Sixth Circuit Case with Implications for Employers and Schools to Get SCOTUS Review

icra iflas piled book
SCOTUS will be hitting the books to determine the scope of protections in Title VII.

Last year, the Sixth Circuit issued a groundbreaking decision in employment law relating to Title VII of the Civil Rights Act. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018)the Court held that the prohibition against discrimination on the basis of sex in 42 U.S.C. § 2000e-2(a)(1) protected an employee on the basis of gender identity. In particular, the Court held that Title VII’s reference to “sex” necessarily included protections for transgender or transitioning persons. Citing the Supreme Court’s landmark decision in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the Sixth Circuit also found that discrimination against transitioning or transgender employees was also prohibited as an impermissible “sex stereotype.” As the Sixth Circuit noted, in Price, the Supreme Court acknowledged that unlawful discrimination occurred where a female employee alleged she experienced adverse employment actions for failing to “walk … femininely, talk … femininely, dress … femininely, wear make-up, have her hair styled, [or] wear jewelry[.]” According to the Sixth Circuit, there was no reason that this same rationale should not apply to stereotypes that relate to an employee’s gender identity.

On Monday, the Supreme Court granted certiorari on the Sixth Circuit’s decision, specificaly as to the question of whether Title VII protects employees on the basis of their status as transgender or under the “sex stereotypes” prohibition from Price Waterhouse. At the same time, the Court granted cert to consider contrary results from the 2nd and 11th Circuits which addressed whether Title VII’s sex discrimination prohibition extends to sexual orientation. Given that Title VII applies broadly to employers across the United States which have more than 15 employees, including state and local governments, the grant of cert in these cases clearly has the potential to impact school districts and its employees in and outside of the Sixth Circuit.

In addition, as Mark Walsh of the School Law Blog, aptly noted, these cases could have broader implications as well for school districts. As Walsh explained, the interpretation of one Title of the Civil Rights Act often serves as a precedent that can affect the interpretations of others. Thus, if SCOTUS chooses to affirm the extension of protections in Title VII to gender identity or sexual orientation as some lower courts have done, it could affect other federal statutes, including Title IX, which may affect the rights of students as well as school employees. As such, the Supreme Court’s decision to review Harris Funeral Homes is certainly significant for schools, their employees, and potentially their students in and outside of the Sixth Circuit.

 

Pending Criminal Charges Insufficient to Stay Ohio University Disciplinary Proceeding

man wearing black officer uniform
This is where we are used to hearing about the “right to remain silent.”

Anyone who has watched a TV cop show knows that they have a right to remain silent when criminal charges are pending against them. This right emanates from the language in the 5th Amendment of the United States Constitution which ensures that citizens will not be “compelled in any criminal case to be a witness against himself”. But, what happens when testimony is expected or necessary in a proceeding that isn’t a criminal case?

That was the issue in Roe v. Director, Case No. 19-CV-136,2019 U.S. Dist. LEXIS 55246 (S.D. Ohio 4/1/19). In that case, John Doe, a student at Miami University faced, simultaneously, a university disciplinary proceeding and a criminal proceeding after he was accused of sexually assaulting fellow student, Jane Roe, in November, 2018. The common practice for criminal defendants in such a predicament is to request a stay of the non-criminal process until the criminal proceeding resolves. Doe did this, but because the university’s disciplinary policies expressly permitted hearings to proceed when criminal charges were pending, his request was denied. When the hearing was scheduled, Doe filed a Motion for a Temporary Restraining Order in the Southern District of Ohio to stay the hearing until the criminal process was resolved in order to vindicate his due process rights.

The standard for a TRO is a high one. In order to obtain relief, a party must show that he will experience irreparable harm if an injunction is not granted and that the equities favor granting the injunction. In addition, the party requesting a TRO must show that they are “likely to succeed on the merits”, or that the prevailing law strongly supports their claims. After considering these factors, Judge Timothy Black of the Southern District of Ohio denied Doe’s Motion.

Judge Black conceded that for Doe the university disciplinary process carried with it life-damaging penalties and that the prospect of hindering a defense in criminal proceedings was dire. Yet, the Court ruled that Doe was unlikely to succeed on the merits of his claims because the applicable disciplinary process did not violate the Due Process Clause. To reach this conclusion, the Court applied the well-established tripartite balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976) and considered: (1) the private interest at stake; (2) the procedures used; and (3) the government interest.

While the Court agreed that Doe’s interests were strong, including his long-term employment prospects and reputation, it found that the university’s interest in addressing and promptly resolving sexual assault complaints was compelling. Although the Court acknowledged that Doe’s right to avoid self-incrimination was constitutionally enshrined, his right to stay other proceedings to ensure the exercise of this right was not. To the contrary, the Court cited to at least one past decision which found that a student received due process in a university proceeding even though it had occurred while criminal charges were pending. See Pierre v. Univ. of Dayton143 F.Supp.3d 703 (S.D. Ohio 2015).

As to the other elements, though the Court acknowledged that Doe’s situation was problematic, it was skeptical that it constituted irreparable harm because the proceeding had not yet occurred and no finding had been made against him. Additionally, the Court found that the public interest did not support a finding in Doe’s favor because, if such a ruling were entered, it would prevent universities from conducting disciplinary hearings in any case where criminal charges were filed until they were resolved. As the Court noted, this could prevent universities from resolving disciplinary complaints for months or, in some cases, years. For these reasons, the Court denied Doe’s request for a TRO.

So what does this case mean? It means that the “right to remain silent” we hear about in cop shows has limits and that it does not necessarily apply the same way in non-criminal proceedings, including university disciplinary proceedings.