies the ability to do their job while obligating courts to perform their reviewing and restraining functions.
If uncertainty in the regulation does not exist, no plausible reason for deference exist either. The regulation just means what it means and the court must go with that. That is, if there is only one reasonable construction of a regulation, then a court has no business deferring to any other reading no matter what the agency says would make more sense. Holding otherwise, would allow the agency to create a new regulation without going through the rulemaking process.
Only where the legal toolkit is empty and the interpretive question still has no single right answer does the judge get to conclude that Auer deference applies. It isn’t good enough that agency regulations can be difficult understand. Before Auer deference applies, an independent deep dive by the court is in order.
The deep dive includes carefully considering the text, structure, history, and purpose of the regulation as if the interpretation of the regulation did not exist.
Even if genuine ambiguity exists, the interpretation of the regulations still have to be reasonable. That is, it has to come within the zone of ambiguity the court has identified after applying all its interpretive tools. Citing to Chevron, Justice Kagan says that it is entirely possible interpretation of a regulation will not be reasonable.
In deciding whether Auer deference is or is not appropriate, you look to several factors: 1) whether the regulatory interpretation is the agency’s authoritative or official position, rather than an ad hoc statement not reflecting the agency’s views. That is, the interpretation must at least come from those actors using mechanisms understood to make authoritative policy in the relevant context; 2) the agency’s interpretation must implicate some form of its expertise. After all, administrative knowledge and experience largely account for the presumption that Congress delegates interpretive lawmaking power to the agency. This is especially the case when a rule is technical or commonly implicates policy expertise, such as the examples given by justice Kagan in the first part of her opinion. Finally, when the agency has no comparative expertise in resolving regulatory ambiguity, Congress presumably would not grant the agency the authority to do so; and 3) an agency’s reading of a rule must reflect fair and considered judgment. That does not include deferring to a merely convenient litigating position or an after-the-fact rationalization abandoned by the agency to defend the agency action against attack by others. It also does not include deferring to a new interpretation that creates unfair surprise to regulated parties. For that matter, it also generally does not include giving deference to agency interpretations advanced for the first time in legal briefs.
So, Auer deference from here on out as Justice Kagan put it, “is a deference doctrine not quite so tame as some might hope, but not nearly so menacing that they may fear.”

Why Auer Deference Doesn’t Get Overruled (plurality)

Auer deference as circumscribed is consistent with the judicial review provisions of the administrative procedure act because: 1) all traditional methods of interpretation must be applied first and plain meaning must be in force; 2) an independent deep dive always must be conducted; 3) the interpretation of the regulation must be reasonable; and 4) the interpretation must be authoritative, expertise-based, considered, and fair to regulated parties.
Auer deference as circumscribed is consistent with the administrative procedure act’s rulemaking requirements because: 1) interpretive rules do not have the force of law and never forms the basis for an enforcement action; 2) the courts get the ultimate say on Auer deference; and 3) no evidence exists that any regulation in American history was designed poorly because an agency can fall back on Auer deference.
Auer deference does not violate separation of powers principles because courts retain a firm grip on the interpretive function.

Why Auer Deference Should Continue as a Matter of Stare Decisis (majority).

Inherent to precedent is a fundamental principle of the rule of law because it promotes the evenhanded, predictable, inconsistent development of legal principles. It also fosters reliance on judicial decision and contribute to the actual and perceived integrity of the judicial process. To move away from that, requires special justification, which, outside of an argument that it was wrongly decided in the first place, is not the case here.
Auer deference goes back more than 75 years or more with the Supreme Court deciding dozens of cases on that point and the lower Court doing it thousands of times. In fact, Auer deference is all over administrative law.
Abandoning Auer deference would cast doubt on many settled constructions of rules.
Congress has refused to take up the question of whether Auer deference should continue. By statute, it could have gotten rid of Auer deference if it wanted to, but it never did.
The parties made no claim that Auer deference is unworkable, which is a traditional basis for overruling the case.
Auer deference is not a doctrinal dinosaur.
Absolutely true that agencies have far reaching influence, which is why Auer deference gets severely circumscribed by this case.

Why the Case Must Get Remanded (majority)

The Federal Circuit acted too fast in declaring the regulation ambiguous. That is, they didn’t do the deep dive before applying Auer deference. As mentioned above, that deep dive involves looking at a variety of indicators, such as the text, structure, history, and purpose as well as whether the regulation really has more than one reasonable meaning.
The Federal Circuit acted too fast in saying that Auer deference applied even if the regulation was genuinely ambiguous. That is, what the interpretation of the regulation of the sort that Congress would want to receive deference? Did the board member’s ruling reflect the considered judgment of the agency as a whole?

VII

Chief Justice Roberts Concurring Opinion Stating That There Isn’t Much Daylight between Justice Gorsuch and the Majority Opinion of Justice Kagan.

Under the majority opinion for Auer deference to apply, the following factors have to be considered: 1) the underlying regulation must be genuinely ambiguous; 2) the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and 3) the agency must take account of reliance interest and avoid unfair surprise.
On the other hand, Justice Gorsuch says that the situations a court might be persuaded by the interpretation of the regulation would include a court finding: 1) the agency considered the problem; 2) the agency offered a valid rationale; 3) the agency brought if expertise to bear; and 4) the agency interpreted the regulation in a manner consistent with earlier and later pronouncements.
Comparing ¶ 1 with ¶ 2 of this section of the blog reveals that the two are very close once style differences are accounted for.
Different question as to whether the court should give deference to an agency’s regulation (Chevron deference). That is, Chevron deference saved for another day, if ever.

VIII

Justice Gorsuch Concurring Opinion on Why Auer Deference Should Die

The majority opinion can’t get five votes to say that Auer deference is lawful or wise. Instead, it survives on the basis of stare decisis.
There are so many new restrictions and limitations put on Auer deference that Chief Justice Roberts claimed to see little practical difference between keeping it on life support and overruling it entirely.
Justice Gorsuch would stop the business of making up a new system for judges to abdicate their job of interpreting the law and allow the Court of Appeals to apply its independent judgment of the law’s meaning.
The scheme put forward by the majority is so complicated that it will no doubt come before the court again. At that time, hopefully the Supreme Court would just get rid of Auer deference entirely.
Auer deference originally began as dicta in a decision about emergency price controls at the height of the second world war. Only in the last few decades of the 20^th century lawyers in court dusted Auer deference off and shaped it into a reflexive rule of deference to regulatory agencies. They did that without even considering whether a rule like that could be legally justified or even made sense.
Auer deference first got his start in the Seminole Rock case, here, and there the statement had no authority to back it up. In fact, Professor Davis said that particular language was an unexplained aside and made no difference to the case’s outcome.
The same term the court came down with Seminole rock, it came down with Skidmore, which talks about persuasive authority.
In the name of Auer deference, courts have invariably, though not always, mechanically applied and reflexively treated Auer deference as a constraint upon the careful inquiry one ordinarily expects of courts.
In the real world, a judge uses his or her traditional interpretive toolkit to reach a decision about the best and fairest reading of the law. They do that in just about every area of the law. However, when it comes to interpreting federal regulations, Auer deference displaces that process by requiring judges to defer to the agency’s interpretation of the regulation as controlling regardless of what a considered analysis reveals.
Squaring Auer deference with §706 of the Administrative Procedure Act simply doesn’t hold up. That section requires a reviewing court to resolve for itself any dispute over the proper interpretation of an agency regulation.
Auer deference is also incompatible with §553 of the Administrative Procedure Act.. That section requires agency to follow notice and comment procedure when issuing or amending legally binding regulations (substantive rules), but not when offering mere interpretations of those regulations. Auer deference for all practical purposes means that any new interpretation of the regulation might as well be a new regulation.
Justice Kagan’s statement about how an agency’s interpretation lacks the force of law doesn’t add up because it rests on a too narrow understanding of what it means for an agency action to bear the force of law.
Auer deference allows for hidden legislative intentions to overrule express statutory directives.
Auer deference doesn’t work with the Constitution either as the judicial power of the United States vests exclusively in the Supreme Court and in the lower courts. A core component of that power is the duty of interpreting the laws and applying them in cases properly brought before it.
The founding fathers were very jealous of ensuring a fair hearing before a neutral judge so that the rule of law reigns supreme and does not merge into the rule of men.
Auer deference tells a judge that he or she has to interpret agency interpretation of regulations in a way that says what the executive agency says they mean. Problem with that if that executive officials are not nor are they supposed to be entirely impartial. That is, they have their own interest, constituency, and their own policy goals when interpreting a regulation.
Whether purposeful or not, the failure of an agency to write a clear regulation winds up increasing its power by allowing it to both write and interpret rules bearing the force of law. Such a system unites powers the Constitution deliberately separates and denies the people the right to an independent judicial determination of the law’s meaning.
The author knows best position of the majority makes little sense in light of the reality of administrative agencies. That is, agency personnel changes over time and agency policy priorities can shift dramatically from one presidential administration to another. Auer deference says that courts have to defer to the current view of those regulations when those current views may or may not correspond to the views of those who actually wrote the regulation in the first place.
In Justice Gorsuch’s opinion, technical expertise isn’t a reason to keep Auer deference either as courts can consider that technical expertise in the context of persuasive authority.
While stare decisis is used as the vehicle for keeping Auer deference, the new Auer deference system reshapes Auer deference in new and experimental ways. Further, preserving Auer deference through stare decisis on the basis of a heightened standard standard given to statutory decisions is not deserved as it was dicta from a decision of the Court..
Auer deference undermine judicial independence.
No persuasive rationale supports Auer deference.
Auer deference has not proved to be a workable standard and the new paradigm will make things even more confused and unworkable.
Auer deference is out of step with how courts normally interpret written laws.
Auer deference potential for mischief has grown exponentially with the explosive growth of the administrative state over the last half-century. In fact, the administrative state produces so many reams of regulation that it dwarfs the statutes enacted by Congress. In 2018 the Code of Federal Regulations total 242 volumes and 185,000 pages. So, the cost of continuing to deny citizens an impartial judicial hearing on the meaning of disputed regulations has increased dramatically since the beginnings of Auer deference.
The majority opinion raises the question of the continuing validity of decisions applying Auer deference just as if the majority had overturned Auer deference entirely.
The better approach is to allow court to decide cases based upon independent judgment and to follow the agency’s view only to the extent it is persuasive.
If Auer deference still gets applied quite a bit after this decision, then the Supreme Court should overrule it when the time comes.

Takeaways

From reading the majority opinion, it seems that Justice Breyer’s concern in oral argument about a judicial power grab may have affected Chief Justice Roberts in some way. Also, how getting rid of Auer deference would fundamentally reshape administrative law (stare decisis), most probably played a role as well since Chief Justice Robert joined the stare decisis part of the opinion..
A real she said he said situation between Justice Kagan and Justice Gorsuch regarding the policies behind Auer deference. Justice Kagan believes Auer deference has many things to commend it. On the other hand, Justice Gorsuch does not agree with that. To Justice Gorsuch’s mind, Auer deference results in administrative agencies going out of their lane. Whenever any branch of the US government goes out of its lane, to Justice Gorsuch that is a bridge too far.
Very interesting that of the examples Justice Kagan uses to explain her opinion, one of them is the site line dispute going on in stadiums at this very moment. I don’t know about the other examples, but I do find it curious an example was chosen where litigation is very much ongoing on that very point.
It makes sense to me that there are situations where an agency has unique expertise to bring to a matter where the regulations are unclear.
Justice Scalia must be smiling as his focus on plain meaning has now come to administrative law. That is, if a regulation is clear, then the courts are supposed to do a full stop right there.
Auer deference as reconfigured requires courts to engage in a deep dive, independent analysis, if there is a doubt as to what the regulation means. Pretty clear from the decision, that Auer deference is meant to be the exception rather than the rule.
The new paradigm is incredibly complicated. For example, just when is the agency’s expertise really brought to bear? Is that expertise only for technical matters, such as moiety’s, or does it extend to other situations? If so, what? At a minimum, whenever Auer deference comes up, a court is going to have to go through a lot of hoops before it allows Auer deference to proceed.
I’m not sure what to make of the fact that a few of the Justices talked about how Chevron deference is not at issue in this case. That seems a bit strange because the arguments in favor of Chevron deference are much stronger than the arguments for Auer deference.
Mechanical and reflexive application of agency interpretations is dead.
The Fair Housing Act circular on service dogs and emotional support animals is now very much up in the air because the Fair Housing Act does not talk about service animals and emotional support animals. For that matter, the Fair Housing Act doesn’t even have any regulations on the subject. One wonders how landlords are going to react to this. Some of that reaction may depend upon how the Department of Housing and Urban Development reacts to this decision.
In the education field, Office of Civil Rights letters frequently get thrown around in the same way as precedent. Unclear, how this decision impacts the persuasive authority of those letters.
One wonders about how Justice Gorsuch’s talking about the rule of law needing to reign supreme rather than the rule of men will impact some of the larger issues going on now with respect to the administration’s response to congressional subpoenas and to executive privilege. I don’t view Justice Gorsuch’s statement about this as anything surprising. As we discussed here, Justice Gorsuch is a very much every branch of government needs to stay in their lane type of guy.
Having worked for the Joint Committee on Administrative Rules in the State of Illinois, Justice Gorsuch’s view on the author knows best made a great deal of sense to me. However, Justice Kagan’s view on agency expertise also made sense to me for the same reasons.
In Illinois, there is a separate agency called the Joint Committee on Administrative Rules, a division of the legislature. JCAR’s job is to proofread all regulations and then more importantly ensure that the regulations meet legislative intent. If the regulations did not meet legislative intent, then a committee of the legislature could state as much and tell the agency to walk back to regulations. As a practical matter, when regulations went beyond legislative intent, the agency generally didn’t want to pick that fight and would walk it back once told as much by JCAR staff. One wonders if under this decision the JCAR’s of the respective States that have them will not get even more power than they currently have, which may not be a bad thing.
Enforcement guidances, technical assistance memorandums, circulars and anything not a regulation having gone through the notice and comment process are now up for individual assessment as to whether the courts are going to buy off on it. The problem with this approach is that there are many many District Court judges out there not to mention 12 different Courts of Appeals. It’s possible we will get an awful lot of conflicting decisions when it comes to giving deference to agency interpretation of the regulations.

In short, Auer deference very well may go too far, the new Auer deference paradigm may be too complicated, but persuasive authority may be chaos. It will be very interesting to see how all this works out.

Ministerial Exception

January 15, 2019 by William Goren Leave a Comment

One of the more fascinating areas of law, is the issue arising when a parochial school claims that an educator is a minister. We discussed that issue way back in 2012 in this blog entry. While the Supreme Court there said that a minister was involved, it couldn’t figure out the standard to use. Now, we get a very interesting decision from the Ninth Circuit on December 17, 2018, Biel v. St. James School, where they held that the ministerial exception did not apply. As usual, the blog is divided into categories and they are: facts taken directly from opinion; majority’s reasoning; dissent’s reasoning; my application of Hosanna-Tabor; and takeaways. The reader is free to concentrate on any or all of the categories.

Facts Taken Directly from Opinion

Biel received a bachelor’s degree in liberal arts and a teaching credential from California State University, Dominguez Hills. After graduating in 2009, Biel worked at two tutoring companies and as a substitute teacher at several public and private schools. St. James, a Roman Catholic parish school within the Archdiocese of Los Angeles, hired Biel in March 2013 as a long-term substitute teacher. At the end of that school year, St. James’s principal hired Biel as the school’s full-time fifth grade teacher. Biel is herself Catholic, and St. James prefers to hire Catholic teachers, but being Catholic is not a requirement for teaching positions at St. James. Biel had no training in Catholic pedagogy at the time she was hired. Her only such training was during her tenure at St. James: a single half-day conference where topics ranged from the incorporation of religious themes into lesson plans to techniques for teaching art classes.

Biel taught the fifth graders at St. James all their academic subjects. Among these was a standard religion curriculum that she taught for about thirty minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration. Biel also joined her students in twice-daily prayers but did not lead them; that responsibility fell to student prayer leaders. She likewise attended a school-wide monthly Mass where her sole responsibility was to keep her class quiet and orderly.

Biel’s contract stated that she would work “within [St. James’s] overriding commitment” to Church “doctrines, laws, and norms” and would “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” St. James’s mission statement provides that the school “work[s] to facilitate the development of confident, competent, and caring Catholic-Christian citizens prepared to be responsible members of their church[,] local[,] and global communities.” According to the school’s faculty handbook, teachers at St. James “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.”^[1]9 The faculty handbook further instructs teachers to follow not only archdiocesan curricular guidelines but also California’s public-school curricular requirements.

In November 2013, Biel received a positive teaching evaluation from St. James’s principal, Sister Mary Margaret, measuring her performance in aspects both secular (e.g., her lesson planning strategies) and religious (e.g., displaying Church symbols in her classroom). The principal’s written evaluation praised Biel’s “very good” work promoting a safe and caring learning environment, noted that she adapted her teaching methods to accommodate her students’ varied learning styles, and observed that she encouraged social development and responsibility. The principal also identified some areas for improvement: for instance, Biel’s students had many items on their desks and two students were coloring in the pages of their books.

Less than six months after that evaluation—which was her first and only formal evaluation at St. James—Biel learned that she had breast cancer and informed the school administration that her condition required her to take time off to undergo surgery and chemotherapy. Sister Mary Margaret told Biel a few weeks later that she would not renew Biel’s contract for the next academic year, citing her belief that Biel’s “classroom management” was “not strict” and that “it was not fair . . . to have two teachers for the children during the school year.”

Biel sued St. James in the United States District Court for the Central District of California, alleging that her termination violated the ADA, which prohibits employment discrimination based on disability. See 42 U.S.C. § 12112(a). Following discovery, St. James moved for summary judgment, arguing that the First Amendment’s ministerial exception to generally applicable employment laws barred Biel’s ADA claims. The district court agreed and granted summary judgment for St. James.

Majority Reasoning Saying Ministerial Exception Does Not Apply

Hosanna-Tabor is the only case where the Supreme Court applied the ministerial exception.
The factors the United States Supreme Court considered included: 1) whether the employer held the employee out as a minister; 2) whether the employee’s title reflected ministerial substance and training; 3) whether the employee held itself out as a minister; and 4) whether the employee’s job duties included important religious functions. The test is a totality of the circumstances test.
Biel in this case does not have the credentials, training, or ministerial background of the plaintiff in Hosanna-Tabor.
There was no religious component to the Biel’s liberal studies degree or to her teaching credential.
The school had no religious requirement for Biel’s teaching position.
Even after Biel began working, her training consisted of only a ½ day conference whose religious substance was limited.
Unlike the plaintiff in Hosanna-Tabor, Biel appears to have taken on teaching work wherever she could find it including: tutoring companies; multiple schools; another Catholic school; and even a Lutheran school.
James did not hold Biel out as a minister by suggesting that she has special expertise in church doctrine, value, or pedagogy beyond that of any practicing Catholic.
Her job title was grade 5 teacher and there is nothing religious in that title.
Her employment was at will and on a year-long renewable contract and was not at all similar to how contract oversight was set up in Hosanna-Tabor.
Nothing in the record indicated that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.
Biel did teach religion in the classroom. She taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum as required by the school. Nevertheless, Hosanna-Tabor cannot be read to say the ministerial exception applies only if this particular characteristic is present. To say that would mean that most of the analysis in that case would be irrelevant dicta.
In Hosanna-Tabor, the United States Supreme Court emphasized the importance of assessing both the amount of time performing religious functions and the nature of the religious functions performed. Here, Biel’s role in Catholic religious education was limited to teaching religion from a book required by the school and incorporating religious themes into her other lessons. She did not orchestrate student daily prayers and did not teach, lead, or plan those devotions herself. Her responsibilities at mass were only to accompany her students and to make sure the kids were quiet in their seats. None of this amounts to the close guidance and involvement in the spiritual lives of her students that the plaintiff in Hosanna Tabor had.
With respect to other cases cited by the defendant, all of those plaintiffs had responsibilities involving pronounced religious leadership and guidance, which is not the case here.
At most, only one of the four Hosanna-Tabor factors weighs in defendant’s favor.
A rule stating that any school employee teaching religion falls within the ministerial exception is not faithful to Hosanna-Tabor or to its underlying constitutional and policy considerations. Such a rule would render most of Hosanna-Tabor’s analysis irrelevant. It means focusing on a single aspect of the employee’s role rather than on a totality of the circumstances involving her training, duties, title, and the extent to which he is asked to transmit religious ideas.
Looking at the historical backdrop to the First Amendment, it is clear that the ministerial exception does not extend to every employee whose job has a religious component.
While the handbook has references to a religious role by Biel, the defendant did not rely on the faculty handbook in support of its motion for summary judgment. Perhaps, because the handbook’s force and effect were contested. Further, it is unclear what role, if any, the handbook played at the school, and whether it actually reflected with teachers at the school were expected to do in practice.
Congress did not exempt religious organizations from title I of the ADA. Accordingly, that choice combined with the presumption of constitutionality enjoyed by congressional legislation means it is especially difficult to invalidate unnecessarily vast swaths of federal law as applies to many employees of religious organizations.
On remand, the defendant does get to argue that it was pedagogical and classroom management concerns and not Biel’s medical condition that was the basis for decision not to renew Biel’s contract.

Dissent’s (Judge Fisher), Reasoning

Biel did teach 30 minute religion classes four days a week using a curriculum from a Catholic textbook chosen by the school principal. Using that curriculum, Biel taught and tested students in her religion class about the Catholic sacraments, the lives of Catholic saints, Catholic prayers, Catholic social teaching, gospel stories, and church holidays.
In her secular classes, she was expected to incorporate Catholic teachings.
As required by the school, Biel attended a one day conference at the Los Angeles religious education Congress covering methods of incorporating God into lessons.
The faculty handbook contains many references to the religious aspect of her teaching.
Performance reviews at the school included a section evaluating Catholic identity factors.
The ministerial exception is an affirmative defense.
The ministerial exception is grounded in the First Amendment and operates independently of any exception granted by Congress. So, it doesn’t matter if the ADA’s title I provisions apply to a religious entity for the exception to apply.
Justice Alito and Justice Kagan said that the critical factor should be the employee’s function rather than his or her title ordination status. Plenty of functions here indicate a religious nature.
Justice Thomas’ view that the ministerial exception applies to any good-faith understanding of who qualifies as a minister is also applicable and is met in this case.
The Hosanna-Tabor test is a totality of the circumstances test.
The dissent comes out with two factors weighing in favor of the ministerial exception and two factors weighing against application of the ministerial exception. In that situation, it is overly formalistic to call it a draw. Accordingly, the court is free to decide which of the four factors come to the forefront. In this case, the dissent believed the importance of Biel’s role as a teacher of faith to the next generation outweighed other considerations.
It is important to not make the mistake of tying the ministerial exception too close to the Protestant Christian concept of ministers.
The ministerial exception should be given a broad application if it is to provide sufficient protection for religious freedom.

My Application of Hosanna-Tabor To These Facts:

Justice Roberts focused on the training of the employee and the title that the employee has. Applying that test leads to the conclusion that Biel is probably not a minister. Her title was a grade 5 teacher. Her training was not particularly religious.
Justice Thomas focuses on whether the religious organization had a good faith belief that the person is a minister based on a sincere determination of the religious entity that the person was a minister. As I mentioned when discussing this case the first time, I find this test very problematic because it gets into the issue of evaluating the good faith and sincerity of a religious entity’s belief. Nevertheless, applying this test, it is hard to believe that a Catholic institution could have a good faith belief based on a sincere determination that Biel was a minister considering all that goes into being a minister in the Catholic faith.
Justice Alito and Justice Kagan focus on the functions of the employee. This particular test is a much harder call. It may even depend upon the personal baggage that a judge brings to it. Looking at the facts laid out by the majority opinion and applying it to this particular test, I get an even split of five factors indicating a ministerial employee and five factors indicating that she was not a ministerial employee. Interestingly enough, that leaves me in the same place as the dissenting judge who also reached the conclusion that there was an even split. Fortunately, I am not the judge. If I were, I might look to the faculty handbook in the contract being very much a matter of dispute. I might also look to much of the performance review having nothing to do with the Catholic faith as well as the suspicious timing of the termination. However, if I came to the case from a very different perspective in terms of how I grew up, what I have come to believe in terms of my religious beliefs, and my identity as a person with a disability, I might reach a very different conclusion.

Takeaways

If this case shows anything, it shows that deciding whether the ministerial exception applies is a big mess. All of the tests put forward by the Justices in Hosanna-Tabor have their strengths and weaknesses. For example, a person’s religious training can be properly evaluated. However, job titles can easily be manipulated. Focusing on whether a religious organization has a good faith belief based upon a sincere determination of the religious entity becomes very problematic because then one is essentially applying a reasonable person test to the entity’s determination that a minister exists. That reasonable person who is applying the test may go very different places depending upon his or her background. The function test has a lot of appeal, but as we see in this case, functions can be spun by advocates. Also, even assuming judges will recognize spinning and they probably would, what do you do when it ties? Both the dissenting judge and myself found ourselves in that predicament.
The case also stands for the proposition that regardless of what a faculty handbook says, what actually happens on the ground is dispositive.
The ministerial exception is an affirmative defense.
Look for lots and lots of litigation over the ministerial exception. The difference now is that we have two new justices on the Supreme Court (Justice Gorsuch and Justice Kavanaugh). Justice Gorsuch is a big religious freedom person. I have not looked into Justice Kavanaugh’s jurisprudence on this issue. I have no idea what tests from Hosanna-Tabor Justice Gorsuch and Justice Kavanaugh will adopt. It may be a while before they take on a case like this since you can’t really say a conflict ever exists because any of several different standards might be in play. So, I would not expect the confusion generated by the various views expressed in Hosanna-Tabor of when the ministerial exception occurs to be resolved anytime soon.