Posted by Sasha Volokh:
Pro-plaintiff textualism?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228761404
I'm not an expert on civil rights law or anything, but just looking at
the [1]D.C. harassment case that Eugene just linked, it looks like a
more literalist reading of the D.C. Code would have been kinder to the
plaintiff. 1. Analysis under the D.C. Code
Here's what the district judge says:
Plaintiff's sexual harassment claims fail because she was not an
�employee� within the meaning of the DCHRA. The DCHRA defines an
employee as �any individual employed by or seeking employment from
an employer.� D.C.Code § 2-1401.02(9). The statute defines an
employer as �any person who, for compensation, employs an
individual....� D.C.Code § 2-1401.02(10) (emphasis added).
Plaintiff did not satisfy this definition, as she was not working
for compensation, nor was she seeking a paid job.
Now consider the relevant D.C. code provisions:
(9) "Employee" means any individual employed by or seeking
employment from an employer.
(10) "Employer" means any person who, for compensation, employs an
individual, except for the employer's parent, spouse, children or
domestic servants, engaged in work in and about the employer's
household; any person acting in the interest of such employer,
directly or indirectly; and any professional association.
So say A is an unpaid intern for company B. Consider (10) in
isolation: Is B an employer? It seems that it is, because B really
does employ other people (aside from A) for compensation. So B
qualifies as someone who, for compensation, employs an individual.
Now consider (9). Is A an employee? There's definitely an "employer"
in the picture, B; the remaining question is whether A was "employed
by or seeking employment from" B.
The verb "employ" doesn't seem to be defined in the Code. So now go
back to (10), which talks about someone "who, for compensation,
employs." It seems there ought to be a concept of uncompensated
employment, or else the qualifier "for compensation" would be
superfluous. I would think that the definition of "employ" would be
the common meaning, something like telling someone to do something as
part of one's business.
So I would think that B is an employer (though not of A), and A is a
person who is employed by B. If the court had engaged in this more
literal reading, it might not have dismissed the D.C. Code sexual
harassment claim. Instead, it apparently reads subsection (10) to
include a provision that the employment of the plaintiff itself must
be for compensation:
The text of the DCHRA clearly provides that the employment must be
�for compensation.� See D.C.Code § 2-1401.02(10) (defining an
employer as �any person who, for compensation, employs an
individual ... [or] any person acting in the interest of such
employer, directly or indirectly�).
2. Analysis under Title VII
The district court also gets support from its position from Title VII,
relying on local D.C. precedent saying that Title VII should be
considered in interpreting the D.C. Code. And then it cites three
Title VII cases:
See, e.g., O'Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir.1997)
(college student volunteering as an intern at a hospital as part of
her academic studies was not an employee under Title VII); Neff v.
Civil Air Patrol, 916 F.Supp. 710, 712 (S.D.Ohio 1996) (�unpaid
volunteers are not employees within the protection of Title VII�);
Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211,
221(4th Cir.1993) (volunteer firefighter found to be an employee
under Title VII because, while she did not receive direct
compensation, she received other benefits such as a disability
pension, survivor's pension for dependents, and tuition
reimbursement).
To get the "employer" and "employee" definitions from Title VII, we
look at 42 U.S.C. 2000e:
(b) The term �employer� means a person engaged in an industry
affecting commerce who has fifteen or more employees for each
working day in each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a person . . . .
(f) The term �employee� means an individual employed by an employer
. . . .
So here, too, B would be an "employer" under (b) -- because "employer"
is defined with respect to the other employees he has, not with
respect to his relationship with any particular claimant. And under
(f), we get the same ambiguity, where we don't know what "employed"
means. As I said above, I'd think that "employed" would incorporate
some usual meaning -- except that in the D.C. case, there's a reason
for inferring the existence of "unpaid employment," while arguably you
may decide otherwise in defining "employ" for Title VII.
What do those Title VII cases say? The first one, O'Connor v. Davis,
says (citations omitted):
The definition of the term �employee� provided in Title VII is
circular: the Act states only that an �employee� is an �individual
employed by an employer.� However, it is well established that when
Congress uses the term �employee� without defining it with
precision, courts should presume that Congress had in mind �the
conventional master-servant relationship as understood by the
common-law agency doctrine.� . . .
Where no financial benefit is obtained by the purported employee
from the employer, no �plausible� employment relationship of any
sort can be said to exist because although �compensation by the
putative employer to the putative employee in exchange for his
services is not a sufficient condition, ... it is an essential
condition to the existence of an employer-employee relationship.�
The next case, Neff v. Civil Air Patrol, says:
In order to determine whether a person is an �employee� and
therefore a proper plaintiff under Title VII, the Sixth Circuit
considers whether the �economic realities� of a situation make the
putative employee �susceptible to the kind of unlawful practices
that Title VII was intended to remedy.�
and decides that the economic reality of not getting paid is what
makes the difference. In other words, in the absence of statutory
guidance, they use purposivist reasoning to conclude that liability
for sexually harassing interns wouldn't further the presumed goals of
Title VII.
The third case, Haavistola v. Community Fire Co. of Rising Sun, cites
prior cases from other circuits, expressly citing the legislative
history to the effect that we should rely on dictionary definitions of
"employee" and "employer." And Webster's Third ([2]attention Scalia!),
says an employee is "one employed by another usu. in a position below
the executive level and usu. for wages." From this "usu.", the court
extracted a necessary condition!, concluding that in the absence of
wages, there's no employee.
Bottom line: Some of these Title VII cases use non-textualist analysis
to decide against the unpaid intern claimant. Some do use textualist
analysis, but not necessarily good textualist analysis. Under a proper
textualist analysis, maybe, for Title VII, one might conclude that
explicit compensation is necessary to be "employed."
But there's no reason for the same analysis to apply to the D.C. Code,
because the D.C. Code does mention employment for compensation -- as I
mentioned above, suggesting that compensation isn't necessary for
employment to exist.
So this is one of many cases where a textualist analysis could
actually be pro-claimant -- a result that's usually labeled "liberal"
in civil rights cases -- contrary to the common perception of
textualism as being a conservative methodology.
For more on this, see my recent article, [3]Choosing Interpretive
Methods: A Positive Theory of Judges and Everyone Else, 83 NYU L. Rev.
769 (2008).
References
1. http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228758159
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=512&invol=218
3.
http://www.law.nyu.edu/ecm_dlv/groups/public/@nyu_law_website__journals__law_review/documents/documents/ecm_pro_058035.pdf
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