US court asks whether 'garden variety' sex bias is sexual harassment
By Daniel Wiessner
Oct 30 (Reuters) -A U.S. appeals court panel on Wednesday grappled with whether a federal law barring mandatory arbitration of sexual harassment claims applies to a former CVSCVS.N store manager's lawsuit alleging that her sexist boss discriminated against her.
A three-judge 3rd U.S. Circuit Court of Appeals panel in Philadelphia heard arguments in an appeal by Michelle Cornelius of a New Jersey judge's ruling that said the 2022 law was limited to allegations involving "unwelcomed sexual advances or behavior motivated by a sexual desire" and sent her claims to arbitration.
Cornelius in a 2023 lawsuit had claimed her supervisor made rude comments about women, assigned her undesirable tasks and denied her a promotion because of her sex, ultimately spurring her to quit. She does not allege that he made any sexual comments or advances.
But her lawyer, Alex Leone, told the 3rd Circuit panel on Wednesday that the 2022 law applies not only to sexually-charged conduct but more broadly to claims involving harassment based on sex, including “being aggressively rude" and disparaging or sabotaging a worker because of her sex.
“We pleaded quite robustly all different kinds of allegations that fall into all of those categories,” Leone said.
It was not clear how the judges were leaning, and they seemed to struggle to pinpoint the distinction between sexual harassment and what Circuit Judge David Porter called "garden variety discrimination based on sex."
“All sex discrimination isn't also sexual harassment,” said Porter, an appointee of Republican former President Donald Trump.
Leone agreed but said discrimination is also harassment when it goes beyond concrete employment decisions, such as promotions, and involves severe or pervasive conduct that creates a hostile work environment.
The arbitration law passed Congress with bipartisan support and the backing of major business groups, and is among the most impactful policy changes spurred by the #MeToo movement.
In the first federal appeals court decision to interpret the law, the St. Louis-based 8th Circuit in August said a former Chipotle Mexican Grill employee did not have to arbitrate claims that she was harassed and raped by a coworker, because she sued the restaurant chain shortly after the law took effect.
Cornelius is backed in her appeal by the U.S. Equal Employment Opportunity Commission, which said in an amicus brief that a long line of court precedent supports the argument that harassment based on sex is a form of sexual harassment under Title VII of the Civil Rights Act of 1964.
CVS, which was represented on Wednesday by Kristine Derewicz of Littler Mendelson, has denied wrongdoing in the case. The company received a boost from the U.S. Chamber of Commerce and the Retail Litigation Center, which said in a brief that the law garnered the support of Republicans and business groups precisely because it was narrowly written to apply only to claims of sexual harassment or assault.
Michael Kenneally, who argued for the groups on Wednesday, told the 3rd Circuit that the law is targeted at "really bad conduct" including epithets, slurs, lewd displays or unwanted physical contact.
“We’re getting beyond mere friction between professionals,” Kenneally said.
Circuit Judge Michael Chagares suggested that the legislative history of the law was not enough for CVS to prove its case.
“Where else can we find a definition that will help us make some bright lines here?” said Chagares, an appointee of Republican former President George W. Bush.
Kenneally cited several cases in which courts have said that proving sexual harassment requires evidence of conduct that is severe and "not merely tinged with sexual connotations."
The panel includes Circuit Judge Cindy Chung, an appointee of Democratic President Joe Biden. Like her colleagues, Chung asked several questions but did not indicate how she could rule.
The case is Cornelius v. CVS Pharmacy, 3rd U.S. Circuit Court of Appeals, No. 23-2961.
For Cornelius: Alex Leone of Leone Law
For CVS: Kristine Derewicz of Littler Mendelson
For the EEOC: James Driscoll-MacEachron
For the Chamber and Retail Litigation Center: Michael Kenneally of Morgan Lewis & Bockius
Read more:
U.S. Congress passes ban on forced arbitration of worker sex abuse claims
Sex harassment claim shields whole lawsuit from arbitration, judge rules
Chipotle can't force arbitration of workplace rape claim, US court rules
House passes bill to end mandatory arbitration of legal disputes
Wells Fargo ends forced arbitration for sexual harassment claims
Reporting by Daniel Wiessner in Albany, New York
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